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ECHR

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train

001-67582

ENG

TUR

CHAMBER

CASE OF GÜMÜŞTEN v. TURKEY

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

Nicolas Bratza

8. The applicant was born in 1952 and lives in Mardin. 9. On 22 December 1980 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation. 10. On 10 March 1981 the Diyarbakır Martial Law Court ordered the applicant's detention on remand. 11. On 14 September 1981 the public prosecutor's office at the Diyarbakır Martial Law Court filed a bill of indictment with the latter, accusing the applicant of membership of an illegal organisation. The public prosecutor's office requested that the applicant be convicted and sentenced under Article 168 § 1 of the Criminal Code. 12. On 19 February 1985 the Diyarbakır Martial Law Court convicted the applicant as charged and sentenced him to twenty-four years' imprisonment. Before the Diyarbakır Martial Law Court, the applicant was tried together with 624 co-suspects. 13. Following the applicant's appeal, his case was referred to the Military Court of Cassation. 14. On 10 April 1990 the Military Court of Cassation quashed the judgment of the Diyarbakır Martial Law Court on the ground that latter had misinterpreted the domestic law in respect of the offence in question. 15. On 29 July 1990 the applicant was released from detention. 16. Subsequent to promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Diyarbakır Assize Court acquired jurisdiction over the applicant's case. 17. On 13 July 1998 the Diyarbakır Assize Court held that the offence fell within the scope of Article 168 § 2 and consequently the statutory timelimit under Articles 102 and 104 of the Criminal Code had expired. It accordingly ordered that the criminal proceedings against the applicant be terminated. 18. On 10 September 1998 the judgment became final in respect of the applicant. 19. A description of the relevant domestic law and practice can be found in Şahiner v. Turkey, no. 29279/95, ECHR 2001-IX.

train

001-77197

ENG

TUR

ADMISSIBILITY

YILMAZ AND OTHERS v. TURKEY

Inadmissible

The applicants, MM. Bayram Yılmaz and Seyfettin Yıldız, are Turkish nationals who were born in 1963 and 1955 respectively and live in Adana. They were represented before the Court by MM. M. Çinkiliç and K. Derin, lawyers practising in Adana. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 October 1994 the first applicant was taken into police custody on suspicion of aiding and abetting an illegal organisation, namely the Kurdistan Workers’ Party (“the PKK”) and was subsequently placed in detention on remand. The Public Prosecutor at the Konya State Security Court initiated criminal proceedings against him and twelve others. He requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713. On 19 January 1995 the trial commenced before the Konya State Security Court against twenty-seven persons, including the first applicant. On 30 September 1995 police officers from the Adana Security Directorate apprehended the second applicant. On 23 October 1995 the Public Prosecutor at the Konya State Security Court filed an indictment charging him with membership of an illegal organisation. On 30 October 1995 the proceedings against the second applicant, together with ten others, commenced before the Konya State Security Court. On 5 March 1996 the court joined the second applicant’s case to the first applicant’s case pending before a different chamber of the court. On 4 June 1996 two other cases were joined to the applicants’ proceedings. On 13 November 1996 the court acquitted the first applicant on account of lack of evidence. Moreover, it convicted the second applicant and sentenced him to twelve years and six months’ imprisonment. While the case was pending at the appeal stage, on 19 May 1997, after the promulgation of Law no. 4210, which abolished the Konya State Security Court, the case-file was transferred to the Adana State Security Court. On 26 October 1998 the Court of Cassation quashed the decision of the State Security Court for procedural reasons. The first hearing before the Adana State Security Court took place on 14 January 1999. The court took the statements of some of the accused concerning the Court of Cassation’s decision to quash the judgment of 13 November 1996. At the hearing of 25 February 1999 and during the following two hearings the other accused submitted their comments on the decision of the Court of Cassation. According to the minutes, when some of the accused wanted to read out loud their written defence statements the court informed them that the examination of the merits would be carried out once the procedural stage was completed. On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of State Security Courts were replaced by civilian judges. At the hearing of 15 July 1999 the civilian judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. Between 15 July 1999 and 5 October 2000 the Adana State Security Court, which was composed of three civilian judges, held ten hearings. On 7 October 1999 two other cases were joined to the applicants’ proceedings. At the sixteenth hearing held on 16 November 2000, the number of accused before the court was seventy. The court, composed of three civilian judges, found the applicants guilty as charged. It sentenced the first applicant to three years and nine months’ imprisonment and the second applicant to twelve years and six months’ imprisonment. The applicants appealed. On 26 January 2001 the court gave an additional decision in which it suspended the proceedings in respect of the first applicant and thirty-two others, in accordance with Law no. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999. On 25 March 2002 the Court of Cassation decided that the criminal proceedings against the first applicant be terminated on the ground that the statutory time-limit under Article 102 of the Criminal Code had expired. It further decided to uphold the decision of the Adana State Security Court in respect of the second applicant, endorsing the first instance court’s assessment of the evidence and its reasons for rejecting his defence. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 2021, 7 November 2002) and Öcalan v. Turkey ([GC], no. 46221/99, § 54, ECHR 2005...).

train

001-104923

ENG

TUR

COMMITTEE

CASE OF KELOĞLAN AND OTHERS v. TURKEY

Violation of Art. 6-1

András Sajó;Paulo Pinto De Albuquerque

4. The applicants, who are former military students, were born in 1988, 1987 and 1991 respectively and live in Ankara, Kocaeli and Adana. 5. On different dates the applicants were expelled from military schools following disciplinary decisions, which held that the applicants did not possess the requisite attributes of a military student as defined in the relevant legislations. The applicants were not provided with any further information regarding the reasons for their expulsions. 6. The applicants subsequently brought separate actions before the Supreme Military Administrative Court against the Ministry of Defence, requesting this court to quash the disciplinary decisions ordering their expulsions. 7. The Ministry of Defence submitted certain documents and information to the Supreme Military Administrative Court during the course of the proceedings, which were classified as “secret documents” under Article 52 (4) of Law no. 1602 on the Supreme Military Administrative Court. These documents were not disclosed to the applicants. 8. On 27 September 2006, 22 November 2006 and 3 October 2007, respectively, the Supreme Military Administrative Court rejected the applicants’ request. The judgment of 3 October 2007 was served on the third applicant on 25 October 2007. Citing the relevant legislation, the Supreme Military Administrative Court held that a student could be lawfully expelled from a military school by a disciplinary board decision if he was found to have lost the attributes of a military student during the course of his studies or if it became apparent at such time that he did not possess the necessary qualifications from the start. The applicants, who were found to lack the requisite attributes of a military student following a secret security investigation conducted on them and their families, were thus lawfully expelled from their schools. 9. On 15 November 2006 and 12 September 2007, respectively, the Supreme Military Administrative Court rejected the first and second applicants’ rectification request. The third applicant did not seek rectification. 10. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008).

train

001-109268

ENG

NOR

ADMISSIBILITY

ALI v. NORWAY

Inadmissible

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

1. The applicant, Mr Dilan Sadik Ali, is an Iraqi national who was born in 1979 and lives in Kristiansand. He is represented before the Court by Mr D. Gallup, legal officer at the World Service Authority, Washington, the United States of America (USA). 2. The Norwegian Government (“the Government”) were represented by Mr M. Emberland, Attorney, Attorney-General’s Office (Civil Matters), as their Agent, assisted by Mr G.O. Hæreid, Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant applied for asylum in Norway on 21 March 2001. On 14 November 2001 the Directorate of Immigration rejected his asylum request but granted him a work- and residence permit on humanitarian grounds (section 8 of the Immigration Act of 24 June 1988 No. 64, Lov om utlendingers adgang til riket og deres opphold her – utlendingsloven, applicable at the material time). 5. By a judgment of 15 April 2005 the Kristiansand City Court convicted the applicant on charges of aggravated assault committed against his former girlfriend. It found established beyond reasonable doubt that he had pushed her to the ground so that she had fallen and hit her head against the asphalt and, while she was lying on the ground, had kicked her twice on her left hand side and had then left the scene. The victim was hospitalised for three days while suffering from nausea and vomiting, minor head aches, amnesia and pain in the rib on her left side. The applicant was in addition convicted on a count of speeding. The City Court, finding that the applicant’s kicking of the victim made the offence borderline to what would warrant a nonsuspended sentence and being in doubt therefore, decided to impose a suspended sentence of sixty days’ imprisonment and a fine of 3,000 Norwegian kroner (NOK), corresponding to approximately 390 Euros (EUR). 6. In the light of his conviction on 15 April 2005, the Directorate of Immigration warned the applicant on 8 September 2005 that it contemplated expelling him. 7. On 30 November 2006 the Directorate decided to expel the applicant, finding that the conditions under section 29 (1) (c) and (3) of the Immigration Act 1988 had been fulfilled and that his expulsion would not be disproportionate for the purposes of section 29 (2). Under section 29 (4), the Directorate further decided to prohibit the applicant from re-entry into Norway indefinitely. 8. In a separate decision of the same date, the Directorate rejected an application by the applicant for renewal of his work- and residence permit. It held that the conditions for granting him such a permit had not been fulfilled as there existed circumstances that warranted refusing him entry into the country. 9. Represented by a new lawyer, the applicant appealed (via the Directorate) to the Immigration Appeals Board. He argued that the expulsion was disproportionate as he had settled in Norway and that he was not a criminal in the normal sense of the word. The applicant pointed out that he had not been involved in any criminal offence either before or after those dealt with by the City Court. Moreover, Iraq was in a state of civil war and there was a high risk of escalation of the internal conflict, meaning that the situation was generally insecure. 10. In a letter to the Directorate, dated 14 January 2007, the applicant claimed to be of Turkmen ethnic origin coming from Kirkuk. He also maintained that his previous girlfriend had tried to blackmail him and added that he had a new girlfriend. 11. By a letter of 1 February 2007 the applicant’s new girlfriend, Ms M.O. who was Norwegian, requested the Directorate of Immigration to reconsider its previous rejection. On 11 April 2007, he informed the Directorate that on 31 March 2007 he had married M.O. 12. On reviewing the above-mentioned arguments, the Directorate did not consider that the appeal contained any new information of significance and maintained its previous decisions. The Directorate noted that the applicant had married on 31 March 2007, but did not attach great importance to this event since the marriage had occurred after the Directorate’s decision of expulsion. It was also pointed out that the applicant was suspected of two further incidents of assault, occurred on 12 June and 1 August 2007, respectively. The Directorate consented, however, to postpone the enforcement of his expulsion pending a decision on his appeal, which the Directorate referred to the Immigration Appeals Board on 15 October 2007. 13. On 15 August 2008 the Immigration Appeals Board rejected the applicant’s appeal against the Directorate’s refusal of the applicant’s request for renewal of his work- and residence permit. The Board upheld in part his appeal against the Directorate’s decision to expel him indefinitely by limiting the prohibition on re-entry to five years. It decided that an application for re-entry could be made at the earliest after a period of two years from his leaving the country. 14. The Board reiterated that, according to section 29 (1) (c) of the Immigration Act 1988, a foreign national might be expelled if he or she had been sentenced in Norway for an offence that was punishable by imprisonment for a term exceeding three months. Moreover, pursuant to section 29 (3), if the person concerned held a work- or residence permit, he or she could only be expelled if the offence was punishable by imprisonment for a term exceeding one year or in the event of violation of inter alia Article 228 (1) (assault) of the Penal Code. The Board, referring to the applicant’s conviction and sentence (for aggravated assault under Article 228 (1) and (2)) by the City Court of 15 April 2005, considered that this condition had been fulfilled in his case. 15. As to the condition in section 29 (2) that the expulsion should not be a disproportionately severe measure vis-à-vis the foreign national himself or his closest family members, the Board first had regard to the seriousness of the offence. The City Court had imposed a suspended term of sixty days’ imprisonment in respect of offences that included assault against his previous girlfriend, resulting in injury to her body and health. This was a relatively serious offence which carried a maximum penalty of three years’ imprisonment. In meting out the sentence, the trial court had held that the fact that applicant had kicked the victim’s body after she had fallen to the ground was an important aggravating factor and had found no mitigating circumstances. 16. The Board further considered it significant that, on 2 May 2008, the applicant had accepted a summary fine (forelegg) for an offence of theft (Article 257 (1) of the Penal Code). It in addition noted that on 30 June 2008 the City Court had sentenced him to forty-five days’ suspended imprisonment in respect of two instances of aggravated violent assault (Article 228) and for dealing with stolen goods (Article 317 (1)), but without attaching decisive importance thereto, it being unclear whether the judgment had gained legal force. 17. In light of the gravity of the applicant’s offences, the Board found that his personal attachment to Norway carried little weight, as did the fact that he had married a Norwegian national after the Directorate had decided to expel him. At that time they could hardly have entertained any legitimate expectation about being able to live together in Norway. The applicant’s links to the country through his wife had mainly been established after he had committed the offences for which he had been convicted. However, having regard to it being a suspended sentence, to his overall links to Norway and to the Board’s practice in this area, the latter limited the prohibition on re-entry to five years. In the Board’s opinion, the consequent interference with the applicant’s enjoyment of private and family life would be justified for the purposes of Article 8 of the Convention. 18. The Board next considered whether the applicant’s expulsion would be prevented by a real risk of persecution, loss of life or ill-treatment (section 15 of the Immigration Act and Article 3 of the Convention). 19. In this connection, the Board based its assessment on it having been established that the applicant was of Kurdish ethic origin and came from Kirkuk, as he had consistently submitted in his request for a residence permit in Norway. His claim on some occasions in 2005 and thereafter that he was of Turkmen origin had weakened his credibility. 20. In so far as the applicant’s individual situation was concerned, the Board noted that the reasons underlying his asylum request had related to the Baath regime and that this regime no longer existed. Nor were there any other circumstances pertaining to the applicant or the conditions in his home country suggesting that he was in need of protection. 21. As to the general security situation in Kirkuk, the Board stated that it was characterised by violence and disturbance and had been unstable and difficult. Kirkuk had been located in the border region near the Kurdish autonomous areas in Iraq. The Kurdish population had been in a majority whereas Turkmens, Arabs and Assyrians had constituted the largest minority groups. Kirkuk had mainly been under Kurdish political and military control, though the minorities had also been represented in governing bodies. 22. At times during the past years the level of violence had been high, notably because of the presence of several different militant groups. In Kirkuk the violence had in particular taken the form of shootings, road bombs, suicide bombs and car bombs. The targets of the actions had first and foremost been the security forces and the police, but also local political leaders and their family members as well as members of the civilian population had been affected by actions. 23. The Board nonetheless considered that the current situation had not been such as to regard all citizens in the area as being in imminent danger of loss of life or ill-treatment. The most recent reports on the area, amongst other from the United Nations Security Council, the United States’ Department of Defence, the UN Assistance Mission for Iraq (UNAMI) and the United Nations High Commissioner for Refugees (UNHCR), had showed that the security situation in the area was improving. In comparison with other areas of Central and Southern Iraq, the current violence had been more limited and had to a greater extent been aimed at specific target groups, than was the case in Southern Iraq. According to the Board’s practice, the general security situation in Kirkuk had not on its own constituted a ground for protecting persons of Kurdish ethnic origin. 24. The applicant requested the Immigration Appeals Board to reconsider its above-mentioned refusal of 15 August 2008. He argued that his return would be prevented by the security situation in Iraq generally and that in Kirkuk specifically. He further submitted that his wife suffered from depression. According to a medical statement from the psychiatric clinic of Sørlandet Hospital, in view of her husband’s impending expulsion, her psychological problems had increased with serious suicidal thoughts and impulses. He was important to her and represented a stabilising factor in her life and her mental health. Also, he assumed a significant role as a care person for his stepson who was showing signs of behavioural difficulties. 25. On 30 June 2009 the Board refused the applicant’s request, finding no hardship exceeding what was normal in a situation of expulsion. Also, the applicant’s relationship to his spouse and stepchildren had been established essentially after he had committed the offences for which he had been convicted. The Board reiterated that the prohibition on re-entry had been limited to five years. 26. As regards the question whether the general situation in Kirkuk was such as to prevent the applicant’s return, the Board restated the findings made in its decision of 15 August 2008 summarised above. It noted that in its recommendations of 18 December 2008 and Eligibility Guidelines of August 2007, and the Addendum thereto of December 2007, as well as Eligibility Guidelines of April 2009, the UNHCR had advised against any forcible return to the five governorates of Central Iraq (Bagdad, Ninewah, Diyala, Salah al-Din, Tamim) and considered that persons coming from these areas should be recognised as refugees. The UNHCR had assumed in its recommendations that persons who were not recognised as refugees should nevertheless be granted protection. The UNHCR had amongst other referred to the general situation of violence, the great number of internally displaced people, the authorities’ inability and unwillingness to provide protection, the high unemployment, limited access to fuel, electricity and water and great shortcomings in public health services, education etc. 27. The Board reiterated that UNHCR recommendations were relevant and had to be given weight, both as information about the general situation in Iraq and as part of the interpretation of whom had a right to protection under the Refugee Convention. However, the UNHCR recommendations could not be decisive of their own. The Board had to have regard to other information and reach a correct decision in accordance with the Refugee Convention and other relevant rules. The Board also took account of the fact that the UNHCR recommendations had regard to humanitarian and socioeconomic considerations, not only to the security situation and the danger of being affected by violence. 28. Although the security situation in Kirkuk was difficult and unstable, the Board did not consider that the current situation was of such a nature that all the inhabitants of the region could be said to face a real risk of losing their lives or of being made to suffer inhuman treatment. Nor were there factors related to the applicant’s Kurdish origin that indicated that he would face a real risk of losing his life or being made to suffer inhuman treatment if he were to return to Kirkuk. 29. In this connection, the Board reiterated that, throughout his application to stay in Norway, the applicant had maintained that he was of Kurdish ethnic origin and that so was his father. The fact that the applicant in 2005 onwards had claimed to be of Turkmen origin detracted from his general credibility. 30. In its decision the Board also provided information about a voluntary repatriation program that had operated since 1 March 2008, covering the Dahuk, Erbil and Sulaymaniyah Governorates in Northern Iraq and opening also for the possibility to apply for repatriation to other areas. It was sponsored by the Norwegian Government and implemented by the International Organization for Migration. Under this program a returnee would be eligible to receive NOK 10,000 (approximately EUR 1,300) in cash and be offered an additional NOK 25,000 (approximately EUR 3,250) in resettlement support. 31. The applicant sought to bring his case to the attention of a number of instances, including to the King, the Prime Minister and various ministries, but to no avail. 32. Under the Code of Civil Procedure of 17 June 2005 No. 90 (tvisteloven), a decision by the Immigration Appeals Board could form the subject of an appeal to the competent city court or district court (tingrett) (Articles 1-3, 15, 4-1), from there to the High Court (lagmannsrett) (Articles 4-1 and 291) and ultimately to the Supreme Court (Article 30-1). The domestic courts had full jurisdiction to review the lawfulness of the Board’s decision and were empowered to quash the decision should they find that it was unlawful. Pursuant to section 4 of the Immigration Act 1988, the provisions of the Act were to be applied in accordance with Norway’s international legal obligations intended to strengthen the legal position of a foreign national. In the event of conflict between the national legal provision and Norway’s obligations under the Convention, the latter was to take precedence (sections 2 and 3 of the Human Rights Act of 21 May 1999 No. 30). 33. Under Chapters 32 and 34 of the Code of Civil Procedure, a person whose expulsion had been ordered by the immigration authorities could apply to the courts for an interlocutory injunction to stay the implementation of the expulsion order. 34. Further conditions regarding judicial review of the Immigration Appeals Board’s decision were set out inter alia in the following provisions and guidelines. 35. At the material time, the fee for filing a lawsuit before a City Court or a District Court (tingrett) was NOK 4,300, corresponding to approximately EUR 560, if the hearing lasted for one day and NOK 6,880 (EUR 900) if the hearing lasted for two days. 36. Pursuant to section 3 of the Court Fees Act of 17 December 1982 No. 86 (rettsgebyrloven), fees should be paid in advance. In the event that a sufficient amount had not been paid when a request for a judicial order had been made, the court was to fix a brief time-limit for payment. In the event that payment is not effected within the time-limit fixed, the court shall dismiss the case, unless the provisions in section 5 apply. The latter provided: “If a party has applied for free legal aid or for exemption from the payment of court fees under the Free Legal Aid Act of 13 June 1980 No. 35 [rettshjelploven], a respite should be granted until the application has been decided. In this event no security can be required for the payment of the fee. If a party who has requested a procedural step [rettergangsskritt] has obtained respite in accordance with the foregoing, the court shall grant the measure. In other cases the court may grant a measure if the party who has requested it is unable to pay immediately and it would entail a damage or significant inconvenience for that party if the measure is not taken. If the measure requires payments, an advance payment may be made by the public authorities. If a measure has been taken with a respite, the court shall fix a time-limit for payment. Until payment has been made or the time-limit has expired, the court shall only take such measures as it deems necessary. If payment is not made within the time-limit, the court gives a ruling in absentia according to Articles 16-9 and 16-10 of the Code of Civil Procedure.” 37. An exception from the condition to pay court fees could be granted as part of a grant to free legal representation according to the same rules as those that applied to the latter (section 25 of the Free Legal Aid Act). A person who was not entitled to free legal representation could be granted an exemption from the duty to pay court fees provided that the financial conditions in section 16 (2) or (4) had been fulfilled (see below). 38. According to the Code of Civil Procedure a party could be represented by counsel (Article 3-1), but was not obliged to be so represented, save if the party was unable to present the case in a comprehensible manner and the court has ordered the party to appear with counsel (Article 3-2). 39. Section 16 (1) to (5) of the Free Legal Aid Act 1980 included the following provisions of relevance to the present case: “(1) Free legal representation shall be granted without means testing in ... the following instances: ... 4. to a foreign national in such instances as mentioned in section 92 (3), second sentence, and (4) of the Immigration Act [2008] .... ... (2) In such cases as mentioned in section 11(2) nos. 1-5 [not applicable in the instant case], an application for free legal representation may be granted to a person whose income and assets do not exceed certain levels set by the Ministry. (3) In other cases, free legal representation may be granted exceptionally, provided that the financial conditions pursuant to the second sub-section are fulfilled and that the case affects the claimant especially from an objective point of view. In the assessment, weight should be attached to whether the case has similarities with the litigation areas mentioned in the first and second sub-sections. (4) In such cases as mentioned in the second and third sub-sections, free legal representation may be granted even if the claimant does not fulfil the financial conditions prescribed in the second sub-section, provided that the expenses for legal assistance will be substantial compared to the claimant’s financial situation. (5) Free legal representation shall not be granted pursuant to the second through fourth sub-sections where it would be unreasonable that such assistance be paid out of public funds.” 40. In Circular G-12/05 the Ministry of Justice and Home Affairs stated at paragraph 6.5.2: “In immigration cases not covered by section 16 (1) nr 4, the practice should be very restrictive. The general legal security of the foreigner is considered to be sufficiently secured through the administrative processing of the case. Legal aid to take the case before court should only be granted in exceptional cases, i.e. if there are very specific reasons, for instance if the case presents questions of a particular principal interest that has not previously been tried by the courts.” 41. Section 135 (1) of the Administration of Courts Act 1915 (domstolloven) provided: “In the event that a person, who does not know Norwegian, is to take part in the proceedings, an interpreter appointed and approved by the court shall be used. Recordings are to be made in Norwegian. If required by the importance of the case, the court may decide that recording shall take place in a foreign language, either in the court records or in separate annexes, to be submitted for approval.” 42. The Government referred in particular to the following provisions of the Code of Civil Procedure: “(1) The court shall actively and systematically conduct the preparation of the case to ensure that it is heard in a swift, cost effective and sound manner.” “(1) .... (2) The parties have the primary responsibility for presenting evidence. The court can take care of the presentation of evidence if the parties do not object. The court is not bound by the parties’ arguments with regard to questions of evidence.” “The court shall on its own motion apply current law within the scope of section 112 (1). In accordance with section 1-1, the court shall ensure that there is a satisfactory basis upon which to apply the law. If the application of law cannot otherwise be clarified in a fully satisfactory manner, the court may decide that evidence of the law shall be presented, or it may allow the parties to present such evidence. The court shall determine the scope of the presentation of evidence and the manner in which it shall be carried out. Statements on the law occasioned by the case may only be submitted as evidence with the consent of all parties.” “(1) The court shall give the parties such guidance on procedural rules and routines and other formalities as is necessary to enable them to safeguard their interests in the case. The court shall seek to prevent errors and shall give such guidance as is necessary to enable errors to be rectified. ... (2) The court shall, in accordance with subsections (3) to (7), give guidance that contributes to a correct ruling in the case based on the facts and the applicable rules. (3) The court shall endeavour to clarify disputed issues and ensure that the parties’ statements of claim and their positions regarding factual and legal issues be clarified. (4) The court may encourage a party to take a position on factual and legal issues that appear to be important to the case. (5) The court may encourage a party to offer evidence. (6) The court shall during the proceedings show particular consideration for the need for guidance of parties not represented by counsel. (7) The court shall provide its guidance in a manner that is not liable to impair confidence in its impartiality. The court shall not advise the parties on the position they should take on disputed issues in the case or on procedural steps they should take.” “(1) The court shall prepare a plan for dealing with the case and follow it up in order to bring the case to a conclusion in an efficient and sound manner. (2) .... (3) In each case, a preparatory judge shall be responsible for the conduct of the proceedings. ...”

train

001-69656

ENG

POL

ADMISSIBILITY

KAWALKO V. POLAND

Inadmissible

Nicolas Bratza

The applicant, Kazimiera Kühl, is a German national, who was born in 1926 and lives in Oldenburg, Germany. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 March 1970 the applicant's husband's aunt died. On 30 December 1970 the Jarocin Regional Court (Sąd Powiatowy) declared that 19 family members (amongst them the applicant's husband) were to inherit her estate. On 25 September 1972 “K.K.” filed an application for distribution of the estate with the Jarocin District Court (Sąd Rejonowy). On 6 March 2000 the court summoned the applicant to join the proceedings as her late husband's successor. The proceedings are pending before the second-instance court. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: “1. Parties Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

train

001-103893

ENG

UKR

CHAMBER

CASE OF SUK v. UKRAINE

Violation of P1-1

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

5. The applicant was born in 1956 and lives in the city of Poltava. 6. In November 2001 the applicant instituted proceedings in the Poltava Kyivsky District Court against his former employer – the Poltava Regional Fire Safety Department – claiming payment arrears of a monthly subsistence allowance for the years 1999 and 2000. 7. On 27 September 2002 the court found in part for the applicant and awarded him 767.04 Ukrainian hryvnias (UAH). 8. On 11 October 2002 the same court rectified its judgment of 27 September 2002 and increased the amount awarded to UAH 797.04. 9. On 15 April 2003 the Poltava Regional Court of Appeal quashed the decisions of 27 September and 11 October 2002 and rejected the applicant's claims. The appellate court based its findings on the fact that the Budget Act 2000 had not foreseen expenditure for the payments under the applicable Presidential Decree, and therefore held that the applicant had no entitlement to such payments during the impugned period under the Budgetary System Act. 10. On 15 September 2004 the Supreme Court of Ukraine rejected a cassation appeal lodged by the applicant against the decision of 15 April 2003. 11. The relevant provision of the Constitution reads as follows: Article 95 “The budgetary system of Ukraine is built on the principles of just and impartial distribution of social wealth among citizens and territorial communities. All expenditure by the State for social purposes, and the amount and aims thereof, shall be determined by the State Budget Act of Ukraine. The State aspires to achieve a balanced budget for Ukraine. Regular reports on revenue and expenditure of the State Budget of Ukraine shall be made public.” 12. Section 28 of the Act provides, in so far as relevant, as follows: “... The State Budget Act of Ukraine shall not make ... changes to existing legislation. If necessary, changes or additions are made initially to the relevant laws ... ... If the draft State Budget Act of Ukraine does not provide full funding within available resources of the costs set forth in Ukrainian legislation, the Verkhovna Rada of Ukraine shall enact the State Budget Act of Ukraine without amending current legislation. Such legislation is valid during the budget year only to the extent that it does not contradict the State Budget Act of Ukraine. If the Verkhovna Rada has not approved the full costs of salaries and additional payments, the corresponding number of staff of the institutions financed from the budget shall be made redundant.” 13. The relevant part of the Decree reads as follows: “In order to regulate the financial subsistence of soldiers and officers of the Interior, I decide: 2. To pay: ... material assistance in the amount of a monthly salary [payable] once a year to soldiers and officers of the Interior ...” 14. The Decree was abolished by Presidential Decree no. 1234/2007 of 18 December 2007.

train

001-82843

ENG

UKR

ADMISSIBILITY

KHIVRENKO v. UKRAINE

Inadmissible

Peer Lorenzen

The applicant, Mr Nikolay Leonidovich Khivrenko, is a Ukrainian national who was born in 1950 and lives in the town of Alushta. The Ukrainian Government (“the Government”) were represented by their Agents, Mr Y. Zaitsev and Mrs V. Lutkovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 June 1997 Mr T., a businessman, was kidnapped by a group of persons when he was approaching his hotel after his morning jogging. Shortly afterwards, the police was informed about his disappearance. Mr T.’s business partners received a number of phone calls from the kidnappers, demanding a ransom and explaining the manner in which the money should be paid. Some of the telephone conversations were intercepted by the police. The police also recordered telephone conversations between the kidnappers. The interception was authorised by the President of the Kyiv City Court on 3 June 1997. On 14 June 1997 the applicant and six other persons were apprehended on suspicion of forcible abduction of Mr T. On 17 June 1997 they were charged with aggravated extortion. On 29 August 1997 the investigators ordered an expert examination of the audio recordings of the telephone conversations made in June 1997. The investigators also took samples of the voices of the applicant and other accused and provided the expert with these samples. On 1 December 1997 the examination was completed. The expert concluded that one of the voices on the recordings belonged to the applicant. On 28 January 1998 the applicant familiarised himself with the expert’s conclusions. In May 1999 the investigations were completed and the case was referred to the Moskovskyy District Court of Kyiv for trial. The investigators also submitted a list of persons, the accused and twenty-two witnesses, to be summoned by the court. The applicant and his lawyer took part in the court proceedings. In the course of these proceedings eight witnesses, including one of the investigators, were heard in person. One of those witnesses, Mr S., stated that on 2 June 1997 he had met the applicant and Mr B., whom he had known before, at the hotel where Mr T., the victim, had stayed. Mr B. had asked Mr S. if the latter knew the place where the hotel clients were jogging. Mr S. had given him relevant explanations. On 3 June 1997 Mr S., upon the victim’s business partners’ request, had met with the applicant and Mr B. in order to find out whether the latter knew about the victim’s whereabouts. He had received an affirmative answer from Mr B., the applicant having been present at that meeting but having not participated in the conversation. Thereafter, Mr S. had had several telephone conversations with Mr B., discussing the conditions of the victim’s release. Another witness, Mrs V., informed the court that since May 1997 the applicant had resided in her flat in Kyiv and that her mother, Mrs K., had given the keys to her summer house to one of the applicant’s co-defendants. As it was later established in the course of the investigations and trial, the victim had been held in that summer house. While the investigator heard by the court as a witness submitted that the defendants had fully enjoyed their procedural rights and that they had had access to all the materials contained in the case-file, the remaining witnesses made statements relating to some of the applicant’s co-defendants’ activities at the material time. The court decided to admit and examine the written statements of fourteen other witnesses obtained at the stage of the pre-trial investigation, after having accepted the reasons for their non-appearance before the court. As far as can be determined from the contents of the court records, the police, who had been ordered to bring the witnesses before the court, informed the court that five of those witnesses resided abroad and that four other witnesses could not advance the money for travelling. The reasons for the non-appearance of other five witnesses remained unclear. The co-defendants’ lawyers objected to the admission of the written statements of some of those witnesses and insisted on their appearance at the court hearing. The applicant’s lawyer seconded her colleagues’ objections. In her written submissions, one of the witnesses, Mrs K., had informed the investigators that in May 1997 she had given the keys to her summer house to the applicant, who had intended to use it for the storage of goods. The other written statements examined by the court concerned the victim, his relations with business partners, and the activities of some of the applicant’s co-defendants. Although at the stage of pre-trial investigation some of the applicant’s co-accused had confirmed that he had organised the abduction of Mr T. upon the request of Mr M. and Mrs M., they all withdrew their initial statements at the trial stage. Nonetheless, the court admitted their statements made at the pre-trial stage, as well as their later submissions. The applicant denied his responsibility for the crime of which he had been accused. He also submitted that the statements of Mrs K. and his coaccused made at the pre-trial stage were untrue. In the course of the trial the court also examined the transcripts of the recordings of the telephone conversations made in June 1997 and the expert’s conclusion of 1 December 1997. On 17 January 2000 the applicant together with his co-defendants were found guilty of aggravated extortion. The applicant was sentenced to ten years’ imprisonment with confiscation of his property. In its judgment, the court made the following findings concerning the applicant’s guilt: “... In addition ... the leading role of [Mr] Khivrenko in committing extortion ... is [confirmed] by the evidence collected in the course of ... the interception of telecommunications which had been carried out on the basis of the warrant issued by the President of the Kyiv City Court ... on 3 June 1997. It was established in the court hearing that, given the audio recordings ..., [Mr] Khivrenko had had telephone conversations with [Messrs B. and Y., his co-defendants, and Ms A., a witness], and other persons with the aim of extorting individual property of the victim...” The lawyers, representing the applicant and his co-defendants, appealed in cassation, alleging that the first instance court had wrongfully assessed evidence and applied law in the case. They argued, inter alia, that the court had failed to summon the witnesses, Mr M. and Mrs M., whose written statements had been admitted to the case-file and who had allegedly ordered the victim’s abduction; that the court had not allowed the defendants to familiarise themselves with the audio recordings of the telephone conversations made in June 1997; and that the court had failed to re-qualify the acts of the defendants who had allegedly abducted the victim in order to ensure his compliance with financial obligations in respect of a third party. On the whole, according to the defence lawyers, the conviction was not based on any reliable evidence. The applicant’s lawyer lodged an amendment to the above appeal, reiterating that neither he nor the applicant had been able to familiarise themselves with the audio recordings of the telephone conversations made in June 1997. The lawyer also submitted that the court had failed to take into account the fact that there had been procedural irregularities in the course of the pre-trial investigation in that the applicant had not been provided with assistance by a lawyer at his first interrogation. Finally, the lawyer contested the trustworthiness of the statements of the witness Mrs K. On 3 August 2000 the Kyiv City Court upheld the judgment of the first instance court. The city court found that the judgment had been wellfounded and that there had been no procedural irregularities at the stage of the investigation or trial. On 17 September 2002 the applicant was conditionally released from serving his sentence. Pursuant to Article 48 of the Code of Criminal Procedure (the Code), as worded at the material time, the procedural rights of the defence lawyer included the rights to meet with the suspected or the accused; to be present at their interrogation; to be present during the investigative procedures in which the suspected or the accused took part or which were initiated by them; to take part in other investigative procedures subject to the consent of the person conducting an inquiry or the investigator; to familiarise himself with the case-file following the completion of the pre-trial investigations and to make notes; to participate in the trial; to collect evidence; to get the expert’s written conclusions concerning the issues the examination of which required special knowledge; to submit evidence and to lodge motions. The defence lawyer should be informed in advance about the date and place of the investigative procedures which he requested or in which the suspected or the accused took part. During an investigative procedure the defence lawyer had the right to put questions to the persons who were interrogated and to submit written remarks concerning the accuracy of the notes taken by the investigator. According to Article 255, the procedural rights of the defendant included the right to challenge the persons participating in the trial; to lodge motions and to express his opinion concerning the motions of other persons participating in the trial; to request the court to include documents into the case-file, to summon witnesses, to order expert examination; to testify or to refuse to give evidence or answer questions; to put questions to other defendants, witnesses, expert, specialist, victim, and civil party; to participate in the examination of material evidence etc. Article 266 entitles the defence lawyer to participate in the examination of evidence by the court; to lodge motions concerning the admission of new evidence; to express his opinion on the meaning of the evidence examined in the course of the proceedings etc. According to Article 62, the suspected, the accused or their lawyer could request the withdrawal of an expert. The expert should withdraw from the case if he was a victim, civil party or their relative, or a relative of the investigator, the person conducting an inquiry, the prosecutor or the defendant; if he had already participated in the proceedings as a witness, defence lawyer, victim’s or civil party’s representative, person conducting an inquiry, investigator, prosecutor, or if he had already considered procedural complaints in the case as a judge; if he was he was personally interested, directly or indirectly, in the outcome of the proceedings; if there were other reasons for which his impartiality could be called into question. Article 197 of the Code provided that at the time when an expert examination was ordered or was being carried out the accused enjoyed the following rights: to challenge an expert; to request the appointment of an expert from a list of persons submitted by the accused; to request additional questions to be put to the expert; to give explanations to the expert; to submit additional documents; to familiarise himself with the expert’s materials and conclusions after the completion of the expert examination; to request a new or additional expert examination. The investigator was obliged to provide the accused with a possibility to familiarise himself with the order for an expert examination and to explain him the rights listed in this Article. Article 200 of the Code stipulated that upon the completion of the examination the expert had to draw up a report containing the information concerning his name and professional qualification; grounds for the examination; questions put to him and answers to these questions; materials used in the course of the examination; studies carried out etc. Under Article 202, the investigator was obliged to provide the accused with a possibility to familiarise himself with the materials of the expert examination and to note the explanations, remarks and objections which the accused raised, as well as the latter’s requests. If a witness or an expert failed to appear before the court, Article 292 obliges it to consult the parties before deciding whether the proceedings could continue. In exceptional cases the court could release a witness, who was subject to special measures of protection, from his obligation to appear before it, provided the witness had confirmed in writing his earlier statements. Pursuant to Article 306, the court could, on its own initiative or upon the prosecutor’s or other party’s motion, read out the witness’ statements obtained at the stage of inquiry, pre-trial investigation or trial, if the statements made at the trial and in the course of the investigation or inquiry substantially contradicted each other; the witness’ presence at the hearing was, for some reason, impossible; the case was heard in the witness’ absence pursuant to Article 292 of the Code. Under Article 312 the court had powers to order a new or additional expert examination. In such a case the proceedings could be suspended. Article 313 stipulated that material evidence had to be observed by the court and the parties were to be given an opportunity to examine them. The pieces of evidence, which could not be brought into the court hearing, could be observed on spot. According to Article 323, the judgment had to be based on the evidence examined at the court hearing.

train

001-22826

ENG

GBR

ADMISSIBILITY

COTTENHAM v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicant is a British national, born in 1946 and living in Southampton. She is represented before the Court by Mr S.E. Reynolds, a lawyer practising in Leigh. The facts of the case, as submitted by the parties, may be summarised as follows. A. On 2 October 1967 the applicant was convicted of an offence and committed to a psychiatric institution pursuant to the Mental Health Act 1959. Following the entry into force of the Mental Health Act 1983 (“the 1983 Act”) the applicant continued to be detained as a “restricted patient” under sections 37 and 41 of the 1983 Act. On 2 April 1982 the applicant was conditionally discharged but she was recalled on 4 February 1993 by warrant of the Secretary of State pursuant to section 42(3) of the 1983 Act. She was then detained at a medium secure unit until 8 February 1995 when she was transferred to another ward from where, on 15 April 1996, she was moved to a community-based ward. Between February 1993 and February 1996, the continuing grounds for applicant’s detention were reviewed twice by the Mental Health Review Tribunal (“MHRT”). In February 1996 the applicant made a third application to the MHRT, but then changed her mind and withdrew it. On 20 May 1996 she made a further application which was received by the MHRT on 24 May. By letter dated 10 June 1996, the MHRT informed the applicant’s solicitor that his client had made an application to have her case reviewed. The solicitor took instructions from the applicant and applied for legal aid on her behalf. Legal aid was granted by telephone on 18 June 1996, and expenditure of up to GBP 450 was approved in respect of an independent psychiatric report. The following day the applicant’s solicitor wrote to a consultant psychiatrist, asking him to prepare a report. The psychiatrist informed that applicant’s solicitor that he was not free to examine the applicant until 19 July 1996. On 2 July 1996, therefore, the applicant’s solicitor wrote to the MHRT asking that the case should not be listed for hearing until mid-September 1996 to allow for the preparation of the independent psychiatric report. The appointment with the psychiatrist had subsequently to be postponed until 19 September 1996. The MHRT received the statutory reports, namely the Responsible Medical Officer’s Report on 27 August 1996, and the Social Circumstances Report on 18 September 1996. Copies of these reports were sent to the applicant’s solicitors, who received them on 5 and 19 September respectively. The Home Office comments on these two reports were received by the MHRT on 19 and 30 September, and forwarded to the applicant’s solicitors on 23 September and 1 October. On 18 November 1996 the applicant’s solicitor wrote to the psychiatrist instructed on behalf of the applicant to remind him that the independent psychiatric report was still outstanding. The report, dated 10 January 1997, was finally received by the applicant’s solicitor on 11 February 1997. The applicant claims that her solicitors wrote to the MHRT on 18 February 1997, but the MHRT has no record of this letter. According to the applicant, the MHRT then telephoned her solicitor on 19 February suggesting a hearing date of 5 March, but the applicant’s solicitor rejected this date since he was not available. It is not in dispute that the solicitor wrote to the MHRT on 26 February 1997, reminding the tribunal that the matter was outstanding and enclosing the psychiatric report prepared on the applicant’s behalf. The case was then listed for hearing on 25 March 1997. Copies of the psychiatric report prepared on behalf of the applicant were sent to the other parties for their comments, and these comments were sent to the applicant’s solicitors before the hearing. On 25 March 1997 the MHRT decided not to recommend the applicant’s discharge. B. Relevant domestic law and practice Section 37 of the Mental Health Act 1983 (“the 1983 Act”) empowers a Crown Court to order a person’s admission to and detention in a specified hospital (a “hospital order”). The court can only make a hospital order if it is satisfied on the evidence of two registered medical practitioners that the offender is mentally disordered, that the disorder is of a nature or degree which makes it appropriate for the person to be detained in a hospital for medical treatment and that a hospital order is the most suitable method of disposing of the case. Section 41 of the 1983 Act empowers a Crown Court, when making a hospital order, to make a restriction order without limit of time. A restriction order may be made if it appears to the court, having regard to the nature of the offence, the offender’s antecedents and the risk of her committing further offences if set at large, that it is necessary for the protection of the public from serious harm to make the order. Under section 70 of the 1983 Act a person who is subject to a hospital order and restriction order (“a restricted patient”), and who is detained in hospital, can apply to a Mental Health Review Tribunal (“MHRT”) after being detained for six months. After twelve months’ detention the patient can re-apply annually. Under section 71 of the 1983 Act the Secretary of State may at any time refer the case of a restricted patient to a MHRT and must do so when the case has not been considered by a MHRT for three years. Under section 73(1) of the 1983 Act, read with section 72(1), where an application is made to a MHRT by a restricted patient who is subject to a restriction, the MHRT is required to direct the absolute discharge of the patient if satisfied - (a) (i) that the patient is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or (ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment; and (b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. By virtue of section 73(3) of the 1983 Act, a patient who is absolutely discharged ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect. Under section 73(2) of the 1983 Act, where the MHRT is satisfied as to either of the matters referred to in paragraph (a) above, but not as to the matters referred to in paragraph (b) above, it is required to direct the conditional discharge of the patient. By virtue of section 73(4), a patient who has been conditionally discharged may be recalled by the Secretary of State under section 42(3) and must comply with the conditions attached to her discharge. In contrast to the case of absolute discharge, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.

train

001-103114

ENG

FRA

CHAMBER

CASE OF MORGANTI v. FRANCE

Lack of jurisdiction (out of time)

6. Mr Michel Morganti is a prisoner at Melun Prison (Seine-et-Marne). On 22 November 1985 he was charged with the attempted murder of two Spanish Basque refugees, membership of a criminal organisation, unauthorised possession and transport without a lawful reason of category IV arms and ammunition and handling stolen goods. On the same day he was remanded in custody in Pau Prison (Pyrénées-Atlantiques). The criminal proceedings lasted from December 1985 to 21 June 1990, when the applicant was sentenced to fifteen years' imprisonment by the Pyrénées-Atlantiques Assize Court. On 16 October 1991 the Court of Cassation dismissed an appeal on points of law by the applicant. 7. Between 10 August 1987 (date of the first application) and 21 June 1990, Mr Morganti submitted fifteen applications for release, which were all dismissed by the Indictment Division of the Pau or the Bordeaux Court of Appeal on the grounds that the length of the proceedings was reasonable in view of the serious charges against the applicant and the gravity and complexity of the facts, that public order had been seriously prejudiced in the region and that there was a risk that he would abscond if released. The applicant lodged twelve appeals on points of law, which were all dismissed. When one of the applications for release was being heard, on 23 August 1989, the applicant's lawyer requested his immediate release on the ground that the file did not contain any warrant ordering his detention. The Pau Indictment Division adjourned the case to 30 August. On 25 and 28 August the applicant lodged two appeals on points of law against this decision. On 30 August the Indictment Division refused to order his immediate release. It found that the missing warrant was in the file and rejected the argument concerning the identity of the person named in it, holding that the reference to Albert Morganti rather than Michel Morganti in the committal warrant of 22 November 1985 had been due to a clerical error. The Court of Cassation delivered two judgments on 19 December 1989. In the first, it declared the appeal against the adjournment decision inadmissible; in the second, it declared the submission alleging a defect in the committal warrant inadmissible, but remitted the case to the Bordeaux Indictment Division, finding of its own motion that the impugned decision had not contained a statement of the reasons on which it was based. On 13 February 1990 the Bordeaux Indictment Division dismissed the application, holding that, in view of the circumstances, the length of the proceedings had not been excessive. The applicant appealed on points of law against the latter decision, alleging, inter alia, a violation of Article 5 para. 3 (art. 5-3) of the Convention. In a judgment of 25 April 1990 the Court of Cassation declared the appeal devoid of purpose following the applicant's committal for trial at the Assize Court on 13 October 1989.

train

001-59887

ENG

IRL

GRANDCHAMBER

CASE OF McELHINNEY v. IRELAND

No violation of Art. 6-1

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

7. The applicant is a police officer (garda). At 11 p.m. on 4 March 1991, when off-duty, the applicant and two passengers, in a private car (described in subsequent police reports as a “jeep”) towing a van on a trailer, crossed from Northern Ireland into Ireland at a United Kingdom permanent vehicle checkpoint in County Derry. Precisely what occurred that night is disputed between the parties. It is not, however disputed that the applicant accidentally drove his car into the checkpoint barrier. The check-point was manned by armed British soldiers, one of whom, a corporal in the British Royal Military Police, approached the applicant after the accident. The Government contend that he asked the applicant to stop and was ignored. The applicant alleges that he did stop and that the soldier then waved him on. In any event, it would appear that the soldier moved towards the car and was hit by the vehicle being towed. He was thrown forward on to the tow-bar and dragged for a short distance until he managed to pull himself up into a standing position on the tow-bar. The applicant maintains that he was unaware of the soldier’s position and continued driving into Ireland. According to the report completed by the Irish Police in April 1991 following their investigation into the incident (see paragraph 9 below), the soldier fired six shots, one of which entered the car’s exhaust pipe, another of which went through the back windscreen and exited through the roof. The Government claim that some, at least, of these shots were fired in Northern Ireland. According to the applicant he heard the shots and, fearing a terrorist attack, continued driving until he reached a police station, where he considered he would be safe. He stopped the car about two miles from the border, in the village of Muff, in County Donegal, Ireland. According to the police report, at this stage the soldier, described by witnesses as in a state of “blind panic”, ordered the applicant and the two passengers to get out of the car and stand against the wall with their hands in the air. The applicant alleges that he turned to face the soldier, intending to explain that he was a police officer and that there was no cause for alarm. Again, according to the applicant, the soldier then aimed his gun at him and pulled the trigger twice, although the shots did not fire because the gun jammed. 8. The Irish police had been notified of the incident at the border and soon arrived at Muff. The applicant was arrested on suspicion of driving having consumed excess alcohol. He refused to comply with police requests to provide blood and urine samples. 9. As mentioned above, the Irish Police carried out an inquiry into the incident in the course of which 71 witnesses were interviewed. In his report the investigating officer concluded that the applicant had shown “a regrettable degree of recklessness” in leaving the scene of the accident at the check-point. The report continued: “This was a most serious incident and one which could have resulted in the serious injury or death of one or more persons. First of all the soldier was at great risk, had he fallen off the draw-bar. The three occupants of the jeep may well have been shot by [the soldier] or his colleagues at the check-point. The safety of the bystanders at Muff was also put in jeopardy resulting from the presence of the armed and terrified soldier. This matter has been vigorously and thoroughly investigated and the only conceivable reason that I can find that would prompt Garda McElhinney to deliberately leave the scene of the accident would be because he was intoxicated ...”. The applicant was subsequently prosecuted and convicted in Ireland for his refusal to provide blood and urine samples. No disciplinary proceedings were taken against him, but he was transferred to another area. 10. The applicant alleges that he feared for his life and suffered severe post-traumatic shock as a result of the above incident. On 29 June 1993 he lodged an action in the Irish High Court against the individual soldier and the British Secretary of State for Northern Ireland. He claimed damages, including exemplary and punitive damages, in respect of his allegation that the soldier had wrongfully assaulted him by pointing a loaded gun at him and pulling the trigger. 11. On 5 November 1993 the United Kingdom Government’s solicitors wrote to the applicant’s solicitors as follows: “... The Secretary of State for Northern Ireland bears no responsibility for the actions of the first defendant who is a soldier in the British Armed Forces under the authority of the Secretary of State for Defence in the United Kingdom and accordingly the Secretary of State for Northern Ireland is not a proper defendant to these proceedings. Even if the Secretary of State was the proper defendant, both it and [the soldier] contend that they are exempt from the jurisdiction of the Irish courts on the basis of the doctrine of sovereign immunity. If your client considers that he does have a valid claim there is nothing to prevent him from pursuing it in Northern Ireland against the proper body. ...” The applicant’s solicitors replied in a letter dated 3 December 1993: “... We have also sought advice on the issue of foreign sovereign immunity raised by you and have been advised that, in these circumstances, no such immunity would apply. That being so, our client prefers to seek his redress in the courts of this jurisdiction where the incident in question occurred. ...” 12. On 13 January 1994 the applicant applied for permission to substitute for the second defendant the United Kingdom Secretary of State for Defence. On 21 January 1994 the Secretary of State for Northern Ireland, claiming sovereign immunity, applied for the summons to be set aside. 13. On 15 April 1994 a High Court judge granted the Secretary of State’s request, on the ground that the applicant was not entitled to bring an action in the Irish courts against a member of a foreign sovereign government. 14. The applicant appealed, arguing, first, that the doctrine of sovereign immunity did not apply to claims for damages for personal injury caused by torts taking place within the forum State’s jurisdiction. Secondly, he submitted that the principle of reciprocity should apply to prevent the Irish court granting immunity to the United Kingdom in circumstances in which British courts, applying the State Immunity Act 1978, would not grant immunity to Ireland. Thirdly, he put forward the argument that, even if the doctrine of state immunity applied, it should yield in his case since he alleged an infringement of the constitutionally protected right to bodily integrity. 15. The Supreme Court gave judgment on 15 December 1995, rejecting the applicant’s appeal. The applicant had relied on the Supreme Court’s judgment in Government of Canada v. the Employment Appeals Tribunal (1992) 2 IR 484, but the court held that that judgment was authority only for the proposition that the doctrine of immunity did not apply in respect of commercial or trading activities carried out by a foreign government. The facts alleged by the applicant did not relate to any commercial activity, and it was not established that, as a principle of public international law, immunity no longer applied in respect of personal injuries caused by the tortious act of a foreign State’s servant or agent acting within the sphere of sovereign activity (“de jure imperii”). In his judgment, Chief Justice Hamilton, with whom Justices O’Flaherty and Blayney agreed, observed: “There can be no doubt but that the first defendant [the soldier] in carrying out his duties at the said checkpoint was acting within the sphere of governmental or sovereign activity and the acts complained of must be regarded as ‘jure imperii’ even though alleged to have been committed within this jurisdiction. It is submitted on behalf of the plaintiff that, as the acts complained of were tortious and caused personal injuries to him, the principle of foreign sovereign immunity should not apply to such acts and that it was a near-universally recognised principle of international law that claims for personal injuries allegedly inflicted in the forum state by or on behalf of a foreign government constitute an exception to the sovereign immunity principle. In support of such submission, counsel for the plaintiff referred in particular to the United Kingdom State Immunity Act 1978; the Canadian State Immunity Act 1982; the Australian Foreign Sovereign Immunities Act 1985 and the European Convention on State Immunity 1972. ... The plaintiff relies on these statutes as indicative of a recognised principle of public international law. ... Distinction must be drawn between the provisions of legislation in a number of states and the provisions of public international law, and the principles set forth in individual state legislation cannot be regarded as establishing principles of public international law. The provisions of statutes cannot be used as evidence of what international law is: statutes are evidence of the domestic law in the individual states and not evidence of international law generally. Article 11 of the European Convention on State Immunity provides that:- ‘A Contracting Party cannot claim immunity from the jurisdiction of a court of another contracting party in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.’ I do not have to decide, in the circumstances of this case, whether the terms of the Convention are part of the domestic law of this State because even if it were, the plaintiff’s claim herein would fail by virtue of the terms of Article 31 of the said Convention, which provides that:- ‘Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting Party in respect of anything done or omitted to be done by, or in relation to its armed forces when on the territory of another Contracting State.’ The terms of Article 31 recognise that, as a matter of international law, immunities and privileges in respect of anything done or omitted to be done by or in relation to armed forces, when on the territory of another Contracting State, exist. ... Despite the Herculean efforts of the plaintiff’s legal advisers in making available to the court copies of all relevant decisions, articles and draft Conventions, and the cogent arguments of counsel, I am not satisfied that it is a principle of public international law that the immunity granted to sovereign states should be restricted by making them liable in respect of tortious acts, committed on their behalf by their servant or agent, causing personal injuries to the person affected by such act or omission, when such act or omission is committed jure imperii and I would dismiss the appeal on this point ...” 16. The applicant did not pursue his action against the individual soldier who had allegedly assaulted him. 17. In his judgment in the Government of Canada case (cited in paragraph 15 above), Justice Hederman described the position of sovereign immunity in Irish law as follows: “The doctrine of sovereign immunity is one of the generally recognised principles of international law, which, by Article 29, s.3 of the Constitution, Ireland has accepted as its rule of conduct in its relations with other states .... [T]he Oireachtas [the National Parliament] has never sought to qualify or modify this position ...”. 18. The 1972 European Convention on State Immunity (“the Basle Convention”), entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal), but has not been signed or ratified by Ireland. It provides in Article 11: “A Contracting Party cannot claim immunity from the jurisdiction of a court of another Contracting Party in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred. ” Article 31 of the same Convention provides: “Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting Party in respect of anything done or omitted to be done by or in relation to its armed forces on the territory of another Contracting State.” 19. The International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property, submitted to the General Assembly of the United Nations ((1991), II(2) YBILC 13), provides at Article 12 that: “... a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” In its commentary on that passage, the ILC noted that the “physical injury ... appears to be confined to insurable risks. The areas of damage envisaged in Article 12 are mainly concerned with accidental death or physical injuries to persons ... involved in traffic accidents ... Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of State immunity and evading its liability to the injured individuals.”

train

001-4856

ENG

TUR

ADMISSIBILITY

A.G. AND OTHERS v. TURKEY

Inadmissible

Elisabeth Palm

The first applicant is an Iranian national, born in 1961 in Ajab-Shahr, Iran. He is currently living in Kastamonu, Turkey, with his wife (the second applicant) and their three children (the remaining applicants). His wife and children are all Iranian nationals. The family are subject to a deportation order under which they are to be expelled to Iran. The applicants are represented before the Court by the Iranian Refugees’ Alliance in collaboration with Rights International, both New York-based organisations. The facts, as presented by the applicants, may be summarised as follows. The first applicant was an activist in the Iranian People Fedaee Guerrillas (IPFG), a Marxist-Leninist organisation, and had taken part in the 1978-79 uprising against the Shah of Iran. IPFG’s opposition to the Islamic government installed after the uprising led to the organisation being banned and its members arrested and executed. In August or September 1981, the applicant was shot and wounded in the leg when trying to evade an arrest operation carried out by the Iranian security forces against opponents of the regime. He was subsequently detained without trial for eighteen months in a prison in the town of Tabriz. The first applicant claims that during his detention he was severely and frequently tortured in order to compel him to confess to his illegal political activities, including by means of mock executions and beatings. He was given a summary trial and sentenced to twenty-eight months’ imprisonment. Following his release in early 1984, he moved to Tehran where he lived under another name and continued his activities in the IPFG. He married the second applicant who had been involved in a branch of the IPFG and had been arrested in 1981 along with her brother. Their three children were born between 1985 and 1990. The family had to change addresses frequently because of fear of arrest. Fearing that the authorities would discover his true identity and whereabouts and that he would be arrested and tortured again, the first applicant determined to flee Iran with his family. The applicant’s wife and children entered Turkey legally on 21 July 1995. On 24 July 1995 she was interviewed by the Turkish branch of the Office of the United Nations High Commissioner for Refugees (UNHCR). On the same day the family was granted a temporary residence permit by the Turkish authorities with instructions to reside in the town of Kastamonu. On 15 January 1996 the second applicant was notified by the UNHCR that her asylum claim had been rejected and was subsequently served with a deportation order by the Turkish authorities. Following her appeal against the execution of the order, the authorities agreed on 24 July 1996 to extend the family’s residence permit for another three months. On 4 March 1996 the first applicant entered Turkey illegally and on 6 March 1996 he lodged a request with the Ankara office of the UNHCR for political refugee status. At his interview, which was conducted in the absence of an interpreter, he maintained that he was a member of the IPFG and was wanted by the Iranian authorities. The applicant was subsequently interviewed by the Turkish authorities, again without the assistance of an interpreter, and was granted a temporary residence permit with instructions to live in the Turkish-Iranian border town of Van. On 29 July 1996 the authorities authorised the first applicant to join his family in Kastamonu for a period of six months and he moved there the following day. On 24 July 1996 the UNHCR interviewed the first and second applicants separately. The second applicant alone was provided with an interpreter. On 29 July 1996 the UNHCR rejected their asylum claims and considered that they were on that account ineligible for resettlement in a third country. Amnesty International appealed successfully to the UNHCR in January 1997 to reconsider the first applicant’s case, which they did. However their decision remained unchanged. On 17 February 1997 the Ministry of the Interior served a deportation notice on the first applicant ordering him and his family to leave Turkey within fifteen days. On 19 February 1997 the applicant requested the authorities to review their decision. Having regard to the fact that the Commission had acceded to the first applicant’s request for interim measures under Rule 36 of its Rules of Procedures, the validity of the family’s residence permit was extended to December 1997. The Commission declared the first applicant’s application inadmissible on 18 September 1997. On 17 December 1997 the Ministry of the Interior ordered the applicant and his family to leave Turkey. The applicants were informed of this decision on 30 December 1997. On 14 January 1998 the applicants contested this decision. On 26 January 1998 the Ministry of the Interior rejected their appeal and instructed the Kastamonu police to have the applicants escorted to the border. On 11 February 1998 the applicants filed proceedings before the Ankara Administrative Court, requesting a stay in the execution of the expulsion decision. On 4 March 1998 the court, on the basis of the dossier submitted by the applicants, rejected their request. Following his request to the Istanbul Human Rights Foundation, the first applicant was examined by a panel of doctors. According to the applicants, the doctors found that the first applicant had behavioural symptoms which were consistent with his claim that he had been ill-treated when in detention.

train

001-104257

ENG

MDA

ADMISSIBILITY

CASE OF CONOVALI v. MOLDOVA

Inadmissible

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

The applicant, Ms Valentina Conovali, is a Moldovan national who was born in 1945 and lives in Chişinău. She is represented before the Court by Ms E. Botnari, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. On 2 November 2004 the Centru District Court ordered the Chişinău local council to provide the applicant with accommodation. This judgment became final on 18 November 2004. On 11 October 2005 the final judgment in favour of the applicant was fully enforced.

train

001-75648

ENG

GBR

ADMISSIBILITY

PROSSER and OTHERS v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

In all the following cases, the Government are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office. The applicant is a British national who was born on 10 September 1932 and who lives in Newport, Gwent. He is not represented before the Court. The applicant was widowed on 17 July 1993. On 28 January 2001, aged 68, he made an application for survivors’ benefits, which was finally refused on 19 February 2001. The applicant is a British national who was born on 8 May 1922 and lives in Swansea. He is not represented before the Court. The applicant was widowed on 3 March 2001, when he was 78 years old. He subsequently claimed survivors’ benefits and was refused. The applicant is a British national who was born on 19 November 1933 and who lives in Ormskirk. He is represented before the Court by Royds RDW, solicitors practising in London. The applicant was widowed on 20 September 1992. There was one child of the marriage, born on 19 November 1977. The applicant made an enquiry about survivors’ benefits to the Benefits Agency in August 1997, and was informed by a letter dated 15 September 1997 that men were not eligible for such benefits. He wrote to the Benefits Agency again in November 2000, asking for his claim to be reconsidered, and was informed again, on 30 November 2000, that he was not entitled. The applicant made a formal application for bereavement benefits on 27 May 2001, aged 67, and was refused on 31 May 2001. He appealed, and his appeal was finally rejected by the Appeals Tribunal on 3 August 2001. The applicant is a British national who was born on 11 September 1934 and who lives in Tipton. He is also represented before the Court by Royds RDW. The applicant was widowed on 16 September 1989. On 11 May 2000, aged 65, he applied for survivors’ benefits, and was finally refused on 9 November 2000. The applicant is a British national who was born on 17 October 1931 and who lives in Birmingham. He is also represented before the Court by Royds RDW. The applicant was widowed on 31 October 2000, when he was 69. He claimed survivors’ benefits on 17 April 2001 and was finally refused at some point after July 2001. The applicant is a British national who was born on 12 August 1934 and who lives in Barnoldswick. He is also represented before the Court by Royds RDW. The applicant was widowed on 22 October 1984. In December 2000, aged 66, he claimed survivors’ benefits, and was finally refused on 9 January 2001. The applicant is a British national who was born on 21 December 1929 and who lives in Nelson. He is also represented before the Court by Royds RDW. The applicant was widowed on 2 September 1989. On 12 December 2000, aged 70, he claimed survivors’ benefits, and was refused the following day. The applicant is a British national who was born on 19 November 1923 and who lives in Brackley. He is also represented before the Court by Royds RDW. The applicant was widowed on 9 July 1970. On 28 March 2001, aged 77, he claimed survivors’ benefits, and was finally refused on 6 June 2001. The applicant is a British national who was born on 23 December 1933 and who lives in Skemersdale. He is also represented before the Court by Royds RDW. The applicant was widowed on 30 January 1996. Shortly after his wife’s death he made enquiries about survivors’ benefits but was told these were not available for men. On 2 October 2000, aged 66, he claimed survivors’ benefits, and was refused the following day. The applicant is a British national who was born on 22 October 1934 and who lives in Gosport. He is also represented before the Court by Royds RDW. The applicant was widowed on 8 November 1993. In February 2001, aged 66, he enquired about survivors’ benefits and was informed on 2 April 2001 that such benefits were not available to men. He subsequently made a formal application, which was refused on 8 May 2001. The applicant is a British national who was born on 19 August 1935 and who lives in Skemersdale. He is also represented before the Court by Royds RDW. The applicant was widowed on 30 June 2000. In October 2000, aged 65, he applied for survivors’ benefits, and was refused on 13 October 2000. The applicant is a British national who was born on 20 April 1922 and who lives in Prestwood. He is also represented before the Court by Royds RDW. The applicant was widowed on 7 October 1989. Following his wife’s death the applicant enquired about survivors’ benefits but was informed by the Benefits’ Agency that men were not eligible. He made a formal application in November or December 2000, aged 78, to which he never received a response. The applicant is a British national who was born on 5 July 1934 and who lives in Burnley. He is also represented before the Court by Royds RDW. The applicant was widowed on 26 March 1996. He made a formal application for survivors’ benefits in February 2001, aged 66, which was finally refused on 12 April 2001. The applicant is a British national who was born on 13 June 1935 and who lives in Skelmerdale. He is also represented before the Court by Royds RDW. The applicant was widowed on 25 December 1989. On 13 September 2000, aged 65, he applied for survivors’ benefits, and was finally refused on 2 November 2000. The applicant is a British national who was born on 24 September 1936 and who lives in Rossendale. He is also represented before the Court by Royds RDW. The applicant was widowed on 25 April 1989. Following his wife’s death, he enquired about survivors’ benefits and was informed that they were not available for men. On 5 December 2001, aged 65, he applied for survivors’ benefits, and was finally refused on 10 December 2001. The domestic law relevant to these applications is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.

train

001-97999

ENG

HUN

CHAMBER

CASE OF GYOZO NAGY v. HUNGARY

Violation of Art. 6-1

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

4. The applicant was born in 1942 and lives in Budapest. 5. On 12 November 1998 the applicant was charged with fraud and forging documents. On 28 April 2000 the Miskolc District Court found him guilty. On appeal, the Borsod-Abaúj-Zemplén County Regional Court quashed this decision and remitted the case to the first-instance court on 5 June 2001. 6. In the resumed proceedings, the District Court acquitted the applicant on 11 December 2002. This judgment was quashed by the Regional Court on 3 June 2004. 7. In the resumed proceedings, the District Court found the applicant guilty on 13 July 2005. On appeal, the Regional Court reversed this judgment and finally acquitted the applicant on 16 March 2006.

train

001-96421

ENG

ALB

ADMISSIBILITY

JAKUPI v. ALBANIA

Inadmissible

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

The applicant, Mr Qerim Jakupi, is an Albanian national who was born in 1937 and lives in Lushnjë. He is represented before the Court by Mr A. Shehu, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents, Mr S. Puto and Ms B. Bulica. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 April 1992 the Lushnjë City Council granted the applicant a building permit to erect a temporary construction. The applicant used it to establish a café-bar. The permit, however, did not stipulate the duration of its validity. In 1993 the Urban Planning Act (“the 1993 Act”) was enacted. It provided that building permits for temporary constructions had a validity of one year. The 1993 Act was repealed by the Urban Planning Act 1998 (“the 1998 Act”), which made the same provision for the validity of building permits in relation to temporary constructions. On 23 December 1999 the Fier District Construction Police (Policia Ndërtimore – “the DCP”) decided to institute administrative proceedings against the applicant for alleged breaches of the 1998 Act’s provisions. Consequently, on 2 February 2000 the DCP found that the one-year validity period of the applicant’s building permit had been considerably exceeded, in violation of the 1998 Act. It also found that it was located on a green public area in breach of the 1998 Act. Finally, the DCP ordered the demolition of the applicant’s construction. On an unspecified date in February 2000 the applicant filed a motion against the DCP’s decision with the National Construction Police (“the NCP”) – the highest competent administrative body. He argued that the building permit issued in 1992 was for an unlimited duration. Furthermore, he contended that the construction was lawful and that the uninterrupted running of the business should be regarded as an implicit renewal of the permit by the authorities. On 23 February 2000 the DCP requested the applicant to demolish the building voluntarily within 5 days from the date of its decision in accordance with the 1998 Act. On 1 March 2000 the NCP rejected the applicant’s motion and upheld the DCP’s demolition order. The applicant was ordered to demolish the café-bar within five days. The respondent Government maintained that the order had been served on the applicant on an unspecified date by surface mail. In the applicant’s submission, he stayed from 1 to 14 March 2000 in the former Yugoslav Republic of Macedonia for family reasons and was not served with, or notified of, either the decision or the order of the NCP. On 10 March 2000, while the applicant was in the former Yugoslav Republic of Macedonia, the DCP demolished his café-bar. The police record (proces-verbal), in so far as relevant, stated: “the DCP (...) closely followed [and inspected] the applicant’s employees’ voluntary execution [of the demolition order].” The police record was not signed by the applicant’s employees. Neither did the document make reference to any stocktaking of the equipment present inside the café-bar before, during or after its demolition. On an unspecified date in 2000 the applicant lodged a claim with the Lushnjë District Court (“the District Court”). He challenged the lawfulness of the NCP’s demolition order and complained of arbitrariness on the part of the police force as he had not been informed of the demolition. Moreover, the applicant requested compensation for pecuniary loss in respect of the café-bar’s equipment, which amounted to 3 million Albanian leks (approximately 24,032 euros). On 30 March 2001 the District Court held that the demolition order was lawful in so far as the applicant had failed to apply to the competent authority for renewal of the building permit to erect a temporary construction. The court found that no automatic renewal had been recognised by the 1998 Act and that the demolition of the building was also in accordance with the Construction Police Act. Moreover, the District Court dismissed as unsubstantiated his claims relating to the arbitrariness of the police force and their responsibility for the alleged damage caused by the demolition of the café-bar. With regard to the loss of the café-bar’s equipment, it found the applicant partly responsible. By failing to comply with the police order, he had contributed to the damage caused to his property. Lastly, the court found that responsibility for the damage caused by the loss of the café-bar’s equipment lay with the employees who had carried out the demolition. On an unspecified date in 2001 the applicant appealed to the Fier Court of Appeal (“the Court of Appeal”). On 8 June 2001 the Court of Appeal upheld the District Court’s judgment. It found that the applicant had been responsible for causing the damage in so far as he had decided to go abroad on 1 March 2000 at the time when he had had notification of the impending demolition of the bar. Moreover, the court held that the applicant had not demonstrated any direct liability on the part of the police force for pecuniary loss. The applicant appealed to the Supreme Court. He claimed that his premises had been erected on the strength of a temporary building permit which did not stipulate the period of validity. Consequently, he had been a bona fide owner and user of the café-bar throughout this time. The applicant alleged that the Construction Police had overstepped its powers in that they had acted in the place of the Council for Territorial Planning as regards the issuance of a demolition order for the premises. The applicant also submitted that the lower courts had not examined whether the demolition order had been duly served on him. Finally, the applicant questioned the Construction Police’s actions resulting in his dispossession of the café-bar’s equipment and the total lack of compensation. On 20 May 2002 the Supreme Court decided to dismiss his appeal, stating that the grounds of the appeal fell outside the scope of Article 472 of the Code of Civil Procedure (“the CCP”). On 23 July 2002 the applicant appealed to the Constitutional Court. He relied on the same grounds of appeal as before the Supreme Court. On 27 September 2002 the complaint was declared inadmissible by a bench of three judges of the Constitutional Court, for failure to comply with Article 131 (f) of the Constitution. The relevant domestic legal provisions read as follows: “1. The right of private property is guaranteed. ...” “1. The freedom, property and rights recognised in the Constitution and by law may not be withdrawn without due process. 2. In the protection of his constitutional and legal rights, freedoms and interests, or in defending against a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “The Constitutional Court decides on: (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” “1. The Constitutional Court may initiate proceedings only at the request of: ... (f) political parties and other organisations; (g) individuals. 2. The entities designated in the first paragraph, letters ... (f) and (g), may lodge applications only on issues connected with their interests.” An individual may lodge a complaint with the Constitutional Court on the basis of Article 131 (f) of the Constitution alleging a breach of his right to a fair hearing. The Constitutional Court has interpreted the right to a fair hearing as encompassing the right of access to a court (see, for example, decisions nos. 4/05, 10/07, 7/08); the right to enjoy equality of arms and the right to notification of acts of a court (see, for example, decisions nos. 11/05, 12/05, 8/06, 5/07, 6/07, 80/07, 1/08); the right to an independent and impartial tribunal (see, for example, decisions nos. 16/05, 36/05, 12/07); and, the right to reasoned judgments (see, for example, decision no. 33/05). In the event the Constitutional Court finds a violation of the right to a fair hearing, it quashes the lower courts’ judgments and remits the case for re-consideration. Articles 324-333 govern the adjudication of administrative disputes, following exhaustion of all administrative remedies. Article 324 provides that a party may bring an action before a court with a view to revoking or amending an administrative decision. Under Article 325 a party must argue that the decision is unlawful and that his or her own interests and rights have been violated directly or indirectly, individually or collectively. With regard to the appeal procedure before the Supreme Court, the Code of Civil Procedure, in so far as relevant, reads as follows: “Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...” “An appeal [to the Supreme Court] shall be declared inadmissible if it contains grounds other than those provided for under the law. The inadmissibility of appeals shall be decided upon in deliberations in camera.” Articles 78 and 79 of the CAP govern the adoption of interim measures. Article 78 of the CAP provides that the administrative body responsible for taking the final decision may impose interim measures when it considers that the failure to take certain actions would cause serious and irreparable damage to public interests. Interim measures may be adopted on the initiative of the administrative body or at the request of the complainant. The decision should be reasoned and contain a fixed timeframe. Article 79 of the CAP provides for the grounds on which an interim measure is lifted. The 1998 Act, which repealed the 1993 Act, entered into force on 25 October 1998. It lays down the general rules governing the location and architecture of constructions in Albania. It provides for the establishment of the district Councils for Territorial Planning (“CTPs”) and the National CTP. Section 58 provides that permits to erect temporary buildings have a one-year validity. Such permits are issued only in the event of natural disasters or similar occurrences. Section 62 stipulates that district CTAs are not empowered to authorise temporary constructions in green public areas. Under section 75 the Construction Police is empowered to impose fines and order the demolition of unlawful buildings. Moreover, the Act provides for the immediate destruction of illegal buildings in public areas. Section 82, as in force at the material time, stated that the DCP’s decision could be appealed against within five days to the NCP, which was obliged to decide within ten days. The NCP’s decision could be appealed against to the District Court within five days from its notification. Section 83 provided that an appeal to the court did not have suspensive effect for the execution of administrative decisions. The 1998 Act does not contain a provision to the effect that it is applicable to events prior to its entry into force. In its decision no. 2 of 25 January 1999 about the unconstitutionality of certain articles of the 1998 Urban Planning Act, the Constitutional Court found, inter alia, that Articles 58 and 75 were not unconstitutional and did not breach constitutional principles. By decision no. 32 of 24 November 2003, referring to the suspension of the execution of administrative acts of, inter alia, the Construction Police, as provided for in the 1998 Act, the Constitutional Court held that the suspension of the execution of administrative acts was amenable to judicial review. The domestic courts may decide on the suspension of the execution of administrative acts, provided that the petitioner brings an action against the administrative act and simultaneously requests the suspension of execution thereof, in compliance with the relevant provisions (Articles 324-326 and 329) of the CCP. The Construction Police Act 1998 established the Construction Police who were responsible for supervising compliance with and the lawfulness of the urban planning legislation. The Construction Police was empowered to impose fines, decide on the suspension of construction work and order the demolition of unlawful constructions (section 3 and 5). The Construction Police Act 1998 was repealed in 2007.

train

001-104636

ENG

GEO

CHAMBER

CASE OF ENUKIDZE AND GIRGVLIANI v. GEORGIA

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Françoise Tulkens;Irakli Adeishvili;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

14. The first applicant was born in 1956. She died on 24 August 2007. The second applicant was born in 1950 and lives in Tbilisi. 15. On 27 January 2006, at around 11 p.m., a group of friends met at the Café Chardin in Tbilisi. In the group were T.S.-aia, the Minister of the Interior’s wife, D.A.-aia, Director of Constitutional Security at the Interior Ministry, his deputy O.M.-ov, V.S.-dze, Director of the General Inspectorate of the Interior Ministry, G.D.-dze, Head of Press at the Ministry and the Minister’s spokesman, and A.K.-dze, a lady friend of T.S.aia. Another woman, Th.M.-dze, a friend of A.K.-dze, was also with them. 16. Mr Sandro Girgvliani, the applicants’ 28-year-old only son, and a friend of his, L.B.-dze, were sitting at another table in the same room. 17. According to the applicants D.A.-aia, O.M.-ov, V.S.-dze and G.D.dze are very well-known public figures in Georgia who, with V.M.shvili, the Georgian Minister of the Interior, played an active part in the so-called Rose Revolution that brought about the resignation of President E. Shevardnadze in November 2003 (see The Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, 8 July 2008). According to the applicants, the government relies on the support of these trusted aides. 18. As submitted by the applicants, on the evening in question Sandro Girgvliani and L.B.-dze, both young bankers, arrived at the Café Chardin later than the group of friends mentioned above. The applicants’ son was actually hoping to see Th.M.-dze, whom he was apparently courting. On entering the café, he went up to the table where T.S.-aia, the Interior Minister’s wife, and her friends were sitting to say hello to Th.M.-dze. After greeting Th.M.-dze with a kiss, he went to sit with L.B.-dze at a nearby table. At one point he signalled to Th.M.-dze to join them at his table and she temporarily changed tables. The discussion between Sandro Girgvliani and Th.M.-dze, which lasted between 20 and 30 minutes, was apparently quite tense, punctuated with lively gestures that suggested they were disagreeing about something. Because of this, A.K.-dze went up to Th.M.dze twice, to ask her if everything was all right and if she needed any help. Th.M.-dze said all was well and she would soon be going back to A.K.dze’s table. When she finally did so the Minister of the Interior’s wife asked her if there was anything wrong. Th.M.-dze said that the young man she had been talking to was a friend and that there was no problem. 19. On 28 January 2006, at about 3 p.m., Sandro Girgvliani’s body was found by three friends, with the help of a local man, near the cemetery in Okrokana, a suburb of Tbilisi, 6.3 km from the Café Chardin. 20. According to an expert report drawn up by forensic specialists on 28 January 2006, after inspecting the crime scene, and the photographs appended to it, Sandro Girgvliani’s body, naked from the waist up, was discovered lying in the snow in the woods near the cemetery. Visual examination of the body revealed numerous parallel linear wounds on the left arm and shoulder, three 8 cm wounds to the neck, a similar wound to the throat and numerous bruises and lesions, some deep, to the chest. A pocketknife was found in the victim’s trouser pocket. 21. The autopsy carried out on 28 January 2006 by the National Forensic Bureau established that the victim had 12 cuts of different sizes on his throat, caused by a sharp object, and one lesion on the left shoulder. Three of the wounds to the throat were deep enough to have damaged the muscles. One of them, measuring 0.5 cm in diameter, had reached the pharynx. According to a State expert who examined a sample of skin taken from the throat, the wounds had been caused by a sharp, pointed object with a handle, probably a knife. A very large number of cuts of different sizes – from 4 to 15 cm long – were found on the left shoulder, the left forearm, the right shoulder, the fingers, the belly, both knees and tibias, the thighs, the forehead, the nose, and around the eyes. Analyses revealed the presence of alcohol but no drugs in the blood. According to the experts, the amount of alcohol in the victim’s blood at the time of death was insignificant (0.35 ‰). 22. The report concluded that death had been caused by the wound to the pharynx. The victim had died of asphyxia when blood from the wound to his pharynx was sucked into the airways. It was a serious, life-threatening wound. 23. On 28 January 2006 criminal proceedings were instituted by the Ministry of the Interior for murder (Article 108 of the Criminal Code). On the same day criminal proceedings were instituted on counts of false imprisonment (Article 143 § 2 of the Criminal Code) and criminal association (Article 179 § 2 of the Criminal Code). Also on the same day, the two cases were joined. 24. On 28 January 2006 L.B.-dze was questioned as a witness. He explained that on 27 January 2006, at around 8 p.m., Sandro Girgvliani, himself and some colleagues of theirs went to the Keiser inn. They ordered various dishes, and beer and vodka. They left the inn at about 1 a.m. The applicants’ son and L.B.-dze took one taxi and their colleagues took another one. On the way, Mr Girgvliani suggested stopping off at the Café Chardin for a coffee. According to L.B.-dze, they met several people they knew in the café and stayed there until about 2 a.m., when they left and started walking down Leselidze Street towards the main road. A silver Mercedes ML pulled up alongside them. Two men got out and grabbed L.B.-dze by the neck to push him into the car. One of them pushed the applicants’ son into the car, holding his hands behind his back. 25. L.B.-dze asked the three kidnappers what they wanted. One of them said that, to start with, he wanted to know what they had in their pockets. L.B.-dze and Sandro Girgvliani showed him their mobile phones, which the man confiscated and placed in the glove compartment. The same man then asked them for proof of identity. L.B.-dze gave him his work pass, which was also confiscated. L.B.-dze and Mr Girgvliani took the men for policemen, but when the car started heading uphill, out of Tbilisi, the applicants’ son asked where they were going, as there was no police station in that direction. By way of an answer, the man sitting next to him elbowed him in the ribs. L.B.-dze asked the same question, but to no avail. Mr Girgvliani then demanded that they show their police badges, and was again elbowed in the ribs. The man sitting next to the driver finally answered that they would soon see where they were going and find out what would happen when they got to “the top”. Everyone then remained silent for a moment. On the way out of Tbilisi, the driver called someone on his mobile phone, saying: “We’re on our way up. The road is fine; you can come up in your car”. Near Okrokana cemetery they stopped the car, pulled L.B.dze and the applicants’ son out and pushed them towards the cemetery. L.B.dze was dragged along by the driver of the vehicle and the man who had been sitting in the front. Suddenly he felt a violent blow to the neck and collapsed. His captors then started kicking him while one of them held a pistol to his head. At the same time, Sandro Girgvliani was being beaten by the third man. 26. A short time later, L.B.-dze saw a fourth man, who had not been in the car. The man came up to him, aimed a gun at him and said he was only getting the punishment he deserved. He then kicked him in the face, fired a shot into the air then walked over to where Sandro Girgvliani was being beaten and started hitting him too. 27. At one point the two men beating Sandro Girgvliani came over to those who were beating L.B.-dze and said “the other bastard’s got away”. They then made L.B.-dze take his clothes off, hit him some more and left him there. 28. L.B.-dze managed to get up, with difficulty, and made his way back to the road. He walked along the road to a service station, where he woke up the watchman. He waited with the watchman until the early morning, when he was able to ask a passer-by to let him use his mobile phone to call the police. When questioned subsequently, the watchman confirmed L.B.-dze’s story. 29. At the end of that interview L.B.-dze said that he was still in shock and could not remember any other details at that time. 30. On 28 January 2006 L.B.-dze was granted civil party status and was questioned again in that capacity. He confirmed his previous statements and added that he had been pistol-whipped around the head. 31. On 28 January 2006 the colleagues with whom Sandro Girgvliani and L.B.-dze had spent the evening until 12.20-12.30 a.m. were all questioned. They confirmed that the applicants’ son and L.B.-dze had taken a taxi. They had not heard about the subsequent events and Sandro Girgvliani’s death until the next day. 32. On 29 January 2006 L.B.-dze was arrested and placed under investigation for concealment of murder. 33. On 29 January 2006 the waiters, the manager and the accountant at the Café Chardin were interviewed. They stated that on Fridays and Saturdays a percussionist played the drums in their café and a DJ played music. One of the waitresses said that table no. 5 had been occupied by G.D.-dze, the spokesperson for the Minister of the Interior, and 6 or 7 other people. According to her, G.D.-dze and his friends had left the café at around 2.40 a.m. She had not noticed any trouble or fight that evening. However, she would not have been able to overhear any unpleasant verbal exchanges between the clients because of the music played between 10 p.m. and 1 a.m. The person who had served coffee to the applicants’ son said that Mr Girgvliani had been joined by a friend who had gone to the toilets. The two had only ordered coffee and had left after about 20 minutes. 34. On 30 January 2006 the investigating authority ordered the heads of all the police stations in Tbilisi to search their districts for silver Mercedes ML cars, to draw up lists of the owners, to get their photographs and their mobile and ordinary phone numbers and to find out about their professional contacts, friends, families and any possible criminal connections. The results of these investigations, which went on until 1 March 2006, were communicated to the investigating authorities by stages. 35. On 30 January 2006, L.B.-dze, when questioned as an accused person, gave new information. He said that a young woman he did not know had joined them at their table in the Café Chardin. The applicants’ son had greeted her warmly. At the same time L.B.-dze had been talking to an acquaintance. He had nevertheless noticed that the discussion between the applicants’ son and the lady concerned had grown tense. He could not hear what they were talking about because Sandro Girgvliani and the lady were sitting very close to each other and the music was loud. After ten minutes the lady had stood up, angry, and gone back to the other table, around which there were other ladies but also some muscular-looking men. Sandro Girgvliani did not tell L.B.-dze who the woman was. No-one in the café had had an argument with Sandro. At the cemetery, when the applicants’ son was being beaten, L.B.-dze had not been able to see him, but he had heard his screams. Later, a fourth man had joined the other assailants. He had a gun. According to L.B.-dze, it was not impossible that that man had someone else with him, as Sandro Girgvliani was a strong man and it would not have been easy to hold him still while they subjected him to the kind of torture indicated by the marks on his body. It was also after that man arrived that the applicants’ son had let out a terrible scream. Sometimes the man in question left Sandro Girgvliani and came over to hit L.B.-dze. As he was being kicked in the face, L.B.-dze had had to cover his face, so he could not see exactly what was happening to his friend and how many men were beating him. 36. On 30 January 2006 L.B.-dze was released, there being no evidence against him. 37. On 30 January 2006 some clients of the Café Chardin who had known Sandro Girgvliani were questioned. They said they had witnessed no altercation in the café. 38. On an unspecified date the investigator in charge of the case asked the mobile phone operators to provide lists of all the numbers which had been in communication on 28 January 2006 from certain antennas in Tbilisi, between midnight and 2 a.m. for some antennas and between 1 and 3.30 a.m. for others. On 31 January and 16 February 2006, the two operators supplied the data concerned in table form. 39. On 30 January 2006 the investigator found that the crime could have been committed for reasons of personal revenge against L.B.-dze, who had left his wife to live with another woman. The Tbilisi City Court then ordered the monitoring of the telephone conversations of L.B.-dze’s ex-wife and his new wife from 31 January to 1 March 2006. 40. On 31 January 2006 the investigator requested and obtained from one of the mobile phone operators a list of all the telephone numbers dialled between 10 and 31 January 2006 from the telephone of G.A.-ia, the first Deputy Director of Constitutional Security at the Ministry of the Interior. 41. When questioned on 31 January 2006, Sandro Girgvliani’s lady friend Th.M.-dze made the same statements as on 13 March 2006 (see paragraphs 98-108 below), except that she did not mention Sandro Girgvliani’s having insulted G.D.-dze. 42. According to an expert medical report of 31 January 2006, L.B.-dze had numerous bruises on his face and other parts of his body. They were considered light injuries that did not affect his ability to work. 43. On 6 February 2006 the first applicant was granted civil party status. 44. When questioned on 16 February 2006, A.K.-dze said that the discussion between Th.M.-dze and Sandro Girgvliani had been calm and she had not noticed whether O.M.-ov had left the café to go looking for cigarettes. The remainder of her testimony was the same as that given on 13 March 2006 (see paragraphs 111-112 below). 45. D.A.-aia, V.S.-dze, G.D.-dze and T.S.-aia were also heard on 16 February 2006. The statements they made were essentially the same as those they made on 12 March and 20 June 2006 (see paragraphs 113123 below). However, T.S.-aia, the Minister’s wife, said nothing about asking Th.M.-dze if “everything was all right” when she came back to their table after talking to Sandro. 46. When questioned on 16 February 2006, O.M.-ov said that on the evening of 27 January 2006 he had gone with his friend and hierarchical superior D.A.-aia to the Café Chardin. He had had a drink. He had no recollection of seeing Th.M.-dze change tables. There had been no incident or altercation. He said he had eventually found the cigarettes the Minister’s wife had asked for at an all-night vendor’s near B. supermarket. At about 3 a.m. they had all gone home in good spirits. Other than that, O.M.-ov gave the same account of events as on 22 July 2006 (see paragraph 199 below). 47. Throughout the month of February 2006 shop assistants, night vendors and caretakers of establishments located on Leselidze street were questioned. None of them had noticed anything of relevance. 48. On 28 February 2006 recordings made by the surveillance camera at the home of a wealthy businessman located on the road to Okrokana were seized from the head of security at the property, who also worked as a guard at the Ministry of the Interior. The recordings were of the period between 2 and 3 a.m. on 28 January 2006. 49. On 5 March 2006 the Chief Prosecutor of Georgia, on the basis of “the Ministry of the Interior’s memo of 24 February 2006”, decided to take the case away from the Ministry of the Interior and hand it over to the Tbilisi City Prosecutor’s Office. 50. According to the criminal case file submitted to the Court, the memo in question was a classified internal document sent by D.A.-aia to the Minister of the Interior. It revealed, inter alia, that D.A.-aia was the person responsible in the Ministry of the Interior for elucidating the important aspects of the case. In the first part of the note D.A.-aia reported the same facts to the Minister as those described by L.B.-dze in his statements concerning the kidnapping and the assault that caused Sandro Girgvliani’s death (see paragraphs 25-28 above). It went on to explain that on the night in question he had been in the Café Chardin himself with a group of friends until 3.30 a.m., celebrating V.S.-dze’s birthday. G.A.-ia, his subordinate, had also been invited by V.S.-dze. According to D.A.-aia, he had spoken to G.A.-ia several times on the telephone from the Café Chardin to find out if he was coming. After confirming that he would be coming, G.A.-ia had informed D.A.-aia around 3 a.m. that he would not be able to make it after all. 51. In the same memo, D.A.-aia explained to the Minister that on 2 February 2006 a regional manager from his department had informed him that a Mercedes ML that had been seized as evidence in a criminal case was being taken to Kutaisi. D.A.-aia had taken an interest in the vehicle and, on learning that it was a silver Mercedes ML, had decided to question a number of Ministry employees about it. He had thus been able to establish that on 28 January 2006 around 1.30 a.m. the car had left the courtyard of the Ministry with G.A.-ia and two other Ministry staff members, A.A.uri and A.Gh.-ava, on board. After seeking the necessary information from the mobile phone operator, D.A.-aia had been able to reconstitute G.A.ia’s movements and to conclude that on the night concerned he had been in the vicinity of the cemetery at Okrokana and had spoken on the phone with M.B.dze, another Ministry employee. 52. Lastly, in the same written memo, D.A.-aia informed the Minister that he had asked G.A.-ia if he had been present at the scene of the crime on the night in question. G.A.-ia, strangely unsettled, had denied being there. 53. According to D.A.-aia, all this seemed to indicate that G.A.ia, A.A.uri, A.Gh.-ava and M.B.-dze might have had a hand in committing the crime in question. He asked the Minister to decide what course of action should be taken. 54. On 6 March 2006 the Tbilisi City Prosecutor’s Office cancelled the decision granting the first applicant civil party status on the ground that only the direct victim of the crime, that is, the son, was entitled to civil party status. As the direct victim in this case was dead, the only standing one of his parents could claim was as his heir. 55. On 6 March 2006, L.B.-dze, in his civil party capacity, applied to the investigator in charge of the case, stating that he did not need to be assisted by counsel and that he declined the services of the two lawyers assigned to his case. 56. That same day, L.B.-dze was asked to assist in identifying the presumed perpetrators of the crime, without the assistance of a lawyer. 57. L.B.-dze identified G.A.-ia, the first Deputy Director of Constitutional Security at the Ministry of the Interior, “without any doubt”, as one of the people who had taken part in his kidnapping and assault at the cemetery in Okrokana. 58. L.B.-dze identified A.Gh.-ava, a subordinate of G.A.-ia’s, as “possibly being” the driver of the Mercedes ML, but he could not be certain. 59. L.B.-dze also said that A.A.-uri, another of G.A.-ia’s subordinates, “was probably” the man who had sat next to Sandro Girgvliani in the car. When asked by the prosecutor if he was 100% certain, L.B. said that he could not be 100% sure but that A.A.-uri resembled the man concerned. 60. Finally, when faced with four unknown persons among whom M.B.dze, the second Deputy Director of Constitutional Security at the Ministry of the Interior, had been placed, L.B.-dze said that the man next to M.B.-dze could be one of the perpetrators of the crime, but he was not 100% sure. The man’s face and stature resembled the man who had beaten Sandro, who was the one with whom he had had the least contact. 61. On 6 March 2006 G.A.-ia, A.Gh.-ava and A.A.-uri, but also M.B.dze, were arrested. 62. On 6 March 2006 L.B.-dze was questioned as a civil party. 63. According to the video recording of the interview, the investigator asked L.B.-dze if he wished to be assisted by a lawyer. L.B.-dze said he did not. He then confirmed his previous statements, adding that Sandro Girgvliani had made a phone call to someone from the taxi before suggesting that they stop by the Café Chardin. When they entered the café, L.B.-dze had gone to the toilet and then joined Sandro Girgvliani at a table. By the time Th.M.-dze had joined them at their table, music was playing. Th.M.-dze and the applicants’ son had been sitting quite close to one another, so it had been impossible for him to hear what they were talking about. Anyway, a friend had come to sit and talk to L.B.-dze for 2 to 5 minutes. This last sentence does not appear in the record of the interview included in the case file. According to L.B.-dze, Th.M.-dze and Sandro Girgvliani had not had an argument, but the discussion between them had been tense. 64. L.B.-dze added that he himself had not had any argument with anyone in the café. He could not say for sure whether Sandro Girgvliani had, as he had left him to go to the toilet. 65. L.B.-dze explained that when they had left the café, he and Sandro Girgvliani had not crossed the room together, but they had gone out into the street together. That statement does not appear in the record of the interview in the case file. However, the video recording shows that when L.B.dze said that, the investigator suggested including the following wording in the record, which he dictated himself: “I cannot remember if Sandro and I went out through the café door together. (...) it is possible that I was a little way behind him.” L.B.-dze then added himself that if he remembered rightly, before leaving the café he had gone to the toilet again. The investigator told him to note it down in the record. 66. In answer to the investigator’s question whether anyone could have followed them as they left the café, L.B.-dze said he did not think so. 67. Lastly, the investigator asked L.B.-dze if he thought the assailants had intended to kill him with Sandro. L.B.-dze thought they probably had not, considering that they had just abandoned him there, still alive, instead of killing him. 68. Still on 6 March 2006, L.B.-dze was questioned again, with no lawyer present, about the fourth person who had arrived on the scene later. 69. L.B.-dze said he could not rule out the possibility that the person concerned had not come alone. It was this man who had fired the shot in the air. In answer to a question from the investigator, L.B.-dze replied that he had indeed been invited by an MP into his office in the Parliament to look at a photograph and say whether he recognised the man in it. L.B.-dze had said that he could not be sure, but he thought the man in the photo “looked just like” the fourth man, who had joined them at the cemetery later. The MP had recorded the procedure, with L.B.-dze’s consent, and as the man in the photo was O.M.-ov, the recording had been made public. To the investigator, L.B.-dze said that the man in the photograph resembled the “fourth man”, but that he could be mistaken. 70. When questioned on 6 March 2006, G.A.-ia said that he had been at work late on 27 January 2006 in the evening. Before going home, he had decided to stop by the Café Chardin, with A.A.-uri and A.Gh.-ava, to wish V.S.-dze a happy birthday. He had been invited, he explained. To get there, he had taken a Mercedes ML that was parked in the Ministry courtyard, having been impounded as evidence in a criminal case. G.A.-ia explained that he had given A.A.-uri number plates with the number WAW-293 to put on the car. 71. The three men had stopped the car in Leselidze street near the café. Only G.A.-ia had got out of the car. At the entrance to the café, he found someone he did not know (Sandro Girgvliani) insulting G.D.-dze’s mother. On hearing this, G.A.-ia asked what the problem was. In response, Mr Girgvliani insulted him too and walked away. G.A.-ia decided to follow him “to find out why he was hurling insults”. He returned to the car and asked A.A.-uri, who was at the wheel, to follow the two men. He also asked his two colleagues if they had their pistols on them, as he thought they might need to make an arrest. When they replied that they were not armed, G.A.-ia called M.B.-dze on the phone and asked him to come and help them and to bring his gun. 72. A.A.-uri pulled up alongside Sandro Girgvliani and L.B.-dze, and G.A.-ia got out of the car and asked the two men to show their identity documents. Mr Girgvliani asked him in a very disparaging tone who he was. G.A.-ia said they were from the Ministry of the Interior and asked him for his papers again. Sandro Girgvliani and L.B.-dze insulted him again. The discussion grew more heated and A.A.-uri got out of the car and told them to calm down. Sandro Girgvliani pushed him and A.A-uri fell over. According to G.A.-ia, Mr Girgvliani and L.B.-dze told the other men that they could go anywhere they liked and sort things out. They all decided to get in the car and go somewhere else. They drove twice round the main square in Tbilisi, while G.A.-ia tried to understand why Sandro Girgvliani had been insulting G.D.-dze. Then they stopped the car and told Sandro Girgvliani and his friend to get out, but they refused, saying that was no place to talk and they should go elsewhere. So they had gone to Okrokana, and stopped the car near the cemetery. Then they had all got out and started fighting. It was a bright night and there was fairly good visibility. 73. M.B.-dze had soon come along to assist his colleagues. He had dealt mainly with Sandro. When Sandro Girgvliani had escaped, G.A.-ia had told M.B.-dze not to bother following him. The scuffle had lasted 15 minutes and it must have been 2 a.m. when they left Okrokana. 74. G.A.-ia also maintained that on the way back from Okrokana he had received phone calls from D.A.-aia and G.D.-dze asking him if he was coming to V.S.-dze’s birthday party (cf. paragraph 154 below). 75. When questioned on 6 March 2006, M.B.-dze maintained that after receiving a call for help from his superior, G.A.-ia, around 1.30 a.m., he had taken his weapon and gone to the Ministry of the Interior to pick up an official car, thinking that it would be necessary to arrest someone. When he reached Leselidze street he realised his colleagues had gone, so he called G.A.-ia, who told him they were on their way to Okrokana. When he drove there he spotted the Mercedes ML “which he thought his colleagues were using”. He headed towards the cemetery, where the noise was coming from. He found Sandro Girgvliani lying on the ground and L.B.-dze putting up a fight. His colleagues were accordingly concentrating their efforts on L.B.dze. Sandro Girgvliani had got up again, however, and attacked him. They had started to wrestle. Sandro Girgvliani’s clothes were ripped in the struggle. At one point M.B.-dze thought he saw a knife in Sandro Girgvliani’s hand. He took his gun out and fired into the air. That was when Sandro Girgvliani had taken the opportunity to run away. The struggle had lasted no longer than 15 minutes. 76. M.B.-dze stated that neither he nor his colleagues had used any sharp weapons, and that he could only assume that, after escaping, Sandro Girgvliani must have injured himself on the wire fencing round the tombs or in the bramble bushes. 77. When questioned on 6 March 2006, A.Gh.-ava confirmed G.A.-ia’s account of events. He also said that he and his colleagues had identified themselves to Sandro Girgvliani and L.B.-dze as employees of the Ministry of the Interior. He said that Sandro Girgvliani and L.B.-dze had got into the car of their own free will. A.Gh.-ava confirmed, like M.B.-dze, that it had been a clear night and that none of his colleagues had been carrying a knife or any other sharp object. 78. When questioned on 7 March 2006, A.A.-uri gave exactly the same account as G.A.-ia, A.Gh.-ava and M.B.-dze. As to the origins of Sandro Girgvliani’s wounds, A.A.-uri made the same suppositions as M.B.-dze. 79. On 7 March 2006 a public prosecutor from Tbilisi City Prosecutor’s Office placed G.A.-ia, A.Gh.-ava, A.A.-uri and M.B.-dze under investigation for wilful bodily harm resulting in death (Article 119 of the Criminal Code) and premeditated false imprisonment by a group of persons with life-threatening violence (Article 143 § 2 (a), (c) and (h) of the Criminal Code). On 8 March 2006 they were remanded in custody. 80. On 8 March 2006 L.B.-dze, with no lawyer present, was called to identify the “fourth man”, who had arrived last at the cemetery. According to the video recording of this investigative measure, among the four men in the line-up to be presented to L.B.-dze, O.M.-ov took the third position from the left. The public prosecutor then invited L.B.-dze into the room and asked him to look carefully at the four men. L.B.-dze hesitated before saying: “I can’t be 100% sure ... the man must have been bigger, but I don’t know..., I don’t recognise, let’s say, going by the face..., I could say it was the second man from the left, or the third from the left.” The public prosecutor replied: “So you do not recognise any of these four people for sure.” L.B.-dze explained that he did not “recognise anyone for sure, but the two men he had picked out looked like the assailant who had arrived last at the cemetery”. The public prosecutor then invited him to write the report, including sentences he dictated to him: “Among the four individuals presented to me, I am unable to identify anyone as the individual who on 28 January 2006 committed the unlawful acts against me and against Sandro Girgvliani”. The public prosecutor then asked L.B.-dze to start a new paragraph, and L.B.-dze complied. The doubts and resemblances noted by L.B.-dze are not mentioned in the record of the proceedings, which also contains another error: according to the record, O.M.-ov was in the third position from the right, not from the left as seen in the video recording. 81. When questioned on 8 March 2006, the barman from the Café Chardin explained that the musicians generally played as long as there were still clients in the establishment. A waitress, R.A., said that the percussionist played the bongo drums on Fridays and at the weekend, from 10 p.m. until 2 a.m. On the evening in question R.A. had recognised G.D.-dze and O.M.ov as soon as they had walked into the café. Even if she would not have been able to hear an argument with all the noise, R.A. could safely say that there had been no trouble at Sandro Girgvliani’s table or at the table where G.D.-dze, O.M.-ov and their friends had sat. One of G.D.dze’s friends, whose name she could not recall, had asked her what brands of cigarettes she sold. As she had not had the brand the person wanted, he had gone looking for them elsewhere. 82. On 8 March 2006 the café’s accountant, a waiter L.M., a waitress and three patrons present in the café were questioned. They all said that there had been no trouble that evening. L.M. said he knew G.D.-dze, who had been at table no. 5 with some friends, by sight. They had still been there when he had finished work at 3.30 a.m. According to L.M., music was playing in the café from 10 p.m. to 2 a.m. 83. In spite of what it says in the corresponding reports, the video recordings of the above interviews are not included in the criminal case file submitted to the Court. 84. On 9 March 2006, during a reconstruction at the scene of the crime, L.B.-dze said that the two men who had taken him out of the car and beaten him had stayed with him until the end. Some way off he could see Sandro Girgvliani lying on the ground covering his face with his hands, while the man who had elbowed him in the car to keep him quiet stood over him. L.B.-dze also said that the fourth assailant had probably arrived at the cemetery about ten minutes after them. Before Sandro Girgvliani had run away, L.B.-dze had heard a terrible scream and a shot fired into the air. According to the video recording of this investigative measure, L.B.dze said that when he managed to get to his feet again he started calling Sandro Girgvliani’s name, hoping to find him. He continued to call him, but in vain, after reaching the road. When no answer came he had started walking. He had tried to flag down a car, but no-one would stop for a half-naked man in the state he was in. 85. On 10 March 2006 L.B.-dze was questioned again, with no lawyer present, the prosecutor simply explaining that he had the right to be represented, before proceeding with his questions. He was questioned, inter alia, about the contradiction between his statements to the authorities and those he had made on television concerning the moment when they left the café. On television he had stated that he and Sandro Girgvliani had had no run-in with G.A.-ia when they were leaving the café. 86. L.B.-dze then explained that, first of all, inside the café there had been no incident resembling an argument or an altercation, but he did not exclude the possibility of some “latent conflict” between his friend and the other people in the café. Secondly, outside the café, that is to say, once they had stepped out into the street, there had been no incident or trouble of any kind. He could not, however, exclude the possibility that his friend had exchanged angry words with someone as they left the café, without him noticing. The prosecutor then reminded him that he had stopped off at the toilets when Sandro Girgvliani started making his way out of the café and that he had followed him out but had not been right beside him. L.B.dze agreed that something might have happened to his friend on the way out without him noticing. The prosecutor then dictated the following entry for the record: “I do not remember if there was any trouble when we left the café, because I seem to remember I went to the toilet. So I cannot say whether any incident occurred at that juncture”. The prosecutor explained that by “incident” he meant an exchange of words. L.B.-dze agreed. 87. Insisting heavily on the possibility that an incident might have occurred on the way out of the café, the prosecutor asked L.B.-dze if he could say with any certainty that the accused G.A.-ia had not been there when they left the café. L.B.-dze could not say whether he had or had not been there. 88. The prosecutor then asked L.B.-dze about his statement on television that O.M.-ov could have been one of the men who had assaulted them at the cemetery. The prosecutor reminded him that he had not been able to identify O.M.-ov on 8 March 2006 and asked him for an explanation. According to the video recording, L.B.-dze replied that although he had not been able to identify O.M.-ov, he could not rule out the possibility that he had been at the cemetery. When asked whether O.M.-ov really had been there or not, L.B.-dze repeated that he could not say he had not been there. To include these answers in the record, the prosecutor dictated to L.B.-dze: “I cannot say for sure that O.M.-ov was not one of the people who assaulted us at the cemetery ... I was unable to identify O.M.-ov, but I cannot exclude the possibility that he or any other person took part in the crime.” 89. On 10 March 2006, the second applicant informed the prosecutor that he consented to his wife, the first applicant, being given standing as heir to the civil party, given that, pursuant to Article 68 § 2 of the Code of Criminal Procedure (“the CCP”), both parents could not claim that standing simultaneously. The first applicant was given that status on the same day. 90. On 11 March 2006 statements made by B.E. on 2 March 2006 were verified at the scene of the crime. This young man, who lives in Okrokana, had helped Sandro Girgvliani’s friends to find his body in the woods. B.E. showed the place where, in the gorges of the river that runs past the cemetery, he had first spied the traces of a bloodied body that had fallen down in the snow. With Sandro Girgvliani’s friends they had followed the regular blood stains along the path. The young man confirmed that all along the way the traces of only one injured person had been visible. 91. On 13 March 2006 a test run showed that the offenders would have needed 17 minutes and 33 seconds to drive from the Café Chardin to the cemetery in Okrokana 6.3 km away and back. O.M.-ov would have needed 18 minutes and 20 seconds to get to the B. supermarket 5.5 km from the café. 92. According to a letter from the management of the Café Chardin, dated 14 March 2006, the surveillance camera only covered the area occupied by the bar and did not record pictures. 93. When questioned on 15 March 2006, the bouncers at the café said that they had been in the entrance, between the two doors. The music had been loud and people had had to raise their voices to be heard. They reported that there had been no disturbance inside the café. They would not have been able to hear any argument outside because of the music. They could see out into the street through the large windows, but they would not necessarily have noticed any incident. In any event, their job was not to keep an eye on what went on in the street but to keep an eye on the inside of the café and the entrance. 94. On 13 March 2006 the first applicant said that she had seen Th.M.dze’s interview on television, where Th.M.-dze said that L.Tch.shvili, a chauffer of the Ministry of the Interior, had bought T.S.aia two packets of cigarettes at the start of the evening. Considering that two hours was not enough time for T.S.-aia to have smoked two packets of cigarettes, the first applicant requested that the people present that evening be asked about the real reasons why O.M.-ov had left the café at the same time as her son and L.B.-dze. She also requested that O.M.-ov be asked how it was that the security camera at the B. supermarket showed that he had not gone there that evening. 95. She further requested leave to take part in the above investigative measures, in conformity with Article 69 (i) of the CCP. 96. On 15 March 2006 the first applicant’s requests were rejected by the public prosecutor, on the grounds that the points raised had already been elucidated and there was no need to repeat the investigative measures concerned. 97. However, the applicant subsequently learned that, to clarify the points she had raised on 13 March 2006 the prosecutor had questioned A.K.-dze and Th.M.-dze on 13 March 2006 and D.A.-aia, V.S.-dze, T.S.aia and G.D.-dze on 20 June 2006, without informing her or inviting her to attend the proceedings. 98. When questioned on 13 March 2006, Th.M.-dze stated that on the evening of 27 January 2006, at around 10.30 p.m., her friend A.K.-dze came to pick her up from her home to take her out for the evening. She had difficulty walking from her building to the car as the streets of Tbilisi were covered with ice. Th.M.-dze saw that A.K.-dze was not alone in the car; there was also the wife of the Minister of the Interior, whom she knew well, together with V.S.-dze, Director of the General Inspectorate of the Interior Ministry, whom she had not met before. The car was driven by V.S.-dze’s chauffeur. They headed for the Café Chardin. They found a table there and the Minister of the Interior’s wife asked V.S.-dze’s chauffeur to go and find her some K-brand cigarettes. The chauffeur, L.Tch.-shvili, left and returned ten minutes later with two packets of K cigarettes. L.Tch.-shvili then left the café and went to wait in the car for the rest of the evening. 99. At around midnight Th.M.-dze received a phone call from Sandro. It appears they had had a tiff and he wanted to make up. She refused to see him, but Sandro Girgvliani insisted. Th.M.-dze misled him into thinking she was at a café in another part of the town and said she did not want to see him. To take the phone call, she had gone out into the café lobby, where the music was not so loud. 100. Some 30-40 minutes after that phone call, D.A.-aia and O.M.ov had joined the Minister of the Interior’s wife and her group of friends. 5 to 10 minutes later, G.D.-dze had also joined them. 101. At about 1.15 or 1.20 a.m. Sandro Girgvliani and L.B.-dze entered the Café Chardin. Sandro Girgvliani went up to Th.M.-dze, gave her a kiss and asked her how she was. He then went to talk to some other people he knew in the room. 15 or 20 minutes later, he signalled to Th.M.-dze that he was about to leave. When Th.M.-dze asked him where he was going Sandro Girgvliani told her he was drunk and had to go home. Instead of leaving, however, he sat down at a nearby table with L.B.-dze and ordered a coffee. He then signalled to Th.M.-dze to come and join him. Th.M.-dze discreetly changed tables a few minutes later. The applicants’ son asked her who the men were with whom she had come to spend the evening. Th.M.-dze said they were friends of her friends and that she did not really know them. So Sandro Girgvliani asked her what she was doing spending her evening with strangers. She said it was of no importance whom she spent her evenings with and expressed surprise that he should have come all the way to the Café Chardin to ask her such a question. Sandro Girgvliani then asked her what she was doing with “that poof”, referring to G.D.-dze, the Minister of the Interior’s spokesman. According to Th.M.-dze, the tone of their conversation, which lasted 15-20 minutes, was “stilted” and Sandro Girgvliani was gesticulating. At one point A.K.-dze left the Minister of the Interior’s wife and her friends and went over to Th.M.-dze to ask her if everything was all right. Th.M.-dze said it was. A.K.-dze then went to the toilet and, on the way back, asked Th.M.-dze what she was doing. Th.M.dze said she would return to their table shortly. At the end of the conversation, Sandro Girgvliani suggested that Th.M.-dze leave the café with him. She said she would join him later and asked him to call her in half an hour. Th.M.-dze then went back to her table. The Minister’s wife asked her if “everything was all right”. Th.M.-dze said she was fine. 102. Ten minutes later Sandro Girgvliani and L.B.-dze got up to leave the café. On his way out, Sandro Girgvliani waved goodbye to Th.M.dze, who waved back and said she would join him later. 103. Th.M.-dze stated that before she said the words “I’ll see you later” she heard the Minister’s wife ask O.M.-ov to go and buy some cigarettes, as there were only 2 or 3 left in the last packet. O.M.-ov, who was sitting next to Th.M.-dze, got up and blocked Th.M.-dze’s view; she had to lean over to tell Sandro Girgvliani she would join him. O.M.-ov went towards the exit at about the same time as Sandro Girgvliani and L.B.-dze. Th.M.-dze could not see the door from where she was sitting, so she did not see who left first, O.M.-ov or Sandro Girgvliani and his friend. She could see the door to the toilets, however, and maintained that she did not see any of the three men go to the toilet before leaving the café. 104. Th.M.-dze waited for Sandro Girgvliani to call her, as arranged, looking at her watch every so often. That was how she could be so sure that O.M.-ov, who had left the café at the same time as Sandro Girgvliani and L.B.-dze, was gone for 30-40 minutes. When Sandro Girgvliani failed to call her, Th.M.-dze got annoyed and said she was leaving. A.K.-dze said they would all soon be leaving anyway. Th.M.-dze got the impression that they were waiting for O.M.-ov to come back before leaving the café. 105. O.M.-ov came back 30-40 minutes later with the cigarettes in his hand. He looked cold. Th.M.-dze asked him if it was cold outside. He said it was. He explained that he had been unable to find any K-brand cigarettes in the vicinity and had had to go further afield – “to the B. supermarket” – to find them. 106. At about 2.50 a.m. the evening came to an end and at about 3 a.m. they all got up to leave. V.S.-dze’s chauffeur drove Th.M.-dze and A.K.dze home. D.A.-aia took the Minister of the Interior’s wife home. 107. It was 3.10 a.m. when Th.M.-dze got home. 108. In answer to a question from the prosecutor, Th.M.-dze said she had not had a tense conversation with Sandro Girgvliani or his friend L.B.dze. Apart from calling one of them a “poof”, Sandro Girgvliani had not insulted the people she was with. In answer to another question, Th.M.dze said there was an 80% chance that the other people in the party had not overheard the insult in question, as Sandro Girgvliani was speaking in a normal tone and the music was loud. She also said that when she had gone back to her friends she had not told them what Sandro Girgvliani had called G.D.-dze. She further stated that there had been no contact between the applicants’ son and L.B.-dze and the group of friends at the other table. 109. In a television interview Th.M.-dze stated that O.M.-ov had followed Sandro Girgvliani and L.B.-dze out of the café. 110. Subsequent examination of the video recorded by the surveillance system at the B. supermarket did not reveal that O.M.-ov had gone there on the night in question. 111. When questioned for the second time, on 13 March 2006, A.K.dze stated that she and her friends went to pick up Th.M.-dze from her home around 10.30 a.m. She said she did not notice exactly when Th.M.-dze went over to join Sandro Girgvliani at his table. However, the 510minute conversation between Mr Girgvliani and Th.M.-dze had been calm and Sandro had not spoken at any time to any of the people in the group she was with. A.K.-dze maintained that she did not hear Mr Girgvliani insult anyone. When Th.M.-dze came back to her table, A.K.-dze asked her who the young man was that she had been talking to. Th.M.-dze told her he was a friend and he wanted her to leave with him. A.K.-dze had told her that she might as well go, as that was what he wanted. Th.M.-dze had been in good spirits. A.K.-dze confirmed that O.M.-ov had left the café at one point to buy cigarettes for the Minister of the Interior’s wife. She thought he was gone about 20-25 minutes. She confirmed that at the beginning of the evening the Minister’s wife had had a packet or two of cigarettes with her. A.K.-dze did not smoke. She categorically denied going over to Th.M.dze when she was talking to Sandro, to see if she was all right. 112. According to the record of that interview, the interview was filmed, but contrary to what it says in the file, the video recording was not included in the criminal case file submitted to the Court. 113. When questioned on 12 March and 20 June 2006, D.A.aia reiterated that he had arrived at the café with O.M.-ov at about 11.30 p.m., in his official car. He confirmed that the Minister of the Interior’s wife had asked O.M.-ov to go and fetch some K-brand cigarettes. D.A.-aia had nodded to O.M.-ov to do as she asked and had given him the keys to the official car. D.A.-aia had learned later that outside the café O.M.-ov had asked D.A.-aia’s chauffeur to take the car and go looking for cigarettes. According to D.A.-aia, O.M.-ov was away for 20 minutes and came back with a packet of cigarettes which he said he had bought “near B. supermarket”. According to D.A.-aia, O.M.-ov had appeared calm. 114. D.A.-aia said that he had not smoked on the evening in question. He confirmed that he had spoken to G.A.-ia several times on the telephone to see if he was coming to join the party. After first confirming that he was coming, at about 3 a.m. G.A.-ia said he would not be joining them after all. Since arriving at the café, D.A.-aia had used O.M.-ov’s mobile phone, with his own SIM card in it, as the battery in his own mobile phone was flat. 115. D.A.-aia maintained that no member of his group had had any altercation or incident with the people present in the café. 116. Lastly, D.A.-aia explained that he had immediately informed the Minister of the Interior of what one of his department’s regional directors had reported to him on 2 February 2006 (see paragraphs 50-52 above). The Minister had instructed him in writing to continue investigating and discover the truth of the matter. 117. When questioned on 12 March and 20 June 2006, V.S.dze confirmed what Th.M.-dze had said about the period prior to their arrival at the café. He added, however, that before going he had made a phone call to D.A.-aia telling him to bring their mutual friend G.A.-ia along. According to D.A.-aia, G.A.-ia was supposed to join them, but in the end he did not come. 118. V.S.-dze confirmed that at one point Th.M.-dze had gone over to another table and at another juncture the Minister of the Interior’s wife had sent O.M.-ov to buy her some cigarettes. According to V.S.-dze, O.M.ov had returned 15-20 minutes later. V.S.-dze did not smoke. He too said that there had been no incident or altercation between his friends and any other person in the café. 119. When questioned on 12 March and 20 June 2006, T.S.-aia said that V.S.-dze had come to pick her and A.K.-dze up at her home in his chauffeur-driven official car. They had then gone to pick up Th.M.dze They were at the café by about 11 p.m. D.A.-aia and O.M.-ov arrived at about 12.30 a.m. and G.D.-dze arrived at about 1.15 a.m. The remainder of her account corroborated V.S.-dze’s version of events. 120. T.S.-aia did add, however, that when Th.M.-dze came back to their table after talking to Sandro, she asked her if “everything was all right”. Th.M.-dze, who was calm, said she was fine. T.S.-aia confirmed that later in the evening she had asked O.M.-ov to go and get her some Kbrand cigarettes. O.M.-ov had returned 20-25 minutes later. She further stated that shortly after they reached the café, V.S.-dze’s chauffeur had brought her two packets of cigarettes which he had bought near the B. supermarket. T.S.aia also said that there had been no altercation between her friends and any of the other people present in the café. Come midnight they had all wished V.S.-dze a happy birthday 121. D.A.-aia had driven T.S.-aia home in his official car. O.M.ov and G.D.-dze were with them in the car. 122. When questioned on 20 June 2006, G.D.-dze explained that his friend the Minister’s wife had called to say that she was dining at the Café Chardin and invited him to join her. G.D.-dze got to the café around 11.50 p.m. In answer to a question from the prosecutor, G.D.-dze said that he did not usually smoke, but on the evening in question he had smoked the cigarettes that were on the table. Indeed, everyone in the party, except D.A.aia and V.S.-dze, had smoked the same cigarettes. At one point he had noticed that there were none left, but later someone had brought some more. He had not noticed who had gone to buy more cigarettes. 123. G.D.-dze did not know whether their colleague G.A.-ia had also been expected in the café that evening. He had no knowledge of any incident or altercation between his friends and anyone else in the café that evening and he had not heard anyone insult him. 124. When questioned on 12 March 2006, V.S.-dze’s chauffeur confirmed that he had bought two packets of K-brand cigarettes for the Minister of the Interior’s wife at the start of the evening. Later, when he was waiting in the car for the party to end, O.M.-ov had called him and taken him to a nearby car park where D.A.-aia’s official car was parked. L.Tch.shvili had closed his car and walked towards O.M.-ov. As he passed by the Café Chardin he saw G.A.-ia, who was walking fast. He greeted him, but received no reply. G.A.-ia was alone. In the car park O.M.-ov told L.Tch.-shvili that he had been drinking and did not want to take D.A.aia’s official car to go and buy some cigarettes. He asked L.Tch.-shvili to drive. They drove off in search of the cigarettes and found some near the B. supermarket. They got back to the café about 30 minutes later. 125. On 22 March 2006 the statements made by G.G., one of Sandro Girgvliani’s friends who had discovered the body, were verified at the scene of the crime. He explained that the police had arrived before them and there were many footprints in the snow at the cemetery. G.G. pointed out the place under a tree where he had seen what looked like the red imprint left by a bloodied face. The friends had gone through the cemetery and started to explore the river gorges. They asked a young village lad who was out bird-hunting (see paragraph 19 above) to help them. The lad spotted what looked like a large blood stain in the snow some way off. They saw that it led to other stains, some of which indicated that Sandro Girgvliani had had to lie down in the snow to rest at regular intervals. At one point they realised that the applicants’ son must have fallen off a ledge and tried to climb back up into the wood. At the edge of the wood he had turned into the bushes and fallen in the brambles. 126. On 23 March 2006 the first applicant complained to the investigator in charge of the case that, in breach of section 86 § 2 of the law on detention, the four accused were sharing the same cell in prison no. 7 in Tbilisi. She argued that this gave them an opportunity to coordinate their stories to prevent the truth from emerging. She requested that the detainees be separated forthwith, in conformity with Article 161 § 1 of the CCP. 127. That same day the first applicant submitted the same request to B.A.-aia, the director of the Prisons Department of the Ministry of Justice, and also to the Chief Public Prosecutor. 128. On 30 March 2006 the first applicant complained to the Public Prosecutor’s Office that she had received no reply to her complaint of 23 March 2006. 129. On 29 March 2006 the first applicant complained to the investigator in charge of the case that B.A.-aia, the above-mentioned director of the Prisons Department, who was also the brother of D.A.-aia, was making sure the four accused were as comfortable as possible in prison, inter alia, by allowing them access to alcohol and drugs. The detainees in the neighbouring cells would often hear them laughing and having a good time. The first applicant maintained that B.A.-aia was treating them like that to prevent them from incriminating his brother D.A.-aia. She requested that the authorities stop supplying the accused with drink and drugs and test them within 48 hours to detect the presence of alcohol and drugs in the bloodstream. She also requested authorisation to take part in this verification procedure as the civil party’s heir. 130. No action was taken on this complaint. 131. On 27 April 2006 the head of the Prison Department’s welfare service informed the first applicant that the four accused had indeed been placed in the same cell from 8 to 23 March 2006, because of renovation work in Tbilisi’s prison no. 7. Once the work was completed, they had been separated. The documents submitted to the Court by the Government for the hearing confirm that the accused were placed in the same cell. There is also documentary evidence that on 21 February and 25 March 2006 a company did some renovation work in prison no. 7. 132. On 28 April 2006 section 86 § 2 of the law on detention was amended and the words “persons under investigation in the same criminal case shall be detained separately” were deleted. 133. The first applicant considered that the comfort and leniency clearly shown to the four accused by the authorities was designed to prevent them from incriminating the senior Ministry of the Interior officials and the Minister’s wife who had been at the Café Chardin. She submitted that, in actual fact, G.A.-ia, A.A.-uri and A.Gh.-ava, three of the accused, had gone to the café after being summoned there by telephone to punish her son for having insulted the Minister of the Interior’s spokesman. 134. On 25 April 2006 the Tbilisi City Prosecutor’s Office asked the Department of Constitutional Security of the Ministry of the Interior, directed by D.A.-aia, for a copy of the criminal case file in which the Mercedes ML featured as evidence. 135. The file shows that the vehicle was seized on 19 October 2005 as having been acquired with the proceeds of crime. On 13 December 2005, when the investigation into the present case was under way, the owner of the car lodged a complaint with the Chief Public Prosecutor’s Office and the Minister of the Interior, claiming that on 6 December 2005 he had seen his car being driven in Tbilisi with new number plates (WAW – 293). He said he had followed the car and taken photos of it, and had asked the driver by what right he was driving a car known to have been seized. In response, the chauffeur had threatened him. Saying that he could identify the driver, the owner of the car demanded that an investigation be opened without delay. On 13 December 2005 the Chief Public Prosecutor’s Office referred the complaint to the Department of Constitutional Security of the Ministry of the Interior for “immediate verification”. However, the complaint was not followed up. On 4 February 2006 the investigator in charge of the case took the car keys from G.A.-ia to send the vehicle to Kutaisi and discovered that the seals had been broken. He immediately informed his superior in Kutaisi and asked him to take action. 136. On 1 May 2006, at the request of the investigator in charge of the case of Sandro Girgvliani and L.B.-dze, the Tbilisi City Court decided to dismiss the four accused from their respective posts in the Ministry of the Interior. 137. On 1 May 2006 the first applicant requested that the Minister’s wife, G.D.-dze, D.A.-aia, V.S.-dze, O.M.-ov, A.K.-dze and Th.M.-dze be heard again in her presence, given that the recording made by the surveillance camera at B. supermarket that she had managed to obtain did not reveal that O.M.-ov had gone there on the night in question. She pointed out that a similar request she had made on 13 March 2006 had been rejected on the grounds that the points raised had already been elucidated. She asked to be informed of the investigative measures which had helped elucidate the points raised in her complaint, as well as the conclusions that had been reached. 138. On 9 May 2006 her request was rejected because the people concerned had already been heard several times precisely to clarify the questions raised by the applicant in her complaint. To see the content of their statements she would have to wait for the case to be referred for trial, when she would have access to the criminal file. 139. On 3 May 2006 the investigator invited the applicants and the first applicant’s father to be questioned about the applicant’s public statement that someone, acting through a third party, had offered her family a sum of money in exchange for their silence. On 4 May 2006 the applicants and the first applicant’s father explained that they had expressed their indignation at such a proposal and that the person who had delivered the message could be risking his life if ever the truth were to come out. The person concerned had told them that if they did not accept the money and remain silent, their lives could be in danger. 140. The file shows that on 3 May 2006 the prosecuting authorities offered the four accused, in the presence of their lawyer, a plea-bargaining arrangement. In particular, they were offered a suspended sentence in return for identifying any senior Ministry of the Interior official or other person who had had a hand in the crime. 141. According to the relevant video recordings, the four accused rejected that proposal. A.A.-uri replied: “Everyone who was there is now in prison.” A.Gh.-ava said: “I am naming no names, like I said the first time I was questioned, I know nothing and nobody was involved.” M.B.dze declared that nobody else, including the Minister of the Interior’s wife’s friends, was involved in the crime. After reading the offer in full, he repeated that, “dear to him as his freedom was”, he could not accept. G.A.ia said: “I cannot name any senior officials who were involved in the case.” The public prosecutor asked for an explanation. G.A.-ia said that he could not accept the offer. The public prosecutor asked him again: “You mean nobody else was involved – is that it?” G.A.-ia said yes. With the help of the public prosecutor and his lawyer, he stated in the record: “No member of the Ministry of the Interior or any other person was involved in this crime; so I cannot name anybody and must therefore reject the offer.” 142. On 18 May 2006, one of the mobile telephone operators gave the public prosecutor a CD with the list of numbers G.A.-ia had been in contact with on the night in question, showing the location of the antennas covering the various calls. The list showed that G.A.-ia had been near the “Chardin” antenna at 1.56 a.m. and that later, at 2.17 and 2.35 a.m., he had had two telephone conversations via the “Okrokana” antenna. At 2.54 a.m. he was already back in the centre of Tbilisi near the main square and the Café Chardin. For the other calls, the number G.A.-ia had spoken to was indicated, but not for the two above-mentioned calls. However, cross-checking this information with other information found in another volume of the case file shows that at 2.17 and 2.35 a.m. D.A.-aia called G.A.-ia in Okrokana. 143. On 16 May 2006 the four accused refused to have their statements verified at the scene of the crime. 144. On 21 June 2006 the preliminary investigation was closed. The first applicant and L.B.-dze were given five volumes of the criminal case file for consultation. On 22 June 2006 the whole case concerning both Sandro Girgvliani and L.B.-dze was sent before the Tbilisi City Court for trial. 145. On 20 June 2006 G.A.-ia, A.A.-uri, A.Gh.-ava and M.B.-dze were charged with wilful bodily harm resulting in death, and premeditated false imprisonment by a group of persons with life-threatening violence and destruction of another person’s property (Articles 119 and 143 § 2 (a), (c) and (h) and 187 § 1 of the Criminal Code). G.A.-ia was also charged with abuse of authority under Article 333 § 1 of the Criminal Code. Appended to the indictment was a list of the items of evidence collected by the prosecuting authorities during the investigation. 146. On 27 June 2006 the Tbilisi City Court commenced its examination of the case. As the first applicant had not had access to the materials in the case file during the investigation, in conformity with Article 69 (j) of the CCP, and had not been informed of the referral of the case for trial until 24 June 2006, she said she needed an extra three days to study the five volumes of the criminal case file and prepare her position. She pointed out in this connection that, unlike the civil party, the accused had had unrestricted access to the file throughout the preliminary investigation, in keeping with Article 76 § 3 of the CCP. 147. On 27 June 2006 her request was refused on the grounds that the first applicant and her lawyer had had access to the file during the investigation and after the case had been referred for trial, and they would have access to it throughout the trial. 148. At the hearing on 27 June 2006 L.B.-dze reiterated in full the various statements he had made during the investigation. He explained that he and Sandro Girgvliani had left the café together. G.A.-ia had also been armed and both he and A.Gh.-ava had beaten him. He had been forced at gunpoint to take his clothes off. His assailants had taken his clothes away, leaving him in his underpants and socks. He had not been fully able to identify O.M.-ov, but could only be 70% sure that the man in the photograph was one of the assailants (see paragraph 80 above). 149. At the hearing on 29 June 2006 Th.M.-dze fully confirmed the various statements she had made during the investigation. In her opinion Sandro Girgvliani had guessed she was at the Café Chardin because he had heard the sound of the bongo drums during their telephone conversation (see paragraph 99 above). When she talked to Sandro Girgvliani at his table, she had her back to her friends and could not tell whether G.D.-dze had heard Sandro Girgvliani insult him. Th.M.-dze had not smoked any K-brand cigarettes. According to her, only the Minister’s wife had smoked those cigarettes. At the table nobody had asked whether G.A.-ia was supposed to join them. 150. On 30 June 2006 D.A.-aia fully confirmed the statements he had made during the investigation. Notably, he reiterated that the mobile phone he had used in the café was O.M.-ov’s, with his own SIM card in it, as the battery in his own mobile phone was flat. He added that the telephone number (8 77 79 89 60) that featured most frequently in the lists of calls made and received by each of the Ministry of the Interior officials present in the café that night was the number of a colleague of his called M-eli. 151. However, the criminal case materials contained a letter dated 2 March 2006 issued by the relevant mobile company, according to which the telephone number 8 77 79 89 60 belonged to a certain K.N.-dze from the limited liability company “Falko”. Furthermore, the records of the telephone calls made and received by some of the persons involved, which had been obtained by the investigation at various stages and included in the case file, disclosed that the number in question had been contacted during the night in question by: - G.A.-ia at 12.31 a.m., 1.04 a.m., 1.26 a.m., 1.46 a.m., 2.01 a.m. and 2.12 a.m.; - D.A.-aia at 1.28 a.m.; - G.D.-dze at 1.32 a.m., 1.36 a.m., 1.45 a.m.; - O.M.-ov at 1.26 a.m. and 1.27 a.m. In addition, those records also showed that G.D.-dze and V.S.-dze had contacted another telephone number – 877 76 76 90 – several times between 1.50 and 1.55 a.m., and that D.A.-aia had called G.D.-ze at 1.56 a.m. 152. Giving evidence on 30 June 2006, the Minister’s wife T.S.-aia fully confirmed the various statements she had made during the investigation. She added that she had not been told that G.A.-ia had also been invited to the party. D.A.-aia had often been on the telephone, but she had not heard what he was talking about because of the noise. 153. On 30 June 2006 V.S.-dze also fully confirmed the statements he had made during the investigation. He stated that he had learnt from D.A.ia that G.A.-ia had been supposed to join their party in the café. 154. Also on 30 June 2006, G.D.-dze fully confirmed the statements he had made during the investigation, adding that he had not been told that G.A.-ia had also been invited to the party (cf. paragraph 74 above). He also said that it was not impossible that D.A.-aia or someone else had used his telephone, which he had left on the table. At one point someone had called his number asking to speak to D.A.-aia. He himself had not made any calls to the accused. G.D.-dze also added that nobody had insulted him in the café. 155. In their testimonies on 30 June 2006, O.M.-ov and A.K.-dze fully confirmed the statements they had made during the investigation. O.M.ov said that he had been unaware that their group in the café had been waiting for G.A.-ia. A.K.-dze said that she could not really remember, but did not exclude the possibility that she had gone over to Sandro Girgvliani’s table to say something to Th.M.-dze. 156. At the hearing on 3 July 2006, L.Tch.-shvili confirmed the statements he had made during the investigation. He added that O.M.ov had called him from a number he did not recognise. 157. Also on 3 July 2006, G.A.-ia confirmed the statements he had made during the investigation, adding that as Deputy Director of the Ministry of the Interior he had no need to receive instructions from anybody to arrest an individual who was breaking the law under his nose. He acknowledged, however, that as time passed the discussion had gone beyond the limits of a routine job. Sandro Girgvliani had insulted G.D.-dze’s mother and the “mothers of the KGB” who were inside the café. G.A.-ia said that he had not been carrying a gun that evening. On the way to Okrokana he had called G.D.-dze’s number to speak to D.A.-aia, whom he had been unable to contact by any other means. 158. On the same day A.A.-uri, A.Gh.-ava and M.B.-dze refused to testify and remained silent. 159. Still on 3 July 2006, the first applicant requested that the court, in conformity with Articles 69 (j), 439 § 4, 440 § 1 and 485 § 2 of the CCP, examine the following items of evidence publicly and with the participation of the parties (“the fourteen exhibits”): i. the video of the verification of L.B.-dze’s statements, recorded at the scene of the crime on 9 March 2006; ii. the video of the verification of G.G.’s statements, recorded at the scene of the crime on 22 March 2006; iii. the video of the verification of B.E.’s statements, recorded at the scene of the crime on 11 March 2006; iv-vii. the videos of 6 March 2006 showing L.B.-dze identifying G.A.ia, A.A.-uri, A.Gh.-ava and M.B.-dze; viii. the video of 8 March 2006 showing L.B.-dze identifying O.M.ov; ix. the video of 6 March 2006 showing L.B.-dze’s second interview; x. the video of 10 March 2006 showing L.B.-dze’s additional hearing; xi. the two video cassettes of 13 March 2006 showing Th.M.-dze’s additional questioning; xii. the compact disc containing the images recorded by the surveillance camera at the home of B.P., a wealthy businessman, on the road from Tbilisi to the Okrokana cemetery (the Tbilisi-Kojori road); xiii. four compact discs of 13 March 2006, with recordings of Th.M.dze’s additional questioning; xiv. a sketch tracing the presumed movements of Sandro Girgvliani at the scene of the crime. 160. On 3 July 2006 the court allowed this request only in respect of the exhibits numbered iii and xii above, but only ordered the publication of a written summary of the two video recordings concerned. The court pointed out that the people whose statements were recorded on the other CDs concerned had already been heard by the court. Furthermore, the records of these investigative measures, which had been filmed, were in the case file and the applicant had never challenged them. 161. On 5 July 2006 the first applicant requested that the evidence in the case file be made public and examined at the hearing, in keeping with Article 484 of the CCP. 162. The court rejected that request on the same day, holding that the evidence had already been examined in public and it was not necessary to examine it again. 163. On 5 July 2006 L.B.-dze’s lawyer requested that the two mobile phone operators be asked to supply records of all the telephone calls made and received by the four accused but also by the seven people who had sat at the same table in the café as the Minister of the Interior’s wife. The first applicant joined in this request, arguing that the case file did not contain necessary information concerning telephone calls that might have been made between the four accused and their friends in the café, or between the accused, their friends in the café and V.S.-dze’s chauffeur waiting in the car. She maintained that without that information it was impossible to know whether G.A.-ia had really had an altercation with her son which had nothing to do with the Ministry of the Interior officials sitting in the café, or whether, as she suspected, after being insulted by her son the officials had called G.A.-ia to come and punish Sandro. 164. That request was rejected on 5 July 2006. 165. At the hearing on 5 July 2006 L.B.-dze asked to be heard again. He then said that now he had seen O.M.-ov again and listened to him and observed him when the court had heard him as a witness, he could now say with certainty that he was indeed the man who had joined the other assailants at the cemetery and participated, with particular cruelty, in the attack on him and Sandro. L.B.-dze further stated that he had also been observing M.B.-dze since the start of the trial and was now convinced that he had not been present in Okrokana. What he had said about the behaviour of the fourth man, who had arrived at the cemetery after the others, therefore concerned O.M.-ov and not M.B.-dze. L.B.-dze further explained that at the time of the investigation he had believed that the public prosecutor and he were on the same side. Later, however, he had realised that the prosecutor was strongly backing the hypothesis of an altercation between Sandro Girgvliani and G.A.-ia in the entrance to the café. During the different identification parades on 6 March 2006 the prosecutor had advised him not to request the assistance of a lawyer, as the suspects had just been arrested and no time should be lost. The prosecutor had also advised L.B.-dze that it would be “better” if he could not identify O.M.-ov. 166. On 5 July 2006 L.B.-dze was placed under investigation for intentionally perverting the course of justice with manifestly contradictory statements (see paragraphs 194-203 below). 167. On 5 July 2006 the president of the court decided to allow the parties an hour to prepare their closing statements. The first applicant protested that she needed a week, because she had not had time to familiarise herself properly with the case file, either between the time when the case was referred for trial and the start of the trial or during the actual trial, which had only lasted nine days. If she was to be able to defend her rights, she needed a week. 168. Her request was rejected. 169. On 5 July 2006 L.B.-dze’s lawyer, having regard to the available records of a selection of the telephone calls made and received by G.A.ia, D.A-aia, G.D.-dze and O.M.-ov on the night in question, asked the judge to order the two mobile phone operators in Tbilisi to communicate the names of the subscribers with the telephone numbers 8 77 79 89 60, 8 77 48 48 45, 8 99 96 00 01 and 8 99 75 10 89 (see paragraphs 150-151 above). The first applicant additionally requested that the records of the phone calls of A.A.uri, A.Gh.-ava and M.B.-dze, as well as all those present at the Minister’s wife’s table, also be provided. The public prosecutor objected that that information had nothing to do with the charges. 170. The judge rejected these requests the same day. The lawyers then challenged the judge, arguing that if he did not consider it necessary to obtain information so important for the case, he was clearly partial and incapable of pronouncing a fair judgment. The judge rejected the challenge outright. 171. On 6 July 2006 the Tbilisi City Court, in view of the abrogation on 28 April 2006 of Article 119 of the Criminal Code, reclassified the offences as crimes under the new Article 117 § 6 of that code. It thus found G.A.ia guilty of premeditated false imprisonment by a group of persons with lifethreatening violence (Article 143 § 2 (a), (c) and (h) of the Criminal Code), wilful bodily harm resulting in death (Article 117 § 6 of the Criminal Code), abuse of authority (Article 333 § 1 of the Criminal Code) and destruction of another person’s property (Article 187 § 1 of the Criminal Code). A.A.-uri, A.Gh.-ava and M.B.-dze were found guilty of the crimes provided for in the above-mentioned Articles 143 § 2 (a), (c) and (h), 117 § 6 and 187 § 1. 172. G.A.-ia was sentenced to 8 years’ imprisonment (7 years under Article 143 § 2 (a), (c) and (h), 6 years under Article 117 § 6, 1 year under Article 333 § 1 and 1 year under Article 187 § 1 of the Criminal Code). The other three accused were sentenced to 7 years’ imprisonment each (6 years under Article 143 § 2 (a), (c) and (h), 6 years under Article 117 § 6 and 1 year under Article 187 § 1 of the Criminal Code). 173. The prosecution appealed against that decision, asking for the sentences to be increased to eight and nine years respectively. The first applicant joined in the appeal, in conformity with Article 25 § 1 of the CCP. She did not consider it worthwhile lodging a separate appeal as the appeal court would have examined the case only within the framework of the charges specified in the first-instance judgment (Article 450 of the CCP) and would not have been able to reclassify them as aggravated murder (Article 109 of the Criminal Code) as she would have wished, or to refer the case for additional investigation (Articles 498 and 501-504 of the CCP). 174. On 18 July 2006 the offenders were placed in Avchala prison no. 10. 175. On 20 and 26 July and 11 September 2006 the first applicant appealed to the president of the court that examined the case at first instance and on 3 August 2006, to the president of the criminal section of that court, requesting access to the fourteen exhibits in the case file before it was sent to the Court of Appeal (Articles 69 (j) and 485 § 2 of the CCP). The president of the court did not reply. The first applicant reiterated her request on 11 September 2006. On 18 September 2006 she was told that the case file containing the exhibits had already been sent to the Court of Appeal. 176. On 6, 17 and 30 October, 24 November and 8 December 2006 the first applicant asked the Tbilisi Court of Appeal to give her access to the fourteen exhibits in question. She pointed out that on 3 July 2006 the court of first instance had rejected the same request and that she had applied in vain to the president of the court on 20 and 26 July and 11 September 2006. She argued that without access to the evidence concerned she would be unable to properly defend her rights in the appeal proceedings. 177. No reply was received to any of these requests, except that of 8 December 2006, which was rejected on the same day. The applicant later challenged that decision, together with the appeal court’s judgment, on points of law. 178. On 8 December 2006 the applicant asked the Court of Appeal: - to order the two mobile phone operators to produce the records of the telephone calls made and received between midnight and 12 noon on 28 January 2006 on the telephone numbers of the four accused, the seven people who were at the same table in the café as Th.M.-dze, and also L.Tch.-shvili, stating the location of the corresponding antennas; - to give her access to the recording made by the surveillance camera at the home of a wealthy businessman on the road to Okrokana between midnight and 12 noon on 28 January 2006. The applicant explained that only a recording covering the period between 2 and 3 a.m. had been included in the case file by the investigating authorities and that did not show the traffic using that road before 2 a.m. and after 3 a.m.; - to question G.D.-dze, Th.M.-dze, T.S.-aia and A.K.-dze in order to double-check the telephone numbers these people had used on the night in question. 179. On 8 December 2006 the applicant’s request was rejected. 180. On 8 December 2006 the applicant asked the Court of Appeal to summon the two Ministry of the Interior investigators who had been in charge of the investigation prior to 5 March 2006, to question them about the records they had seized from the mobile phone companies but not included in the case file. She also asked the Court of Appeal to obtain those records and any other evidence the investigators might have gathered and not included in the case file. 181. Her request was rejected. 182. On 11 December 2006 the four accused refused to attend the hearing and informed the Court of Appeal that they would be represented by counsel. 183. On the same date, 11 December 2006, the Tbilisi Court of Appeal upheld the first-instance judgment in full. Concerning L.B.-dze’s identification of O.M.-ov, it found the allegation ill-founded, pointing out that, in any event, M.B.-dze had confessed to being the fourth assailant, who had arrived last at the cemetery. Lastly, the Court of Appeal explained that the court of first instance would not have been able to examine the question of O.M.-ov’s involvement anyway, as O.M.-ov was not concerned by the criminal case as referred for trial (Article 450 of the CCP). 184. On 19 December 2006 and 4 January 2007, the first applicant applied to the Court of Appeal to give her access to the fourteen exhibits, to enable her to defend her rights at least in cassation. She received no reply. 185. On 21 December 2006 the first applicant applied to the Principal State Prosecutor, requesting the investigators who had been in charge of her son’s case to be placed under investigation for abuse of authority and destruction of evidence. In particular she maintained: - that the offenders’ deeds had been deliberately misclassified as wilful bodily harm resulting in death, when her son had in fact been the victim of a crime under Article 109 of the Criminal Code, namely aggravated murder (committed by a group, with particular cruelty, out of self-interest, to order); - that the investigating authorities had failed to consider the possibility suggested by various aspects of the case that D.A.-aia, V.S.-dze, G.D.-dze, O.M.-ov, T.S.-aia, Th.M.-dze and A.K.-dze or any one of them had been involved in the crime; - that the investigating authorities of the Ministry of the Interior in charge of the investigation between 28 January and 5 March 2006 had destroyed evidence. In particular, the applicant alleged that she had obtained, by chance, a copy of the decisions of 31 January and 1 February 2006 in which the Tbilisi City Court found lawful such investigative measures as requiring the mobile phone companies to submit the records of all the phone calls made and received between 10 January and 31 January 2006 on the telephones of A.Gh.-ava and M.B.-dze. However, the records of those calls, the records of their seizure, the investigators’ request for the Tbilisi City Court to allow the seizure and the two decisions mentioned above had not been included in the case file, so the court had not been able to examine them. As they were missing from the case file, the applicant presumed that the evidence must have been destroyed or concealed. In its stead, on 11 May 2006 the investigating authorities of the Tbilisi City Prosecutor’s Office had placed in the case file, for the same telephone numbers, a selection of the records of the calls concerned, namely, those made between 1.28 and 2.58 a.m. on 28 January 2006. That incomplete information, however, did not serve the purpose of an effective investigation. 186. The Chief Public Prosecutor having failed to reply, the applicant reiterated her request on 16 February 2007, demanding a prompt reply. 187. The Chief Public Prosecutor again failed to reply. 188. On 11 January 2007 the first applicant lodged a cassation appeal against the appeal judgment of 11 December 2006 and all the procedural decisions pronounced in the appeal proceedings, including the decision of 8 December 2006 denying her access to the different items of evidence. In particular, she asked for the judgment of the Court of Appeal to be quashed, the procedural decisions set aside and the case referred to the Tbilisi Court of Appeal for fresh examination. The applicant stressed that her aim was to have a full and exhaustive investigation carried out. If this had been done earlier, the complicity between the four accused and the Minister’s wife’s friends in the café would have been demonstrated. 189. On 16 February 2007 the first applicant asked the Supreme Court of Georgia, when examining her appeal, to grant her access to the fourteen exhibits. She reiterated that without examining that evidence she would not be able to defend her interests as a civil party (Articles 15 §§ 3 and 5, 69 (k), 447 § 1 and 485 § 2 of the CCP). Her request went unanswered. 190. L.B.-dze and the four convicted persons also lodged cassation appeals. 191. On 27 July 2007, the Supreme Court of Georgia, acting as final court of appeal, found that the guilt of the four officials concerning the destruction of another person’s property (Article 187 § 1 of the Criminal Code) had not been validly demonstrated and acquitted them of that charge, reducing each of their prison sentences by six months, but upheld the remainder of the earlier judgment. 192. Concerning the complaint about the repeated refusal of access to evidence, the Supreme Court noted that the matter had been examined at first instance and that there had subsequently been no particularly important grounds to justify its further examination in application of Article 553 § 4 of the CCP. In addition, no appeal had been lodged against the decisions of the court of first instance. Lastly, the purpose of the first applicant’s demands had mainly been to prosecute persons external to the criminal case in point as brought against the four accused persons. However, a court was not a criminal prosecution body under Articles 15 § 5 and 439 § 3 of the CCP and the scope of its deliberations was confined to the charges in the indictment (Article 450). 193. The Supreme Court’s decision was served on the parties and the civil parties on 30 July 2007. 194. After accusing O.M.-ov at the hearing on 5 July 2006, L.B.-dze was charged with perverting the course of justice by making manifestly contradictory statements (Article 371-1 of the Criminal Code). 195. On 11 July 2006 he was questioned in this connection in the presence of his lawyer. He explained that at the different identification parades on 6 March 2006 (see paragraph 56 above) he had not been assisted by any lawyer who could have advised him. The investigator, on the other hand, had impressed on him that it would be “extremely serious if he identified the wrong person and that he should think carefully”. L.B.-dze had been able to identify G.A.-ia without any doubt. The investigator had then told him that for the other suspects it would be sufficient for him to say whether there was a physical resemblance. L.B.-dze remembered that when he had been invited into an MP’s office he had said that the man in the photograph looked like the fourth man, who had arrived later at the cemetery, but as he was not certain, he preferred not to incriminate him. He had not really been able to dispel his doubts until he had seen O.M.-ov give evidence in court. Only then had he been convinced, by the way O.M.-ov moved and spoke, that he was indeed the fourth assailant. To make absolutely sure, however, he had borrowed a video recording of O.M.-ov’s hearing from the first applicant which had apparently been made in secret. After watching the recording several times, L.B.-dze had been able to identify O.M.-ov with certainty. He repeated that he could not exclude the possibility that there had been more than four assailants at the cemetery, but he had only seen four. L.B.-dze pointed out that he had said several times in court that he did not know who M.B.-dze was. He also specified that on 6 March 2006 he had not identified that person as the fourth assailant (see paragraph 60 above). The fourth assailant had kicked him in the face, held a gun against his head and eye and threatened to kill him, and pistol-whipped him. He had then gone over to hit Sandro Girgvliani before coming back to him again. According to L.B.-dze, when it was all over and he found himself alone with his assailants, O.M.-ov had suggested to his friends that they take a photograph of their bruised and naked victim with a mobile phone. 196. At the end of the record of that interview it is mentioned that the lawyer had wanted to ask L.B.-dze some additional questions, but the investigator would not authorise it. 197. On 12 July 2006 L.B.-dze, as an accused person, requested that criminal proceedings be brought against O.M.-ov, with himself as a civil party, and that a thorough medical check-up be carried out to determine how serious the after-effects of the ill-treatment he had suffered on 28 January 2006 were. 198. On 13 July 2006 his request was rejected, on the grounds that the criminal case being investigated was against L.B.-dze, for perverting the course of justice, not against O.M.-ov. The right of application to the prosecuting authorities was explained to him. 199. On 22 July 2006 O.M.-ov was questioned as a witness in the case. He said that at around midnight on 27 January 2006 D.A.-aia had called him in his office and asked him to go down to the courtyard of the Ministry so they could take the official car together. They were already in town when D.A.-aia told him that he was going to the Café Chardin to wish V.S.-dze a happy birthday. As D.A.-aia’s mobile phone battery was flat O.M.-ov lent him his and D.A.-aia put his SIM card in it. In the café O.M.-ov found the Minister’s wife, the young women mentioned earlier and V.S.-dze. O.M.ov ordered an alcoholic beverage. About an hour and a half after they arrived in the café, the Minister’s wife asked him to go and find her some K-brand cigarettes, a brand they did not stock in the café. D.A.-aia gave him his car keys. He had been drinking, however, and did not want to drive, so, using G.D.-dze’s mobile phone he called V.S.-dze’s chauffeur to drive him. Before leaving the café, he went to the toilet. Outside, he met V.S.-dze’s chauffeur, who took him away in D.A.-aia’s car in search of cigarettes. They bought the cigarettes from a night vendor near the B. supermarket. He then went back to the café. He must have been away for 20-25 minutes. According to O.M.-ov, the statement made by L.B.-dze on 5 July 2006 was untrue and merely the result of pressure brought to bear by the first applicant and anti-Government activists. 200. On 6 July 2006 the first applicant applied to the Chief Public Prosecutor requesting that, in the light of L.B.-dze’s statement of 5 July 2006, and in conformity with Articles 22, 261 and 263 § 1 of the CCP, O.M.-ov be arrested immediately as a prime suspect and placed under investigation, and that she be given status in the case as the civil party’s heir. She requested that the case be taken away from the Tbilisi City Prosecutor’s Office, which had failed to conduct an effective investigation, and that the Chief Public Prosecutor’s Office take charge of the investigation of O.M.-ov’s case. 201. On 11 July 2006 her request was referred to the Tbilisi City Prosecutor’s Office, which informed the first applicant on 25 July 2006 that, in the framework of the criminal proceedings against L.B.-dze, the statement he had made on 5 July 2006 would be verified and an “objective and lawful” decision taken. 202. On 3 August 2006 the first applicant requested that the criminal proceedings against L.B.-dze be taken out of the hands of the Tbilisi City Prosecutor’s Office for the reasons mentioned above and that the Chief Public Prosecutor’s Office take charge of the case. That request was rejected as unfounded by a prosecutor from the Chief Public Prosecutor’s Office on 4 August 2006. 203. Neither the first applicant nor her lawyer found out what the outcome of the criminal proceedings against L.B.-dze had been. On receiving the observations of the Government (see paragraphs 5 above and 294 below), the applicant party learned that the case had been discontinued. 204. On 24 November 2008 the President of Georgia, along with pardoning 363 other prisoners, decided to grant G.A.-ia, A.A.uri, A.Gh.ava and M.B.-dze a measure of clemency and reduce the remainder of their respective sentences by half. 205. As that measure made them eligible for release on licence, the four men applied to the competent body in the Prisons Department of the Ministry of Justice on 14 August 2009 to be released. According to the certificates appended to their requests by the prison authorities, the men’s behaviour had been good (calm, courteous and on good terms with the prison authorities) and none had received any reprimand while in detention. Based on a unanimous favourable decision of the board on 21 August 2009, which described the crime committed by G.A.-ia, A.A.-uri, A.Gh.-ava and M.B.-dze as “physical aggression towards other persons which resulted from a verbal altercation” (“urTierTSelaparakebis niadagze fizikuri Seuracxyofa miayenes moqalaqeebs”), the Tbilisi City Court decided, on 5 September 2009, to release the four convicts on licence. It noted in particular that the men had served two-thirds of their sentences as reduced on 24 November 2008 (Article 72 § 8 of the CCP), and took their good behaviour into account. In the court’s opinion their continued detention was no longer necessary to reform them. 206. On 6 July 2009 the second applicant applied to the Tbilisi City Court requesting that the four men be ordered to pay him 200,000 Georgian laris ((“GEL), approximately 84,000 euros (“EUR”)) for the non-pecuniary damage he had suffered. He said that the pain caused by the murder of his only son and the ill-treatment inflicted on him before he died was a source of immeasurable suffering that would remain with him all his life. 207. To have his claim examined the second applicant had to pay a State tax of GEL 3,000 (approximately EUR 1,262). 208. By a judgment of 5 February 2010, the four individuals were ordered, in first instance, jointly to pay the applicant GEL 40,000 (approximately EUR 16,832) in respect of non-pecuniary damage. It was also decided to refund GEL 600 (approximately EUR 254) of the State tax he had had to pay. 209. As submitted by the applicants on 23 December 2010 and confirmed by the Government on 24 February 2011, the Tbilisi City Court’s judgment of 5 February 2010 had by that time become final and enforceable. 210. The Amendment Act of 28 April 2006 amended Articles 109, 117, 119, 143, 187, 333 and 371-1 of the Criminal Code. The relevant provisions of the Code read as follows: Article 59 §§ 1 and 4 (as in force prior to the amendment of 29 December 2006) “Where several crimes are committed, sentences shall be pronounced for each crime. If the crimes committed include lesser offences as well as serious or particularly serious crimes, the harshest sentence shall absorb the lighter one, or the sentences for each crime shall be added together, in part or in full, in order to determine the final sentence. However, the final prison sentence shall not exceed 20 years.” Article 59 § 1 (as amended on 29 December 2006) “Where several crimes are committed, sentences shall be pronounced for each crime, then added together to determine the final sentence.” In conformity with Article 12 §§ 2 and 3 of the Criminal Code, the crimes provided for in Articles 117 § 6 and 143 § 2 are serious crimes, whereas those provided for in Articles 187 § 1 and 333 § 1 are lesser criminal offences. Article 108 – “Murder” “Murder shall be punishable by 7 to 15 years’ imprisonment.” Article 109 (as in force prior to the amendment of 28 April 2006) – “Aggravated murder” “Murder (...); (f) with particular cruelty; (...) (h) by a group; (i) out of self-interest or to order; (...) shall be punishable by 10 to 20 years’ or life imprisonment.” Article 117 (as amended on 28 April 2006 and applied in the instant case) – “Wilful grievous bodily harm” “1. Wilful grievous bodily harm (...) which is life-threatening (...) shall be punishable by 3 to 5 years’ imprisonment. 2. When it results in death, wilful grievous bodily harm shall be punishable by 4 to 6 years’ imprisonment. (...) 5. Wilful grievous bodily harm committed (...); (e) by a group; shall be punishable by 7 to 9 years’ imprisonment. 6. The offence provided for in the preceding paragraph, when it results in death, shall be punishable by 8 to 10 years’ imprisonment. 7. Wilful grievous bodily harm committed: (a) on two or more people; (b) with particular cruelty; (c) out of self-interest or to order; (...) shall be punishable by 9 to 12 years’ imprisonment. 8. The offence provided for in the preceding paragraph, when it results in death, shall be punishable by 10 to 13 years’ imprisonment.” Article 119 (abrogated on 28 April 2006) – “Bodily harm resulting in death” “Wilful grievous or less serious bodily harm resulting in death shall be punishable by 3 to 10 years’ imprisonment.” Article 143 §§ 2 and 3 (as in force prior to 28 April 2006) – “False arrest” “2. False arrest (a) by a group, with premeditation; (...) (c) of two or more people; (...) (h) with life- or health-threatening violence (...); shall be punishable by 3 to 10 years’ imprisonment. 3. The offence provided for in the preceding paragraph, (a) when committed by an organised group; (b) when it results in the death of the victim (...) ; shall be punishable by 5 to 15 years’ imprisonment.” Article 187 § 1 (as in force prior to the amendment of 28 April 2006) – “Destruction of another person’s property” “Destruction of or damage to another person’s property, resulting in substantial loss, shall be punishable by 100 to 180 hours’ community service or up to one year’s correctional labour or up to 3 years’ imprisonment.” Article 333 § 1 (as in force prior to the amendment of 28 April 2006) – “Abuse of authority” “Abuse of authority by a public official (...) which substantially adversely affects the rights of a natural person or other legal entity or the legal interests of society or of the State shall be punishable by a fine (...) or up to 3 years’ imprisonment, and up to 3 years’ disqualification from holding public office (...)” Article 371-1 (as amended on 28 April 2006) – “Substantially contradictory statements by a witness or a civil party” “1. Wilful perversion of justice by a witness or a civil party by substantially contradictory statements shall be punishable by a fine or by 1 to 3 years’ imprisonment. 2. The same offence committed out of self-interest or for another private motive shall be punishable by 2 to 4 years’ imprisonment (...)” 211. Pursuant to Article 62 §§ 1 and 2 of the CCP, whilst criminal investigations are normally carried out by the Ministry of the Interior, an investigation into an offence implicating, inter alia, a policeman, an investigator or a senior military or special law-enforcement officer should be entrusted to the Public Prosecutor’s Office. Pursuant to Article 68 § 2 of the CCP, if a crime resulted in the death of the victim, civil party status should be granted to one of his close relatives. If several relatives share the same bloodline with the deceased victim, the relatives should agree amongst themselves who should act as the civil party. Article 347 § 2 of the CCP, which enumerated the rights and responsibilities of a victim or a witness participating in an identification parade, was silent about whether the victim or witness was to be assisted by a lawyer during that investigative action. Pursuant to Articles 498 and 501-504 of the CCP, the trial court is empowered to examine the case only within the scope of the charges as brought by the public prosecutor in the indictment, and to deliver either an acquittal or a conviction on the basis of the indictment and the available case materials. The trial court may not remit the case for additional investigation, unless the prosecutor personally decided to seek an aggravation of the criminal liability during the trial. The other relevant provisions of the CCP read as follows: Article 25 § 1 “The civil party and their counsel shall have the right to join the proceedings brought by the public prosecutor.” Article 69 “The civil party (...) shall have the right: (...) ; (i) to take part in the investigative measures carried out at their request; (j) to acquaint themselves with a copy of the full criminal case file and all the evidence once the case has been referred for trial; (...) (m) to take part in the judicial examination of the case, by submitting evidence and by examining the evidence produced by the other parties (...)” Article 261 “Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. (...)” Article 263 § 1 “The preliminary investigation shall be opened on the basis of the information concerning the commission of the crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity, (...), reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation (...)” Article 439 § 4 “The court shall guarantee the requisite conditions for the presentation and examination of evidence by the parties, while observing its duty to be impartial (...)” Article 440 §§ 1 and 3 “During the examination of the case, the court of first instance shall ensure the examination of the evidence by (...) studying it and, where necessary, by reading out the records of investigative measures or other documents. The material in the file of the preliminary investigation may be made public during the judicial examination of the case only in those cases provided for in the present code.” Article 450 “The court shall examine the case within the framework of the charges brought against the accused, except when the prosecution changes the charges in favour of the accused.” Article 484 §§ 1 and 3 “At the request of the parties or at the initiative of the court, the clerk of the court shall read out the material collected in the file of the preliminary investigation and the records of the investigative measures. At the same time the question of the reliability, relevance and admissibility of these items of evidence shall be examined. The documents presented by the parties shall be read out and placed on file.” Article 485 § 2 “The items of material evidence placed in the file during the preliminary investigation as well as any such evidence submitted to the court by the parties (...) shall be examined by the court in the courtroom with the participation of the parties. (...)” 212. As disclosed by the Government’s submissions, supported by a summary of the relevant official statistical data issued by the relevant department of the Supreme Court of Georgia, in 2006 three persons were convicted of wilful grievous bodily harm resulting in death (Article 117 § 6 of the Criminal Code), all of them being sentenced to eight years’ imprisonment without remission. 213. In the same year, 199 persons were convicted of false arrest by a group, with premeditation and life- or health-threatening violence (Article 143 § 2 of the Criminal Code), 105 of whom were given suspended prison sentences. The duration of those sentences varied from one to eight years – 78 persons were sentenced to three years in prison, 36 persons to four years and 44 persons to five years. In 2007, the prison sentences imposed for the same crimes varied between three and seven years. 214. Still in 2006, 32 persons were convicted of abuse of authority (Article 333 § 1 of the Criminal Code). 17 of them were sentenced to two years’ imprisonment without remission and 15 were given suspended prison sentences. Only on two occasions was the penalty of disqualification from holding public office also pronounced. 215. The Government also submitted numerous (more than 30) judgments delivered by various courts of first instance in 2006 under, inter alia, the above-mentioned three provisions of the Criminal Code. However, the voluminous information contained in those judgments was not presented in an analytical and pertinent summary, nor was it clear whether those judgments were ever upheld by the upper courts and thus became binding in their initial wording. 216. In reply to the Government’s submissions, the applicants likewise submitted numerous decisions delivered by the Supreme Court in 20062008 upholding the lower courts’ convictions under various provisions of the Criminal Code, including Articles 117 § 6, 143 § 2 and 333 § 1. The major part of that voluminous information was not presented in an analytical and pertinent summary and was thus barely comprehensible. 217. However, amongst those decisions, as the applicants emphasised themselves, there were those concerning the case of G.Z.-dze, which attracted publicity in Georgia. Notably, as disclosed by the relevant case materials, in the course of a verbal altercation with a stranger in the street, the fourteen-year-old boy stabbed the stranger in the right shoulder with a folding pocket knife. A subsequent forensic medical report confirmed the injury inflicted was of a superficial nature and did not cause any serious damage. The act was classified as attempted murder, and the boy was sentenced by the Tbilisi Court of Appeal’s decision of 19 March 2007 to seven years’ imprisonment without remission. The Supreme Court of Georgia left that conviction intact by its final decision of 1 November 2007.

train

001-5286

ENG

GBR

ADMISSIBILITY

LEE v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicant is a British national, born in 1949 and living in Pensby, England. On 10 March 1997 the applicant, at the time a police sergeant, was suspended from duty for four months on account of his failure to co-operate in an internal investigation into allegations that a police officer had been illegally supplying steroids. The Discipline Officer of the Police Complaints and Discipline Department alleged that the applicant had attempted to pervert the course of justice and had deliberately withheld information. Another police officer received a similar suspension. According to the applicant, pressure was brought to bear on him to lie in order to incriminate the police officer. Although questioned under caution, he was not allowed to see a solicitor. Criminal charges were not brought against the applicant on the advice of the Crown Prosecution Service (“CPS”). According to the CPS, there was insufficient evidence to charge the applicant. The applicant’s suspension was lifted in July 1997 and he returned to duty. The applicant continued to complain about the way he had been treated by the Discipline Officer and his investigating team. The applicant was due to retire on grounds of ill-health on 30 March 1998. On 10 March 1998 he was informed that he faced disciplinary proceedings for having failed to provide a statement for the purposes of the investigation into the above-mentioned drug allegations. The charge was that of neglect of duty. The disciplinary hearing, chaired by the Chief Constable of Merseyside Police, took place over four days in September 1998. The applicant was legally represented. On 16 September 1998 the applicant was found guilty of neglect of duty and received a reprimand. In the conclusion of the Chairman: “A police officer has a duty to make statements, he/she has a duty to clarify and remove ambiguities if asked, and should get on with it. ... An investigating officer does not and should not have to negotiate over statements from a police officer. There should not be any delays or arguments about what officers may wish to say or what they feel is appropriate to say. Police officers have to tell what they know and get on with it.” On 19 March 1999 the Secretary of State dismissed the applicant’s appeal under section 37 of the Police Act 1964 as amended. The Secretary of State approved the Chairman’s conclusion and further added that he believed that the applicant was aware that there was more information that he could have provided and which was wanted, and that he should have co-operated. The Secretary of State also found that the Chairman had taken sufficient account of the applicant’s submissions that he was the victim of an abuse of process as well as of his assertion that a statement produced during the disciplinary hearing had been forged.

train

001-115007

ENG

BGR

CHAMBER

CASE OF LENEV v. BULGARIA

Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

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

7. The applicant was born in 1958 and lives in Sofia. 8. At about 6.00 p.m. on 1 June 1999 the National Service for Combating Organised Crime (“Национална служба ‘Борба с организираната престъпност’”) of the Ministry of Internal Affairs was given orders to arrest the applicant in connection with information gathered by colonel B.B., a senior police officer in charge of investigating the assassination on 2 October 1996 of the former Prime Minister of the Republic of Bulgaria, Mr Andrey Lukanov (see Lukanov v. Bulgaria, 20 March 1997, §§ 1 in fine and 7 in fine, Reports of Judgments and Decisions 1997II). The service devised a plan and assigned a number of officers to the operation. 9. According to the findings of the military courts which later examined a set of criminal charges against three officers who took part in that operation (see paragraphs 56 and 63 below), two officers were dispatched to the applicant’s address in advance to inspect the surroundings and check whether the applicant was at home. A group of five officers was given the task of carrying out the actual arrest. At about 8.30 p.m. that group arrived at the applicant’s home in a block of flats in Sofia, where they joined the two officers previously sent there. The officers had three cars. One of them was a Volkswagen Transporter minivan that they parked at fifteen to twenty metres from the front entrance of the applicant’s building. Shortly before 9 p.m. four officers went up to the applicant’s flat, two remained in the minivan, and one was left at the building’s entrance. The four officers who went up rang the applicant’s doorbell. His fourteenyear old daughter answered the door. The applicant showed up at the door moments after that. The officers told him that he was to accompany them to the police station. The applicant went back in, took his passport and a jacket, and followed the officers down. Two officers escorted the applicant in the lift. The two others went inside his flat and remained there until about 11.00 p.m. to prevent the persons present in the flat – the applicant’s family and two neighbours – to make telephone calls. Downstairs, the two officers escorting the applicant were joined by the officer who had remained near the building’s entrance. When the group was five or six metres from the minivan, one of the officers who was inside the vehicle opened its side sliding door. At that point, the applicant abruptly tried to move to the back of the minivan instead of its door. The two officers who were escorting him grabbed him by the arms and placed them behind his back. The applicant resisted the officers’ attempt to push him into the minivan. One officer tripped him and the applicant fell, face down, on the minivan’s floor, his legs remaining outside. The officer inside the minivan tried to pull him in. The minivan set off and, at the same moment, an officer who remained on the street pushed its side sliding door to close it. As the applicant’s feet were still hanging outside, he was hit by the door. The officers inside the minivan kept on trying to close the minivan’s door and handcuff the applicant, who resisted, keeping his arms under his body and trying to get up. The door could not be closed as the applicant’s feet protruded outside. The officers eventually managed to pull the applicant’s legs in and handcuff him. A hood was then placed on his head to blind him, so that he could not see where he was being taken. 10. The applicant denied that he had put up any resistance to his arrest, and asserted that the above findings had been based only on evidence given by the police officers involved. According to him, when he approached the minivan he was hit on the neck and fell inside, where he was handcuffed and hooded. 11. The minivan set off for Koprivshtitsa, a small town about one hundred kilometres east of Sofia. It seems that three officers were with the applicant in the back of the minivan, and a fourth one was driving it, but it is equally possible that only two of the officers were in the back and the third one was sitting beside the driver. 12. According to the findings of the military courts, throughout the trip the applicant was lying, undisturbed, on the minivan’s floor, and the officers were sitting around him, monitoring his behaviour. The minivan did not stop en route, and arrived in Koprivshtitsa at about midnight. 13. According to the applicant, during the trip the officers asked him questions and hit him. The minivan stopped several times en route. The questioning and the beating continued during those stops. The applicant received blows with solid objects to all parts of his body save for his face and genitals. During one of the stops one of the officers held the applicant’s legs and another pushed the minivan’s sliding door to strike them. The applicant was hit in the ankles. At one point, pressure was applied to his eyes. The applicant lost consciousness several times. 14. In Koprivshtitsa, the applicant was taken out of the minivan and into a house used by the police as a “secret base”. According to him, the illtreatment continued there. Objects were inserted under two of his nails. Solid objects were placed between his fingers and his hand was squeezed. 15. According to minutes drawn up by the police, the applicant was questioned between 3.45 a.m. and 7.55 a.m. on 2 June 1999 by colonel B.B. in relation to suspicions that he had been involved in the assassination of Mr Lukanov. 16. According to the transcription of a tape on which the questioning was secretly recorded by the police (see paragraphs 2628 below), colonel B.B. addressed the applicant as follows: “Be careful, if you make a mistake, it will be an enormous one. If you want to go [as a bull] with his horns forward, that’s your decision. But then we’ll also go forward with our horns. And our horns may turn out to be much sharper than yours ... This is because we took our time to sharpen them so as to make them prick cruelly ... If you want to play the hero – please, go ahead ... But I would say that this evening is a fateful one for you. It is decisive for you. A life to gain or lose and not only your life ... And this is the reason why this conversation is taking place here and not elsewhere ... Confession and repentance are the only chance for you ...” 17. At some point during the interrogation the applicant made statements in which he confessed that he had taken part in a plot to assassinate Mr Lukanov. 18. At about 10 a.m. on 2 June 1999 the applicant was taken back to Sofia in a police vehicle. He was again hooded. In Sofia he was brought before an investigator who charged him with complicity to premeditated murder. 19. Four other persons, including a Mr A.V., who had allegedly ordered Mr Lukanov’s assassination, and a Mr A.R., who had allegedly carried it out by shooting Mr Lukanov dead, were arrested and illtreated by the police at the end of May and in June 1999, and also charged. Both of them also made confessions. 20. On 2 June 1999, upon being admitted to the detention facility of the Sofia Investigation Service, the applicant was examined by Dr D.D., the facility’s onduty medical doctor, who noted numerous haematomas in the area of his armpits, on his torso under the arms, on his wrists, on his left thigh, on his leg below the knee, and on both of his ankles. She also found open wounds on the applicant’s left wrist and the index finger of his left hand. Her estimation was that all those injuries had been sustained one or two days earlier. When interviewed by the authorities in relation to that on 26 July 1999, a colleague of Dr D.D. said that such examinations were being carried out routinely on all incoming detainees and did not involve any forensic findings as to the origin of any injuries found on the detainees. Such findings could be made only by forensic medical doctors, and the usual practice was to refer a detainee suspected of having been subjected to physical violence to the Chair of Forensic Medicine of the Medical Faculty of the Sofia University of Medicine. When interviewed by the authorities in relation to that on 17 August 1999, Dr D.D. said that when examined by her on 2 June 1999 the applicant had told her that he had been illtreated after his arrest. 21. In spite of his request, the applicant was not allowed to contact a lawyer of his own choosing. An ex officio counsel was appointed to represent him. The counsel allegedly did not heed the applicant’s request to contact his relatives and ask them to arrange for a forensic medical examination. 22. About two weeks after the applicant’s arrest his mother and wife were allowed to visit him. After their meeting, the applicant’s mother sent letters to the Chief Prosecutor, the Minister of Internal Affairs, the President, the Prime Minister and the media, describing traces of serious violence which she had seen on the applicant and requesting an adequate reaction by the authorities. 23. On 23 July 1999 the applicant was taken, apparently in the face of opposition by the investigator in charge of his case, to the Chair of Forensic Medicine of the Medical Faculty of the Sofia University of Medicine for examination. The doctors’ findings included the following: an injury measuring two to one centimetres to the parietal area of the skull; injuries to both wrists; a hematoma on the thumbnail of the left hand; an injury to the fingertip and the nail of the index of the left hand (with half of the nail missing); an injury to the ring finger; two injuries to the front of the left leg under the knee; six injuries to the front of the right leg under the knee. 24. On 26 July 1999 two investigators, assisted by a medical doctor from the Chair of Forensic Medicine of the Medical Faculty of the Sofia University of Medicine and a technical assistant, examined the applicant in the presence of two attesting witnesses. They noted the following injuries on him (all of them in various stages of recovery): an injury measuring three to two centimetres to the parietal area of the skull; an injury measuring one and a half by one and a half centimetres to the inner left elbow; an injury measuring three by one and a half centimetres to the outer left elbow; two parallel linear injuries two centimetres long each to the outer left wrist; a similar injury four centimetres long to the inner left wrist; an eightmillimetrelong hematoma under the thumbnail of the left hand; partially missing nail and swelling of the index of the left hand; a ninemillimetrelong linear injury between the first and the second phalanges of the ring finger of the left hand; six injuries each measuring one or two by two centimetres to the front and inner surfaces of the lower right leg, situated in the area between seven centimetres below the knee and ten centimetres above the ankle; two similar injuries to the lower left leg; and swelling of the left ankle. 25. The applicant remained in pre-trial detention until late 2000, when he was released on bail. 26. The applicant’s interrogation on 2 June 1999 in the house in Koprivshtitsa was secretly recorded. This was apparently done without the applicant’s knowledge and without a judicial warrant. Judicial authorisation to carry out secret recordings in the house in Koprivshtitsa in relation to the applicant was only given on 3 June 1999 by the President of the Sofia City Court, and concerned a tenday period beginning on 3 June 1999. 27. A visual examination of a photocopy of the document containing the police request for a judicial warrant and the judge’s decision shows that the request was dated 1 June and that, apparently, it was not submitted to the judge before 3 June. It can also be seen that the initial proposal by the police was for a period starting on 1 June 1999 and that the number “3” was then written over the number “1”. 28. In January 2002 a transcription of the recording was drawn up. According to the applicant, the transcription did not reflect the whole interrogation. 29. At the applicant’s trial (see paragraph 33 below), the prosecution sought to rely on the recording. On 11 March 2003, noting that it had been made surreptitiously and without a valid warrant, the Sofia City Court refused to admit it in evidence. 30. In May, June and July 1999 the police allegedly made statements to the media, implying that they had arrested the persons responsible for Mr Lukanov’s assassination. 31. On 26 May 2000 the Minister of Internal Affairs, replying in Parliament to a remark that the police had repeatedly made groundless assertions that they had found Mr Lukanov’s assassins, said that since his appointment as Minister he had only once asserted that the assassin had been arrested and that had been the day when Mr A.R. (one of the applicant’s coaccused) had been detained. 32. In the first months after their arrests, the applicant and his two coaccused maintained their initial confessions and gave evidence in this sense to the investigators in charge of their case. Later, they changed their position and stated that they had never been involved in a plot to assassinate Mr Lukanov and that their confessions had been extracted under torture. 33. During the trial, which started in 2001, the Sofia City Court admitted in evidence medical certificates and witness evidence concerning the illtreatment to which the applicant had been subjected on 1 or 2 June 1999. 34. In a judgment of 28 November 2003 the Sofia City Court found the applicant and his four co-accused guilty of Mr Lukanov’s assassination, and sentenced all of them to life imprisonment (without parole for the applicant’s coaccused and with parole for the applicant). The court relied heavily on the confessions made by the applicant and two of his coaccused. 35. Addressing the argument of the defence that those confessions had been extracted under torture, the court accepted that there existed solid evidence that the police had used serious physical violence and psychological harassment against them immediately after their arrests. The court observed that such acts were unacceptable and called for disciplinary and, if appropriate, criminallaw measures against the officers concerned. 36. However, the court went on to observe that the applicant and his two coaccused had maintained their confessions for a long period of time, and that they had not been ill-treated after 2 June 1999. The applicant had maintained his confession in the course of eleven interviews held between 8 June and 6 October 1999 in the presence of counsel of his own choosing, retained by him on an unspecified date. The court considered that it could therefore rely on the confessions made during those interviews, which had been conducted by investigators. 37. The applicant and the other accused appealed. 38. The Sofia Court of Appeal court heard expert evidence concerning the illtreatment to which the applicant and his two coaccused had been subjected. 39. On 8 June 2006 the Sofia Court of Appeal quashed the Sofia City Court’s judgment and acquitted all accused on the charges concerning Mr Lukanov’s assassination. 40. The court analysed the evidence concerning the way in which the applicant had been treated on 1 or 2 June 1999, and concluded that he had been subjected to torture in breach of the Constitution and Article 3 of the Convention. The applicant and his coaccused had confessed under illtreatment which had left longlasting marks on their bodies. The pain from the injuries had not subsided for several months. It was moreover significant that when one looked at the medical evidence concerning each of the three accused, one could see that the higher the intensity of the torture, the longer the accused concerned had maintained his confession. The applicant, who had suffered the most serious injuries, had been the most consistent in maintaining his confession. 41. The court went on to say that there was evidence of an attempt to delay the proper medical examination of the applicant and his coaccused. During that time, they had been questioned by investigators although their bodies had carried marks of illtreatment. The investigators’ good faith was therefore open to doubt. 42. The court therefore decided that the confessions should not be taken into account and, analysing the remaining evidence, concluded that the charges had not been made out. 43. On 15 March 2007 the Supreme Court of Cassation, hearing the case on an appeal by the prosecution, upheld the acquittal (реш. № 161 от 15 март 2007 г. по н. д. № 843/2006 г., ВКС, І н. о.). It agreed with the finding that the applicant and his coaccused had been subjected to illtreatment, and held that it could not admit the resulting confessions, which were a “fruit of the poisonous tree”, because that would be in breach of the right to a fair trial. The court went on to say that in a democratic legal system unlawful attempts to extract confessions, as in the case at hand, were in the final analysis harmful to the prosecution’s case. 44. On 27 July 1999 the Sofia Military Prosecutor’s Office opened a preliminary investigation in relation to the applicant’s alleged ill-treatment. During the following month the military investigation authorities interviewed a number of people and obtained a medical expert report on the applicant’s injuries and the manner in which they had been inflicted. 45. The report, filed on 1 October 1999, reviewed the medical findings of the examinations on 2 June and 23 and 26 July 1999 (see paragraphs 20, 23 and 24 above). The experts said that the injury to the applicant’s head had been caused by a blow with or against a blunt object. The injuries to his left elbow, his left ring finger and legs below the knees had been caused in a similar way. The lack of detailed findings in relation to them in the 2 June 1999 examination showed that they had either not been present at that point and had occurred later, or that they had not been properly noted. The injuries to the wrists had been caused by handcuffs. The injuries to the nail of the left index finger had been caused by a frontal traumatic impact to the finger. As the injury had been inflicted a long time before the examination which had noted it, its exact cause could not be determined: it could have consisted of a blow to the distal phalange, the insertion of an object under the nail, or the removal of the nail by the application of pressure to its extremity. The hematoma on the left thumbnail had been caused by a blow or by the pressing of the thumb between hard blunt objects. The hematomas noted during the examination on 2 June 1999 had been caused by blows with hard blunt objects. 46. On 14 October 1999 the proceedings were stayed because one of the officers who had allegedly ill-treated the applicant was abroad on an official mission and could not be interviewed. On 5 January 2000, following his return, the proceedings were resumed. 47. Between January and May 2000 the investigator in charge of the case charged three officers who had travelled with the applicant in the police minivan which had taken him to the house in Koprivshtitsa with causing him light bodily harm, contrary to Article 131 § 1 (2) in conjunction with Article 130 § 1 of the Criminal Code 1968 (see paragraph 76 below). 48. The investigator also obtained an additional medical expert report with a view to clarifying the exact origin of the applicant’s injuries and elucidating the discrepancies in the medical findings made by Dr D.D. on 2 June 1999 and the findings of the forensic doctors of 23 July 1999. However, the report, filed on 1 March 2000, was unable to reach more definite conclusions on that point. Nor were the experts able to say – without being presented with clearer information – exactly what kind of injuries would be caused by an intensive eighthour beating. 49. On 10 May 2000 the investigator proposed that the three officers be brought to trial. However, on 26 May 2000 the Sofia Military Prosecutor’s Office referred the case back for additional investigation. It observed, inter alia, that no information had been gathered about the officers in charge of the applicant between his arrival in Koprivshtitsa and his return to Sofia the next day. 50. On 8 December 2000 the proceedings were stayed once again, because one of the applicant’s co-accused, who had also been taken to the house in Koprivshtitsa, had left the country and could not be interviewed as a witness. They were resumed on 2 July 2001. 51. On 4 July 2001 the investigator again proposed that the three officers be brought to trial. However, on 30 July 2001 the Sofia Military Prosecutor’s Office once more referred the case back for additional investigation. It observed that the charges did not specify which of the three officers had administered which blows to which parts of the applicant’s body. 52. On 4 October 2001 the investigator again sent the case to the Sofia Military Prosecutor’s Office, which again referred it back on 20 November 2001 for additional investigation, saying that the charges did not specify the exact manner in which the officers had caused the applicant’s injuries. 53. On 28 June 2002 the Sofia Military Prosecutor’s Office indicted the three officers, but on 8 July 2002 the Sofia Military Court referred the case back for additional investigation. On 10 February 2003 the Sofia Military Prosecutor’s Office again indicted the officers, and several days later the Sofia Military Court again referred the case back. It appears that between 2003 and 2005 the case lay dormant with the military prosecuting and investigating authorities. 54. On an unspecified date in 2005 the Sofia Military Prosecutor’s Office submitted an indictment against the three officers to the Sofia Military Court. 55. The trial took place on 28 February, 8 June, 19 September and 26 October 2006. At the outset the applicant made a civil claim against the officers, seeking 100,000 Bulgarian levs, plus interest, in nonpecuniary damages. 56. In a judgment of 30 October 2006 the Sofia Military Court acquitted the officers and rejected the applicant’s civil claim. The court started by setting out its findings of fact (see paragraphs 9 and 12 above). It went on to hold that, based on those findings, the officers’ actions could not be regarded as a criminal offence because, although causing the applicant bodily harm, they had been justified under Article 12a of the Criminal Code (see paragraph 75 below). The court reproduced in its judgment the applicant’s allegations concerning his ill-treatment inside the minivan and in Koprivshtitsa, and said that those allegations, if true, meant that the applicant would have had injuries all over his body and would carry horrifying marks of illtreatment. However, the findings of Dr D.D. (see paragraph 20 above) had not revealed such marks and were fully consistent with the version put forward by the three accused officers. Dr D.D. had not recorded multiple injuries to the applicant’s head, but only one injury to the central parietal area. It was implausible to assume that all of the alleged numerous blows to the applicant’s head had been administered to a single spot. There were no recorded injuries to the front or the back of his torso, belly or feet, or injuries to his eyes caused by pressing. It could therefore be accepted that the officers’ account as to the amount of force that they had used to restrain the applicant and handcuff him was truthful, and that the use of force has stopped after the applicant had been subdued. The officers’ aim had been to arrest the applicant, who they believed had committed a criminal offence, and to bring him before the appropriate authority – colonel B.B. The officers had also sought to prevent the applicant from alerting his accomplices. In view of his resistance, there had been no other way of carrying out the arrest. The use of force had also been justified under section 78(1)(1) of the Ministry of Internal Affairs Act 1997 (see paragraph 71 below) because the applicant had failed to heed a lawful order and had put up resistance. The three officers had not used disproportionate force. The applicant had been arrested in relation to a very serious offence – the assassination of a former prime minister –, had resisted arrest, and had not sustained very serious injuries. The use of force had stopped immediately after he had been subdued. Since the officers’ actions had not constituted an offence and had amounted to a lawful use of force, the applicant’s civil claim was to be rejected. 57. On 14 November 2006 the prosecution appealed against the acquittal to the Military Court of Appeal. The applicant also appealed against the acquittal and the rejection of his civil claim. 58. The Military Court of Appeal heard the appeal on 29 January 2007. It drew the officers’ attention to the fact that the limitation period for prosecuting them on the charges against them – seven and a half years – had expired on 1 December 2006. The court went on to say that the proceedings could continue only if the officers were to waive the statute of limitations (see paragraph 78 below). All three of them stated that they wished to have the charges against them determined despite the expiry of the limitation period. The court then heard the parties’ arguments and announced that it would hand down its judgment in due course. 59. However, on 20 April 2007 the court found that it could not decide the case without rehearing the applicant and colonel B.B., and called them to testify. At the next hearing, held on 9 May 2007, counsel for one of the police officers requested one of the judges to withdraw from the case. She argued that he had shown bias against her client. The court said that it did not find any grounds for that but that it would accede to her request to avoid any suspicions of partiality. As a result, the appellate proceedings had to start anew, as required under the principle of immediacy. On 31 May 2007 the court, sitting in a new formation, decided to rehear the applicant; this time, however, it did not mention colonel B.B. 60. When appearing in court on 9 May 2007, colonel B.B. apparently again asserted in front of journalists that the applicant and his co-accused had assassinated Mr Lukanov. 61. The new formation heard the appeal on 6 June 2007. It likewise drew the officers’ attention to the fact that the limitation period for prosecuting them had expired, and the officers reiterated that they agreed to waive the statute of limitations. The court then heard the applicant as a witness, and admitted in evidence the judgments of the Sofia Court of Appeal and the Supreme Court of Cassation in the criminal proceedings against the applicant (see paragraphs 3943 above). It turned down a request by the officers’ defence to recall colonel B.B. and several other witnesses to the stand, finding that this would be superfluous. 62. At the next hearing, held on 11 July 2007, the court turned down a request by counsel for one of the officers for a fresh medical expert report, observing that the medical evidence that had already been adduced – which included the results of the medical examinations of the applicant on 2 June and 23 July 1999 (see paragraphs 20 and 23 above) – was sufficient. The court reheard the officers and the parties’ oral arguments. 63. In a final judgment of 30 July 2007 (реш. № 113 от 30 юли 2007 г. по н. д. № 215/2006 г., ВАпС), the Military Court of Appeal upheld the officers’ acquittal. It fully agreed with the lower court’s findings of fact, saying that they were based on a proper analysis of the statements of the three accused, the evidence given by the applicant, the medical expert report obtained in the course of the proceedings, and the notes made by Dr D.D. when she had examined the applicant on 2 June 1999. The court went on to say that the indictment did not contain factual allegations in respect of one of the three officers, who was therefore to be acquitted on the basis that he had not used any force in respect of the applicant. The court did not agree with the lower court that Article 12a of the Criminal Code was applicable, holding that this provision referred exclusively to the arrest of offenders who have been convicted by means of a final decision, which was not the case of the applicant. However, it went on to say that the officers’ actions were not criminal because they had constituted a lawful and proportionate use of force within the meaning of section 78(1)(1) of the Ministry of Internal Affairs Act 1997 (see paragraph 71 below). The applicant had failed to heed a lawful order and had resisted the officers’ efforts to put him into the minivan and to handcuff him inside the minivan. The officers had stopped using force immediately after handcuffing the applicant. Lastly, the court noted that during the preliminary investigation the applicant had given evidence that he had been subjected to violence in the house in Koprivshtitsa, where the three officers had left him. That showed that not all injuries later found on the applicant had been caused by them. 64. On an unspecified date in the second half of 2007 the prosecution sought the reopening of the criminal proceedings against the applicant on the ground that the acquittal of the officers was a new relevant fact showing that the applicant had not been illtreated. 65. In a judgment of 7 July 2008 (реш. № 286 от 7 юли 2008 г. по н. д. № 253/2008 г., ВКС, І н. о.), the Supreme Court of Cassation turned the request down, holding that the conclusion of the criminal proceedings against the officers did not amount to grounds to reopen the criminal proceedings against the applicant because the courts in those proceedings had not found that the applicant had not been subjected to illtreatment. 66. On 22 July 2002 two of the applicant’s co-accused were beaten by the officers who escorted them from prison to the Sofia City Court for a hearing in the trial against them. Noting their injuries, the court adjourned the hearing. 67. In 2006 one of them, Mr A.K., brought a claim under section 1 of the State and Municipalities Responsibility for Damage Act 1988 (see paragraph 84 below) against the Ministry of Justice, seeking 30,000 Bulgarian levs in non-pecuniary damages. 68. On 20 October 2008 the Sofia City Court rejected the claim. It held that although the claimant had proved that he had been illtreated on 22 July 2002, he had not been able to prove who exactly had ill-treated him and under what circumstances. The facts alleged in his statement of claim did not match the evidence given by a witness called by him (the other coaccused), and that evidence did not match the evidence given by the applicant, who had also been called to testify. Moreover, the first witness had not pointed to the specific individuals who had carried out the beating, whereas torts under section 1 of the 1988 Act had to be attributed to a specified individual. 69. The applicant’s co-accused appealed. On 12 May 2009 the Sofia Court of Appeal upheld the lower court’s judgment (реш. № 434 от 12 май 2009 г. по гр. д. № 43/2009 г., САС, VІІ с.). It held that the fact of the beating had been substantiated on the basis of the medical evidence and the applicant’s and the other coaccused’s testimony. However, it went on to say that at the relevant time the officers escorting detainees from prison to trial had been employees of the National Police, not the Ministry of Justice; the Ministry had taken over that task on 1 January 2003, following a legislative amendment. It could therefore not be held vicariously liable for the officers’ actions. 70. It does not seem that the applicant’s coaccused tried to appeal on points of law. 71. Section 78 of the Ministry of Internal Affairs Act 1997, in force until 1 May 2006, provided, in so far as relevant: “(1) The police may use physical force and auxiliary means when performing their duties only if those duties cannot be carried out in a different way, in cases of: 1. resistance or refusal to obey a lawful order; 2. arrest of an offender who does not obey or resists a police officer; ... 5. attacks against civilians or police officers; ... (2) Auxiliary means are: handcuffs; straitjackets; rubber and electroshock truncheons and devices; chemical substances approved by the Minister of Health, service animals – dogs, horses; blank cartridges, cartridges with rubber, plastic or shock bullets; devices for the forced stopping of motor vehicles; opening devices, light or sound devices with distracting effect; waterspraying and air-pressure devices; armoured vehicles and helicopters. (3) The manner in which the means under subsection 2 are to be used shall be laid down by the Minister of Internal Affairs. 72. Section 79 provided: “(1) Physical force and auxiliary means are to be used only after giving warning, except in cases of sudden attacks or of freeing hostages. (2) The use of physical force or auxiliary means shall correspond to the specific circumstances, the character of the breach of public order and the personality of the offender. (3) When using physical force or auxiliary means police officers must if possible protect the health of the persons against whom those are deployed, and must take all measures to safeguard their life of those persons. (4) The use of physical force or auxiliary means shall be discontinued immediately after they have achieved their aim. ...” 73. On 1 May 2006 those provisions were superseded by sections 72 and 73 of the Ministry of Internal Affairs Act 2006. Until recently, the wording of those provisions was largely identical to that of the earlier ones. 74. However, on 6 March 2012 the Government laid before Parliament a bill for the amendment of the 2006 Act. Parliament enacted the bill on 30 May 2012, and the amendment came into force on 1 July 2012. Section 72(1), as worded after the amendment, provides that physical force and auxiliary means may be used “only if absolutely necessary”. A newly added subsection 3 of section 73 provides that “police officers shall use only the force absolutely necessary”, and a newly added subsection 7 provides that “[i]t is forbidden to use lethal force to arrest or prevent the escape of a person who has committed or is about to commit a nonviolent offence if that person does not pose a risk to the life or health of another”. In the explanatory notes to the bill the Government referred to, inter alia, the need to bring domestic law fully into line with the applicable international standards and the Court’s caselaw. 75. Article 12a § 1 of the Criminal Code 1968, added in August 1997, provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary. 76. Under Article 131 § 1 (2) taken in conjunction with Article 130 § 1 of the Code, the punishment for light bodily harm inflicted by a police officer is up to three years’ imprisonment. 77. Under Article 287 of the Code, as worded at the time when the applicant was allegedly illtreated, forcing an accused to confess through coercion or other unlawful means was an offence punishable by up to ten years’ imprisonment, where the perpetrator was a person in whom relevant official powers were vested. 78. The limitation period for prosecuting offences under Article 131 § 1 (2) taken in conjunction with Article 130 § 1 of the Code is five years (Article 80 § 1 (4) of the Code), and the limitation period for prosecuting offences under Article 287 of the Code is ten years (Article 80 § 1 (3)). Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time (Article 81 § 2). Such interruptions notwithstanding, the alleged offender can no longer be prosecuted if the limitation period has been exceeded by one half (Article 81 § 3), which means that an offence under Article 131 § 1 (2) taken in conjunction with Article 130 § 1 of the Code cannot be prosecuted if more than seven and a half years have elapsed after its alleged commission. However, under Article 21 § 2 of the Code of Criminal Procedure 1974 (superseded by Article 24 § 2 of the Code of Criminal Procedure 2005), the accused may waive the statute of limitations. 79. A description of the relevant provisions of the 1991 Constitution, the 1974 and 2005 Codes of Criminal Procedure, the Special Surveillance Means Act 1997, the Classified Information Act 2002, and the Access to Public Information Act 2000, as well as the caselaw of the domestic courts and other relevant material can be found in paragraphs 750 of the Court’s judgment in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007). 80. Following the Court’s judgment in that case, on 14 October 2008 the Government laid before Parliament a bill for the amendment of the Special Surveillance Means Act 1997. The explanatory notes to the bill referred to the Court’s judgment and to the need to bring the Act into line with the requirements of the Convention. The bill was enacted on 15 December 2008 and came into force on 27 December 2008. Along with a host of other changes, the amendment created a National Bureau for Control of Special Means of Surveillance, an independent body whose five members were to be elected by Parliament and whose task was to oversee the use of special means of surveillance and the storing and destruction of material obtained through such means, and to protect individuals against the unlawful use of such means (new sections 34b(1), 34c and 34d). The Bureau was to be a permanently acting body having its own administration (new section 34b(3)). In carrying out its functions it could (a) ask the relevant authorities to provide it with information in relation to the use of special means of surveillance; (b) check whether those authorities kept accurate records; (c) access premises containing such records or material obtained though surveillance; (d) give mandatory instructions for improvements in the use of special means of surveillance and in the storage and destruction of material obtained though such means; and (e) inform the prosecuting authorities and the heads of the relevant authorities of instances of unlawful use of such means or of irregularities in the storage or destruction of material obtained though such means (new section 34g). The Bureau was to submit to Parliament an annual report setting out aggregated data on the matters that it was overseeing (new section 34b(5)). It was also to inform of its own motion persons who had been unlawfully subjected to surveillance, unless notification could jeopardise the purpose of the surveillance (section 34h). 81. On 22 October 2009, before the Bureau could start operating, Parliament enacted further amendments to the 1997 Act, abolishing the Bureau and replacing it with a special parliamentary commission, which has the same powers and duties, save for the power to give mandatory instructions (point (d) in the above paragraph); it may only make suggestions for improvements (section 34g, as amended in 2009). The amendments came into force on 10 November 2009. Under related amendments to Parliament’s standing rules, which came into force on 19 December 2009, that commission is in effect a permanent subcommission of Parliament’s legal affairs commission (new rule 24a(1)). It consists of one MP from each parliamentary group and has its own standing rules approved by Parliament (new rule 24a(2)). Those rules were adopted on 11 February 2010. The commission, whose current five members were elected by Parliament on 22 December 2009, is assisted by fifteen parliamentary staffers (rule 24a(3) of Parliament’s standing rules and rule 14 of the commission’s standing rules). It must sit, behind closed doors and in line with the rules governing classified information, at least once every week (rules 9 and 13 of the commission’s standing rules). 82. Under section 34h of the 1997 Act, as amended, the commission must inform of its own motion persons who have been unlawfully subjected to secret surveillance, unless notification might jeopardise the purpose of the surveillance, allow the divulgation of operational methods or technical devices, or put the life or health of an undercover agent or his or her relatives or friends in jeopardy. 83. The commission has thus far submitted three annual reports: the first was submitted in May 2010 and accepted by Parliament on 16 June 2010, the second was submitted in May 2011 and accepted by Parliament on 18 May 2011, and the third was submitted on 4 July 2012 and has yet to be accepted by Parliament. In that latest report the commission said, inter alia, that it had received a number of complaints from individuals, and had taken measures to examine them. It had carried out inspections in seven towns, and had noted many irregularities, such as insufficiently reasoned applications for judicial authorisation of secret surveillance, failures to destroy material obtained through such surveillance within the statutory timelimits, and failures to report back to the court which had authorised surveillance. The commission went on to say that the lack of proper recordkeeping made it difficult to oversee the operation of the system as a whole. It also noted the very low percentage of refused applications for judicial authorisation of secret surveillance. The total number of requests in 2011 had been 13,846. Only 116 had been refused, chiefly on purely technical grounds. 7,881 persons had been subjected to surveillance. 747 requests had yielded material subsequently used in criminal trials. The analysis of the available data showed that the authorities were not using secret surveillance as a means of last resort, but routinely, mainly because it was an almost effortless way of gathering evidence. It was therefore necessary to tighten up the relevant regulations and to strengthen judicial control. The commission made a number of specific proposals in that respect. 84. Section 1 of the Act originally called the State Responsibility for Damage Caused to Citizens Act 1988, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. 85. Section 2(1) of the Act provides for liability of the investigating and prosecuting authorities or the courts in several situations: unlawful detention; bringing of charges, if the accused has been acquitted or the proceedings have been discontinued on certain grounds; conviction and sentencing, if the conviction has later been set aside; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; and serving of a sentence over and above its prescribed duration. 86. On 10 March 2009 a new point 7 was added to section 2(1). It provides that the State is liable for damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special means of surveillance. There is no reported caselaw under that provision. 87. In their caselaw the Supreme Court of Cassation and the Supreme Administrative Court have held that the liability provisions of the 1988 Act – including those added after the Act was originally enacted – confer on the persons concerned a substantive right to claim damages, and have no retrospective effect (реш. № 63 от 21 февруари 1997 г. по гр. д. № 2180/ 1996 г., ВС; реш. № 529 от 17 юли 2001 г. по гр. д. № 24/2001 г., ВКС; опр. № 9134 от 3 октомври 2007 г. по адм. д. № 8175/2007 г., ВАС, ІІІ о.; опр. № 1046 от 6 август 2009 г. по гр. д. № 635/2009 г., ВКС, ІІІ г. о.; опр. № 1047 от 7 август 2009 г. по гр. д. № 738/2009 г., ВКС, III г. о.; реш. № 335 от 31 май 2010 г. по гр. д. № 840/2009 г., ВКС, III г. о.; реш. № 329 от 4 юни 2010 г. по гр. д. № 883/2009 г., ВКС, IV г. о.). 88. According to a binding interpretative decision of the Supreme Court of Cassation (тълк. реш. № 3 от 22 април 2005 г. по тълк. гр. д. № 3/2004 г., ОСГК на ВКС), persons who have been finally acquitted can obtain compensation for the mere fact that criminal proceedings have been brought against them, on the basis that the charges against them are retrospectively considered to have been “unlawful”. According to the same decision, compensation is due in respect of the proceedings themselves and in respect of any incidental measures, such as pretrial detention. 89. In several judgments given between 2005 and 2008 the Supreme Court of Cassation, when fixing the amount of damages it awarded pursuant to such claims, had regard to, among other things, the suffering of the persons concerned stemming from the hardship of being placed in pretrial detention (реш. № 1599 от 22 юни 2005 г. по гр. д. № 876/2004 г., ВКС, IV г. о.; реш. № 1017 от 15 декември 2005 г. по гр. д. № 524/2004 г., ВКС, IV г. о.; реш. № 2851 от 23 януари 2006 г. по гр. д. № 2252/2004 г., ВКС, IV г. о.; реш. № 156 от 10 май 2006 г. по гр. д. № 2633/2004 г., ВКС, IV г. о.; реш. № 1557 от 27 декември 2006 г. по гр. д. № 2800/2005 г., ВКС, IV г. о.; реш. № 692 от 12 май 2008 г. по гр. д. № 2394/2007 г., ВКС, IV г. о.). 90. Section 49 of the Obligations and Contracts Act 1951 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Liability under that provision – as, indeed, all provisions governing torts – is premised upon the wrongfulness of the impugned conduct (реш. № 567 от 24 ноември 1997 г. по гр. д. № 775/1996 г., ВС, петчленен състав). 91. Article 222 of the Code of Civil Procedure 1952 provided as follows: “The final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated, whether it was unlawful, and whether the perpetrator was guilty of it.” 92. Article 300 of the Code of Civil Procedure 2007, which came into force on 1 March 2008, is phrased in identical terms. 93. The Council of Europe’s Committee of Ministers, which under Article 46 § 2 of the Convention has the duty to supervise the execution of the Court’s judgments, is still examining the execution by Bulgaria of the Court’s judgment in Association for European Integration and Human Rights and Ekimdzhiev (cited above). According to information published on the Committee’s website, the case is currently under “enhanced supervision”. The latest developments were that on 2 March 2011 the Bulgarian Government had submitted an action report, that on 23 August 2011 they had provided further information, and that on 26 June 2012 they had submitted a further action report (in which they had, inter alia, said that they were not aware of any caselaw under the new point 7 of section 2(1) of the 1988 Act – see paragraph 86 above). Bilateral contacts were still under way between the Committee’s administration and the Government with a view to gathering more information necessary for the presentation of a revised action plan or report to the Committee.

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001-76015

ENG

GRC

CHAMBER

CASE OF KAKAMOUKAS AND OTHERS v. GREECE

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

Loukis Loucaides

9. On 7 April 1925 the Greek State expropriated an area of land measuring 534,892 m², located on the outskirts of the town of Salonika (Mikra district), for the purpose of building an airport. This area, which now falls within the jurisdiction of Kalamaria Town Council, included plots of land which belonged to the applicants' ascendants. 10. The amount of expropriation allowance was set by judgments nos. 1321/1926 and 703/1929 of the Salonika Court of First Instance, no. 9/1930 of the Salonika Appeal Court and no. 116/1931 of the Court of Cassation. 11. By judgment no. 293/1936 of the President of the Salonika Court of First Instance, the applicants' ascendants were recognised as being entitled to the compensation in question. However, the State refused to pay it. The airport was ultimately constructed elsewhere. 12. On 22 June 1967, by a joint decision of the Minister of Finance and the Minister of Public Works (no. E.17963/8019), the State went ahead with expropriation of the above-mentioned area, which included the disputed plots of land, with a view to building housing for workers. As the decision did not fulfil a public-interest aim, however, it was revoked on 6 July 1972. 13. On 29 June 1972 a royal decree designated the land for the construction of a sports centre. 14. On 14 May 1987 the Salonika prefect modified the development plan (ρυμοτομικό σχέδιο) for the area, which he designated as a “green area” and “sports and leisure zone”. This decision was confirmed by a decision of the Minister of the Environment and Public Works dated 31 July 1987 and by a presidential decree of 22 August 1988. 15. On 28 June 1994 the applicants or their ascendants applied to the Salonika Prefecture requesting that the development plan in force be amended to have the encumbrance affecting their land removed. The prefecture did not reply. 16. On 20 November 1994 the applicants or their ascendants applied to the Supreme Administrative Court, seeking to have set aside the authorities' implicit refusal to remove the encumbrance affecting their land. 17. On 11 January 1996 the Kalamaria Town Council filed its observations on the case. A hearing was held on 26 March 1997. 18. On 20 October 1997 the Supreme Administrative Court granted the applicants' request. In particular, it found that, having failed for a long time to proceed with the expropriation of the land in question in furtherance of the project provided for in the development plan, the authorities were duty bound to lift the encumbrance on the disputed properties. The Supreme Administrative Court sent the case back to the authorities, asking them to take the necessary measures to make available the applicants' land (judgments nos. 4445/1997, 4447/1997 and 4448/1997). Those judgments were finalised and certified as authentic on 25 February 1998. 19. On 30 September 1998 Kalamaria Town Council lodged a third-party appeal (τριτανακοπή) against the above-mentioned judgments by the Supreme Administrative Court. This form of appeal, open to persons who have been neither parties to nor represented in proceedings, enables them to contest a decision which adversely affects them. Where the third-party appeal – which does not have suspensive effect – is found to be valid, the impugned judgments are set aside retrospectively and the application to the administrative court is re-examined. In the instant case, as the third-party appeal did not have suspensive effect, judgments nos. 4445/1997, 4447/1997 and 4448/1997 thus remained immediately enforceable. 20. On 28 November 2001 the Supreme Administrative Court declared the third-party appeal inadmissible (judgments nos. 4148/2001, 4149/2001 and 4150/2001). It held that Kalamaria Town Council could not rely on this form of appeal since it had already had an opportunity to submit its observations on the case. The above-mentioned judgments were finalised and certified as authentic on 17 April 2002. 21. On 13 May 1999 the Minister for the Environment and Public Works modified the urban development plan of Kalamaria municipality in order to designate the land in question as the site for a sports and leisure centre (decision no. 12122/2761). 22. On 9 September 1999 the applicants or their ascendants applied to the Supreme Administrative Court seeking to have the above-mentioned decision set aside. On 11 September 2002 they submitted various documents in support of their application, including the title deeds to the properties. The hearing, initially scheduled for 8 November 2000, was postponed several occasions times. It was finally held on 29 October 2003. The Supreme Administrative Court has not yet delivered its judgment.

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001-101589

ENG

RUS

CHAMBER

CASE OF BANNIKOVA v. RUSSIA

No violation of Art. 6-1

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

5. The applicant was born in 1973 and lives in Kursk. 6. In the period between 23 and 27 January 2005 the applicant, in a series of telephone conversations with S., agreed that he would supply her with cannabis which she would then sell. These telephone conversations were recorded by the Federal Security Service (“FSB”). 7. On 28 January 2005 S. brought the cannabis to the applicant. She mixed it with cannabis she already had at home and packed it into three separate plastic bags, then wrapped them together in one parcel. 8. On the same day the acting chief of the Kursk Regional Department of the FSB authorised an undercover operation in the form of a test purchase under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). On the following day an undercover FSB agent, B., acting as a buyer, met the applicant and purchased 4,408 g of cannabis from her. Banknotes marked with a special substance were used for the purchase. The FSB also made a video and audio recording of the test purchase. After the transaction the applicant was arrested and the marked money was found on her. Her home was searched afterwards, and there she handed in another bag of cannabis weighing 28.6 g. 9. On 24 November 2005 the Leninskiy District Court of Kursk examined the case. The applicant pleaded guilty of having assisted B. in the acquisition of cannabis, but claimed that she had been induced by B. to commit the offence and that she would not have committed it without his intervention. 10. The applicant submitted at the trial that she had a close relationship with S. On one occasion in September 2004 he had left a bag containing dry herb at her home. She had then shown the substance to a neighbour who she knew was a drug addict and he had recognised it as cannabis. A few days later she had been approached by a certain Vladimir, previously unknown to her, who had said that he knew that she had “stuff” and that he could arrange a large-scale deal (“200 cups”) with a customer he knew. She had mentioned this offer to S., who had told her that he could pick up the requisite amount and asked her to find out the price. According to the applicant, at some stage Vladimir had started calling her, harassing her into selling cannabis and making threats should she refuse to do so. She had called S. several times before 28 January 2005, when he had finally brought the cannabis to her. On 29 January 2005 she had received a phone call from the “customer” (the undercover agent B.) and they had arranged for the sale. 11. S. testified at the trial that the applicant had called him in October or November 2004 and suggested a deal whereby he would supply her with a “large consignment” of cannabis which she would then sell. In November 2004 he had picked up some wild marijuana plants and dried them in his attic. On 23 or 24 January 2005 the applicant had called him, asking whether he had prepared the consignment, and said that she had customers waiting. They had decided to sell the cannabis at 300 roubles per cup; according to S., the price was suggested by the applicant. S. also testified that the applicant had told him that she had received threats pressuring her into selling the cannabis. 12. Other evidence examined by the court included: – witness testimonies by B., the undercover agent, and K., the FSB agent who took part in the test purchase, on the events of 29 January 2005: the details of the test purchase, the applicant’s arrest and the ensuing investigative measures; – witness testimonies by Kr. and Kh., the attesting witnesses, concerning the applicant’s arrest on 29 January 2005 and the inspection of the marking agent found on her hands and banknotes; – the FSB reports relating to the test purchase, the search and the objects seized; – forensic evidence and reports on the inspection of the seized substance; these confirmed that the bag contained 4,408 g of cannabis, an amount corresponding to 2,204 average doses of cannabis; the substance seized at the applicant’s home was 28.8 g of cannabis; – the transcripts and the related reports on the telephone conversations between the applicant and S. in which they had discussed the details of the planned sale; – witness testimonies by the applicant’s mother that the applicant had received threats pressuring her into selling drugs and that she had continued to receive calls and threats after her arrest; and – witness testimonies by the police officers who had received a complaint from the applicant’s mother concerning the harassment by telephone. 13. On the basis of the above evidence, the court found the applicant guilty of having sold cannabis to B. on 29 January 2005. As regards the alleged incitement, the court considered that S.’s testimonies concerning the threats received by the applicant were an attempt to help her and decided that there was insufficient evidence of any threats or pressure on the applicant to sell drugs. The court convicted the applicant on a conspiracy charge involving plans to sell a particularly large consignment of narcotic drugs under Article 228.1 § 3 (статья 228.1 ч 3 «г») of the Criminal Code and sentenced her to four years’ imprisonment. The court relied on the applicant’s partial confession, oral testimonies by the FSB officers who had conducted the test purchase and by attesting witnesses, forensic evidence and reports on the inspection of the seized substance. Her accomplice S. was also convicted of the same offence. 14. The applicant appealed, relying, inter alia, on the decisive role of the incitement in her committing the crime and on her inability to access the evidence from the investigation. She alleged, in particular, that there existed recordings of her telephone conversations with the FSB agents prior to the test purchase and asked for T., the FSB agent supposedly involved in the telephone tapping, to be called as a witness. She also complained that the court had not examined the video and audio recording of the test purchase. 15. On 24 January 2006 the Kursk Regional Court dismissed the applicant’s appeal. The court rejected the applicant’s argument concerning the incitement by State agents on the grounds that her participation in the drug sale on 29 January 2005 had been established on the basis of multiple items of evidence and was not denied by her. The appeal court upheld the first­instance judgment, holding, in particular: “As regards the arguments [contained in the applicant’s appeal] concerning the unfounded dismissal of [her] request to obtain the audio recordings of the telephone conversations between [her] and the FSB agents, and to cross-examine the FSB agent [T.] on that point, the case file contains no proof that any such recordings have been made under a procedure established by law. As regards the arguments [contained in the applicant’s appeal] concerning the unfounded dismissal of [her] request to obtain the video and audio recordings of the test purchase of the drugs by the FSB agents, it is not necessary to examine them since [the applicant] accepted in her pleadings that she had sold the drugs during such a test purchase, and her account of the circumstances is corroborated by other evidence and facts established by the court. In particular, it follows from the transcripts of the [applicant’s] telephone conversations with [S.] that during these conversations they discussed occasions of previous sales of narcotic drugs, the remaining unsold stock of narcotic drugs, the emergence of new customers and the prospects of carrying out another sale together ... S. was conveying information on prices for narcotic drugs”. 16. Article 228.1 of the Criminal Code (as in force at the material time) provided that the unlawful sale of narcotic drugs or psychotropic, strong or toxic substances carried a sentence of four to eight years’ imprisonment; the same offence involving a large quantity of drugs or committed by a group of persons acting in conspiracy carried a sentence of up to twelve years’ imprisonment; the same offence involving a particularly large quantity of drugs carried a sentence of up to twenty years’ imprisonment (Article 228.1 § 3 (d)). 17. On 15 June 2006 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 14) on jurisprudence in criminal cases involving narcotic drugs or psychotropic, strong or toxic substances. The Plenary ruled, in particular, that any sale of such substances, if carried out in connection with a test purchase under the Operational-Search Activities Act, should carry charges of attempted sale (Article 30 § 3 in conjunction with Article 228.1 of the Criminal Code). It also set out the following conditions on which the results of the test purchase could be admitted as evidence in criminal proceedings: (i) they must have been obtained in accordance with the law; (ii) they must demonstrate that the defendant’s intention to engage in trafficking of illegal substances had developed independently of the undercover agents’ acts; and (iii) they must demonstrate that the defendant had carried out all the preparatory steps necessary for the commission of the offence. 18. The Operational-Search Activities Act of 12 August 1995 (no. 144­FZ) provided at the material time as follows: “An operational-search activity is a form of overt or covert activity carried out by operational divisions of State agencies authorised by this Act (hereinafter ‘agencies conducting operational-search activities’) within the scope of their powers, with a view to protecting life, health, the rights and freedoms of individuals and citizens or property, and ensuring public and State security against criminal offences.” “The aims of operational-search activities are: – to detect, prevent, intercept and investigate criminal offences as well as searching for and establishing the persons who are planning or committing or have committed them; ...” “... A person who considers that an agency conducting operational-search activities has acted in breach of his or her rights and freedoms may challenge the acts of that agency before a superior agency conducting operational-search activities, a prosecutor’s office or a court. ...” “In carrying out investigations the following measures may be taken: ... 4. test purchase; ... 9. supervision of postal, telegraphic and other communications; 10. telephone interception; 11. collection of data from technical channels of communication; 12. operational infiltration; 13. controlled supply; 14. operational experiments. ... Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunications companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service, the agencies of the Interior Ministry and the regulatory agencies for drugs and psychotropic substances in accordance with decisions and agreements signed between the agencies involved. ...” “[Operational-search activities may be performed on the following grounds;] ... 1. pending criminal proceedings; 2. information obtained by the agencies conducting operational-search activities which: (1) indicates that an offence is being planned or that it has been already committed, or points to persons who are planning or committing or have committed it, if there are insufficient data for a decision to institute criminal proceedings; ...” “Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning: 1. the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory; 2. persons who are conspiring to commit, or are committing, or have committed an offence whose investigation is mandatory; ... Test purchases ..., operational experiments, or infiltration by agents of the agencies conducting operational-search activities or individuals assisting them, shall be carried out pursuant to an order issued by the head of the agency conducting operational­search activities. Operational experiments may be conducted only for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons who are planning or committing or have committed a serious crime. ...” “The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused. ... The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons. ...” “To pursue their aims as defined by this Act, the agencies conducting operational­search activities may create and use databases and open operational registration files. Operational registration files may be opened on the grounds set out in points 1 to 6 of section 7(1) of this Act ...” “Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...” On 24 July 2007 section 5 of the Act was amended by prohibiting the agency conducting operational-search activities from directly or indirectly inducing or inciting the commission of offences. 19. The Council of Europe’s instruments on the use of special investigative techniques are outlined in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008-...). 20. Article 125 of the Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provided at the material time that orders of an interrogator, investigator or prosecutor that were capable of encroaching on the constitutional rights and freedoms of participants in criminal proceedings or obstructing their access to justice could be challenged before a court whose jurisdiction covered the place of the investigation. Subsequent changes in the Code added the head of the investigating authority to the list of officials whose acts could be challenged. 21. On 10 February 2009 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 1) on the practice of judicial examination of complaints under Article 125 of the Code of Criminal Procedure of the Russian Federation. The Plenary ruled, inter alia, that decisions by the officials of agencies conducting operational-search activities must also be subject to judicial review under the provisions of Article 125 if the officials were acting pursuant to an order by an investigator or the head of the investigating or interrogating authority. 22. The Code of Criminal Procedure provides, in so far as relevant: “1. Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings]. ...” “... 5. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial. ...”

train

001-58739

ENG

POL

CHAMBER

CASE OF NIEDBALA v. POLAND

Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award

Elisabeth Palm

6. On 31 August 1994 the applicant was arrested. On 2 September 1994 the Rybnik District Prosecutor, W., remanded him in custody on suspicion of theft of a car. 7. The applicant appealed to the Katowice Regional Court. On 12 September 1994 the court dismissed the appeal, finding that there was sufficient evidence to establish that the applicant might have committed the offence concerned and the reasons for which the applicant had been remanded in custody had not ceased to exist. 8. On 21 September 1994 the Rybnik District Public Prosecutor prolonged the applicant's detention until 30 November 1994, considering that the evidence gathered in the course of investigations strongly indicated that the applicant had committed the offence in question. An expert opinion had still to be taken. 9. On 10 October 1994 the Katowice Regional Court dismissed the applicant's appeal against this decision, considering that the evidence strongly indicated that the applicant had committed the offence in question. Further time-consuming evidence still had to be taken, which justified the prolongation of the detention. 10. On 24 October 1994 the Rybnik District Public Prosecutor refused to release the applicant, considering that the investigations had not been completed, further forensic evidence had to be taken and the reasons for which the detention had originally been decided had not ceased to exist. 11. On 2 November 1994 the applicant wrote a letter to the Ombudsman, complaining about alleged irregularities in the criminal proceedings against him and about having allegedly been assaulted by the police on his arrest. The prison authorities forwarded this letter to the Rybnik District Prosecutor. On 23 November 1994 the Rybnik District Prosecutor informed the applicant that the letter to the Ombudsman had been forwarded to the Tychy District Public Prosecutor, for the purpose of investigating the alleged assault. It was later forwarded to the Ombudsman. The letter reached the Ombudsman's office on 27 December 1994 and was registered there under file number RPO 174886/94/II. On 28 November 1994 the applicant sent a further letter to the Ombudsman. 12. On 15 November 1994 the Katowice Regional Prosecutor dismissed the applicant's appeal against the decision of 24 October 1994. The Prosecutor considered that the evidence strongly indicated that the applicant had committed the offence in question. The reasons for which the detention had been ordered had not ceased to exist. The investigations should be continued and this required that the applicant should remain in detention. 13. On 9 March 1995 the applicant filed a request with the Katowice Regional Court to have the lawfulness of his detention reviewed as provided for by Article 5 § 4 of the European Convention of Human Rights. This request remained unanswered. 14. On 20 March 1995 the Katowice Regional Court convicted the applicant of possessing stolen goods and ordered that he be released from detention on remand. The applicant and the Public Prosecutor filed appeals against this judgment. 15. On 21 April 1995 the applicant was rearrested and the Racibórz District Public Prosecutor decided to put the applicant in detention on remand on suspicion of attempted theft of a car on 20 April 1995. The applicant appealed to the Racibórz District Court, invoking, inter alia, Article 5 § 3 of the Convention. On 27 April 1995 the court dismissed the appeal, considering that the detention on remand had been ordered in accordance with the law. Article 210 § 1 of the Code of Criminal Procedure provides that it is the Public Prosecutor who is competent to decide on detention on remand. 16. On 12 June 1995, in reply to the applicant's letter of 2 November 1994, the Ombudsman informed the applicant that the ratification of the Convention did not automatically entail the derogation of the provisions of Polish law relating to the authorities competent to decide on deprivation of liberty. Thus the courts and prosecutors were still obliged to apply domestic law currently in force in this respect. The relevant amendments to the Code of Criminal Procedure had already been adopted by Parliament, but they had not yet entered into force. Current public debate about the possible direct applicability of the Convention in the domestic legal order was of a purely theoretical nature. The decisions concerning the applicant's detention were therefore in accordance with the law. 17. On 5 September 1995 the Katowice Court of Appeal amended the impugned judgment of 20 March 1995 in that it found the applicant guilty of aiding and abetting the sale of stolen goods and sentenced him to two years and six months' imprisonment and a fine. 18. At the relevant time, the authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Polish Code of Criminal Procedure of 1969, which read as follows: "1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)." "1. A decision concerning preventive measures may be appealed [to a higher court] .... 2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...." 19. These provisions were amended on 29 June 1995 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes, which entered into force on 4 August 1996. Pursuant to this amendment, detention on remand could be imposed only by a court order. 20. A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads: “1. Detention on remand shall be imposed by a court order. 2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor's request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case. 3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court." 21. At the relevant time the presence of the parties at court sessions other than hearings was regulated in Articles 87 and 88 of the Code of Criminal Procedure of 1969, which, insofar as relevant, provided: "The Court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ..." "A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it." 22. Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings. 23. The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered. 24. At the material time the relations between the organs of the Polish State were set out in interim legislation, i.e. the Constitutional Act of 17 October 1992 (Mała Konstytucja). Article 1 of the Act laid down the principle of the separation of powers in the following terms: "The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts." 25. Under Article 56 of the Act, the Council of Ministers (Rada Ministrów) shall be composed of the Prime Minister, Deputy Prime Ministers and Ministers. 26. In pursuance of Article 1 of the Act of 20 June 1985 (Ustawa o sądach powszechnych), the courts are entrusted with administration of justice in the Republic of Poland. The courts are courts of appeal, regional courts and district courts. Under Article 9 of the Law, the Supreme Court exercises supervisory jurisdiction over lower courts. 27. Article 1 of the Act of 20 June 1985 on Prosecuting Authorities (Ustawa o Prokuraturze) which determines general principles concerning the structure, functions and organisation of prosecuting authorities, at the material time read as follows: "1. The prosecuting authorities shall be the Prosecutor General, prosecutors and military prosecutors. Prosecutors and military prosecutors shall be subordinate to the Prosecutor General. 2. The Prosecutor General shall be the highest prosecuting authority; his functions shall be carried out by the Minister of Justice." Article 2 of the Act reads: "The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences." 28. Under Article 7 of the Act, in carrying out his statutory duties, a prosecutor shall abide by the principles of impartiality and equality of citizens before the law. 29. Pursuant to Article 8 of the Act, a prosecutor is independent in carrying out his or her duties, within the limits set out in this Article. A prosecutor shall abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. The requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order." 30. Chapter III of the Code of Criminal Procedure of 1969, applicable at the material time, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society", described a prosecutor as a party to criminal proceedings. According to all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case. 31. Under Article 3 of the Code of Criminal Procedure of 1969 ”organs conducting criminal proceedings [including a prosecutor] shall examine and take into account evidence in favour of as well as against the accused.” 32. Under Article 1 of the Ombudsman Act of 15 July 1987, it is the Ombudsman's task to examine, in his capacity as the guardian of human rights, whether the acts or failure to act on the part of the authorities, organisations and institutions whose functions necessarily impinge on these rights, breached the law or the principles of equity. The Ombudsman may undertake measures provided for by law if he receives information from which it transpires that human rights have been breached. Pursuant to Article 13 of the Act, he is competent to investigate individual complaints. When investigating such complaints he may, inter alia, demand that the judicial, prosecuting and administrative authorities submit to him information about a concrete individual case. Under Article 14, once the investigation is completed, the Ombudsman may, if a breach of human rights and liberties has been found, present his opinion to the authority conducting the proceedings. The Ombudsman's actions must be compatible with the principle of the independence of the judiciary. He may also inform a superior authority of his findings and request that appropriate measures provided for by law be taken in respect of the person whose actions amounted to a violation of human rights. 33. At the relevant time the situation of persons detained on remand was governed by the Code of Execution of Criminal Sentences of 19 April 1969. Under Article 89 of that Code, all correspondence of a person detained on remand was subject to censorship, unless a prosecutor and a court decided otherwise. No provision of the Code provided for any remedy to contest the manner or scope of the censorship of a detainee’s correspondence. 34. The rights of persons detained on remand as regards their correspondence were further set out in Rule 33 of the Rules on Detention on Remand, adopted in 1989. They provided that the correspondence of persons detained on remand was subject to censorship by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings. 35. On 6 July 1997 a new Code of Execution of Criminal Sentences was enacted by parliament. Article 102 of this Code, which entered into force on 1 January 1998, provides that the convicted persons are entitled to uncensored correspondence with the State authorities and with the Ombudsman. Article 103 of the Code further provides that convicted persons and their lawyers may lodge complaints with the international agencies established under international treaties on protection of human rights, ratified by Poland. Prisoners’ correspondence in such cases shall be dispatched with no delay and is not subject to censorship. 36. Pursuant to Article 512 of the new Code, the rights of persons detained on remand shall, in principle, be at least equal with those of persons convicted by a final judgment. 37. Article 3 of the Ordinance, which was later repealed, provided that the President of the Regional Court carried out supervision over administrative aspects of the administration of justice by district courts within the jurisdiction of the Regional Court, whereas Article 4 provided that the President of the Court of Appeal carried out supervision over administrative aspects of the administration of justice by regional courts within the jurisdiction of the Court of Appeal.

train

001-113127

ENG

GBR

CHAMBER

CASE OF JAMES, WELLS AND LEE v. THE UNITED KINGDOM

Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-a - Conviction);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Phillips of Worth Matravers;Vincent A. De Gaetano;Zdravka Kalaydjieva

5. Mr James was born in 1985 and lives in Wakefield. Mr Wells was born in 1983 and is currently in detention. Mr Lee was born in 1965 and lives in Fleetwood. 6. On 4 April 2005, by virtue of section 225 of the Criminal Justice Act 2003 (“the 2003 Act”), indeterminate sentences for the public protection (“IPP sentences”) were introduced. These sentences are indeterminate sentences (i.e. sentences of no fixed length), and, like sentences of life imprisonment, require the direction of the Parole Board in order for the prisoner to be released. A minimum term which has to be served before a prisoner can be released, known as the “tariff”, is fixed by the sentencing judge. In cases involving IPP prisoners, it would appear that in practice the tariff fixed is generally short: in the year following the entry into force of the provisions on IPP sentences, when the applicants in the present case were sentenced, the median tariff for IPP prisoners was thirty months, and seventy per cent of IPP sentences imposed involved tariffs of three years or less. 7. When IPP sentences were first introduced, they were mandatory in all cases where an individual was convicted of a “serious offence” and was deemed by the sentencing judge to be at risk of committing a further “specified offence”. Risk was to be assumed in cases where the individual in question had previously been convicted of a “relevant offence”, unless the sentencing judge considered it unreasonable to conclude that there was a risk of further specified offences being committed. The terms “serious offence”, “specified offence” and “relevant offence” were defined in the 2003 Act. 8. Pursuant to section 28 of the Crime (Sentences) Act 1997 (“the 1997 Act”), the Parole Board was given the power to direct the release of indeterminate sentence prisoners to whom the section applied if it was satisfied that detention was no longer necessary for the protection of the public. 9. The consequence of the entry into force of the legislative provisions introducing IPP sentences was that a large number of individuals were sentenced to an IPP sentence. Although it had been intended that the new provisions would be resource-neutral, it soon became clear that existing resources were insufficient and the large number of IPP prisoners swamped the system in place for dealing with those serving indeterminate sentences. 10. The IPP scheme was subsequently amended by the Criminal Justice and Immigration Act 2008 (“the 2008 Act”) to deal with the problems encountered. In particular, the IPP sentence is no longer mandatory. Further, it now only applies to cases where, if imposed, the tariff would be fixed at more than two years, subject to certain limited exceptions. 11. The domestic law, including the changes introduced by the 2008 Act, is set out in greater detail below (see paragraphs 124-142). 12. On 28 September 2005 Mr James pleaded guilty in the Crown Court to unlawful wounding with intent. He had previous convictions for, among other things, battery, common assault, affray, disorderly behaviour, racially abusive behaviour and assault occasioning actual bodily harm. A pre-sentencing report dated 27 September 2005 prepared by the Probation Service referred to the offence forming part of a pattern of violence and threatening behaviour largely linked to Mr James’ excessive drinking. It recommended counselling to address alcohol and substance abuse. The sentencing judge accepted that Mr James was dangerous, particularly when he drank alcohol. He was sentenced to an IPP sentence pursuant to section 225 of the 2003 Act, with a tariff of two years, less time spent on remand. His tariff therefore expired one year and 295 days after the date of sentencing. 13. After being sentenced, Mr James remained at his local prison, HMP Doncaster, and while there took all courses that he was able to take. The courses he completed included a short alcohol awareness course, an IT course, a first aid course and a Think First course. Parole Board reports indicated that he should also undertake the ETS (Enhanced Thinking Skills) course, the ASRO (Addressing Substance Related Offending) course and the CALM (Controlling Anger and Learning to Manage it) course, none of which were available to him at HMP Doncaster. 14. On 31 May 2006 the chairman of the Independent Monitoring Board (a statutory body established to monitor the welfare of prisoners) wrote to Mr James’ solicitors saying that Mr James had completed all the courses that were available to him at HMP Doncaster and that he was unable to move to a first stage lifer prison to complete the rest of the courses needed for release because all the places at the first stage lifer prisons were full. 15. On 8 September 2006 the Lifer Governor at HMP Manchester wrote to Mr James’ solicitors explaining that he was thirty-fifth on the first stage lifer prison waiting list. He said: “As you will be aware we must now treat Indeterminate Public Protection (IPP) sentenced prisoners as lifers and they are all serving short tariff sentences ... The massive influx of IPPs along with other sentenced lifers from our courts has inflated our lifer/IPP numbers to 160 (and increasing) against a profiled maximum of 131. This increase above our profiles numbers, without any additional resources, has meant that we have not been able to accept anyone from our first stage waiting list for almost a year. Unfortunately, this trend shows no sign of slowing down and I cannot predict when we might be able to accommodate Mr James.” 16. On 9 January 2007 Mr James’ solicitors wrote to the Secretary of State explaining his situation and requesting that he be transferred to a first stage lifer prison in order to complete the relevant courses, or that the courses be made available to him at HMP Doncaster. The letter highlighted that Mr James’ tariff would expire in seven months and that he wished to complete the relevant courses before tariff expiry and his Parole Board hearing. 17. On 12 January 2007 the Lifer Governor at HMP Manchester wrote that the number of lifer/IPP prisoners had increased to 192: “The increase in Lifer/IPP numbers and the fact that most of these individuals have come to us with short tariffs means that we now seem to do mostly report writing and are largely unable to get on with our ‘real’ job of risk assessment and sentence planning work.” 18. On 3 March 2007 Mr James’ case was referred to the Parole Board in accordance with the standard procedure. 19. The Progress Report Summary prepared for the Parole Board by Mr James’ Indeterminate Sentences Manager at HMP Doncaster, dated 2 April 2007, stated: “... The Court obviously considered Mr James to be a danger to the public when it imposed an Indeterminate Sentence for Public Protection, but that risk would seem to have been reduced somewhat both by his increasing maturity and by the work he has already undertaken. A full assessment will only be done at the Sentence Planning stage, at his First Stage Lifer Centre, and the suggestion is that he is likely to need to undertake CALM and PASRO [Prison: Addressing Substance Related Offending] courses prior to release in order to ensure that his risk is reduced to an acceptable level. He professes himself happy to do these.” 20. Under the heading “Recommendation for allocation or release”, the report continued: “As Mr James has not as yet had his Sentence Plan or undertaken any work related to his offending, I cannot with any confidence recommend him for release or for transfer to open conditions.” 21. On 21 May 2007 Mr James applied to the High Court for permission to seek judicial review of the management and treatment of prisoners by the Secretary of State in light of the failure to provide him with the relevant courses to address his offending behaviour. 22. On 20 July 2007 Mr James’ tariff period expired. 23. Handing down his judgment in the judicial review proceedings on 20 August 2007, Mr Justice Collins outlined the background to the judicial review application as follows: “2. ... [Mr James’] tariff expired on 20th July of this year and the result is that he is now detained solely as a result of the IPP on the basis that he is dangerous. He has therefore the right to apply to the Parole Board for his release on the basis that he is no longer to be regarded as dangerous and that therefore the continued detention would not be justified. 3. In order to make a meaningful submission to the Parole Board, it was necessary that he undertake courses to seek to deal with his problems, particularly those of drink and anger management. There are such courses which are made available by the prison service. Unfortunately, the resources have not been provided to enable such courses to be provided for [prisoners] such as the claimant, who has a short tariff period. Indeed, he has been incarcerated at Doncaster Prison, which is a local prison, and which does not have the facilities for the necessary courses. He has, as I understand it, undertaken a short course in relation to alcohol and an equally short one in relation to anger management but it is recognised that they would be likely to be insufficient to provide the necessary information to the Parole Board and the Parole Board would be likely to be in the same position as the Board was in the case of Wells (which was dealt with by the Divisional Court together with Walker). In that case, the Board, when Wells, who was a post-tariff prisoner, came before it, commented that he had not undertaken any offence focused work, which was not his fault because he wanted to do so, but it was not the remit of the Parole Board to make up the deficiencies of the prison service and, because he had not been able to do any of the appropriate courses, he was unable to demonstrate any reduction in risk from the time that he was sentenced. That, Mr Weatherby [counsel for Mr James] submits, is likely to be the approach of the Parole Board, before whom the claimant at the moment has a hearing fixed, as I understand it, for 14th September next.” 24. Collins J, relying on the decision of the Divisional Court in Walker v. the Secretary of State (“Walker” – see paragraphs 51-54 below), declared Mr James’ detention unlawful and ordered his release, but stayed relief pending an appeal by the Secretary of State. He did not decide on Mr James’ argument that there had been a violation of Article 5 § 4 as a result of the failure to provide the courses, although he recognised the possible force of the argument and indicated that it would be “desirable” for the Court of Appeal to consider it. 25. The Secretary of State appealed the decision of Collins J. 26. On 14 September 2007 the Parole Board convened to consider Mr James’ case. His representative applied for a deferral of the hearing on the grounds that the absence of a satisfactory life sentence plan and the non-availability of relevant offending behaviour courses meant that the Parole Board would be unable to carry out a sufficiently informed risk assessment to decide whether the test for release was satisfied, referring to the conclusions of the Parole Board in the case of Mr Wells (see paragraph 49 below) and in the case of Walker. He further advised the Parole Board that the case of Walker was pending before the Court of Appeal. In the circumstances the Parole Board agreed that the hearing before it would serve no useful purpose and directed that the hearing be deferred until after the determination of the appeal in Mr James’ case and in the case of Walker. The Parole Board hearing was re-listed for January 2008. 27. The Court of Appeal heard the appeal in Mr James’ case together with the appeal in Walker in November 2007. 28. On 21 December 2007 Mr James was transferred to HMP Lindholme, a first stage prison. 29. On 1 February 2008 the Court of Appeal allowed in part the appeal of the Secretary of State in Mr James’ case, holding that his continued detention following the expiry of his tariff was not unlawful in light of the express terms of section 225 of the 2003 Act and section 28 of the 1997 Act, which rendered detention lawful until the Parole Board was satisfied that he was no longer dangerous (see paragraphs 128 and 139-142 below); and that the detention would not cease to be justified under Article 5 § 1 (a) of the Convention until it was no longer necessary for the protection of the public that Mr James be detained or so long had elapsed without a meaningful review of the question that the detention had become disproportionate or arbitrary. However, it upheld the declaration made in Walker that the Secretary of State had breached his public law duty. 30. Lord Phillips of Worth Matravers CJ, delivering the judgment of the court, considered the primary object of the IPP sentence to be clear from the wording of sections 224 and 225 of the 2003 Act (see paragraphs 124-125 below), namely to detain in prison serious offenders who posed a significant risk to members of the public of causing serious harm by the commission of further serious offences until they no longer posed such a risk. He noted that in a previous case the Secretary of State had conceded that it would be irrational to have a policy of making release dependent upon the prisoner undergoing a treatment course without making reasonable provision for such courses, and that his position in the present case was that the concession stood. As to the Secretary of State’s contention that the concession did not assist in the present case as it was for the Parole Board to decide whether to release an IPP prisoner, and not for the Secretary of State; and that it was for the Parole Board to decide what evidence satisfied it that an IPP prisoner should be released, he said: “39. We found [these] submissions lacking in realism. Courses are provided because experience shows that these are usually necessary if dangerous offenders are to cease to be dangerous. It is for this reason that performance of the appropriate courses is likely to be a prerequisite to a prisoner satisfying the Parole Board that he has ceased to be dangerous ... The reality is that the possibility for dangerous prisoners both to cease to be dangerous and to show that they have ceased to be dangerous lies largely in the hands of the Secretary of State. It has been his policy to provide the necessary courses and to do so within a time scale that gives lifers a chance to demonstrate that they are safe for release by the time that they complete their tariff periods, or reasonably soon thereafter.” 31. Lord Phillips referred to the decision of the Secretary of State to bring into force the provisions introducing IPP sentences without having first ensured that there existed the necessary resources to give effect to the policy that would ordinarily have given IPP prisoners a fair chance of demonstrating to the Parole Board, once the time for review arrived, that they were no longer dangerous (see paragraphs 145-150 below). He continued: “40. ... This cannot simply be regarded as a discretionary choice about resources, which is pre-eminently a matter for the government rather than the courts. We are satisfied that his conduct has been in breach of his public law duty because its direct and natural consequence is to make it likely that a proportion of IPP prisoners will, avoidably, be kept in prison for longer than necessary either for punishment or for protection of the public, contrary to the intention of Parliament (and the objective of Article 5 of which Parliament must have been mindful).” 32. Having established that the Secretary of State had breached his public law duty in failing to provide the necessary courses, the court went on to examine the lawfulness of the continued detention. Lord Phillips indicated that the court could see no answer to the submission of the Parole Board and the Secretary of State that the 2003 Act made express statutory provision for the circumstances in which IPP prisoners could be released and that the Divisional Court’s judgment would require them to be released in disregard of the express requirements of the Act. He noted that section 225 of the 2003 Act made the release of IPP prisoners subject to the provisions of the 1997 Act, section 28 of which provided for the circumstances in which an IPP prisoner had to be released once he had served the tariff period. He considered that it was not possible to describe a prisoner who remained detained in accordance with these provisions as ‘unlawfully detained’ under common law, and that in any event the common law had to give way to the express requirements of the statute. 33. Lord Phillips accordingly concluded that IPP prisoners who had completed their tariff terms remained lawfully detained. 34. As to whether there was a violation of Article 5 § 4 in Mr James’ case, he distinguished between the role of treatment in changing the prisoner so that he ceased to be dangerous and the opportunity that treatment provided for assessing whether the prisoner was dangerous. He considered that without a sentence plan and monitoring of the prisoner’s performance against that plan, realistically the outcome of any review by the Parole Board would be a foregone conclusion. 35 36. Addressing the possibility of a violation of Article 5 § 1 arising on the basis that Article 5 § 4 had been violated, Lord Phillips considered that so long as the prisoner remained dangerous, his detention would be justified under Article 5 § 1 (a) whether or not it was subject to timely periodic review that satisfied the requirements of Article 5 § 4. He noted, however, that if a very lengthy period elapsed without a review, a stage could be reached at which the detention became arbitrary and no longer capable of justification under Article 5 § 1 (a). 37. On the question of the compliance with Article 5 § 1 of the continued detention in the applicant’s case, Lord Phillips noted that the primary object of the IPP sentence was to protect the public, and not to rehabilitate offenders. Accordingly, detention of the applicants would cease to be justified only when the stage was reached that it was no longer necessary for the protection of the public that they be confined, or if so long elapsed without a meaningful review of this question that their detention became disproportionate or arbitrary. He found that this stage had not yet been reached. 38. He concluded: “72. This appeal has demonstrated an unhappy state of affairs. There has been a systemic failure on the part of the Secretary of State to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the 2003 Act to function as intended. So far as the two claimants are concerned the appropriate remedy is limited to declaratory relief. For the reasons that we have given, however, the prevailing situation is likely to result in infringement of article 5(4) and may ultimately also result in infringement of article 5(1) ...” 39. Mr James appealed to the House of Lords against the judgment of the Court of Appeal. His appeal was eventually joined with the appeals in the cases of Mr Wells, the second applicant, and Mr Lee, the third applicant. 40. While the appeal was pending, a full Parole Board review in respect of Mr James took place on 14 March 2008. Mr James had still been unable to undertake the recommended courses. The Parole Board had before it, in addition to the hearing dossier: a victim contact report; MALRAP (Multi Agency Lifer Risk Assessment Panel) minutes dated January 2006; a report by an external psychologist dated 7 March 2008; a progress report from an HMP Lindholme Life Manager, dated 12 March 2008; and a report prepared by the intended supervising probation officer dated 12 March 2008. The Parole Board also heard oral evidence. 41. At the hearing, Mr James requested his release and undertook to comply with the proposed licence conditions. The Secretary of State was of the view that Mr James should remain in closed conditions for the completion of the coursework. The Parole Board noted that a release plan had been constructed for Mr James involving his accommodation at a hostel and further cognitive skills work, relapse prevention work and the completion of the CALM course to be conducted in the community. Following the hearing, the Parole Board directed Mr James’ release on licence, explaining: “The panel noted the strong recommendations for your release and therefore took some time to gain an understanding from you of your responses and attitudes; they were satisfied, within your intellectual boundaries, that you have achieved a level of understanding and insight which mean that you will willingly engage with the careful structure of the Westgate hostel which has been outlined for you. The panel recognised that further work is required ... but after careful consideration of all available evidence the panel saw that work as developmental more than core risk reduction and agreed ... that your risk of violent offending has now reached a level such that it could safely be managed within the community ... In making their decision the panel recognised that their decision was exceptional: however, the reasons for their conclusions have been clearly set out ...” 42. On 28 March 2008 Mr James was released on licence. 43. On 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-121 below), finding that there had been no violation of Article 5 §§ 1 or 4 in Mr James’ case. 44. Mr Wells was convicted of the attempted robbery of a taxi driver. He had previous convictions for both violent and acquisitive offences, linked to the misuse of drugs. On 14 November 2005 he was sentenced at Bolton Crown Court to an IPP sentence with a tariff of 12 months, less 58 days spent on remand. Pre-sentence reports assessed him at high risk of reconviction but as posing a low risk of causing serious harm save for a medium risk with regard to prison staff. 45. In March 2006 HMP Forest Bank, the local prison where Mr Wells was at that time detained, reported that he was motivated to address his offending behaviour but was having difficulties in prison and had seven adjudications against him. The report recommended that he engage in programmes for PASRO, ETS, CALM and Victim Awareness. None of these, however, were available to him at HMP Forest Bank. 46. Mr Wells’ tariff expired on 17 September 2006. A Parole Board hearing was fixed for 25 October 2006. However the dossier in his case was not available and was only received by his solicitor and the Home Office on 9 November 2006. As a result, the hearing did not take place. Further Parole Board hearings were fixed for 18 January 2007 and 29 March 2007 but had to be deferred because insufficient Parole Board members were available. A hearing was subsequently fixed for 9 May 2007. 47. On 23 March 2007 Mr Wells issued an application for judicial review seeking an order that his case should be heard by the Parole Board forthwith, relying on Article 5 § 4 of the Convention. 48. On 19 April 2007, on the Parole Board’s concession, Sullivan J made a declaration that Mr Wells’ rights under Article 5 § 4 had been violated and ordered the Parole Board to hear Mr Wells’ case on 9 May 2007. He adjourned the judicial review proceedings for evidence to be served and for consideration to be given to whether it would be appropriate to grant any further declaratory relief. 49. The Parole Board heard Mr Wells’ case on 9 May 2007. However, on 15 May 2007 it decided not to direct Mr Wells’ release, noting: “... Whilst in custody you have accumulated a number of adjudications both for drug taking and for bad behaviour. You have not undertaken any offence-focussed work. It is fair to say that that is not your fault. There are no appropriate offending behaviour courses at your current prison. The Panel accept your evidence that you would like to undertake such courses. However, this will require your move to another prison, which the prison authorities have failed to arrange ... In her most recent report your home probation officer states that your risk will remain high until you have satisfactorily completed appropriate courses, such as P-ASRO, ETS, CALM and Victim Awareness and Empathy. In evidence that probation officer urged the panel to release you so that you could undertake these courses in the community subject to strict conditions ... Unfortunately it is not the remit of the Parole Board to make up for the deficiencies of the prison service. We are charged with a duty not to release life prisoners while their risk of serious offending remains high. Because you have not been able to do any of the appropriate courses you are unable to demonstrate any reduction in risk from the time of your sentence. Because your risk remains high, the Panel cannot direct your release as requested.” 50. Following the decision of the Parole Board, the applicant pursued the judicial review proceedings, arguing that his continued detention was unlawful. His case was joined with the case of Walker. However, at the hearing Mr Wells’ counsel indicated that she was content to await the delivery of the judgment in Walker and then put in amended judicial review grounds or seek a fresh judicial review permission if either such course seemed appropriate 51. On 31 July 2007 the Divisional Court handed down its judgment in the judicial review proceedings regarding Mr Walker (Lord Justice Laws delivering an opinion with which Mr Justice Mitting agreed). Laws LJ considered that it was clear at the time the 2003 Act was passed that there was a settled understanding shared by Government, relevant agencies and professionals that upon the coming into force of the new sentencing provisions, procedures would be put in place to ensure that courses in prison would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time their tariff expired, or as soon as possible thereafter, so as to allow the prisoner’s release once that was shown. He was of the view that this understanding was a premise of the legislation, and that it was certainly inherent in the way the legislation was intended to work in practice, and to be given effect by the Secretary of State’s policy set out in PSO 4700 (see paragraphs 145-150 below). 52. As to the numbers of IPP sentences imposed and the evidence of how the system had operated in practice, he said: “28. ... Statistics ... show that the number of serving lifers was 5,475 on 30 November 2003 (the 2003 Act was passed on 18 December 2003), 5,807 on 31 March 2005 (s.225 came into force on 4 April 2005) and 8,977 on 31 March 2007. Mr Robson accepts there was an increase in the lifer population of 31% in 2006. On 20 April 2007 there were 2,547 prisoners serving IPP (the median tariff for IPP prisoners at April 2006 was 30 months). Yet the number of funded first stage and second stage prison places, within the meaning of PSO 4700, has not risen since April 2005 (though the number of core offending behaviour courses has risen from 13,265 in 2004/2005 to 16,959 in 2006/2007) ... Mr Robson [Deputy Head of the Public Protection Unit at the National Offender Management Service] believes ... that in present circumstances the Prison Service can deal ‘satisfactorily’ with about 6,500 lifers. IPP prisoners with a tariff of less than five years are languishing in local prisons where, as Mr Robson acknowledges ..., there are few offending behaviour programmes ... The stark consequence is that IPP prisoners, or at least a very high proportion of them, at present have no realistic chance of making objective progress, with the assistance of appropriate initiatives within the prison, towards a real reduction or even elimination of their risk factor by the time their tariff expires.” 53. Laws LJ explained that the tariff element of the IPP sentence fulfilled the aims of punishment, while the post-tariff element fulfilled the aim of public protection. He considered that the justification that was required for a prisoner’s detention after tariff expiry was not at all justified by or at the time of sentence, because the extent to which, or the time for which, the prisoner would remain a danger was unknown at the time of sentence. It could only be ascertained on a continuing basis, by periodic assessment. Laws LJ emphasised that section 225(1)(b) of the 2003 Act (see paragraph 124 below) required the sentencing court to assess the presence or absence of danger, and its extent, at the time of sentence, and not at any other time. Accordingly, when sentence was passed it was not to be presumed against the prisoner that he would still be dangerous after his tariff expires, let alone months or years later. To the extent that the prisoner remained incarcerated after tariff expiry without any current and effective assessment of the danger he posed, his detention could not be justified and was therefore unlawful. 54. Granting Mr Walker’s application for judicial review, Laws LJ concluded: “48. ... The Crown has obtained from Parliament legislation to allow – rather, require: the court has no discretion – the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment are satisfied. But this further detention is not arbitrary. It is imposed to protect the public. As soon as it is shown to be unnecessary for that purpose, the prisoner must be released (see ss.28(5)(b) and 28(6)(b) of the 1997 Act). Accordingly there must be material at hand to show whether the prisoner’s further detention is necessary or not. Without current and periodic means of assessing the prisoner’s risk the regime cannot work as Parliament intended, and the only possible justification for the prisoner’s further detention is altogether absent. In that case the detention is arbitrary and unreasonable on first principles, and therefore unlawful. 49. Such a consequence would not be averted merely by prompt and regular sittings of the Parole Board ... Periodic reviews by the Parole Board (or any person or institution) only have value to the extent that they are informed by up-to-date information as to the prisoner’s progress. So much is at least required. But so also are measures to allow and encourage the prisoner to progress, for without them the process of review is a meaningless one ... Reducing the risk posed by lifers must be inherent in the legislation’s purpose, since otherwise the statutes would be indifferent to the imperative that treats imprisonment strictly and always as a last resort. Whether or not the prisoner ceases to present a danger cannot be a neutral consideration, in statute or policy. If it were, we would forego any claim to a rational and humane (and efficient) prison regime. Thus the existence of measures to allow and encourage the IPP prisoner to progress is as inherent in the justification for his continued detention as are the Parole Board reviews themselves; and without them that detention falls to be condemned as unlawful as surely as if there were no such reviews.” 55. An OASys (Offender Assessment System) report dated 18 December 2007 rated Mr Wells as being at high risk of reconviction and as posing a high risk of harm to the public. 56. On 29 March 2008 Mr Wells was recommended for the same courses as had been recommended two years previously (see paragraph 45 above) and which still remained unavailable to him. 57. On 29 May 2008 Mr Wells’ supervisor recorded his “almost intolerable” frustration with his lack of progress. 58. Mr Wells issued a second judicial review application on 4 June 2008, arguing that his continued detention constituted a breach of his rights under Article 5 §§ 1 and 4. His case was joined with that of the third applicant in the present case, Mr Lee. 59. On 25 June 2008 Mr Wells completed an Alcohol Free Good Life course. 60. On 26 June 2008 Mr Wells was transferred to HMP Risley. 61. On 25 July 2008 Lord Justice Moses handed down his judgment in the judicial review proceedings involving Mr Wells and Mr Lee. He indicated at the outset: “2. Their cases highlight the fundamental difficulty inherent in IPP sentences where short minimum terms have been imposed. That difficulty has now been recognised by the amendment to the law. That fundamental difficulty was the failure to ensure that there were in place methods not only of timely assessment as to whether a prisoner remained dangerous, but also systems, such as accredited courses which would enable a prisoner to reduce or extinguish his level of dangerousness and to demonstrate that he had done so to the satisfaction of the Parole Board.” 62. Considering the applicants’ Article 5 § 1 complaint, Moses LJ considered it essential to identify the objectives which were sought to be achieved by the original imposition of the IPP sentence. Like Laws LJ, he indicated that there could be no assumption that, although a prisoner had been regarded as dangerous at the time when the original sentence was imposed, he would remain dangerous throughout his time in prison, although he added that the amount of time which had passed since sentence or the offender’s behaviour in prison could provide ample justification for such a conclusion. 63. Moses LJ emphasised that it was for the Parole Board to assess the danger posed by a prisoner: if the Parole Board was in a position to judge that the prisoner remained a danger, it could not direct his release even if the reason it reached its conclusion was through no fault of the prisoner’s but rather because the Secretary of State had deprived him of the opportunity of reducing his level of dangerousness or of demonstrating that he had ceased to be a danger. He considered that where the Parole Board was entitled on the material before it to reach a conclusion that the prisoner remained a danger, there could be no breach of Article 5 § 1 as the primary objective and rationale for his continued detention remained. However, he contrasted this position with one where, by reason of the lack of course work, the Parole Board could not determine the level of dangerousness. In such circumstances, the justification for continuing to detain him would no longer exist, and there would be a breach of Article 5 § 1. He concluded that there would have to be clear evidence before the court that the failure to provide courses and opportunity for assessment with up-to-date information had led to a situation where it could safely be concluded either that the prisoner was not a danger or that it could not be ascertained whether he was a danger or not. 64. In respect of Mr Wells, he concluded that there had been no breach of Article 5 § 1, noting: “31. ... The evidence shows that Mr Wells has been frustrated by the lack of progress which was inevitable following the loss of opportunity to go on those courses which he sought to attend. It is dispiriting to record that position when one appreciates that he is still a very young man and was only 22 when the sentence was originally passed. But the fact of the matter remains that the evidence before this court is that on assessment he remains at risk of reconviction, a risk assessed as high/medium with some risk of violent offences. Until he undergoes the accredited work, his past, coupled with his prison behaviour, affords what is described as an indication of the nature of the ongoing risk. It requires no imagination to appreciate that the frustration which has led to his bad behaviour in prison has no doubt been aggravated by the fact that he has been unable to undergo the necessary programmes of work. But that of itself does not break the link between the purpose for which the original sentence was passed and his continuing detention. There is no basis for saying that the current level of dangerousness cannot be ascertained, and, in those circumstances, no basis for saying that the link between the original sentence and his continued detention has been broken.” 65. However, he found that the continuing failure to provide the relevant courses following the declaration of Sullivan J amounted to a breach of Article 5 § 4 of the Convention. 66. Mr Wells appealed the finding that there had been no breach of Article 5 § 1. The Secretary of State did not appeal the finding that there had been a breach of Article 5 § 4. 67. Mr Wells subsequently completed the PASRO course (between 22 August and 26 September 2008) and the ETS course (between 28 October and 3 December 2008). 68. On 11 December 2008 the Court of Appeal adjourned the appeal for inquiries to be made about an appeal from the decision of Moses LJ direct to the House of Lords. On 17 December 2008 Moses LJ certified that the cases involved points of law of general public importance in respect of which the judge was bound by the Court of Appeal decision in Walker and James (see paragraphs 29-38 above) and which were fully considered by the Court of Appeal in that appeal. The House of Lords subsequently heard Mr Wells’ appeal, together with the appeals of Mr James and Mr Lee, between 27 and 29 January 2009. 69. On 27 February 2009 Mr Wells requested a Parole Board hearing. 70. Mr Wells subsequently completed the CALM course (between 6 January 2009 and 3 March 2009). 71. On 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-121 below) and found that there had been no violation of Article 5 § 1 in Mr Wells’ case. It also disagreed with the unappealed finding of Laws LJ that there had been a violation of Article 5 § 4. 72. A Parole Board hearing took place in Mr Wells’ case on 6 November 2009. The Parole Board directed that Mr Wells be released on 30 December 2009. 73. On 23 February 2010 Mr Wells was recalled to custody for breaching the conditions of his licence. He currently remains in custody. 74. On 13 April 2005, while under the influence of alcohol, Mr Lee caused criminal damage to a flat in which his former wife and young children were present. He was arrested and remanded in custody the following day. He had a total of eight previous convictions, including offences of assault occasioning actual bodily harm and criminal damage. Following his conviction, on 2 September 2005 Mr Lee was sentenced at Bolton Crown Court to an IPP sentence with a tariff of nine months, less time spent on remand. His tariff period therefore expired 163 days after sentence. 75. A probation officer’s pre-sentence report assessed Mr Lee as a medium risk of reconviction but a high risk of causing serious harm to Mrs Lee “or alternatively any other woman with whom he may form a close attachment”. A consultant forensic psychiatrist said that during childhood Mr Lee had developed a range of emotional and behavioural problems with poor temper control and had a limited ability to cope with stress. He concluded that Mr Lee could therefore be said to suffer from a personality disorder with a mixture of dissocial, emotionally unstable and obsessional traits. 76. Following sentence, reports at his local prison, HMP Forest Bank, described Mr Lee as motivated to change and actively seeking out offending behaviour programmes. However, none of the relevant courses were available to him. 77. Mr Lee’s tariff expired on 12 February 2006. 78. A Parole Board hearing took place on 30 June 2006 and the Board decided not to direct Mr Lee’s release. The Parole Board noted that: “The risk factors identified by Dr Wilson have yet to be addressed by attendance at offending behaviour programmes. Through no fault of your own these have not been available, but the Panel note your willingness and motivation to engage in the same.” 79. It concluded that: “... the alcohol and violence risk factors must be addressed in closed conditions before your risk is sufficiently reduced to enable you to be transferred to open conditions.” 80. In a report dated 13 August 2007 the prison probation officer reported that “due to the current overcrowding and difficulties with allocation of IPP prisoners to first stage lifer prisons, Mr Lee has not had the opportunity to sit a sentence plan Board” and that he needed accredited courses. 81. The Parole Board fixed a further review of Mr Lee’s case to take place in January 2008. However, the hearing was postponed due to the failure of the authorities to provide the necessary assessments and reports. 82. Mr Lee issued a judicial review claim on 27 February 2008 alleging that his detention breached Article 5 §§ 1 and 4. His case was joined with that of the second applicant, Mr Wells. 83. On 7 March 2008 Mr Lee was transferred to HMP Wymott where a number of assessments were carried out. On 20 June 2008 it was recommended that Mr Lee be assessed for the Healthy Relationships Programme (“HRP”) to explore what psychological risk factors were present. 84. In the context of the judicial review proceedings, the Secretary of State made the following concession: “the defendant concedes that Mr Lee has not had a speedy review of the lawfulness of his detention and thus there has been a breach of article 5(4) in this case.” 85. As noted above (see paragraph 61), judgment in the judicial review claim was handed down on 25 July 2008. Specifically as regards Mr Lee’s claim, Moses LJ noted that there has been a very serious failure to provide the courses which he should have attended not only to reduce his level of dangerousness but to demonstrate that he had done so. Moses LJ also recalled that Mr Lee would not have ever been sentenced to IPP under the amended IPP regime (see paragraphs 134-138 below). He observed that the reports available showed a dramatic change in Mr Lee’s attitude and in his character, and that he had proved a model prisoner. There was therefore ample material to suggest that he was not a danger but, he emphasised, that assessment was the function of the Parole Board and not of the court. However, the court was nonetheless required to determine whether the continued detention of Mr Lee was lawful, a question which could not be deferred to the Parole Board. 86. On the facts of the case, Moses LJ concluded that there had been no violation of Article 5 § 1 in Mr Lee’s case: “46. In Lee’s case, there is, as I have said, much material to show a recognisable difference in the level of danger from that which pertained when he was originally sentenced. But that is not an end of the matter. There has been laid before the court material from a forensic psychologist in training based at Her Majesty’s Prison Wymott. That psychologist has reached the conclusion that there are areas relevant to Mr Lee’s risk of committing violence within the domestic context in the future which, as she puts it, need to be targeted, and until those matters have been ‘targeted’, she takes the view that the overall risk of domestic violence is medium to high ... Given that conclusion ... she recommends further treatment under an accredited programme known as the Healthy Relations Programme in closed conditions. It will be for the Parole Board to say whether it agrees with that conclusion, and the hearing before the Parole Board will no doubt permit not only that conclusion to be challenged, but also the process by which she reached that conclusion ... 47. All of that leads to my conclusion that it is not possible on the material before me to say that it cannot be ascertained whether Mr Lee remains a danger or not, and thus the causal link between the original sentence and his continuing detention has been broken. In those circumstances, I decline to find in his case also a breach of article 5(1).” 87. Mr Lee appealed the finding of Moses LJ that there had been no violation of Article 5 § 1 in his case. His appeal was heard directly by the House of Lords together with the appeal of Mr Wells. 88. Also on 25 July 2008 the Parole Board reviewed Mr Lee’s case. However, it deferred its decision until receipt of Moses LJ’s judgment (which it did not receive until 6 October 2008). 89. On 18 September 2008 Mr Lee was transferred to HMP Erlestoke to be assessed for the moderate version of the HRP. 90. On 24 October 2008 the Parole Board again deferred its review of the case until after Mr Lee’s assessment for and, if appropriate, completion of the moderate HRP. It was anticipated that this would be done by January 2009. 91. Mr Lee was due to commence the three-month HRP programme on 30 October 2008. In the event, he did not do so, for reasons which are in dispute between the parties. A psychologist report dated 1 December 2008 recorded that there were aspects of the course which Mr Lee did not wish to undertake because of his concern about their impact on his mental health as he had previously suffered from depression. She concluded that Mr Lee should complete an accredited domestic violence programme preceded by motivational enhancement work. However, such motivational enhancement work was not available at HMP Erlestoke in the short term. 92. The Parole Board issued a decision on 22 December 2008 expressing concern about recent developments: “In summary, it would appear that Mr Lee’s current sentence plan is that he should remain in closed conditions in HMP Erlestoke doing nothing to reduce his risk until he is prepared voluntarily and without support to ask to see ... a psychologist and then persuade that psychologist that he is sufficiently motivated to undertake the Moderate HCP, that he is then assessed as suitable for that programme and then await the next available place on that course and then completes that programme. This impasse could continue indefinitely. The Secretary of State and those concerned with Mr Lee’s sentence and current status as a category C prisoner do not appear to have considered whether it is proportionate to continue to detain Mr Lee.” 93. On 12 January 2009, the Parole Board adopted another decision, in which it summarised the position regarding Mr Lee: “Mr Lee will not be offered one-to-one work nor will he be provided with motivational work to assist him in overcoming his fears about taking the moderate HRP. The offender manager has not made any proposals as to the way forward save that, if Mr Lee unilaterally changes his mind and demonstrates (in ways not specified) that he is prepared to take the moderate HCP, he can then be assessed for that programme and, if assessed as suitable, take the programme and as part of that programme be risk assessed. The initial assessment for suitability is not a risk assessment but merely a programme selection process to test motivation and ability to understand and participate in the programme. No timetable for this open-ended sentence pathway is offered and Mr Lee’s future in closed conditions is apparently both open ended and not subject to any finality save for that provided for by the Parole Board at the current or any future review hearing.” 94. As noted above, on 6 May 2009 the House of Lords published its judgment in the three linked appeals (see paragraphs 100-121 below). It found that there had been no violation of Article 5 § 1 in Mr Lee’s case. It further disagreed with the concession of the Secretary of State that Article 5 § 4 had been breached. 95. A hearing of the Parole Board took place on 7 May 2009. In the week prior to the hearing, Mr Lee was assessed by a senior forensic psychologist. His concerns regarding the HRP were discussed and he demonstrated a willingness and motivation to participate in the HRP. It was therefore arranged that Mr Lee would commence the HRP “in the near future” at HMP Erlestoke, with a view to completion in October 2009 and a report being available by January 2010. The Parole Board hearing was adjourned to the first reasonably practicable date after 22 February 2010. 96. A Parole Board hearing took place in Mr Lee’s case on 29 March 2010. In a reasoned decision dated 7 April 2010, the Parole Board declined to direct Mr Lee’s release but recommended a transfer to open conditions. The Parole Board noted: “... In summary, having balanced your interests in sentence progression against the interests of public protection, the panel were satisfied that sufficient evidence exists that your risk of violent offending has been reduced to a level such that ... it is safely manageable in open prison conditions. The panel did not consider that sufficient evidence of risk reduction exists to enable them to make a direction that you be released; there is a necessity, in the panel’s view (in the interests of public protection), for there to be a period of testing and gradual reintegration into the community before release.” 97. The Secretary of State authorised a transfer to open conditions on 4 May 2010. 98. On 1 October 2010 Mr Lee was transferred to HMP Kirkham. The delay in the transfer was due to transportation problems in the prison estate. 99. A Parole Board hearing took place on 11 July 2011. On 25 July 2011 the Parole Board directed Mr Lee’s release. In its decision letter, the Parole Board noted, inter alia: “(g) You are five years over tariff. (h) You were one of the first prisoners to be sentenced for public protection, at a time when dangerousness was, by statute, assumed, and there was no real assessment of your actual dangerousness despite a probation report indicating that a suspended sentence would be the appropriate disposal.” 100. On 6 May 2009 the House of Lords unanimously dismissed the applicants’ appeals. 101. Lord Judge referred to the five specific purposes of sentencing set out in section 142(1) of the 2003 Act (see paragraph 132 below), which included reform and rehabilitation of offenders and protection of the public. However, he noted that this section was expressly disapplied to IPP sentences and considered the reason to be plainly that the first and obvious purpose of these provisions was the protection of the public from the risks posed by dangerous offenders. A second purpose was punishment, which was not concerned with the potential dangerousness of the offender. 102. In his view, the sentencing court was required to make an informed predictive assessment of the risk at the date of sentence, and that the justification for detention beyond the tariff period was therefore found in the judgment of the court that an IPP sentence was necessary. Disagreeing with the views expressed by Laws LJ and Moses LJ (see paragraphs 53 and 62 above), he indicated that in his judgment detention beyond the tariff period was justified because the sentencing court had decided that the prisoner would continue to be dangerous at the expiry of the punitive element of the sentence: the necessary predictive judgment would have been made. He explained that the statutory regime for dealing with indeterminate sentences was predicated on the possibility that, in most cases, prisoners could be reformed or would reform themselves. A fair opportunity for their rehabilitation and the opportunity to demonstrate that the risk they presented at the date of sentence had diminished to levels consistent with release should therefore be available to them. He continued: “ ... The IPP sentence does not require the abandonment of all hope for offenders on whom it is imposed. They are not consigned to penal oblivion. To the contrary, common humanity, if nothing else, must allow for the possibility of rehabilitation ... 106. We cannot be blind to the realities. The reality for the offender subject to IPP is that the prison regime in which he may (or may not) be provided with the opportunity for rehabilitation is dependent on the structures provided by the Secretary of State. The similar reality for the Parole Board is that the material on which to form its decision that the offender may (or may not) have ceased to represent a public danger is equally dependent on the regime structured for this different purpose by the Secretary of State.” 103. Finally, Lord Judge considered that it was an inevitable consequence of the legislation, and the application of the statutory presumption in section 229(3) of the Act (see paragraph 129 below), that even when the tariff was measured in months rather than years, IPP sentences would arise for consideration. He explained that sentencing judges loyally followed the unequivocal terms of the statute and very many more defendants than anticipated were made subject to IPP sentences. However no extra resources were made available to address the inevitable increase in the number of inmates subject to indeterminate custody, and the result was the “seriously defective structures” identified in the applicants’ cases. He noted that numerous prisoners continued to be detained in custody after the expiration of their tariff periods, without the question either of their rehabilitation or of the availability of up-to-date, detailed information becoming available about their progress. He concluded that the preparation for the inevitable consequences of the new sentencing provisions relating to IPP sentences was wholly inadequate and continued: “121. ... To put it bluntly, they were comprehensively unresourced ... 122. Notwithstanding the undoubted improvements, the appellants and indeed other prisoners were victims of the systemic failures arising from ill considered assumptions that the consequences of the legislation would be resource-neutral. Having applied the identical policies and rules relating to life imprisonment to IPPs, the Secretary of State failed to provide the resources to implement them. As tariff periods expired, nothing had been done to enable an informed assessment by the Parole Board of the question whether the protection of the public required the prisoner’s continued detention ...” 104. Several others of their Lordships commented on the problems incurred following the entry into force of the legislation introducing IPPs. Lord Hope of Craighead indicated that the Secretary of State had failed deplorably in the public law duty that he had accepted when he persuaded Parliament to introduce IPP sentences. He had failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. He observed that the Secretary of State had accepted that it was implicit in the statutory scheme that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released; the scheme was such that it was not rational for him to fail to do so. 105. Lord Carswell referred to the “draconian provisions” of section 225 of the 2003 Act (see paragraphs 124-128 below), which he said left no room for the exercise of any judicial discretion and created entirely foreseeable difficulties when sentences for imprisonment for public protection were passed with short tariff terms. 106. Lord Brown of Eaton-under-Heywood noted that IPP prisoners rapidly swamped the prison system with increasing numbers of life sentence prisoners, many with comparatively short tariffs. As a consequence, for much if not all of the time until the amendment of section 225 in July 2008 (see paragraphs 134 and 138 below), it was not possible to give effect to the Secretary of State’s published policy to give all life sentence prisoners “every opportunity to demonstrate their safety for release at tariff expiry” (see paragraph 150 below). 107. He later added: “65. ... I cannot, however, part from this case without registering a real disquiet about the way the IPP regime was introduced. It is a most regrettable thing that the Secretary of State has been found to be – has indeed now admitted being – in systemic breach of his public law duty with regard to the operation of the regime, at least for the first two or three years. It has been widely and strongly criticised, for example by the Select Committee on Justice. Many of the criticisms are to be found in the judgments below and I shall not repeat them. The maxim, marry in haste, repent at leisure, can be equally well applied to criminal justice legislation, the consequences of ill-considered action in this field being certainly no less disastrous. It is much to be hoped that lessons will have been learned.” 108. As to whether there had been a violation of Article 5 § 1 of the Convention, Lord Hope referred to this Court’s jurisprudence on the need for a causal connection between the sentence and the detention and concluded that it was hard to see how there could ever be an absence of such a causal connection in the case of a prisoner whose case has been referred to, and was still under consideration, by the Parole Board. He considered that such a prisoner’s continued detention could not be said to be arbitrary, or in any other sense unlawful, until the Parole Board had determined that detention was no longer necessary. 109. However, he envisaged limited circumstances in which detention could become arbitrary, namely in circumstances where the system broke down entirely, with the result that the Parole Board was unable to perform its function at all. Continued detention could be said to be arbitrary in such a case because there was no way in which it could be brought to an end in the manner that the original sentence contemplated. However, in Lord Hope’s view, the failures for which the Secretary of State accepted responsibility, while highly regrettable, could not be said to have created a breakdown of that extreme kind. 110. Lord Brown noted the Secretary of State’s acknowledgment that it was implicit in the statutory scheme that he would make reasonable provision to enable IPP prisoners to demonstrate to the Parole Board, if necessary by completing treatment courses, their safety for release, and his concession that during the systemic failure to make such provision he was in breach of his public law duty. As to whether the provision of such courses was one of the objectives of the IPP sentence, Lord Brown, like Lord Judge, emphasised that the sentencing objectives were expressly disapplied in the case of IPP sentences and that rehabilitation was accordingly not an objective of the sentence. Thus a decision not to release an IPP prisoner because the Parole Board remained unsatisfied of his safety for release could never be said to be inconsistent with the objectives of the sentencing court or to have no connection with the objectives of the legislature and the court. 111. Lord Brown concluded that the only possible basis upon which Article 5 § 1 could ever be breached in these cases was that contemplated by the Court of Appeal in James and Walker, namely after “a very lengthy period” without an effective review of the case (see paragraph 36 above), involving an inability on the part of the Parole Board to form any view of dangerousness for a period of years rather than months. 112. On the question of compliance with Article 5 § 1, Lord Judge agreed with the conclusions of Lord Brown. He considered that if one of the purposes of an IPP were rehabilitation, and if the continued detention after the expiry of the tariff period were dependent on a specific finding by the Parole Board that it would be inappropriate to direct the prisoner’s release, then it would be arguable that the causal link was broken. However, in his view that proposition was ill-founded. 113. Lord Judge concluded: “128. ... I should not exclude the possibility of an article 5(1) challenge in the case of a prisoner sentenced to IPP and allowed to languish in prison for years without receiving any of the attention which both the policy and the relevant rules, and ultimately common humanity, require.” 114. The question whether there had been a violation of Article 5 § 4 of the Convention remained live solely in respect of Mr James. Lord Hope referred to the principles set out by this Court in A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009 and considered that the procedure and the role of Parole Board complied with these principles. 115. Lord Hope concluded that there had been no violation of Article 5 § . He further indicated that, in his view, the Court of Appeal in James and Walker went too far in terms of this Court’s jurisprudence when it said that the claimants’ Parole Board reviews would be an empty exercise that would be likely to result in a breach of Article 5 § 4 if they were unable to make a meaningful challenge to the lawfulness of their detention at the time their cases were heard by the Parole Board (see paragraph 35 above). He indicated that Article 5 § 4 required that a system which met the requirement of procedural fairness be in place for making an assessment at reasonable intervals; how that system worked in practice in any given case was a matter for the Parole Board itself to determine and it was open to it to decide how much information it needed. It would only be if the system broke down entirely because the Parole Board was denied the information that it needed for such a long period that continued detention had become arbitrary that Article 5 § 4 would be violated and the prisoner would be entitled to a remedy in damages. 116. Lord Brown noted that the Parole Board dossier would always contain a good deal of information. He observed that even when, as in Mr James’ case, it never became possible to provide the Board with a full risk assessment, the Parole Board was in fact able to determine risk and order his release largely through the evidence of an independent psychologist commissioned by Mr James himself, and the Court of Appeal’s own forecast was thus belied. However, he accepted that there would be occasions when, unless a prisoner could undertake a course necessary to demonstrate his safety for release, it would be impossible for the Parole Board to reach any judgment as to his dangerousness so that the review would in that sense be an empty exercise and the default position of continued detention would inevitably result. 117. As to whether the Secretary of State’s concession that in such cases Article 5 § 4 would be breached, he concluded that the Article required no more than that a court, in this case the Parole Board, had to decide speedily whether the prisoner continued to be lawfully detained. He accepted that it was inherent in this requirement that the basic dossier be made available, but he did not accept that it required anything more in the way of enabling the parole Board to form its judgment. 118. Lord Brown therefore held that Mr James Article 5 § 4 claim failed. He further regarded Mr Lee’s and Mr Wells’ claims as having been unsustainable, but since the former was conceded and the latter held established and unappealed, he considered that there was no alternative but to remit their claim for damages to the Administrative Court for assessment, referring to the terms of Article 5 § 5 of the Convention. 119. Lord Judge considered that Article 5 § 4 was not directed to the operational inadequacies of a prison regime which might make it impossible for the prisoner to address his offending with a view to his reform and rehabilitation. It addressed a prisoner’s ability to take proceedings to demonstrate that his continued detention was no longer justified just because the basis on which it would otherwise continue no longer applied. He agreed with Lord Brown’s conclusions about the proper disposal of the Article 5 § 4 claims of Mr Wells and Mr Lee. 120. Although no violation of Article 5 § 1 was found in the applicants’ cases, and thus the question of remedies did not fall to be decided, some views were nonetheless expressed as to the availability of remedies had the court held that there was a violation of Article 5 § 1. Lord Hope noted that Mr James was no longer in custody, so the remedy which he seeks is compensation for delay in his being released. Mr Lee and Mr Wells, on the other hand, were still serving their sentences, and so sought a direction that they should be released, and compensation for delay. He noted that these remedies were not available at common law. He continued: “8. The question then is whether the appellants are able to show that the Secretary of State has acted in a way which was incompatible with their Convention rights. If he has, his act is made unlawful by section 6(1) of the Human Rights Act 1998. This in turn opens up the possibility of obtaining a judicial remedy under section 8, which enables the court to award damages. But regard must also be had to section 6(2)(a) of the 1998 Act, which provides that section 6(1) does not apply to an act if, as a result of one or more provisions of primary legislation, the public authority could not have acted differently. The effect of that provision is to narrow the scope for argument as to the respects in which the Secretary of State’s conduct was unlawful within the meaning of section 6(1). 9. Section 28(7) of the 1997 Act provides that a prisoner to whom that section applies may require the Secretary of State to refer his case to the Parole Board at any time after he has served the minimum term ordered by the sentencing judge. It has not been suggested by the appellants that the Secretary of State was in breach of that duty in their cases. The effect of section 28(5), which provides that it is the duty of the Secretary of State to release the prisoner on licence when directed to do so by the Parole Board, is that he has no power to release the prisoner until the Parole Board gives him that direction. Notwithstanding the criticisms that may be made of the Secretary of State’s failure to provide the means by which the appellants could demonstrate to the Parole Board that their continued detention was no longer necessary, the terms of the legislation are such that it cannot be said that he was acting unlawfully in not releasing them until directed to do so by the Parole Board. The court, for its part, would not be acting unlawfully if it too declined to order their release until the Parole Board was satisfied that it was no longer necessary for the protection of the public that they should be confined. Section 6(2)(a) of the 1998 Act leads inevitably to these conclusions.” 121. Lord Brown noted considered that, had the applicants succeeded on their Article 5 § 1 claims, section 6(2)(a) of the Human Rights Act 1998 would have presented them with acute difficulty because, given section 28 of the 1997 Act, it was difficult to see how either the Secretary of State or the Parole Board could have acted differently. However, he concluded that in light of the findings on the substantive claims, such discussion was academic and he preferred to express no further view upon the question. 122. Before the entry into force of the IPP provisions in the Criminal Justice Act 2003 on 4 April 2005, section 80 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) already provided for a longer than commensurate sentence to be passed on dangerous offenders. 123. Any longer than commensurate sentence imposed under section 80 remained a determinate (i.e. fixed) sentence and release was subject to the ordinary principles which applied to determinate sentences. 124. IPP sentences were introduced with effect from 4 April 2005 by section 225 of the 2003 Act. The bulk of the provisions remain in force, although some were the subject of later amendment (see paragraphs 134-138 below). Pursuant to subsection (1) thereof, section 225 applies where: “(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and (b) the court is of the opinion that there is significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.” 125. “Serious offence”, defined in section 224(2), covers 153 specified categories of violent or sexual offences punishable by imprisonment for life or for ten years or more. Section 224(3) defines “serious harm” as “death or serious personal injury, whether physical or psychological”. The term “specified offences” is defined in section 224(1) and (3); almost all “specified offences” involve danger to life or limb or interference with sexual autonomy. 126. Section 225(2) provides that if the offence is one which renders the offender liable to a sentence of life imprisonment and the court considers that the seriousness of the offence is such as to justify the imposition of such a sentence, then the court must impose that sentence. 127. At the relevant time, section 225(3) provided that in a case not falling within section 225(2), the court “must impose a sentence of imprisonment for public protection”. 128. Section 225(4) defines a sentence of imprisonment for public protection as: “... a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences.” 129. Section 229 of the 2003 Act applies where a person has been convicted of a specified offence and it falls to the court to assess whether there is a significant risk to members of the public of serious harm by the commission by the offender of further specified offences posed by an offender. At the relevant time, section 229(2) provided that in making its assessment where the applicant had not previously been convicted of any relevant offence, the court: “(a) must take into account all such information as is available to it about the nature and circumstances of the offence, (b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and (c) may take into account any information about the offender which is before it.” 130. Where the offender had previous relevant convictions, that is convictions for any specified offence, section 229(3) provided that: “... the court must assume that there is [a significant risk to members of the public of serious harm by the commission by the offender of further specified offences] unless, after taking into account– (a) all such information as is available to it about the nature and circumstances of each of the offences, (b) where appropriate, any information which is before it about any pattern of behaviour of which any of the offences forms part, and (c) any information about the offender which is before it, the court considers that it would be unreasonable to conclude that there is such a risk.” 131. Section 239 of the 2003 Act provides: “(3) The [Parole] Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under ... the 1997 Act, consider– (a) any documents given to it by the Secretary of State, and (b) any other oral or written information obtained by it; and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member. (4) The Board must deal with cases as respects which it gives directions ... on consideration of all such evidence as may be adduced before it. ... (6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions ...; and in giving any such directions the Secretary of State must have regard to– (a) the need to protect the public from serious harm from offenders, and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.” 132. Section 142(1) of the 2003 Act imposed a general obligation on every court passing sentence to have regard to five specific purposes of sentencing, namely: “(a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.” 133. However, at the relevant time section 142(2)(c) expressly disapplied section 142(1) to sentences imposed under “any of sections 225-228 of the Act (dangerous offenders)”, which included IPP sentences. 134. The 2003 Act was amended by the Criminal Justice and Immigration Act 2008. In particular, IPP sentences are no longer mandatory: amended section 225 now provides that in a case not falling within subsection (2), the court “may impose a sentence of imprisonment for public protection” if the condition in subsection (3A) (“at the time the offence was committed, the offender had been convicted of an offence specified in Schedule 15A”) or subsection (3B) (the tariff which would be set together with time spent on remand is at least two years) is met. Schedule 15A sets out a list of fifty serious offences in England and Wales, Scotland and Northern Ireland. 135. Section 229, regarding the assessment of dangerousness, was also amended by the 2008 Act. Section 229(2) now provides that in making the assessment of whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, whether the individual in question has previous conviction or not, the court: “(a) must take into account all such information as is available to it about the nature and circumstances of the offence, (aa) may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world, (b) may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (aa) forms part, and (c) may take into account any information about the offender which is before it.” 136. Section 229(3) (see paragraph 130 above) has accordingly been repealed. 137. Section 142(2)(c), which previously disapplied the five sentencing objectives in IPP cases, was amended to delete the exclusion of IPP sentences from the five sentencing objectives. 138. The new provisions apply to all sentences passed on or after 14 July 2008. 139. The Parole Board is responsible for the release of prisoners sentenced to life imprisonment. Under section 28(5) of the Crime (Sentences) Act 1997 (“the 1997 Act”): “As soon as– (a) a life prisoner to whom this section applies has served the relevant part of his sentence, and (b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence.” 140. Section 28(6) provides: “The Parole Board shall not give a direction under subsection (5) above . . . unless— (a) the Secretary of State has referred the prisoner’s case to the Board; and (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.” 141. Section 28(7) provides that a life prisoner may require the Secretary of State to refer his case to the Parole Board at any time after tariff expiry and: “(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference.” 142. Section 34(1)(2)(d) of the 1997 Act (as amended by the 2003 Act) clarifies that “life prisoner” includes a person serving an IPP. 143. The Secretary of State has issued directions to the Parole Board pursuant to section 239 of the 2003 Act. Direction 6, issued in 2004, provides, in so far as relevant: “In assessing the level of risk to life and limb presented by a lifer, the Parole Board shall consider the following information, where relevant and where available, before directing the lifer’s release, recognising that the weight and relevance attached to particular information may vary according to the circumstances of each case: ... (d) whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence; ... (h) the lifer’s awareness of the impact of the index offence, particularly in relation to the victim or victim’s family, and the extent of any demonstrable insight into his/her attitudes and behavioural problems and whether he/she has taken steps to reduce risk through the achievement of life sentence plan targets...” (original emphasis) 144. Prison Service Order 6010 (“PSO 6010”) on the generic parole process came into effect on 1 April 2009. It includes detailed provisions on the dossier which should be made available to the Parole Board in the case of IPP prisoners. 145. The Secretary of State’s policy on the management and treatment of life sentence prisoners, including IPP prisoners, is primarily contained in chapter 4 of the “Lifer Manual” PSO (Prison Service Order) 4700 (“PSO 4700”). This chapter was substantially amended in July 2010 (see paragraph 151 below). 146. At the relevant time, PSO 4700 set out the various phases of detention under a life sentence: “4.1.1 A typical male lifer will generally go through the following stages of his life sentence in custody prior to release on licence: Remand Centre/Local prison First Stage – High Security/Category B Second Stage – High Security/Category B/Category C Third Stage – Category D/Open/Semi-open/Resettlement. While no two life sentences will be identical, the majority of life sentences will conform to this general pattern. It will be necessary, however, to fast-track short-tariff lifers (see 4.13 below) if they are to have the opportunity to be released on tariff expiry if risk factors permit ...” 147. It continued: “4.3.14 ... Wherever possible, lifers should be allocated to a cell on a landing ... where there are other long or medium-term prisoners. In most cases newly sentenced lifers will remain there to await a vacancy in a First Stage lifer prison. Local prisons are an integral part of the lifer system and it is at this stage that Life Sentence planning begins.” 148. Paragraph 4.3.17 continued: “... The intention is that lifers will move on from their local prison to a First Stage prison within approximately six months of the date of their sentence subject of the availability of places. Local prisons should provide lifers with information about the role and location of First Stage prisons.” 149. Paragraph 4.4.2 of PSO 4700 explained that the period spent at first stage: “is generally from 18 months upwards, but ... may be reduced for some prisoners especially those with short tariffs or those who are making exceptionally good progress.” 150. PSO 4700 contained specific provisions on short-tariff lifers: “4.13.1 Short tariff lifers are normally regarded as those who have a tariff of five years or less ... 4.13.2 Lifers with short tariffs are managed differently from lifers with longer tariffs because of the overall objective to release lifers on tariff expiry if risk factors permit. The statutory entitlement to a review by the Parole Board may for a short tariff lifer be triggered relatively shortly after conviction ... The essential elements of the policy for short tariff lifers and arrangements for their management through their period in custody are as follows: They must be prioritised for offending behaviour programmes according to the length of time left till tariff expires. The same principle must apply for all lifers, so that length of time to tariff expiry is taken into account when allocating offending behaviour programme resources. In other words, lifers must be given every opportunity to demonstrate their safety for release at tariff expiry.” (original emphasis). 151. The policy for management of indeterminate sentence prisoners was substantially amended from 12 July 2010 by PSI 36/2010, which introduced a new chapter 4. In particular, indeterminate sentence prisoners no longer have to move through set stages in order to progress through their sentences. Pursuant to Paragraph 4.1.8 of the revised policy, it must be ensured that indeterminate sentence prisoners in a given region are not disadvantaged in their ability to work towards, or demonstrate, reduction in their risk factors, particularly in terms of prospects for release post-tariff, compared to indeterminate sentence prisoners in other regions. Paragraph 4.13.1 and 4.13.2 have been replaced with the following: “4.10.1 Short tariff ISPs [indeterminate sentence prisoners] are normally regarded as those who have a tariff of three years or less ... 4.10.2 ISPs with short tariffs may need to be managed differently from ISPs with longer tariffs because of the overall aim to ensure the Parole Board has appropriate information upon which to make its risk-based decision as to whether a prisoner should be released ...The essential elements of the policy for short tariff ISPs and arrangements for their management throughout the period in custody are as follows: - all ISPs should be prioritised for interventions and offending behaviour programmes according to the risk of harm they pose and length of time left till tariff expiry. In other words, and taking into account the ISP’s own responsibility to address the risk of harm they present to the public and known victims, the ISP must be offered reasonable opportunity, as far as possible given the available resources, to address their risk factors in time for their Parole Board review. ...” 152. On 14 October 2003 in the House of Lords, during the passage of the Bill which led to the 2003 Act through Parliament, Baroness Scotland of Asthal, then Minister of State at the Home Office, explained the new provisions: “The new sentence will ensure that such offenders cannot be released until their risk is considered manageable in the community. It therefore provides for indeterminate custody for that small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety. However, that must be seen in the context of everything that we are trying to achieve in prisons; that is, first, to address the nature of the underlying offending behaviour and, secondly, to try and rehabilitate, if rehabilitation is possible, some of the more serious offenders through training, education and opportunities. I have mentioned that once an offender is in prison, there will be an assessment of the nature of his difficulties and the risks that he poses so that, while he is in prison, we can seek to address those problems. ... I reassure the noble Lord that we intend to make sure that all prisoners benefit from the risk assessment procedure. If we are able to roll it out, and we hope to be able to do so over a period of time, the Prison Service will have the kind of tools necessary to make the assessment which will help to bring about change, but which will also identify those people who may not be as amenable to change as we would like and who therefore continue to pose a risk to members of the public.” 153. In her report on HMP Doncaster, the Chief Inspector of Prisons noted: “The Prison Service has withdrawn the enhanced thinking skills programme for reasons of economy. This meant that there were no programmes for prisoners who are likely to spend a significant part of their sentence at Doncaster. This was particularly important for those who had received the new Indeterminate Sentence for Public Protection (ISPP). For these prisoners, who often have short tariff dates, the absence of any opportunity to address offending behaviour inevitably meant that they risked a longer time in custody.” 154. The Lockyer Review was commissioned by the Secretary of State to assess the seriousness of the problems facing those serving IPP sentences and to make recommendations for improving the situation. The report noted that reliance on the lifer management arrangements for dealing with all IPP prisoners had failed and that IPP prisoners were stacking in local prisons and are not moving to establishments where their needs could be assessed or better met. 155. The report continued: “1. IPPs are dealt with through the lifer system: they spend time in local prisons until space is found at a first stage life centre; intensive assessment is conducted at the first stage lifer centre; IPPs are then transferred on within the training estate for further interventions. 2. The reliance on a small number of specialised lifer centres creates a bottleneck. This prevents timely access to interventions necessary to reduce risk in some cases. Over 2500 ISPs (of which 1500 are IPPs) are currently being held in local prisons since space in lifer centres is simply unavailable and turnover is slow.” 156. Committee of Ministers Resolution 76(2) of 17 February 1976 made a series of recommendations to member States regarding long-term and life sentence prisoners. These included: “2. take the necessary legislative and administrative measures in order to promote appropriate treatment during the enforcement of [long-term] sentences; ... 9. ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted; 10. grant the prisoner conditional release, subject to the statutory requirements relating to time served, as soon as a favourable prognosis can be formulated; considerations of general prevention alone should not justify refusal of conditional release; 11. adapt to life sentences the same principles as apply to long-term sentences ...” 157. Committee of Ministers Recommendation Rec (2003) 22 of 24 September 2003 recommended that member State governments be guided in their legislation, policies and practice on conditional release by the principles contained in the appendix to the recommendation. The appendix set out, inter alia, the following general principles: “3. Conditional release should aim at assisting prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community. 4.a. In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners.” 158. Regarding the granting of conditional release, it noted, inter alia: “16. The minimum period that prisoners have to serve to become eligible for conditional release should be fixed in accordance with the law. 17. The relevant authorities should initiate the necessary procedure to enable a decision on conditional release to be taken as soon as the prisoner has served the minimum period. 18. The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit. They should also be realistic in the sense that they should take into account the prisoners’ personalities and social and economic circumstances as well as the availability of resettlement programmes.” 159. Committee of Ministers Recommendation Rec (2003) 23 of 9 October 2003 sets out three objectives for the management of life sentence and other long-term prisoners. One is to increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law-abiding life following their release. 160. The general principles for the management of life sentence and other long-term prisoners include: “3. Consideration should be given to the diversity of personal characteristics to be found among life sentence and long-term prisoners and account taken of them to make individual plans for the implementation of the sentence (individualisation principle). ... 8. Individual planning for the management of the prisoner’s life or long-term sentence should aim at securing progressive movement through the prison system (progression principle).” 161. On sentence planning, the recommendation indicates that comprehensive sentence plans should be developed for each individual prisoner, and should include a risk and needs assessment in order to inform a systematic approach to, inter alia, the prisoner’s participation in work, education, training and other activities that provide for a purposeful use of time spent in prison and increase the chances of a successful resettlement after release; and interventions and participation in programmes designed to address risks and needs so as to reduce disruptive behaviour in prison and re-offending after release. 162. Recommendation Rec (2006) 2 of the Committee of Ministers to member States on the European Prison Rules of 11 January 2006 (“the European Prison Rules”) includes in its basic principles: “6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.” 163. Paragraph 103 concerns sentence planning and provides: “103.1 The regime for sentenced prisoners shall commence as soon as someone has been admitted to prison with the status of a sentenced prisoner, unless it has commenced before. 103.2 As soon as possible after such admission, reports shall be drawn up for sentenced prisoners about their personal situations, the proposed sentence plans for each of them and the strategy for preparation for their release. ... 103.4 Such plans shall as far as is practicable include: a. work; b. education; c. other activities; and d. preparation for release.” 164. On the release of sentenced prisoners, the European Prison Rules provide: “107.1 Sentenced prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law-abiding life in the community. ...” 165. Article 10 of the International Covenant on Civil and Political Rights 1966 provides: “1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. ... 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.” 166. The United Nations Standard Minimum Rules for the Treatment of Prisoners (“the UN Rules”), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 and approved by the Economic and Social Council on 13 May 1977, include in their general principles the following: “58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life. 59. To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.” 167. Specific provisions on treatment include: “65. The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose, so far as the length of the sentence permits, to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility. 66(1) To these ends, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release.” 168. The United Nations Report on Life Imprisonment 1994 notes, at paragraph 38: “Specific treatment programmes thus serve a dual function: they offer the prisoner an opportunity for self-examination, whereby he or she can confront previous or present problems and they provide the prison staff with a better opportunity to understand particular behavioural patterns.” 169. The report continues at paragraph 40: “In the absence of structured treatment programmes, long term prisoners are left on their own to find the means with which to cope with their sentences. This has detrimental effects, not only for the prisoner but also for the prison authorities in that a situation of ‘them’ and ‘us’ often develops ...” 170. Finally, at paragraph 69, the report concludes: “International instruments on imprisonment and human rights suggest that the deprivation of liberty may only be justified if accompanied by review and assessment procedures that operate within commonly accepted judicial standards. Indeterminate life sentencing cannot be allowed to open the door for arbitrary detention. Fair, unprejudiced assessment programmes offer possible checks against this.”

train

001-90712

ENG

TUR

CHAMBER

CASE OF ELĞAY v. TURKEY

Violation of Article 5 - Right to liberty and security

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

4. The applicant was born in 1983 and lives in Istanbul. 5. On 10 July 2002 the applicant was arrested and placed in the antiterrorist branch of the Istanbul police headquarters after, during a road check, police officers saw a photograph of Abdullah Öcalan and the slogans “Biji Serok Apo” (“Long live President Apo”) and “Biji Kurdistan” (“Long live Kurdistan”) on the screen of the applicant’s mobile telephone. 6. On the same day, the applicant made statements to the police and, subsequently, to the Gebze Magistrates’ Court, which ordered his detention on remand, having regard to the state of the evidence, the applicant’s statements to the police and the nature of the alleged offence, namely, membership of the PKK (the Kurdistan Workers’ Party), an illegal organisation. 7. On 11 July 2002 the applicant lodged an objection to the remand order. No decision has been taken regarding the applicant’s objection. 8. On the same day, the Gebze public prosecutor issued a decision finding that he lacked jurisdiction. The investigation file was subsequently transferred to the public prosecutor’s office at the Istanbul State Security Court. 9. On 1 August 2002 the public prosecutor at the Istanbul State Security Court charged the applicant with membership of an illegal organisation, under Article 168 § 2 of the former Criminal Code. 10. On 12 August 2002 the Istanbul State Security Court ordered the applicant’s continued detention, having regard to the nature of the alleged offence, the state of the evidence and the date of the initial order for the applicant’s detention. 11. On 25 October 2002 the State Security Court held the first hearing in the case. The applicant’s representative requested the firstinstance court to release the applicant. The court accepted the request and ordered the applicant’s release pending trial. 12. On 5 September 2003 the Istanbul State Security Court acquitted the applicant. 13. A description of the domestic law and practice at the relevant time may be found in Bağrıyanık v. Turkey (no. 43256/04, § 19, 5 June 2007) and Saraçoğlu and Others v. Turkey (no. 4489/02, § 19, 29 November 2007).

train

001-83065

ENG

POL

CHAMBER

CASE OF BUGAJNY AND OTHERS v. POLAND

Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings

Josep Casadevall

5. The first applicant was born in 1963. The second and third applicants were born in 1964. They live in Poznań. 6. The company “Trust” Ltd. in which the applicants own all of the shares owned an estate of 6 hectares situated in Poznań. In 1995 the company requested the local administration to give a decision on the division of the estate, a decision necessary to proceed with construction on the land. 7. Eventually, on 15 November 1999 the Municipal Office gave a decision by which the division of the estate was approved. Certain plots of land were designated for construction purposes and others for open space and garages. A number of plots were designated for construction of “internal estate roads”. This decision became final on 30 November 1999. 8. Subsequently, the applicant company, relying on the provisions of the Land Administration Act 1997, requested the Mayor of Poznań to determine the compensation due for the plots designated for road construction. It submitted that under the relevant provisions of that Act plots designated, by virtue of decisions on the division of properties into smaller plots, were expropriated ex lege on the date on which such decisions became final. 9. By a decision of 15 March 2000 the President of the Poznań City dismissed the application to have the compensation determined, holding that the roads to be built on the estate concerned had not been provided for in the local land development plan. Hence, in the November 1999 decision they had been designated as “internal roads” which would serve the inhabitants of a housing estate the construction of which the company had been planning. Not having been provided for in the local land development plan, these roads did not belong to the category of public roads. Under the provisions of the Land Administration Act 1997, as amended in January 2000, only plots designated for the construction of “public roads” were to be expropriated ex lege, and only in respect of such expropriated plots could compensation be sought. In the applicants' case, the plots in question were designated for internal roads; they had therefore not been expropriated and, consequently, no compensation could be determined. 10. The applicants appealed. They argued that the roads to be constructed on the housing estate were to be public, for all practical purposes. They were to be open to all roads users, including all means of public and private transport. The term “internal roads” used in the contested decision did not exist in the Land Administration Act 1997 as applicable in November 1999. This Act had been amended after this decision had been given and it was only in its amended text that it was clearly stated that compensation was due only for “public” roads (see paragraphs 3031 below). 11. The fact that the plots concerned were referred to in the decision of November 1999 as designated for the construction of “internal” roads was an unlawful attempt to deprive them of a public character and to exempt them thereby from the operation of that Act insofar as it provided for ex lege expropriation of plots designated for road construction. Most importantly, it was an attempt to evade the obligation to pay compensation for such plots. 12. The applicants further argued that the fact that these roads had not been provided for in the local land development plan was immaterial, given that the decision of 15 November 1999 had obviously been given in such a way as to be consistent with the local land development plan. Otherwise, the division of the estate could not have been approved. 13. They lastly argued that the decision complained of breached the constitutional guarantees of ownership. 14. On 31 May 2000 the Wielkopolski Governor upheld the decision. The Governor's decision referred to section 98 of the 1997 Act as applicable when the November 1999 decision had been given. It provided that plots designated for road construction under a decision on the division of property for the construction purposes were expropriated ex lege on the date on which such a decision became final. However, the essential purpose of the decisions on the division of property was to serve the implementation of local land development plans. In the absence of the inclusion in such a plan of roads on the land subject to the division decision given in the applicants' case in November 1999, the plots designated for road construction could not be regarded as designated for the construction of “public roads”. Hence, there were no grounds on which to expropriate them and to grant compensation to the owners. 15. The applicants appealed, essentially reiterating their arguments submitted in their appeal against the first-instance decision. 16. On 16 October 2001 the Supreme Administrative Court dismissed the appeal. It referred to section 93 (1) and (3) of the Land Administration Act 1997. It noted that under these provisions a decision on the division of property into smaller plots could be given only if the division proposal was compatible with the local land development plan and if the newly created plots had access to a public road. 17. In the present case the local development plan did not provide for any public roads on the land owned by the company. Hence, the fact that certain parts of the land as divided under the November 1999 decision had been designated for construction of roads could not entail their automatic expropriation under section 98 of the same Act. These roads remained in the ownership of the company and there were therefore no grounds on which to determine compensation. 18. In so far as the applicants relied on decisions of the Supreme Administrative Court in which it had expressed the view that under section 98 of the 1997 Act all land designated for roads in the division decisions was subject to expropriation ex lege, the court noted that judgments given in other cases were not binding on it. 19. It further noted that the February 2000 amendment to section 98 of the Land Administration Act 1997 (see paragraph 31 below) which provided that land designated for the construction of public roads only was subject to expropriation: “did not so much limit the scope of roads to which that provision was applicable, but was only intended to make more precise the intentions of the lawmaker regarding [the application ] of this Act”. It concluded that that the contested decision was in conformity with the law. 20. Later on, the applicants' lodged a claim in a civil court seeking a declaration under Article 189 of the Civil Code as to who was the owner of the plot of land concerned, listed in the land register as plot No. 6/25 and covering a surface area of 5,843 square metres. 21. By a judgment of 25 June 2003 the Poznań Regional Court established that the owner of the plots was Poznań City. 22. The court considered, inter alia, that the plan for the division of the land as adopted in the November 1999 decision was concordant with the local land development plan. It further observed that such compliance was an essential condition for the decision on division to be given in the first place. The court further noted that the local zoning plan was of a very general character and contained practically no details as to the planning of roads, apart from major thoroughfares, and that it did not determine which roads were to be regarded as public. In these circumstances, the court was of the view, having regard to the public use of the roads on the property concerned, that they had been expropriated by the city. 23. Poznań City appealed. 24. By a judgment of 9 December 2003 the Poznań Court of Appeal dismissed the claim for a declaration. It considered that the company had no legal interest in seeking clarification of the legal situation of the plots concerned by way of a declaratory judgment under Article 189 of the Code of Civil Procedure. The legal situation of the land had already been determined by the judgment of the Supreme Administrative Court which was binding on the civil court. Pursuant to this decision, the claimant remained the owners of the plots in question. 25. The court further observed: “Obviously, there was also another legal problem in the case. The conduct of the city in the present case had caused a situation in which the owner could not use his land freely, as provided for in Article 140 of the Civil Code. At the same time, the property serves one of the purposes [road construction] which normally should be ensured by the local municipality; what is more, it is the owner who bears the costs of achieving of this purpose. It can be argued that a situation worse even than a so-called de facto expropriation obtains in the present case. This is so because under Article 1 of Protocol No. 1 to the Convention the term “expropriation” covers not only formal expropriation or restriction of ownership carried out in proper expropriation proceedings. The caselaw of the Strasbourg Court also distinguishes a category of de facto expropriation, namely such acts by the public authorities which lead to a practical deprivation of possessions or to restrictions on their use (Papamichalopoulos and Others v. Greece, 1993).” 26. The applicants lodged a cassation appeal with the Supreme Court. By a decision of 5 November 2004, served on the applicants on 1 December 2004, it refused to examine it. “1. The Republic of Poland shall protect property and a right to inherit. 2. Expropriation is allowed only in the public interest and against payment of just compensation.” 28. Article 31of the Constitution reads: “Freedom of the person shall be legally protected. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do anything which is not required by law. Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 29. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 30. Under its settled case-law, the Constitutional Court has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999). 31. On 8 May 1990 the Constitutional Court gave a judgment (K 1/90), following a request of the President of the Supreme Administrative Court to examine the compatibility of certain provisions of the 1985 Land Expropriation and Administration Act with the constitutional protection of the right to the peaceful enjoyment of possessions. The court noted that the impugned provisions of the 1985 Act provided, in respect of properties of an agricultural character, for a reduction of compensation to be paid to owners who had requested that they be divided, by way of an administrative decision, into smaller plots and to have certain plots of land expropriated for road construction purposes. This reduction was based on the premise that the land to be expropriated ceased to be used for agricultural purposes and that the negative results of such a change had to be offset by the owners. The Constitutional Court observed that the nature of expropriations carried out in this context did not differ from expropriations effected for the purposes of public use, regardless of the fact that an expropriation was effected in proceedings different from ordinary expropriation proceedings. Hence, the provisions of the Constitution as they stood at that time and insofar as they provided for the protection of the right to the peaceful enjoyment of possessions were applicable to such expropriations. The Constitution allowed for the expropriation of private properties only for the purposes of public use and only against compensation. Compensation, in order to comply with constitutional requirements, had to be just and fair. The notion of fair compensation, including for expropriation carried out at the request of the owner and in his or her interest, had to be in the amount corresponding to the value of the expropriated property. Only compensation satisfying these conditions was in compliance with the nature and purpose of the obligation of the public authorities to compensate an owner whose property was expropriated. Any restrictions on the right to a fair compensation, including by way of reductions of its amount, was in breach of constitutional principles. 32. On 1 January 1998 the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) entered into force. Pursuant to section 112 of that Act, expropriation consists in taking away, by way of an administrative decision, of ownership or of other rights in rem. Expropriation can be carried out where public interest aims cannot be achieved without restriction of these rights and where it is impossible to acquire these rights by way of a civil law contract. 33. Under section 113 an expropriation can only be carried out for the benefit of the State Treasury or of the local municipality. 34. In accordance with section 128 § 1 of the Act, expropriation can be carried out against payment of compensation corresponding to the value of the property right concerned. Under section 130 § 1 of the Act, the amount of compensation shall be fixed, regard being had to the status and value of the property on the day on which the expropriation decision was given. The value of property shall be estimated on the basis of an opinion prepared by a certified expert. 35. Section 131 provides that a replacement property can be awarded to the expropriated owner, if he or she so agrees. 36. Pursuant to section 132, compensation shall be paid within fourteen days from the date on which the expropriation decision becomes subject to enforcement. 37. The question of expropriation of land for the purposes of road construction is regulated in that Act. Section 93 § 1 of the Act provides that the division of an estate into smaller plots is possible only when the division proposed by the owner is compatible with the local land development plan. Under § 3 of this section, a decision on the division can not be given if the plots resulting from the division would have no access to a public road. Access to a public road is also deemed to be available if a plot has access to an internal road. 38. Until 15 February 2000 section 98 of the Act read as follows: 1. Plots of land designated for the construction of roads in an administrative decision on the division of property shall be expropriated ex lege on the date on which such a division decision becomes final. (...) 3. The compensation due for such plots shall be established by way of negotiation between the expropriated owner and the relevant public authority; if negotiations fail, compensation shall be determined according to the principles applicable in respect of land expropriation. 39. On 15 February 2000 amendments to this Act came in force. Following these amendments, the text of subsection (1) read as follows: “1. Plots of land designated in a decision on the division of property for the construction of public roads, such as municipal, county, regional and national roads shall be expropriated ex lege on the date on which such a division decision becomes final. (...) “ 40. In a legal opinion of 29 May 2003, prepared for a different case from that of the applicants', the Central Urban Development Office stated that section 78 of the Land Administration Act in its version applicable until 15 February 2000 was a legal basis for the expropriation ex lege of all land designated for road construction purposes under decisions on the division of properties, regardless of whether these roads were of a public character or were to be considered internal roads, on the date when such decisions became final.

train

001-76894

ENG

SWE

CHAMBER

CASE OF WHITE v. SWEDEN

No violation of Art. 8

4. The applicant lives in Beira, Mozambique. 5. On 29 and 30 September and 1 October 1996, the two main evening newspapers in Sweden, Expressen and Aftonbladet, published a series of articles in which various criminal offences were ascribed to the applicant, including an assertion that he had murdered Olof Palme, the Swedish Prime Minister, in 1986. As part of the publication of this information, the newspapers also reported statements of individuals who rejected the allegations made against the applicant. Moreover, on 1 October, Expressen published an interview with the applicant, in which he denied any involvement in the alleged offences. 6. On 23 September 1998 the applicant brought a private prosecution against the newspapers through their legally responsible editors (ansvariga utgivare). He claimed that the editors were responsible for gross defamation, or alternatively defamation of a normal degree, under chapter 7, section 4, subsection 14 of the Freedom of the Press Act (Tryckfrihets-förordningen), and chapter 5, section 2 (or section 1) of the Criminal Code (Brottsbalken). He also joined an action for damages to the private prosecution and sought compensation for mental suffering and pecuniary damage. 7. The District Court (tingsrätten) of Stockholm held an oral preparation of the case on 1 February 1999 and an oral hearing on 27-28 January and 13 February 2000. It heard several witnesses. In accordance with the normal procedure in cases concerning criminal liability under the Freedom of the Press Act, the court sat with three professional judges and a jury of nine members. 8. The District Court put to the jury 66 questions relating to the articles published in Expressen and 76 questions relating to the articles published in Aftonbladet. Each question referred to one or more statements or pictures published in the various articles, and the jury had to answer whether the publication of the statements or pictures constituted gross defamation or defamation of a normal degree. The jury answered all but six questions in the negative. In accordance with the applicable rules, the jury’s finding of “no guilt” was final. As regards the remaining six questions, however, the jury found that certain published statements or pictures amounted to defamation of a normal degree. The court then had to make a re-assessment of liability. The contravening statements or pictures were the following: 1. The heading on the front page stating “He is pointed out as PALME’S MURDERER” [“Han pekas ut som PALMES MÖRDARE”] together with a picture of the applicant. [Expressen, 30 September 1996] 2. The text on page 6 reporting a statement made by an unnamed source within the South African intelligence service: “He is the type of person that you do not cheat unpunished. He kills without a second’s hesitation.” [“Han är den typen av person som man inte lurar ostraffat. Han dödar utan en sekunds tvekan.”] [Aftonbladet, 29 September 1996] 3. The text on page 6: “In addition to Long reach, Williamson and White had several companies together, some with links to the Mafia. Among others, the GMR Group in the Seychelles which was used for laundering money from illegal activities. When Long reach was wound up, White is supposed to have started a sawmill in Beira in Mozambique. A perfect cover for other activities. Weapons and drugs are two products that have been mentioned.” [“Vid sidan av Long reach hade Williamson och White flera andra företag ihop, en del med kopplingar till maffian. Bland annat GMR Group på Seychellerna som användes för att tvätta pengar från illegal verksamhet. När Long reach avvecklades ska White ha startat ett sågverk i Beira i Mocambique. En perfekt täckmantel för annan verksamhet. Vapen och droger är två produkter som nämnts.”] [Aftonbladet, 29 September 1996] 4. The text on page 6: “White has been dealing with most things. – He is one of southern Africa’s biggest poachers, tells a source. It is to a large degree his fault that the elephants in Mozambique are all but extinct. Together with Williamson, Anthony White appropriated the ivory.” [“White har sysslat med det mesta. – Han är en av södra Afrikas största tjuvskyttar, berättar en källa. Det är till stor del hans skuld att elefanterna i Mocambique är så gott som utrotade. Anthony White tog tillsammans med Williamson hand om elfenbenen.”] [Aftonbladet, 29 September 1996] 5. The subheading on page 6 “... but earns more on smuggling and poaching” [“... men tjänar mest på smuggling och tjuvjakt”] together with the ensuing text stating “But according to several statements, the main part of his income derives from smuggling and poaching.” [“Men enligt flera uppgifter kommer största delen av hans inkomster från smuggling och tjuvjakt.”] [Aftonbladet, 30 September 1996] 6. The caption on page 7 “TODAY – SMUGGLER IN MOZAMBIQUE” [“I DAG – SMUGGLARE I MOCAMBIQUE”] under a picture of the applicant. [Aftonbladet, 30 September 1996] 9. By a judgment of 24 February 2000, the District Court acquitted the editors in all respects and rejected the applicant’s claims for damages. It found that all six passages in issue depicted the applicant as a criminal or a person with a reprehensible lifestyle. However, given, inter alia, the great general interest in these statements in Sweden, the court found that it had been justifiable to publish the relevant statements and pictures. It further considered that the newspapers had had a reasonable basis for the published information. In the latter respect, the court had regard to how and from whom the information had been obtained and to the fact that, due to the nature of the information in question and the constraints of a fast news service, the possibility of checking the veracity of the statements had been limited. 10. The applicant appealed to the Svea Court of Appeal (Svea hovrätt). The appellate court held an oral hearing and heard essentially the same witnesses as the District Court. 11. On 21 February 2002 the Court of Appeal upheld the District Court’s judgment. It gave the following reasoning: “The Court of Appeal finds, like the District Court, that the relevant information in Expressen and Aftonbladet depicts Anthony White as a criminal and as having a reprehensible lifestyle. The information has been liable to expose him to the contempt of others and consequently, as such, constitutes defamation. The question then is whether there are grounds for excluding liability. Pursuant to chapter 7, section 4, subsection 14 of the Freedom of the Press Act, and chapter 5, section 1, subsection 2 of the Criminal Code, liability for defamation by means of printed matter is excluded if two conditions are met: 1) it would be justifiable to communicate the information, and 2) the information should be correct or the communicator should have had a reasonable basis for the assertion. If the information is correct it may as a rule be communicated even if it is deprecatory, if this is justifiable with reference to the public news interest. However, there is no general right always to speak the truth if the statements are offensive. A balance has to be struck between the protection against offensive statements and the demands of freedom of speech. In certain situations the interest of protecting someone against offensive statements has to yield to the public interest. Expressen has claimed that, on account of the public interest – the murder of the country’s prime minister –, it was justifiable to name and show a photograph of Anthony White in the newspaper. Aftonbladet, for its part, has asserted that, in the circumstances, it was justifiable to describe Anthony White’s personality and conduct. The question of who killed Olof Palme attracted at the relevant time and still attracts considerable public interest. As regards the question of whether in the circumstances it was justifiable to communicate the information, the Court of Appeal agrees with the District Court’s assessment that it was obviously legitimate to write about the so-called “South Africa trail” and to present information in this regard. However, the question is whether it was justified to identify the plaintiff by name and picture in the manner employed and to publish statements to the effect that he was supposed to be guilty of large scale, serious criminality. [The responsible editors] have asserted that the publications in question were not remarkable in view of the fact that it was commonly known who Anthony White was and of which crimes he was guilty. It emerges from the information that has come to hand in the case that, within certain groups in southern Africa and Europe, it was known that Anthony White had engaged in the alleged activities. It has also been shown that books have been published in which Anthony White has been named and his service as an elite soldier in the army unit Selous Scouts, which has a dubious reputation, has been described. The information in the case reveals that Anthony White has been much better known than he has wished to admit in southern Africa and among representatives of various organisations for the protection of animals and the conservation of nature in southern Africa as well as in Europe. Anthony White does not therefore appear as an ordinary private person with regard to whom there is a particular interest of protection. In view of the above, and for the reasons given by the District Court in this respect, the Court of Appeal finds that it was justifiable in the circumstances to publish Anthony White’s name and picture in Expressen and to publish information about the person Anthony White in Aftonbladet. In so finding, the Court of Appeal has also taken into account that Anthony White had declined to comment on information presented by the journalists of Aftonbladet. With respect to the question of whether the information is correct, it is word against word. Anthony White has asserted that he is innocent of all the accusations, that the information given about him was based on pure invention, that it is unverified or given by untrustworthy persons and that it was based on third or fourth generation hearsay, while [the responsible editors] appear still to assert that it cannot be excluded that Anthony White could be the person who murdered Olof Palme. The Court of Appeal concludes, however, that [the responsible editors], who have the burden of proof for their claims, have not shown that the disseminated information was correct. As regards the question of whether there has been a reasonable basis for the assertions, the Court of Appeal takes account of the following considerations. In defence of the publications in question, [the responsible editors] have asserted, among other things, that Anthony White’s name and picture have been published in international news media and on Swedish television. In response to what has been stated in this respect, the Court of Appeal would point out that each newspaper is responsible for its own publication. Consequently, the fact that the name and picture of the plaintiff had already been published by other news services has not relieved Expressen and Aftonbladet of the obligation to make their own assessment of the credibility of the information. The fact that the information had already been published by other media shows, however, that these news services might have considered that there was a reasonable basis for the information. In their defence, [the responsible editors] have also pointed out that, despite time constraints, they had careful checks made which gave an unequivocal picture of Anthony White. It has been established that the main basis for the assertions in issue in the case was the statements made by [the former senior official of the South African security police] Dirk Coetzee and that the newspapers checked that information mainly by having the journalists who wrote the articles contact journalist colleagues, public servants [and] representatives of various organisations for the protection of animals and the conservation of nature. However, with a few exceptions, the persons contacted have not been named. The contents of the testimony given by [the six journalist witnesses] before the Court of Appeal show that each of them separately has had high ambitions to find out the degree of truth of Dirk Coetzee’s statements and to check with reliable sources who the person Anthony White was. What has come to hand in the case reveals that the witnesses, each one through their own work, have received concordant information. Checks have been made with several informants in different countries and in different capacities. ... Having regard to the above, in particular the checks made, and to the fact that the informant Dirk Coetzee also here [before the Court of Appeal] has given the impression of being a credible person, the Court of Appeal considers that the communication of the identifying information does not appear unjustified. In the Court of Appeal’s view, there has been a reasonable basis for the assertion and the reproduction of the picture in Expressen. The Court of Appeal further considers that Aftonbladet, in the circumstances, must be considered to have performed the checks that were called for. Having regard to this and the reasons given with respect to the publication in Expressen, the Court of Appeal finds that there was also a reasonable basis for the assertions in Aftonbladet.” 12. On 29 May 2002 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal. 13. In order for an act committed by means of printed matter to constitute a criminal offence it must be punishable under both the Freedom of the Press Act and general criminal law. Chapter 7, section 4 of the Freedom of Press Act provides: “With due regard to the purpose of freedom of the press for all, specified in chapter 1, the following acts shall be deemed to be offences against the freedom of the press if committed by means of printed matter and if they are punishable by law: ... 14. defamation, whereby a person designates someone as a criminal or as having a reprehensible lifestyle, or otherwise communicates information liable to expose that person to the contempt of others, and, if the person defamed is deceased, the act causes offence to his survivors, or might otherwise be considered to violate the sanctity of the grave except, however, in cases in which it is justifiable to communicate the information, having regard to the circumstances, and proof is presented that the information was correct or there were reasonable grounds for the assertion; ...” Chapter 5, section 1 of the Criminal Code reads: “A person who designates someone as being a criminal or as having a reprehensible lifestyle or otherwise communicates information liable to expose that person to the contempt of others, shall be sentenced for defamation to a fine. If he was duty-bound to make a statement or if, in the circumstances, it was otherwise justifiable to communicate information in the matter, and proof is presented that the information was correct or there were reasonable grounds for the assertion, liability shall be excluded.” Chapter 5, section 2 of the Criminal Code provides: “If the offence defined in section 1 is regarded as gross, the person shall be sentenced for gross defamation to a fine or to imprisonment of no more than two years. In assessing whether the offence is gross, particular regard should be had to whether the information, because of its content, the scope of its dissemination or otherwise, was liable to cause serious damage.”

train

001-103701

ENG

DEU

COMMITTEE

CASE OF JAHNKE v. GERMANY

Violation of Art. 6-1;Violation of Art. 13

Angelika Nußberger;Mark Villiger

4. The applicant was born in 1951 and lives in Stadthagen. 5. On 7 June 1999, following the introduction of preliminary investigations against the applicant on account of money laundering (Geldwäsche), the Stadthagen District Court ordered the seizure of 40,000 German marks. 6. On 18 December 2001 the Hannover Public Prosecutor introduced a formal accusation against the applicant and three others, including her former partner. The applicant was accused of having committed in 1997 and 1998 by one and the same act (Tateinheit) money laundering and accessory after the fact (Begünstigung). 7. Thereafter the applicant’s legal counsel, who had been jointly accused, resisted his exclusion as defence counsel. On 12 August 2002, following decisions of the Hanover Regional Court and the Celle Court of Appeal (this court had already rendered a similar judgment in a parallel case in 2001), the Federal Court of Justice rejected his appeal. A request to the Federal Constitutional Court for interim protection was also to no avail. On 4 October 2002 the files were returned to the Hanover Regional Court. 8. On 11 November 2002 the applicant’s new legal counsel requested access to the files, which was granted. 9. On 2 December 2002 the Hannover Regional Court decided, on the basis of the accusation, to open the trial against the applicant and three coaccused. 10. By a letter dated 6 December 2002 the applicant’s lawyer requested a subsequent hearing pursuant to Article 33(a) of the German Code of Criminal Procedure (see “Relevant domestic law” below). 11. By a letter dated 10 December 2002 the applicant’s counsel opposed both accusations. As regards the opening of the trial on account of money laundering, he submitted that at the time of the offences in question the applicant’s acts were not yet punishable. 12. By further letters dated 6 February 2003, 10 and 24 April 2003, 2 July 2003 and 21 July 2003 he again opposed the accusation on legal grounds (no fair hearing, no legal ground for the accusation) and found that, on account of this, the main proceedings had not yet been validly opened and that therefore no hearing could be scheduled. 13. On 24 July 2003 the Hannover Regional Court separated the proceedings against three of the then six co-accused, including those of the applicant. On the same day the court informed the applicant’s legal counsel that the decision to open the trial could not be challenged. It also informed him that, even though he had been heard sufficiently in the meantime, it would decide on his numerous respective motions. 14. On 20 August 2003 the Celle Court of Appeal rejected the applicant’s appeal against the Regional Court’s inactivity regarding her motion under Article 33(a) of the Code of Criminal Procedure. 15. Thereafter a new dispute arose on account of the fact that the applicant’s first legal counsel also wanted to defend her former partner. The files again had to be transferred to the Celle Court of Appeal and the Federal Court of Justice. On 5 March 2004, after that court’s decision of 17 December 2003, the files were returned to the Hannover Regional Court 16. On 4 February 2004 the applicant’s (new) legal counsel again referred to his motion of 6 December 2002 and requested the court to further the proceedings. 17. On 10 September 2007 the Hannover Regional Court again joined the proceedings. On 13 September 2007 it scheduled five hearings to take place between 18 October 2007 and 10 January 2008. On 17 September 2007 the applicant’s legal counsel again referred to his motion of 6 December 2002. On 27 September 2007 the Hanover Regional Court cancelled all hearings. On 29 November 2007 it scheduled four hearings to take place from 17 December 2007 onwards. 18. By a decision of 19 December 2007 the Hannover Regional Court again separated the proceedings against inter alia the applicant. 19. On 7 January 2008 the applicant lodged a constitutional complaint. 20. On 17 April 2008 the Federal Constitutional Court refused to admit the constitutional complaint as it had been introduced out of time. 21. On 9 January 2009 the Hannover Regional Court, by reference to the accusation dated 18 December 2001, refused to open criminal proceedings against the applicant. It found that in so far as she was accused of money laundering, her acts were not yet punishable at the relevant time (since the relevant provision of the German Criminal Code had only been amended thereafter) and that, as regards the accusation of accessory after the fact, criminal prosecution was now time-barred. In reads as follows: “If the court, in a decision detrimental to a participant, used facts or evidentiary conclusions in respect of which he has not yet been heard and if he is not entitled to lodge a complaint against this decision or to any other legal remedy, the court shall give this participant a subsequent hearing, as far as the detriment still exists, either of proprio motu or upon an application, and decide upon an application. The court may amend its decision without an application.” Section 153 of the Code of Criminal Procedure provides that the public prosecution or the courts may discontinue the proceedings at any stage if the perpetrator’s culpability is considered to be insignificant and if there is no public interest in the prosecution. According to this provision, the court may terminate the proceedings by an order made outside the main hearing where a procedural impediment arises after the main proceedings have been opened.

train

001-73254

ENG

SVN

CHAMBER

CASE OF PAVLOVIC v. SLOVENIA

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

David Thór Björgvinsson;John Hedigan

5. The applicant was born in 1962 and lives in Prebold. 6. On 19 June 1995 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT. 7. On 4 November 1996 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 5,447,223 tolars (approximately 22,700 euros) for the injuries sustained. On 6 December 1996 the presiding judge was appointed to the Higher Court (Višje sodišče v Celju) and the case was assigned to a new judge. Between 11 September 1997 and 15 September 1998 the applicant made three requests that a date be set for a hearing. On 8 June 1998 and 4 March 1999 he lodged preliminary written submissions and/or adduced evidence. Of the three hearings held between 8 June 1998 and 12 April 1999 none was adjourned at the request of the applicant. During the proceedings the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 7 June 1999. 8. On 21 June 1999 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed. On 5 April 2000 the court allowed in part the applicant’s appeal and remanded the case back to the first-instance court for re-examination. The judgment was served on the applicant on 12 July 2000. 9. On 19 July 2000 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) and requested that one of the judges be recused. ZT cross-appealed. On 12 January 2001 the request for recusal was rejected. On 14 June 2001 the court allowed in part the ZT’s appeal, rejected the applicant’s appeal and upheld the second-instance court’s decision of remitting the case for re-examination before the first-instance court. The judgment was served on the applicant on 29 August 2001. 10. On 5 November 2001 the presiding first-instance court judge was appointed to the Celje Higher Court and the case was assigned to a new judge for re-examination. Between 24 September 2001 and 18 November 2002 the applicant lodged three preliminary written submissions and adduced evidence. On 25 October 2001 he made a request that a date be set for a hearing. The court held hearings on 27 May and 18 November 2002. During the proceedings the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding in part the applicant’s claim, was served on the applicant on 12 March 2003. 11. On 25 March 2003 the applicant appealed to the Celje Higher Court. On 21 October 2004 the court allowed in part the appeal. The judgment was served on the applicant on 13 January 2005.

train

001-79017

ENG

POL

CHAMBER

CASE OF TRZNADEL v. POLAND

Violation of Art. 5-3

Nicolas Bratza

4. The applicant was born in 1970 and lives in Wrocław. 5. On 15 April 1999 the applicant was detained on remand until 14 July 1999 on suspicion of two attempted murders. The court based its detention order on a reasonable suspicion that the applicant had committed the offences, on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings, and on the risk of the applicant’s going into hiding as he had done previously. 6. On an unknown date a bill of indictment was lodged. The applicant was charged with two attempted murders and possession of an unlicensed weapon. 7. Subsequent decisions on the extension of the applicant’s pre-trial detention were taken on 10 June 1999, 8 September 1999, 10 December 1999, 9 March 2000, 23 May 2000, 12 December 2000, 14 September 2000, 12 March 2002, 27 June 2002, 13 September 2002, 16 December 2002, 21 March 2003, 27 June 2003 and 16 December 2004. 8. In all the above-mentioned decisions the courts relied on the same grounds for detention as those given in the first detention order. In some of them the courts also referred to the complexity of the case, the need to conduct further investigations, the probability of collusion between the applicant and other co-accused and exertion of unlawful pressure on witnesses by the applicant. They also stressed that the applicant had previously gone into hiding. 9. The applicant appealed against the decisions extending his detention on several occasions. All of his appeals were dismissed. 10. On many occasions the applicant requested release from detention or the imposition of a more lenient preventive measure. His requests were dismissed. 11. Hearings were held on the following dates: 9 November 1999, 10 December 1999, 24 February 2000, 9 March 2000, 23 May 2000, 20 June 2000, 21 July 2000, 14 September 2000, 17 October 2000, 16 November 2000, 12 December 2000 and 30 January 2001. 12. On 2 February 2001 the Legnica Regional Court changed the legal qualification of the offences and convicted the applicant of attempted robbery endangering the lives others as well as possession of a weapon. It sentenced him to 10 years’ imprisonment. Both the prosecutor and the applicant lodged appeals. 13. On 29 April 2002 the Wrocław Court of Appeal quashed the judgment and remitted the case. 14. A hearing was held on 13 September 2002. A hearing of 18 October 2002 was cancelled due to a lay judge’s absence. A hearing of 15 November 2002 was adjourned since the accused who had been detained had not been transported to the hearing, and a hearing of 17 January 2003 was adjourned since the applicant had challenged the impartiality of the judges. Subsequent hearings were held on 14 February 2003, 21 March 2003, 25 April 2003, 30 May 2003, 27 June 2003, 12 September 2003, 10 October 2003, 21 November 2003, 5 December 2003 and 14 January 2004. 15. On 21 January 2004 the Legnica Regional Court gave a judgment. It convicted the applicant of one attempted murder and acquitted him of the other attempted murder and possession of an unlicensed weapon. The prosecutor and the applicant appealed. 16. On 5 May 2004 the Wrocław Court of Appeal quashed the judgment and remitted the case. 17. Subsequent hearings were held on 28 July 2004, 7 September 2004, 23 September 2004, 12 October 2004, 26 October 2004, 16 November 2004, 23 November 2004, 7 December 2004, 16 December 2004, 11 January 2005, 25 January 2005, 8 February 2005, 1 March 2005, 12 March 2005, 29 March 2005, 10 April 2005, 26 April 2005, 13 May 2005, 31 May 2005 and 21 June 2005. 18. On 23 June 2005 the Legnica Regional Court convicted the applicant of two attempted murders and possession of a weapon and sentenced him to twelve years’ imprisonment. On 9 August 2005 the applicant lodged an appeal which he had drafted himself. On 16 August 2005 the applicant appealed through a lawyer. 19. On 17 February 2006 the Wrocław Court of Appeal upheld the judgment. The judgment is final. 20. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.

train

001-86533

ENG

BIH

CHAMBER

CASE OF RODIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

6. The applicants were born in 1946, 1953, 1966 and 1972 respectively. They are currently detained in Mostar Prison in Bosnia and Herzegovina. 7. On different dates the applicants were convicted of war crimes perpetrated against Bosniac (at the time, Bosnian Muslim) civilians during the 1992-95 war in Bosnia and Herzegovina. They were committed to Zenica Prison on 16 August 2004 (Mr Rodić), on 4 February 2005 (Mr Pušara), on 10 May 2005 (Mr Knežević) and on 12 October 2004 (Mr Baković). Zenica Prison is the only maximum-security prison in the Federation of Bosnia and Herzegovina (a constituent Entity of Bosnia and Herzegovina). Its population is mostly made up of Bosniacs (approximately 90 per cent). 8. On 7 March 2005 Mr Pušara asked to be transferred to Foča Prison, in the Republika Srpska (the other constituent Entity of Bosnia and Herzegovina), in order to be closer to his family. On 28 March 2005 the Ministry of Justice of the Federation of Bosnia and Herzegovina (“the Federation Ministry”) informed him that a prison transfer between the two Entities was not allowed. 9. On 2 May 2005 at 6 p.m. offensive graffiti referring to Mr Rodić and Mr Baković were discovered in the prison canteen. Those responsible for the graffiti were never identified. 10. On 19 May 2005 the Federation Ministry informed Mr Knežević also that a prison transfer between the two Entities was not allowed. 11. On 4 June 2005 at 9 p.m., following the screening of a video which showed a 1995 killing of Bosniacs from Srebrenica, another prisoner, N.F., lured Mr Pušara into his cell and punched him in the eye with a clenched fist. On 7 June 2005 Mr Pušara was treated in a civil hospital in Zenica. According to an official report, the attack was ethnically motivated, the attacker had a piece of glass in his hand and the consequences could have been more serious had it not been for the intervention of another prisoner. 12. On 5 June 2005 at 4 p.m. another prisoner, J.H., attacked Mr Baković in the prison canteen. The prison guards intervened after Mr Baković had received several blows to the head. He was treated in a civil hospital in Zenica on the same day. 13. On 8 June 2005 the applicants declared a hunger strike in order to attract public attention to their situation. They were immediately placed in the Zenica Prison hospital unit. 14. On the same day, the Disciplinary Board of Zenica Prison sentenced N.F. and J.H. to twenty days’ solitary confinement in connection with the incidents of 4 and 5 June 2005. 15. On 10 June 2005 the Federation Ministry set up an ad hoc commission of independent experts (“the ad hoc commission”) with a view to investigating the incidents of 4 and 5 June 2005. 16. On 15 June 2005 the Ministry of Justice of Bosnia and Herzegovina (“the State Ministry”) ordered the applicants’ transfer to Istočno Sarajevo Prison, in the Republika Srpska, for security reasons. 17. On 19 June 2005 the ad hoc commission issued its final report. It referred to prison records showing that the prison management had been aware of the need to protect the applicants from the time of their arrival in Zenica Prison. The prison management confirmed to the ad hoc commission that special measures had indeed been considered, but that it had been unable to introduce any such measures because of the lack of prison staff, the lack of space (80 prisoners more than the prison’s official capacity), the lack of another maximum-security prison in the Federation of Bosnia and Herzegovina and the fact that prison transfers between the Entities were not envisaged. Seven other prisoners detained in Zenica Prison (six Bosniacs and one Serb), who had also been convicted of war crimes, testified before the ad hoc commission, claiming that the applicants had good reasons to fear for their lives. The witness of Serb origin, D.S., maintained that he had also been and still was subjected to persecution by his fellow prisoners because of the nature of his offence. The report criticised the prison authorities for their failure to duly protect the applicants. 18. On 21 June 2005 the Federation Ministry ordered that the applicants remain in Zenica Prison, in its hospital unit, until further notice. 19. On 23 June 2005 Zenica Prison entrusted a four-member team (which included three medical doctors) with the monitoring of the applicants’ state of health (because of their hunger strike). 20. On 1 July 2005 the applicants discontinued their hunger strike in compliance with the interim measures indicated by the Court (see paragraph 4 above). 21. On 18 July 2005 a delegation of the Parliamentary Assembly of Bosnia and Herzegovina visited Zenica Prison and interviewed the prison management and the applicants. The prison management maintained that the separation of prisoners according to the nature of their offences was not feasible. The applicants, for their part, accused the prison staff of being uncaring. Two reports based on the above interviews were submitted to the Parliamentary Assembly of Bosnia and Herzegovina: on 27 July 2005 and on 16 September 2005. The first report required, without going into any details, that the applicants’ human rights be secured. The second report required, among other things, that equality of conditions between the applicants and other prisoners be secured or, if this was impossible, that the applicants be transferred to another prison. 22. On 18 July 2005 the Disciplinary Board of Zenica Prison found M.H. guilty of an offence against prison discipline (incitement to the attacks on the applicants of 4 and 5 June 2005) and sentenced him to fifteen days’ solitary confinement. Furthermore, the prison management filed criminal charges against M.H. 23. On 12 August 2005 the applicants complained to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) about the failure to enforce the decision of 15 June 2005 ordering their transfer to another prison (under Article 6 of the Convention) and about the conditions of their detention in Zenica Prison (under Article 3 of the Convention). They also applied for interim measures (pursuant to Rule 77 of the Constitutional Court’s Rules). 24. On 24 November 2005 Mr Baković was transferred to another prison in the Federation of Bosnia and Herzegovina, namely Mostar Prison. 25. On 28 November 2005 the three applicants who had remained in Zenica Prison declared a new hunger strike protesting against the conditions of their detention in the hospital unit. On 30 November 2005 a team appointed by the prison management met with them. It would appear that the applicants acknowledged that some outstanding problems had meanwhile been resolved. However, they did not discontinue their hunger strike until 9 December 2005. 26. On 14 December 2005 Mr Rodić was transferred to Mostar Prison. 27. On 20 December 2005 the Constitutional Court decided not to apply interim measures in the present case. 28. On 20 September 2006 the Constitutional Court decided that it lacked subject-matter jurisdiction to examine the complaint about nonenforcement of the decision of the State Ministry of 15 June 2005, as the impugned decision concerned neither the applicants’ “civil rights” nor a “criminal charge” against them. As to the complaint about the conditions of the applicants’ detention, the Constitutional Court deemed that the applicants should have petitioned prison inspectors before addressing the Constitutional Court, and dismissed the complaint on nonexhaustion grounds. 29. On 19 October 2006 the remaining two applicants were also transferred to Mostar Prison. 30. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides non-judicial preventive machinery to protect persons deprived of their liberty. It is based on a system of visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”). 31. During its years of activity in the field, the CPT has developed standards relating to the treatment of persons deprived of their liberty. The following are its standards concerning inter-prisoner violence (see the CPT standards, document no. CPT/Inf/E (2002) 1 - Rev. 2006, p. 23): “The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks. Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner. Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners. Prisoners suspected or convicted of sexual offences are at a particularly high risk of being assaulted by other prisoners. Preventing such acts will always pose a difficult challenge. The solution that is often adopted is to separate such prisoners from the rest of the prison population. However, the prisoners concerned may pay a heavy price for their – relative – security, in terms of much more limited activities programmes than those available under the normal prison regime. Another approach is to disperse prisoners suspected or convicted of sexual offences throughout the prison concerned. If such an approach is to succeed, the necessary environment for the proper integration of such prisoners into ordinary cell blocks must be guaranteed; in particular, the prison staff must be sincerely committed to dealing firmly with any signs of hostility or persecution. A third approach can consist of transferring prisoners to another establishment, accompanied by measures aimed at concealing the nature of their offence. Each of these policies has its advantages and disadvantages, and the CPT does not seek to promote a given approach as opposed to another. Indeed, the decision on which policy to apply will mainly depend on the particular circumstances of each case.” 32. Besides its yearly general reports which are always public, the CPT periodically draws up reports on individual States, which are strictly confidential. Nevertheless, if a country fails to cooperate or refuses to improve the situation in the light of the CPT’s recommendations, the CPT may decide to make a public statement. Of course, the State itself may at any time request publication of the CPT’s report, together with its comments. 33. On 21 December 2004 the Report on the visit to Bosnia and Herzegovina carried out by the CPT from 27 April to 9 May 2003 was published, further to the request of Bosnia and Herzegovina. The following are its relevant parts: “... 57. Inadequate staffing levels constitute a major problem throughout the prison system of Bosnia and Herzegovina... Deficiencies were also observed at Zenica Prison, where only 24 prison officers were present from 3 p.m. to 7 a.m. for a population of 613 prisoners. Consequently, a number of prison officers in different establishments indicated that they frequently felt that their own security was compromised. 58. The CPT recommends that the relevant authorities conduct a review, without delay, of current staffing arrangements in all prison establishments throughout Bosnia and Herzegovina. The objective should be to ensure that the number of prison officers employed is sufficient to guarantee both staff safety and the physical and mental integrity of inmates. ... 63. Material conditions varied in different parts of Zenica Prison... Newly-arrived sentenced male prisoners spent the initial period (anywhere from four days to a month) in a distinct reception section containing three dormitories, which were furnished only with bunk beds and imparted a rather austere appearance. Though their occupancy levels were acceptable at the time of the visit, the dormitories would be overcrowded if all of the bunk beds were full. After the reception period, prisoners were allocated to Pavilions I or III. 64. Pavilion I was the largest within the prison complex (official capacity: 320; 312 occupants at the time of the visit). It was divided into seven large multi-occupancy units (“kolektive”), each containing from three to fifteen dormitories, which could accommodate anywhere from two to twenty persons; in contrast, the dormitories in a renovated unit (I-7) were designed for two to four occupants, a far preferable configuration. In addition to dormitories, the units comprised living areas and sanitary facilities. Furnishings were on the whole suitable and included lockers, as well as bunk beds, tables and chairs. However, the unrenovated areas were quite dilapidated, and the damage from the February 2003 riot was evident on the roofs and in the broken windowpanes. Further, Unit I-1, which was used to accommodate older prisoners (over the age of 45), was overcrowded, there being 58 occupants (allocated between three dormitories) for an official capacity of 46. Its living area/television room, equipped solely with a few rows of benches, imparted a rough, worn impression. 65. Pavilion III (official capacity: 63; 42 occupants at the time of the visit) comprised thirteen dormitories. Its refurbishment had just commenced and the material conditions were similar to those observed in the unrenovated parts of Pavilion I. 66. The recently-renovated Pavilion V (official capacity: 118; 94 occupants at the time of the visit) was separated from the other parts of the prison by a gate; it comprised three units and was in a good state of maintenance and repair. The Pavilion accommodated prisoners who had demonstrated good behaviour, and one of its units (capacity: 35) was used for placement of minors and young adults as well as older inmates; though they slept in separate dormitories, those categories of prisoners were invariably associating with each other (cf. in this regard paragraphs 53, 55, and 105). 67. The two-storey Pavilion II offered cell-type accommodation with integral sanitation; with an official capacity of 88, it had 72 occupants at the time of the visit. The ground floor was used to accommodate remand prisoners and administrative detainees; the first floor held the prisoners undergoing segregation (“usamljenje”) or increased supervision (“pojačan tretman”), or solitary confinement (“samica”) as a disciplinary sanction. Most of the cells on each floor measured 10 m² and were used for single or double occupancy (even if its occupants were formally undergoing “solitary” confinement). The exception was a multi-occupancy cell located on the first floor, used for “increased supervision” placements. It measured 21 m² and was accommodating up to 4 prisoners at the time of the visit, which is an acceptable occupancy level. However, the cell was equipped with 8 beds; it is not sufficiently large for such a number of prisoners. The delegation observed two serious shortcomings in the segregation and disciplinary cells: certain of them had only one bed for two occupants and the toilets were not partitioned (in contrast with the cells on the ground floor). This meant in practice that inmates were sleeping on mattresses placed on the floor, and were obliged to comply with the needs of nature in full view of their cellmates. Such a situation is totally unacceptable. 68. Pavilion II also contained five cells (three on the ground floor and two on the first floor) used for placement of inmates in a state of agitation; one of them was a padded cell (No 10, on the ground floor). Sheets of paper bearing the inscription “Cell under video surveillance” were attached with tape to the doors of three of the cells (No 10, on the ground floor, and Nos. 31 and 32, on the first floor); however, given that no monitors had been supplied, there was no operational video surveillance system. Except for an unpartitioned lavatory, the cells were devoid of furnishings or fixtures; staff indicated that mattresses were provided if persons were placed in the cells. As already indicated, metal panels covering the windows in four of the cells had apparently been removed a few days prior to the visit; however, one of the cells (No 29) still had such a panel, blocking access to natural light. Having regard to the other information gathered during the visit concerning these cells (cf. paragraph 46), the CPT recommends that immediate steps be taken to ensure that prisoners are never placed in a dark cell for any length of time whatsoever (cf. in this regard Rule 37 of the European Prison Rules); further, the metal panel covering the window in cell No 29 should be removed forthwith. 69. In the course of a brief visit to the semi-open sections (Pavilions VI and VII), the delegation observed that the material conditions offered to inmates were of a good standard. 70. To sum up, serious shortcomings in terms of material conditions of detention – due to an inadequate infrastructure or to a deterioration of the premises (often exacerbated by overcrowding) – were present in varying degrees in the establishments visited. As a priority, the CPT recommends that serious efforts be made to reduce occupancy levels in prisons; the aim should be to provide a minimum of 4 m² of space per person. Further, any cells measuring less then 6 m² should be taken out of service as prisoner accommodation. Where necessary, the partitioning of toilet facilities in multi-occupancy cells should also be improved... ... 73. At the time of the visit, some 60 % of the sentenced prisoners (370 out of 586) at Zenica Prison worked in industrial (different types of metalwork, employing up to 200 inmates) or agricultural settings and in general services (kitchen, bakery, laundry, canteen, audio/video broadcasting within the prison, maintenance and gardening, car repairs). The establishment’s industrial workshops were dusty relics of another era, equipped with crumbling, outdated machinery, and providing a hazardous work environment. In contrast, working conditions in the other facilities were satisfactory. A large area with a hard surface was available for sports such as football and basketball; however, at least at the time of the visit, no such games were organised. Instead, inmates were found to be standing or wandering around the sports area in large groups. Prison management indicated that other sports and recreational activities were also offered to sentenced inmates (including bowling, boxing, table tennis, karate, chess, painting, woodcarving, and other crafts), and that occasional film projections and live musical/variety performances (staged by prisoners) were organised in a theatre located in Pavilion I. A limited number of inmates took part in educational activities... 74. The fact that Zenica Prison is the only closed prison in the Federation undoubtedly creates obstacles to the delivery of differentiated regimes and treatment programmes tailored to individual inmates and corresponding to variables such as the type of offending behaviour, length of sentence, etc. In this context, the delegation found that there was a lack of differentiation of regimes/treatment programmes for different categories of sentenced prisoners at the establishment or, indeed, a proper system for classification/allocation. As far as the delegation was able to ascertain, a coherent policy for the execution of sentences – including a policy for early release and the provision of social support to prisoners – was absent. Further, the role envisaged for the educators was less than proactive. The CPT invites the relevant authorities to develop programmes tailored to the profile of different types of prisoners, in light of the foregoing remarks. 75. To sum up, although sentenced prisoners at Zenica Prison did have an appropriate amount of daily time outside their units, there remained a gap between the aspirations professed by management and staff and the programmes of activities which were actually being delivered to many of them; about a third did not benefit from a positive regime which might encourage them to address their offending behaviour. The CPT recommends that the relevant authorities take the necessary steps to ensure that all prisoners at Zenica Prison have access to an appropriate range of work, educational, sports and recreational activities. ... 78. The standard of health care facilities varied widely; they were excellent in Mostar and generally very good in Banja Luka, but were poor in Zenica and [Istočno] Sarajevo Prisons... The CPT recommends that the health care facilities at Zenica and [Istočno] Sarajevo Prisons be upgraded. ...” 34. On 16 July 2007 the CPT published its Preliminary observations made by the delegation of the CPT which visited Bosnia and Herzegovina from 19 to 30 March 2007, further to the request of Bosnia and Herzegovina. Its relevant part reads as follows: “... [L]et me stress that co-operation also entails making concerted efforts to comply with the recommendations made by the CPT following its previous visits. In this respect, the delegation was concerned to find that no fundamental measures had been taken to improve the situation in the prisons visited or as regards forensic psychiatric patients. This clear lack of co-operation means that, if there is no prompt reaction by the authorities, the Committee may have no other choice than to consider initiating the procedure for making a public statement under Article 10, paragraph 2, of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment... The delegation is also seriously concerned about the inter-prisoner violence that appears to be prevalent in the prisons visited. In Zenica Prison, it heard about a number of incidents of inter-prisoner violence, which in at least one instance included one inmate being ordered to kill another prisoner. Not surprisingly, certain prisoners appeared to be fearful for their safety... In all prisons visited, there was a lack of appropriate accommodation both for vulnerable prisoners and for those requiring increased levels of security. In Zenica Prison, a unit was under construction for the separate accommodation of vulnerable prisoners and plans to transform the forensic psychiatric annexe into a high security unit were being mooted. In Foča Prison, work was already underway to create a high security unit. Such units are sorely needed; there are currently no safe and secure facilities in which to hold dangerous prisoners at either State or Entity level, as the findings from this visit illustrate all too clearly... Other issues such as activities for prisoners, health care services, staffing, complaints and inspections will be elaborated upon in the visit report...” 35. The Constitution entered into force on 14 December 1995, as part of the General Framework Agreement for Peace in Bosnia and Herzegovina. It provides for the direct application of the European Convention on Human Rights in Bosnia and Herzegovina and for the Convention to take precedence over all other law (Article II § 2 of the Constitution). Furthermore, the entire State apparatus (“Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities”) is under a duty to “apply and conform to” that Convention (Article II § 6 of the Constitution). 36. The Constitutional Court of Bosnia and Herzegovina was set up pursuant to the Constitution. It has jurisdiction to deal with practically any allegation of a breach of the European Convention on Human Rights. It may award compensation for non-pecuniary damage and adopt any interim measure it deems necessary (Rules 76 § 2 and 77 of the Constitutional Court’s Rules – Pravila Ustavnog suda Bosne i Hercegovine; published in the Official Gazette of Bosnia and Herzegovina (“OG BH”) no. 60/05 of 30 August 2005; amendments published in OG BH 76/05 of 31 October 2005). 37. This Act has been in force since 1 December 1998. The relevant parts read as follows: “Every inmate is entitled to lodge a complaint with the Ministry [of Justice of the Federation of Bosnia and Herzegovina] ... against members of prison staff alleging a violation of his or her rights.” “In order to ensure a uniform system of execution of prison sentences ... the Ministry [of Justice of the Federation of Bosnia and Herzegovina] shall supervise prisons. Supervision of the execution of prison sentences shall include the following in particular: the lawful and proper treatment of inmates, supervision of the work and structure of prisons, the manner of corrective training of inmates, conditions regarding security and self-protection, the work of the security unit, business operations, the manner of implementation of health protection and hygiene measures, inmates’ food and clothing and requirements concerning [material conditions]. The supervision referred to in paragraph 2 above shall be performed by [inspectors]. While conducting inspections, the inspectors referred to in paragraph 3 above shall be accorded the same rights, duties and responsibilities as those accorded to the inspectors of the administrative bodies of the Federation of Bosnia and Herzegovina, unless otherwise determined in this Act.” “A written report shall be made every time an inspection is carried out. It shall set specific time-limits for rectification of any irregularities and for general improvements if necessary. The report shall be delivered to the prison governor. The prison shall comply with any measures ordered. The prison shall be entitled to lodge objections against any measures ordered, within eight days of receipt of the report.” 38. It would appear that there are two prison inspector posts in the Federation of Bosnia and Herzegovina and four in the Republika Srpska (see the Functional Review of the Bosnia and Herzegovina Justice Sector carried out under the auspices of the European Commission in March 2005, pp. 122-23). 39. This Act has been in force since 28 June 2005. It sets out further provisions concerning the rights, duties and responsibilities of inspectors. In accordance with section 121 of this Act, every person (natural or legal) is entitled to petition an inspector, who must act upon the petition within fifteen days. The authorities (including the police) and every inspected establishment are obliged to fully cooperate with inspectors (section 122 of the Act). When an irregularity has been found, inspectors will order that it be rectified and set a deadline; they may also impose a fine and/or initiate administrative or criminal proceedings where appropriate (section 125 of the Act). Interim measures may also be ordered (section 130 of the Act). 40. This Act regulates, inter alia, the law of tort. The main remedy for a tort is an action for damages, but in some cases a permanent injunction can be obtained to prevent repetition of the injury. The following are the relevant provisions of this Act: “1. All persons shall be entitled to request the court or other competent body to order the cessation of an action which violates their personal integrity, private and family life or other personal rights. 2. In the event of a breach of the order for cessation, the court or other competent body may order that a sum of money (either a lump sum or a sum varying according to the duration of the breach) be paid to the injured person.” “A legal person shall be liable for the torts committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions.” “In the event of a violation of personal rights the court may order ... any form of redress which may be capable of achieving the aim of non-pecuniary damages.” “The court shall award non-pecuniary damages for physical pain, mental anguish caused by reduced vital activities, disfigurement, loss of reputation, violations of freedom or personal rights or the death of a close person and/or for fear, if such award y award of pecuniary damages.” 41. This Act has been in force since 5 November 2003. It provides for the possibility of seeking a temporary injunction pending court proceedings, or even regardless of the existence of court proceedings, under certain conditions (sections 268-90 of the Act). Section 273(1), in its relevant part, reads as follows: “For the protection of rights or the status quo, the following measures may be ordered: 1. an order addressed to the other party that either prohibits that party from performing a certain action or orders it to carry out a certain action in order to protect the status quo or to prevent any damage; ...5. any other necessary measures.” 42. The Helsinki Committee for Human Rights in Bosnia and Herzegovina is a member of the International Helsinki Federation (an international non-governmental organisation which has participatory status with the Council of Europe). 43. The following is the relevant part of its 2002 report on the state of human rights in Bosnia and Herzegovina: “Following a monitoring of the Helsinki Committee for Human Rights in Bosnia and Herzegovina on the situation in [prisons], the interest of media and public institutions in this issue has been increased. After contradictory information in the press, the Council of Ministers of Bosnia and Herzegovina, on the basis of the findings of a working group, concluded that convicts [of Bosniac origin] maltreat psychically and physically convicts [of Croat and Serb origin] in Zenica [Prison]. The working group established, inter alia, that Darko Radinović, after being systematically maltreated, attempted suicide and finally got mentally ill. The UN Mission confirmed that a convict Milomir Tepeš, when asleep, was beaten up with chains and lock. On the occasion of torture in Zenica [Prison], the Council of Ministers initiated an agreement between the Entities on eventual transfer of convicts to other [prisons]. Thus we are on the way of having ethnically cleansed prisons as well. A [parliamentary] commission of the House of Representatives of the Parliament of Bosnia and Herzegovina asked from the Ministry of Justice of the Federation of Bosnia and Herzegovina to establish the circumstances under which convicts of [Croat origin], Catholics, converted to Islam in Zenica [Prison], following an allegation that they did it under duress. However, the prison management claims that there was only one voluntary conversion to Islam.” 44. The relevant parts of the Committee’s 2005 report on the state of human rights in Bosnia and Herzegovina read as follows: “Inter-ethnic relations remain encumbered by attempts of ruling nationalistic parties, primarily the SDA, HDZ and SDS, to maintain ethnic homogeneity. By nourishing fears from the others, insisting on the thesis that other two ethnic groups endanger status of their own nation, these parties manage to keep themselves in power. Even though the Constitutional Court of Bosnia and Herzegovina passed the decision on the equality of the Serbs, Croats and Bosniacs as constituent peoples across Bosnia and Herzegovina, there is still a strongly expressed wish to establish domination of one ethnic group over the others in areas where it has demographic and political supremacy. Conservation of aggressive nationalism is helped by the fact that criminal laws do not foresee any sanctions against these deeds. Prosecutor’s offices do not react on these occurrences or on those of anti-Semitism, racism and xenophobia, which encourage extreme nationalism. Fragile inter-ethnic relations are additionally encumbered by the occurrences of ethnically motivated violence and even terrorism. ... The said as well as many other similar events help to sustain inter-national tensions and fear and prevent the normalisation of the situation in the country. It is concerning that the police very rarely reveal perpetrators of these crimes. Even if the perpetrators become known courts either set them free or punish symbolically which encourages perpetrators.” 45. Amnesty International is an international non-governmental organisation which has participatory status with the Council of Europe. On 6 February 2008 it published a report on Bosnia and Herzegovina (“Better keep quiet: ill-treatment by the police and in prisons” – document no. EUR/63/001/2008). The relevant part reads as follows (p. 43): “In addition to an independent human rights institution, a functioning system of prison inspections can provide another level of accountability for prison staff and a way for the competent authorities to monitor the situation in prisons. It is a matter of serious concern, therefore, that in the Federation of Bosnia and Herzegovina no such system is functioning. The prison management of all establishments in the Federation of Bosnia and Herzegovina visited by Amnesty International informed the organization that no inspection of their prisons had been carried out for a number of years, because the two posts of prison inspectors at the Ministry of Justice of the Federation of Bosnia and Herzegovina have been vacant. In these prisons, inspections by the [State] Ministry of Justice take place only with regard to the situation of a small number of prisoners sentenced by the [State] Court and serving their sentence in prisons [situated in the Federation of Bosnia and Herzegovina]. The Ministry of Justice of the Federation of Bosnia and Herzegovina confirmed that, since mid-2004, no prison inspectors have been employed at [that] Ministry. Moreover, Amnesty International was informed that [that] Ministry currently employs only one person, at the Assistant Minister level, in its Office for the Execution of Criminal Sanctions, responsible for supervising eight prisons. In contrast, a system of prison inspections appeared to be in place and functioning in the Republika Srpska.”

train

001-97352

ENG

MDA

ADMISSIBILITY

SUMILA AND OTHERS v. THE REPUBLIC OF MOLDOVA

Inadmissible

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

The applicants are all Moldovan nationals. They were represented before the Court by Ms E. Botnari. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. The facts of the case, as submitted by the parties, may be summarised as follows. All the applicants were employees of the Ministry of Internal Affairs (“the Ministry”). Between 1997 and 2005 the applicants initiated proceedings against the Ministry for miscalculating their pensions (applications nos. 41556/05, 42308/05, 33566/06, 33567/06, 33568/06 and 33570/06) and failing to pay compensation for dangerous working conditions (application no. 41369/05). They all obtained final judgments in their favour and enforcement warrants were issued. On 1 November 2003 Mr Semenov died. On 30 December 2003, 20 January, 2 February, 4 March, 24 March and 23 July 2004 respectively, the final judgments in favour of Mr Kudreavţev, Mr Coseac, Mr Sîtnic, Mr Evgrafov, Mr Ianiv, Mr Şumila and Mr Semenov were fully enforced.

train

001-113386

ENG

HUN

CHAMBER

CASE OF SZIMA v. HUNGARY

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

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

5. The applicant was born in 1960 and lives in Szekszárd. 6. The applicant, a retired senior police officer, was at the material time the chairperson of Tettrekész Police Trade Union. Between May 2007 and July 2009 she published a number of writings on the Trade Union’s website, which was effectively under her editorial control, concerning outstanding remunerations due to police staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of senior police staff. 7. The applicant was indicted for instigation to insubordination. On 29 April 2010 the Military Bench of the Budapest Regional Court found her guilty as charged and sentenced her to a fine and demotion. The court did not sustain the applicant’s defence according to which the publication of such allegations belonged to the core of a trade union’s activities. It held that those allegations were capable of causing insubordination and as such were hardly or not at all susceptible to any proof of their veracity. 8. The Regional Court based its judgment inter alia on the following statements published by the applicant on the Internet: (1) “The staff are regularly required to work overtime without remuneration...” “For years, clearly due allowances have not been paid to low-ranking staff...” “Currently it is almost a prerequisite of becoming a senior police officer to have a political background or to be a relative or a descendant of other senior police officers.” “The senior police officers’ obvious violations of the law set a bad example for the force.” “This is typical of senior police officers: they commit violations and infringements, and then, if we point this out, their reaction is striking back without any principles, suing and accusing of incitement in order to counter our suggestions to renew and clean up the force.” “Why are we wondering at the infringements of police officers if law-breaking and tyrannising senior police officers go unpunished?” (2) “The uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished, and what is more, they are even decorated when, on order of the political authority in power, thousands, tens of thousands of discontented and underprivileged people are beaten by jaded police officers on the streets.” “The ‘Tettrekész’ Police Trade Union commiserates with those Hungarian citizens whose human dignity and human rights were violated and affronted by acts of a prostituted leadership and of our criminal ‘colleagues’ and apologises for that.” (3) “Police staff are getting more and more underprivileged and humiliated by their own leaders.” “Some senior police officers are active in trying to obtain that average citizens be punished rather than ‘served and protected’ by the police officers on the streets.” “Some well-paid senior police officers unprofessionally incite ordinary citizens and police officers against each other.” “We constantly request the review of the often unprofessional selection procedure of senior police officers, but to no avail, because there is apparently no need for a citizen-friendly police.” (4) “The senior police officers again demonstrated that they were incapable of upholding the public order in a party-neutral and politically neutral way... It is proven again that the Hungarian Police’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led Hungary into economic and moral distress.” “The reputation of the Police has reached previously unseen depths because of the acts of the unprofessional and anti-national senior police officers non-complying with the spirit of the police oath.” “It is obvious that the Police’s core leadership is, in an unacceptable way, politically committed to the government of the country and that of the capital.” (5) “The Head of the National Police Department is demonstrating every day that he is much more able to write obscene poems than to lead the Police; moreover, he is considerably much better in being an obstacle to the work of ‘Tettrekész’ Police Trade Union and in managing a police pop band than in cooperating with a representative trade union of the Police with the highest number of police officer members.” “A chaotic and highly unprofessional leadership is ruining the rest of the Police’s reputation from day to day.” 9. On 8 December 2010 the Military Bench of the Budapest Court of Appeal upheld the applicant’s conviction under section 357 of the Criminal Code. It held that the publication of the documents by the applicant had gone beyond her freedom of expression, given the particularities of the armed body to which she belonged. In the court’s opinion, the views contained in the documents constituted one-sided criticism whose truthfulness could and should not be proven. 10. Act No. XX of 1949 on the Constitution (as in force at the material time) provides as follows: “(1) In the Republic of Hungary everyone shall have the right to good reputation, the inviolability of his home, and the protection of privacy and personal data.” “(1) In the Republic of Hungary everyone shall have the right to freedom of expression and to receive and impart information of public interest.” 11. Act no. XLIII of 1996 on the Service of Members of Professional Staff of the Armed Forces provides as follows: “(1) Members of professional staff of the police force and of the civilian national security services shall not be members of a political party and shall not engage in political activities. (2) Members of professional staff shall not hold a position in a political party and shall not undertake public appearance in the name or interest of a political party, apart from standing as a candidate in parliamentary, European or municipal elections. (3) Members of professional staff shall not engage in political activities at the place of service or while performing service tasks. (4) Except for the case regulated under section 69, members of professional staff shall not criticise, or express an opinion about, a measure or order received unless they do so within the scope of their activities securing rights and interests; moreover, they shall not make statements injurious to the order and discipline of the service and shall not express a private opinion in official proceedings by using media publicity. (5) Members of professional staff shall not produce or disseminate publications harmful to the order and discipline of the service and shall not place such posters, announcements or emblems anywhere. (6) Announcements of the professional members’ representation organisations falling within their scope of activities may be published in the locally customary manner. ...” “(1) For the purposes of this Act, “trade union” shall mean any representation organisation – irrespective of its actual designation – of members of professional staff, whose aim is the representation and protection of the service-related interests of members of professional staff. (2) The trade union shall be entitled to a) operate within the armed forces and to involve its members in its activity; b) provide information for the members of professional staff about their rights and duties affecting their financial, social, cultural, living and service conditions; c) represent its members vis-à-vis the organisational unit or before state organs in respect of issues affecting their service relationship or – upon authorisation – before a court or other authority or body in respect of issues affecting their living- and service conditions. (3) The trade union shall have the right to exercise the following rights vis-à-vis the organisational unit: a) may request information on any issues related to members of professional staff’s service-related financial, social and cultural interests; b) may communicate its position and opinion on the commander’s (head’s) measure (decision) concerning an issue falling under point a) to the commander in charge of the unit and may initiate consultations in such matters; c) may, during official working hours or – in justified cases – in service hours check observance of the rules governing service and working conditions – including healthy and safe service performance – and may request information and data on the implementation of those rules, which information and data shall be provided for the trade union. Such checks may not endanger or hinder the performance of the service tasks. (4) The trade union may draw the attention of the head of the organ in charge of the implementation of the rules to the shortcomings and omissions perceived in the course of the check. If the head fails to take the necessary action in due time, the trade union may institute appropriate proceedings. The body having conducted the proceedings shall be obliged to inform the trade union of the findings of the proceedings. (5) The rights specified under subsections (3)-(4) shall, in respect of issues falling into the supervisory bodies’ scope of direction, be vested in the representative trade union within the given organisation. ...” “(1) While performing their service, members of professional staff shall be obliged to execute the orders of a supervisor or the instructions of a superior officer, unless they would commit a criminal offence thereby. (2) Except for the case specified in subsection (1), members of professional staff may not refuse the execution of an unlawful order. Where, however, the unlawful nature of the order was recognised, it shall immediately be drawn to the superior officer’s attention. If the supervisor upholds his order or the superior officer upholds his instruction, it must – upon request – be given in writing. Liability for the execution of an unlawful order or provision shall be borne solely by the issuer of the order or the instruction. ...” “(1) Members of professional staff or – upon their authorisation and on their behalf– a representation organisation or an attorney at law may file a service complaint if they find prejudicial a service-related decision, measure or their omission, not regulated under section 195 of this Act. (2) A service complaint against an employer’s measure in connection with the termination of the service relationship, establishment of conflict of interest, or the unilateral modification of the service relationship by the armed forces affecting the member’s position, shall be filed by the member of professional staff within 15 days from the communication of the employer’s measure. In other cases service complaints shall be filed within the period of limitation applicable to the enforcement of the claim at issue. (3) The complaint shall be filed with the supervisor who took (omitted to take) the decision and who shall – in case he fails to grant it – transfer the case, together with the case files, to the supervisor-commander without delay. Unless specified otherwise under the law, the supervisor-commander shall decide on the complaint within 30 days and shall communicate his decision to the complainant. This time limit may be extended on one occasion for another 30 days. (4) No person shall be restricted in exercising his right to file a complaint. No complainant shall suffer any detriment in case his complaint is found ill-founded, except where intentional infringement of discipline, regulatory offence, or a criminal offence has been committed. (5) The exercise of the right of complaint specified in another law shall not be affected by this Act.” “(1) A first instance decision related to the service relationship and taken in proceedings conducted within the armed forces may – unless this Act provides otherwise – be challenged by a member of professional staff by filing a complaint ... or an appeal ... against the decision within 15 days from its service. (2) Appeal against a decision brought in relation with the service obligations of a deceased member of professional staff may be lodged by a close relative. (3) The complaint or appeal shall – unless this Act provides otherwise – be determined within 30 days by the service supervisor or the organ designated by the minister. This time-limit may be extended on one occasion for another 30 days.” 12. Act No. IV of 1978 on the Criminal Code provides as follows: “(1) Anyone who incites discontent among soldiers towards a superior, a command or in general towards the order of service or discipline, is guilty of a misdemeanour punishable by imprisonment of up to one year. (2) The punishment shall be imprisonment for up to three years if: a) the incitement is committed in the course of the performance of service; b) the incitement entails considerable disadvantage for the service or discipline.”

train

001-57820

ENG

NLD

CHAMBER

CASE OF BUNKATE v. THE NETHERLANDS

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

C. Russo;John Freeland;N. Valticos

7. The applicant is a Netherlands citizen born in 1949. He lives in The Hague. 8. On 12 September 1983 the applicant was arrested in The Hague on suspicion of having committed forgery. He was placed in detention on remand until 16 December 1983, on which date the Public Prosecutor (Officier van Justitie) ordered his release on the ground of a shortage of cells then existing in the Netherlands. 9. The applicant was tried by the Regional Court (Arrondissementsrechtbank) of The Hague on 22 December 1983. On 5 January 1984 that court sentenced him to one year’s imprisonment on two counts of forgery. Both the Public Prosecutor and the applicant filed an appeal the same day. The applicant was allowed to remain at liberty pending the appeal. 10. Two days after the judgment of the Regional Court, on 7 January 1984, the applicant travelled to the Dominican Republic where he stayed for some eleven months. While there he had a death certificate in his own name issued by the competent Dominican authorities; this document was dated 28 April 1984. The applicant’s death was registered in The Hague on 18 May 1984. 11. The applicant returned to the Netherlands on 19 November 1984. On 3 December 1984 his mother applied to the Regional Court of The Hague for a court order to delete the entry of his death from the register. On 2 October 1985 such a court order was given and the said entry was deleted on 25 June 1986. 12. The appeal against the judgment of the Regional Court of 5 January 1984 (see paragraph 10 above) was heard by the Court of Appeal (Gerechtshof) of The Hague on 14 May 1985 in the presence of the applicant. On 28 May 1985 the Court of Appeal found the applicant guilty of only one count of forgery and acquitted him of the other; nevertheless, it increased the sentence to one year and four months. 13. The applicant introduced an appeal on points of law to the Supreme Court (Hoge Raad) on 10 June 1985, within the time-limit of two weeks prescribed by Netherlands law, by means of a statement made at the registry of the Hague Court of Appeal. The registry of the Court of Appeal transmitted the case file to the registry of the Supreme Court, which received it on 23 September 1986. The hearing of the Supreme Court was set for 17 February 1987. The applicant’s counsel proposed two grounds of appeal. The first argued that since at the time of the hearing of the Court of Appeal the registration of the applicant’s death had not yet been deleted, the applicant was not then officially alive and the prosecution should therefore have been held inadmissible. The second was a complaint about violation of Article 6 para. 1 (art. 6-1) of the Convention, in that, firstly, the transmission of the case file by the registry of the Court of Appeal to the Supreme Court had taken excessively long and, secondly, the acts for which the applicant was still being prosecuted had been committed nearly five years before. Applicant’s counsel claimed to have inquired often as to the date on which the hearing was to take place. 14. In accordance with the advisory opinion filed on 10 March 1987 by the Procurator-General the Supreme Court dismissed the applicant’s appeal by judgment of 26 May 1987. It held, firstly, that the registration of the applicant’s death did not preclude the Court of Appeal from allowing the prosecution in view of the applicant’s presence at the hearing and, secondly, that the lapse of time between the filing of the appeal on points of law and the hearing of the Supreme Court was undesirably long but not unreasonably so for the purpose of Article 6 para. 1 (art. 6-1). The Supreme Court further observed, inter alia, that although the applicant’s counsel had inquired after the date of the hearing, she had not asked for that date to be brought forward. 15. The applicant served his sentence from 29 August 1990 until 18 May 1991 when he was provisionally released. 16. For a survey of the relevant domestic law and practice, reference is made to the judgment in the case of Abdoella v. the Netherlands of 25 November 1992, Series A no. 248-A, pp. 10-14, paras. 11-14.

train

001-88422

ENG

GBR

ADMISSIBILITY

SLACK v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Brian Slack, is a British national who was born in 1938 and lives in Doncaster. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 16 December 1997. On 17 June 2002, the applicant made a claim for widows’ benefits namely Widow’s Pension. On 21 June 2002 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant appealed; however, his appeal was stayed together with other appeals relating to the said benefit. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

train

001-107282

ENG

SRB

CHAMBER

CASE OF ŠORGIĆ v. SERBIA

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

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

5. The applicant was born in 1962 and lives in Sopot, Serbia. 6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 7. On 22 May 1995 an inheritance-related case (ostavinski postupak) was instituted before the Fifth Municipal Court in Belgrade. The applicant was only one of the parties formally involved. 8. On 14 June 1995 the Fifth Municipal Court suspended the proceedings since one of the heirs had contested the validity of a life-long support contract (ugovor o doživotnom izdržavanju) concerning the deceased’s flat. The inheritance proceedings were to be resumed once this issue had been resolved in a separate civil suit. 9. The deceased’s wife subsequently brought a number of cases against the applicant, the deceased’s son, who had concluded the said life-long support contract with his father (see paragraphs 15-33 below). 10. On 14 June 2000 and in view of the judgment adopted on 2 March 1999 (see paragraphs 15-17 below), the applicant requested that the inheritance proceedings be terminated given that there remained no estate to be divided between the heirs. 11. On 15 April 2010 and in view of the decisions adopted on 13 August 2001 and 20 April 2006 (see paragraphs 19, 20 and 25 below), the deceased’s wife requested that the inheritance proceedings be continued. 12. The applicant apparently opposed this motion, stating that the relevant parallel proceedings were still pending (see paragraphs 18-33 below). 13. On 7 September 2010 the inheritance proceedings resumed, but the hearing of the same date was adjourned due to the failure of the deceased’s wife to appear before the court. 14. The next hearing was scheduled for 21 February 2011. This hearing, however, was also adjourned, this time in order for the court to obtain additional information about the estate. The applicant, it seems, did not appear at this hearing. 15. On 20 September 1995 the deceased’s wife filed a claim against the applicant with the Fifth Municipal Court. She sought that the life-long support contract be declared fictitious (fiktivan). 16. On 2 March 1999 the Fifth Municipal Court ruled against the plaintiff, partly based on the “inadequately” specified cause of action. 17. Having been upheld on appeal, by 25 January 2000 this judgment became final. 18. On 15 August 2000 the deceased’s wife brought another claim against the applicant before the Fifth Municipal Court. She outlined the relevant facts and sought that the life-long support contract be partly annulled (poništen) and partly cancelled (raskinut). 19. On 25 December 2000 the Fifth Municipal Court adopted a partial judgement against the applicant (doneo delimičnu presudu). In so doing, it stated that one half of a disputed flat belonged to the plaintiff as the deceased’s spouse, and that the corresponding part of the life-long support contract was therefore to be deemed null and void. The presiding judge in the case was judge B. 20. On 13 August 2001 the District Court in Belgrade confirmed this judgment on appeal and it thereby became final. The appeal bench included judge D. 21. On 17 June 2003 the Fifth Municipal Court cancelled the remainder of the above contract, noting that the applicant had not been fulfilling his contractual obligations properly. 22. On 24 March 2004 the District Court in Belgrade quashed this judgment in view of the incoherence between its operative provisions and its reasoning. It did not, however, offer any guidance in terms of the desired outcome of the plaintiff’s remaining claim on its merits. The appeal bench included judges D and B. 23. On 21 January 2005 the Fifth Municipal Court again cancelled the remainder of the contract in question. 24. On 31 August 2005 the District Court in Belgrade confirmed this decision on appeal, and it thereby became final. 25. On 20 April 2006 the Supreme Court rejected the applicant’s appeal on points of law (revizija), reasoning that the applicant had not been complying with his contractual obligations. The Supreme Court’s bench included judge D. 26. On 12 July 2006 the applicant filed a request for the reopening of the above proceedings (predlog za ponavljanje postupka), which request, inter alia, referred to the unlawful composition of the courts on 24 March 2004 and 20 April 2006. 27. On 20 September 2006 the Fifth Municipal Court rejected the applicant’s request as inadmissible (odbacio predlog), applying the Civil Procedure Act 2004 (see Article 422 at paragraph 44 below). 28. On 9 October 2006 the applicant filed a request for the protection of legality (zahtev za zaštitu zakonitosti) with the Supreme Court. 29. On 16 October 2006 the Fifth Municipal Court informed the applicant that his request for the protection of legality would not be considered until a final decision had been adopted in respect of his request for reopening. 30. On 2 July 2008 the District Court in Belgrade quashed the Fifth Municipal Court’s decision of 20 September 2006 on appeal, noting that the applicable legislation was the Civil Procedure Act 1977 (see Articles 421.1 and 71.5 at paragraphs 40 and 36 below, in that order). 31. On 3 December 2008 the Fifth Municipal Court again rejected the applicant’s request for reopening as inadmissible. In particular, it applied the Civil Procedure Act 2004 and noted, inter alia, that the said legislation, unlike the Civil Procedure Act 1977, did not provide for reopening in cases where the composition of the courts was not in accordance with the law. 32. On an unspecified date thereafter the applicant appealed against this decision. 33. On 28 April 2010 the High Court in Belgrade, now acting as the court of second instance in the former District Court’s stead, quashed the impugned decision and ordered the court of first instance to re-examine the applicant’s request. The High Court described the impugned decision’s reasoning as incoherent, and reaffirmed that the applicable legislation was the Civil Procedure Act 1977. 34. On 22 May 2008 the Constitutional Court rejected as inadmissible the applicant’s appeal (ustavna žalba) lodged against the Fifth Municipal Court’s, the District Court’s and the Supreme Court’s decisions of 21 January 2005, 31 August 2005 and 20 April 2006, respectively. In so doing, it explained that all were rendered prior to the adoption of the new Serbian Constitution in November 2006. 35. On an unspecified date the applicant apparently lodged a further constitutional appeal concerning the fairness and length of the proceedings initiated on the basis of his request for reopening. 36. Article 71.5 provides, inter alia, that a judge may not sit in a case where he or she has already taken part in its adjudication before a lower court. 37. Article 72 § 1 provides that as soon as a judge discovers this ground for recusal, he or she must cease dealing with the case and request the president of the court to appoint another judge in his or her stead. 38. Articles 354 § 2 (1) and 365 § 2, inter alia, list a breach of Article 71.5 as a ground for appeal which, even if not specifically relied on by the appellant, shall be taken into account by the appeals court ex officio. 39. Articles 382 § 1, 383 and 400 § 1 provide that parties to a case may file an appeal on points of law (revizija) with the Supreme Court. They may, however, only do so against a final judgment or decision resulting in the termination of a lawsuit at second instance. Articles 385 § 1 (1) and 386 further specify that an appeal on points of law may be lodged if the composition of the lower courts was not in accordance with Article 71.5, but do not specify that this ground shall be taken into account by the Supreme Court ex officio. 40. Article 421.1, read in conjunction with Articles 427 and 428, provides that a case concluded by means of a final court decision shall be reopened, at the request of one of the parties, if Article 71.5 has not been complied with. 41. In 1987 and 1995, respectively, the Federal Court clarified that under Article 71.5 a judge could only be excluded from deciding on a remedy lodged against the very decision in whose adoption he or she had already participated. This provision, however, does not preclude a judge from sitting in a case in any other situation, including where he or she had otherwise taken part in its adjudication before a lower court (Gzs. 50/87 and Gzs. 36/95). 42. The substance of Articles 66 § 1 (6), 67 § 1, 361 § 2 (1), 372 § 2, 394 § 1, 396, 398 § 1 (1), 399 and 412 § 1 of the Civil Procedure Act 2004 essentially corresponds to the substance of the aforementioned Articles 71.5, 72 § 1, 73 § 1, 354 § 2 (1), 365 § 2, 382 § 1, 383, 385 § 1 (1), 386 and 400 § 1 of the Civil Procedure Act 1977. 43. Articles 378 and 411 provide, inter alia, that second and third instance courts may remit a case either to the same judge/panel which had already taken part in the adoption of the impugned decision or to another judge/panel of the same court. 44. Article 412 § 4 provides that an appeal on points of law may also be filed where a request for the reopening of proceedings has already been decided upon at second instance. 45. Article 422 of the Civil Procedure Act 2004 does not provide that a case concluded by means of a final court decision may be reopened if the composition of the courts was not in accordance with Article 66 § 1 (6), which provision, as noted above, essentially corresponds to Article 71.5 of the Civil Procedure Act 1977. 46. The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. 47. Article 491 § 1 of the Civil Procedure Act 2004, however, provides that the Civil Procedure Act 1977 shall be applied to all cases where first instance proceedings have been concluded prior to 23 February 2005. Article 491 § 4 of the Civil Procedure Act 2004 further provides that in all cases which were brought before the said date the applicable legislation, as regards an appeal on points of law, shall be the legislation which was in force at the relevant time. 48. Articles 24 and 121 provide, inter alia, that should a legal heir of the deceased raise an issue in respect of what comprises the latter’s estate, the inheritance court shall instruct him or her to initiate a separate civil suit and suspend the inheritance proceedings pending its final outcome (do pravosnažnosti).

train

001-79032

ENG

MDA

CHAMBER

CASE OF BUJNITA v. MOLDOVA

Violation of Art. 6-1

Nicolas Bratza

6. The applicant was born in 1973 and lives in Chişinău. 7. On 26 June 2001 the applicant was acquitted of rape by the Râşcani District Court. The District Court examined the parties’ statements, witnesses’ declarations and medical reports. It found, in particular, that the applicant had not had sexual intercourse with the victim without the latter’s consent, since on numerous occasions the victim could have refused intercourse with the applicant and could have alerted a police patrol which had stopped them on the way to the applicant’s apartment. The victim could also have alerted the applicant’s flatmates, who had been in the apartment during the alleged rape, as well as other persons. The District Court also found that the medical reports did not provide a clear answer to the question as to whether the applicant had had intercourse with the victim. 8. The prosecutor and the victim appealed. Their appeals merely stated that the verdict of the Râşcani District Court was unlawful and unreasoned. 9. On 14 August 2001 the Chişinău Regional Court upheld their appeal, quashed the judgment of the Râşcani District Court and found the applicant guilty of rape. The Regional Court found that the victim’s statements, the witnesses’ declarations and the medical reports indicated that there had been forced intercourse with the victim. It found that the victim had been depressed and forcibly taken to the applicant’s apartment. The court sentenced him to five years’ imprisonment. However, the Chişinău Regional Court applied an amnesty law of 10 August 2001 and relieved the applicant from the obligation to serve his sentence. The applicant lodged an appeal in cassation. 10. By a final judgment of 30 October 2001, relying on section 335/5 § 2 of the Code of Criminal Procedure (CCP) in force at the time (see paragraph 13 below), the Court of Appeal upheld the applicant’s appeal in cassation and quashed the judgment of the Chişinău Regional Court. The Court of Appeal found that the Regional Court had not objectively assessed the evidence and had taken into consideration only the victim’’s statements that she had been forcibly brought to the applicant’s apartment were contradicted by the witnesses’ declarations. The Court of Appeal concluded that the Râşcani District Court had objectively assessed the evidence and reached the conclusion that the applicant was innocent. It also stated that any doubts should be interpreted in favour of the accused. The Court of Appeal upheld the judgment of the Râşcani District Court of 26 June 2001. 11. On 20 December 2001 the Deputy Prosecutor General lodged with the Supreme Court of Justice a request for annulment of the judgments of the Râşcani District Court and the Court of Appeal. He argued that the Râşcani District Court and the Court of Appeal had unlawfully assessed the evidence and asked the Supreme Court to uphold the judgment of the Chişinău Regional Court of 14 August 2001. 12. On 26 February 2002 the Supreme Court of Justice upheld the Deputy Prosecutor General’s request for annulment, quashed the above-mentioned judgments and upheld the judgment of the Chişinău Regional Court of 14 August 2001. The Supreme Court gave the same reasons for finding the applicant guilty of committing the rape as the Chişinău Regional Court had used in its judgment of 14 August 2001. 13. The following are relevant extracts from the Code of Criminal Procedure of 1961 repealed on 12 June 2003. When ruling on an appeal in cassation, the cassation instance shall provide one of the following judgments: ... 2) it shall uphold the appeal in cassation and quash the appealed judgment and: a) maintain the judgment of the first-instance court, if the appeal had been wrongly upheld. The General Prosecutor and his or her deputies may, on their own initiative or at the request of the parties, file a request for annulment with the Supreme Court of Justice in respect of any judgment which has become final after all the ordinary means of appeal have been exhausted. Final judgments in criminal cases shall be subject to requests for annulment through cassation procedure in the following instances: ... 2. Instances where a request for annulment is made only in favour of a convicted person: a. the provisions governing jurisdiction ratione materiae or jurisdiction ratione personae had not been observed; b. the composition of the court did not correspond to the legal requirements, or if the provisions of sections 19, 20 and 22 of the present Code were violated; c. the judicial hearing was not public, with the exception of those cases where the law provides otherwise; d. examination of the case took place without the participation of the prosecution service, the defendant, the counsel for the defence and an interpreter, where their participation was compulsory under the law; e. examination of the case took place without due notification of the parties; f. no forensic-psychiatric examination of the defendant was conducted, in cases provided for in section 66 (3) of the present Code; g. the court permitted procedures for appeal or for annulment which were not in accordance with the law, and permitted a request for annulment or an appeal where the prescribed time-limit had expired; ... i. an international court found that there has been a breach of human rights and fundamental freedoms, which could be remedied by a re-hearing. Other judgments which have become final shall be subject to a request for annulment only in instances where they contradict the legislation. A request for annulment in favour of the convicted person or a person in respect of whom criminal proceedings have been closed may be submitted at any time, including after that person’s death, in respect of the part concerning the criminal case as a whole and, in respect of the part concerning the civil action, only where its resolution affects the criminal case as a whole. In remaining cases a request for annulment may be submitted only within one year of the date on which that judgment becomes final, if some significant error in the previous procedure has influenced the impugned decision. ... A request for annulment of a judgment shall be lodged with the court in written form, with an indication of the grounds for annulment and inclusion of as many copies as there are participants in the proceedings. From the beginning of the proceedings, the General Prosecutor shall be entitled to withdraw the request for annulment, indicating the reasons for that withdrawal. Requests for annulment with regard to judgments of the Criminal Division and the Enlarged Division of the Supreme Court of Justice shall be examined by the Plenum of the Supreme Court of Justice, and requests for annulment of other judgments shall be examined by the Criminal Division of the Supreme Court of Justice. A request for annulment shall be examined and dealt with in accordance with the provisions of Chapter 30 of the present Code, which shall be applied in the appropriate manner and completed by the provisions of the present chapter. A request for annulment which is to the detriment of the convicted person, an acquitted person or a person in respect of whom the proceedings have been closed, shall be examined following the summoning of the parties. Where a request for annulment is submitted in the convicted person’s favour, the Supreme Court of Justice shall have discretion in deciding whether to summon the parties. Where the request for annulment is granted in respect of a convicted person who is serving a sentence, and where a judgment is quashed and the case is remitted to the courts for re-examination, the Supreme Court of Justice shall also decide on any preventive restrictions that should be imposed. ... 14. The following are relevant extracts from the Code of Criminal Procedure of 12 June 2003. The General Prosecutor, his or her deputies or the parties mentioned in section 401 & 2)-4) [the applicant] may lodge a request for annulment with the Supreme Court of Justice in respect of any judgment which has become final after all the ordinary means of appeal have been exhausted. Final judgments in criminal cases shall be subject to requests for annulment (...) in the following instances: ... d. an international court found that there has been a breach of human rights and fundamental freedoms, which could be remedied by a re-hearing.

train

001-138903

ENG

SVK

ADMISSIBILITY

PETROVÁ AND VALO v. SLOVAKIA

Inadmissible

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

1. The applicants, Ms Zuzana Petrová and Mr Ondrej Valo, are Slovak nationals who were born in 1971 and 1967 respectively and live in Košice. They were represented before the Court by Mr I. Šafranko, a lawyer practising in Svidník. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants’ grandmother owned a piece of land situated in a regional capital. In the Land Registry that land is recorded on two separate Certificates of Ownership relating to a number of plots occupying a total surface area of 7,682 square metres. The plots recorded in one of these Certificates are classified as arable land and garden whereas the land recorded in the other Certificate, having a surface area of 94 square metres, is classified as land in a built-up area. 5. This piece of land resembles a strip bordered on both sides by plots on which neighbours have their houses. According to the Government, this piece of land used to be on the outskirts of town but because of the growth of the town its built-up areas have reached this property. 6. In the 1950s or 1960s, when the land in question was de facto occupied by a socialist agricultural co-operative, three high-voltage pylons were erected on it, subject to the provisions of the 1957 Electrification Act (Law no. 79/57 Coll.). The pylons themselves cover some 2 square metres of the surface of the land in question, but the protective zone around them covers an area of 6,144 square metres. 7. The applicant’s grandmother was neither invited to take part in nor informed of the administrative proceedings concerning the construction of the electricity main of which the pylons were a part. She did not receive any compensation. Nevertheless, no decision appears to have been taken depriving her of the title to the land. 8. From 1998 the applicants’ grandmother, and later also the applicants, made a large number of applications to various courts, public bodies, members of parliament and other officials with a view to obtaining compensation in respect of the restrictions resulting from the erection and continued presence of the pylons on the land in question. 9. Meanwhile, in 2002 the applicants became the owners of the land by way of a gift from their grandmother, who then passed away in 2005. 10. As the owners, from 2005 the applicants became liable to pay realestate tax on the land. In 2012 the amount of tax payable in respect of the land as a whole was 70.23 euros (EUR), of which EUR 8.07 related to the proportion of the surface taken up by the pylons. As the owners, the applicants became liable to maintain the land so that the use of the adjacent plots was not hindered. 11. In the applicants’ submission, with the installations on it, their land can neither be sold nor made use of for construction. Nevertheless, in 2012, the applicants sold the plot classified as being in a built-up area (see paragraph 4 above) to another individual. 12. As submitted by the Government, and acknowledged by the applicants, the remainder of the land can be used for farming, and it is used as a garden for growing fruit trees and vegetables. 13. On 5 February 2003 the applicants brought and later amended an action eventually directed against the local electricity-distribution company and aimed at obtaining an amount of money in compensation for the use of the surface occupied by the pylons. The defendant of the action is a joint-stock company and, as such, one of its statutory purposes is to generate profit. It has been submitted by the applicants, and not contested by the Government, that the defendant is owned by another company, of which the State owns 51% of the stock. As to the substance, for each square metre occupied by the pylons, the applicants claimed the equivalent of approximately EUR 1.20 per year. In support of their claim, the applicants relied, inter alia, on Articles 6 § 1 of the Convention and 1 of Protocol No. 1, arguing that while the impugned pylons served to make a profit for the defendant, the applicants not only had to endure the presence of the pylons but were also incurring costs related to the plot’s maintenance. 14. The action was examined and dismissed at two levels of ordinary jurisdiction: by the Košice I District Court (Okresný súd) on 13 December 2007 and, following an appeal by the applicant, by the Košice Regional Court (Krajský súd) on 11 December 2008. 15. The courts applied section 22(2) of the 1957 Electrification Act, which was still in force by virtue of section 42(2) of the 1998 Energy Act (Law no. 70/1998 Coll.) and section 69(10) of the 2004 Energy Act (Law no. 656/2004 Coll.). Their reasons may be summarised as follows: The 1957 Electrification Act authorised the construction of electricity mains, including the establishment of support points, such as the pylons on the applicants’ land, on the real property of any party. As a matter of principle, no compensation was envisaged. However, if the owners or users of the real property concerned were significantly encumbered in its use they could claim adequate one-off compensation. A claim for such one-off compensation had to be filed within three months of the entry into use of the installation or else it would lapse. The applicable legislation provided for an ex lege easement, which was a sui generis notion within public law. It was accordingly not possible to advance a compensation claim on the basis of private law. The easement in question was always to be governed by the legal rules applicable at the time of its creation. The subsequent legislation did not envisage any compensation other than the one-off compensation under the 1957 Electrification Act. In support of this position, the courts also relied on a decision of the Constitutional Court (Ústavný súd) of 28 September 2005 (see paragraph 34 below). In the applicants’ case, at the relevant time no compensation had been claimed or, consequently, obtained. The claim of the applicants’ grandmother had thus lapsed, there had not been any legal basis for its renewal, and there was no basis for any new claim of the applicants’ own. The courts equally held that the right to a fair trial did not imply the right to a successful outcome in the proceedings; that the ex lege easement served the public interest and that it did not infringe on the applicants’ property rights. 16. On 9 March 2009 the applicants lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). They advanced similar arguments to those outlined above and alleged a violation of their rights under Article 1 of Protocol No. 1. In addition, the applicants submitted that they accepted the public interest in having the installation and that the essential problem was the complete lack of any compensation, which they considered disproportionate. In particular, the ordinary courts had failed to respond to their argument that their grandmother could not have claimed any compensation at the time of the creation of the easement because she had de facto not been using it and compensation could only be claimed by someone who had been significantly encumbered in the use of their property. The applicants further relied on the judgments (nález) of the Constitutional Court (Ústavní soud) of the Czech Republic – Slovakia having a similar legal tradition – in cases nos. Pl. ÚS 25/04, of 25 January 2005, and I. ÚS 137/03 of 18 November 2003. These judgments concerned, inter alia, the continued application of the compensation regime set up under the 1957 Electrification Act. In these judgments, an ideological distinction was observed between the “old law”, that is to say, that of the “old (communist) regime” prior to November 1989, and the law applicable under the subsequent democratic constitution. This distinction reflected the political and economic changes that had taken place. The quoted judgments recognised that, while there was a general continuity with the old law, there was a discontinuity in respect of the values of the old regime. The interpretation and application of the old rules had thus currently to take due account of the need for the protection of human rights and fundamental freedoms, including the protection of property. The latter consideration was all the more relevant when the beneficiary of an ex lege easement was making use of it in order to obtain economic gain. While the lawfulness of the creation of an ex lege easement as such was undisputed, where the applicable public-law legislation contained no provision for compensation in respect of expenses relating to the exercise of the easement, the relevant provisions of private law were to be used as an alternative. Such provisions provided for compensation in respect of running costs, which was to be agreed on by those concerned or to be ordered by a court. A lack of compensation for such expenses would constitute unjust enrichment on the part of the beneficiary of the easement. 17. On 14 May 2009 the Constitutional Court declared the applicants’ complaint inadmissible as being manifestly ill-founded. It reiterated its established case-law to the effect that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural claim had been advanced and, in any event, no procedural issue had been established. The ordinary courts’ judgments were supported by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification. 18. The Charter (Constitutional Law no. 23/1991 Coll.) was introduced into the legal order by way of a constitutional law which was enacted by the Federal Assembly of the Czech and Slovak Federal Republic on 9 January 1991 and which entered into force on 8 February 1991. The law remains in force in Slovakia today. 19. The relevant part of Article 11 provides: “1. Everyone has the right to own property. Each owner’s property right shall have the same content and enjoy the same protection. [The right of] inheritance is guaranteed. 2. The law shall designate the property necessary for securing the needs of society as a whole, the development of the national economy, and public welfare, which may be owned exclusively by the State, a municipality, or by designated legal persons; the law may also provide that certain items of property may be owned exclusively by citizens or legal persons with their headquarters in the Czech and Slovak Federal Republic. 3. Ownership entails obligations. It may not be misused to the detriment of the rights of others or in conflict with legally protected public interests. It may not be exercised so as to cause harm to health, nature, or the environment beyond the limits laid down by law. 4. Expropriation or some other mandatory limitation upon property rights is permitted in the public interest, on the basis of law, and for compensation.” 20. The relevant part of Article 20 provides: “1. Everyone shall have the right to own property. The property rights of all owners shall be uniformly construed and equally protected by law. The right of inheritance is guaranteed. ... 4. Expropriation or restrictions to the right of property may be imposed only to the extent necessary and in the public interest, in accordance with the law and for adequate compensation.” 21. Article 3 § 1: “The exercise of rights and fulfilment of duties under civil law must not interfere with the rights or legally protected interests of others without a lawful ground and may not be contra bonos mores.” 22. Article 123: “The owner shall be entitled, within the limits prescribed by law, to hold the object of his ownership, to use it, to benefit from its fruits and proceeds and to make dispositions in respect of it.” 23. Article 124: “All owners shall have the same rights and duties and shall be granted the same legal protection.” 24. Article 128: “1. The owner of a thing must endure the use of his thing [by another person] in a state of emergency or in a pressing public interest, for the necessary time, to the necessary extent, and in return for compensation, if the purpose cannot be achieved otherwise. 2. In the public interest, ... the ownership of [a thing] may be restricted if the purpose cannot be achieved otherwise, provided that the expropriation or restriction has a basis in law, and only for that purpose and for compensation.” 25. Article 151n et seq. provides basic rules in relation to easements: “1. Easements shall constitute a restriction on the owner of real property for the benefit of someone else, so that the owner must endure, refrain from doing or do something. The rights constituting an easement shall be linked to and originate from the ownership of particular real property or be linked to and belong to a particular person. 2. Easements linked to and originating from the ownership of real property shall pass to the acquirer together with the acquisition of the ownership of the property. 3. Unless the participants agree otherwise, the person who is entitled to use somebody else’s thing on the basis of a right constituting an easement must bear an adequate share of the costs of its maintenance and repair; however, if the thing is co-used by its owner, the owner must bear these costs in proportion to the extent of the joint use.” 26. The relevant part of Article 151o § 1 provides: “Easements can arise on the basis of a written contract, on the basis of a will, in connection with the outcome of inheritance proceedings, on the basis of an approved agreement among the heirs, on the basis of a decision by the competent authority, or by operation of law.” 27. Under section 22(1) of the 1957 Electrification Act, an enterprise active in the energy sector was entitled: (a) to build and operate electrical installations on other persons’ real property to the extent permitted under the building permit, to erect support pylons, to connect the plots by conductors and to establish the electricity main on them; (b) to access the real property directly concerned for the purposes of the construction, operation, maintenance, and modification or removal of the main; and (c) to remove or prune trees obstructing the main. 28. Subject to section 22(2), the exercise of the entitlements pursuant to section 22(1) was subject to no compensation. However, if the owners or users of real property not belonging to the (socialist) State were significantly encumbered in the use of the property because of the establishment of the main, they could a claim with the construction authority for the company concerned to pay them adequate one-off compensation. The claim was to be submitted within three months of the entry of the installation into permanent use on the pain of expiry. 29. The 1957 Electrification Act was abolished and replaced on 1 July 1998 by the 1998 Energy Act, which in turn was abolished and replaced as of 1 January 2005 by the 2004 Energy Act, which in its turn was eventually abolished and replaced on 1 September 2012 by the 2012 Energy Act (Law no. 251/2012 Coll.). Under all the Acts, however, entitlements in respect of other persons’ real property, and limitations on the use of it, which had been established previously remained intact. 30. Section 10 of the 2004 Energy Act, as applicable at the relevant time, provides for a number of safeguards and guarantees to the owners of real property affected by industrial activities in the energy sector, including: - rules on elimination and limitation to the minimum possible of any interference, restrictions, expenses and losses on the part of the owners due to activities of holders of licences to carry out business in the energy sector; - regulation of access to the real property affected; - regulation of measures to be taken and compensation for expenses incurred in connection with such measures in respect of vegetation undermining the security or reliability of the operation of energy facilities; - rules on one-off compensation payable to the owners if they are restricted in the ordinary use of their real property; and - rules on one-off compensation for the creation of an easement in rem on the property concerned, such easement consisting of the duties and restrictions imposed under section 10 of the 2004 Energy Act. 31. Similar provisions to those referred to in the precedent paragraph are contained in the 2012 Energy Act. The easements in question are to be registered with the Land Registry and the licence holder is to inform the owner of the real property concerned of the registration in writing (section 11(10) and (12) of the 2012 Energy Act). 32. By way of an action in the Prešov District Court (case no. 9C 207/00), an individual sued a municipality and a public-transport company of that municipality for compensation in connection with electrical installations situated on his real property and used by the defendants in operating the public transport system. For unclear reasons the applicants were third parties to the proceedings. 33. In the context of those proceedings, the Court of Appeal challenged before the Constitutional Court the constitutionality of section 42(2) of the 1957 Electrification Act, applicable by virtue of section 69(10) of the 2004 Energy Act, which had replaced the 1998 Energy Act. 34. On 28 September 2005 the Constitutional Court dismissed the challenge (case no. PL. ÚS 28/05) holding that the impugned statutory provisions merely concerned the continued existence of ex lege easements and provided for no new possibility to claim compensation. Providing for new compensation claims would amount to enabling new restitution claims, which the lawmaker was free under the Constitution to choose not to do.

train

001-104524

ENG

CZE

ADMISSIBILITY

CAVAJDA v. THE CZECH REPUBLIC

Inadmissible

Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant, Mr Jan Čavajda, is a Czech national who was born in 1962 and is serving his sentence in Valdice prison. He was represented before the Court by Mr O. Moravec, a lawyer practising in Hradec Králové. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In a judgment of 10 February 2005 the Hradec Králové Regional Court (krajský soud) found the applicant guilty of an attempted murder. On 21 April 2005 the Prague High Court (vrchní soud) quashed the judgment holding that the guilt of the applicant had not been yet proven beyond reasonable doubt and instructed the Regional Court to gather additional evidence. After examining additional evidence, some of it suggested by the applicant, and having held a public hearing the Regional Court found again the applicant guilty of an attempted murder on 11 January 2006. The court found it established that the applicant had beaten his roommate with a stick and subsequently had made him to swallow a deadly amount of medicaments. The victim had not died only because of timely medical intervention. The applicant was sentenced to thirteen years’ imprisonment. The court based its decision on the testimony of several witnesses including the victim, on an expert medical report describing the injuries which the victim suffered and on a psychological and toxicological report of the victim and also a police report describing the crime scene. At the trial, the victim only referred to his testimony from the pre-trial proceedings, which was read out at the trial, but he answered all the questions given to him. The applicant appealed arguing primarily that his guilt had not been proven beyond reasonable doubt. On 7 March 2006 the Prague High Court (vrchní soud) at a public hearing upheld the first-instance judgment. On 21 June 2006 the Supreme Court (Nejvyšší soud) rejected the applicant’s appeal on points of law as manifestly ill-founded. The applicant lodged a constitutional appeal (ústavní stížnost) claiming a violation of his right to a fair trial and the right to liberty. He alleged that his conviction was based solely on the testimony of the victim and he disagreed with the assessment of evidence carried out by the courts. The Constitutional Court (Ústavní soud) requested observations from the ordinary courts and prosecutor’s offices which had previously been involved in the case. The Supreme Court, the High Court and the Regional Court only referred to their decisions and stated that they had not violated the applicant’s constitutional rights. The Supreme Prosecutor’s Office and the High Prosecutor’s Office waived their right to be parties to the proceedings. The Regional Prosecutor’s Office in its one-paragraph submission considered the constitutional appeal ill-founded without any elaboration and referred to the decisions of the ordinary courts. None of these observations were communicated to the applicant. On 14 February 2007 the Constitutional Court rejected the constitutional appeal as manifestly ill-founded holding that it was not a court of third instance. It added that the decisions of ordinary courts were logical and there was no appearance of arbitrariness. It further noted that it did not take the above observations into account as they did not bring anything new. The relevant domestic law and practice concerning the procedure before the Constitutional Court are set out in the Court’s judgment in the case of Milatová and Others v. the Czech Republic (no. 61811/00, ECHR 2005V).

train

001-90101

ENG

RUS

CHAMBER

CASE OF TRAPEZNIKOVA v. RUSSIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (procedural aspect);Violation of Art. 6-1;Violation of P1-1

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

5. The applicant was born in 1940 and lives in Stavropol. 6. At the material time the applicant and her husband lived in a three-room apartment in a block of flats at 4 Prospekt Revolyutsii in the city of Grozny, the Chechen Republic. The applicant submitted a housing warrant (ордер) confirming her right to live in the apartment. She did not submit any documents proving that she had a title to the flat. 7. In early October 1999 a military operation was launched in the territory of the Chechen Republic. 8. According to the applicant, on 4 January 2000 the block of flats at 4 Prospekt Revolyutsii was hit by a missile fired by the Russian armed forces during an attack on Grozny. The applicant’s flat and all her belongings were destroyed. It does not appear that the applicant witnessed the destruction. 9. On 6 January 2000 the applicant, her husband and other residents were sheltering from a bombardment in the basement of their block of flats. At around 10 p.m. an intoxicated man armed with a machine gun came down to the basement and started shooting, with the result that the applicant’s husband and three other persons were killed. The applicant managed to escape. According to her, the name of the man who shot her husband was Khalid. He had lived for some time in their block of flats and during the bombings she had met him in the basement on several previous occasions. 10. On the next day the applicant buried her husband’s body and the bodies of the others killed in the shooting in the courtyard. It does not appear that an autopsy was performed or any photographs taken. 11. On 21 June 2000 a local registry office certified the death of the applicant’s husband. On the same date a housing authority issued the applicant with a certificate confirming that her flat “was destroyed and burnt completely during the military actions on 4 January 2000”. The certificate contained no other information relating to the destruction. The applicant did not submit any documents which would indicate the cause of the destruction of the block of flats at 4 Prospect Revolutsii, or any photographs of the site of the destruction. 12. According to the Government, the applicant’s written complaint concerning her husband’s murder was received by the Zavodskoy District Department of the Interior of Grozny on 17 February 2000. On 27 February 2000 the acting prosecutor of Grozny opened an investigation into the case under Article 105 (2) (aggravated murder) of the Russian Criminal Code. The case file was assigned the number 12005. 13. On the same day the applicant was granted the status of victim of a crime and questioned. She reiterated her account of the events of 6 January 2000 and described the appearance of the alleged murderer. 14. In the Government’s submission, on 27 February 2000 the investigation authorities also inspected the scene of the incident in the applicant’s presence. The Government did not produce any report on that inspection. 15. On 23 April 2000 the proceedings in case no. 12005 were suspended for failure to establish the identity of the alleged perpetrator. The applicant was informed in writing that the proceedings had been adjourned on 27 [rather than 23] April 2000. 16. On 7 June 2000 the criminal proceedings were reopened. According to the Government, on the same date, upon the applicant’s request of 31 May 2000, the investigator in charge ordered the exhumation of the corpses of those killed on 6 January 2000, including the applicant’s husband. The exhumation and forensic examination were carried out on the next day. 17. On 7 July 2000 the investigation was stayed as it was impossible to establish those responsible. It does not appear that there was any investigative activity between 7 July 2000 and 10 December 2001. 18. On the latter date the decision of 7 July 2000 was set aside and the proceedings in criminal case no. 12005 were resumed, the applicant being notified in a letter of 12 December 2001. 19. On 14 January 2002 the investigation into the killing of the applicant’s husband was again suspended in the absence of information concerning those responsible. It appears that the applicant was not informed of that decision until 14 October 2002, when the Grozny prosecutor’s office stated in their letter that the criminal proceedings instituted on 27 February 2000 in connection with the killing of the applicant’s husband had been suspended on 14 January 2002 for failure to find the alleged perpetrators, and that the search for those responsible was under way. 20. In a letter of 13 May 2002 the Department of the Ministry of the Interior for the Southern Federal Circuit notified the applicant that the investigation in connection with her husband’s murder had been commenced on 17 [rather than 27] February 2000, that the case had been given the number 12005 and that the suspect in the case, Ismailov Kh. S., had been an officer of the Ministry of the Shariat State Security [a security service established when the former President of Chechnya, Aslan Maskhadov, had been in power]. The letter stated that the suspect was presently on the federal wanted list. 21. It does not appear that any investigative activity took place between 14 January 2002 and 21 April 2005. 22. On the latter date the criminal proceedings in case no. 12005 were re-opened. The applicant was informed of this decision on the same date. 23. On 22 May 2005 the investigating authorities stayed the criminal proceedings on account of their inability to establish the alleged perpetrator and apprised the applicant of their decision on the same date. 24. It does not appear that any investigative activity took place between 22 May 2005 and 8 December 2006. 25. On the latter date the investigation was resumed. The investigating authorities informed the applicant of that decision in a letter of 8 December 2006. According to the Government, the conduct of the investigation was being supervised by the Prosecutor General’s Office. 26. In the Government’s submission, apart from the applicant, the investigating authorities also questioned seven witnesses. One of them, the applicant’s neighbour who had helped her to bury the bodies, gave oral evidence similar to the applicant’s account, whereas the others did not provide any relevant information. According to the Government, the investigating authorities also sent a number of queries to “competent bodies”. In particular, such queries were sent on 28 February, 17 April and 11 July 2000, 10 January 2002 and 4 May 2005. 27. The Government also submitted that the investigation had obtained information that the murder of the applicant’s husband and other victims had been committed by Khalid (Khazir) Ismailov, who had been an officer of a security service established when the former President of Chechnya, Aslan Maskhadov, had been in power. During the investigation, an address of Khalid’s acquaintance had been established, but the house at that address had proved to be deserted. The investigators also verified the possible involvement of a number of persons with the surname “Ismailov” in the killing of 6 January 2000, but that had brought no positive result. 28. On 20 July 2001 the applicant issued civil proceedings against a number of Federal Ministries before the Leninskiy District Court of Stavropol (“the District Court”). In her written submissions to the court the applicant sought damages in respect of her husband’s death. She also stated that the block of flats in which she lived had been destroyed by a missile and asked the court to award her compensation for the destroyed flat and belongings that had been in the flat. As can be ascertained from a copy of her written submissions, the applicant enclosed copies of her passport, the marriage certificate, the death certificate, the housing warrant, a letter from a local authority, and certificates from the housing authority. 29. By a default judgment of 3 December 2001 the District Court allowed in part the applicant’s compensation claim for her husband’s death and awarded her 20,000 Russian roubles (RUB). 30. As regards the applicant’s compensation claim concerning the destruction of her property, the court noted that under Article 1069 of the Civil Code of Russia the State was liable only for damages caused by its agents’ actions which were unlawful. It further found that the actions of the Russian federal troops in Chechnya had been lawful, as the military operation in Chechnya had been launched under Presidential Decree no. 2166 of 30 November 1994 and Governmental Decree no. 1360 of 9 December 1994, both of which had been found to be constitutional by the Constitutional Court of Russia on 31 July 1995. 31. The court further stated that the applicant had submitted no evidence proving a causal link between the defendants’ actions and the damage sustained by her, since the military actions had been carried out by both parties to the conflict. Therefore the destruction of the applicant’s possessions could not be imputed to the defendants. 32. The court further held that under Article 1079 of the Civil Code of Russia damage inflicted by a “source of increased danger” (источник повышенной опасности) was to be compensated for by the person or entity using that source, unless it was proven that the damage had been caused by force majeure or through the fault of the affected person. However, in the court’s view, the applicant’s reference to the above Article was unfounded, as weapons and military equipment, in the circumstances of the present case, could not be regarded as a “source of increased danger”, since they had been used strictly for the purposes they were designed for and under the firm control of the relevant personnel. Moreover, the applicant had not adduced any evidence which would enable the court to establish the type and ownership of the weapon which had destroyed the applicant’s housing. 33. The court also noted that the applicant had submitted no documents confirming the value of her lost property. It noted in this respect that witness statements obtained during the hearing only enabled it to establish the existence of the possessions in the applicant’s flat prior to the destruction and the fact that those possessions had been new. The court made no findings regarding the applicant’s property rights in respect of the destroyed flat. 34. The applicant’s claims for compensation for non-pecuniary damage could not be granted either, in the absence of any fault or unlawful actions on the part of the defendants. In view of the above, the court concluded that there were no grounds for granting the first applicant’s compensation claim for the destroyed property. 35. It does not appear that the applicant ever sought the first-instance court’s assistance in obtaining evidence relating to the weapon that had destroyed her housing. In her appeal against the judgment of 3 December 2001 the applicant did not complain of her inability to obtain the evidence in question. 36. On 30 January 2002 the Stavropol Regional Court upheld the first-instance judgment on appeal. 37. On 30 January 2002, following the decision of the Stavropol Regional Court, the judgment of 3 December 2001 became final and binding. 38. According to the applicant, at some point the District Court issued a writ of execution and sent it to the Ministry of Finance for execution on 30 April 2002. 39. In the Government’s submission, the writ of execution was received by the Ministry of Finance on 24 November 2004. 40. On 16 March 2006 the Ministry of Finance sent the applicant a letter inviting her to indicate the details of her bank account to enable the said Ministry to transfer the judgment debt to her. 41. The applicant provided the necessary information on 5 May 2006. 42. On 30 October 2006 the full amount due pursuant to the judgment of 3 December 2001 was transferred to the applicant’s bank account. 43. In October 2006, at the communication stage, the Government were invited to produce a copy of the investigation file of case no. 12005 instituted in connection with the killing of the applicant’s husband and other persons on 6 January 2000. Relying on the information obtained from the Prosecutor General’s Office, the Government refused to submit a copy of the entire file, stating that the disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure since the file contained personal data concerning the witnesses. They, however, produced a number of documents from the file, which can be summarised as follows. 44. By decisions of 27 February 2000 the Grozny prosecutor ordered that criminal proceedings be instituted in connection with the killing of the applicant’s husband and three other persons by a man named Khalid using a machine gun on 6 January 2000 and that an investigative group be organised for the investigation. 45. By a decision of 27 February 2000 the investigator in charge declared the applicant the victim of a crime. 46. By a decision of 15 March 2000 an investigator of the Grozny prosecutor’s office took up the case. 47. By a decision of 23 April 2000 the investigator in charge suspended the proceedings in case no. 21005. The decision stated that the term established for the preliminary investigation had expired, that all possible investigative actions had been carried out, but that it was impossible to establish the identity of the alleged perpetrator. The decision did not list the actions that had been taken during the investigation. 48. In a letter of 23 or 28 [the hand-written date is unclear] April 2000 the applicant was informed that the investigation in case no. 12005 had been stayed, as it was impossible to establish the identity of the person responsible. 49. On 7 June 2000 the Grozny prosecutor ordered that the investigation be resumed, citing “the necessity of carrying out investigative actions”. He did not indicate which particular actions should be taken. By a decision of the same date an investigator of the Grozny prosecutor’s office took up the case. 50. A decision of 10 December 2001 of the first deputy prosecutor of Grozny ordered that the investigation in criminal case no. 12005 be resumed. It stated, in particular, that “...the investigation ... [had been] extremely superficial and was limited to carrying out several investigative actions and to including in the materials of the case file reports of investigating officers on the performed work and the results”. It went on to say that the decision of 7 July 2000 by which the investigation had been suspended for failure to establish the alleged perpetrator had been premature, before all investigative steps had been taken, and should be quashed. The decision of 10 December 2001 further listed a number of investigative steps that should be taken during an additional investigation. 51. In a letter of 12 December 2001 the Grozny prosecutor’s office informed the applicant in reply to her query that the criminal proceedings had been suspended on 7 July 2001 [apparently a misprint, the correct date is 2000] in the absence of any persons identifiable as the perpetrators. The letter went on to say that a study of the case file had shown the preliminary investigation into the circumstances of the death of the applicant’s husband to have been superficial, and that the proceedings had therefore been resumed on 10 December 2001 and the investigator in charge had been instructed to carry out an additional investigation. 52. By decisions of 14 December 2001 an investigator of the Grozny prosecutor’s office took up case no. 12005 and requested that 14 January 2002 be fixed as the term of the preliminary investigation. 53. On 14 January 2002 the investigator in charge ordered that the proceedings be stayed, as “during the additional investigation it [had been] impossible to establish those responsible”. The decision did not specify whether any investigative steps had been taken, or if so, what they were. 54. By a decision of 21 April 2005 a deputy prosecutor of the Zavodskoy District prosecutor’s office set aside the decision of 14 January 2002 and ordered that the investigation in case no. 12005 be reopened. The decision stated that “the investigation [had been] carried out superficially, haphazardly and unprofessionally” and that “the decision [of 14 January 2002] suspending the preliminary investigation [had been] premature and unfounded, without all the circumstances of the serious crime committed having been studied”. The prosecutor thus ordered that the decision of 14 January 2002 be set aside, given, in particular, the fact that the prosecutor’s instructions of 10 December 2001 had not been complied with. The decision did not list any particular investigative actions to be performed. 55. On 22 April 2005 an investigator of the Zavodskoy District prosecutor’s office took up the case, and on the same date informed the applicant of the reopening of the investigation. 56. By a decision of 22 May 2005 the investigator in charge stayed the investigation on account of the failure to establish the alleged perpetrator. The decision stated that during the additional investigation a query had been sent to the Ministry of the Interior of the Chechen Republic with a view to establishing the alleged perpetrator’s whereabouts, and that, upon receipt of a reply to that query, a request was sent to the Shali district prosecutor’s office with a view to organising interviews with persons having personal details similar to those of the alleged perpetrator. The decision did not indicate whether any other steps had been taken. A letter of the same date informed the applicant of this decision. 57. By a decision of 8 December 2006 a deputy prosecutor of the Zavodskoy district prosecutor’s office ordered that the decision of 22 May 2005 be set aside and the proceedings in case no. 12005 reopened. The decision stated, in particular, that the decision to suspend the investigation had been unfounded and that the investigator in charge had failed to take all measures which could be taken in the absence of a person identifiable as a perpetrator. The decision further listed investigative measures that should be taken during an additional investigation. On the same date an investigator of the Zavodskoy district prosecutor’s office took up the case and informed the applicant of the reopening of the proceedings. 58. A report on the exhumation dated 8 June 2000 contains a detailed description of the site of the burial and the exhumed bodies. 59. In June 2000 (the date is unclear) forensic medical experts drew up reports on the results of the examination. The report drawn up in respect of the body of the applicant’s husband attested the presence of gunshot wounds to the head and neck. 60. On 19 June 2000 the investigator in charge sent a query to the Prosecutor General’s Office in an attempt to find out whether any criminal proceedings had ever been brought against Khazir (Khamed) Ismailov, aged 43, who had been an officer of the security services established by rebel fighters, and if so, to obtain his full personal details and photographs, or in the absence of photographs to have people who might have known him questioned. 61. During an interview of 27 February 2000 the applicant re-stated the circumstances of the incident of 6 January 2000. She described in detail the appearance of Khalid, the man who, according to her, had shot her husband and three other persons. She stated that he was of Chechen origin and, since December 1999, had shared a flat in their block of flats with another man of Chechen origin, who had been their neighbour. Both of them had been armed with machine guns. She further stated that on the night of the incident Khalid had come down to their basement in a drunken state and shot her husband and three others with his machine gun. She had managed to hide in a dark corner of the basement. Immediately after the incident the applicant ran to a neighbouring block of flats where rebel fighters had been quartered and told them about the killing. According to her, they had taken Khalid out of the basement and started beating him with the butts of their machine guns and had promised her that they would commit him for trial. On the following day, with the assistance of her two neighbours, the applicant had buried those killed near their block of flats. On the same day in the courtyard she had seen Khalid armed with a machine gun. 62. One of the neighbours who had helped the applicant with the burial stated in her witness interview of 27 February 2000 that she had learnt about the killing of the applicant’s husband and three others from the applicant. She gave oral evidence similar to that of the applicant and added that during the burial a man who had described himself as the former head of a security service established by rebel fighters had said that he knew Khalid and indicated the approximate vicinity of Khalid’s residence. 63. Transcripts of witness interviews held on 20 and 21 May 2005 reveal that the investigating authorities questioned three persons who were born in 1966, 1971 and 1983 and had the surname Ismailov and the first names of Khalid or Khazir. All of them stated that they had not been in Grozny during the period in question, did not know the man described by the applicant, and had no information regarding the incident of 6 January 2000. 64. Transcripts of witness interviews on 8 and 9 December 2006 reveal that the investigating authorities questioned six persons, apparently the applicant’s neighbours. They all stated that they did not know, and had no information about, the man described by the investigators. 65. The Government also adduced the transcript of a hearing held by the Leninskiy District Court of Stavropol on 3 December 2001. According to this document, both the applicant and her legal counsel, Mr V. Tretyakov, attended the hearing. It is clear from this document that both parties to the proceedings received explanations in respect of their rights and obligations, in particular, those established by Article 50 of the Code of Civil Procedure (see paragraph 67 below). The transcript further reveals that the court heard both parties, the applicant having made statements similar to her written submissions to the court, and then four witnesses, who described the belongings that had been in the applicant’s flat prior to the destruction. The witnesses did not indicate the value of that property. As can be seen from the document, neither the applicant nor her representative had any questions, nor filed any motions. It is also clear that the court examined the following pieces of evidence: a copy of the marriage certificate, a copy of the passport, a housing warrant, a copy of the death certificate, an extract from a medical history card, two certificates, two letters, a copy of an identity document, parties’ written submissions, and summons. 66. Article 109 of the Code of Criminal Procedure of 1960 in force at the relevant time provided that the competent authorities were under an obligation to take a decision in respect of any written or oral complaint concerning a criminal offence within three days, or in exceptional cases ten days, from the date on which the complaint was received. 67. Article 50 of the Code of Civil Procedure of 1964 in force at the relevant time stated that each party to proceedings must prove those circumstances to which it refers in support of its submissions. A court decides what circumstances are relevant for the case and which party must prove them and proposes those circumstances for discussion even if some of them have not been referred to by any of the parties. Evidence is submitted by the parties and other persons involved in the proceedings. A court may propose that the parties or other persons involved in the proceedings submit additional evidence. If it is complicated for the parties or other persons involved in the proceedings to submit additional evidence, the court, on their request, assists them in obtaining that evidence. 68. Section 9 of the Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit. 69. Under Section 13, enforcement proceedings should be completed within two months following receipt of the writ of enforcement by the bailiff.

train

001-60975

ENG

LTU

CHAMBER

CASE OF JASIUNIENE v. LITHUANIA

Violation of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1 as regards non-execution;No violation of P1-1 as regards other complaints

Ireneu Cabral Barreto

8. The applicant was born in 1923 and lives in Palanga. 9. Before the Second World War the applicant's mother occupied a dwelling house (“the house”) on a plot of land measuring 1,422 square metres (“the plot”) in the centre of the tourist resort of Palanga on the Baltic Sea coast. Following the Soviet occupation of Lithuania in 1940, the land was nationalised and the house was demolished in the 1960s. 10. By a decision of 25 September 1992 the Palanga City Council, by reference to the Restitution of Property Act, decided to “restore the property rights” of the applicant and her sister in regard to their late mother's land. No form of restitution was specified in the decision. 11. The decision of 25 September 1992 was not implemented as no land was returned and no compensation was offered. In January 1995 the applicant brought a court action against the local authority, claiming that the plot should have been returned to her and her sister. 12. On 15 December 1995 the Palanga City District Court dismissed the applicant's action. By reference to Article 5 of the Restitution of Property Act (see § 22 below), the court held that the applicant was not entitled to recover the plot, but that she should have been offered an alternative parcel in compensation as required by the law. 13. The applicant appealed, stating that the plot had to be returned to her. 14. On 3 April 1996 the Klaipėda Regional Court quashed the judgment of the District Court. The Regional Court found that the decision of the Palanga City Council of 25 September 1992 did not comply with Article 19 of the Restitution of Property Act as the local authority had not decided whether land or money and, in either case, which land or what amount of money should have been offered to the applicant as a compensation. The Regional Court held that the local authority had to resolve these questions. The court required the administration of Klaipėda County to “adopt, by 30 June 1996, a decision on the request by Stasė Jasiūnienė to restore her property rights in regard to the plot of land (iki 1996 m. birželio 30 d. priimti sprendimą pagal Stasės Jasiūnienės prašymą dėl nuosavybės teisės į žemės sklypą atstatymo)”. 15. However, no such decision was taken as the applicant refused an alternative parcel of land in another area of Palanga. The applicant's sister accepted an alternative parcel. 16. On 13 August 1996 the applicant obtained an execution warrant for the judgment of 3 April 1996. She put the matter in the hands of bailiffs who were unable to execute the warrant against the county administration. The executive authorities took no further decision as the applicant had again refused an alternative parcel of land. 17. By a letter of 15 December 1997, the Klaipėda County Governor stated that the applicant had misinterpreted the judgment of 3 April 1996. In the Governor's opinion, the Regional Court had only required the county administration to adopt a decision in accordance with the Restitution of Property Act. As the applicant had no buildings or other property on the plot, she was not entitled to its return. The Governor requested the applicant to approach planners at the Palanga City Council to choose an alternative parcel. He warned her that a different parcel would be allotted without her consent in order to comply with the judgment of 3 April 1996. 18. On 31 December 1997 the applicant wrote to the Prime Minister, stating that she had been entitled to the plot, that the alternative parcels offered by the local authority were located in the outskirts of Palanga, and that their value was thus not equivalent to the plot in the centre of town. 19. In a letter of 11 February 1998, the Director of the Land Authority of the Ministry for Agriculture and Forestry stated that on 25 September 1992 the Palanga City Council had decided to restore the applicant's property rights notwithstanding the fact that there had been a lack of relevant documentation proving her late mother's ownership of the plot. Moreover, the Director stated that from the decision of 25 September 1992 it was “unclear in respect of which owner or land the property rights were restored[;] the form of the restitution of property was also unclear ...”. The Director requested the Klaipėda County Governor to re-examine the lawfulness of the decision of 25 September 1992. 20. Until 1999 the applicant was proposed and refused three offers by the Klaipėda County Governor for alternative parcels of land in various areas of Palanga. 21. By a letter of 30 August 1999, the executive authorities informed the applicant that she had not proved her mother's ownership of the original plot in accordance with the governmental instructions of 13 July 1998, i.e. she had not submitted the original papers confirming the purchase of the plot by her mother, or a court decision proving ownership. The executive authorities held that they could not proceed with a decision on compensation until the applicant presented these papers. 22. The Restitution of Property Act (Nuosavybės teisių ... atkūrimo įstatymas) (of 1991, amended on numerous occasions) provides for two forms of restitution: 1) the return of the property in certain circumstances, 2) compensation in other cases (compensation can be made in land or money). On 27 May 1994 the Constitutional Court examined the issue of compatibility of the Constitution with the domestic laws on restitution of property rights. In its decision the Constitutional Court held inter alia that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated: “The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item. In this situation the decision of a competent authority to return the property or to compensate therefor has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item.” The Constitutional Court also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property. In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania as a re-established State in 1990 were not responsible for the Soviet occupation half a century ago, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various property items which had been previously nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased the property under lawful contracts. On 20 June 1995 the Constitutional Court also said that the choice by the Parliament of the partial reparation principle was influenced by the difficult political and social conditions in that “new generations had grown, new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of restitution of property”. On 8 March 1995 the Constitutional Court ruled that a person who qualifies for compensation for property which cannot be returned is entitled to choose the form of compensation (land or money) by giving written permission for the authorities to proceed with the decision. The Constitutional Court also held that the executive authorities have discretion to decide on appropriate compensation in each case, but that a person is entitled to contest that compensation by way of a court action. Under Article 18 of the Restitution of Property Act (all versions until 1999), the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property which could not be returned. Pursuant to the version of the Restitution of Property Act as amended from 2 June 1999, the executive authorities are now entitled to decide the question of compensation without the person's approval. That decision can be appealed to a court in accordance with the procedure established in Article 19 of the Act. No stamp duty is required to file such an action. 23. Under Article 372 of the Code of Civil Procedure, a court judgment which has come into force is binding and must be executed. The Code of Civil Procedure nonetheless requires the individual concerned to obtain an execution warrant (vykdomasis raštas) from the court which has delivered the final judgment; the execution warrant must be presented to bailiffs for immediate enforcement (Articles 372-379). The requirements of the bailiffs are binding on all authorities and subjects (Article 381).

train

001-105754

ENG

HRV

CHAMBER

CASE OF JURIČIĆ v. CROATIA

Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

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

5. The applicant was born in 1954 and lives in Zagreb. 6. On 26 February 2008 the Committee on the Constitution, Rules of Procedure and Political System of the Croatian Parliament, (Hrvatski Sabor – Odbor za Ustav, Poslovnik i politički sustav – “the Parliamentary Committee”) published in the Official Gazette (no. 26/2008 of 29 February 2008) a Call for Applications for the Election of Three Judges to the Constitutional Court, inviting prospective candidates to submit their applications. 7. On 28 April 2008 the applicant, a judge of the Administrative Court, submitted her application for the post of judge of the Constitutional Court. Another eighteen candidates also submitted applications. 8. The Parliamentary Committee eventually compiled a shortlist of four candidates, namely, Mr M.J., Mrs D.Š., Mrs S.B. and the applicant, and submitted it to Parliament for a vote. 9. After a secret ballot in which the applicant received four of the required 77 votes, on 9 May 2008 Parliament adopted a decision electing Mr M.J., Mrs D.Š. and Mrs S.B., who each received 78 votes, as judges of the Constitutional Court. 10. On 26 May 2008 the applicant, relying on section 66 of the Administrative Disputes Act (see paragraph 32 below), lodged a request for the protection of a constitutionally guaranteed right (zahtjev za zaštitu ustavom zajamčenog prava) with the Administrative Court (Upravni sud Republike Hrvatske) contesting Parliament’s decision of 9 May 2008. She argued that S.B. had not proved that she had at least fifteen years of professional experience and thus did not demonstrate that she satisfied all the statutory criteria for election as a Constitutional Court judge set forth in section 5(1) of the Constitutional Court Act (see paragraph 25 below). Therefore, in the applicant’s view, by electing S.B. instead of her, Parliament had breached her right to equality before the law, the right to equality before the State and other public authorities, the right to equal access to public service and the right to equal access to employment guaranteed in Articles 14(2), 26, 44 and 54(2) of the Constitution (see paragraph 23 below), respectively. 11. On 26 June 2008 the Administrative Court invited M.J. and D.Š. to submit their observations as third (interested) parties (zainteresirane osobe). On 7 and 8 June 2008, respectively, they replied that they considered the applicant’s request unfounded and that the election of the Constitutional Court’s judges had been in accordance with the law. They also stated that they did not consider themselves third (interested) parties to the proceedings because the applicant had not challenged their election. 12. On 15 October 2008 the Administrative Court delivered a judgment whereby it allowed the applicant’s request and quashed Parliament’s decision of 9 May 2008 in its part concerning S.B. The court held that the applicant was entitled to lodge her request even though that court’s judgment did not alter her legal status as unelected candidate. It also held that from the evidence submitted by S.B. to the Parliamentary Committee it could not be discerned whether she had the required professional experience and that therefore the applicant’s right to equal access to public service and her right to equal access to employment, guaranteed by Articles 44 and 54(2) of the Constitution, had been breached by the contested decision. 13. On 4 February 2009 S.B. lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Administrative Court’s judgment. At the same time she asked the Constitutional Court to order an interim measure that would postpone the effects of the contested judgment until that court had decided on her constitutional complaint. S.B. argued in her constitutional complaint that the impugned judgment of the Administrative Court had breached her right to equality before the law, the right to work and the right to equal access to employment guaranteed in Articles 14(2) and 54(1) and (2) of the Constitution (see paragraph 23 below), respectively. She also argued that the election of the Constitutional Court judges was a political rather than a legal issue. Therefore, Parliament’s decision of 9 May 2008 constituted a so-called act of State (akt vladanja) in respect of which the scope of constitutional review was limited to compliance with procedural rules (that is, to formal constitutionality) and was thus very narrow. In particular, she argued that the Administrative Court had not been authorised to assess whether the evidence she had submitted had been sufficient to prove that she had the required professional experience and to question the Parliamentary Committee’s findings in this respect. 14. On the same day, the Constitutional Court, sitting in a plenary session composed of ten judges (including judges M.J. and D.Š.), ordered an interim measure postponing the effects of the Administrative Court’s judgment of 15 October 2008. In so doing it held, inter alia, that: “...the contested judgment [of the Administrative Court] requires detailed examination of the limits and scope of judicial review of decisions on appointment of State officials, ..., and in that sense, has a wider importance that goes beyond the limits of an individual case.” The decision on the interim measure was published in Official Gazette no. 16/2009 of 5 February 2009 but has never been served on the applicant. 15. On 13 February 2009 the Constitutional Court served the constitutional complaint together with the request for an interim measure on the applicant. 16. On 18 February and 3 March 2009 S.B. supplemented her constitutional complaint, alleging a violation of her right to a fair hearing guaranteed by Article 29(1) of the Constitution. On 20 February and 5 March 2006, respectively, the Constitutional Court served the two supplements on the applicant. 17. On 7 March 2009 the applicant submitted her reply to S.B.’s constitutional complaint and two days later to its supplements of 18 February and 3 March 2009. She argued that because the election of the Constitutional Court judges was regulated by law, it was not a political but primarily a legal issue. Consequently, Parliament’s decision of 9 May 2008 was not an “act of State” and was therefore justiciable, that is, capable of being challenged in legal proceedings. In any event, section 66 of the Administrative Disputes Act entitled the Administrative Court to review any individual decision capable of violating constitutional rights, regardless of its nature or of whether it emanated from the legislative or the executive branch of government. As regards S.B.’s request for an interim measure, the applicant, after having remarked that the Constitutional Court had granted it on the same day the request had been made, argued that under section 67(2) the Constitutional Court Act such a measure could not postpone “the effects of a contested decision” but only its “enforcement” (see paragraph 25 below). Lastly, the applicant asked the Constitutional Court to “hold a public session (hearing)” and invite her to attend it (“održi javnu sjednicu (raspravu) na koju molim da me se pozove”). 18. During the proceedings, the Constitutional Court requested and obtained observations from the Parliamentary Committee, expert opinions from six law-faculty professors and two former judges of that court as well as opinions and information from the Croatian National Bank, the State Central Office for Administration, the Croatian Bar Association, the Ministry of Justice, the State Bureau of Statistics and a private bank Zagrebačka banka d.d.. The remaining nine law faculty professors from whom the Constitutional Court also requested expert opinions did not submit them. The attempt to obtain information from the Danish Red Cross failed because the NGO in question could not be found at the address indicated in the relevant register. 19. On 31 March 2009 the applicant wrote to the Constitutional Court asking it to serve her with “the expert opinions requested (from individuals and institutions)”, which she had found out about from the media. 20. On 30 April 2009 the Constitutional Court, sitting in a plenary formation of ten judges (including judges M.J. and D.Š.), held a session to which the applicant was not invited, and adopted a decision whereby it quashed the Administrative Court’s judgment of 15 October 2008. It held that the election of Constitutional Court judges was a hybrid (political and legal) issue and that, even though Parliament’s decision of 9 May 2008 was “an act of State”, the Administrative Court could have reviewed not only whether the prescribed procedure had been followed but also whether the candidates had satisfied the required statutory conditions. Nevertheless, the Administrative Court had overstepped the bounds of its jurisdiction when it had (re)assessed the evidentiary value of the documents S.B. had furnished as proof that she had possessed the required professional experience. By so doing the Administrative Court had not only encroached on matters within the exclusive jurisdiction of Parliament, but had also breached S.B.’s right to work and her right to equal access to employment guaranteed by Article 54(1) and (2) of the Constitution, as well as her right to equality before the law guaranteed by Article 14(2) of the Constitution. 21. On the same day, the President of the Constitutional Court and her Deputy held a press conference at which they announced that the Administrative Court’s judgment of 15 October 2008 had been quashed, that S.B. remained a judge of the Constitutional Court and that the case would not be remitted to the Administrative Court in order to “stop this agony”. 22. On 4 May 2009 the Constitutional Court served its decision, together with the opinions and information obtained during the proceedings, on the applicant. On 5 June 2009 the decision of the Constitutional Court was published in the Official Gazette (no. 65/2009). 23. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows: “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other beliefs, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” “All nationals of the Republic of Croatia and foreigners shall be equal before the courts and other State or public authorities.” “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “Every national of the Republic of Croatia shall have the right, under equal conditions, to take part in the conduct of public affairs, and to be admitted to public service.” “Everyone shall have the right to work and enjoy freedom of work. Everyone shall be free to choose his or her vocation and occupation, and every job or duty shall be accessible to everyone under equal conditions.” “The Constitutional Court of the Republic of Croatia shall consist of thirteen judges elected among eminent lawyers, especially judges, State attorneys, advocates and university professors of law, by the Croatian Parliament for a term of eight years. The Croatian Parliament’s Committee on the Constitution shall conduct proceedings related to candidatures for election to the Constitutional Court of the Republic of Croatia and propose candidates to the Croatian Parliament. The Constitutional Court of the Republic of Croatia shall elect its President for a term of four years.” 24. In its judgment no. Zpa-5/2004-5 of 2 December 2004, following a request for the protection of a constitutionally guaranteed right (see paragraph 32 below) the Administrative Court quashed the decision of the National Judicial Council on the appointment of a Municipal Court judge. It held that every candidate satisfying the statutory requirements had the right to equal participation in a competition for public office. Therefore, by appointing a candidate who did not satisfy the statutory requirements to be a judge of a Municipal Court, the National Judicial Council had violated the other candidate’s constitutional right to equal access to public service guaranteed by Article 44 of the Constitution (see the preceding paragraph). 25. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: Section 5 “(1) A Croatian national who is a bachelor of laws with at least fifteen years of experience in the legal profession, and who has become eminent in that profession by virtue of his or her academic or professional work or his or her public activities, may be elected as a judge of the Constitutional Court. (2) A person who has obtained a doctoral degree in legal science and satisfies the other conditions referred to in paragraph 1 of this section may be elected as a judge of the Constitutional Court if he or she has at least twelve years of experience in the legal profession.” “(1) The Croatian Parliament’s Committee on the Constitution (hereinafter: ‘the competent committee’) shall institute the procedure for electing judges of the Constitutional Court by publishing a call in the Official Gazette inviting judicial institutions, law faculties, the Bar Association, lawyers’ associations, political parties and other legal entities and individuals to nominate candidates for the election of one or more judges of the Constitutional Court (hereinafter: ‘the call’). An individual may also put himself or herself forward as a candidate. (2) The call shall set down the conditions for electing a judge of the Constitutional Court set forth in the Constitution and this Constitutional Act, the time-limit for submission of a candidate’s nomination to the competent committee, and the enclosures to be delivered with the nomination. (3) After the time-limit referred to in paragraph 2 of this section expires, the competent committee shall examine whether the candidates satisfy the conditions for being elected as judges of the Constitutional Court set forth in the Constitution and this Constitutional Act, and shall reject invalid candidatures. (4) The competent committee shall hold a public interview with each candidate who satisfies the conditions for being elected as a judge of the Constitutional Court and shall, on the basis of information collected and the results of the interviews, compile a shortlist of candidates for judges of the Constitutional Court. The shortlist shall, as a rule, comprise more candidates than the number of judges ... who are to be elected. (5) The competent committee shall submit to the Croatian Parliament, together with its proposal, the list of all candidates who satisfy the conditions for being elected as judges of the Constitutional Court. The proposal of the competent committee shall contain reasons showing why the committee gave a particular candidate priority over other candidates. (6) Representatives in the Croatian Parliament shall vote individually for each proposed candidate. (7) A candidate proposed for election to the Constitutional Court shall be considered to have been elected as a judge of the Constitutional Court if a majority of the total number of representatives in the Croatian Parliament have voted for him.” “A judge of the Constitutional Court may not abstain from voting, unless he has participated in the enactment of a statute or subordinate legislation or the adoption of a decision upon which the Constitutional Court is required to rule.” “Unless provided otherwise by this Constitutional Act, in the proceedings before it the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as subsidiary rules.” “(1) The Constitutional Court may, in a [plenary] session, conclude to decide the merits [of a case] on the basis of a public hearing. (2) A public hearing shall be scheduled by the President of the Constitutional Court. (3) The participants in the proceedings and the representatives of State authorities, local government and associations, as well as [other] persons whose participation at the public hearing is required, shall be summoned to the public hearing. (4) The failure of the summoned participants ... and other summoned persons to attend [the hearing] shall not prevent the Constitutional Court from continuing the proceedings and reaching a decision, if it considers that the conditions for doing so exist. (5) In justified cases, the Constitutional Court may postpone the public hearing and schedule a new one.” “(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person vested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional rights’)... (2) If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. (3) In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” “(1) The constitutional complaint, as a rule, does not prevent the application of the contested decision. (2) The Constitutional Court may, at the request of the complainant, postpone the enforcement [of the contested decision] until it decided on the constitutional complaint, if the enforcement would cause the complainant a harm that would be difficult to repair, and the postponement is not contrary to the public interest nor would cause greater harm to anyone.” “(1) A panel composed of six judges shall decide on a constitutional complaint. (2) ... (3) The panel may only decide unanimously and with all its members present. (4) If the panel does not reach a unanimous decision, or if the panel considers that the issue [raised in] the constitutional complaint is of wider importance, the constitutional complaint shall be decided by the [plenary] session of the Constitutional Court.” “The judge rapporteur shall: - ... - serve, if need be, a copy of the constitutional complaint to interested persons and invite them to respond to it, ...” 26. Section 72 provides that, if a constitutional complaint is successful, the Constitutional Court must quash the impugned decision and remit the case to the competent authority. 27. On 8 April 2011 the Constitutional Court for the first time in its history held a public hearing in the proceedings following an individual constitutional complaint. The complainant Mr. P.T., who had taught a denominational (Catholic) religious education course in a public school, had been dismissed from his job because the Catholic Church had revoked his canonical mandate of catechist after he had remarried. The President of the Constitutional Court explained a decision to hold a public hearing by saying that the Constitutional Court’s decision in that case “[went] beyond the limits of a particular case” and “[would] mark future relations with religious communities”. 28. The relevant provision of the Rules of the Constitutional Court (Poslovnik Ustavnog suda Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 181/2003 and 30/2008 – “the Constitutional Court Rules”) reads as follows: “(1) In the proceedings before the Constitutional Court ... a judge rapporteur is authorised to: .... 4. seek expert opinions on particular cases from jurisconsults of the Constitutional Court, ...” 29. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) in its relevant part provides as follows: 30. Section 34 reads as follows: “The [Administrative Court] decides administrative disputes in closed session. The [Administrative Court] may decide to hold an oral hearing on account of the complexity of the dispute or if it otherwise finds it useful for better clarification of the matter at issue. For the same reasons a party may ask that an oral hearing be held.” 31. Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on the procedure before the Administrative Court, the provisions of the Civil Procedure Act should apply mutatis mutandis. 32. Section 66 reads as follows: “A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying mutatis mutandis the provisions of this Act.” 33. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides as follows: “A judge ... shall be disqualified from exercising his functions: 1. if he or she himself or herself is a party...; ... 5. if, in the same case, he or she participated in the proceedings before a lower court or some other authority; ... 7. if other circumstances exist which cast doubt on his or her impartiality.” 34. The grounds enumerated in section 71 subparagraphs 1-6 are considered absolute grounds for withdrawal, in that the judge concerned is automatically disqualified from sitting. 35. Section 72(1) provides that, from the moment he or she becomes aware of an absolute ground disqualifying him from sitting, the judge must take no further part in the case and bring the circumstances which disqualify him or her from sitting to the immediate attention of the president of the court of which he or she is a member, whereupon the president designates another judge to hear the case. 36. Section 73(6) provides that the party has to make a request for withdrawal of a judge as soon as he or she learns of a reason for withdrawal and at the latest before the conclusion of the trial before the first-instance court, or, if there was no trial, before the decision is rendered. 37. Section 73(7) provides that the withdrawal of a judge of a higher court may be requested by the party in the legal remedy or in the reply to the legal remedy. 38. Section 74(1) reads as follows: 39. Section 75 reads as follows: “When a single judge, the president of the panel, a member of the panel or the president of the court learns that his or her withdrawal has been requested, he shall immediately stop all work on the case, and, if the withdrawal was requested on the ground provided in section 71(1), subparagraph 7 of this Act, he or she may, until a the request is decided, undertake only those actions which entail the risk of a delay.”

train

001-22494

ENG

TUR

ADMISSIBILITY

BULUT and YAVUZ v. TURKEY

Inadmissible

Gaukur Jörundsson

The applicants, Mrs Siti Bulut and Mrs Hatice Yavuz, are Turkish nationals and live in Nusaybin, Turkey. They are represented before the Court by Messrs Medeni Ayhan and Metin Ayhan, lawyers practising in Ankara. The facts of the case, as submitted by the applicants, may be summarised as follows. Celal Bulut, the first applicant’s husband and the second applicant’s father, was born in 1950 in Midyat and was working as a decorator in the district of Nusaybin within the province of Mardin in south-east Turkey. At 12.30 p.m. on 29 July 1994 he returned to his house from work to have his lunch. As he entered the garden of his house five persons, who had followed him, opened fire and shot him. He died instantly. Security forces arrived at the scene within minutes but made no attempt to discover the direction in which the perpetrators had fled. Instead, they searched the house of the deceased, ransacking it in the process. No photographs were taken at the scene of the crime and eye-witnesses were not questioned. Furthermore, no post-mortem examination was carried out on the body. Vital evidence, such as fingerprints or spent cartridges, was not collected. The applicants unsuccessfully contacted the Nusaybin public prosecutor on many occasions following the incident and enquired whether the perpetrators had been identified or arrested. On 26 October 2000 the applicants, through the assistance of their lawyers, wrote to the Nusaybin public prosecutor and to the prosecutor at the Diyarbakır State Security Court and asked them whether the perpetrators had been arrested yet. The prosecutor at the Diyarbakır State Security Court did not reply to the applicants’ letter. The Nusaybin public prosecutor, who received the applicants’ letter on 30 October 2000, sent the applicants a copy of the decision of non-jurisdiction taken on 5 June 1995 pursuant to which the investigation file had been sent to the Diyarbakır State Security Court. This decision had been taken in 1995 on the basis of the public prosecutor’s belief that Şeyhmuz Uğur, Adnan Aktaş, Mehmet Akay and Ömer Saruhan, all suspected members of Hizbollah, were involved in the killing of Celal Bulut. For this reason, the prosecutor declined jurisdiction in favour of the Diyarbakır State Security Court which had jurisdiction to investigate the matter. According to Article 448 of the Turkish Criminal Code (Türk Ceza Kanunu) any person who intentionally kills another shall be sentenced to a term of imprisonment of 24 to 30 years. According to Article 450, the death penalty may be imposed in cases of, inter alia, premeditated murder. Under Article 452, where death results from an act of violence but it was not the intention of the offender to kill his victim, a sentence of eight years’ imprisonment shall be imposed on the offender. Where death results from an act of carelessness, negligence or inexperience on the part of the offender in breach of a law, orders or regulations, Article 455 stipulates that the guilty party shall be sentenced to a term of imprisonment of two to five years and to a substantial fine. For all such offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure (Ceza Muhakemeleri Usulü Kanunu), with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165). According to Article 102 (1) of the Turkish Criminal Code, the statutory period during which a public prosecutor is obliged to investigate the crime of murder is 20 years.

train

001-57842

ENG

AUT

CHAMBER

CASE OF SEKANINA v. AUSTRIA

Violation of Art. 6-2;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

N. Valticos;R. Pekkanen

6. Mr Karl Sekanina is an Austrian national and lives in Vienna. On 1 August 1985 he was arrested by the police on suspicion of having murdered his wife. Mrs Sekanina had fallen from a window of their matrimonial home, on the fifth floor of a building in Linz, on 4 July 1985. 7. The day after his arrest he was questioned and remanded in custody. He remained in custody until 30 July 1986, his detention being extended on several occasions. The Linz Court of Appeal (Oberlandesgericht) ordered the last such extension on 30 April 1986; it ruled, pursuant to Article 193 paras. 3 and 4 of the Code of Criminal Procedure, that the applicant could be kept in detention until he had been in custody for a total of one year. In addition to the murder of his wife, the applicant was accused of having threatened a fellow detainee in connection with certain admissions relating to the murder charge. The decisions of the Austrian courts were based on various items of evidence and testimony. 8. On 30 July 1986 an assize court (Geschworenengericht) sitting at the Linz Regional Court (Landesgericht) acquitted the applicant on both the charges brought against him. The jury dismissed the first charge by seven votes to one and the second charge unanimously. The operative provisions and grounds of the judgment read as follows: "Pursuant to Article 259 para. 3 of the Code of Criminal Procedure, Karl Leopold Sekanina is acquitted on the charges brought against him, namely: (1) that he did on 4 July 1985 intentionally kill his wife, Maria Sekanina, by hitting her with a plastic bucket, as a result of which she fell out of the open window of a fifth floor flat and sustained fatal injuries on striking the ground from a height of approximately 16.5 metres; and (2) that he did at the beginning of August 1985, by making a death threat, namely that ‘he would catch his cell-mates outside and kill them’ if they ‘gave him away’, force Egon Werger to remain silent about the statements made by Karl Sekanina in his detention cell concerning the course of events on 4 July 1985. ... GROUNDS The acquittal is founded on the jury’s verdict." 9. With regard to the first charge, the record (Niederschrift) of their deliberations stated as follows: "There is no conclusive evidence on which to convict Mr Sekanina of murder. According to the medical report by Professor Kaiser, Mrs Sekanina could still have called her husband a murderer. The testimony of certain witnesses appears to us to be unreliable." On the second charge, they noted that the three other fellow detainees of the persons in question had denied hearing serious death threats. Consequently, the applicant was immediately released. The prosecution did not appeal against the acquittal. 10. On the following day the applicant applied for a contribution from the State to the costs necessarily incurred in his defence, in accordance with Article 393a of the Code of Criminal Procedure (see paragraph 15 below), and for compensation for the pecuniary damage sustained on account of his being kept in detention. On 4 November 1986 the public prosecutor’s office expressed the opinion that the costs sought were excessive and also opposed the claim for compensation, on the ground that the conditions laid down by section 2 (1) (b) of the 1969 Law on Compensation in Criminal Cases (Strafrechtliches Entschädigungsgesetz - the "1969 Law" - see paragraph 16 below) were not satisfied. 11. The Linz Regional Court gave two separate decisions. On 12 December 1986 it awarded Mr Sekanina 22,546.50 schillings in respect of his necessary defence costs. His appeal against the amount awarded was dismissed by the Linz Court of Appeal on 15 January 1987. 12. On 10 December, on the other hand, the Regional Court had refused to award the compensation sought. In its opinion, "A claim to compensation under section 2(1)(b) of the [1969] Law ... is conditional on the applicant’s being cleared of the suspicion of which he was the object in the criminal proceedings. A person who has been detained is so cleared only if all the suspicious circumstances telling against him have been satisfactorily explained, so that they cease to constitute an argument for the suspect’s guilt. Regard having been had to the prosecution evidence considered as a whole, however, it was not possible to dispel all the suspicions concerning the commission of the offence. Serious grounds for suspecting Mr Sekanina still subsist, in particular his numerous and repeated threats, the acts of violence and aggressive behaviour which have come to light, his evident satisfaction at his wife’s death, the description of events given to a cell-mate, the different versions of how the accident happened, the fact that he was under severe financial pressure, his unsuccessful efforts to obtain care and custody of his two children and the consequent build-up of aggressiveness, and his hopes of receiving payment under a life-insurance policy taken out on his wife. In addition, the jurors’ voting shows that they decided to acquit him only by giving him the benefit of the doubt." 13. On 25 February 1987 the Linz Court of Appeal upheld this decision. It rejected the argument that section 2(1)(b) of the 1969 Law (see paragraph 16 below) was unconstitutional and in breach of Article 6 para. 2 (art. 6-2) of the Convention in that it required, in addition to an acquittal, the absence of all suspicion. The court held that the presumption of innocence had to be respected in the proceedings prior to the verdict, but did not confer on every detainee the right to compensation in the event of an acquittal. The impugned provision did not refer to guilt but to continuing suspicion. The finding by a court that suspicions subsisted did not conflict with the presumption of innocence. The Court of Appeal added: "The appeal also fails on its merits. Contrary to what is argued by the appellant, it cannot be inferred merely from the voting of the jury ... that such a clear verdict meant that suspicion had been removed. In order to establish whether or not such suspicion subsists, it might be more useful to refer to the record of the jury’s deliberations. The content of this record ... suggests rather that in the jury’s opinion all suspicion had not been removed. However, as the court called upon to rule under the [1969] Law ... is not bound, in its assessment of the position as regards suspicion, by the verdict (of acquittal) at the trial, not even the record of the jury’s deliberations is of decisive importance. It can hardly be denied that following the police inquiries and also after the judicial preliminary investigation there were strong grounds for suspecting the appellant. Indeed, the Linz Court of Appeal decided on 30 April 1986 ... that Sekanina could be kept in detention on remand for up to one year, thereby confirming the strength of the suspicion. In the appealed decision, the finding by the court below that suspicion subsisted was properly founded in particular on the numerous repeated threats made by Mr Sekanina, his acts of violence, his evident satisfaction at his wife’s death, the description of the events given to a cell-mate, the different versions of how the accident happened, the severe financial pressure, his unsuccessful attempts to obtain care and custody of his two children, and his hopes of receiving payment under a life-insurance policy taken out on his wife. With respect to the different versions of the accident related by the appellant to third parties, the Court of Appeal refers in particular to the evidence given at the trial of 28 to 30 July 1986 by the witnesses Gundula Sekanina (pp. 45, 50 and 51 of the transcript of the trial) and Johanna and Kurt Schöllnberger (pp. 105, 106, 117 and 119 of the transcript). The appellant told his fellow employee Siegfried Wurzinger that he had been in another room at the time of the fall (Wurzinger, pp. 126, 127), whereas Brigitte Grasböck noticed during the fall that the claimant - wearing a light-coloured vest - was already at the window, the entire upper part of his body being visible. He had been holding a bucket out of the window with outstretched arms and pouring water; in addition when he came down to his wife he had, she thought, been wearing a blue vest (Grasböck, pp. 65 and 66 of the transcript). During his interrogation (which was taken down in writing) by the Linz Federal Police on 2 August 1985 (p. 214, volume 1), the appellant placed on record that shortly before the fall his wife had quarrelled with him. According to the evidence of the witness Egon Werger, the appellant had told him that ‘during the quarrel he’ - Sekanina - ‘[had run] towards his wife in a rage’ (pp. 166 and 167 of the transcript). The appellant was described by several witnesses as quick-tempered and violent (pp. 44 and 82 of the transcript). He is said to have made death threats against his wife several times, the last occasion being about a week before her death (pp. 113 and 572 of volume 1, p. 216 of volume 2, and pp. 58, 75, 76, 102, 115, 142 and 143 of the transcript of the trial). Finally, it may also be noted that on 3 July 1985, the day before his wife’s death, the appellant pressed his tailor for a dark jacket he had ordered in 1983, as he now needed it." The Court of Appeal concluded: "Having had regard to all these circumstances, the majority of which were not disproved at the trial, the jury took the view that the suspicion was not sufficient to reach a guilty verdict; there was, however, no question of that suspicion’s being dispelled." 14. Under Article 259 of the Code of Criminal Procedure, "The accused shall be acquitted by judgment of the court: 1. ... 2. ... 3. where the court finds that the act giving rise to the prosecution is not an offence under the law or that the alleged offence was not made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in paragraphs 1 and 2." 15. According to Article 393a of the same code: "(1) Where the prosecution is not brought solely on the basis of a private action seeking conviction or a private action for damages (Article 48), if an accused is acquitted ..., the federal authorities shall, on an application to this effect, make a contribution to the costs of the defence. The contribution shall cover the expenses necessarily and genuinely incurred by the accused and in addition, except in the case provided for in Article 41 para. 2, a flat-rate contribution to the costs of his defence lawyer ... (2) ... (3) A claim for compensation shall not be allowed where the accused has deliberately caused the suspicion which gave rise to the criminal proceedings or where the proceedings have come to an end solely because the accused carried out the act in question in a state in which he was not responsible for his actions or because the authorisation for the prosecution was withdrawn during the trial." 16. Entitlement to compensation for detention on remand during criminal proceedings in which the person concerned is acquitted is governed by section 2(1)(b) of the 1969 Law, which provides as follows: "(1) A right to compensation arises: (a) ... (b) where the injured party has been remanded in custody or placed in detention by a domestic court on suspicion of having committed an offence which is liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence is dispelled or prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ..."

train

001-57800

ENG

FRA

CHAMBER

CASE OF VIJAYANATHAN AND PUSPARAJAH v. FRANCE

Preliminary objection allowed (victim)

8. The first applicant, Mr Ampalam Vijayanathan, is a Sri Lankan citizen of Tamil ethnic origin. He left Sri Lanka on 27 November 1989 and entered France clandestinely in December, using a false passport. On 27 February 1990 he submitted to the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides, "OFPRA") a request for recognition of his refugee status. In accordance with a circular of 17 May 1985 concerning asylum seekers, he obtained provisional leave to reside in France "with a view to dealings with the OFPRA", and this was renewed on several occasions. On 18 July 1990 the director of the OFPRA refused the request, on the grounds that Mr Vijayanathan’s statements were "vague in places" and not "such as to establish the truth of the facts alleged or prove that his personal fears of persecution were well-founded for the purposes of the Geneva Convention" of 28 July 1951 relating to the Status of Refugees ("the 1951 Convention"). 9. On 28 August 1990 Mr Vijayanathan appealed against this decision to the Refugee Appeals Board (Commission des recours des réfugiés, "the Appeals Board"), which on 30 November 1990 dismissed the appeal for the following reasons: "... By virtue of paragraph A, sub-paragraph 2, of Article 1 of the Geneva Convention of 28 July 1951 and the Protocol signed in New York on 31 January 1967, a refugee is considered to be any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; ... In order to claim the benefit of the above provisions, Mr Vijayanathan, who is of Sri Lankan nationality, maintains that because of his Tamil origin he defended the cause of his people and was arrested on 11 May 1983 for distributing leaflets; that between 1984 and 1988 he was searched for three times and arrested twice, following attacks on Sri Lankan and Indian military camps; that because he had taken part in the election campaign of a candidate of the EROS movement [Eelam Revolutionary Organisation of Students], he was arrested on 12 March 1989 by Indian troops; that following another attack on two members of the EPRLF [Eelam People’s Revolutionary Liberation Front] he was under suspicion and decided to leave Sri Lanka; that he fears for his safety and liberty if he has to return to his country; ... However, the documents in the case-file do not make it possible to regard the facts alleged as having been proved or the fears expressed as being well-founded. The appeal can thus not be upheld." 10. On 10 December 1990 the prefecture of Seine-et-Marne directed the first applicant to leave French territory within one month, and informed him that if he failed to comply he would be liable to expulsion (reconduite à la frontière) or a prison sentence and fine. 11. Mr Vijayanathan immediately applied to the European Commission of Human Rights. He has been unlawfully resident in France since 10 January 1991. He claimed that if returned to Sri Lanka he would run the risk of treatment which was not compatible with Article 3 (art. 3) of the Convention. In support of this claim he produced a number of certificates, which are in the Court’s file of the case. 12. The second applicant, Mr Nagalingam Pusparajah, who is also a Sri Lankan of Tamil origin, entered France clandestinely in 1989. On 29 December 1989 he submitted a request for recognition of refugee status to the OFPRA. His request was rejected on 15 May 1990 for the following reasons: "Mr Pusparajah has not adduced even prima facie evidence that his personal case is one of those covered by Article 1, paragraph A, sub-paragraph 2, of the Geneva Convention. The applicant maintains that he was a leading member of the LTTE movement; that during a search for him carried out by the Indian army his father was killed in his place; and that he was eventually found and arrested on 4 May 1989 when on his way to visit his sick mother. On being released a month later, he decided to leave the country. However, his declarations do not provide proof of the facts alleged." 13. He appealed to the Appeals Board on 26 June 1990. His appeal was dismissed on 25 October 1990, on the grounds that: "... Pusparajah, who is a Sri Lankan national of Tamil origin, maintains that his family is being persecuted in his country and that he himself, a militant member of the LTTE, saw his home bombed in 1987 and searched in 1988; and that he cannot return without danger to his country, where he was imprisoned for a month in 1989, on account of his militant activities; ... However, neither the documents in the case-file nor the statements made at the public hearing before the Board make it possible to regard the facts alleged as established or the fears expressed as well-founded; and, in particular, the documents produced and submitted such as a medical certificate issued in Paris on 2 October 1990 and the statement by a priest dated 17 May 1990 are not sufficient in this respect ..." 14. In a letter of 8 January 1991 to the director of the OFPRA the second applicant requested that his case be re- examined. He stated that he had arrived in France in May 1990, that his younger brother had lost his life on 17 November 1990 in fighting between the LTTE and the Sri Lankan army, and that his mother had been seriously injured. 15. On 22 January 1991, the Paris Commissioner of Police (préfet de police) directed him to leave French territory before 22 February 1991, failing which an order for his expulsion could be issued. Mr Pusparajah did not comply. His case was re-examined, however, in the context of an application for exceptional leave to remain submitted in July 1991. On 10 October the Commissioner of Police dismissed that application on the grounds that Mr Pusparajah’s lawful stay had been of very short duration and that he had not shown that he had had stable employment since entering France or that he had sufficient family ties. He again directed him to leave French territory before 10 November 1991, on pain of the penalties provided for in section 19 of Order no. 45-2658 of 2 November 1945 as amended (see paragraph 23 below). 16. Mr Pusparajah claimed that if returned to Sri Lanka he would be exposed to treatment which was not compatible with Article 3 (art. 3) of the Convention. In support of this claim he produced a number of certificates, which are in the Court’s file of the case. 17. In France, recognition of refugee status as defined by the 1951 Convention and attribution of such status are the exclusive responsibility of the OFPRA and the Appeals Board, which were set up by Law no. 52-893 of 25 July 1952. 18. According to a circular from the Prime Minister, dated 17 May 1985 and relating to asylum seekers, the provisional admission to France of aliens who are seeking asylum requires the issue of two documents in turn: a provisional residence authorisation "with a view to dealings with the OFPRA.", valid for one month, and a receipt bearing the words "Has requested asylum", issued for a period of three months and renewable, and equivalent to a provisional residence and work permit. If the OFPRA refuses to grant refugee status, it notifies the person concerned of its decision and sends a copy to the relevant prefecture. The decision is regarded as definitive if the alien does not appeal to the Appeals Board within one month from the date when he actually received notification (ministerial circular of 5 August 1987). 19. The Appeals Board is presided over by a judge from the Conseil d’État and consists of a representative of the OFPRA’s board of management and the French delegate of the Office of the United Nations High Commissioner for Refugees ("the UNHCR"). A refusal by the Board can be appealed against to the Conseil d’État. The appeal has no suspensive effect, in that it does not provide grounds for extension of the provisional residence documents (Pizarro Cid judgment of 12 March 1990, unreported). Requests to the OFPRA to re-examine the case and appeals against the rejection of such requests are likewise no grounds for the issue or extension of the receipt marked "Has requested asylum" (circular of 5 August 1987). 20. Where a request for recognition of refugee status has been definitively rejected, the circular of 17 May 1985 requires prefects of departments and the Paris Commissioner of Police, when the person concerned attends at the prefecture, to communicate to him a direction to leave French territory within one month, on pain of court proceedings. After fifteen days he must report to the proper authorities and inform them of the arrangements he has made for organising his departure; the time-limit can be extended if the alien puts forward valid reasons and shows that he has made real preparations for departure, in particular a definite date for departure. On expiry of the last provisional residence authorisation, the relevant authorities must refer to the public prosecutor the offence defined in section 19 of the Order of 2 November 1945 as amended (see paragraph 23 below). If, however, it appears that there are particular circumstances which would expose the person concerned to serious risks if he returned to his country of origin, the authorities must immediately refer the case for a decision to the Minister of the Interior, by sending him a telegram giving precise details of the person concerned and the facts alleged. 21. In this respect a circular of 5 August 1987 of the Minister of the Interior restates the obligation to refer the matter to the central authorities in cases where there is an objection to repatriation based on the situation in the country of origin and the alien fears that he will be exposed there to serious risks to his safety or liberty. The decision is taken as soon as information has been received from the French delegation of the UNHCR. The person concerned is then granted a provisional residence authorisation, valid for one month and renewable, during which period he must be requested to find a third country which might be prepared to receive him. If there is a risk of flight, the authorities can ask the Minister of the Interior to issue a compulsory residence order (section 28 of the Order of 2 November 1945). 22. A direction to leave French territory is not served on the alien if he submits or manifests the intention of submitting a request for exceptional admission on the grounds of risks to his safety in the event of his return to his country of origin. In such cases the prefect takes the decision. If no such request is made, the alien is informed of the possibility of submitting written observations on his possible expulsion (in accordance with section 8 of the Decree of 28 November 1983 on relations between the authorities and persons dealing with them), and of the possibility of appealing for the case to be reconsidered, appealing to a higher authority or appealing to the court within two months from service of the direction. However, such an appeal does not have suspensive effect and, on expiry of the period granted to him to prepare his departure, the person concerned becomes liable to an administrative measure of expulsion or a fine and imprisonment for unlawful residence (sections 19 and 22 of the Order of 2 November 1945 and circular of 5 June 1990 of the Minister of the Interior). 23. The Order of 2 November 1945 relating to the conditions of entry and residence of aliens in France, as amended by Law no. 86-1025 of 9 September 1986, Law no. 89-548 of 2 August 1989 and Law no. 90-34 of 10 January 1990, provides that: "An alien who enters or resides in France without complying with the provisions of sections 5 and 6 shall be punished by imprisonment for at least one month but not more than one year and a fine of at least 2,000 but not more than 20,000 francs. The court may also prohibit the person convicted from entering or residing on French territory for a period not exceeding three years. The prohibition automatically entails the expulsion of the convicted person, where appropriate after his prison sentence has been served." "The State’s representative in a department, or in Paris the Commissioner of Police, may issue a reasoned decision ordering an alien’s expulsion in the following cases: 1. If the alien cannot prove that he entered French territory lawfully, unless his position has been regularised subsequent to his entry; 2. If the alien has remained on French territory on expiry of a period of three months from his entry into France without holding a lawfully issued first residence permit; 3. If an alien who has been refused issue or renewal of a temporary residence permit has remained on French territory for more than one month from the date of notification of the refusal; 4. If the alien has been convicted by a final judgment of counterfeiting, forgery, residence under an assumed name or non-possession of residence permit. Once the alien has been served with the expulsion order, he shall immediately be permitted to inform a lawyer, his consulate or a person of his choice." "An order for the deportation of an alien shall be automatically enforceable by the authorities. The same applies to an expulsion order which has not been challenged before the president of the administrative court or his deputy within the period laid down in section 22 bis of the present Order or which has not been set aside at first instance or on appeal under the conditions laid down in that section." "An alien subject to a deportation order or who is to be expelled, who shows that he is unable to leave French territory by proving that he can neither return to his country of origin nor enter any other country, may by derogation from section 35 bis be compelled by an order of the Minister of the Interior to reside in a specified place where he must report periodically to the police or gendarmerie." "An alien who is to be expelled and is unable to leave French territory immediately may be detained, if this is absolutely necessary, in premises other than penal institutions by a reasoned written decision of a prefect for the time strictly necessary to arrange his departure. The public prosecutor shall be informed of this immediately. The alien shall immediately be informed of his rights through an interpreter if he does not understand French. On expiry of a period of twenty-four hours from the detention decision, the case shall be referred to the president of the tribunal de grande instance or a judge designated by him, who shall then give a ruling by means of an order, after hearing the person concerned in the presence of his legal representative, if any, or after having duly informed the said legal representative, on one or more of the surveillance and supervision measures necessary to ensure his departure listed below: Surrender to the police or gendarmerie of all identity documents, in particular his passport, in exchange for a receipt serving as proof of identity; A compulsory residence order; In exceptional cases, extension of detention in the premises mentioned in the first sub-paragraph of this section. The order extending detention shall run from expiry of the period of twenty-four hours laid down in this sub-paragraph. Application of these measures shall end not later than the expiry of a period of six days from the issue of the order mentioned above." 24. These various provisions have not been applied, or at least have not yet been applied, in the cases of Mr Vijayanathan and Mr Pusparajah. 25. The circular of the Minister of the Interior dated 5 June 1990 requires the police to serve the prefectoral expulsion order on the person concerned. An order which it has not been possible to enforce is recorded in the list of wanted persons. Neither the model forms for service of such orders, annexed to the various circulars, nor the circulars themselves require the alien to be notified of the country of destination when he is served with the expulsion order. 26. Section 22 bis of the Order of 2 November 1945 (as amended by Law no. 90-34 of 10 January 1990) provides that: "An alien who is the subject of a prefectoral expulsion order may within twenty-four hours from service thereof apply to the president of the administrative court for the order to be set aside. The president or his deputy shall take a decision within a period of forty-eight hours from such application. He may proceed to the seat of the ordinary court nearest to the place of detention of an alien who is being detained pursuant to section 35 bis of this Order. I. The alien may ask the president of the court or his deputy for the assistance of an interpreter and to be shown the case-file containing the documents on the basis of which the challenged decision has been taken. The hearing shall be in public. It shall take place without submissions from the Government Commissioner (commissaire du Gouvernement) and in the presence of the alien, unless the latter has been duly summoned and fails to attend. The alien shall be assisted by his legal representative if he has one. He may ask the president or his deputy for counsel to be appointed for him. II. The provisions of section 35 bis of this Order may be applied as soon as the expulsion order has been issued. That order may not be enforced until the expiry of a period of twenty-four hours from its service or, if the case has been referred to the president of the administrative court or his deputy, until he has taken his decision. III. If the expulsion order is set aside, the surveillance measures provided for in section 35 bis shall be discontinued immediately and the alien shall be issued with a provisional residence authorisation until the prefect has taken a fresh decision on the matter." 27. Proceedings in respect of prefectoral expulsion orders are governed by Decree no. 90-93 of 25 January 1990 inserting additional provisions after Article R.241 of the Code of Administrative Courts and Administrative Courts of Appeal, and providing inter alia: "The following provisions only shall apply to the submission, investigation and adjudication of applications for the setting aside of prefectoral orders for the expulsion of foreign nationals." "Decisions on applications brought against prefectoral orders for the expulsion of aliens shall be taken by the president of the administrative court or a judge appointed by him, without submissions from the Government Commissioner." "The administrative court with territorial jurisdiction shall be the court in whose district is the office of the prefect who has issued the expulsion order." "The application must include the name and address of the applicant and a statement of the facts and the grounds on which setting aside is requested. It shall be presented in a single copy." "The applications mentioned in Article R.241-1 may be submitted without representation by counsel. Once his application has been lodged, the alien may request counsel to be appointed for him; the president of the administrative court shall immediately give notice thereof to the president of the bar association for the tribunal de grande instance within whose district the hearing is to be held. The president of the bar association shall make the appointment without delay." "The application must be registered with the registry of the administrative court within twenty-four hours from service of the prefectoral expulsion order. However, if at the time of service of the order the alien is being detained by the administrative authorities, his application may be validly lodged, within the same twenty-four hour period, either with the said administrative authorities or with the registry of the court before which he appears for the extension of his administrative detention." "The period of forty-eight hours within which the president of the administrative court or his deputy must take a decision shall run from the time when the application is registered with the registry of the court." "If an alien who does not speak French sufficiently well so requests, the president shall appoint an interpreter ... . Such a request may be made as soon as the application to the court is lodged." "The parties may submit pleadings or written observations up to the moment when the case is called." "After the report presented by the president of the administrative court or his deputy, the parties may submit oral observations in person or through counsel. They may also produce documents in support of their pleadings. If these documents provide new evidence, the judge shall ask the other party to examine them and submit his observations thereon to him at the hearing." "The decision shall be pronounced at the hearing." "The operative provisions of the decision, together with the enforcement formula provided for in Article R.209, shall be served there and then on the parties present at the hearing, who shall immediately acknowledge receipt thereof. If it has not been served there and then, the decision shall be served without delay and by any means on the parties, who shall acknowledge receipt thereof. Service shall include notification of the possibility of appealing and the time-limit within which an appeal can be brought." "The prefect who signed the challenged order and the alien may appeal against the decision to the president of the Judicial Division of the Conseil d’État or a judge of the Conseil d’État appointed by him." "The period for appealing shall be one month. It shall run against any party to the proceedings from the date on which service was made on that party under the conditions laid down in Article R.241-17, second sub- paragraph." 28. It should be noted that an appeal to the Conseil d’État has no suspensive effect, but the appellant may request the president of the Judicial Division to order a stay of execution of the order (Conseil d’État, Engin judgment of 29 June 1990, Recueil Lebon 1990, p. 190). Such a request becomes devoid of purpose, however, if the order has been enforced before the Conseil d’État gives judgment (Conseil d’État, Hablami judgment of 29 June 1990, Recueil Lebon 1990, p. 191). 29. The ministerial circulars of 25 January and 5 June 1990 state that service of a prefectoral expulsion order shall mention the possibility of bringing the appeal provided for in section 22 bis of the Order of 2 November 1945 and the rights which appellants have in the context of such proceedings. Forms of service have been drawn up in several languages, in order to put aliens in a position to exercise their rights effectively. 30. Finally, in its Ouedjedi judgment of 17 December 1990 (Recueil Lebon 1990, p. 362), the Conseil d’État distinguished between the decision to remove an alien from French territory and the decision as to his country of destination: "... The argument based on the fact that Mr Ouedjedi would be seriously at risk if he had to return to Algeria cannot be validly relied on in support of an appeal against the impugned [expulsion] order which does not specify the country to which the appellant is to be expelled; ... ... In a separate decision, served on Mr Ouedjedi at the same time as that ordering his detention, the Commissioner of Police decided that the country to which he was to be expelled would be Algeria; ... having regard to the arguments in his application, the appellant must be regarded as having also made submissions for the setting aside of that decision, which was separate from the expulsion order; ... the judgment appealed against must be quashed for failure to reply to those submissions, and this aspect of the case must be examined; ... Although Mr Ouedjedi, in asking for that decision to be set aside, maintains without giving any further details that his return to Algeria would place him at serious risk because of his religious beliefs, he has not shown any particular circumstance such as to constitute a legal impediment to his expulsion to his country of origin; ... he is therefore unable to maintain that the decision contained in the record of service of 20 July 1990 was ultra vires and invalid;" 31. A ministerial circular of 25 October 1991, specifically intended to take into account the recent case-law of the Conseil d’État and the European Commission of Human Rights and to ensure compliance with Articles 3 and 8 (art. 3, art. 8) of the Convention, strengthened the system for the protection of aliens who were the subject of measures of removal from French territory. Its aim was to improve both the supply of information to them before such measures were taken and also the relevant administrative procedures. 32. A direction to leave French territory, served on an alien after the right of residence has been refused or after his request for granting of refugee status has been definitively rejected, must now inform him that he may leave voluntarily for the country of his choice; if he does not do so, the expulsion measure will normally be enforced by sending him to the country of which he is a national or which has issued him with a currently valid travel document, or to any other country to which he proves that he may lawfully be admitted. In addition, prefects must notify the alien that he has the possibility of submitting, within a period of fifteen days from service, written observations with reference to the risks he would be exposed to if he were to return to his country of origin. The circular states that the choice of country of destination is a decision which is distinct from the expulsion, and must in no way affect the lawfulness of the expulsion order. It provides that a note of it must be indicated on the record of the order. Such a decision can be the subject of an appeal, made parallel to the application for the order to be set aside; it will be examined under the same conditions and within the same time-limits, and with the benefit of the safeguards which follow from the suspensive nature of the proceedings. If the administrative court finds that the order is lawful but annuls the decision as to the country of destination, the prefect must immediately refer the matter to the Minister of the Interior, so that the minister can make a compulsory residence order against the person concerned for a period of one month, generally not renewable, under section 28 of the Order of 2 November 1945 (see paragraph 23 above), in order to give him an opportunity of finding a third country which will admit him. 33. A circular of the Minister of Social Affairs and the Minister of the Interior dated 25 September 1991 lays down the conditions for examination of applications for exceptional leave to remain submitted by unsuccessful asylum seekers, including Sri Lankans of Tamil origin. It instructs prefects to invite the alien to submit to them in writing, in French, the arguments put forward by him alleging that his safety or liberty would be at risk if he returned to his country of origin. These arguments must be precise, detailed and different from those put forward before the OFPRA or the Appeals Board, so as to allow the OFPRA to re-examine the case. Finally, if the alien shows that in the event of return he would risk being subjected to punishment or treatment contrary to Article 3 (art. 3) of the Convention, or if the arguments adduced appear to be serious and to deserve detailed consideration by the central authorities, prefects are to send the Minister of the Interior a highly detailed report on the person in question and the arguments relied on. The Minister of the Interior then examines the case in conjunction with the Minister of Foreign Affairs (who may in some cases consult the French diplomatic representatives in the country of origin) and, if appropriate, the UNHCR delegate for France. As stated in the circular of 5 August 1987, the reason militating against the return to his country of origin of an asylum seeker whose request has been dismissed may be connected with the general situation in that country - armed conflict, civil war, or state of emergency, bringing about the suspension of air links, etc. In such circumstances, measures of removal to the country in question may be provisionally suspended. 34. According to information provided by the Government, the OFPRA examines the cases of asylum seekers from Sri Lanka on the basis of a number of criteria: - geographical origin of the asylum seeker, which makes it possible to determine the seriousness of the alleged fears, according to the movement over time of the scene of fighting; - political commitment of the person concerned, placing him in opposition to those currently in power; - membership of certain categories, making the authorities suspicious of the asylum seeker. 35. In addition, the OFPRA works together with the Ministry of the Interior and the Ministry of Foreign Affairs in order to assess whether persons in fear of persecution because of rivalries between Tamil separatist groups run a real risk from the point of view of Article 3 (art. 3) of the Convention. This assessment takes place on the basis of information received not only from Government representatives (the French Embassy in Colombo) but also from outside sources (publications, the media, expert reports, analyses, etc.). The OFPRA is also in contact with non-governmental organisations (Médecins sans frontières) who are present on the ground and in appropriate cases supply invaluable details and testimony on the development of the local situation. To this may be added the experience built up by the French authorities responsible for processing requests for asylum. 36. According to the Government, the OFPRA and the Appeals Board took 4,760 final decisions in 1990 on requests for asylum by Sri Lankan nationals, 2,617 of whom were granted refugee status. The applicants disputed this before the Commission. The Government also pointed out that an expulsion order could not be made against such an asylum seeker unless the central authorities had first been consulted. 37. In 1990 only 83 of the 2,400 Sri Lankans whose requests for asylum had been unsuccessful had such orders issued against them. Moreover, 46% of persons whose situation had been regularised within the fifteen months to 1 June 1991 in the Paris region were Sri Lankans. 38. The applicants for their part produced a copy of a decision of the Paris Administrative Court of 4 May 1991, dismissing an appeal which had been brought both against an expulsion order and against the prefect’s decision to return the appellant to his country of origin. The court found that: "... neither the content of the case-file nor the evidence adduced at the hearing is such as to show that the decision to repatriate Mr Neil Nimalaraj to Sri Lanka, his country of origin, would contravene the provisions of Article 3 (art. 3) of the European Convention on Human Rights and Articles 31 and 33 of the Geneva Convention of 28 July 1951; further, the argument based on a violation of Article 3 of the New York Convention on the Prevention of Torture is inadmissible, for want of sufficient information to assess the scope of that argument."

train

001-140594

ENG

GRC

ADMISSIBILITY

KOUFAKI AND ADEDY v. GREECE [Extracts]

Inadmissible

Isabelle Berro-Lefèvre

1. The first applicant, Ms Ioanna Koufaki, is a Greek national who was born in 1967 and lives in Athens. She was represented before the Court by Mr I. Adamopoulos, Mr V. Chirdaris and Mr A. Argyros, lawyers practising in Athens. The second applicant is the Confederation of Public-Sector Trade Unions (ADEDY). It was represented before the Court by Ms M.M. Tsipra and Mr M. Miliarakis, lawyers practising in Athens. 2. The facts of the case, as submitted by the applicants, may be summarised as follows. 3. The first applicant is a member of the Athens Bar and since 2 March 2001 has been on the scientific staff of the Greek Ombudsman’s Office. On that date she commenced employment under a private-law contract for an initial five-year period and subsequently on an indefinite basis. Her pay was governed by Laws nos. 2477/1997 and 3205/2003 on the salary rules applicable to public servants and public-sector employees. On 10 April 2012 she was seconded to the central department of the Technical Chamber of Greece (Techniko Epimelitirio Ellados), a corporate body governed by public law. 4. The second applicant is a trade union organisation representing several unions of public-sector workers employed on a permanent basis or under private law by the State, corporations governed by public law and the local and regional authorities. Its main aim is to defend the economic, social and professional interests of public-sector workers, including with regard to pension issues. 5. On 15 March 2010 Law no. 3833/2010, entitled “Protection of the national economy – Urgent measures to respond to the financial crisis” was published in the Official Gazette ... The Law reduced the pay of persons working in the public sector – irrespective of their employment status – by a percentage ranging from 12% to 30%, notwithstanding any other specific or general legislation, collective agreement, arbitration ruling or individual agreement or contract (section 1). It established a new pay ceiling for all persons working in the public sector (section 2) and set out the government’s 2010 revenue policy. The above-mentioned reductions were to apply retrospectively from 1 January and 1 March 2010. 6. On 3 May 2010 the Minister of Finance and the Governor of the Bank of Greece, representing the Hellenic Republic, and the European Union’s Commissioner for Economic and Monetary Affairs, signed a memorandum of understanding. This document set out in detail the measures comprising a three-year programme drawn up by the Greek authorities after consultation with the European Commission, the European Central Bank and the International Monetary Fund. It stated, inter alia, that “[i]ncomes and social security policies need to buttress the fiscal adjustment effort and restoration of competitiveness. Realigning incomes to sustainable levels is necessary to assist fiscal correction, support a reduction in inflation well below the euro area average, and improve price and cost competitiveness on a lasting basis”. Further on, the document stated as follows: “The government is committed to fairness in the distribution of the adjustment burden. Our resolve to protect the most vulnerable in society from the effects of the economic downturn was taken into account in the design of the adjustment policies. In consolidating government finances, larger contributions will be raised from those who have traditionally not carried their fair share in the tax burden. With regard to the reduction in public wages and in pensions, the minimum earners have been protected: [as regards] pension reductions: The elimination of the 13th and 14th pensions is compensated, for those receiving less than €2500 a month, by introducing a new flat bonus of €800 a year. The benefit reduction is weighted toward the higher pension earners. Wage bill reductions. The 13th and the 14th wage payments will be eliminated for all employees. To protect the lower income segment, here too, for those receiving less than €3000 a month, a flat bonus payment of €1000 a year per employee will be introduced, which will be financed through cutting salary allowances for higher income segments.” 7. On 6 May 2010 Law no. 3845/2010 on measures to implement the euro area/IMF financial stabilisation mechanism for Greece was published, essentially ratifying the memorandum of understanding with regard to relations between Greece and the euro area Member States. Section 3 of the Law reduced public-sector pay by a further 8%. Section 4 increased the rate of VAT and the special consumption taxes. 8. On 8 and 10 May 2010 the Finance Minister signed two agreements: the “Loan Facility Agreement between certain Euro Area Member States and KfW (as Lenders) and the Hellenic Republic (as Borrowers) and the Bank of Greece (as the Borrower’s Agent)”, and the “International Monetary Fund Stand-by Arrangement”. 9. Under Laws nos. 3833/2010 and 3845/2010 the first applicant, who had been receiving a gross monthly salary of 3,339 euros (EUR) (leaving her with a net salary of EUR 2,435.83) had her special allowance reduced by 20% from 1 January 2010 and her “Easter” allowance cut by 30%. The latter was subsequently abolished altogether, together with the “Christmas” allowance and the holiday allowance. More specifically, the first applicant’s gross salary had been made up of a basic salary of EUR 2,311, a family allowance of EUR 53, a graduate allowance of EUR 45 and a special allowance of EUR 752.93. The last of these allowances had been set at EUR 930 on 1 January 2008 but was reduced by 12% on 1 January 2010 and by a further 8% on 1 June 2010. With the entry into force of Law no. 3845/2010, the applicant’s Christmas, Easter and holiday allowances were stopped since her total monthly pay exceeded EUR 3,000... . 10. Law no. 3847/2010 reduced the amount of these allowances for public-sector retirees and abolished them altogether for those under the age of sixty. 11. On 26 July 2010 the applicants and other individuals applied to the Supreme Administrative Court: the first applicant applied for judicial review of her pay statement, while the second applicant sought judicial review of the adverse impact which the above-mentioned laws would have on its members’ financial situation. The persons lodging the applications alleged that the laws in question were in breach of the Constitution and of various international instruments including Article 1 of Protocol No. 1. 12. On 20 February 2012 the Supreme Administrative Court, sitting as a full court, rejected the applications for judicial review (judgment no. 668/2012, finalised on 2 March 2012). ... ... 13. On 28 February 2012 an administrative decision adopted under Law no. 4024/2011 (laying down rules on pensions, salary scales, appraisal, the creation of a reserve of posts and other measures to implement the public finances medium-term strategic plan (2012-15)) cut the applicant’s salary by a further EUR 700, bringing her net monthly salary to EUR 1,885.79. ...

train

001-23192

ENG

GBR

ADMISSIBILITY

MENSON v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicants are Alex, Chris, Daniel, Essie, Kwesi and Samantha Menson. They are siblings of Michael Menson, a black man who was killed as a result of being set on fire by assailants in a racist attack during the night of 27-28 January 1997. The applicants are all British nationals living in England. They are represented before the Court by Bindman & Partners, a firm of solicitors practising in London, England. At the time of his death, Michael Menson was a single thirty-year old black man. He suffered a mental breakdown in 1991 and was subsequently diagnosed and treated in hospital for schizophrenia. After March 1996, Michael Menson frequently received treatment at Chase Farm Hospital for his mental condition. When Michael Menson was not in hospital he lived in his own accommodation in New Southgate, London. However, two months before his death he moved into accommodation for persons with mental health problems at Holden Lodge, North London. On about 21 January 1997, Michael Menson was given leave from Chase Farm Hospital and went to stay at Holden Lodge. On the night of 27 January 1997, at about 10 p.m., Chie Menson telephoned Michael Menson at Holden Lodge. She told him that she had received a message from Chase Farm Hospital that he was to return there as soon as possible for his “ward-round”. Some time after that telephone call Michael Menson left Holden Lodge with the apparent intention of returning to Chase Farm Hospital. It appears that having left Holden Lodge, Michael Menson took the wrong bus for his destination and he ended up getting off the bus in Edmonton, North London. He was subsequently attacked by four white youths who had got off the bus with him. They set his back on fire, probably whilst he was lying face down on the ground. He was found on fire at approximately 1.40 a.m. on 28 January 1997 by an off-duty fireman who had been passing by in a car. At the time he was found, Michael Menson appeared to be in a severe state of shock with severe burns to his back, buttocks and upper thighs. The off-duty fireman flagged down a passing police car with two police officers in it. They in turn summoned an ambulance. According to the applicants, the two police officers did not treat the circumstances of Michael’s discovery as suspicious and wrongly assumed that he had set fire to himself. Consequently, they failed to investigate the crime scene at all at that stage or to set in motion any trains of inquiry to search for or identify and catch Michael Menson’s attackers. It was only after specific instructions from Michael Menson’s family at a later stage that the police began to treat the attack as suspicious and to investigate it. An ambulance arrived and Michael Menson was taken to North Middlesex Hospital where he was admitted and treated. It seems that the police officers left the scene of the incident when Michael Menson was taken to hospital. Michael Menson was found to have sustained full thickness third degree burns to 30% of his body. Owing to the severity of his burns, he was transferred to the Regional Burns Unit in Billericay Hospital. Sometime between 2 a.m. and 3 a.m. on 28 January 1997, two officers arrived at the house of Ezekial Adewale, Michael Menson’s friend, in the mistaken belief that he was Michael Menson’s next-of-kin. It appears that the police had made this mistake as a result of inquiries to Chase Farm Hospital where Ezekial Adewale’s name and address were obtained. The two police officers told Ezekial Adewale that Michael Menson had set himself on fire whilst walking along the North Circular Road in North London. The officers repeated this and stated that Michael Menson had been lucky because they had been passing, saw him on fire and had stopped and helped to extinguish the fire. Ezekial Adewale asked these officers if they had informed Michael Menson’s family. They told him they had not and he immediately gave them the address of Michael Menson’s brothers, Kwesi and Daniel. Shortly afterwards, again sometime between 2 a.m. and 3 a.m., the same two police officers arrived at Kwesi and Daniel Menson’s home. The police officers told them that Michael Menson had set himself on fire in Edmonton, that he had been seriously injured and had initially been taken to the North Middlesex Hospital but had been subsequently transferred and was receiving treatment in the Regional Burns Unit in Billericay Hospital. The officers then asked Kwesi Menson to sign for some charred papers and two burnt keys which had been found on Michael Menson’s person and asked him whether Michael had been on medication or whether he had a mental health background. Kwesi and Daniel Menson immediately went to Billericay Hopsital sometime around 3 a.m. They could not see Michael Menson at first because he was still receiving treatment for his burns. At about 11 a.m. they were allowed to see him briefly. He appeared alert and lucid and was able to answer their questions. Kwesi Menson asked his brother what had happened and Michael replied that he had been attacked by four white boys. Michael Menson’s explanation to his brother conflicted with the report given by the police officers and so Kwesi Menson telephoned Edmonton Police Station at approximately 11.30 a.m. on 28 January 1997. He spoke to a police officer and told her that Michael Menson had told him that he had been attacked by four white boys. On the evening of 28 January 1997, Alex Menson telephoned the hospital and was able to speak to Michael. Once again, although in pain, he was lucid and able to tell his sister about his recollection of the incident. He said that he remembered catching a bus in the wrong direction and that there had been four white boys on the bus, one of whom had been wearing a black leather jacket. He had got off the bus at the same stop as these white boys and followed them to ask for directions. He remembered that shortly after this he was leaning against something and then had felt something on his back. He then discovered that he was on fire and started to take his clothes off. Following this conversation Alex Menson spoke to the ward sister at the hospital and a consultant treating Michael Menson and received confirmation that there were no contra-medical indications preventing Michael from being interviewed by the police. She also made requests to the police that they should come and interview Michael Menson about the attack. Over the next 48 hours, Kwesi Menson again asked Michael Menson about what had happened. Michael Menson gave the same account. Kwesi Menson took notes on these occasions. Kwesi Menson had been asked to keep notes of these conversations by his sister, Alex Menson, because the police had resisted her requests to take a statement directly from Michael. Kwesi Menson called the police on approximately three occasions from 28 to 29 January 1997 urging them to come to the hospital to take a statement from Michael. Alex Menson also called the police on repeated occasions over the same period requesting them: to take a statement from Michael; to go to the site of the incident; to take finger prints from the telephone box near to the place where Michael had been found; to interview local people; to put up an incident board requesting information; and to launch a media appeal for witnesses. On 30 January 1997 Detective Inspector Williams came to the hospital, but he arrived at a time when Michael Menson was drowsy. Detective Inspector Williams decided not to take a statement from Michael Menson. Kwesi Menson gave a statement to Detective Inspector Williams summarising Michael’s account of the incident. However, during this meeting Kwesi Menson became very concerned because Detective Inspector Williams did not appear to take a full or accurate record of what Kwesi Menson was saying. During the period between 28 January to 3 February 1997 Michael Menson received surgical treatment almost every day. When he was not in a post-operative state and up until 31 January, he was lucid, sitting up, talking to his family, feeding himself, doing crosswords, chatting with hospital staff and taking telephone calls. This included a telephone conversation with Ezekial Adewale during which Michael repeated his account of the incident and the attack by four young white men which, he stated, had occurred near a telephone box in Edmonton. Notwithstanding Michael’s ability to make such statements to his family and friends, neither Detective Inspector Williams nor any other police officer took a statement from him at any stage. On 3 February 1997 Michael Menson had a cardiac arrest and fell into a coma until 13 February 1997, when he died. On 26 February 1997 the inquest into Michael Menson’s death before the Coroner’s Court was opened. It was adjourned on a number of occasions. During this time the police reported to the Coroner on several occasions, but copies of these reports were not disclosed to Michael Menson’s family. In January 1998 an examination into the procedures and practices during the first stage of the investigation into Michael Menson’s death was carried out by the Metropolitan Police Service (“MPS”). In March 1998 the results of this examination were produced. The family were informed that this examination confirmed some of the doubts that the enquiry was not handled as well as it could have been and that an Investigating Officer had been formally appointed to look into the matter. The examination was made available to the Coroner but was kept back from the family as being confidential. On 19 August 1998 the Menson family sent a letter of complaint to the Police Complaints Authority (“PCA”) concerning the MPS’s decision to withhold evidence from Michael Menson’s family prior to the inquest. On 25 August 1998 Deputy Assistant Commissioner Townsend of Area 3 of the MPS responded informing the family that the complaint did not fall within section 84 of the Police and Criminal Evidence Act 1984 and therefore would not be recorded as such. This letter went on to respond to points of concern expressed in the letter of complaint. On 16 September 1998 a verdict of unlawful killing was returned by a jury at Hornsey Coroner’s Court following a hearing lasting just over one week during which evidence had been given by a number of witnesses including fire experts on behalf of the MPS. On 16 September 1998 Deputy Assistant Commissioner John Townsend issued a statement on behalf of the MPS regretting that for the first 12 hours after the attack on Michael Menson, the police treated it as a case of self-immolation. On 25 September 1998 the family lodged a further letter of complaint with the PCA setting out the particulars of complaints in detail from the time that Michael Menson was discovered by the police in the early hours of 28 January 1997 until shortly after the inquest. The following criticism of the police’s handling of the case was made in the letter of complaint: 1. There were major errors in the police investigation of Michael Menson’s death, at the very outset of the case (and beyond) which substantially diminished the chances of detecting and prosecuting those responsible for Michael Menson’s death. 2. There was a concerted effort by all key officers (from the officers first on the scene, to Deputy Assistant Commissioner level) to minimise and obscure these errors and deflect criticism from the police. 3. These imperatives led the police: – to continue, beyond the first 12 hours of the investigation of Michael Menson’s death, to fail diligently or promptly to investigate the death; – to pressurise, abuse and mislead the Menson family about how Michael Menson met his death and the police investigation, with a view to affecting their ability properly to grieve and be represented at the inquest; – improperly to influence the Coroner conducting the inquest and to seek to lead the jury to bring a verdict which was least embarrassing to the Metropolitan Police. 4. The police investigation into Michael Menson’s death was affected by racism and the subsequent internal investigation into the quality of the investigation failed even to address this issue. The PCA appointed the Chief Constable of the Cambridgeshire Constabulary to carry out an investigation into the family’s complaint. On 20 January 1999 the applicants were advised by Counsel that there were no reasonable grounds for advising the grant of legal aid to bring proceedings against the police in the light of the domestic law in respect of actions in negligence and claims of racial discrimination against the police. On 15 February 1999 a Report of an Inquiry chaired by Sir William Macpherson of Cluny, a retired High Court Judge, was published into matters arising from the death of Stephen Lawrence, a black 18-year old youth who was murdered by a group of youths on 22 April 1993. The Inquiry investigating his death and its subsequent investigation by the MPS found that institutional racism existed both in the MPS and in other police services and institutions countrywide. The Inquiry found institutional racism primarily apparent in the actual investigation of Stephen Lawrence’s murder, including the police treatment and approach to the victim, key witnesses and the family of Stephen Lawrence and the “lack of urgency and commitment in some areas of the investigation”. On 4 March 1999 the family of Michael Menson, with the assistance of campaigners, leafleted the area within which the suspects lived appealing for further information in respect of the murder. On 9 March 1999 a suspect was arrested and later charged in connection with the death of Michael Menson. Two further suspects were arrested and later charged on 11 March 1999. Two of the accused (M.P. and C.C.) were committed for trial at the Central Criminal Court, London, for the murder of Michael Menson and conspiracy to pervert the course of justice. The third accused (H.A.) was committed to stand trial at the Central Criminal Court for conspiracy to pervert the course of justice. On 5 May 1999 another suspect (O.C.) was arrested in northern Cyprus and charged there on 5 August 1999 with the murder of Michael Menson. On 15 June 1999 the applicants’ solicitor wrote to the PCA asking that the PCA also investigate other areas of complaint including the failure of the pre-inquest investigating teams to co-operate fully with the Racial and Violent Crime Unit and the making of untrue and misleading press statements damaging to Michael Menson’s family. On 21 October 1999 the applicants’ solicitor was informed that the PCA had felt it wise to delay any further investigation into the applicants’ complaints pending the outcome of the criminal case against the accused in the English courts. Further letters of complaints were addressed by the applicants’ solicitors to the Director of the Task Force alleging a failure on the part of the Task Force to liaise or to communicate adequately with the Menson family in respect of the criminal proceedings against the accused including the trial taking place in northern Cyprus. On 25 November 1999 a criminal court in northern Cyprus found O.C. guilty of the manslaughter of Michael Menson and sentenced him to fourteen years’ imprisonment. By letter dated 23 December 2002, the applicants’ lawyer informed the Registry that the accused’s appeal had been rejected on 29 June 2001. In December 1999 the Central Criminal Court in London found M.P. guilty of murder and sentenced him to life imprisonment. C.C. received a ten-year prison sentence for manslaughter. H.A. (and his co-accused) was convicted of perverting the course of justice in connection with the murder of Michael Menson and the subsequent investigation. All three accused received separate sentences on this count. According to the applicants’ lawyer’s letter of 23 December 2002, all of the accused’s appeals were rejected although the sentence of one of them was reduced. The applicants maintain that the evidence given in the trials against the accused revealed the inadequacy of the police investigation. The applicants listed twenty-two areas of concern in a letter addressed by their solicitor to the PCA on 22 June 2000, including: the unfounded belief of police officers following the attack on Michael Menson that he had tried to commit suicide; the failure to seal the scene of the crime resulting in a loss of evidence; the failure to record or act on Michael Menson’s accounts to medical and nursing staff that other persons were responsible for what happened to him; the error of the police in recording the deceased’s injuries as non-life-threatening; threats made to and harassment of members of the deceased’s family by the police when, for example, they queried the police appeal for witnesses to come forward; assertions made by a police officer at the inquest that there was no evidence that others were involved in Michael Menson’s death; and the conduct of the police with respect to the conduct of the inquest and the criminal trials. The Menson family members made formal statements to the Cambridge Constabulary investigating the case on behalf of the PCA in support of these complaints, as well as the complaints set out in the letter dated 25 September 1998 from the applicants’ solicitor. On 8 February 2000 the PCA wrote to the applicants’ solicitor reporting on the evidence collated to date. The letter stated among other things: “Carefully examining the first 12 hours will be fundamental to understanding what came later as it appears that once flawed explanations had entered the minds of police officers, to varying degrees it appears it remained present throughout the ensuing period up to, including and after the inquest. To what extent racial stereotyping of both Michael Menson and the Menson family took place and how this may have affected the investigation of his death will be an integral part of the investigation throughout. Similarly we will be examining whether there was an institutional failure by the Metropolitan Police to challenge with sufficient rigour the assumptions made at the start. This will include examining this issue up to and including Chief Officer levels if necessary.” On 22 April 2000 the PCA wrote to the applicants’ solicitors stating, among other things: “There is now available a significant body of evidence containing new information about these events, which appears to provide support for the family’s complaints from a number of independent directions ....” On 13 September 2000 the applicants’ solicitor received an anonymous statement dated 1 September from a member or ex-member of the MPS. This statement, purportedly made on behalf of certain unidentified “serving and retired members”, contained serious allegations of misconduct by certain police officers involved in the investigation, including an allegation that one had lied to the Coroner during the inquest proceedings. On 2 November 2000 the applicants’ representatives were informed at a meeting that the PCA had begun to interview nine police officers under caution but that only one had chosen to answer questions. A further difficulty was that certain key police officers had retired or were about to retire and could not be interviewed without their consent, and in any event not under caution. A report could not expected before November 2001 at the latest. One key officer (S.) retired on at the beginning of 2001 and was therefore no longer subject to the police disciplinary code. On 31 December 2002 the PCA informed the applicants’ solicitors in writing that it had received the Investigating Officer’s report and that the PCA was satisfied with the investigation which had been carried out into the applicants’ complaints. A copy of the report (which was supported by 218 statements, 465 documents, 18 interviews with officers under investigation and 17 appendices) had been made available to the Crown Prosecution Service (“CPS”). The applicants’ solicitors’ were further informed that they would be notified if the CPS decided to bring criminal charges in the event of findings that any police officers had committed a criminal offence. The PCA’s letter concluded: “I regret that there may be yet further delay while these next steps in dealing with your complaint are completed. The Authority will consider the disciplinary aspects of the case only after any criminal issues have been decided.” In England it is a rule of the common law that no one can recover damages in tort for the death of another (Baker v. Bolton (1808) 1 Camp. 493). The Section 1 of the Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(2) of that Act provides that an action may be brought for the benefit of the “dependants” of any deceased person against a person who wrongfully caused the death. If there is no dependency, there is no pecuniary loss to recover as damages. Bereavement damages (currently fixed at £7,500) are only available to parents of a child under the age of 18 (section1A(2)). Funeral expenses are recoverable (section 3(5)). The statutory survival of causes of action enables recovery on behalf of the deceased’s estate of damages for losses suffered by the deceased before he died. This includes any non-pecuniary loss such as damages for any pain and suffering experienced between the infliction of injury and death. Domestic case-law on the liability of the police at the relevant time in civil law for acts or omissions in the investigation and suppression of criminal offences is summarised in the Court’s Osman v. the United Kingdom judgment (Reports of Judgments and Decisions 1998-VIII). On 30 November 2000 the Race Relations (Amendment) Act received Royal Assent. The aim of this Act (“the 2000 Act”) is to bring about changes to the Race Relations Act 1976 (“the 1976 Act”) by allowing applicants to bring proceedings in respect of racially discriminatory acts by (among other public authorities) the police in carrying out their public duties of law enforcement and investigation, and to bring proceedings against the chief officers of police for acts of racial discrimination by police officers under their command. The 2000 Act has no retrospective effect. Section 75 provides for the application of the provisions of the Act to persons holding statutory office as it applies to private persons. Therefore police constables are subject to its provisions. A discrimination claim against the police in the conduct of its investigations may only be brought if it falls within the exhaustive provisions set out in the 1976 Act and, in particular, section 20, which deals with the provision of services to the public or a section of the public. The Court of Appeal has held in the case of Farah -v- Commissioner of Police of the Metropolis [1997] 2 WLR 824 that only those parts of a police officer’s duties involving assistance to or protection of members of the public amount to the provision of services to the public for the purposes of section 20(1) of the 1976 Act. According to the applicants, this greatly limits the scope of any claim under the 1976 Act against the police. In the applicants’ conclusion, there is no provision in the 1976 Act that permits an action to be brought in respect of the police investigation of the attack on Michael Menson or confers any legal remedy in respect thereof.

train

001-77416

ENG

TUR

ADMISSIBILITY

ESKINAZI AND CHELOUCHE v. TURKEY [Extracts]

Inadmissible

The first applicant, Mrs Ethel Teri Eskinazi, who has French and Turkish nationality and was born in 1963, lodged the application with the Court on her own behalf and on behalf of her daughter, Caroline Ruth Chelouche (the second applicant), who has French, Turkish and Israeli nationality and was born in January 2000 in Tel Aviv (Israel). The applicants are currently living in Istanbul. They were represented before the Court by Mr D. Bollecker, Mr J. Paillot, Mr H.C. Krüger and Ms E. Schwab-Gyrs, of the Strasbourg Bar, and assisted at the hearing by Mr M. Uluç, of the Istanbul Bar, and Ms R. Halperin-Kaddari, a lawyer practising in Israel. The third-party intervener in the case, Mr Jacques Gabriel Chelouche, of Franco-Israeli nationality and father of the second applicant, was born in 1959 and lives in Tel Aviv. He was represented before the Court by Mr F. Ruhlmann, of the Strasbourg Bar, assisted at the hearing by Ms M. Lemarchand, a lawyer practising in Paris, and Mr S. Moran, a lawyer practising in Israel. The facts of the case, as submitted by those appearing before the Court, may be summarised as follows. On 20 April 1997 Mrs Eskinazi married Mr Chelouche. The civil wedding took place before the French consular authorities in Tel Aviv. A Jewish wedding ceremony also took place in the same city. The couple apparently intended to settle permanently in Paris, although Mr Chelouche’s professional activities often kept him in Israel and Mrs Eskinazi often went to Turkey, either for work purposes or to visit her family. As she never sought to acquire Israeli nationality, the first applicant used to stay in Israel on three-month tourist visas issued by the Israeli consulate in Turkey. On 27 January 2000 the second applicant was born in Tel Aviv. The couple continued travelling between the three countries, however. The child was always accompanied by her mother. As time went by the couple’s relationship deteriorated. On 8 April 2004 the applicants went to Turkey for Passover. The plan was that they would stay there for ten days. Mrs Eskinazi put off the return date a number of times, however, and ultimately decided to remain in Turkey. On 29 April 2004 the first applicant filed a divorce petition (case no. 2004-375) with the single judge of the Sarıyer Family Affairs Court in Istanbul (“the Sarıyer Court”). On 30 April 2004 the Sarıyer Court awarded Mrs Eskinazi interim custody of her daughter. Up until then Mrs Eskinazi and Mr Chelouche had had joint custody of their daughter. On 16 May 2004, having been informed of the situation, Mr Chelouche in turn petitioned for divorce in the Tel Aviv Rabbinical Court (Batei Hadîn Harabaniim Haezorim – “the Rabbinical Court”), composed of three religious judges (dayanim). Mr Chelouche asked for the issue of custody of his daughter to be determined at the same time as that of the religious dissolution of the marriage. That request conferred full jurisdiction ipso jure on the Rabbinical Court to rule on the issue of custody rights. In his pleadings Mr Chelouche expressed the fear that his daughter would emigrate from Israel, which, judging by his wife’s conduct, would sever all his ties with his daughter. ... On the same day the Rabbinical Court made two orders. In the first one it ordered Mrs Eskinazi to bring her daughter back to Israel within seven days, failing which her action would be deemed “wrongful removal of the child” within the meaning of Article 15 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). The first applicant was informed of the order by telephone, and subsequently by fax and mail, and was given three days in which to reply. Before giving its ruling, the Rabbinical Court found it to be established that after their marriage the couple had elected Israel as the family’s fixed place of residence, and that Mrs Eskinazi, although a Turkish national, had continually lived in Israel, had obtained a driving licence and work permit in that country and had opened a bank account there. Pointing out that the child was a minor, of Israeli nationality and resident in Israel, the Rabbinical Court noted that the mother had taken the child to Turkey on 8 April 2004 supposedly for ten days, but had never returned. The order in question authorised the father to confiscate the child’s passport, once she crossed the Israeli border, and to “use all means” to safeguard his parental rights. In the second order the Rabbinical Court also imposed a prohibition on Mrs Eskinazi and her daughter leaving Israeli territory. That measure, which was initially valid until 17 May 2005, was lifted on 12 January 2005. On 10 February 2005 the Rabbinical Court decided to adjourn its hearing in the divorce proceedings, which are still pending. Mrs Eskinazi is represented in those proceedings by two members of the Tel Aviv Bar. As a first step, Mr Chelouche lodged a criminal complaint in Turkey against his wife for child abduction. The Sarıyer public prosecutor’s office took no action, however, on the ground that the case fell to be dealt with under the Hague Convention and should be brought before the bodies having jurisdiction to deal with it. Mr Chelouche therefore applied to the Ministry of Justice of his country, designated as the Central Authority (“Israel’s Central Authority”), for assistance in securing his daughter’s return to Israel, in accordance with the procedure laid down in Articles 8 and 9 of the Hague Convention. On 10 June 2004, for the purposes of those proceedings, Israel’s Central Authority sent the two aforementioned orders of the Rabbinical Court to its Turkish counterpart, namely, the General Directorate of International Law and Foreign Relations at the Ministry of Justice (“Turkey’s Central Authority”). On 23 June 2004 Turkey’s Central Authority instructed the Sarıyer public prosecutor (“the public prosecutor”) to ascertain the child’s current address, apply to the Sarıyer Court for an order prohibiting her from leaving Turkish territory, and to summon Mrs Eskinazi in order to obtain a statement from her about the alleged abduction. On 1 July 2004 the Sarıyer Court decided, in case no. 2004-375, to issue the order requested by the public prosecutor, and gave instructions for the border posts to be informed accordingly. On 6 July 2004 Turkey’s Central Authority was sent two further applications by the Israeli authorities claiming that, under Article 16 of the Hague Convention, custody rights should be withdrawn from Mrs Eskinazi as the Rabbinical Court had found her liable for “child abduction”. Turkey’s Central Authority then instructed the public prosecutor to raise a preliminary question in case no. 2004-375 pending before the Sarıyer Court, requesting the court not to rule on the custody of the child pending the outcome of the dispute regarding her return to Israel. On 9 July 2004 the Sarıyer Court followed the public prosecutor’s advice and withdrew Mrs Eskinazi’s custody of her daughter. On 19 July 2004 friendly-settlement negotiations, conducted at the request of Turkey’s Central Authority and under the aegis of the Sarıyer Court, failed after Mr Chelouche insisted on his daughter’s repatriation. On 23 July 2004 Turkey’s Central Authority sent Mrs Eskinazi’s lawyer a request from the Israeli authorities regarding the arrangements proposed by Mr Chelouche for visiting his daughter in Istanbul. On 16 August 2004 the public prosecutor brought proceedings in the Sarıyer Court for the return of the child to her father (case no. 2004-683). The Sarıyer Court held two hearings in the case. At the hearing on 17 September 2004 the parties submitted their preliminary observations. Counsel for Mrs Eskinazi argued that the Hague Convention was inapplicable in a number of respects to the case in hand and produced in support of that submission private legal opinions by Turkish professors of private international law and French lawyers. With a view to proving that the child was socially integrated in Turkey and had ties there, Mrs Eskinazi also relied on numerous documents and witness statements, and asserted that the girl had gone with her to Turkey with the father’s consent and could not therefore be regarded as having been abducted. Mr Chelouche, for his part, disputed those submissions and called two witnesses: his uncle and mother. At the end of the hearing the court fixed the father’s visiting days. The visits were to take place at the mother’s home in the presence of a social worker, but without the mother being present. At the following hearing, on 25 October 2004, which was the last one, the Sarıyer Court first took formal note of the documents produced by Turkey’s Central Authority in support of Mr Chelouche’s application. These were statements from nurseries and paediatricians in Israel. Also produced in the proceedings was an official record of the dates on which the child had gone in and out of Israel during the period 2000-04, drawn up by the Tel Aviv city authorities and the Israeli and Turkish border police. During the proceedings Mr Chelouche, referring in particular to the information provided by the Central Authorities, claimed that his daughter had spent 76% of her life in Israel. He submitted that his right was established and that a ruling had to be made expeditiously, since Article 11 of the Hague Convention required proceedings to be disposed of within six weeks. The court then heard evidence from Mr Chelouche’s mother and uncle and from the defendant’s eight witnesses. According to the latter, the child and her mother had mainly spent their time in Turkey, with the father’s knowledge. The first applicant also produced a written statement to that effect by Mr S. Levi, an Israeli importer known to the couple. Mrs Eskinazi relied further on photocopies of her passport, declaring that she had never stayed in Israel for more than 132 days out of 365 and had always had her daughter with her. She also submitted several psychologists’ opinions questioning Mr Chelouche’s ability to assume custody of his daughter. In addition, Mrs Eskinazi challenged the participation of a public prosecutor in the proceedings and complained that the plaintiff was attempting to influence the court by referring to observations of the Turkish Central Authority that were not based on any final judicial and binding decision awarding custody of the child to the father, that right having previously been exercised jointly by the parents in Israel. Lastly, Mrs Eskinazi submitted a list of further witnesses. The public prosecutor opposed her application to call them, arguing that the case was ready for decision and that, in the light of the evidence, the court should find in favour of Mr Chelouche. In accordance with Article 13 (b), second paragraph, of the Hague Convention, the Sarıyer Court did not hear the second applicant on account of her young age. At the end of the proceedings the Sarıyer Court decided that the child should be returned to her father in Israel, and maintained the prohibition on her leaving Turkey until the judgment became final. The court found that, whilst the parties to the dispute had joint custody of their daughter, Mrs Eskinazi had assured Mr Chelouche that she would go to Turkey on 8 April 2004, as usual, and return on 18 April, which she had not done in the end, contrary to the father’s wishes. Having regard in particular to the official record provided by Israel’s Central Authority, the court found that, during the period 2000-04, that is, until Miss Chelouche was removed, she had spent only 455 days outside Israel. The other relevant passages from the judgment read as follows: “... The Court cannot accept the argument submitted by the defendant and her representative that the child’s habitual place of residence is not Israel. In the light of the two-page official document issued by the Israeli Ministry of the Interior ... setting out the dates of the child’s entry into and exit from Israel between 2000 and 2004 ... and the other documents ..., it is established that, from her birth onwards, the child spent most of her life in Israel. The assertion regarding the habitual place of residence is therefore inadmissible, particularly when regard is had to the fact that the defendant declared on 15 July 2004 before the Sarıyer public prosecutor that she had lived in Israel for the six years that elapsed following the marriage. The child’s habitual place of residence, prior to her removal, was therefore Israel, notwithstanding the contrary statements by the defendant’s witnesses, which are not based on established facts and are contradicted by the official documents filed in the proceedings. Nor can the Court accept the final submission of the defendant’s representative, based on Article 13 (b) of the Hague Convention, according to which the conditions for ordering the child’s return are not satisfied on account of the state of war affecting Israel. It would appear that life in Israel pursues its normal course regarding, among other things, teaching, education, business, tourism, etc., and that the conflict and disorder in the country are confined to certain specific regions. Moreover, the conflict, which is not new and has been going on for many years, did not stop the parties from continuing to live in Israel. Furthermore, the existence of a grave risk, within the meaning of Article 13 (b) of the Hague Convention, that her return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation has not been established. Thus, the conditions for refusing to return the child, as specified in the said Article, have not been made out.” The judge of the Sarıyer Court concluded as follows: “... After hearing the parties’ submissions, I consider it established that Caroline Ruth Chelouche was taken to Turkey by her mother and subsequently removed ... from her father, contrary to the latter’s wishes, in breach of Article 3 of the Hague Convention ... I also consider it established that the requirements regarding the time-limit stipulated in Article 12 § 1 of [that convention] are satisfied, but that the conditions capable of justifying a refusal to return the child in the light of Articles 13 and 20 are not.” On 1 November 2005, following the divorce proceedings instituted by her husband, Mrs Eskinazi applied to the Tel Aviv Civil Family Court (Batei Mishpath Lelnyanei Hamishpa’ha), using an Israeli lawyer. The application, which was lodged on Caroline Chelouche’s behalf, sought to challenge the jurisdiction of the religious courts on the ground that the mother was not an Israeli national and did not reside in Israel. However, after a thorough examination of the case another lawyer convinced the first applicant that the application “stood no chance of success”, and she withdrew it on 23 November 2005. On 11 February 2005 Mrs Eskinazi’s final application for reinstatement of custody of her daughter, in case no. 2004-375, was dismissed by the Sarıyer Court, having regard to the order for the child’s return in case no. 2004-683. On 18 February 2005 Mrs Eskinazi appealed on points of law against the decision to return the child to her father. Relying on the concept of the “best interest of the child”, she maintained that her daughter’s habitual residence was in Turkey. In her submission, a child could have several places of residence, under the rules of international law, and, in any event, the Hague Convention could not be applied merely by calculating the number of days the child had spent in Israel. The first applicant argued that the child could not therefore be considered to have been abducted, especially as the father had knowingly agreed to the child gradually settling in Turkey; Mr Chelouche had neither a fixed place of residence nor regular work commitments in Israel, and had himself been keen to settle elsewhere. According to Mrs Eskinazi, he had in fact acted in bad faith in order to have the child’s habitual residence established arbitrarily, deliberately referring the matter to a rabbinical court, which – despite having no jurisdiction – had ruled in the absence of the mother on the basis of religious tenets and with total disregard for the principles of equality of arms and adversarial process. Lastly, Mrs Eskinazi’s lawyer referred to the prosecution’s participation in the proceedings before the Sarıyer Court, alleging that this had considerably swayed the mind of the single judge of the Sarıyer Court. ... On 22 March 2005 the Court of Cassation held a hearing at which it heard submissions from both parties’ representatives. On 29 March 2005 it upheld all the provisions of the impugned judgment. The applicant then lodged an application for rectification of a judgment. On 25 April 2005, at the request of its Israeli counterpart, Turkey’s Central Authority instructed the public prosecutor to take the necessary measures to prevent Mrs Eskinazi from leaving with the child. On 22 September 2005 Mrs Eskinazi’s application for rectification was refused and the judgment ordering the child’s return thus became final. On 10 October 2005 Mr Chelouche brought enforcement proceedings for the return of his daughter. Enforcement of the judgment was stayed, however, in accordance with the interim measure indicated in the case by the European Court under Rule 39 of the Rules of Court. A report drawn up on 22 October 2004 by the social worker responsible for overseeing the parental visits noted that Mrs Eskinazi had made efforts to ensure that the child’s meetings with her father were conducted smoothly and in a warm atmosphere. A second report, filed in the proceedings on 25 October 2004, on the date when the judgment at first instance was delivered, still referred to a harmonious relationship between the child and her father. However, the many further reports drawn up by social workers after that judgment were increasingly critical of the father. On 27 February 2005, when visiting the child at Mrs Eskinazi’s flat, Mr Chelouche allegedly attacked the social worker present, insisting that he wanted to talk to his daughter alone. He allegedly also caused damage in the flat. A complaint lodged in connection with those events led to the institution of criminal proceedings, which are still pending. It appears that relations deteriorated still further after that incident, and on 7 May 2005, at Mrs Eskinazi’s request, a second indictment was filed against Mr Chelouche. Following a series of psychiatric examinations carried out in September and October 2005, in the appropriate departments of two university hospitals, the second applicant was diagnosed with post-traumatic stress disorder. She has been taking medication ever since. For some of the provisions of this convention, see, for example, Iglesias Gil and A.U.I. v. Spain (no. 56673/00, § 29, ECHR 2003-V). The following Articles are also relevant: “If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.” ... “In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.” “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.” “After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.” “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” “Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.” The relevant provisions of this convention, ratified by Turkey and by Israel on 4 April 1995 and 3 October 1991 respectively, provide: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.” “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present Article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” “1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. 2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention.” ... “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” Article 23 of the International Covenant on Civil and Political Rights, signed by Turkey on 15 August 2000 and ratified by Israel on 3 October 1991, provides: “1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. ... 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.” Israel’s reservation regarding that provision reads as follows: “With reference to Article 23 of the Covenant, and any other provision thereof to which the present reservation may be relevant, matters of personal status are governed in Israel by the religious law of the parties concerned. To the extent that such law is inconsistent with its obligations under the Covenant, Israel reserves the right to apply that law.” Implementation of the Covenant by the States Parties is supervised by the Human Rights Committee, which is a body made up of independent experts. Under Article 41 of the Covenant, the Committee may examine communications of States Parties in respect of other States. All the States Parties undertake to submit reports, at regular intervals, on the measures they have adopted which give effect to the rights recognised in the Covenant. They must submit an initial report within one year of acceding to the Covenant and subsequently whenever the Committee requests one. The Committee studies the reports and informs the State Party concerned of its concerns and recommendations in the form of “final observations”. The Committee meets in Geneva or New York and generally holds three sessions per year. Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe on a European Charter on the Rights of the Child states among the first general principles: “(a) Children must no longer be considered as parents’ property, but must be recognised as individuals with their own rights and needs;” The Hague Convention has statutory force in Turkish law and forms part of the legislation. In theory, the execution in Turkey of a decision of a foreign court requires a registration procedure. However, by virtue of Article 14 of the Hague Convention, decisions delivered by the courts of the place of “habitual residence” of the child concerned are applicable without any need for a registration procedure. When dealing with an application under Article 8 of the Hague Convention, the Turkish family affairs courts are therefore empowered to rely directly on the court decision on which the application is based as conclusive evidence (Article 30 of the Hague Convention), without having to endorse it in the legal sense of the term. Execution of a decision to return a child to the country deemed to be its “habitual residence” is carried out by public prosecutors, on behalf of the General Directorate of International Law and Foreign Relations at the Ministry of Justice, that is, “the Central Authority” designated to implement the procedures laid down in the Hague Convention. In practice, in that context, the public prosecutor in charge of execution asks the requesting Central Authority to inform him of the date of arrival of the parent whose child has been abducted and makes the necessary arrangements for the child to be returned in the best conditions. In accordance with Article 25 (b) of the Judgment Enforcement Code, procedures for the return of a child and meetings in person with a child are conducted in the presence of an expert (social worker, teacher, psychologist, etc.) who is appointed jointly by the head of the Judgment Enforcement Agency and the Institute of Social Services and the Protection of Children. The Law of 1984, which establishes the structure of the Israeli legal system, provides – apart from the special courts – for three major types of court: civil, religious and military. The religious courts are governed by the Rabbinical Courts (Marriage and Divorce) Act (Law no. 5713/1953). The laws applicable to Israeli Jews in the sphere of personal status are generally based on the Torah and the Halacha. For parties of the Jewish faith, the regional rabbinical courts (Batei Hadîn Harabaniim) have exclusive jurisdiction in the areas of, among other things, divorce, marriage and diet of the members of their community. They also have jurisdiction in any other sphere relating to the personal status of Jews (such as custody and contact rights in respect of children, maintenance payments, filiation, etc.). Moreover, in respect of those matters, the regional rabbinical courts and the civil family courts (Batei Mishpath Lelnyanei Hamishpa’ha) – which are governed by the Family Courts Act (Law no. 5755/1995) – are vested with concurrent jurisdiction, which, in practice, becomes exclusive for the court before which the case is first brought. Decisions of the rabbinical courts delivered at first instance are subject to review by the Grand Rabbinical Court (Beith Hadîn Harabani Hagadol), which is the appeal court. Whether a case is tried by the rabbinical or the civil courts, the final court of appeal is the Supreme Court. According to the information in the Court’s possession, however, in respect of the rabbinical courts the Supreme Court acts as High Court of Justice, under section 15(c) of the above-mentioned Law of 1984, and, accordingly, the object and scope of its power of review are more limited. In practice, it would appear that this power of review is often exercised in respect of disputes relating to the jurisdiction of the rabbinical courts and, more rarely, in cases of denial of natural rights and non-application of the mandatory provisions of civil law. It is accepted that, in cases of conflict of jurisdiction, the Supreme Court can set aside the decision of the rabbinical court and refer the case to a civil court, but that, where errors of law with regard to the Halacha are concerned, it will merely remit the case to the original rabbinical court for it alone to amend its decision. ... Many Israeli writers point to the inequality between the sexes in the rabbinical courts, particularly in connection with the get institution, which is often criticised by Israeli society. In accordance with the Halacha, only the husband may petition for divorce from his wife, by handing her the get. There is a consensual aspect to the measure, however, since the wife is free to accept or refuse the get. ... Under Israeli law, the family courts and the rabbinical courts can, in the interests of the proper conduct of the proceedings, prohibit a party to divorce proceedings from leaving Israeli territory. According to the information available, such ne exeat measures are ordered by the rabbinical courts at the request of the party petitioning for divorce, normally for a renewable one-year period. Where the respondent is not an Israeli national, the measure is applied with particular rigour. Where the opposing party objects, the rabbinical court determines the matter following a hearing of the issue.

train

001-109883

ENG

RUS

CHAMBER

CASE OF GELD v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

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

5. The applicant was born in 1975 and lives in Perm. 6. On 30 December 2002 criminal proceedings were initiated against the applicant, a traffic police officer at the time, and his partner on suspicion of theft and abuse of office. In February 2003 the applicant was served with the bill of indictment. An undertaking not to leave his place of residence was imposed on him. 7. On 21 March 2003 the applicant was arrested and placed in detention facility no. 1 in Perm. 8. Four months later the Motovilikhinskiy District Court of Perm found the applicant guilty as charged and sentenced him to four years’ imprisonment. The court relied on numerous witness testimonies and forensic evidence. The applicant appealed. In his grounds of appeal he complained that the trial court had incorrectly assessed the facts and applied the law, and that it had not thoroughly examined the evidence, thus failing to take into account certain important issues. The judgment became final on 11 September 2003 when the Perm Regional Court upheld it on appeal. 9. From 21 March to 25 September 2003 the applicant was held in facility no. 1 in Perm. In particular, from 21 March to 19 May 2003 he was kept in cell no. 26 and from 19 to 20 May 2003 he stayed in cell no. 19. On 20 May 2003 he was transferred to cell no. 84 from which, on the following day, he was taken to cell no. 144, having remained there until 25 September 2003. 10. Relying on a certificate prepared by the director of the detention facility on 17 October 2008, the Government submitted that cell no. 26 measured 59.4 square metres and accommodated, in general, thirteen inmates. Cell no. 19 measured 25.9 square metres and on average housed twelve inmates. The average number of detainees staying in cell no. 84 of 22.2 square metres was ten, and seven inmates were usually kept in cell no. 144 which measured 23.1 square metres. The Government stressed that at all times the applicant had an individual sleeping place and bedding. 11. Citing the information provided by the director of the facility, the Government further argued that the sanitary conditions in the cells were satisfactory. In particular, the Government submitted that the cells received natural light and ventilation through a window measuring approximately 1.2 square metres. The cells also had artificial ventilation. Each cell was equipped with a lavatory pan, a sink and a tap with running water. The lavatory pan was separated from the living area of the cell by a partition measuring between 1.33 and 1.42 metres in height. Inmates were allowed to take a shower once every seven days for no less than fifteen minutes. The cells were regularly disinfected. The cells were equipped with lamps which functioned day and night. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. 12. The applicant disputed the Government’s submission, arguing that the four cells had been smaller and had accommodated a far greater number of inmates than the Government had described. Relying on written statements by Mr U. who had also been detained in cell no. 144 in the summer of 2003, the applicant submitted that that cell had measured approximately sixteen metres, had eleven sleeping places and housed thirteen to fourteen inmates. Given the lack of beds, inmates had slept in shifts. They were not provided with bedding. He had had to stay in overcrowded conditions for the entire day, save for an hour-long outdoor walk in the recreation yard. 13. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the management had not provided any insecticide. The walls in the cells were covered with fresh paint. Given the absence of natural or artificial ventilation, the strong smell of paint lingered in the cells. The applicant stressed that the windows were covered with metal blinds blocking access to natural light and air. It was extremely hot during the summer with the metal blinds turning into heated “radiators” under the direct sunlight. Inmates were allowed to smoke in the cells, which was an additional aggravated circumstance for the applicant, a non-smoker. The lavatory pan was placed on a concrete block elevated fifty centimetres above the floor and situated between 0.8 to 1 metre from the dining area. The toilet was not separated from the living area and emitted an unpleasant odour in the cell. At no time did inmates have complete privacy. Anything they happened to be doing – using the toilet, sleeping – was in view of the guard or fellow inmates. No toiletries were provided. The food was of very poor quality and in scarce supply. 14. Relying on inmate U.’s written statement, the applicant concluded by noting that complaints to the administration of the detention facility had been to no avail. 15. The relevant provisions of domestic and international law on conditions of detention are set out, for instance, in the Court’s judgment in the case of Gladkiy v. Russia (no. 3242/03, §§ 36, 38 and 50, 21 December 2010).

train

001-96151

ENG

UKR

CHAMBER

CASE OF SHASTIN AND SHASTINA v. UKRAINE

Violation of Article 6 - Right to a fair trial

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

4. The applicants were born in 1932. The first applicant lives in Slovyansk. The second applicant lived in the same town before his death. 5. At the material time the applicants worked at the State Soda Plant (ВАТ «Содовий завод»). 6. On 24 October 1997 and 5 June 1998 the Slovyansk Town Court awarded the first applicant 1,752.56 and 717.74 Ukrainian hryvnias (UAH) in salary arrears to be paid by the above-mentioned company. 7. On 24 October 1997 and 28 March 2001 the Slovyansk Town Court awarded the second applicant UAH 940.84 and UAH 715.63 in salary arrears to be paid by the above-mentioned company. 8. These decisions became final and the State Bailiffs' Service instituted proceedings to enforce them. 9. On 3 January 2001 the Donetsk Regional Arbitration Court (after June 2001 the Donetsk Regional Commercial Court) instituted insolvency proceedings against the debtor company. On 4 September 2003 the court, having declared the debtor insolvent, ordered its liquidation, which is still pending. 10. The decisions given in the applicants' favour have not been executed. 11. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).

train

001-80046

ENG

GBR

GRANDCHAMBER

CASE OF EVANS v. THE UNITED KINGDOM

No violation of Art. 2;No violation of Art. 8;No violation of Art. 14+8

Anatoly Kovler;András Baka;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Ljiljana Mijovic;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky;Volodymyr Butkevych

11. The applicant was born in October 1971 and lives in Wiltshire. 12. The facts, as found by Mr Justice Wall (“Wall J”), who heard the parties’ oral evidence (see paragraph 20 below), are as follows. 13. On 12 July 2000 the applicant and her partner, J. (born in November 1976), commenced treatment at the Bath Assisted Conception Clinic (“the clinic”). The applicant had been referred for treatment at the clinic five years earlier, when she was married, but had not pursued it because of the breakdown of her marriage. 14. On 10 October 2001 the applicant and J. were informed, during an appointment at the clinic, that preliminary tests had revealed that the applicant had serious pre-cancerous tumours in both ovaries, and that her ovaries would have to be removed. They were told that because the tumours were growing slowly it would be possible first to extract some eggs for in vitro fertilisation (“IVF”), but that this would have to be done quickly. 15. The consultation of 10 October 2001 lasted approximately an hour in total. A nurse explained that the applicant and J. would each have to sign a form consenting to the IVF treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus (see paragraph 37 below). The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs, but was informed that this procedure, which had a much lower chance of success, was not performed at the clinic. At that point J. reassured the applicant that they were not going to split up, that she did not need to consider the freezing of her eggs, that she should not be negative and that he wanted to be the father of her child. 16. Thereafter, the couple entered into the necessary consents, by signing the forms required by the 1990 Act (see paragraph 37 below). Immediately beneath the title to the form appeared the following words: “NB – do not sign this form unless you have received information about these matters and have been offered counselling. You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used. Please insert numbers or tick boxes as appropriate.” J. ticked the boxes which recorded his consent to use his sperm to fertilise the applicant’s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together. He further ticked the box headed “Storage”, opting for the storage of embryos developed in vitro from his sperm for the maximum period of ten years and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period. The applicant signed a form which, while referring to eggs rather than sperm, essentially replicated that signed by J. Like J., she ticked the boxes providing for the treatment of herself and for the treatment “of myself with a named partner.” 17. On 12 November 2001 the couple attended the clinic and eleven eggs were harvested and fertilised. Six embryos were created and consigned to storage. On 26 November the applicant underwent an operation to remove her ovaries. She was told that she should wait two years before attempting to implant any of the embryos in her uterus. 18. In May 2002 the relationship broke down. The future of the embryos was discussed between the parties. On 4 July 2002 J. wrote to the clinic to notify it of the separation and to state that the embryos should be destroyed. 19. The clinic notified the applicant of J.’s withdrawal of consent to further use of the embryos and informed her that it was now under a legal obligation to destroy them, pursuant to paragraph 8(2) of Schedule 3 to the 1990 Act (see paragraph 37 below). The applicant commenced proceedings in the High Court, seeking an injunction requiring J. to restore his consent to the use and storage of the embryos and a declaration, inter alia, that he had not varied and could not vary his consent of 10 October 2001. Additionally she sought a declaration of incompatibility under the Human Rights Act 1998 to the effect that section 12 of, and Schedule 3 to, the 1990 Act breached her rights under Articles 8, 12 and 14 of the Convention. She also pleaded that the embryos were entitled to protection under Articles 2 and 8. Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings. 20. The trial judge, Wall J, heard the case over five days and took evidence from, among others, the applicant and J. On 1 October 2003, in a 65-page judgment (Evans v. Amicus Healthcare Ltd and Others [2003] EWHC 2161 (Fam)), he dismissed the applicant’s claims. 21. He concluded that under the terms of the 1990 Act, and as a matter of public policy, it had not been open to J. to give an unequivocal consent to the use of the embryos irrespective of any change of circumstance, and that, as a matter of fact, J. had only ever consented to his treatment “together” with the applicant, and not to her continuing treatment on her own in the event that their relationship ended. Wall J thus rejected the applicant’s submission that J. was estopped from withdrawing his consent, finding that both the applicant and J. had embarked on the treatment on the basis that their relationship would continue. On 10 October 2001 J. had been doing his best to reassure the applicant that he loved her and wanted to be the father of her children; giving a truthful expression of his feelings at that moment, but not committing himself for all time. Wall J observed that in the field of personal relationships, endearments and reassurances of this kind were commonplace, but they did not – and could not – have any permanent, legal effect. In undergoing IVF with J., the applicant had taken the only realistic course of action open to her. Wall J continued: “However, even if I am wrong about that, and even if an estoppel is capable of existing in the face of the Act, I do not, for the reasons I have given, think it would be unconscionable to allow [J.] to withdraw his consent. It is a right which the Statute gives him within the clear scheme operated by Parliament. It was the basis upon which he gave his consent on 10 October 2001. It is perfectly reasonable for him, in the changed circumstances which appertain, not to want to father a child by Ms Evans.” 22. As to the applicant’s Convention claims, Wall J held in summary that an embryo was not a person with rights protected under the Convention, and that the applicant’s right to respect for family life was not engaged. He accepted that the relevant provisions of the 1990 Act interfered with the private life of both parties, but held that it was proportionate in its effect, the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child. He considered it entirely appropriate that the Act required couples embarking on IVF treatment to be in agreement about the treatment, and permitted either party to withdraw from it at any time before the embryo was transferred into the woman. 23. Wall J emphasised that the provisions of Schedule 3 to the Act (see paragraph 37 below) applied equally to all patients undergoing IVF treatment, irrespective of their sex, and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man. “If a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her. The statutory provisions, like Convention rights, apply to men and women equally.” 24. The applicant’s appeal to the Court of Appeal was dismissed in a judgment delivered on 25 June 2004 (Evans v. Amicus Healthcare Ltd [2004] EWCA Civ 727). The court held that the clear policy of the 1990 Act was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo, and that “the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme”. Like Wall J, the Court of Appeal found that J. had only ever consented to undergoing “treatment together” with the applicant, and had never consented to the applicant using the jointly created embryos alone. Once the relationship had broken down, and J. had indicated that he did not wish the embryos to be preserved or used by the applicant, they were no longer being treated “together”. The court rejected the applicant’s argument that J. had concealed his ambivalence, thereby inducing her to go forward with him into couple treatment, holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant, J., and the other witnesses (see paragraph 20 above). The Court of Appeal was also informed by J.’s counsel that J.’s clear position in withdrawing his consent was one of fundamental rather than purely financial objection. 25. While there was an interference with the private lives of the parties, Lords Justices Thorpe and Sedley found it to be justified and proportionate, for the following reasons. “The less drastic means contended for here is a rule of law making the withdrawal of [J.’s] consent non-conclusive. This would enable [the applicant] to seek a continuance of treatment because of her inability to conceive by any other means. But unless it also gave weight to [J.’s] firm wish not to be father of a child borne by [the applicant], such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers. Further, in order to give it weight the legislation would have to require the [Human Fertilisation and Embryology Authority] or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy. It would also require a balance to be struck between two entirely incommensurable things. ... ... The need, as perceived by Parliament, is for bilateral consent to implantation, not simply to the taking and storage of genetic material, and that need cannot be met if one half of the consent is no longer effective. To dilute this requirement in the interests of proportionality, in order to meet [the applicant’s] otherwise intractable biological handicap, by making the withdrawal of the man’s consent relevant but inconclusive, would create new and even more intractable difficulties of arbitrariness and inconsistency. The sympathy and concern which anyone must feel for [the applicant] is not enough to render the legislative scheme ... disproportionate.” 26. Lady Justice Arden stated, by way of introduction: “The 1990 Act inevitably uses clinical language, such as gametes and embryos. But it is clear that the 1990 Act is concerned with the very emotional issue of infertility and the genetic material of two individuals which, if implanted, can lead to the birth of a child. ... Infertility can cause the woman or man affected great personal distress. In the case of a woman, the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and to their dignity.” She continued: “Like Thorpe and Sedley LJJ, I consider that the imposition of an invariable and ongoing requirement for consent in the 1990 Act in the present type of situation satisfies Article 8 § 2 of the Convention. ... As this is a sensitive area of ethical judgment, the balance to be struck between the parties must primarily be a matter for Parliament ... Parliament has taken the view that no one should have the power to override the need for a genetic parent’s consent. The wisdom of not having such a power is, in my judgment, illustrated by the facts of this case. The personal circumstances of the parties are different from what they were at the outset of treatment, and it would be difficult for a court to judge whether the effect of [J.’s] withdrawal of his consent on [the applicant] is greater than the effect that the invalidation of that withdrawal of consent would have on [J.]. The court has no point of reference by which to make that sort of evaluation. The fact is that each person has a right to be protected against interference with their private life. That is an aspect of the principle of self-determination or personal autonomy. It cannot be said that the interference with [J.’s] right is justified on the ground that interference is necessary to protect [the applicant’s] right, because her right is likewise qualified in the same way by his right. They must have equivalent rights, even though the exact extent of their rights under Article 8 has not been identified. ... The interference with [the applicant’s] private life is also justified under Article 8 § 2 because, if [the applicant’s] argument succeeded, it would amount to interference with the genetic father’s right to decide not to become a parent. Motherhood could surely not be forced on [the applicant] and likewise fatherhood cannot be forced on [J.], especially as in the present case it will probably involve financial responsibility in law for the child as well.” 27. On the issue of discrimination, Lords Justices Thorpe and Sedley considered that the true comparison was between women seeking IVF treatment whose partners had withdrawn consent and those whose partners had not done so; Lady Justice Arden considered that the real comparators were fertile and infertile women, since the genetic father had the possibility of withdrawing consent to IVF at a later stage than in ordinary sexual intercourse. The three judges were nevertheless in agreement that, whatever comparators were chosen, the difference in treatment was justified and proportionate under Article 14 of the Convention for the same reasons which underlay the finding of no violation of Article 8. The Court of Appeal further refused leave to appeal against Wall J’s finding that the embryos were not entitled to protection under Article 2, since under domestic law a foetus prior to the moment of birth, much less so an embryo, had no independent rights or interests. 28. On 29 November 2004 the House of Lords refused the applicant leave to appeal against the Court of Appeal’s judgment. 29. The birth of the first child from IVF in July 1978 prompted much ethical and scientific debate in the United Kingdom, which in turn led to the appointment in July 1982 of a Committee of Inquiry under the chairmanship of the philosopher Dame Mary Warnock DBE to “consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations”. 30. The Committee reported in July 1984 (Cmnd 9314). At that time, the technique of freezing human embryos for future use was in its infancy, but the Committee noted that it had already occurred and had resulted in one live birth, and recommended that clinical use of frozen embryos should continue to be developed under review by the licensing body (see paragraph 10.3 of the report). It went on, however, to recognise the potential problems arising from the possibility of prolonged storage of human embryos, and recommended that a couple should be permitted to store embryos for their own future use for a maximum of ten years, after which time the right of use or disposal should pass to the storage authority (paragraph 10.10). It further recommended that where, as a result, for example, of marital breakdown, a couple failed to agree how the shared embryo should be used, the right to determine the use or disposal of the embryo should pass to the storage authority (paragraph 10.13). Consistent with its view that there should be no right of ownership in a human embryo (paragraph 10.11), the Committee did not consider that one party to the disagreement should be able to require use of the embryo against the wishes of the other. 31. The Warnock Committee’s recommendations, so far as they related to IVF treatment, were set out in a Green (consultation) Paper issued for public consultation. It was noted in the Green Paper (at paragraph 35) that few comments had been received about the Committee’s recommendation that the storage authority should assume the rights of use or disposal of an embryo where there was no agreement between the couple, and stressed that although this situation was unlikely to arise very often it was important that there should be a “clear basis” for its resolution. 32. After receipt of representations from interested parties, the proposals on IVF were included in a White Paper (report), Human Fertilisation and Embryology: A Framework for Legislation, published in November 1987 (Cm 259). The White Paper recorded the Warnock Committee’s recommendation that the right of use or disposal of a frozen embryo should pass to the storage authority in the event of disagreement between the couple concerned (paragraphs 50-51), but continued: “Broadly, those who believe storage should be permitted were content with the Warnock recommendations. There were some, however, who considered that the ‘storage authority’ should not have the right of use or disposal unless specifically granted this by the donors. The Government shares this latter view and has concluded that the law should be based on the clear principle that the donor’s wishes are paramount during the period in which embryos or gametes may be stored; and that after the expiry of this period, they may only be used by the licence holder for other purposes if the donor’s consent has been given to this.” The White Paper indicated the Government’s decision that the maximum storage period for embryos should be five years (paragraph 54). Then, in a section entitled “Donor’s Consent”, it set out the policy that a donor should have the right to vary or withdraw consent to the transfer of an embryo to a woman at any time before the embryo was used: “55. The complexities connected with storage underline the importance of ensuring that, when couples embark on IVF treatment, or when gametes are being donated, the individuals involved have given their consent to the uses to which their gametes or embryos will be put. 56. The Bill will provide that gametes or embryos may only be stored with the signed consent of the donors; and may be used only by the licence holder responsible for storage for the purposes specified in that consent (e.g. for therapeutic treatment, [or for research]). Those giving consent should be provided with information about the techniques for which their gametes/embryos might be used and about the legal implications of their decision. As a matter of good practice, counselling should also be available to them. 57. Donors would have the right to vary or withdraw their consent before the gametes/embryos were used, but the onus would be on them to notify any change to the licence holder. A licence holder receiving notice of such a change will have a duty to inform any other licence holder to whom he has supplied the donor’s gametes. (This situation might arise, for example, if a sperm bank supplied sperm to one or more treatment centres.) In the absence of any notification to the contrary, or notification of death, the licence holder must assume that the original consent still holds, and must act accordingly during the storage period. When this ends, he may only use or dispose of the embryos or gametes in accordance with the specified wishes of the donors. If these are not clear, the embryo or gametes should be removed from storage and left to perish. 58. As far as embryos are concerned, these may not be implanted into another woman, nor used for research, nor destroyed (prior to the expiry of the storage time limit) in the absence of the consent of both donors. If there is disagreement between the donors the licence holder will need to keep the embryo in storage until the end of the storage period, after which time, if there is still no agreement, the embryo should be left to perish.” 33. Following further consultation, the Human Fertilisation and Embryology Bill 1989 was published, and passed into law as the Human Fertilisation and Embryology Act 1990. The Bill substantially reflected the terms of the White Paper. The provisions dealing with consent did not prove controversial during its passage through Parliament. 34. In R. v. Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) [2003] UKHL 13, Lord Bingham described the background to and general approach of the 1990 Act as follows. “... There is no doubting the sensitivity of the issues. There were those who considered the creation of embryos, and thus of life, in vitro to be either sacrilegious or ethically repugnant and wished to ban such activities altogether. There were others who considered that these new techniques, by offering means of enabling the infertile to have children and increasing knowledge of congenital disease, had the potential to improve the human condition, and this view also did not lack religious and moral arguments to support it. Nor can one doubt the difficulty of legislating against a background of fast-moving medical and scientific development. It is not often that Parliament has to frame legislation apt to apply to developments at the advanced cutting edge of science. ... The solution recommended and embodied in the 1990 Act was not to ban all creation and subsequent use of live human embryos produced in vitro but instead, and subject to certain express prohibitions of which some have been noted above, to permit such creation and use subject to specified conditions, restrictions and time limits and subject to the regimes of control ... It is ... plain that while Parliament outlawed certain grotesque possibilities (such as placing a live animal embryo in a woman or a live human embryo in an animal), it otherwise opted for a strict regime of control. No activity within this field was left unregulated. There was to be no free for all.” 35. By section 3(1) of the Act, no person shall bring about the creation of an embryo, or keep or use an embryo except in pursuance of a licence. The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question. The contravention of section 3(1) is an offence (created by section 41(2)(a) of the Act). 36. By section 14(4) of the Act, “the statutory storage period in respect of embryos is such period not exceeding five years as the licence may specify”. This provision was amended by the Human Fertilisation and Embryology (Statutory Storage Period for Embryos) Regulations 1996, which came into force on 1 May 1996, and which provide, inter alia, that where, in the opinion of two medical practitioners, the woman in whom the embryo may be placed, or, where she is not one of the persons whose gametes are used to create the embryo, one of those persons, is or is likely to become completely infertile prematurely, the storage period is extended until that woman is 55. Where, in the opinion of a single medical practitioner, the woman in whom the embryo may be placed, or one of the gamete providers, has or is likely to have significantly impaired fertility or has a significant genetic defect, the storage period is extended to ten years, or until that woman is 55, whichever period is the shorter. Both of the persons whose gametes are used to create the embryos are required to confirm in writing that they do not object to extended storage for the purposes of future treatment. The woman in whom any such embryo may be placed must be under 50 when storage commences. 37. By section 12(c) of the Act, it is a condition of every licence granted that the provisions of Schedule 3 to the Act, which deal with “consents to use of gametes or embryos”, shall be complied with. The High Court and Court of Appeal held, in the proceedings brought by the applicant (see paragraphs 20-27 above) that, as a matter of the construction of Schedule 3, “the embryo is only used once transferred to the woman”. Schedule 3 provides as follows: “Consents to use of gametes or embryos Consent 1. A consent under this Schedule must be given in writing and, in this Schedule, ‘effective consent’ means a consent under this Schedule which has not been withdrawn. 2. (1) A consent to the use of any embryo must specify one or more of the following purposes– (a) use in providing treatment services to the person giving consent, or that person and another specified person together, (b) use in providing treatment services to persons not including the person giving consent, or (c) use for the purposes of any project of research, and may specify conditions subject to which the embryo may be so used. (2) A consent to the storage of any gametes or any embryo must– (a) specify the maximum period of storage (if less than the statutory storage period), and (b) state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it, and may specify conditions subject to which the gametes or embryo may remain in storage. (3) A consent under this Schedule must provide for such other matters as the Authority may specify in directions. (4) A consent under this Schedule may apply– (a) to the use or storage of a particular embryo, or (b) in the case of a person providing gametes, to the use or storage of any embryo whose creation may be brought about using those gametes, and in the paragraph (b) case the terms of the consent may be varied, or the consent may be withdrawn, in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos. Procedure for giving consent 3. (1) Before a person gives consent under this Schedule– (a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and (b) he must be provided with such relevant information as is proper. (2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 below. Variation and withdrawal of consent 4. (1) The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant. (2) The terms of any consent to the use of any embryo cannot be varied, and such consent cannot be withdrawn, once the embryo has been used– (a) in providing treatment services, or (b) for the purposes of any project of research. Use of gametes for treatment of others 5. (1) A person’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent. (2) A person’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used. (3) This paragraph does not apply to the use of a person’s gametes for the purpose of that person, or that person and another together, receiving treatment services. In vitro fertilisation and subsequent use of embryo 6. (1) A person’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph 2(1) above. (2) An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for one or more of the purposes mentioned in paragraph 2(1) above of the embryo. (3) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents. (4) Any consent required by this paragraph is in addition to any consent that may be required by paragraph 5 above. ... Storage of gametes and embryos 8. (1) A person’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent. (2) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each person whose gametes were used to bring about the creation of the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents. (3) An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent.” 38. The material effect of Schedule 3 was summarised in the judgment of Lords Justices Thorpe and Sedley (see paragraph 25 above) as follows. “(i) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling; (ii) They must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn; (iii) Consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent, or to that person together with another, or to persons not including the person giving consent; (iv) An embryo may only be stored while there is effective consent to its storage from both gamete providers, and in accordance with the terms of the consent; (v) An embryo may only be used while there is an effective consent to its use from both gamete providers, and in accordance with the terms of that consent; (vi) Consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time; (vii) Consent to the use of an embryo cannot be varied or withdrawn once the embryo has been used in providing treatment services.” 39. On the basis of the material available to the Court, including the “Medically Assisted Procreation and the Protection of the Human Embryo Comparative Study on the Solution in 39 States” (Council of Europe, 1998) and the replies by the member States of the Council of Europe to the Steering Committee on Bioethics “Questionnaire on Access to Medically Assisted Procreation” (Council of Europe, 2005), it would appear that IVF treatment is regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom; while in Belgium, the Czech Republic, Finland, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such treatment is governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles. 40. The storage of embryos, for varying lengths of time, appears to be permitted in all the above States where IVF is regulated by primary or secondary legislation, except Germany and Switzerland, where in one cycle of treatment no more than three embryos may be created which are, in principle, to be implanted together immediately, and Italy, where the law permits the freezing of embryos only on exceptional, unforeseen medical grounds. 41. In Denmark, France, Greece, the Netherlands and Switzerland, the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in primary legislation. It appears that, as a matter of law or practice, in Belgium, Finland and Iceland there is a similar freedom for either gamete provider to withdraw consent before implantation. 42. A number of countries have, however, regulated the consent issue differently. In Hungary, for example, in the absence of a specific contrary agreement by the couple, the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple. In Austria and Estonia the man’s consent can be revoked only up to the point of fertilisation, beyond which it is the woman alone who decides if and when to proceed. In Spain, the man’s right to revoke his consent is recognised only where he is married to and living with the woman. In Germany and Italy, neither party can normally withdraw consent after the eggs have been fertilised. In Iceland, the embryos must be destroyed if the gamete providers separate or divorce before the expiry of the maximum storage period. 43. In addition, the parties referred the Court to case-law from the United States and Israel. The field of medically assisted reproduction is not regulated at federal level in the United States and few States have introduced laws concerning the subsequent withdrawal of consent by one party. It has, therefore, been left to the courts to determine how the conflict between the parties should be resolved and there are a number of judgments by State Supreme Courts regarding the disposal of embryos created through IVF. 44. In Davis v. Davis (842 S.W.2d 588, 597; Tenn. 1992), the Supreme Court of Tennessee held in 1992: “... disputes involving the disposition of pre-embryos produced by in vitro fertilisation should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the pre-embryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. If no other reasonable alternatives exist, then the argument in favor of using the pre-embryos to achieve pregnancy should be considered. However, if the party seeking control of the pre-embryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail. But the rule does not contemplate the creation of an automatic veto ...” 45. In Kass v. Kass (98 N.Y. Int. 0049), the couple had signed an agreement with the clinic which stipulated that, “in the event that we ... are unable to make a decision regarding the disposition of our frozen pre-zygotes”, the embryos could be used for research. When the couple separated, Mrs Kass sought to overturn the agreement and proceed to implantation. Although she prevailed at first instance (the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of IVF), the New York Court of Appeal decided that the existing agreement was sufficiently clear and should be honoured. 46. In A.Z. v. B.Z. (2000 431 Mass. 150, 725 N.E.2d 1051) there was again a previous written agreement, according to which, in the event of separation, the embryos were to be given to the wife, who now wished to continue with the treatment, contrary to the wishes of the husband. However, the Supreme Court of Massachusetts considered that the arrangement should not be enforced because, inter alia, as a matter of public policy “forced procreation is not an area amenable to judicial enforcement”. Rather, “freedom of personal choice in matters of marriage and family life” should prevail. 47. This judgment was cited with approval by the Supreme Court of New Jersey, in J.B. v. M.B. (2001 WL 909294). Here, it was the wife who sought the destruction of the embryos while the husband wanted them either to be donated to another couple or preserved for use by him with a future partner. Although constitutional arguments were advanced on behalf of the wife, the court declined to approach the matter in this way, reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights. Instead, having taken into account the fact that the father was not infertile, the court subscribed to the view taken in the A.Z. case regarding public policy and ordered that the wife’s wishes be observed. 48. Finally, in Litowitz v. Litowitz (48 P. 3d 261, 271) the woman, who had had children before undergoing a hysterectomy, wished to use embryos created with her ex-husband’s sperm and donor eggs for implantation in a surrogate mother. The ex-husband, however, wished the embryos to be donated to another couple. At first instance and on appeal the husband’s view prevailed, but in 2002 the Supreme Court of Washington decided by a majority to adopt a contractual analysis and to honour the couple’s agreement with the clinic not to store the embryos for more than five years. 49. In Nachmani v. Nachmani (50(4) P.D. 661 (Isr)), a childless Israeli couple decided to undergo IVF and then to contract with a surrogate in California to bear their child because the wife would not be able to carry the foetus to term. The couple signed an agreement with the surrogate, but not with the IVF clinic regarding the disposal of the embryos in the event of their separation. The wife had her last eleven eggs extracted and fertilised with her husband’s sperm. The couple then separated, before the embryos could be implanted in the surrogate, and the husband, who had gone on to have children with another woman, opposed the use of the embryos. The District Court found in favour of the wife, holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife’s egg through sexual intercourse. A five-judge panel of the Supreme Court reversed this decision, upholding the man’s fundamental right not to be forced to be a parent. The Supreme Court reheard the case as a panel of eleven judges and decided, seven to four, in favour of the wife. Each judge wrote a separate opinion. The judges in the majority found that the woman’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man. Three of the minority judges, including the Chief Justice, reached the opposite conclusion, emphasising that the wife had known that her husband’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated. The fourth of the dissenters held that the man’s consent was required before the obligation of parenthood could be imposed on him. 50. The general rule stated in Article 5 of the Council of Europe Convention on Human Rights and Biomedicine states as follows: “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” 51. Principle 4 of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences, the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics (CAHBI, 1989), stated: “1. The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements. ...” 52. Finally, Article 6 of the Universal Declaration on Bioethics and Human Rights provides: “Article 6 – Consent 1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice. ...”

train

001-97940

ENG

DNK

ADMISSIBILITY

SANTOS HANSEN v. DENMARK

Inadmissible

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

The applicant, Ms Luciana Santos Hansen, is a Danish national, who was born in Brazil in 1992 and now lives in Nr. Asmindrup, Denmark. She was represented by Mr Tyge Trier, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Thomas Winkler, of the Ministry of Foreign Affairs and their Co-Agent, Nina Holst-Christen, of the Ministry of Justice. In 1999 in Brazil, Inge Hansen, a Danish national born in 1960, as single adopter, via a Danish adoption centre, adopted the applicant whose biological father had died and whose biological mother the Brazilian authorities were unable to find. It appears that both biological parents had previously been deprived of custody. Before the adoption, Inge Hansen had contacted the municipality for guidance on the benefits for which she would be eligible after the adoption, including whether she should try to obtain a copy of the death certificate of the applicant’s biological father during her stay in Brazil in order to fulfil formal criteria. By letter of 17 June 1998 the municipality informed her that she would be entitled to child subsidy and extra child subsidy, but not to a so-called special child subsidy. Also before the adoption, Inge Hansen had to substantiate that she was able to satisfy the financial conditions for adopting as a single adopter and she declared that she undertook full responsibility to provide for the applicant. In Denmark, by virtue of sections 2 and 3 of the Child Subsidy Act (Børnetilskudsloven) the applicant, via her adoptive mother, was granted socalled child subsidy and extra child subsidy, together amounting to approximately 100 euros (EUR) per month. Inge Hansen’s request of 12 January 2001 for the so-called special child subsidy, also amounting to approximately EUR 100 per month, was refused on 16 January 2001 by the municipality because she failed to fulfil section 4, subsection 3(i) – (iii), of the Act which required (i) that paternity of the child had not been established; (ii) that the child only had one surviving parent who provided for the child; or (iii) that the child, after the death of the guardian, had been adopted by the latter’s spouse or by a single person. It stated that single adopters who adopt a foreign child via one of the organisations approved by the Ministry of Justice were not entitled to the special child subsidy under section 4, subsection 3(iii), of the Child Subsidy Act, since the single adopter, when adopting, undertook full responsibility to provide for the child. On appeal, the decision was upheld on 4 September 2001 by the County Social Board (Det Sociale Nævn i Statsamtet Vestsjælland). The applicant’s appeal to the Social Appeal Board (Den Sociale Ankestyrelse) was dismissed on 19 October 2001 on the ground that it was not a matter of principle or of general importance as the state of law was sufficiently clear. In that connection it referred to the fact that it had previously determined two cases concerning applications for special child subsidy in respect of children adopted by single adopters. The applicant brought the County Social Board’s decision of 4 September 2001 before the High Court of Eastern Denmark (Østre Landsret), (“the High Court”), claiming that she was entitled to the special child subsidy by virtue of section 4, subsection 3(i), (ii) or (iii). She also invoked Article 14 of the Convention since in her view she was discriminated against, notably as compared to children of single women who refused to disclose the paternity of their children, or of single women having been artificially inseminated, who were entitled to the special child subsidy under no. (i). Statistics were submitted showing, inter alia, that in the period from 2001 to 2003, forty-four single adopters were approved in Denmark, and that in thirty-two cases paternity had not been established. Moreover, for several years no Danish children had been adopted by single adopters without there having been a family relationship or other connection between the adopted child and the adopter. By judgment of 15 March 2005 the High Court found against the applicant. It noted that only section 4, subsection 3(iii), of the Child Subsidy Act concerned adoption. Moreover, it noted that before 1986 section 4, subsection 3(iii), read as follows “when the child, after the death of the guardian, is adopted by the latter’s spouse or by a single person within the child’s family” and considered that the amendment had been made primarily to ensure that partners, as opposed to spouses, were also encouraged to adopt a child after the guardian had died. More specifically it stated: “.... although the wording of section 4, subsection 3(iii), of the Act on Child Subsidy may leave some doubt about the correct interpretation, the High Court finds no basis for assuming from the wording of the provision, in which the word ‘spouse’ has been maintained, and on the basis of the comments to the changed wording in 1986 that it was intended that the provision was to include single adopters who, as in this case, have adopted a child without a certain kind of connection existing between the child and the adopter while the parental responsibility holder was alive. Hence, the amendment must be assumed mainly to reflect an updating of the current rules for the purpose of ensuring increased child subsidy also in the situations in which the adopter was not married to the parental responsibility holder, but cohabited with him or her outside marriage. This outcome is supported by the fact that it was presupposed in connection with the bills of 1999 and 2000 concerning a change in the legal position that, as a rule, children adopted by single adopters are not entitled to special child benefits. Accordingly, the provision of paragraph (iii) is deemed not to be applicable.” The applicant appealed against the judgment to the Supreme Court which, by a judgment of 2 November 2006 and by a majority of three out of five judges, found against the applicant. The majority stated as follows: “Having regard to the background and wording of and the reciprocal connection between section 4, subsection 3(i), (ii) and (iii), of the Child Subsidy Act, [those provisions] must be understood in such a way that entitlement to the special child subsidy for a child adopted by a single adopter is regulated solely by no. (iii). The provisions on sole providers under nos. (i) and (ii) do not affect single adopters. Until 1973 a child adopted by a single adopter had no right to the special child subsidy just because the single adopter was sole provider. When section 4, subsection 3(iii), was inserted in 1973 the right to the special child subsidy for children of sole providers was expanded to include certain single adopters. It was a condition that the child, after the death of the guardian, had been adopted by the latter’s spouse or by a single person within the child’s family. The preparatory notes (Folketingstidende 1972-1973, Tillæg A, sp. 5925-26) stated that the purpose was to give the stepfather or stepmother an incitement to adopt the child instead of placing him or her in foster care. The provision also included other orphans, provided they were adopted by a single family member, for example one of the parent’s siblings or one of the grandparents. At the same time it was emphasised that the new no. (iii) did not include unrelated single adopters. In 1986 the wording “within the child’s family” was omitted. Thus, in accordance within the wording, the special child subsidy is granted when the child, after the death of the guardian, is adopted by the latter’s spouse or by a single person. It is left unmentioned in the preparatory notes – (Folketingstidende 1985-1986, Tillæg A, sp. 5994) – whether no (iii) hereafter includes all cases in which an orphan is adopted by an unrelated single person, or whether the incitement to single adoption entailed in the provision, continues to be aimed only at single persons with whom the child has a certain connection – a connection which is not necessary family related. In line with the High Court, we find no reason to assume that the amendment in 1986 intended to include single adopters, who are guardian to an orphan, without there having been some connection between the adopter and the child before the guardian’s death. It is undisputed that [the applicant’s] biological mother was alive at the time of adoption and that [prior to that time] there had been no connection between [the applicant] and her adoptive mother. In these circumstances we agree that [the applicant] does not fulfil the requirements set out in section 4, subsection 3(iii), to be granted the special child subsidy. The question of the connection that the child and the parents must have to Denmark in order to be entitled to child subsidy [in general] is regulated in section 5 of the Child Subsidy Act. The requirements set out in section 4, subsection 3(i) - (iii), do not distinguish between Danish and foreign children. Accordingly, foreign children who are adopted in [Denmark] are entitled to the special child subsidy under the same conditions as Danish children who are adopted by a single person. The fact that, outside family relations and so on, on the whole, by and large, only foreign children are adopted by single persons in [Denmark] cannot in our view lead to the conclusion that the County Social Board’s refusal to grant [the applicant] the special child subsidy is discriminatory in breach of Article 14 of the Convention in conjunction with Article 8 or Article 1 of Protocol No. 1 to the Convention, or of the other invoked conventional provisions.” The minority stated as follows: “Section 4, subsection 3(iii), of the Child Subsidy Act was inserted in the legislation by Act no. 36 of 15 July 1973 and Act no. 350 of 4 June 1986 gave it its current wording. In the original provision [it was a condition for obtaining the subsidy] that the child, after the death of the guardian, was adopted by the latter’s spouse or by a single person within the child’s family. The wording “within the child’s family” was omitted at the amendment in 1986. According to the wording, hereafter the criterion is fulfilled, despite the single adopter having had no previous connection with the child, and the preparatory notes give no reason to assume otherwise. In these circumstances, we consider that subsequent to the legal amendment in 1986, it is no longer justified to require a previous connection between the single adopter and the child in order to grant subsidy under no. (iii). The course of events related to the discussion in Parliament as to the proposal of 7 October 1999 to amend the Child Subsidy Act, and the proposal of 1 December 2002 cannot lead to another result. Thus, we find it unjustified that the County Social Board in its decision of 4 September 2001 refused the special child subsidy by referring to the fact that before the guardian’s death there had [been no connection] between [the applicant] and her adoptive mother. Under section 4, subsection 3(iii), of the Child Subsidy Act it is furthermore a condition that the guardian has died before the adoption. In that way, the provision attaches weight to the guardian’s death as opposed to no. (ii), which [refers] to the parents’ death. It must be considered a fact that [the applicant’s] biological parents were deprived of custody before the adoption, that her father was dead and that her mother’s whereabouts were unknown. In these circumstances, [the applicant’s] situation before the adoption must be comparable with a situation where the guardian has died. In conclusion, therefore in our view [the applicant] is entitled to the special child subsidy by virtue of Section 4, subsection 3(iii).” Danish social law is based on a principle of self-support, which implies that everybody has a duty to support themselves, while any person unable to provide for him or herself is entitled to public assistance. Under the Child Subsidy Act (see Consolidation Act No. 1115 of 24 November 2008 with amendments) all sole providers are granted ordinary child subsidy for children under the age of 18. For 2009, such child subsidy amounted to DKK 4,696 (equal to approximately 630 Euros, EUR) a year per child. Additionally, extra child subsidies are granted to sole providers, for 2009 amounting to DKK 4,780. Extra child subsidies are granted for one child only, regardless of the number of children. Pursuant to the Act on Benefits for Families with Children (lov om børnefamilieydelse), families with children, including sole providers, are granted benefits for families with children under the age of 18. For 2009, those benefits amount to DKK 16,438 per child up to two years old, DKK 13,004 per child between three and six years old, and DKK 10,232 per child between seven and seventeen years old. These benefits are paid to all sole providers regardless of whether they became sole provider following divorce or termination of cohabitation, or the sole provider adopted a child. The benefits are not dependent on income. In addition, parents who adopt a foreign child through one of the organisations approved by the Ministry of Justice are entitled to an adoption subsidy under section 10b of the Act on Child Subsidy to cover expenses in connection with the adoption. For 2009, the subsidy amounts to DKK 44,565, equal to approximately EUR 6,000. Also single persons who adopt a foreign child are eligible for this subsidy. This subsidy is not income dependent either. Moreover, all sole providers can apply for a rent subsidy, which is a financial subsidy contributing to the rent for rented accommodation, and which depends on the household income, the amount of the rent and the size of the dwelling. A sibling subsidy is also granted to parents with more than one child attending day-care institutions. Finally, like other sole providers, single adopters will be eligible for the special provider rates that apply to single parents under the rules on cash assistance and State education grants, if the provider needs assistance for his or her own support. The Act on Child Subsidy (Børnetilskudsloven, at the relevant time lovbekendtgørelse no. 707 of 25 August 1995 with amendments, now lovbekendtgørelse no. 909 of 3 September 2004) read in so far as relevant: 1. In addition a special child subsidy may be granted by virtue of subsections 2 and 3. 2. ... 3. The special child subsidy amounts to 8,436 Danish Kroner (DKK) annually, (i) when paternity of the child is not established; (ii) when the child only has one surviving parent [who provides for the child]; (iii) when the child, after the death of the guardian, is adopted by the latter’s spouse or by a single person. (iv) – (vi) ... Until 1973, children adopted by single persons were not entitled to special child subsidy. When section 4, subsection 3(iii), was inserted into the Child Subsidy Act in 1973, the entitlement to special child subsidy for children of sole providers was extended to include children of certain single adopters. Accordingly, special child subsidy could then be granted ‘where, after the death of the parental responsibility holder, the child is adopted by the spouse of the deceased or by a person within the child’s family’. In the explanatory notes to the Bill to amend the Act on Child Subsidy and other Family Allowances, which was adopted on 12 April 1973, the following was stated: “Under the current rules, a spouse who adopts the child of the other spouse upon the latter’s death will thereby cut off the child from receiving special child subsidy as, under the rules of the Adoption Act (adoptionsloven), the adopter assumes full responsibility for supporting the child. This means that the stepfather or stepmother who wants to give the child special support through an adoption relationship is placed in a more difficult financial position than the person who merely takes the child into foster care. It appears reasonable to ensure that the financial position is not impaired, and it is therefore proposed to provide authority for the child to become entitled to special child subsidy as a child of a widow or widower, regardless of the fact that the legal relationship between the child and its original family is severed by the adoption. According to the proposal, the rule will also include other children adopted by a single relative, for example one of the parents’ siblings or one of the grandparents, but will not include unrelated single adopters.” On 1 July 1987, a Act on Child Subsidies and Advance Payment of Child Support (the ‘Child Subsidy Act’) entered into force, and the words ‘within the child’s family’ were deleted from section 4, subsection 3(iii). The reason therefor was not explained in the preparatory notes. In guidelines of 18 December 1986 on child benefits and advance payment of child support issued by the National Social Security Agency (Sikringsstyrelsen) it was stated in clause 1 that the rules on child subsidies, including special child subsidy, substantially corresponded to the rules of the former Act on Child Subsidies and Other Family Allowances. Clause 15 mentioned that it was no longer required, as under the former Act, that the adopter be related to the child. Accordingly, there was no change in the situation entitling a person to special child subsidies, but the amendment meant that it became possible to grant special child benefits also in situations in which the adopter had not been married to the parental responsibility holder, but had cohabited with the latter outside marriage. Subsequent to the amendment it was still a condition that a connection had existed between the child and the adopter. In clause 15 of the guidelines on child subsidies and advance payment of child support from January 1996, issued by the Ministry of Social Affairs, which applied when Inge Hansen adopted the applicant, and in clause 25 of the subsequent guidelines No. 54 of 17 June 2002 issued by the Ministry of Social Affairs the following was set out: “It is not a requirement that the adopter is related to the child. The provision is aimed at adoptions where, prior to the parental responsibility holder’s death, there was some form of connection between the child and the adopter.” “Single adopters who adopt a foreign child through one of the organisations approved by the Ministry of Justice under the Adoption Act do not fall within section 4(3)(iii), as there has not been any connection between the child and the adopter prior to such adoptions.” This interpretation was confirmed by the legislature in 1999, when a large parliamentary majority rejected an amending bill aiming to insert a new provision into section 4, subsection 3(vii) of the Child Subsidy Act so that special child subsidy would also be granted where the child was adopted under the rules of single-parent adoption without any previous connection existing between the adopter and the child (see Official Report of Parliamentary Proceedings 1999-2000, supplement B, column 111, and Official Report of Parliamentary Proceedings 1999-2000, Proceedings, column 2228). The legislature’s unwillingness to insert such a provision into the Child Subsidy Act was demonstrated again in connection with the reading of Bill No. B 63 of 1 December 2000 on special child subsidy for children adopted by a sole provider. In connection with the first reading of the Bill, the Minister for Social Affairs stated that such provision would depart from the principle that special child subsidy for sole providers was only paid to sole providers who had been exposed to a social event over which the sole provider had no influence (see Official Report of Parliamentary Proceedings 2000-2001, Proceedings, column 3021). The Bill never passed through the readings and lapsed. Subsequently, in 2007 a parliamentary majority again rejected a bill concerning equality between single adopters and sole providers regarding entitlement to special child subsidy (see Bill No. 74, Official Report on Parliamentary Proceedings 2006-2007, supplement A, column 4170) and a corresponding bill lapsed in 2008 (see Bill No. 58, Official Report on Parliamentary Proceedings supplement A, column 2759). On the contrary, in connection with an amendment in December 2008, the legislature clarified the existing state of law by inserting the following provision into section 4, subsection 12, of the Child Subsidy Act: “A child of a single adopter is not entitled to special child benefits unless the single adopter dies, see subsection 2, one or more of the conditions of subsection 3(iii) to (v) are satisfied, or the child has been adopted as a stepchild and one or more of the conditions of subsection 3(ii) to (vi) are satisfied.” In 1984 an act (no. 216 of 16 May 1984) amended the Adoption Act (now Adoptionsloven, no. 905 of 28 September 2009) and granted the Minister of Justice authority to lay down rules inter alia on the approval of adopters and the processing of adoption cases. The intention of the legislature was to relax a number of the requirements then applicable concerning the age of the candidate adopters, the length of the cohabitation, and so on. As concerns single adopters, the following was stated (see the Official Report on Parliamentary Proceedings 1983-1984, supplement A, column 202-203): “Under current practice, it has only been possible for single persons to be approved as adopters in a very few exceptional cases. From several quarters, a wish has been put forward for extended access for single persons to become adopters. In view of the fact that there are no doubt single persons who will be just as suited to bring up a child as a married couple, it would be wrong to exclude such single persons from adopting. However, according to the information available, it is doubtful whether it will be possible to allocate foreign children for adoption by unmarried applicants, and hence it may prove meaningless to examine single candidates for the purpose of approval for adoption. It may also be difficult to establish clear criteria for the cases in which single persons should have access to pre-examination. It is the intention to take up these questions for further consideration for the purpose of examining the prospects of improving the access of single persons to become adopters. During those proceedings, particular attempts will be made to seek clarity concerning the attitude of foreign countries to allocating children for adoption by single adopters.” Single-parent adoption was formally allowed in Denmark on 1 January 1989 by Executive Order no. 783 of 14 December 1988 amending the Executive Order on Adoption (the Adoption Order). The said Order inserted a provision into the Adoption Order according to which a single candidate could be approved as an adopter if, upon an overall assessment, the candidate was found suited to bringing up a child on his or her own. One of the fundamental requirements for approval as a single adopter is that the candidate can prove having sufficient financial means at his or her disposal to support the child on his or her own. Thus, section 5, subsection 1, of Executive Order no. 1367 of 12 December 2006 on Approval as an Adopter (the ‘Approval Order’) - a provision which also applied when the applicant was approved in 1999 – set out that to be approved as a single adopter, a candidate must satisfy the requirements of sections 6 to 9 of the Approval Order and must generally be considered suited to bringing up a child on his or her own. Pursuant to section 7, subsection l (iii), of the Approval Order, one of the conditions for approval as a single adopter is that the candidate disposes of ‘adequate financial means’. According to Guidelines No. 10109 of 22 December 2006 issued by the Department of Family Affairs (Familiestyrelsen), the requirement of ‘adequate financial means’ is to be understood to mean that the applicant’s personal finances are sufficient to support a family, also following the introduction of an adopted child. When assessing whether a single candidate satisfies the financial conditions, the authorities will request the candidate to submit information from the tax authorities on income figures and assets for the last two income years and information on any arrears due to the tax or local authorities. Additionally, the candidate will have to provide information on monthly income and expenses and his or her current assets. If the adoption authorities find that the candidate does not satisfy the financial requirements because his or her personal finances are not sufficient to support the adopted child, the candidate will not be approved. The Adoption Act sets out the legal effect of adoption as follows: 1) The effects of adoption are to create between the adopter and the adopted child the same legal relationship as that between parents and their child, and the adopted child and its issue shall succeed to the property of the adopter and his or her family, and vice versa, as if the adopted child were the adopter’s own child. At the same time, the legal relationship between the adopted child and its original family will be extinguished. (2) In the case of stepchild adoption under section 5(a) of this Act, the legal relationship between the adopted child and the spouses or former spouses shall be the same as if the child had been born to the couple or former couple. 3) In respect of the name of the adopted child, the provisions contained in the [Danish] legislation on personal names shall apply. Adoption does not confer upon the adopted child a right of succession to entailed estates of any nature whatsoever, except where this is specifically provided by legislation. D. Paternity not established Under section 8(1) of the Children’s Act (Børneloven), the mother has an absolute duty to disclose who is or may be the father of the child. Married women and women cohabiting with a man who submits a ‘declaration of care and responsibility’ may be exempted from this duty. If the woman does not disclose who is or may be the father of the child, she must be guided on the consequences that this may have for her and the child (see section 8(2) of the Children’s Act). If a woman refuses to disclose who the father may be in cases in which she is obliged to do so, the regional state administration must summon the woman for a meeting at which she must be guided on the consequences that this may have for her and will have, especially later, for the child. The meeting may be attended by various professionals depending on the nature of the case. If the mother continues to refuse to disclose the father’s identity, the regional state administration may bring the case before the courts. The mother has a duty to appear in court and to give evidence subject to liability as a witness and under the rules of the Administration of Justice Act (Retsplejeloven) on the compelling of witnesses to attend. The woman may be sentenced to default fines if she does not want to assist in establishing the facts of the case. If the regional state administration or the court finds that the mother does not know who is or may be the father of the child, the case is dismissed, or it is decided by judgment that paternity cannot be established. With effect from 1 January 2007, it became possible for single women to receive artificial insemination treatment at public hospitals following an amendment of the Artificial Insemination Act (Lov om kunstig befrugtning). Artificial insemination of single women was also lawful before 1 January 2007 at private clinics outside the public health system and without the assistance of doctors. Artificial insemination of single women carried out by midwives and others occurred, although to a limited extent. One of the consequences of the amendment of 1 January 2007 was that the single women who were artificially inseminated at public hospitals in the subsequent period were also able to obtain special child subsidy under the Act on Child Subsidy. In December 2008, however, the Child Subsidy Act was amended so that children conceived by artificial insemination of single women carried out on 1 January 2009 or later were no longer entitled to special child benefits despite the fact that paternity could not be established. In that connection, the legislature emphasised that single women who were artificially inseminated have themselves chosen to support a child on their own and must have considered, before making such choice, whether they possessed the human and financial resources required to support a child on their own. The outcome of the December 2008 amendment was that the legal position of children of single adopters and children conceived by artificial insemination of single women was the same in respect of entitlement to special child subsidy.

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001-85936

ENG

HRV

ADMISSIBILITY

GACESA v. CROATIA

Inadmissible

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

The applicant, Mrs Milka Gaćeša, is a Croatian national who was born in 1950 and lives in Karlovac. She was represented before the Court by Mrs S. Čanković, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 31 December 1990 the applicant’s husband was awarded a specially protected tenancy (stanarsko pravo) of a flat in Karlovac. Pursuant to the relevant legislation, the applicant as his wife automatically became a co-holder of the specially protected tenancy of the flat at issue. In August 1991 their daughter, who was at the time spending her summer holidays with her grandparents in Vojvodina, fell ill. On 21 August 1991 she was admitted to a hospital in Belgrade and on 2 September 1991 underwent eye surgery. The applicant and her husband went to Belgrade to be with their daughter. She was released from the hospital on 9 September 1991. The applicant and her husband then returned to Karlovac, but on 14 September 1991 left again for Belgrade as they were concerned about their daughter’s post-operative recovery. On 4 October 1991 the town of Karlovac was attacked. On 8 October 1991 Croatia declared its independence. In these circumstances the applicant and her husband decided to stay in Belgrade. She submitted that with the outbreak of war in the region, they could not have crossed the borders and that they also did not have Croatian citizenship at that time. The applicant also claimed that her husband had informed Croatian Railways, as the owner and the provider of the flat, of their inability to return, and that on 28 October 1991 their flat had been broken into. On 28 November 1991 Croatian Railways issued a decision authorising a certain L.j. M. – an internally displaced person – to use the applicant’s flat temporarily. On 20 February 1992 Croatian Railways brought a civil action against the applicant and her husband in the Karlovac Municipal Court (Općinski sud u Karlovcu), seeking termination of their specially protected tenancy. The plaintiff based its action on section 99 of the Housing Act, arguing that the applicants had been absent from the flat for more than six months without justified reason. As the respondents’ residence was unknown, the competent authority appointed a guardian ad litem (skrbnik za poseban slučaj) in the case. On 17 August 1992 the Karlovac Municipal Court terminated the respondents’ tenancy. On appeal, the Karlovac County Court (Okružni sud u Karlovcu) upheld the first-instance judgment. Following the guardian’s appeal on points of law (revizija), on 8 June 1995 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the lower instances’ judgments and remitted the case, finding that the applicant had not been properly represented in the proceedings since the guardian ad litem had been appointed only to her husband. After the applicant returned to Karlovac in 1998 and found out that the action for termination of the tenancy had been brought against her and her husband, she joined, and from then on actively participated in, the proceedings. On 25 October 2000 she informed the court that her husband had died. In the resumed proceedings, on 9 May 2001 the Karlovac Municipal Court terminated the applicant’s specially protected tenancy, finding that she had been absent from the flat for more than six months without justified reason. As to the applicant’s assertion that her daughter’s surgery and the subsequent escalation of the war had justified her absence, the court held that: “Having due regard to the concern of the parents regarding the medical treatment of their daughter, the court cannot accept [that the absence was justified], because, judging by the medical documents dating from 1991 or even later, the patient’s condition had not been so critical as to prevent her from returning to Karlovac and continuing her treatment in Croatia. The arguments of the respondents that they could not return to Croatia due to the escalation of war, because they had no documents, cannot be accepted either, since it is common knowledge that at the beginning of the war there was chaos and that one could enter the country in various places, not only at border crossings, and, it is very hard to believe that the respondents had not taken appropriate documents with them on such a long journey.” On appeal, on 9 December 2001 the Karlovac County Court (Županijski sud u Karlovcu) upheld the first-instance judgment, reasoning as follows: “The fact that the respondent’s daughter had actually undergone surgery and was hospitalised for a short period of time during September 1991 in Belgrade does not mean (...), that the conditions from section 99 (2) of the Housing Act were met... Notwithstanding whether the medical intervention had to be performed in a hospital relatively far away from the respondent’s residence at the material time, the fact is that the civil action is directed against Milka Gaćeša, that is to say, not against the person who was medically treated, but against her mother... In any event, had the post-operative recovery of the respondent’s daughter actually necessitated parental presence or care, such care could have certainly been ensured by one parent and not both...” The applicant subsequently lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She complained that her constitutional rights to equality before the law, fair hearing and property had been infringed. On 30 April 2002 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that there had been no violation of any of the constitutional rights relied on. The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), as in force at the material time, provided that a holder of a specially protected tenancy (“the tenant”) had a right to permanent use of the flat for living purposes, to sub-let part of it to someone else and to participate in the administration of the building in which the flat was located. The Housing Act also provided that, in agreement with the provider of the flat, the tenant could exchange it for another flat and, exceptionally, use part of it for business purposes. Section 67 provided that the members of the tenant’s household could acquire the tenancy after the tenant’s death. Section 99 read as follows: “1. A specially protected tenancy may be terminated if the tenant [...] ceases to occupy the flat for an uninterrupted period exceeding six months. 2. A specially protected tenancy shall not be terminated under the provisions of paragraph 1 of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons.” Under section 105 (1) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy. The tenancy was terminated as soon as the court’s judgment, upholding the claim of the provider of the flat, became res judicata. In decisions nos. Rev-3839/93-2 of 19 January 1994, Rev-2276/00-2 of 21 November 2000 and Rev-590/03-2 of 17 December 2003, the Supreme Court interpreted section 99(1) of the Housing Act as follows: “War events per se, without any particular reasons rendering use of the flat impossible, do not constitute a justified reason for not using it.” In a series of decisions (for example, in cases nos. Rev-152/1994-2 of 23 February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of 1 October 2003, Rev-998/03-2 of 4 December 2003 and Rev-590/03-2 of 17 December 2003), starting with decision no. Rev-155/1994-2 of 16 February 1994, the Supreme Court interpreted another aspect of section 99(1) of the Housing Act as follows: “The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not, per se, make the non-use [of the flat by the tenant] justified. In other words, if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time-limits set forth in section 99(1) of the Housing Act..., then the [illegal occupation of the flat by a third person] is not an obstacle to the termination of the specially protected tenancy.” The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991), which entered into force on 19 June 1991, entitled the holder of a specially protected tenancy of a socially-owned flat to purchase it from the provider of the flat under favourable conditions. Section 4 (2) provided that a written request for purchase (the first request) had to be made within one year of the date of the Act’s entry into force (this time-limit was by subsequent amendments to the Act extended until 31 December 1995), and a further request for the actual conclusion of the purchase contract (the second request) within two years following the first request. In its decision no. Rev-944/99-2 of 13 August 2002 the Supreme Court interpreted section 4 (2) of the Specially Protected Tenancies (Sale to Occupier) Act as follows: “Since the plaintiff did not make a request for purchase of the flat to the respondents in a written form until 31 December 19995, as provided by law, [...], the lower-instance courts correctly assessed that the plaintiff had lost his right to request a conclusion of the purchase contract.” In its decision no. Rev-1256/02-2 of 14 July 2004 the Supreme Court provided a more extensive interpretation of section 4 (2): “The plaintiff made a request for purchase of the flat to the respondent on 18 October 1996, that is, after the expiry of the prescribed time-limit (31 December 1995), so the courts [ruled] correctly [when they] dismissed her claim. The time-limit in question is preclusive, meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase the flat ... The fact that the proceedings for termination of the specially protected tenancy – that ended by the first-instance judgment [...] of 16 April 1996, which became final on 11 July 1996 – were pending between the parties at the time when the time-limit expired (31 December 1995) is not relevant. [...][Those proceedings] did not prevent the plaintiff from making a request to purchase the flat. ... ... The proceedings for termination of the specially protected tenancy were an impediment to buying the flat (for conclusion of a contract), but not to making a request to purchase the flat. The existence of the [pending] proceedings does not extend the time-limit for making a request to purchase the flat.” The Flats Lease Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, abolished the specially protected tenancy as such (section 30 paragraph 1) but provided that proceedings instituted under the Housing Act should be concluded under the provisions of that Act (section 8 paragraph 1). The Flats Lease Act regulates the legal relationship between the landlord and the tenant with respect to the lease of flats. It recognises a special category of tenants, namely those who were previously holders of specially protected tenancies on privately-owned flats or those who did not purchase their flats under the Specially Protected Tenancies (Sale to Occupier) Act. That category is subject to a number of protections, for instance, an obligation for the owners to contract a lease for an unlimited period of time; payment of a protected rent (zaštićena najamnina), the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease. Pursuant to the Act a landlord may terminate the lease of a protected tenant in the following cases: if the tenant does not pay the rent or charges; if the tenant sublets the flat or part of it without permission from the landlord; if the tenant or other tenants in the flat disturb other tenants in the building; if another person, not named in the lease contract, lives in the flat for longer than thirty days without permission from the landlord, except where that person is a spouse, child or parent of the tenant or of the other legal tenants in the flat, or a dependant of the tenant or a person on whom the tenant is dependent; if the tenant or other legal tenants do not use the flat as living accommodation but for other purposes; if the landlord does not have another flat and is entitled to social welfare benefits or is older than sixty years. Under section 40 (1) of the Lease Act, the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children, parents or dependants therein.

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001-91569

ENG

RUS

ADMISSIBILITY

KUPREYANOV v. RUSSIA

Inadmissible

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

The applicant, Mr Nikolay Yakovlevich Kupreyanov, is a Russian national, who was born in 1960 and lives in Moscow. He was represented before the Court by Ms A.I. Panicheva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was born in 1960 and lives in Moscow. On 6 August 2002 the prosecutor’s office of the Khamovnicheskiy district of Moscow instituted criminal proceedings against the applicant upon an application lodged by his father on suspicion of fraudulent acquisition of property rights over a collection of works of art of the applicant’s grandfather, a Russian graphic artist. On 6 October 2002 the proceedings were suspended since “the person accused [had] not [been] identified”. On 10 October 2002 the prosecutor quashed this decision, relying on the fact that criminal proceedings had been initiated against a specific person (the applicant). It extended the investigation deadline until 10 November 2002 and remitted the case for additional investigation. On 6 November 2002 the police for the first time questioned the applicant as an accused. On 10 November 2002 the proceedings were again suspended “since the accused [had] not [had] a real opportunity to participate in the investigation”. The police referred to the fact that the applicant could not be found at his home address over a public holiday weekend (7 November). On 11 November 2002 the proceedings were resumed and the investigation deadline was extended until 10 December 2002. On 18 November 2002 charges were brought against the applicant and an undertaking not to leave his place of residence was imposed on him. On 10 December 2002 the case was sent for trial to the Khamovnicheskiy District Court of Moscow. At least twenty-seven hearings were scheduled, fourteen of which were adjourned: six times due to the fact that the judge was busy in unrelated proceedings; three times due to the failure to attend by the prosecution and the victim (the applicant’s father); twice due to the failure of the applicant’s lawyer to appear; once due to the failure of both the applicant and his lawyer to appear; once due to the change of prosecutor in the case; and three times due to requests, apparently lodged by both parties, to consult the case file. From 25 July 2003 to 19 September 2003 no hearings were held as an expert examination was being carried out. From the beginning of October to the end of December 2003 no hearings took place. On 18 June 2004 the Khamovnicheskiy District Court of Moscow returned the applicant’s criminal file to the prosecutor’s office for additional investigation. It found that an additional investigation was needed to clarify certain points and that breaches of the rules of procedure had taken place during the investigation. In particular, the applicant had not been properly charged. Accordingly, the court remitted the case to the prosecution authorities with instructions to rectify this shortcoming and also to gather additional evidence. The applicant appealed against this decision, but on 7 October 2004 the Moscow City Court refused to entertain the applicant’s complaint, since the domestic law did not provide for the possibility of appeal against this kind of decision. On 15 October 2004 the prosecutor’s office returned the file to the police for additional investigation and correction of the procedural defects. On 15 November 2004 the proceedings were suspended. This decision was later declared unfounded and unlawful by the Khamovnicheskiy District Court of Moscow, and on 23 March 2005 the proceedings were resumed. Following the additional investigation, the file was again submitted to the prosecutor’s office, which on 11 May 2005 once again sent it back to the police for additional investigation. On 27 May 2005 the investigative authorities terminated the criminal proceedings against the applicant because there was no indication of a criminal offence and informed him about his right to rehabilitation and compensation for damage. The undertaking not to leave his place of residence was lifted accordingly.

train

001-58221

ENG

FRA

CHAMBER

CASE OF BENKESSIOUER v. FRANCE

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

Feyyaz Gölcüklü;N. Valticos;R. Pekkanen

6. Mr Benkessiouer is a French national who was born in 1940. He is an established civil servant working for the Post Office and lives in Nice. 7. On 21 January 1991 he made an application for extended sick-leave, but the medical board decided on 15 March 1991 that he was fit for work. On 21 March 1991 the applicant was notified of the Post Office’s refusal to grant him extended sick-leave and was requested to resume his duties. He did not comply with that request, however, and produced several doctor’s certificates between 27 April and 31 July 1991. After further medical examinations carried out at the instance of the Post Office, the applicant was pronounced fit to resume work. As Mr Benkessiouer nevertheless still refused to return to work, it was decided on 26 November 1991 that he should be listed as being absent without excuse since 5 November 1991. On 18 December 1991 he was informed that he would shortly be dismissed if he did not return to his job. 8. On 29 August 1991 the applicant applied to the Paris Administrative Court for judicial review of the Post Office’s decisions to refuse him extended sick-leave, to suspend payment of his salary with effect from 5 November 1991 for failure to perform his duties and to put him on notice to return to work or face dismissal. Relying on the damage allegedly caused him by those three decisions and on the administrative harassment he had experienced, he sought 400,000 French francs (FRF) in damages from the Post Office. 9. In all, Mr Benkessiouer filed thirteen supplementary pleadings between 15 November 1991 and 31 July 1992. 10. In an application of 21 May 1992 the applicant applied to the Administrative Court for a stay of execution of the decision to suspend payment of his salary. 11. On 17 June 1992 the Administrative Court ordered an expert medical opinion. 12. On 18 June 1992 the applicant lodged a further application with the Paris Administrative Court, seeking judicial review of the decision whereby the Post Office mutual insurance company had reduced the amounts reimbursed in respect of the costs of his medical examinations and medicines to 70% or 75%. He also sought FRF 200,000 in supplementary damages for the damage sustained on account of unexpected further medical examinations and the non-payment of his salary from 5 November 1991 onwards. 13. On 31 July 1992 the applicant filed a pleading. 14. The medical expert filed his report on 10 August 1992. He concluded that on 5 November 1991 Mr Benkessiouer had not been fit to resume work. On 18 August 1992 the report was communicated to the respondent. The Post Office challenged it and applied for a second expert opinion. 15. In a judgment of 15 February 1996 the Paris Administrative Court joined the applicant’s three applications. It quashed the decisions to refuse extended sick-leave and to suspend payment of his salary and, holding that those unlawful decisions rendered the Post Office liable to its employee, awarded the applicant FRF 20,000 damages for the damage he had sustained. The court dismissed the third application of 18 June 1992 (see paragraph 12 above). It held that the decision to put the applicant on notice to return to work or face dismissal was not amenable to judicial review; it ruled that the claim for damages for the unexpected further medical examinations was ill-founded; and, lastly, it declared inadmissible the claim for damages for failure to deliver a registered letter and the application for judicial review of the decision to reduce the amounts reimbursed in respect of the costs of medical examinations and medicines, on the ground that it had no jurisdiction. 16. On 9 June 1993 Mr Benkessiouer lodged an application with the Paris Administrative Court for an interim award of FRF 400,000. In an order of 20 August 1993 the Administrative Court dismissed the application, holding that it had not been established that the Post Office had a liability to the applicant for the purposes of Article R. 129 of the Administrative Courts and Administrative Courts of Appeal Code. 17. On 13 October 1993 Mr Benkessiouer appealed against that order to the Conseil d’Etat, which transferred it on 1 December to the Paris Administrative Court of Appeal under Article R. 80 of the Administrative Courts and Administrative Courts of Appeal Code. On 31 January 1994 the applicant produced supplementary observations, and on 9 May 1994 the Post Office filed its defence. In a judgment of 27 October 1994 the Administrative Court of Appeal upheld the Administrative Court’s order of 20 August 1993. 18. On 21 November 1994 the applicant applied to the Conseil d’Etat, which ruled against him on 19 May 1995. 19. Law no. 90-568 of 2 July 1990 on the organisation of the public post and telecommunications service, which established from 1 January 1991 a public-law entity, the Post Office, described as a provider of a public service, lays down in Chapter VIII, “Staff”: Section 29 “The staff of the Post Office … shall be governed by special rules made pursuant to Law no. 83-634 of 13 July 1983 laying down the rights and duties of civil servants and to Law no. 84-16 of 11 January 1984 making provisions governing the civil service…” 20. The relevant sections of Law no. 84-16 of 11 January 1984 making provisions governing the civil service provide: Section 34 “A civil servant in post shall be entitled to: … (2) sick-leave of up to one year in all during a period of twelve consecutive months in the event of duly certified illness making it impossible for the person concerned to carry out his duties. The civil servant shall then remain on full salary for a period of three months and shall be paid half his salary for the following nine months… However, if the illness arises from one of the exceptional causes referred to in Article L. 27 of the Civilian and Military Retirement Pensions Code or from an accident that occurred in the performance of his duties or when performing them, the civil servant shall be paid his full salary until he is able to resume his duties or is retired. He shall further be entitled to reimbursement of medical fees and expenses directly entailed by the illness or accident. (3) extended sick-leave of a maximum length of three years in cases in which it is established that the illness makes it impossible for the person concerned to carry out his duties, requires prolonged treatment and care, is disabling and has been confirmed as serious. The civil servant shall remain on full salary for one year and shall be paid half his salary for the following two years…” Section 69 “Other than in the event of desertion of post …, civil servants may only be dismissed in accordance with the statutory provisions on reduction in numbers of managerial staff, whereby those concerned are either redeployed or compensated.” 21. Decree no. 86-442 of 14 March 1986 on the appointment of civilian and military medical boards, physical-fitness requirements for admission to posts in the public service and rules on sick-leave for civil servants provides: Section 6 “In each département a medical board competent for the staff mentioned in section 15 below shall be established and attached to the Commissioner of the Republic…” Section 7 “The medical boards shall be responsible for giving the appropriate authority, as laid down in the present Decree, an opinion on medical disputes which may arise in connection … with the granting and renewal of sick-leave… They shall mandatorily be consulted on: … (2) the granting of extended sick-leave and extended leave of absence; …” Section 15 “The civilian and military medical boards of the départements shall be competent for civil servants carrying out their duties in the départements concerned, except for the heads of external departments referred to in section 14 above and subject to the provisions of the last paragraph of that section.”

train

001-68777

ENG

GBR

CHAMBER

CASE OF WHITFIELD AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 6-1 in respect of three applicants;Violation of Art. 6-3-c in respect of all applicants;Not necessary to examine Art. 6-3-b;No violation of Art. 5 alone or in conjunction with Art. 13;Non-pecuniary damage - findings of violations sufficient (with regard to three applicants);Non-pecuniary damage - financial award (with regard to one applicant);Costs and expenses award - Convention proceedings

Josep Casadevall;Nicolas Bratza

5. The first applicant was born in 1968 and is currently in prison in the Isle of Wight, the second was born in 1961 and lives in London and the third was born in 1980 and lives in Leeds. The fourth applicant was born in 1976. 6. On 15 March 1996 the applicant was sentenced to nine years’ imprisonment following a conviction for causing grievous bodily harm. 7. It was later alleged that on 5 June 1998, as he was being transferred to HMP Parkhurst, a fight broke out during which he “headbutted” one of the prison officers. On 6 June 1998 he was charged with assault contrary to Rule 47(1) of the Prison Rules 1964. 8. The adjudication hearing before the governor commenced on 22 June and continued on 23 June 1998 when a letter was received from the applicant’s solicitor requesting that he be legally represented at the hearing. The governor adjourned the hearing until 14 July 1998 to consider the request. On 7 July 1998 legal aid was granted by the Legal Aid Board for representation prior to and at the adjudication hearing. 9. On 8 July 1998 the applicant orally outlined to the governor why he needed legal representation but the governor rejected the request: “I have considered the case for legal [representation]. I do not feel there is an issue of seriousness or potential penalty. You are able to conduct your defence. You have access to check original with the prisoners you may call as witness. I do not consider you have been unfairly treated in comparison with the other prisoner so charged. No points of law are in question”. 10. By letter of 28 July 1998 the applicant’s solicitors asked the governor to reconsider. By letter of 30 July 1998 the prison service responded explaining that in considering requests for representation governors did not need to be sure beyond reasonable doubt that representation was not needed before rejecting a request but were required to take account of the six criteria set out in the “Tarrant principles” (R. v. Secretary of State for the Home Department ex parte Tarrant [1984] QB 251). 11. The adjudication hearing resumed on 25 September 1998. The applicant again requested legal representation for the hearing without success. The governor found the applicant guilty (adding “whether your actions were deliberate or reckless, although you have not advanced that as a defence”) and sentenced him to 21 “additional days” pursuant to Rule 50 (1) (f) of the Prison Rules 1964. 12. On 5 November 1998 his solicitors appealed to the Secretary of State referring to the imminent incorporation into domestic law of Article 6 of the Convention and to the failure to grant legal representation for the hearing. By letter dated 10 December 1998 the Secretary of State rejected the appeal stating that the adjudication had been thoroughly reviewed, that the hearing had been fairly conducted and that the findings should be upheld. 13. The applicant was granted legal aid to obtain counsel’s opinion on the lawfulness of the governor’s decision of 8 July 1998. Counsel advised on 11 January 1999 that the applicant had no realistic prospects of success given the Hone and McCartan case (Hone and McCartan v. Maze Prison Board of Visitors [1998] 1 All ER 381). As to whether the governor’s exercise of discretion was unreasonable, the “Tarrant criteria”, the “relatively minor nature of the offence” and the capacity of the applicant, meant that the prospects of passing the “high hurdle of irrationality” on judicial review were remote. 14. In December 1987 the applicant was sentenced to seventeen years’ imprisonment for armed robbery and making threats to kill. 15. Following a fire in his cell, on 15 November 1998 he was charged with intentionally endangering the health or personal safety of others by his conduct, or of being reckless as to whether such health or safety was endangered, contrary to rule 49 of the Prison Rules 1964. He appeared at an adjudication hearing before the governor on 16 November 1998. He pleaded not guilty and the hearing was adjourned. 16. On 24 November 1998 a solicitor submitted a written request to the governor to represent the applicant at the adjudication hearing. 17. On 16 December 1998 the adjudication reconvened. The applicant made written representations in which he admitted telling a prison officer that he had caused the fire by throwing a lighted taper on the bed. However, he explained that that was untrue and that he believed his cell had been deliberately set on fire by other prisoners who thought that he was an informant. He had not explained this to the prison officers at the time as he was in the presence of other prisoners and he feared reprisals. He consistently maintained throughout the hearing that he had not started the fire. He cross-examined various witnesses called by the governor. The hearing continued the following day when he formally applied for legal representation for the remainder of the hearing, on the grounds that there were a large number of witnesses to be called, that the charge was a serious one and that it was difficult to be his own representative given the issue about his false admission. The governor refused his request taking the view that the offence was not sufficiently serious to warrant legal representation and that the applicant had demonstrated that he was capable of presenting his own defence. The hearing was adjourned until 22 December 1998 to enable a particular prison officer to be called. 18. On 22 December 1998 the applicant was due for early release from custody pursuant to the provisions of the Criminal Justice Act 1991. On the morning of that day he fell down a flight of stairs and was injured. He was treated for head and back pain by a doctor at a hospital. Once informed of developments, the applicant’s solicitor submitted orally to the governor that, given the applicant’s injury, the interests of natural justice required the charge to be dismissed and the applicant to be released. Further written representations were also made: due to the nature of the injuries and the medication received, it was unreasonable for the applicant to represent himself and the charge should be dismissed and that the solicitor should be informed should the proceedings continue so that he could make further representations. These written representations were not seen by the governor until after the adjudication hearing. The applicant returned to prison after his treatment and was certified by the prison doctor as fit for adjudication. The adjudication recommenced that day (22 December 1998) and the applicant was accompanied at the hearing by a medical officer. While prison staff maintained that he was alert and able to conduct his defence (even asking for the hearing to commence), the applicant stated that he felt so dizzy and ill that he could not concentrate and was incapable of asking questions or putting forward his case. The same day he was found guilty as charged and was sentenced to 35 additional days’ detention to commence on that day. 19. The applicant applied to the Secretary of State to review the hearing. He maintained that he had been unable to conduct his defence properly because of the medication and that the governor erred in refusing legal representation given the seriousness of the charge. The Secretary of State upheld the finding and punishment. An application for leave to apply for judicial review was lodged, leave was granted, the High Court hearing took place on 18 January 1999 but the substantive application for judicial review was dismissed. 20. The applicant was released on 26 January 1999. 21. On 31 March 1999 the applicant was sentenced to 23 months’ imprisonment following conviction for violent disorder, affray, criminal damage and breach of a supervision order. He was detained at a young offenders’ institution in Doncaster. 22. On 5 April 1999 he was charged with assaulting (punch in the face) another inmate (H) contrary to Rule 50(1) of the Young Offender Institution Rules 1988. The applicant claimed that he asked to see a solicitor but was told that he was not allowed to do so. He then pleaded guilty to the charge. On 6 April 1999 the deputy controller of the prison commenced the adjudication of the charge. However, once it became apparent that H’s jaw had been broken, the adjudication was adjourned and the charge was referred to the police for investigation. 23. On 9 April 1999 the applicant’s solicitors wrote to the controller requesting confirmation that the applicant could be legally represented at any adjudication. On 12 April 1999 the controller responded stating that the adjudication had been adjourned as the charge had been referred to the police. He also noted that the applicant had not requested legal advice or representation at the hearing, had pleaded guilty to the charge and had apologised for the injuries caused. On 19 April 1999 the controller wrote to the applicant’s solicitors, stating that: “I write to advise that the victim of the alleged assault will not co-operate with the police investigation and wishes for the matter to be dealt with internally. In view of the foregoing it is our intention to complete the hearing forthwith. As your client pleaded guilty at the initial hearing I am not prepared to allow him to be legally represented. I have applied the ‘Tarrant’ criteria and am satisfied that he can adequately conduct his own defence and, if necessary, mitigate his actions.” 24. On 21 April 1999 the applicant’s solicitors asked the controller to re-consider his refusal of legal representation: since the applicant had instructed them that it was self-defence, his guilty plea was not satisfactory. The applicant submitted that his solicitor had also advised that that defence was potentially a good one. By letter of 21 April 1999 the controller rejected their request: the applicant could claim self-defence at the hearing and that claim would be examined on adjudication. 25. On 23 April 1999 he was refused leave by the High Court to seek judicial review of the controller’s decision of 21 April 1999: there was no arguable case that the controller had failed to exercise his discretion in accordance with the above-noted Tarrant criteria. On 26 May 1999 the applicant’s renewed application for leave to seek judicial review to the Court of Appeal was refused. It was considered a simple case in which the applicant had sworn an affidavit setting out his account of the incident including a passage which claimed self-defence and the adjudicator would have to decide whether he believed the applicant or H. The Convention case-law opened to the Court (Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, and Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I) did not establish an inflexible rule that legal representation should be accorded in every case or even a looser rule that it should be generally accorded. It was held that there was no need for legal representation and that there was no identifiable legal error in the controller’s refusal. 26. On 1 June 1999 the adjudication hearing took place. The applicant was found guilty as charged. He was awarded 35 additional days’ imprisonment and he was to be excluded from associated work for 14 days. Fourteen days of canteen privileges together with associated dining and recreation privileges were also forfeited. 27. On 22 July 1999 the applicant was sentenced to four months’ imprisonment for motoring offences. His ordinary release date would have been 18 September 1999. 28. On 6 September 1999 he was charged with a breach of prison discipline contrary to paragraph 51(16) of the Prison Rules 1999, it being alleged that he had thrown burning material from a cell window. The hearing was adjourned to allow it to be heard by the deputy governor. 29. On 13 September 1999, upon his return from annual leave, the applicant’s solicitor received a letter from the applicant denying the charges and requesting urgent assistance. The solicitor sent a facsimile to the governor at 9.30 a.m. on 13 September 1999 requesting an adjournment to enable him to take urgent instructions and provide legal advice. The hearing resumed on 14 September 1999 when the deputy governor refused an adjournment. It is recorded on the applicant’s “Record of Hearing and Adjudication” that the deputy governor stated the following: “I have a letter from your solicitor requesting that you be allowed legal advice. I have considered your request and refuse it on the following grounds. 1. No points of law are likely to arise. 2. You can present your own case. 3. Although the charge is serious it does not require a solicitor to mitigate it. 4. There are no procedural difficulties. 5. There is a need for reasonable speed. There has already been a delay.” The deputy governor found the applicant guilty as charged and awarded 18 additional days’ imprisonment. 30. An application for leave to apply for judicial review was made arguing that the imprisonment was based upon a punishment, the legality of which was seriously flawed both on grounds of irrationality and procedural unfairness. On 21 September 1999 Mr. Justice Moses granted leave but refused bail. On 23 September 1999 the Secretary of State quashed the punishment in the following terms: “The adjudication detailed above has been reviewed and it has now been decided that the finding of guilt should be quashed on the grounds that the adjudicator should have offered Mr. Clarke a limited opportunity to consult with his solicitors. Although Mr. Clarke did not apply for legal advice or assistance at the original hearing on 6 September he should have been given the opportunity to discuss matters with his solicitor, possibly by telephone to arrange for a meeting the next day, and given a deadline for obtaining the advice he sought. A time limit could have been set to ensure that the prisoner did not delay the hearing unnecessarily. In view of the urgency of this case, please arrange for Mr. Clarke to be released immediately as this decision means that he is serving added days now.” 31. The applicant was released at 17.10 hours on 23 September 1999, having served five of the additional days awarded. 32. By letter dated 26 November 1999 the Treasury Solicitor refused to admit liability in respect of the alleged unlawful imprisonment. Counsel was therefore asked to advise whether there existed any effective domestic remedy which the applicant could pursue in respect of the relevant five-day period of detention. Counsel advised that there was no such remedy: under English law a disciplinary finding was presumed to be valid and, in effect, the order for additional days’ detention was valid until it was set aside. 33. On 28 January 2000 the applicant’s solicitor wrote to the Treasury Solicitor pointing out that, in the light of Counsel’s advice, no claim for false imprisonment or misfeasance in public office would be commenced. However, it was alleged that the deputy governor’s conduct violated Article 6 of the Convention. A request was therefore made for an ex gratia payment to compensate the applicant for the 5 days’ detention resulting from the adjudication. The Treasury Solicitor responded that the matter would be considered after the publication of the House of Lords judgment in R. v. Governor of Brockhill Prison, ex parte Evans. No. 2 ([1999] 2 WLR 103). The Government have not submitted that any payment was made. 34. The Court refers to the law and practice outlined in the case of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, §§ 37-62, ECHR 2003X). 35. A charge was, in general, drawn up by a prison officer against whom the alleged offence was committed or who witnessed or dealt with the incident during which the alleged offence took place. Such reporting officers could consult a more senior officer on what charges were to be laid against the prisoner. A charge was formally laid when form a Notice of Report was handed to the accused. A charge had to be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the alleged offence being discovered. Every charge laid against a prisoner had to be inquired into by the prison governor. The governor also determined the charge against the accused during the adjudication hearing and imposed punishments from those available to him under the prison rules. Since the 1990s the management of certain prisons has been contracted out to private security companies. All such “contracted out” prisons have a “Controller” (a Crown employee) linking them to the Home Office and the governors are called “Directors”. Adjudcation hearings are conducted by the Controller rather than by the Director.

train

001-78984

ENG

RUS

CHAMBER

CASE OF RUSSIAN CONSERVATIVE PARTY OF ENTREPRENEURS v. RUSSIA

Violation of P3-1 in respect of the applicant party and the second applicant;No Violation of P3-1 in respect of the third applicant;Violation of Art. 13 in respect of the applicant party and the second applicant;No violation of Art. 13 in respect of the third applicant;Violation of P1-1 in respect of the applicant party;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - financial award (applicant party);Costs and expenses award - domestic and Convention proceedings

Christos Rozakis

8. The applicant party, the Russian Conservative Party of Entrepreneurs (Российская консервативная партия предпринимателей), is a nationwide political party established under the laws of the Russian Federation. The second applicant, Mr Aleksandr Anatolyevich Zhukov, was born in 1949 and lives in Smolensk. He stood as one of the applicant party's candidates for the 1999 elections to the State Duma. The third applicant, Mr Viktor Sergeyevich Vasilyev, was born in 1959 and lives in Moscow. He was a supporter of the applicant party. 9. On 24 September 1999 the applicant party nominated 151 candidates for the elections to the State Duma of the Federal Assembly of the Russian Federation, the lower chamber of the Russian bicameral parliament. 10. On 15 October 1999 the Central Electoral Commission of the Russian Federation (Центральная избирательная комиссия РФ – “the CEC”) confirmed receipt of the applicant party's list of candidates. The applicant party paid the election deposit. 11. On 3 November 1999 the CEC refused to register the applicant party's list, with reference to sections 24(1), 47 (6) (d), 51 (11) and 91 (2) of the Elections Act. The CEC established that seventeen candidates had submitted substantially inaccurate information about their income and property and struck them off the list. One of them was the number two candidate on the list. On that ground the CEC decided: “2. To refuse the registration of the federal list of candidates to the State Duma of the Russian Federation nominated by [the applicant party] because of the withdrawal [выбытие] of the candidate listed as number two in the nationwide section of the accepted federal list of candidates.” 12. The applicant party appealed to a court against the CEC's refusal to register it. 13. On 10 November 1999 the Civil Division of the Supreme Court of the Russian Federation, acting as a first-instance court, upheld the CEC's decision to remove from the list the candidates who had made false representations, but declared unlawful the CEC's refusal to register the list in its entirety. The court interpreted the term “withdrawal” in section 51(11) of the Elections Act as meaning only a candidate's voluntary withdrawal of his or her own free will. The court therefore held that the provision should not apply to a situation where one of the top three candidates had been struck off the list by the CEC. 14. The CEC appealed against that judgment. The applicant party submitted its observations on the CEC's grounds of appeal. 15. On 22 November 1999 the Appeals Division of the Supreme Court of the Russian Federation upheld the judgment of 10 November 1999. The court thoroughly analysed the wording of the Elections Act and agreed that the word “withdrawal” in section 51(11) of the Act should only refer to situations where the candidate's name had been taken off the list of the candidate's own free will or at the request of the candidate's electoral union. 16. On the same date the CEC allowed the registration of the applicant party's list of candidates. 17. On 26 November 1999 a deputy Prosecutor General of the Russian Federation lodged an application for supervisory review with the Presidium of the Supreme Court of the Russian Federation. The prosecutor argued that “withdrawal” was a generic term which applied to any situation where a candidate was struck off the list, be it the expression of will of the candidate himself, of his electoral union, or of the CEC. Hence a candidate's exclusion as a result of the CEC's decision should count as “withdrawal” and thus render section 51(11) of the Elections Act applicable. 18. On 8 December 1999 the Presidium of the Supreme Court of the Russian Federation granted the application for supervisory review and quashed the judgment of 22 November 1999. The court followed the line of reasoning suggested by the deputy Prosecutor General. The court emphasised that the exclusion of a candidate from the list as a result of the CEC's decision was only a specific instance of “withdrawal” and that the CEC's refusal to register the list had therefore been lawful. 19. On 9 December 1999 the CEC annulled its earlier decisions, refused the registration of the applicant party's list and ordered the applicant party's name to be removed from the ballot papers. The applicant party appealed against the CEC's decision to the Supreme Court of the Russian Federation. On 18 December 1999 the Supreme Court of the Russian Federation dismissed the applicant party's complaint. The court found that pursuant to the judgment of the Presidium of the Supreme Court of the Russian Federation, the CEC had no discretion in the matter and it was obliged as a matter of law to refuse the registration of the applicant party's list. 20. On 19 December 1999 the elections to the State Duma took place. The applicant party was not listed in the voting papers. 21. On 25 April 2000 the Constitutional Court of the Russian Federation, acting on an application by a group of Russian MPs, declared unconstitutional the part of section 51(11) of the Elections Act which provided for the refusal or cancellation of a party's registration in the event of the withdrawal of one of the top three candidates on the list. 22. The Constitutional Court stressed that the right to stand for election was an individual rather than a collective right. However, the contested provision made the exercise of that right conditional on the consistent presence of the top three candidates on the list, which amounted to a restriction on the other candidates' right to stand for election and on the citizens' right to vote for them. It violated the principle of equality between the candidates because it only applied in the event of withdrawal of one of the top three candidates but not of those in lower positions on the list. Such a restriction could not be justified by the special role played by the top three candidates, who were usually political heavyweights, in the electoral campaign and it did not serve any legitimate aim listed in the Constitution. 23. Moreover, withdrawal of one of the top three candidates had a disproportionately crippling effect on the electoral union or bloc, which forfeited the right to stand for election through no fault of its own. On the other hand, it made it difficult for the top three candidates to leave an electoral union whose platform had changed to the point of being inconsistent with their own views. It also encroached on the active voting rights of the electorate, depriving them of an opportunity to vote for the candidates and impairing the formation of a representative spectrum of members of Parliament. 24. Finally, the Constitutional Court noted that the refusal or cancellation of registration was essentially a sanction imposed on an electoral union or bloc. Sanctions could only be inflicted for violations of the electoral laws and should be proportionate to the violation. However, the contested provision made it possible to sanction electoral unions, blocs and other candidates who had not committed any violation, and this was incompatible with the general principles of justice and rule of law. 25. The Constitutional Court also ruled that the finding that section 51(11) was unconstitutional was of no consequence for the State Duma elections of 19 December 1999 and could not be relied upon to seek a review of their results. 26. On 4 May 2000 the Constitutional Court of the Russian Federation disallowed the applicant party's application for review of the compatibility of section 51(11) with the Constitution, because the subject-matter of the application was essentially the same as the matter adjudicated on 25 April 2000. 27. In 2001 the applicant party lodged an application with the Presidium of the Supreme Court of the Russian Federation to review the judgment of 8 December 1999 in the light of a new circumstance, namely the ruling of the Constitutional Court. 28. On 7 February 2001 the Presidium of the Russian Federation Supreme Court refused the applicant party's application. The court ruled that the ruling of the Constitutional Court was not a new circumstance under domestic law and that, in any event, the applicant party had failed to comply with the procedural time-limit of three months for lodging its application for a review. 29. On 30 July 2000 the applicant party applied to the CEC to have its election deposit paid back. 30. In a letter of 24 August 2000, the CEC informed the applicant party that the election deposit had been credited to the federal budget and could not be repaid. The CEC maintained that the decision of the Constitutional Court did not apply to the 1999 elections and that there was consequently no ground for returning the election deposit. 31. On 26 April 2001 the applicant party brought a civil action against the CEC for the return of the election deposit. 32. In a judgment of 6 September 2001, the Basmanniy District Court of Moscow dismissed the applicant party's action. The court based its decision on a provision of the Elections Act to the effect that the election deposit could not be repaid if the party's list had not been registered in accordance with section 51(11) of the Act. The court held that the applicant party's request for the return of the deposit on the basis of the Constitutional Court's ruling was in fact a disguised request for a review of the election results, which had been expressly prohibited by the Constitutional Court. 33. On 10 June 2002 the Moscow City Court upheld on appeal the judgment of 6 September 2001. 34. The Constitution of the Russian Federation guarantees to the citizens of the Russian Federation the right to elect and to stand for election to State and municipal bodies (Article 32 § 2). 35. The Federal Law on Elections of Deputies to the State Duma of the Russian Federation Federal Assembly (no. 121-FZ of 24 June 1999 – “the Elections Act”) provided at the material time as follows: “1. No later than ten days after the submission of the lists of signatures ([or] upon receipt of the election deposit in the special account of the Central Electoral Commission) and of other documents required for the registration of the federal list of candidates, the Central Electoral Commission shall make a decision to register the federal list of candidates or a reasoned decision to refuse to register the said list... 6 ... Grounds for a refusal shall include: (d) [“(г)” in the original] inaccuracy of information submitted by candidates, electoral unions or blocs in accordance with the present Federal Law, provided that such inaccuracy is substantial (inaccuracy of information in respect of specific candidates on the federal list of candidates of an electoral union or bloc may only be a ground for the exclusion of the candidates in question from the approved federal list)...” “11. If the number of candidates, registered candidates and candidates excluded from the federal list of candidates of their own motion or by virtue of a decision of the electoral union or electoral bloc exceeds 25 per cent of the total number of candidates in the approved electoral list or if withdrawal of one or more candidates listed in the top three positions in the nationwide section of the approved federal list of candidates occurs (except in the event of compelling circumstances as described in subsection 16 of this section), the Central Electoral Commission shall refuse to register the federal list of candidates or shall cancel such registration. 15. ...[If] the registration of the federal list was cancelled pursuant to subsection 11 of this section..., all expenses incurred by the electoral commission in connection with the preparation and organisation of elections shall be reimbursed by that registered candidate, electoral union or electoral bloc.” “7. ...If... a registered candidate withdraws on his own initiative or a candidate, registered candidate or the federal list is withdrawn by the electoral union or electoral bloc (with the exception of cases described in section 51(15) of this Federal Law) ... [or] registration of a candidate or of the federal list is refused (except on the grounds set out in section 91(2) of this Federal Law) ..., the election deposit that has been paid shall be returned by the electoral commission to the appropriate electoral fund no later than ten days after an application (notice) to that effect is submitted to the Central Electoral Commission ... by the electoral union, electoral bloc, candidate, or registered candidate, or after the registration is refused.” “2. An electoral commission may refuse to register a candidate or a federal list of candidates if: (а) it is established that the information submitted by the candidate or an authorised representative of an electoral union or bloc under this Federal Law is substantially inaccurate ...” 36. On 29 December 1999 the CEC approved, by the above decree, the general election results. It appears from the appendices to the decree that 28 political parties and blocs took part in the elections, of which six passed the requisite 5% threshold for representation in Parliament. 66.8 million voters cast their votes in the election, representing 61.85% of the voting population. 3.3% of voters voted “against all candidates”. 37. The relevant parts of Resolution 1320 (2003) adopted by the Parliamentary Assembly on 30 January 2003, read as follows: “1. The holding of free, equal, universal, secret and direct elections at regular intervals remains a sine qua non [condition] for recognising a political system as democratic... 5. The Assembly considers that the code constitutes a major step towards harmonising standards for the organisation and observation of elections and in establishing procedures and conditions for the organisation of the electoral process... 8. The Assembly considers that, as a reference document not only for member states but also for itself, the code would reinforce the impact and the credibility of the electoral observation and monitoring activities conducted by the Council of Europe.” 38. The relevant parts of the declaration adopted by the Committee of Ministers on 13 May 2004 at its 114th Session, read as follows: “The Committee of Ministers... Recalling the importance of the effective implementation of the principles of Europe's electoral heritage: universal, equal, free, secret and direct suffrage... Recognises the importance of the Code of Good Practice in Electoral Matters, which reflects the principles of Europe's electoral heritage, as a reference document for the Council of Europe in this area, and as a basis for possible further development of the legal framework of democratic elections in European countries; Calls on governments, parliaments and other relevant authorities in the member states to take account of the Code of Good Practice in Electoral Matters, to have regard to it, within their democratic national traditions...” 39. The Code of Good Practice was adopted by the European Commission for Democracy through Law (Venice Commission) at its 51st (Guidelines) and 52nd (Report) sessions on 5-6 July and 18-19 October 2002 (Opinion no. 190/2002, CDL-AD (2002) 23 rev.). 40. Guidelines on Elections provide as follows: “The five principles underlying Europe's electoral heritage are universal, equal, free, secret and direct suffrage. Furthermore, elections must be held at regular intervals. 3.1. Freedom of voters to form an opinion a. State authorities must observe their duty of neutrality. In particular, this concerns: i. media; ii. billposting; iii. the right to demonstrate; iv. funding of parties and candidates. b. The public authorities have a number of positive obligations; inter alia, they must: i. submit the candidatures received to the electorate; ii. enable voters to know the lists and candidates standing for election, for example through appropriate posting. iii. The above information must also be available in the languages of the national minorities. c. Sanctions must be imposed in the case of breaches of duty of neutrality and voters' freedom to form an opinion. 3.2. Freedom of voters to express their wishes and action to combat electoral fraud i. voting procedures must be simple; ii. voters should always have the possibility of voting in a polling station... vii. at least two criteria should be used to assess the accuracy of the outcome of the ballot: the number of votes cast and the number of voting slips placed in the ballot box... x. polling stations must include representatives of a number of parties, and the presence of observers appointed by the candidates must be permitted during voting and counting... xiii. counting must be transparent. Observers, candidates' representatives and the media must be allowed to be present. These persons must also have access to the records; xv. the state must punish any kind of electoral fraud.” 41. Explanatory Report reads as follows: “3. Free suffrage 26. Free suffrage comprises two different aspects: free formation of the elector's opinion, and free expression of this opinion, i.e. freedom of voting procedure and accurate assessment of the result. 3.1 Freedom of voters to form an opinion a. Freedom of voters to form an opinion partly overlaps with equality of opportunity. It requires the state – and public authorities generally – to honour their duty of even-handedness, particularly where the use of the mass media, billposting, the right to demonstrate on public thoroughfares and the funding of parties and candidates are concerned. b. Public authorities also have certain positive obligations. They must submit lawfully presented candidatures to the citizens' votes. The presentation of specific candidatures may be prohibited only in exceptional circumstances, where necessitated by a greater public interest. Public authorities must also give the electorate access to lists and candidates standing for election by means, for instance, of appropriate billposting... 3.2. Freedom of voters to express their wishes and combating electoral fraud 27. Freedom of voters to express their wishes primarily requires strict observance of the voting procedure. In practice, electors should be able to cast their votes for registered lists or candidates, which means that they must be supplied with ballot papers bearing their names and that they must be able to deposit the ballot papers in a ballot box. ... Electors must be protected from threats or constraints liable to prevent them from casting their votes or from casting them as they wish, whether such threats come from the authorities or from individuals; the state is obliged to prevent and penalise such practices.” 42. The relevant part of the summary of the findings of the Final Report on the parliamentary elections in the Russian Federation (19 December 1999), prepared by the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE/ODIHR), reads as follows: “In general, and in spite of episodic challenges that could have undermined the general integrity of the process as a whole, the State Duma elections marked significant progress in consolidating representative democracy in the Russian Federation. They reflected a political environment in which voters had a broad spectrum of political forces from which to choose. A solid turnout demonstrated a respectable level of public confidence in the process, and the final result showed a significant increase in the representative share of overall voter support actually included in the State Duma. The electoral laws governing the process had improved significantly with each successive election and were found to be consistent with commonly recognized democratic principles, including those formulated in the OSCE Copenhagen Document of 1990. This legal framework provided a sound basis for the conduct of orderly, pluralistic and accountable elections. The law provides the framework for parties and blocs to enter the political arena on an equal basis and provides a foundation for maintaining a level playing field for political participants. In particular, the law provided a basis for equal access to free media time for all participants, and instituted rigid parameters for enforcing accountability measures and controlling the use of campaign funds. The political campaigns were competitive and pluralistic with 26 parties and blocs ultimately competing on the federal list and 3 to 24 candidates appearing on ballots for the single-mandate constituency races...”

train

001-93244

ENG

BGR

CHAMBER

CASE OF STOYANOVA-TSAKOVA v. BULGARIA

Remainder inadmissible;No violation of Art. 6-1

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

5. The applicant was born in 1956 and lives in Sofia. 6. Following a petition from her former husband, on 29 October 1998 the Sofia District Court dissolved their marriage. It gave the applicant custody of the couple’s only child, and also gave her the use of the former matrimonial home. It found that this home was a flat acquired jointly by the former spouses during their marriage, situated in the “Strelbishte” neighbourhood of Sofia, and intended by them to fulfil the family’s housing needs (the applicant had moved into that flat in 1997 although it had not been fully finished). The fact that the applicant’s former husband had never lived there was of no relevance, as this had been the result of his disregarding his duty to cohabit with his spouse. As the applicant had been given custody of their only child, the court held that she was entitled to use the flat. 7. The applicant’s former husband appealed against the court order relating to the former matrimonial home. He averred that this home was in fact another flat – situated in the “Borovo” neighbourhood of Sofia and coowned by him and his mother and sister – where the spouses had lived before their de facto separation in 1995. 8. On 16 June 2000 the Sofia City Court upheld the order. It agreed with the Sofia District Court that the former matrimonial home was the flat in “Strelbishte”, as it had been acquired, by means of a preliminary contract with the builder, during the marriage, for the family’s housing needs, as at that time the spouses had not owned another home, and as the applicant and her child had been living there at the time when the marriage was dissolved. The flat in “Borovo” was not the former matrimonial home, because it was co-owned by the applicant’s former husband and third parties and both spouses had left it in 1995. 9. The applicant’s former husband appealed on points of law. 10. In a judgment of 29 March 2001 the Supreme Court of Cassation quashed the lower court’s judgment and remitted the case. It held that the former matrimonial home was the flat in “Borovo”, not the one newly built in “Strelbishte”. According to its settled caselaw, the former matrimonial home was the one which had been used before the dissolution of the marriage and, in case of a de facto separation preceding the dissolution, the one used before the separation. 11. On remittal, the Sofia City Court, in a judgment of 20 March 2002, again upheld the order of the Sofia District Court. It relied on interpretative decision no. 12/1971 of the Plenary Meeting of the Supreme Court (see paragraph 18 below), according to whose point 2 (b), in the event of a de facto separation, the former matrimonial home is the one acquired during the separation with funds accumulated during the marriage. On this basis, it found that the former matrimonial home was the flat in “Strelbishte”. Given the unambiguous rule set out in the interpretative decision, the fact that the spouses had not lived in that flat together was immaterial. 12. The applicant’s former husband appealed on points of law. 13. The Supreme Court of Cassation held a hearing on 9 October 2002. The applicant was represented by counsel, who asked the court to dismiss the appeal and said that he had developed his arguments in a memorial which he filed during the hearing. 14. In the memorial, which ran to four pages, the applicant’s counsel argued that the Sofia City Court had not erred by taking into account interpretative decision no. 12/1971 instead of the guidelines of the Supreme Court of Cassation given in the judgment of 29 March 2001, since where there was conflict between the instructions given in a specific case and the solution envisaged by a binding interpretative decision the latter prevailed. He further presented a number of arguments why the flat in “Strelbishte” was the former matrimonial home and why its use should be given to the applicant. He asserted that this flat had been acquired by the spouses with a view to fulfilling the family’s housing needs, that the applicant had contributed financially to its acquisition and that the only reason why she did not have title to it was her former husband’s protracting the conclusion of the final contract for its acquisition from the builder. The applicant had brought a separate suit, seeking a court order declaring the preliminary contract with the builder final. However, that suit was still pending. The spouses had lived in the flat since 1997, but even assuming that the applicant’s former husband had not done so throughout the entire period, this had been due to his dereliction of the duty to cohabit with his wife. The applicant and her child could not live in the flat in “Borovo”, because this was not the former matrimonial home, and this would mean cohabiting with their former inlaws, with whom they did not have good relations. 15. On 21 November 2002 the Supreme Court of Cassation quashed the Sofia City Court’s judgment. In the beginning of its twoandahalf page opinion it observed that the applicant had not made submissions in the proceedings before it. It found no indication that the spouses had obtained title and thus acquired the flat in “Strelbishte” during the marriage; there was merely a preliminary contract in respect of it. The date of delivery of the flat was irrelevant. Therefore, point 2 (b) of interpretative decision no. 12/1971 (see paragraph 18 below) was not applicable. However, even if the spouses had acquired the flat during the marriage, it would not have become the matrimonial home, because it had not been acquired in order to fulfil the family’s housing needs. Where a home had not been acquired for such purpose, point 2 (b) was inapposite on account of the repeal in 1991 of a communist-era statute restricting the number of properties which an individual was allowed to own. Thereafter, the contribution of funds by both spouses could be of importance solely for the existence or otherwise of a joint title to a home acquired during the marriage, not for its designation as the matrimonial home. The former matrimonial home was the flat in “Borovo”, as the spouses had lived there before their de facto separation in 1995. Since the couple’s child was already an adult and since the applicant shared some of the responsibility for the breakdown of the marriage, the use of the former matrimonial home was to be given to her former husband. 16. On 29 November 2002 the applicant’s counsel asked the Supreme Court of Cassation to rectify the statement in its judgment that he had not made any submissions in the cassation proceedings. He considered that statement to be an obvious mistake, because, as noted in the minutes of the hearing, he had filed a memorial, which featured after page 10 in the case file. On 6 December 2002 the court refused, saying that only errors in the operative provisions of a judgment could be rectified. 17. Article 107 § 1 of the 1985 Family Code provides that when a court allows a divorce petition, it must give the use of the former matrimonial home to one of the spouses if it cannot be used separately by both of them. In reaching its decision, the court must have regard to the interests of the children, the fault for the breakdown of the marriage, the health of the spouses and all other relevant circumstances. 18. Interpretative decision no. 12/1971 of the Plenary Meeting of the Supreme Court (постановление № 12 от 28 ноември 1971 г., Пленум на ВС) was adopted on 28 November 1971 under the 1968 Family Code (which was superseded by the 1985 Family Code). It deals with all issues relating to the use of the former matrimonial home. Point 2 (b) of its operative provisions defines the former matrimonial home as the one acquired while the spouses were separated de facto, but with funds accumulated during the marriage.

train

001-5902

ENG

GRC

ADMISSIBILITY

R.G. v. GREECE

Inadmissible

Giovanni Bonello

The applicant is a citizen of Sri Lanka of Tamil ethnic origin, born in 1976. He currently resides in Greece. He is represented before the Court by Mrs A. Sykiotou-Androulaki, a lawyer working for the Greek Council for Refugees. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s father was killed by the Indian Peace Keeping Forces (IPKF) in 1987. His elder brother, who was with the Eelam People Revolutionary Liberation Front (EPRLF), has disappeared since 1987. The applicant’s sister arrived in the United Kingdom in 1995 and claimed asylum. On 7 December 1998 the Special Adjudicator concluded that she had a well-founded fear of persecution and allowed her appeal. Reference was made in this decision to the applicant’s own activity. The applicant states that he was a member of the Liberation Tigers of Tamil Eelam (LTTE) from 1993 to 1997. In 1997 he expressed the wish to withdraw from the group, but its leaders prevented him from doing so and he was forced to stay. In February 1998 he tried to escape from the group’s camp in Glinotsi, but he was arrested and held at the camp as a prisoner. In May 1998 he managed to escape and fled to Colombo. There he was arrested by the police because he had no identity card. While in detention his co-detainees recognised him as being a member of the LTTE. Following that, he claims that he was tortured by police officers. He was detained for three days (from 21 to 24 May 1998). Then he managed to escape with the help of his uncle who bribed some police officers. He was told he had to leave the country immediately because his life was in danger. The applicant arrived in Greece on 12 December 1998 and was arrested when trying to escape to Italy holding a false passport. On the same day, administrative decision N° 3/753554–15250 ordered the applicant’s expulsion from Greece and his detention pending expulsion. On 18 February 1999 the applicant sought asylum. He identified himself under a false name because he feared for his safety if he had to return to Sri Lanka. On 21 April 1999 the Minister of Public Order rejected the applicant’s request. On the same day the applicant appealed against this refusal. During the hearing before the competent administrative committee the applicant was assisted by an interpreter of Tamil ethnic origin. On 20 May 1999 the Minister of Public Order concluded that the applicant had not established a well-founded fear of persecution within the meaning of the 1951 Refugee Convention and refused his application. This decision was served on the applicant on 27 May 1999. On 1 June 1999 the applicant appealed against the decision of 12 December 1998 ordering his expulsion. During the hearing before the competent administrative committee the applicant was assisted by an interpreter of Tamil ethnic origin. His appeal was rejected on 18 June 1999. The applicant claims that he was informed of this decision orally on 21 June 1999. In the meantime the applicant was informed about his sister’s whereabouts. When he learned that his sister’s request for asylum in the United Kingdom had been upheld, he made a new application for asylum on 8 July 1999. His request was rejected on 5 August 1999. This decision was served on the applicant on 6 August 1999. On 12 August 1999 he lodged an appeal against this decision with the Council of State. He also applied for a suspensive effect of his appeal. On 23 August 1999 the Council of State ordered the temporary stay of execution of the administrative acts relating to the applicant’s expulsion. On 31 August 1999 this decision was served on the applicant, who was then released and given a certificate stating that he remains in the country under tolerance. 1. Section 27 § 6 of Law No. 1975/1991 provides that the Minister of Public Order may, in the public interest and if the person to be expelled is dangerous or there is a risk of him absconding, order his detention until his deportation from Greece becomes feasible. 2. The application for annulment is the main remedy before the Council of State. This remedy is modelled on the French recours pour excès de pouvoir, and may be used to challenge both administrative action and inaction. The application for annulment may assert lack of competence, infringement of an essential procedural requirement, substantive violation of the law or abuse of discretionary power. A judgment for the petitioner declares the contested decision to be null and void erga omnes. The authorities are obliged to take the measures called for by the judgment, or to refrain from any action declared to be unlawful.

train

001-104653

ENG

POL

CHAMBER

CASE OF CHERNYSHOV v. POLAND

No violation of Art. 5-3

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

5. The applicant was born in 1977. He is currently detained in Hrubieszów Prison. 6. On 19 August 1998 the applicant was arrested on suspicion of murder. 7. On 20 August 1998 the Słubice District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. It considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence or go into hiding. As regards the latter, the court relied on the fact that he did not have his place of residence in Poland. It also stressed the severity of the anticipated prison sentence. 8. The applicant’s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful. 9. In the course of the investigation, the applicant’s detention was extended on 14 October 1998 to 15 January 1999. The Słubice District Court relied on the original grounds given for the applicant’s detention. It also underlined that the applicant was a foreign national and therefore there was a risk of his absconding if released. 10. The applicant asserted that at the early stage of the investigation he had admitted to having committed the offence he had been charged with. He further submitted that he had agreed to cooperate with the authorities in order to have his future sentence mitigated. 11. On 28 December 1998 the Słubice District Prosecutor lodged a bill of indictment with the Gorzów Wielkopolski Regional Court (Sąd Okręgowy). The applicant was charged with murder. The bill of indictment comprised several charges brought against three defendants. 12. The applicant was tried on the basis of the relevant provisions of the Criminal Code of 6 June 1997 (the so-called “New Criminal Code”) which entered into force on 1 September 1998, replacing the Criminal Code of 19 April 1969 (the so-called “Old Criminal Code”). According to Article 4 of the New Criminal Code, in the event that a case is being examined at a time when the New Criminal Code is in force but concerns an offence which was committed prior to its entry into force, the new law shall nevertheless apply if it is more lenient for the perpetrator (względniejszy dla sprawcy). 13. On 18 February and 18 March 1999 the trial court held hearings. The applicant pleaded guilty before the trial court. In particular, he testified that he had committed the murder together with a certain W.B. and a certain A.T. 14. During the trial the authorities further extended the applicant’s detention pending trial on 13 January 1999 (to 15 June 1999). The courts repeated the grounds previously given for the applicant’s continued detention. 15. On 18 March 1999 the Gorzów Wielkopolski Regional Court gave judgment. The applicant was convicted as charged and sentenced to 15 years’ imprisonment. The court noted, inter alia, that although the applicant pleaded guilty, his testimonies had not been fully coherent and contained a number of inconsistencies. It therefore considered that the conditions for the extraordinary mitigation of sentence had not been met in the case. 16. The applicant, other co-accused and the District Prosecutor appealed. The applicant’s legal-aid counsel argued that the first-instance court had not mitigated the applicant’s sentence as required by Article 60 § 3 of the New Criminal Code, despite the fact that the applicant had cooperated with the authorities. According to that provision, a domestic court shall mitigate the sentence if the defendant committed the offence with accomplices, and revealed to the prosecution information about the persons involved in the commission of the offence and any significant circumstances in which the offence was committed. 17. The applicant was kept in detention pending appeal. 18. On 23 November 1999 the Poznań Court of Appeal (Sąd Apelacyjny) heard the appeals. It quashed the first-instance judgment and remitted the case for retrial. The appellate court observed at the outset that the appeals lodged by the applicant and the District Prosecutor contested only the severity of the penalty imposed and not the applicant’s guilt which was clearly established. It further considered the arguments advanced on behalf of the applicant to be reasonable. However, it found that the evidence examined by the first-instanceIt further ordered that the applicant’s detention should continue until 30 April 2000. The court repeated the grounds previously given for the applicant’s continued detention. In addition, it underlined the need to obtain a report from an expert in graphology. 19. On 15 February, 21 March and 11 April 2000 the trial court held hearings. 20. On 18 April 2000 the Gorzów Wielkopolski Regional Court convicted the applicant as originally charged and sentenced him to 15 years’ imprisonment. The other defendants were likewise convicted. 21. The applicant, other co-accused and the District Prosecutor appealed. The applicant remained detained pending appeal. 22. It appears that the applicant changed his testimony in that he no longer claimed that A.T. had been an accomplice to the offence he had been charged with. He continued to admit his own guilt. 23. On 9 November 2000 the Poznań Court of Appeal again quashed the first-instance judgment and remitted the case for retrial. It ordered that the applicant’s detention should continue until 31 January 2001. 24. On 14 March, 15 March and 27 April 2001 the trial court held hearings. 25. In the retrial proceedings the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against decisions extending his detention. The relevant decisions on the extension of his detention were given by the Gorzów Wielkopolski Regional Court on 30 January 2001 (to 30 April 2001), on 27 April 2001 (to 27 July 2001), on 10 July 2001 (to 10 October 2001) and on 9 October 2001 (to 9 January 2002). 26. On 5 December 2001 the Gorzów Wielkopolski Regional Court convicted the applicant as originally charged and sentenced him to 25 years’ imprisonment. As concerns the other defendants, the court convicted W.B. but acquitted A.T. 27. The applicant appealed. The applicant’s legal-aid counsel argued, inter alia, that the trial court had erred in that it had not mitigated the applicant’s sentence. The lawyer noted that the material in the case file clearly indicated that the applicant had cooperated with the authorities and therefore had complied with the requirements of Article 60 § 3 of the New Criminal Code. Admittedly, the applicant had changed his pleadings after the judgment of 18 April 2000. That, however, should not have had any bearing on the outcome of the case, since the applicant had undoubtedly been coerced into changing his testimony by his co-defendants. 28. On 16 May 2002 the Poznań Court of Appeal upheld the firstinstance judgment. It acknowledged that the applicant had given an account of his own wrongdoing. The court observed however that the remainder of his testimony, in particular in part regarding the responsibility of other co-accused had not been credible and had not been taken into consideration by the trial court. The appellate court concluded that the applicant’s testimonies had not been wholly credible and therefore he was not entitled to an extraordinary mitigation of his sentence. 29. By letter of 3 December 2002 the applicant’s legal-aid lawyer informed the Poznań Court of Appeal that he had not found any grounds for lodging a cassation appeal in the case. 30. It appears that throughout the trial the applicant was represented by a lawyer assigned to him under the legal-aid scheme. The applicant submitted that between 1999 and 2000 his legal-aid lawyer had never met him to prepare the case and had put forward an ineffective defence. 31. On 19 August 1998 the applicant was committed to Międzyrzecz Remand Centre. Since that date he has been continuously detained in several penitentiary facilities. On 10 December 2007 the applicant was transferred to Hrubieszów Prison where he is currently detained. 32. The parties gave partly differing accounts of the conditions of the applicant’s detention. 33. The applicant maintained that during most part of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene. 34. The Government submitted that they could not formally confirm whether during his detention from 19 August 1998 to 28 November 2000, from 22 March to 25 April 2001, from 6 June to 29 November 2001, from 28 February to 15 May 2002, from 27 August to 29 November 2002, from 7 to 18 March 2003 and from 26 August 2005 to 2 February 2006 the applicant was detained in cells with a surface area of at least 3 m² per person. The Government further submitted that the period of the applicant’s detention in cells in which the statutory minimum requirement of 3 m² per person had not been respected amounted to some 979 days. Finally, they maintained that the applicant was currently detained in a cell in which the statutory minimum requirement of 3 m² per person was respected. This submission was not contested by the applicant. 35. At the beginning of his detention the applicant lodged numerous complaints with the penitentiary authorities regarding the conditions of his detention. He submitted that he had later given up as his complaints had no prospects of success and he had feared being persecuted by the prison authorities. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights. 36. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 May 2006. 37. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).

train

001-60486

ENG

GBR

GRANDCHAMBER

CASE OF STAFFORD v. THE UNITED KINGDOM

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

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney;Simon Brown

10. In January 1967 the applicant was convicted of murder. He was released on licence in April 1979. His licence required him to cooperate with his probation officer and to remain in the United Kingdom unless his probation officer agreed to his travelling abroad. 11. Soon after release the applicant left the United Kingdom in breach of his licence and went to live in South Africa. In September 1980 his licence was revoked and thereafter he was continuously “unlawfully at large”. 12. In April 1989 the applicant was arrested in the United Kingdom, having returned from South Africa in possession of a false passport. Possession of a false passport led to a fine. He remained in custody, however, due to the revocation of the life licence. He made written representations to the Parole Board against the 1980 decision to recall him to prison but the Board rejected those representations and recommended a further review in July 1990. 13. In November 1990 the Board recommended the applicant's release subject to a satisfactory release plan. This recommendation was accepted by the Secretary of State. In March 1991 the applicant was released on life licence. 14. In July 1993 the applicant was arrested and remanded in custody on counterfeiting charges. On 19 July 1994 he was convicted on two counts of conspiracy to forge travellers' cheques and passports and sentenced to six years' imprisonment. 15. In September 1994 the Parole Board recommended revocation of the applicant's life licence and further review at the parole eligibility date of his six-year sentence. The Secretary of State accepted the Board's recommendation, revoking the licence under section 39(1) of the Criminal Justice Act 1991 (“the 1991 Act”). The applicant made written representations, but the Board maintained its decision. 16. In 1996 the Parole Board conducted a formal review of the applicant's case and recommended his release on life licence. It said: “This case is exceptional in that it is a recall one and he has previously made a successful transition from prison to the community without violent reoffending ... It is felt that the risk of serious reoffending in the future is very low. Recent reports of progress in prison have been favourable and no untoward incidents have been reported; positive links with his family have been maintained. In view of these facts, it is now felt that he could be released safely and appropriately into the community. The Panel took the view after lengthy consideration that nothing further would be gained by a period in open conditions, and the successful return to the community, bearing in mind all risk factors, would be best facilitated by returning to his family directly.” 17. By letter of 27 February 1997 to the applicant, the Secretary of State rejected the Board's recommendation in the following terms: “... [The Secretary of State] notes with concern the circumstances surrounding your two recalls to prison ... Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision. Against this background the Secretary of State is not yet satisfied that if released on licence for a third time, you would fully comply with the conditions of your life licence. He notes that you have spent the past 3 1/2 years in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners. This involves a period in open conditions, giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment; and to experience the full range of resettlement activities in preparation for release. For these reasons, the Secretary of State considers that you should be transferred to an open prison for a final period of testing and preparation. Your next formal review by the Parole Board will begin 2 years after your arrival there.” 18. On 10 June 1997 the applicant was granted leave to seek judicial review of the Secretary of State's decisions to reject the Board's recommendation for immediate release and to require him to spend a further two years in open conditions before the next review. 19. On 1 July 1997, but for the revocation of his life licence, the applicant would have been released from prison on the expiry of the sentence for fraud, pursuant to provisions whereby prisoners serving determinate sentences of more than four years were released after serving two-thirds of their sentence (section 33 of the 1991 Act). 20. The Secretary of State acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences, but asserted that he could lawfully detain a post-tariff mandatory life prisoner solely because there was a risk that he might commit further non-violent imprisonable offences. 21. On 5 September 1997 Mr Justice Collins quashed the Secretary of State's decision of February 1997, holding that it was beyond his power to detain a post-tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public. 22. On 26 November 1997 the Court of Appeal allowed the Secretary of State's appeal, holding that section 35(2) of the 1991 Act conferred a broad discretion on the Secretary of State to direct the release of mandatory life prisoners and his decision not to release the applicant was in accordance with the previously stated policy whereby the risk of reoffending was taken into account, such risk not having been expressed as being limited to offences of a violent or sexual nature. Lord Bingham CJ stated, however: “The applicant is now serving the equivalent of a determinate sentence of about five years, albeit in open conditions. This term has not been imposed on him by way of punishment, because he has already served the punitive terms which his previous, very serious, offences have been thought to merit. The term has not been imposed because he is thought to present danger to the public, because that is not suggested. It is not submitted that the term imposed bears any relation to the gravity of any future imprisonable offence which the applicant might commit or that such term is needed to ensure future compliance with the terms of his life licence. While a powerful case can be made for testing in open conditions a mandatory life prisoner who has been institutionalised by long years of incarceration in closed conditions, such a case loses much of its force in the case of a man who has, since serving the punitive term of his life sentence, demonstrated his capacity for living an independent and apparently lawful life by doing so for a number of years. The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law. I hope that the Secretary of State may, even now, think it right to give further consideration to the case.” 23. Lord Justice Buxton, concurring with the latter remarks, added: “The category of imprisonable offence is extremely wide, and can encompass many matters that are wholly unrelated, both in nature and seriousness, to the reasons for the life sentence prisoner being within the power of the State in the first place. I also find it uncomfortable that the criterion should be used as the justification for continued imprisonment. We were told in argument that the test of imprisonable offence, rather than of fault of a purely moral or social nature, was used because faults of the latter nature would be unconnected with the original reasons for the subject's incarceration; but in reality this lack of connection exists, or at least is strongly threatened, by the imprisonable offence criterion also. ...” 24. On 16 December 1997 the applicant was moved to open conditions. 25. By letter dated 21 January 1998, the Secretary of State decided that the applicant should spend only six months in open conditions before his next review. 26. On 23 July 1998 the House of Lords dismissed the applicant's appeal against the Court of Appeal's decision. In his speech, with which the rest of the judges agreed, Lord Steyn held that section 35(2) of the 1991 Act conferred a wide administrative discretion on the Secretary of State to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common-law principle of retributive proportionality which restrained him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non-violent offence. He expressly repeated Lord Bingham's concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law. 27. On 22 December 1998 the applicant was released on licence by the Secretary of State. 28. Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of other serious offences (such as manslaughter or rape) may also be sentenced to life imprisonment at the discretion of the trial judge where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside. Where an offender is under 18 years of age when the offence of murder is committed, he or she is sentenced to detention during Her Majesty's pleasure (section 53(1) of the Children and Young Persons Act 1933). 29. As at 31 December 2001 there were 3,171 male and 114 female mandatory life prisoners, 228 men and 11 women serving a sentence of detention during Her Majesty's pleasure and 1,424 male and 25 female discretionary life prisoners. 30. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-07). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407, at pp. 492G-493A). 31. According to section 34 of the Criminal Justice Act 1991 (“the 1991 Act”), the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board, which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public. 32. A different regime, however, applied under the 1991 Act to persons serving a mandatory sentence of life imprisonment (now replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”), sections 28-34). In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State, who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-64). 33. In the judicial review proceedings in Ex parte V. and T. (cited above), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise. 34. Lord Steyn held: “The starting-point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power.” 35. Lord Hope held: “But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ... If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules ...” 36. In Ex parte Pierson [1998] Appeal Cases 539, Lord Steyn stated, in a case concerning mandatory life prisoners: “In public law the emphasis should be on substance rather than form. The case should not be decided on a semantic quibble about whether the Home Secretary's function is strictly 'a sentencing exercise'. The undeniable fact is that in fixing a tariff in the individual case the Home Secretary is making a decision about the punishment of the convicted man. In any event, a majority holding in Ex Parte V. concludes the matter ... This point is therefore settled by the binding authority of a decision of the House.” 37. A whole life tariff may be set in appropriate cases. In R. v. the Home Secretary, ex parte Hindley [2001] 1 Appeal Cases, where a provisional tariff of thirty years had been replaced by a whole life tariff, Lord Steyn held that “life-long incarceration for the purposes of punishment is competent where the crime or crimes are sufficiently heinous”. The decision of the Secretary of State to apply a whole life tariff in her case was found in the circumstances to be lawful. He had been entitled to revise his view of the tariff, which had initially been based on incomplete knowledge of her role in the three murders upon which she had faced trial and in ignorance of her involvement in two other murders, matters which came to light later. According to information provided by the Government, there were twenty-two mandatory life prisoners with whole life tariffs at 31 December 2001. 38. At the relevant time, the Criminal Justice Act 1991 provided in section 35(2): “If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.” This is in contrast to the position for other life prisoners, where the Parole Board now has the power of decision – pursuant to the provisions of the 1991 Act for discretionary life prisoners and pursuant to the 1997 Act for detainees during Her Majesty's pleasure. Where, however, a mandatory life prisoner was recalled to prison, the Parole Board did have a power to direct the Secretary of State to release the prisoner immediately (section 39(5) of the 1991 Act, now section 32(5) of the 1997 Act). 39. On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State “will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that [he] will only exercise [his] discretion to release if [he is] satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.” 40. In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner's risk to the public following the expiry of the tariff (see, for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 Weekly Law Reports 135, and R. v. Parole Board, ex parte Wilson (Court of Appeal) [1992] 2 All England Law Reports 576). 41. In R. v. Secretary of State for the Home Department, ex parte Doody ([1993] 3 All England Law Reports 92), the House of Lords observed that, in contrast with the position as regards discretionary life sentences, the theory and practice in respect of mandatory life sentences were out of tune. In his speech, with which the other judges agreed, Lord Mustill explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a “tariff” period to reflect the requirements of retribution and deterrence. He added: “The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and current practice, there remains a substantial gap between them. It may be – I express no opinion – that the time is approaching when the effect of the two types of sentence should be further assimilated. But this is a task of Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the State, through the medium of judicial review.” 42. On 10 November 1997 the Secretary of State made the following parliamentary statement, inter alia: “I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given on 27 July 1993. In particular, the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low, but also on the need to maintain public confidence in the system of criminal justice. The position of a prisoner subject to a mandatory life sentence continues to be distinct from that of a prisoner serving a discretionary life sentence, a decision on whose final release is a matter for the Parole Board alone.” 43. It was noted by the Court of Appeal in R. (Lichniak and Pyrah) v. Secretary of State for the Home Department [2001] 3 Weekly Law Reports (judgment of 2 May 2001) that the criterion of public acceptability of release identified by the Home Secretary (point (c) in paragraph 39 above) had never been a determining factor, although the current Home Secretary followed the policy of his predecessors. 44. On 2 October 2000 the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be relied on in domestic proceedings. 45. In Lichniak and Pyrah (cited above), the two applicants challenged the imposition on them for murder of a mandatory life sentence, arguing that this was disproportionate and arbitrary and contrary to Articles 3 and 5 of the Convention. In dismissing their appeals, the Court of Appeal found that the mandatory sentence of life imprisonment was in reality an indeterminate sentence, rarely involving imprisonment for life, and as such could not be labelled inhuman and degrading. Nor was it arbitrary as in each case the sentence was individualised from the moment it was imposed. The purpose of the mandatory life sentence was, according to the Government's counsel, “to punish the offender by subjecting him to an indeterminate sentence under which he will only be released when he has served the tariff part of his sentence, and when it is considered safe to release him ... That is not merely the effect of the sentence, it is the sentence”. Lord Justice Kennedy also cited in his judgment the conclusions of the Committee on the Penalty for Homicide, chaired by Lord Lane, issued in 1993: 46. In R. (Anderson and Taylor) v. Secretary of State for the Home Department, two prisoners who had been convicted of murder complained that the Home Secretary had fixed a tariff superior to that recommended by the judiciary – twenty years instead of fifteen years and thirty years instead of sixteen years. They relied on Article 6 § 1 of the Convention, alleging that it was incompatible for the executive to carry out what was in fact a sentencing exercise. The Divisional Court dismissed their claims. The Court of Appeal rejected their appeals on 13 November 2001. In doing so, the appellate judges considered the nature of the tariff-fixing exercise for mandatory life prisoners and the significance of Strasbourg case-law. Lord Justice Simon Brown held, inter alia: “... I accept of course that the mandatory life sentence is unique. But not all the offences for which it is imposed can be regarded as uniquely grave. Rather the spectrum is a wide one with multiple sadistic murders at one end and mercy killings at the other. Lifelong punitive detention will be appropriate only exceptionally. As for 'broader considerations of a public character', it is difficult to understand quite what these are. Regard must not be had to 'public clamour' – see [V.]. There is, of course, 'the need to maintain public confidence in the system of criminal justice' (see the Home Secretary's statement to Parliament on 10 November 1997). To my mind, however, this can and should be catered for in the fixing of the tariff. The retributive element of the tariff should reflect the public's moral outrage at an offence. Surely the maintenance of public confidence in the system cannot require longer incarceration than that which properly reflects society's entitlement to vengeance. Sometimes, I recognise that will require a whole life tariff. But why should not the judges determine that? ... [A]s to retrospectively increasing the tariff ... [t]he same problem could presumably arise in a discretionary life sentence case. In truth, however, it begs rather than answers the question whether the initial fixing of the tariff is properly to be regarded as an exercise in sentencing. In short I find none of Mr Pannick's arguments convincing. Neither singly nor cumulatively do they seem to me to provide a principled basis for treating tariff-fixing in mandatory life cases differently from the similar exercise required for discretionary life prisoners and Her Majesty's pleasure detainees. In all three cases the exercise is in substance the fixing of a sentence, determining the length of the first stage of an indeterminate sentence – that part of it which (subject only to the need for continuing review in Her Majesty's pleasure cases) must be served in custody before any question of release can arise ...” 47. Although he was of the view that the existing mandatory life sentence regime breached Article 6 § 1 and Article 5 § 4, he, and the other two judges, considered that the Strasbourg case-law (in particular, Wynne v. the United Kingdom, judgment of 18 July 1994, Series A no. 294-A) had to be regarded as determinative of the Convention issues in the case. He noted that the European Court of Human Rights was about to re-examine the position in Stafford and, although considering that the final decision should be the Court's, stated that he would be surprised if the present regime for implementing mandatory life sentences survived that re-examination. 48. In Scotland, the Convention Rights (Compliance) (Scotland) Act 2001 now provides that in the case of mandatory life sentences the trial judge fixes the “punishment part” of the sentence, on the expiry of which the Parole Board decides on possible release on licence. The test applied to determine suitability for release is identical to that applied to discretionary life prisoners in England and Wales, namely, that the Parole Board is satisfied that the prisoner does not present a substantial risk of reoffending in a manner which is dangerous to life or limb or of committing serious sexual offences. 49. In Northern Ireland, the Life Sentences (Northern Ireland) Order SI no. 2564 provides that the trial judge decides on the tariff for a mandatory life prisoner and that release post-tariff is determined by Life Sentence Review Commissioners (with a status and functions very similar to those of the Parole Board operating in England and Wales). The test applied by the Commissioners is one of protection of the public from “serious harm”, this term meaning the risk of harm from violent or sexual offences. 50. Justice, a human rights and law reform organisation founded in 1957, submitted written comments regarding domestic law and practice, following the leave granted to it by the President of the Court to intervene as a third party (see paragraph 7 above). Its submissions may be summarised as follows. 51. The mandatory life sentence imposed by the 1965 Act (see paragraph 28 above) applied to all convictions for murder, covering a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal serial killings to the mercy killing of a beloved partner. It could not be said that murder was a uniquely heinous offence. The mandatory application of life sentences therefore made the arrangements for release all the more critical in terms of fairness and just deserts. Access to regular judicial review once the tariff expired had been extended to discretionary life prisoners and child murderers and the Secretary of State could no longer set tariffs in these cases. Similar provisions were now being extended to mandatory life prisoners in both Scotland and Northern Ireland under legislation to ensure compliance with human rights. 52. There had been substantial criticism of the current system. In 1989, a Select Committee of the House of Lords, appointed to report on murder and life imprisonment, recommended the abolition of the mandatory life sentence. In 1996 the Home Affairs Select Committee of the House of Commons took evidence and deliberated on the same issues. Their report (Murder: The Mandatory Life Sentence) recommended that the tariff and release decisions be removed from the Home Secretary and left with the trial judge and Parole Board. Lord Lane, formerly Lord Chief Justice, chaired a Committee on the Penalty for Homicide, which also produced a critical report in 1993. 53. The diversity of circumstances that could lead to a murder conviction meant that murderers as a class of offender did not pose special problems of dangerousness. They had a lower recidivism rate than discretionary life prisoners and the general prison population. The system of tariff-fixing was not easily understood by the prisoners concerned and was subject to delays and uncertainty, both of which factors impinged on the quality of work with life prisoners at the crucial early stages of their sentences. 54. The United Kingdom had more serving life prisoners than the rest of Europe together, which was attributable primarily to the mandatory life sentence for murder. While some countries, such as Germany, France and Italy, had mandatory life sentences, these were only applied where there were aggravating factors or for a particular type of murder. Article 77 of the Statute for the International Criminal Court provided that a life sentence could only be ordered “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”.

train

001-67631

ENG

GBR

ADMISSIBILITY

GLOVER v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The applicant, Mr Matthew Glover, is a United Kingdom national, who was born in 1962 and lives in York. He is represented before the Court by Ms Fiona Stevens, solicitor, of Messrs. Goodwin and Stevens, Halifax. The applicant was convicted at the Crown Court in Preston on 22 March 2002 of three counts of conspiracy to supply class A and class B drugs, namely ecstasy, amphetamine and cannabis resin. He was sentenced to 25 years' imprisonment for supplying class A drugs and, concurrent thereto, 14 years' imprisonment for the supply of class B drugs. In connection with the sentence, the Court of Appeal on 4 November 2003 granted leave to appeal and reduced the individual sentences to 18 years and 7 years respectively, to run consecutively. Leave to appeal against conviction was refused on the same day. One of the issues in the case concerned the disclosure of materials held by the prosecution on which they did not intend to rely. The applicant and his co-defendants had been subject to intensive police observations at one or more stages of the conspiracy, between September 1999 and February 2001, and at various times some of them (but not the applicant) were found in possession of amounts of drugs worth, variously, £100,000, £150,000, £62,000, £70,000, £220,000 and £50,000 (two), £500,000 and £40,000. Much of the evidence was recordings of telephone calls made by defendants, and references by one of the defendants to another. The applicant, in his defence, accepted that he knew some of the people who had been arrested in possession of drugs in the case, but contended that he had not known what was going on, and had never been involved in any way with drugs. He said that he had had business dealings with some of the people that he would not have wanted the authorities to know about. Before and during the trial, the applicant applied for disclosure of the unused material in the form of the many covertly obtained tapes of conversations and observation material not already in evidence. He maintained that he needed the information to put in context the extracts from the recordings and details of all observations relied upon by the prosecution. Rulings were made by Judge Baker, before the trial on 7 February 2002, and by the trial judge, Judge Ensor during the trial. The rulings (summarised by the Court of Appeal) were to the effect that: - the court had no power to order further primary disclosure – that was a matter for the prosecution's judgment under Section 3 of Criminal Proceedings and Investigations Act 1996 (“CPIA”); - in the absence of any particular issue in the applicant's defence statement in respect of which the prosecution could be shown to have reasonable cause under Section 8 of the CPIA to believe that there was undisclosed prosecution material which might reasonably be expected to assist the defence case, such disclosure would not be ordered; - in the circumstances it was not appropriate or necessary to order the further disclosure sought or for the trial judge to examine it or for himself to verify the prosecution's compliance with their secondary disclosure duty, and - the CPIA scheme of prosecution disclosure was not contrary to Article 6 of the Convention. The applicant was convicted on 22 March 2002 and sentenced to a total of 25 years' imprisonment. Leave to appeal against conviction was refused by a single judge on 16 October 2003, and the Court of Appeal heard the renewed application on 4 November 2003. Before the Court of Appeal, the applicant challenged the way in which material had been withheld by the prosecution. In particular, he claimed that the prosecution was not entitled to withhold material that, when put in context with the material relied on by the prosecution, might have put the latter in a different light. The Court of Appeal noted that the applicant (unlike a co-defendant who raised similar issues) had served a defence statement under Section 5 of the CPIA which raised in general terms the nature of his defence, namely that he would contend that he know nothing of the drugs. The defence statement had also stated that he would contend that the balance of the audio recordings not already disclosed would put the conversations in their true context. Counsel for the prosecution, in reply, contended that the disclosure had complied with the scheme set up by Sections 3 and 8 of the CPIA and the relevant Guidelines on Disclosure of Information in Criminal Proceedings, and that the initial primary disclosure itemised many hundreds of documents or bundles of documents drawn from a mass of documentary material running to thousands of pages. The unused audio material alone amounted to over 900 hours of listening. He added that the defence had been served, by way of primary disclosure, with further schedules of discloseable material in the course of the trial as such material came into the police's hands. The prosecution further contended that without identifiable issues as to what the undisclosed material might relate to, it could not properly make secondary disclosure. The prosecution also pointed out that, in order to put the conversations which were relied on in context, some minutes of conversation before and after each of the incriminating passages had been included in the served audio tapes and transcripts. The Court of Appeal held as follows: “There is no power in the court to direct primary disclosure, and, even if there were, it is difficult to see how the court could approach its task without knowledge of what, if any, issues were going to be taken with the prosecution case. The scheme of the [CPIA] is to rely on the prosecutor at that stage to disclose to the defence any unused material which in his or her opinion might undermine the prosecution case, but not to disclose everything available regardless of any conceivable relevance. The machinery for testing the objectivity and adequacy of that disclosure, given the prosecution's incomplete knowledge at that stage of what issues lie ahead, is the scheme of secondary disclosure. Once those issues are identified by the defence in a defence statement, if they are so identified, the prosecutor can then revisit his duty of disclosure, better informed than he was at the primary stage, to form a view as to what further disclosure justice requires in the form of material that might reasonably be expected to assist the defence. If, in the light of his then knowledge, he still does not make adequate disclosure, that is when the court can step in, and stay in. It can then consider the material for itself and direct further disclosure if it considers justice requires it. That is the machinery, and that machinery was invoked here over a number of applications in the course of the trial; and the judges, true to the scheme of the Act, ruled as they did. In our view, there is nothing in the machinery that violates the Convention or the jurisprudence of the European Court, that is, of tying prosecution disclosure to material that is relevant to the issues of guilt or innocence. There is nothing in the Convention or the Strasbourg Court's jurisdiction to equate the notion of a fair trial, including the requirement of the prosecution to prove its case, with the notion that the defence, while keeping its cards close to its chest, can demand sight of all the prosecution material, however irrelevant to any issue that could be guessed at. As to [the] more modest proposition that more of the audio tapes should have been disclosed to enable [the applicant] to put seemingly incriminating conversations into a more innocent context, it seems to us there are three answers. First, additional context was provided as [counsel for the prosecution] has told us, in recorded passages before and after the incriminating words. Second, the words, in the context of what the police had seen as well as heard and the drug finds they made at or about the times of the conversations, were not seemingly incriminating, but plainly incriminating. Any innocent exchanges at other times – and no doubt there were many of them – could not have saved the passages on which the prosecution relied for the purpose of the defence. Third, it is to be remembered that these were lengthy conspiracies, punctuated by serious drug finds with which [the applicant and a co-defendant] visibly and audibly, in greater or less measure, were clearly involved. The patterns of their criminality were plainly established. There is, in our view, no arguable substance in this ... ground of appeal ...” The Court of Appeal then dealt with a further ground of appeal. Three alleged co-conspirators had been tried separately from the applicant and his co-defendants, and in the course of their trial, they had applied for certain prosecution disclosure. The judge ordered disclosure, and the prosecution was unwilling to comply. As a result, the prosecution offered no evidence against all the defendants in that case. The applicant, unaware of the nature of the undisclosed material that caused the collapse of the prosecution in the co-conspirators' case, claimed that if he had been tried with the three other men (as might have happened), the result would have been an abandonment of the prosecution against him. He also claimed that evidence of events in October 2002 (concerning the supply of ecstasy tablets to one of the co-conspirators) should not have been included in the prosecution case against him. The applicant asked the Court of Appeal to investigate the nature of the disclosure that the prosecution had declined to make in that case, with a view to ordering its disclosure for the applicant's own appeal if the court considered it would have assisted his defence. The Court of Appeal replied: “We have looked at transcripts of the relevant public interest immunity hearings in question in the [other] proceedings and, in the absence of the [applicant and his counsel], we have heard submissions about the matters referred to in them from [counsel] on behalf of the prosecution. [Counsel] was also the lawyer in charge of this prosecution and familiar with, and closely involved throughout in, the process of prosecution disclosure. Having explored the matter thoroughly with him, we are satisfied that none of the matters that led to the collapse of the prosecution in the [other] case in any way overflowed into or tainted the conduct of the police investigation in this case. The two investigations, though overlapping in relation to one or more overt acts of supply [of drugs], were conducted by two entirely separate police teams, separately directed and located, notwithstanding that institutionally they form part of the National Crime Squad. Accordingly, we are satisfied that there is no arguable case for the grant of leave on this proposed ground.” Leave to appeal against conviction was refused on 4 November 2003. A review of the domestic law on disclosure of evidence by the prosecution can be found in the Court's judgment in the case of Edwards and Lewis (Edwards and Lewis v. the United Kingdom, nos. 39647/98 and 40461/98, §§ 31 – 39, 22 July 2003; confirmed by the Grand Chamber on 27 October 2004). The duty of primary disclosure is contained in Section 3 of the Criminal Procedure and Investigations Act 1996 (“the CPIA”), and requires the prosecution “to disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused”, or give a statement that there is no such material. The provision as to a defence statement is at Section 5, and requires the defence, after primary disclosure under Section 3, to give a defence statement to the court and prosecutor “(a) setting out in general terms the nature of the accused's defence, (b) indicating the matters on which he takes issue with the prosecution, and (c) setting out, in the case of each such matter, the reason why he takes issue with the prosecution.” The prosecution's duty of secondary disclosure derives from Section 7, and requires the prosecution, after the accused has given a defence statement under Section 5, to “disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given under Section 5...”, or to give a written statement that there is no such material. The review by the trial court of the prosecution's disclosure (referred to at § 39 of the Chamber's judgment in Edwards and Lewis) is governed by Section 8 of the CPIA, which provides for the possibility of a defence application to the court for disclosure where the defence have reasonable cause to believe that there is prosecution material which might reasonably be expected to assist the defence as disclosed by the Section 5 statement. The provisions of the CPIA replaced the earlier, common law rules on disclosure. In November 2000, the Attorney General issued Guidelines on the Disclosure of Information in Criminal Proceedings which set out in more detail the way in which primary and secondary disclosure, and defence disclosure, should operate. In R v. H and R v. C ([2004] UKHL 3) the House of Lords noted that “In some countries provision is made for judicial oversight of criminal investigations. That is, for better or worse, entirely contrary to British practice. Instead, the achievement of fairness in a trial on indictment rests above all on the correct and conscientious performance of their roles by judge, prosecuting counsel, defending counsel and jury”.

train

001-68175

ENG

ROU

CHAMBER

CASE OF PARTIDUL COMUNISTILOR (NEPECERISTI) AND UNGUREANU v. ROMANIA [Extracts]

Violation of Art. 11;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

9. The first applicant is a political group which was refused registration as a political party in a judgment delivered by the Bucharest Court of Appeal on 28 August 1996. The second applicant is its chairman. 10. On 23 March 1996 the PCN was founded at a national conference chaired by the second applicant, at which its constitution and political programme were adopted. The relevant parts of the constitution read as follows: “The PCN shall respect national sovereignty, the territorial integrity of the State, its legal order and the principles of democracy. None of its members shall defame the country and the nation, promote war and national, racial, class or religious hatred, encourage discrimination, territorial separatism or public violence, or engage in obscene and immoral activities. The PCN is a free association of citizens who support political pluralism, uphold the principles of a democratic law-based State and strive to defend their own interests without denying those of others. Aims Article 1: The PCN shall express, represent and defend the political interests of the workers, without any distinction based on ethnic origin, sex, age, profession, belief or opinions. 'Workers' means all those who earn their living by working, regardless of activity ... With a view to ensuring a constant increase in workers' living standards, the PCN shall act within the law, using any means lawfully available to all political parties, to gain political power in order to establish a humane and democratic society. ... Article 20: The PCN is not the successor of the former Romanian Communist Party, with which it has no connection; it represents the continuation of the resistance against the Communist Party prior to 1989. Being founded by and composed of persons who were not members of the former Communist Party, the PCN emphasises that none of the qualities with which the former Communist Party was credited, or the criticisms that party aroused, should be attributed to it.” 11. In its political programme, adopted on 23 March 1996, the PCN stated that its aims were to defend workers' interests and to adhere to the essence of communist doctrine, based on the following fundamental principles: non-exploitation of certain persons by others or by the State; social justice based on labour and proper qualitative competition; and genuine democracy capable of securing the rights of the majority through free elections in which all political tendencies should be allowed to take part. It deplored what it called the antisocial and anti-working-class direction in which Romanian society had moved since the overthrow of the previous regime in 1989, and the country's transformation into a “colony of the European and global neo-colonialist empires”. The programme also contained the following political ideas: “The thesis underlying all policy and all doctrine is that the main advantage in politics is number. Those who are greatest in number are always right, irrespective of the way they think or act, and this is constantly being borne out, as, for example, on 22 December 1989 when the anti-working-class, antisocial and antinational counter-revolution emerged victorious in several European countries. The starting-point of all workers' action has been the desire to change what is evil; in practice, only what is good has changed, and almost completely. What do we mean by good? ... During its years of socio-economic practice in the territory of former Dacia[], socialism achieved goals for the masses – despite the errors, excesses, failings and abuses on the part of the former Communist Party bourgeoisie – which workers cannot abandon or forget: the highest material and spiritual living standards in history; the highest level of culture and civilisation in history ...; the broadest and most extensive democratic legal framework ... The PCN is a workers' revolutionary political group that acts in an organised, conscious manner within the constitutional framework to eradicate the effects of the counter-revolution and to resume building the most humane and democratic society ever known – socialism. Regardless of its position in relation to the other political forces, [that is, whether it is] involved in the exercise of power and the administration of the State, the PCN will strive to attain such goals as may ensure the protection of the interests of the masses.” 12. On 4 April 1996 the second applicant, as the PCN's representative, applied to the Bucharest County Court to enter it in the special register for political parties. 13. By a decision of 19 April 1996, the court refused the application as being ill-founded. The relevant passages of the reasoning of the decision read as follows: “In support of the application to register the party, a number of documents have been filed: a list of the party leaders, a list of its founder members, the constitution governing its organisation and functioning, its political programme, the lease for its headquarters, evidence of its financial resources and its constitutive instrument, namely the minutes of the national conference held on 23 March 1996. It appears from an examination of the documents in the file that the party's constitution, in the chapter setting out its aims, ... states that it strives to gain political power in order to establish a humane and democratic society. It therefore follows from its constitution and political programme that the party pursues the aim of establishing a humane State based on communist doctrine, which would imply that the constitutional and legal order in place since 1989 is inhumane and not founded on genuine democracy. The party is therefore in breach of Article 2 §§ 3 and 4 of Legislative Decree no. 8/1989, which provides that 'the aims of political parties must be based on respect for sovereignty, and that the means employed to achieve them must be in accordance with Romania's constitutional and legal order'.” 14. On 6 July 1994 the applicant appealed against that decision to the Bucharest Court of Appeal. In a judgment delivered on 28 August 1996, the Court of Appeal dismissed the appeal on the ground that the assessment made in the decision had been correct. It finalised the text of the judgment on 21 October 1996 and sent it to the Bucharest County Court to be archived. The second applicant states that he learned of the reasons for the judgment on 13 November 1996. The relevant paragraph of the reasoning reads as follows: “As to the final ground of appeal, concerning the merits of the case, the first-instance court was correct in considering the [PCN's] constitution to be in breach of Legislative Decree no. 8/1989 with regard to the country's constitutional and legal order. Accordingly, the Court dismisses the complaint as being ill-founded.” 15. On 28 May 1997 the Procurator-General of Romania informed the second applicant that he could see no reason to lodge an application (recurs în anulare) to have the judgment of 28 August 1996 quashed. 16. The second applicant lodged an application to set aside (contestaţie în anulare), which the Bucharest County Court dismissed as being out of time on 5 December 1997. 17. After 1997 the second applicant continued to express his political opinions in the newspaper Pentru socialism (“For Socialism”), of which he was the editor. On 13 August 1998 he published an article entitled “The communist manifesto”, which proclaimed his attachment to communist doctrine and criticised both the direction taken by the Communist Party leaders before 1989 and the policy pursued by successive governments since then. A large number of articles which the second applicant published in the newspaper in 1998 and 1999 contained slogans such as “Workers of all countries, unite!”, “The struggle continues!” and “Long live socialism!”. In one article he stated that, once in power, he would “accept only those who accept[ed him]”. 18. In 2000 the second applicant published a book, The anti-socialist, anti-working-class and antinational counter-revolution, in which he replied to about a hundred questions from a journalist. In December 2003 he sent the Court a copy of the book. In it he set out his political vision, outlining his commitment to communist doctrine and the working classes and describing Marx as the greatest political philosopher of all humanity; he also criticised both the authorities' gradual betrayal, in his view, of communist ideals prior to 1989 – while praising former President Ceausescu – and the policy pursued by those in power after that date. He stated that, unlike the pre-1989 communist regime, he was in favour of free, multi-party elections in which all the political forces could take part, except extremists and fascists, and voiced his support for a form of political competition based on respect for others and their political views. Among other things, he referred to the difficulties encountered since 1989 in finding sufficient members to register the PCN and to the fact that the party was not well known in Romania, particularly among those for whom it was primarily intended, the peasants and workers. 19. Arguing that socialism had in the past been the subject of frequent “attacks” designed to destroy it, examples being the events in 1968 in Prague, 1978 in Poland and 1985 and 1993 in Russia, the second applicant stated in conclusion to his reply to a question from the journalist: “As long as there are still capitalist, imperialist and religious brutes in the world, whose main aim is to enslave others, the conditions for further internal and external activities against socialism will continue to exist, ... [socialism] being a fundamental idea and belief of the people; remember the endless succession of attacks against the forces of good in fairy tales ... These attacks will not cease until the hideous and parasitic farmyard fowls, who commit crimes in all places and at all times, have been destroyed.” 20. He stated in the book that the political system would in time become structured according to social class, that the PCN sought to represent the interests of the peasants and workers, and that a democratic parliament should reflect the country's social structure, with the two classes in question holding the vast majority of seats according to their share of the population. 21. Arguing that capitalism encouraged theft, the second applicant stated in the book that the masses, who despised wealth, would move away from the post-1989 political parties and, over about fifty years, towards the PCN. 22. With regard to property, he stated that it was for the people to decide whether privatisation was beneficial and that “the rich” could enjoy possessions they had obtained by lawful means. As to the restitution of property that had passed into State ownership during the communist regime, the second applicant considered that property confiscated for political reasons should be returned, although entire buildings and factories should not, because the nationalisation measures carried out after 1947-48 had been acts of social justice. 23. At the material time the relevant provisions of Legislative Decree no. 8/1989 on the registration and operation of political parties, which was published in the Official Gazette on 31 December 1989 and repealed by the Political Parties Act (Law no. 27 of 26 April 1996), read as follows: “Political parties may be freely founded in Romania, with the exception of fascist parties or those that spread ideas contrary to the constitutional and legal order. No other objection, whether based on race, religion, nationality, level of culture, sex or political views, may hinder the formation and operation of political parties ...” “... 3. The aims of political parties and public-interest organisations shall be based on respect for the nation's sovereignty, independence and territorial integrity and for democracy, in order to ensure the exercise of citizens' rights and freedoms and to uphold the dignity of the Romanian nation. 4. The means employed to achieve the aims of political parties and public-interest organisations shall be in accordance with Romania's constitutional and legal order.” “Political parties shall be registered with the Bucharest County Court, which shall give a decision within five days as to whether they have been lawfully constituted. An appeal against the decision of the Bucharest County Court shall lie to the Supreme Court of Justice ...” 24. Article 37 § 2 of the Constitution provides: “Any political parties or organisations which, through their aims or activities, campaign against political pluralism, the principles of the rule of law, or the sovereignty, integrity or independence of Romania, shall be unconstitutional ...” 25. Section 3 of the National Security Act (Law no. 51/1991) provides: “The following shall constitute a threat to the national security of Romania: ... (h) the act of provoking, organising, carrying out or supporting, by whatever means, any totalitarian or extremist action inspired by communism, fascism, ... racism, anti-Semitism, revisionism or separatism that might jeopardise in any manner the unity and territorial integrity of Romania; and the act of encouraging activities that might undermine the rule of law.” Section 13 provides that, in cases referred to in section 3 above, the public prosecutor may allow certain measures to be taken, such as phone-tapping, in order to obtain further information about the acts in question. By section 19, the formation and organisation of intelligence networks capable of undermining national security is an offence punishable by two to seven years' imprisonment.

train

001-92416

ENG

POL

CHAMBER

CASE OF GODYSZ v. POLAND

Violation of Article 5 - Right to liberty and security

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

5. The applicant was born in 1951 and lives in Siemanowice. 6. On 28 April 2005 the applicant was arrested on suspicion of bribery, several counts of evasion of tax and customs duties and several counts of forgery, committed in an organised criminal gang. 7. On 29 April 2005 the Katowice District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. The court referred to the complexity of the case and the considerable number of accused. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence and induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence. 8. Later, twenty-one other persons were detained and charged in connection with the investigation against the applicant. 9. The applicant’s appeal against the detention order, like his further appeals against decisions prolonging his detention and all his subsequent numerous applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeal, he argued that the charge against him was based on unreliable and contradictory evidence. 10. In the course of the investigation, the applicant’s detention was prolonged on 22 July 2005, 20 October 2005, 20 January 2006, 29 March 2006, 28 June 2006, 27 September 2006, 4 January 2007 and 4 April 2007. 11. On 17 April 2007 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with bribery, several counts of evasion of tax and customs duties, several counts of forgery and membership of an organised criminal gang. The bill of indictment also concerned twenty-one other persons. 12. Further decisions extending the applicant’s detention were taken on 25 July 2007, 24 October 2007 and 27 February 2008. In a decision given on 24 October 2007, the Katowice Court of Appeal Court criticised the manner in which the investigation had been conducted. It also referred to delays in the proceedings which amounted to six months. It acknowledged that almost all the evidence had been gathered and that the risk that the applicant would tamper with evidence had been marginal. In a decision given on 27 February 2008, the Katowice Court of Appeal ruled that the applicant could be released on bail on payment of security of 800,000 Polish zlotys. The applicant requested the court to reduce the amount of bail. On 28 March 2008 the court reduced it to 300,000 Polish zlotys. The applicant paid the security and he was released on 30 April 2008. 13. The criminal proceedings are currently pending before the firstinstance court. 14. The relevant domestic law and practice concerning the imposition of detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 15. On 6 June 2007 the Committee of Ministers adopted on the Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). Noting that the number of cases in which the European Court had found similar violations was constantly increasing. It concluded that the number of the Court’s judgments finding Poland in violation of Article 5 § 3 of the Convention revealed a structural problem. A more detailed rendition of the 2007 Resolution can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor v. Poland, no. 45219/06, § 34, 3 February 2009; not final). 16. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland, stressing that examples of cases brought to the Court where pre-trial detention had lasted between 4 to 6 years were not uncommon. The Commissioner urged the Polish authorities to review the application and functioning of pretrial detention in Polish law. A more detailed rendition of the relevant parts of the memorandum can be found in the above mentioned Kauczor judgment (see Kauczor v. Poland, cited above, § 35).

train

001-57674

ENG

SWE

CHAMBER

CASE OF CRUZ VARAS AND OTHERS v. SWEDEN

No violation of Art. 3;No violation of Art. 8;No violation of Art. 25-1

C. Russo;Gaukur Jörundsson;N. Valticos

12. The applicants are Mr Hector Cruz Varas (the first applicant), his wife Mrs Magaly Maritza Bustamento Lazo (the second applicant) and their son Richard Cruz, born in 1985 (the third applicant). All of the applicants are Chilean citizens. 13. The first applicant came to Sweden on 28 January 1987 and applied the following day for political asylum. He was joined there by the second and third applicants on 5 June 1987. 14. On 22 June 1987 the first applicant was interrogated by the Police Authority (polismyndigheten) of Växjö as to his reasons for requesting political asylum. As regards his background in Chile he provided the following information. In 1968 he became a member of the Radical Party’s Youth Federation. He joined the Socialist Party in 1970 and remained a member after the coup d’état in 1973 as a result of which the coalition Government of President Allende was replaced by the regime under the Presidency of General Pinochet. In 1971 he also became a member of the FDR Party (the Revolutionary Workers Front) of which he was the secretary until 1973 and worked to create opposition against the Pinochet régime. In 1976 he was arrested and taken to a military camp where he was detained for two days. He joined the Mormons in 1976. From 1976 to 1982 he remained passive politically. In 1982 he moved to Villa Alemana and became involved in distributing leaflets for the Democratic Front. He participated in many demonstrations and two general strikes (August 1985 and 4 June 1986). He was arrested in 1973 and 1974 for breaking a curfew. He was also arrested in August 1985 by agents of the CNI (Central Nacional de Investigaciones de Chile) for having entered a prohibited area on a bicycle. He was released after four hours. Apart from these incidents he had been left alone by the Chilean police and military. He gave as his reasons for leaving Chile the fact that he could not keep his house in Villa Alemana where he lived with his family and his poor financial situation resulting from lengthy periods of unemployment. He was not able to pay his mortgage and chose to sell the house to avoid an enforced sale. 15. In a memorial to the National Immigration Board (statens invandrarverk - "the Board") dated 27 July 1987 the first applicant, through his legal counsel, commented upon the above interrogation. He stated that in 1976 he had been arrested with four friends and ill-treated. They were not allowed to sleep and were obliged to stand naked. One of his friends was beaten on this occasion. 16. On 21 April 1988 the Board decided to expel the applicants and prohibited them from returning to Sweden before 1 May 1990 without the Board’s permission. It also rejected the applicants’ requests for declarations of refugee status and travel documents. The Board considered that the applicants had not invoked sufficiently strong political reasons to be considered as refugees under Section 3 of the Aliens Act (utlänningslagen, 1980 : 376) or the 1951 Geneva Convention relating to the Status of Refugees. 17. The applicants appealed to the Government. The first applicant did not invoke any new circumstances. He pointed out that he did not receive all of the letters sent to him from Chile and could not therefore submit any documents from Chile in support of the appeal. 18. The appeal was rejected by the Government (Ministry of Labour) on 29 September 1988. 19.The applicants then alleged to the Police Authority of Varberg that there were impediments to the enforcement of the expulsion order and requested that their case be referred to the Board. The first applicant was interrogated by the Police Authority of Varberg on 19 October 1988. He stated that he had new reasons to invoke in support of his application for asylum. He considered that he ran the risk of political persecution, torture and possibly death, if he returned to Chile, because of his continued involvement in Sweden with a political group known as the Frente Patriótico Manuel Rodriguez (FPMR) - a radical organisation that had tried to kill General Pinochet. He had started to work for this group after his arrival in Sweden. He feared that his activities in Sweden which began in February 1988 and included the distribution of leaflets to support political prisoners in Chile would be known to the CNI. 20. The Police Authority of Varberg decided on 21 October 1988 to reject the applicants’ request and to enforce the expulsion decision by sending them by plane to Chile on 28 October 1988 at 16.00 hours from Landvetter Airport in Gothenburg. An appeal against this decision was rejected by the Board on 26 October 1988. On 27 October 1988 the applicants again requested that their case be transferred to the Board. On 28 October 1988 the Police Authority refused this request, and the applicants’ appeal against refusal was rejected by the Board on the same day. In his letter of appeal Mr Cruz Varas, through a new legal counsel, stated that he had contributed signed articles in the FPMR newspaper (El Rodriguista) and had expressed himself critically about the regime in Chile. He also submitted a certificate by Juan Marchant of the Varberg FPMR support group dated 23 October 1988 in which it was said that he and his family were politically active in the group. He further submitted copies of two newspaper articles dated 21 and 24 October 1988 concerning a demonstration in Varberg against the expulsion of the applicants. In these articles it was stated that Mr Cruz Varas had hidden friends sought by the police in his house in Chile and that he was active for FPMR in Sweden. 21. The expulsion decision could not be enforced as planned since the applicants did not appear in time for the scheduled departure. 22. In a letter dated 30 December 1988 to the Police Authority of Varberg the applicants again alleged that there were impediments to the enforcement of the expulsion order. On 13 January 1989 Mr Cruz Varas was interrogated by the Police Authority of Varberg in the presence of a new counsel. The official record of the interrogation contains the following passage (translation from Swedish): "Cruz wishes especially to add to his statements the following information with regard to the punishments he has been subjected to in connection with his being held prisoner in Chile. Asked about the times and places of these imprisonments Cruz states that he was imprisoned the first time in Santiago in 1973. He was arrested with all the others who were at the Codelco office (a large mining company) on an occasion soon after the coup. They were taken to a military centre and badly treated. Cruz has not talked about this earlier because he was of the opinion that the police in Sweden co-operate with the Chilean police. He no longer holds this view. Since the above-mentioned event lies far back in time Cruz was encouraged to begin his account by relating the most recent occasion on which he was subjected to persecution. He then stated that in January 1987 he was stopped when he was walking along a street called Calle Troncal. It was then that two men stepped out of a car and pulled him into a car which then drove to some sort of security building. During the journey he was hit in the ribs. He was taken down a long stairway and into some kind of investigation room. He was photographed after he had removed his clothes. He was hit, mainly on the head. He was hung up by his feet and photographed in this position. He was asked the whereabouts of Luis Herrera but was unable to answer. Luis Herrera was chairman of the free humanist thinkers. Cruz did not wish to relate more about the treatment on this occasion. He did however add that they told him that they were going to shoot him later the same day. He was blindfolded and after that he felt that someone was pressing the barrel of a weapon against his body but no shot was fired. Asked why they did this Cruz said that they gave as a reason that he was a communist, which he has never been. After Cruz had been scared by the incident with the weapon he was released and after that was treated kindly by a man who was also present. The man told Cruz that things would be much better if he co-operated with the police. When asked if they were in a police station Cruz said that they were in a security building. They also mentioned to Cruz the names of the members of his family. At 4 a.m. he was driven away and was released after being held in custody for about 14 hours. Cruz has not mentioned this incident earlier. Asked why he had not done so in spite of a number of police interrogations, numerous contacts with counsel and in spite of the fact that many documents with information about him had been submitted to the authorities, he replied that he had been betrayed many times earlier and he could not therefore trust anyone. In August 1986, he was somewhat uncertain about the exact date, Cruz was walking along a street in Valparaiso after having attended a neighbourhood committee meeting. Cruz was on his way to catch a bus to Viña del Mar. Four men came in a car, threatened him with a knife against his throat and apprehended him. They were civilians in a civilian vehicle. They travelled in the direction of Viña del Mar. A black blindfold was placed over his eyes and then they took him out of the car and kicked him. Cruz protected himself as well as he could by putting his hands over his head and crotch. They insulted him too. They told him he should give up struggling against the Government. They said they knew of Cruz and that he ought to stop; otherwise this could be the last day of his life. Even his family was threatened. These events took place in a building Cruz was taken to but he knows nothing about it because he was blindfolded. On this occasion he was subjected to torture through electric shocks against his testicles. He was even subjected to shocks by electrodes in the anus and testicles. After having been subjected to the above Cruz was driven a bit along the road between Valparaiso and Viña del Mar before he was set free on this road. He was also near to being knocked down by a bus in connection with his being released from the car. The whole sequence of events took place within a period of 15 hours. About a month later Cruz found his dog, three years old, dead under such circumstances that he suspected that it was the CNI or ACHA [Accíon Chilena Anticomunista] that lay behind it. The dog had been impaled on a metal fence that surrounded the house where Cruz lived. The conclusion Cruz drew was that he was subjected to this as a result of his activity in youth groups and friendship committees. Cruz had worked for a democratic development of Chile. Every time Cruz was arrested the ‘police’ knew what he had been working for. The interrogation so far has been translated to Cruz who subsequently wished to point out that the committees were neighbourhood committees and not friendship committees and he also wanted to say that the reason why he did not trust anyone was just because the police knew so much about him when they held him in custody. Without the presence of the interpreter or counsel, in accordance with Cruz’s wishes, he stated that on the occasion when he was arrested by persons he thought were from the CNI in 1986 he was also subjected to something else that he tried to suppress and which he finds very painful to talk about. After he had been tortured among other ways by electrodes in his anus and testicles, he was placed on a bed lying face down and his hands and feet were tied to bedposts. In this position one or more men attacked him sexually. Cruz was at that point dazed from the previous treatment and cannot therefore say with certainty if there was more than one person. (This section without the presence of the interpreter or counsel. Cruz can make himself understood in Swedish.) In addition Cruz has not been able to express the problems he has had as a probable result of the treatment he was subjected to. He has difficulties eating with cutlery made of metal. These problems manifest themselves with pains in his teeth on every occasion that his teeth come in contact with a metal object. This problem has become less intense but has been very intense earlier. It has thus been a question of two different types of complaints. Firstly Cruz has experienced general pain in his teeth and secondly he has had problems with metal objects. Cruz first experienced the problem with his teeth after electric shock torture in 1973. He was subjected to this form of torture on a total of 4 or 5 occasions. After the torture in 1973 Cruz also had many headaches. He has also noticed that since then he has had lapses of memory. Otherwise Cruz has nothing more that he personally wishes to relate other than the above. When asked if he had anything to add on his political involvement he stated that he had already accounted for it but that he could now present new documents which support the previous statements. Three certificates were handed over. One from Nicolas Reyes Armijo, President of the Cultural Centre for Freedom in Belloto, one from Ricardo Poblete Muñoz, co-ordinator in the organisation of neighbourhood committees, as well as a certificate from the Commission on the Rights of Young People. The above was translated to Cruz who thereafter had no wish to refer to further details in the case. He has no objection to the above description ... ." 23. The first certificate referred to in the record was dated 1 November 1988 and consisted of a statement by the President of the Centro Cultural "Libertad" (Cultural Centre for Freedom) in El Belloto. It stated that Mr Cruz Varas took part in the activities of that institution until he left Chile and that his psychological and physical integrity would be threatened if he were to stay in his home country. It further indicated that he was obliged to leave the country for political reasons. A second certificate of 23 November 1988 by an official of the Comisión de Derechos Poblacionales (Peoples’ Rights Commission) in Valparaiso stated that he was persecuted by the dictatorship from November 1983 to August 1986. He was active in the socialist youth group where he was the representative and leader of the revolutionary society for Libres Pensadores Humanistas "Artesanos de las Letras" (Writers and Humanist Free Thinkers) in Villa Alemana. The certificate also stated that he had been arrested in Santiago in 1973 and twice in La Serena in November 1974 and September 1977; that he was threatened with death in Viña del Mar in 1983; that in 1986 and January 1987 he was arrested by civilians and severely beaten. A third certificate dated 20 November 1988 by the Comisión de Derechos Juveniles (Commission on the Rights of Young People) in Quilpue contained similar statements. 24. On 13 January 1989 the Police Authority referred the question of the enforcement of the expulsion order to the Immigration Board. On the same day the Police Authority decided that Mr Cruz Varas should report to the police twice a week because of the danger that he would evade enforcement of the expulsion. By letter of 2 March 1989 he submitted a medical opinion dated 20 February 1989 to the Board issued by Mr Håkan Ericsson, an assistant researcher at the Institute of Forensic Medicine at the Karolinska Hospital. Mr Ericsson stated that Mr Cruz Varas had declared that he had been ill-treated in prisons in Chile and that he had shown a deformation of his upper left collar-bone, a scar on his left upper arm and a scar on the left of his chest. 25. The Board referred the case to the Government on 8 March 1989, expressing the opinion that there was no impediment to the enforcement of the expulsion order. The Board found that Mr Cruz Varas had the opportunity on several occasions to present his case to the Police Authority and to it. However, on these occasions he had given contradictory information and had now radically changed his story. It concluded that even if it took into account the difficulties that a victim might have to describe what he had been subjected to there was no reason to believe his allegations. 26. On 11 August 1989 Mr Cruz Varas submitted a medical report to the Government which had been prepared by a doctor of forensic medicine, Dr Sten W. Jacobsson. The report dated 9 May 1989 stated, inter alia, as follows (translation from Swedish): "The patient Cruz Varas Hector born on 9 December 1948 has seen me on account of alleged torture in his home country. He has told a story which has been simultaneously interpreted and which is recorded in Annex I. When examining the patient I have observed marks on the left collar-bone area and on the left upper arm which are referred to in the examination protocol ... . In view of the above I make the following statement: That the patient has said that he has been assaulted; that he has, as objective evidence, shown, firstly, the marks of a collar-bone fracture following violence with a blunt instrument and, secondly, a typically rounded and colourless burn-mark on the inside of the left upper arm (the wound has, according to forensic medical practice, the typical appearance of a burn caused by a hot pipe); that he has subjective symptoms of troubles following genital torture, anal torture and sexual abuse in the anus; that, when he describes this, he reacts, in my experience, in such a way (crying, shaking) that it has to be assumed that he has experienced this; that, to summarise, nothing has been established which contradicts the assumption that Hector Cruz Varas has been subjected to such torture and sexual abuse as he alleges." Annex I gave the following information: "The patient speaks about himself first and then about his father who was the secretary of the Partido Socialista. They lived in the town of El Salvador in Chile. His father was arrested during the military coup in 1973 and was brutally tortured and released after two months. The patient was then 24 years old. He was also arrested and hit but, as he himself states, he was not directly tortured. They moved to the town of Lazalena. The patient was also a member of the Partido Socialista which is a party prohibited in Chile. The patient was persecuted during the seventies and eighties. His own home was subject to a search in 1981. He was hit by the police and taken to a security building where his eyes were bandaged and he was hit by hands and was burnt on his left arm with a red-hot pipe. He participated in a demonstration against ... a coin which the Government had introduced. He was arrested later and was tortured by electrification. In 1986 he was subjected to such torture on his genitals. He was sodomised with an electrified rod which caused him great pain and one can see on the patient’s face when he speaks of this torture that he was clearly in pain, he is near to tears. He was raped and sodomised several times which caused him to faint. He is very pained by telling this and his upper lip shakes and he perspires profusely. He has never told this to his wife and he now says ‘I cannot take it any more’. The reaction is very typical of self-experienced humiliating sexual torture. Following a question the patient says that he has for a long time after this event had great problems of impotence. He thinks that it has been better in Sweden. He takes vitamin E against these problems. In November 1987 his dog was found dead, hanged on an iron fence which surrounded his house. There was a note stating that this would happen to all communists. It was signed by ACHA which was the same as if it had been CNI. In 1987 he therefore left Chile. I ask what would happen if he had to return to Chile. The patient is then very upset and says that he cannot return and starts to cry; he is convinced that they will arrest him at the airport and continue persecuting and torturing him." 27. A further medical opinion was produced in evidence prepared by Dr Søndergaard, a specialist in psychiatric diseases at the Karolinska Hospital. That opinion, dated 28 June 1989, stated that, from the manner in which he presented his story and his reactions while telling it, there were strong indications that he suffered from a post-traumatic stress syndrome. Dr Søndergaard found him to be considerably shaken and on the borderline of what he could tolerate. 28. The following description of the political activities of Mr Cruz Varas was given by his lawyer in a letter to the Government of 11 August 1989: "The appellant has been politically interested and active in different left-wing organisations ever since the sixties and by the end of the sixties he was involved with MIR (Movimiento de la Izquierda Revolucionaria). During the seventies he was active primarily in the Socialist Party. About 1983 he came into contact with people whom he believes belong to Frente Patriótico Manuel Rodriguez. Together with these persons he has taken part in certain military activities. As a result of his political work he was tortured in 1973, 1976, 1981, 1983, 1986 and 1987. The reason why all these details are not found in the police interrogation is that the interrogation concentrated on events during the eighties. However at the end of the interrogation it is mentioned that he had been tortured four or five times. When asked to account for his activity with the ‘Front’ he stated the following: some time during 1983 he made contact by chance with a person who was nicknamed the ‘Gorilla’ because of his heavy build and hair growth. Hector knew the Gorilla from the seventies when both of them were active in MIR. When they met again they had not seen each other for more than a decade but they immediately recognised each other. They met at a parents’ meeting in a school in Villa Alemana which the Gorilla’s daughters attended. ... After a while his acquaintance with the Gorilla led to clear sabotage activities. The Gorilla held a senior post at the town’s Electricity Board. Hector has a knowledge of explosives after having worked in mining. Together they used explosive devices to destroy power lines around the town. They complemented each other well: the Gorilla indicated the targets and planned the operations, Hector acquired the dynamite by travelling to the town of San Salvador where he has many childhood friends. He was able to buy dynamite from his friends who work in the mine. The dynamite was smuggled out by the workers. This activity continued until some time in 1986. After this Hector did not participate in any further sabotage operations since he felt he was under too much observation. However he believes that the Gorilla continued the activities since they had a fairly large stock of dynamite. He has also read in the newspapers about power lines being sabotaged after he had discontinued the activity himself. The Gorilla has tried in different ways to get him to participate in more advanced military projects. They have often discussed the possibility of trying to arm the populace and start a school for military training. They have drawn up detailed plans of how they would obtain weapons. These plans began as a discussion about ‘how one could do even more ...’. Among other things concrete plans were drawn up on how to attack a carabineer barracks. The purpose of the attack would be to get hold of weapons which could later be used in other kinds of attacks. Nothing came of these plans because Hector was arrested in 1983. During this arrest the police asked a wide range of questions; inter alia, questions were asked about places which were to be meeting points for the participants in the attack. The attack against the carabineer barracks never took place. Hector found out instead that another attack had been carried out against another carabineer barracks. When asked to describe more details about the plan to attack, Hector said that he and the Gorilla were to carry the stolen weapons to the churchyard and bury them there. When the time was right, the weapons were to be fetched from the churchyard by other persons. The Gorilla never mentioned Frente Patriótico Manuel Rodriguez by name, but Hector understood that the Gorilla had a relatively central position in the organisation. The Gorilla himself only mentioned that he was now active in the Communist Party. As an example of the Gorilla’s central position Hector mentioned that a short time before the assassination attempt against Pinochet the Gorilla asked Hector if he would consider driving a lorry on a very important occasion. Hector gave a hesitant reply and the suggestion was dropped. In retrospect Hector has realised that it could possibly have been the vehicle that would be used on the occasion of the assassination attempt. Hector has not taken part in any direct military operations. On one occasion however he was instructed to drive a lorry to a particular spot. He was to park the lorry there and then fetch another lorry. He was given no more information on that occasion. However this plan was cancelled for security reasons. Shortly thereafter Hector read in a newspaper that an arms cache had been discovered right next to the place where he was to park the lorry. A few months after he had met the Gorilla by chance, an old friend turned up with whom he had worked in a resistance cell in 1973-74 in the town of La Serena. The friend immediately said that he was in trouble with the police and that he needed a place to hide. Hector offered to give him shelter and they went straight back to Hector’s home. Later in the evening two other friends joined them, all three armed with pistols. Hector also thought he saw sub-machine guns of the kind used by the Chilean police. Hector never found out why the friend was on the run; as he said, ‘it was better not to know anything’. One day, on leaving Hector’s house, the friend was arrested. Hector was informed of the arrest by an acquaintance who had previously seen Hector with the friend who was in hiding. The two other men fled from Hector’s house immediately. After this Hector moved to Santiago and supported himself as a construction worker. He remained in Santiago between roughly September 1984 and December 1985. He rented out his house through a fake owner and was informed that, shortly after, the house was searched and as a result of the search the tenants moved. The fake owner found new tenants to live in the house for the rest of the time. Since no further searches were carried out Hector did not think it was dangerous to move back to Villa Alemana. Thus, in December 1985, he returned there. When asked about the numerous ‘chance’ occasions when he met people who can be assumed to belong to the ‘Front’, Hector replied that he had also wondered about this. With regard to the Gorilla he felt it was pure chance that he met him. Hector is more hesitant about the second friend. Hector said that it could have been a chance encounter but that it could also have been a conscious attempt to bind him more firmly to the activities of the Front. Hector stated himself that because of his knowledge of explosives and as the owner of a remotely situated house he could be of interest to such an organisation as the ‘Front’. When Hector returned to Villa Alemana he felt he was being observed in different ways. He stated that he quite frequently encountered different types of salesmen who got in touch with him. ... During one of our conversations Hector said suddenly ‘there is something I have never talked about and something which I shall never tell’. I insisted that he tell me. A psychological struggle took place which lasted at least an hour. I tried to maintain the initiative all the time and to motivate Hector to tell his secret. Hector defended his position and said ‘I’ll never say it, not even if I am expelled will I tell it. I’ll only say it at the airport’. Finally Hector said that he had been in a poor state of mind for a long time in Chile and had taken large amounts of anti-depressants. After the torture of 1986 his nerves have been strained to the point of breaking and because of the internal confession tradition in the Mormon Church he sought out the highest ranking leader in the Mormon Church with the rank of Grand President and told him everything. He told him of his contacts with the Gorilla and also about the two other members of the Mormon Church whom he had introduced to the Gorilla. The conversations took place on several occasions. On the first occasion Hector took the initiative and therefore related relatively little, then the Grand President took the initiative and obtained more details. In January 1987 Hector was arrested and tortured. When he left the torture chamber he tried to get in contact with the two other members of the Mormon Church but they had both disappeared. He also tried to make contact with the Gorilla but he had also disappeared. Hector is subjectively convinced that all three are dead. He is also convinced that they have been killed as a result of his mistake in talking to the Grand President. Hector believes that the Mormon Church leader used his weak position and informed the Government about him and his friends. Hector cannot say with certainty when the three disappeared but says that the last time he met them was in December 1986. The torture in January 1987 in combination with self-accusation at having caused the death of the Gorilla and the two Mormons was a contributing factor to his leaving Chile a short while after that." 29. Medical reports drawn up by doctors in Varberg hospital dated 21 June 1989 and 5 October 1989 concerning the welfare of Richard Cruz Varas (the third applicant) were also submitted to the Government. These reports stated that Richard had personality problems and would in all probability suffer serious psychological harm if expelled from Sweden. 30. The first applicant also submitted a letter from the United Nations High Commissioner for Refugees’ Regional Office for the Nordic Countries dated 16 August 1989 stating, inter alia, that: "... a person who has been exposed to torture will in most cases have lasting effects of both a physical and psychological/somatic nature. For this reason, we should operate neither with time limits nor with degrees of torture when assessing a torture victim’s claim for refugee status." 31. In a letter of 5 October 1989, the same Office wrote: "Therefore we would like to point out that we believe that Mr Hector Cruz Varas ... should be protected against return to his home country; apart from the many mental/traumatic/humanitarian aspects involved, we are of the opinion that not only the 1951 Refugee Convention, but in particular the 1984 Torture Convention should be emphasised." 32. On 4 October 1989 Mr Cruz Varas was taken into custody by the Police Authority of Varberg following a decision by the Minister of Labour. The following day the Government (Ministry of Labour) found that there was no impediment under Sections 77 and 80 of the Aliens Act to the enforcement of the expulsion order against the applicants. 33. On 6 October 1989 the Board decided not to stop the expulsion and on the same day Mr Cruz Varas was expelled to Chile. His wife and son, however, went into hiding in Sweden. Their present whereabouts is not known to the Court. In August 1988 the state of emergency was lifted and in September 1988 exiles were allowed to return to Chile. On 5 October 1988 the Chilean people voted in a plebiscite to reject the candidacy of General Pinochet as President of the country. Presidential and congressional elections were then scheduled for December 1989. Following negotiations between the Government and opposition groups a referendum was held on 30 July 1989 resulting in the adoption of various constitutional amendments designed, inter alia, to render the presidential and congressional elections more democratic and reduce the continued influence of the armed forces in civilian life. The presidential election took place on 14 December 1989 resulting in the election of Mr Patricio Aylwin, a member of the former opposition Christian Democratic Party and leader of a 17-party alliance entitled "Coalition of Parties for Democracy". 35. In April 1989 the International Covenant on Civil and Political Rights (1966) was published in the Diario Oficial, the official gazette, thereby incorporating it into Chilean law. The State also ratified in 1988 the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the Inter-American Convention to Prevent and Punish Torture (1985) although with reservations in both cases. An Amnesty International report of October 1989, however, provides details of various cases of torture reported to Amnesty which allegedly occurred in 1989. 36. On 7 October 1989 Mr Cruz Varas arrived at the airport in Rio de Janeiro (Brazil), where he applied unsuccessfully for asylum. He was then put on a plane for Santiago where he arrived on 8 October. He did not have any identity documents and when he came to passport control he was taken aside and photographed. He was required to sign a declaration to the effect that he had been in Sweden for financial reasons and that he promised not to engage in any political activities in Chile. 37. He remained in Chile from 8 to 29 October 1989 and returned to his home in Villa Alemana. On 26 and 27 October he participated in political meetings, the latter in favour of the presidential candidate, Mr Aylwin. He alleges that on that occasion an unknown person approached him and threatened his family in Chile. During this period he claims that his brother-in-law was attacked in the street and badly injured by unknown persons. Two other brothers-in-law were stopped and searched by officials who asked them questions about him. 38. On 29 October 1989 he left Chile for Argentina and lived for a time in Buenos Aires. On 2 December 1989 and 7 March 1990 the Board rejected requests from Mr Cruz Varas to be allowed to return to Sweden. Although he was able to attend the hearing before the Court, his present whereabouts are unknown to it. 39. The Commission heard Dr Sten W. Jacobsson as a witness on 7 December 1989. His evidence is summarised in detail in paragraphs 49-57 of the Commission’s report. He is an associate professor (docent) of forensic medicine (rättsmedicin) at the Karolinska Institute and also works with the Red Cross assisting torture victims. He has twenty years’ experience in assessing scars and wounds and has been working with allegations of torture from Chile since 1985. 40. Dr Jacobsson testified that there was a very high probability that the first applicant’s story was true having regard to his wounds (injury to collar bone and burn mark) and his reactions when recounting his story. He spoke with considerable reluctance of the sexual torture he had experienced and sweated profusely. Dr Jacobsson considered that such a reaction indicated that he had really experienced such treatment. He also exhibited great fear at the prospect of returning to Chile. Dr Jacobsson pointed out that victims of sexual torture are often so damaged that they are not prepared to talk about it even to their husbands or wives. 41. Following the expulsion of Mr Cruz Varas the Government submitted a memorandum from the Swedish Embassy in Santiago dated 2 January 1990 which contains a report of an inquiry undertaken in accordance with a request from the Ministry of Labour for information regarding possible political activities of Mr Cruz Varas, and any political persecution to which he may have been exposed. The inquiry had been made on 20 December 1989 by Ms Jenny Malmqvist, Second Secretary at the Embassy, during a visit to Villa Alemana, accompanied by, inter alia, the President of the Commission of Human Rights at Valparaiso. The report concludes that, as regards political activities, all the representatives of political parties who had been questioned had said that they do not know Mr Cruz Varas. Neighbours who were questioned know him but were unaware of his involvement in any political activity. In support of the above the Government have also submitted affidavits from the Partido Radical, the Partido Socialista and the Partido Comunista. 42. As regards possible political persecution, the Government have submitted an affidavit by the President of the Human Rights Commission in Villa Alemana, Mrs Maria Teresa Ovalle, obtained by the Swedish Embassy in Santiago. It appears from the affidavit that Mr Cruz Varas is not known to the Commission and that consequently no persecution directed against him is known. The affidavit further states that the Commission has at its disposal complete registers of those who have disappeared, who have been tortured and who have been imprisoned in the fifth region of Chile since 1982. 43. In the proceedings before the Court the Government submitted a further affidavit from Mrs Ovalle dated 8 October 1990 in which she declared, inter alia, that Mr Cruz Varas has no connections with any political party or with any trade union; that there is no declaration registered at the Human Rights Commission in Villa Alemana regarding the detention of Mr Cruz Varas; that according to everyone who has been asked in the district where he lived he has never been politically active; that in all the inquiries made directly with persons who have participated in clandestine activities, he is not known; nor is he known by persons in prison in Valparaiso for their role in similar activities; that she was not aware of any explosions in Villa Alemana directed at railway lines and electric power lines which occurred in the period 1983-86 as alleged by the first applicant; that, following inquiries, he is not known by the various human rights bodies in Quilpue. The Government also submitted an affidavit dated 8 October 1990 by the National Board of the FPMR which declared that Mr Cruz Varas is not a representative of the organisation abroad and is not and never has been a combatant member of FPMR. They further disclaimed all responsibility for any action he may have taken in the name of the FPMR. 44. The applicants have submitted a medical report drawn up by Dr Mariano Castex (Professor of Psychiatry, University of Buenos Aires) following an examination of the first applicant in February 1990. The report includes the following statement: "As a conclusion one may state that Mr Hector Cruz Varas suffers a serious ‘post-traumatic stress disorder’ instilled in him as a consequence of the torture and ill-treatment suffered in Chile in the past years. The exposure to high insecurity, and the return to his native land, has increased the pathological dimension of his sufferings, and if arrangements are not made for an adequate psychological and psychiatric treatment, he might suffer from a worsening of his mental disorder with unforeseeable consequences not only for him, but for his wife and child, the latter badly needing a father if one reads carefully the report on the child." 45. A further psychiatric report dated 9 October 1990 was drawn up by Dr Søndergaard following a detailed examination of the applicant in September 1990. The report stated that the first applicant must have experienced "a stressful event of catastrophic proportions". It concluded that he showed the "obvious stigmata of a post-traumatic stress disorder". 46. The applicants have also submitted the following documents: - a report dated 18 January 1990 from a former Professor of Psychology at the University of Chile, Marcello Ferrada-Noli, currently researcher at the Karolinska Institute, Stockholm, which suggested that the first applicant might seek to resolve his problems by committing suicide; - a letter dated 20 October 1990 from Mr Sergio Bushman (European spokesman for the FPMR) which stated that it was not only the members of the FPMR who risked their lives in Chile but also those who collaborated with the organisation. He further stated that the risk of torture, imprisonment or assassination still existed for FPMR members during the present regime; - a Chilean newspaper cutting of 17 October 1984 describing an attempt to blow up a power line in a town ten kilometres outside Villa Alemana; - a letter dated 26 September 1990 from staff at the third applicant’s nursery school expressing the fear that his removal from Sweden may cause him permanent harm. 47. The Aliens Act of 1980 and Aliens Ordinance were in force until 1 July 1989 when the Aliens Act of 1989 entered into force. A new Aliens Ordinance was made under the 1989 Act. Under the 1980 Act, a decision of expulsion by the Board could be appealed to the Government whose decision was not subject to appeal. The Government’s decision was then transferred to a Police Authority for execution. If the alien contended, inter alia, that he would be exposed to political persecution or be sent to a theatre of war, the matter would be referred to the Board (Sections 85 and 86) unless the claims were manifestly ill-founded or did not merit consideration. If the Police Authority decided not to refer this question to the Board, an appeal lay to the Board. If the Board decided against the alien, the decision could be appealed to the Government. 48. Under the 1989 Act the competent authorities have a duty when deciding the question of expulsion to consider at the same time whether there is any impediment to the enforcement of the expulsion order. 49. The 1989 Act contains transitional rules to be applied in cases submitted before 1 July 1989. In such cases the procedures applicable under the 1980 Act still apply. Most of the decisions in the present case have therefore been taken under the 1980 Act. 50. Section 3 of the 1980 Aliens Act reads: "A refugee shall not without grave reasons be refused asylum in Sweden when he has need of such protection. For the purposes of this Act, a refugee is a person who is outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. A stateless person who for the same reason is outside the country of his former habitual residence and who is unable or, owing to such fear, is unwilling to return to that country, shall also be deemed a refugee. For the purposes of this Act, persecution is defined as indicated in subsection two of this Section as being directed against the life or liberty of the alien or as being otherwise of a severe nature (political persecution)." Other relevant provisions of the 1980 Act provide as follows: "An alien who, although not a refugee, is unwilling to return to his home country on account of the political situation there, and is able to plead very strong grounds in support of this reluctance, shall not be refused permission to stay in this country if he is in need of protection here, unless there are special reasons for such denial." "An alien may be expelled if he is residing here without possessing the passport or permit required for residence in Sweden. Expulsion orders as provided in subsection one are to be issued by the National Immigration Board. If an application for a residence permit is rejected, the National Immigration Board shall at the same time make an expulsion order unless there are very strong grounds to the contrary." "When a refusal-of-entry order or an expulsion order is put into effect, the alien may not be sent to a country where he risks political persecution. Nor may the alien be sent to a country where he is not safeguarded against being sent on to a country where he risks such persecution." "An alien referred to in Section 6 and pleading grave reasons for not being sent to his home country, may not in the enforcement of a refusal-of-entry order or an expulsion order be sent to that country or to a country from which he risks being sent on to his home country." "An alien intending to settle in this country or for any other reason to remain here in excess of the period referred to in Section 30, subsection one, may not enter Sweden until he has obtained a residence permit, unless: 1. he is exempted, by virtue of Section 30, subsection two, from the requirement of a residence permit, 2. he is an alien as referred to in Section 3, 5 or 6 of the Aliens Act (1980:376), 3. he intends joining a close relative who is permanently domiciled in Sweden and with whom he has previously lived abroad, or, 4. there is some other particularly important reason why he should be allowed to enter the country. An alien, who has entered Sweden without a residence permit or with a residence permit for a temporary stay only, may not be granted such a permit as long as he is present in this country or on account of an application made here, except in the cases specified in subsection one, paragraphs 2-4 of this section. The aforesaid notwithstanding, an alien who has entered Sweden as a visitor and has substantial reasons for prolonging his visit may be granted a residence permit for a specified period." 51. Since 1973 Sweden has received about 30,000 Chilean citizens, a large proportion of whom have been granted asylum. Visas have been required for travellers from Chile as of 1 January 1989. In view of political developments in Chile in 1988 and 1989 some refugees have returned voluntarily to take up political activities. 52. Rule 36 of the Commission’s Rules of Procedure reads: "The Commission, or when it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it." 53. An indication under Rule 36 is only given where it appears that irreparable damage would result from the implementation of the measure complained of. This might be the case where expulsion or extradition is imminent and the applicant alleges that he is likely to be treated contrary to Articles 2 and/or 3 (art. 2, art. 3) of the Convention in the receiving State. Normally Rule 36 would only apply to cases involving allegations of this nature. Further there must exist a certain degree of probability that a person would be subjected to treatment in breach of these provisions if sent to the country concerned. Evidence must thus be presented to the Commission which reveals the existence of such a risk. 54. When an application for interim measures is made it is brought immediately before the Commission or the President or Acting President if the Commission is not in session. A Rule 36 indication is always limited in time. If the decision is taken by the President or Acting President, the indication will be limited until the Commission next sits. If it is taken by the Commission, it is normally limited until its next session. 55. When the Commission or the President has applied Rule 36, the Secretary to the Commission will inform all the parties by telephone of the decision and confirm it by post or telefax. At the time of the first applicant’s expulsion the Commission had been seised of 182 requests for interim measures in expulsion (as opposed to extradition) cases. In 31 of these cases an indication under Rule 36 was given and complied with by the Contracting Parties concerned. In several cases concerning extradition the State has failed to comply with a Rule 36 indication. 56. The application to the Commission was introduced on 5 October 1989 and registered on the same day. On 6 October 1989, at 09.00 hours, the Commission decided to apply Rule 36 of its Rules of Procedure in the following terms: "The Commission ... decided ... to indicate to the Government of Sweden ... that it was desirable in the interest of the Parties and the proper conduct of the proceedings before the Commission not to deport the applicants to Chile until the Commission had had an opportunity to examine the application during its forthcoming session from 6 to 10 November 1989." 57. The Agent of the Government was informed by telephone on the same day, at 09.10 hours, of the Commission’s decision. At 12.00 hours the Commission confirmed the said indication by telefax. 58. Officials at the Ministry of Labour were informed of the Commission’s indication at 09.20 hours on 6 October. The matter was presented to the competent Minister at 12.45 hours. However, according to information given by the Government, the Minister could not take any action since the matter had already been decided by the Government and was pending before the Board. 59. On the same day, following a request from Mr Cruz Varas, the Board decided not to stay the enforcement of the expulsion. At that time the Board was aware of the present application to the Commission and of the Commission’s indication under Rule 36. 60. Mr Cruz Varas was deported to Chile on 6 October 1989 at 16.40 hours. His wife and their son went into hiding in Sweden. 61. On 9 November 1989 the Commission took the following decision under Rule 36 of its Rules of Procedure: "Having examined the parties’ submissions the Commission decided to indicate to the Government, in accordance with Rule 36 of its Rules of Procedure, that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport to Chile any of the applicants, who are still in Sweden, until the Commission has had an opportunity to examine the application further during its forthcoming session 4-15 December 1989. In respect of Mr Cruz Varas the Commission, given the failure of the Government to comply with its earlier indication not to deport him to Chile, now indicates that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission, that the Government take measures which will enable this applicant’s return to Sweden as soon as possible." 62. By letter of 22 November 1989 the Government informed the Commission that a request from the first applicant for permission to enter and remain in Sweden was to be examined by the Board and that the question of the execution of the expulsion order in respect of Mrs Bustamento Lazo and Richard Cruz was pending before it. Consequently, the Government had, on 16 November 1989, decided to communicate the Commission’s indication under Rule 36 to the Board. 63. Following the hearing on 7 December 1989, the Commission decided to maintain its indication under Rule 36 of its Rules of Procedure that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport the second and third applicants to Chile and that the Government take measures which would enable the first applicant to return to Sweden as soon as possible. 64. On 7 June 1990 the Commission decided, following the adoption of its report, not to prolong the Rule 36 indication. 65. The applicants complained that the first applicant’s expulsion amounted to a breach of Article 3 (art. 3) because of the risk that he would be tortured by the authorities. They also claimed that the expulsion of the third applicant would be in breach of Article 3 (art. 3). In addition they complained that the separation of the family constituted a breach of Article 8 (art. 8) of the Convention. They further invoked Articles 6 and 13 (art. 6, art. 13) of the Convention. 66. The application was declared admissible on 7 December 1989 as regards the applicants’ complaints under Articles 3 and 8 (art. 3, art. 8) and inadmissible as regards the complaints under Articles 6 and 13 (art. 6, art. 13). The Commission also retained for further examination the issues arising from the Government’s failure to comply with the Rule 36 indications. In its report adopted on 7 June 1990 (Article 31) (art. 31) the Commission expressed the opinion that there had been no violation of Article 3 (art. 3) (eight votes to five) or Article 8 (art. 8) (unanimously) but that there had been a failure to comply with Article 25 § 1 (art. 25-1) in fine (twelve votes to one) by not following the Commission’s Rule 36 request not to expel the first applicant. The full text of the Commission’s opinion and of the separate opinions contained in the report is reproduced as an annex to the judgment.

train

001-114440

ENG

NLD

ADMISSIBILITY

ZWINKELS v. THE NETHERLANDS

Inadmissible

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

1. The applicant, Mr Martinus Gerardus Maria Zwinkels, is a Netherlands national, who was born in 1960 and lives in Oterleek. 3. On 8 September 2006 two inspectors of the Labour Inspectorate (Arbeidsinspectie) inspected the premises of the applicant under the Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen). The inspectors found that the applicant’s house was being painted by two persons who did not have either Netherlands nationality or a nationality that allowed them to be equated with Netherlands nationals for employment purposes and that they did not hold a work permit (tewerkstellingsvergunning). During the inspection, the two inspectors entered the applicant’s garage, which was not connected to his house, in the applicant’s absence and without his permission, where they questioned the two foreign persons. The applicant alleges that no interpreter was present. 4. On 13 October 2006 the applicant and his wife were questioned by two inspectors of the Labour Inspectorate regarding the alleged infringement of the Foreign Nationals (Employment) Act. During the interview, one of the inspectors stated “whenever there was a foreign smell, I would always ask for [a work permit]”. The applicant expressed his discontent with this behaviour of the inspector but no note was taken of the incident in the report of the interview. 5. On 4 December 2006 the Deputy Minister (staatssecretaris) of Social Affairs and Employment (Sociale Zaken en Werkgelegenheid) sent copies of the inspectors’ reports to the applicant. 6. In a letter dated 5 February 2007, the Deputy Minister informed the applicant of the intention to fine him 8,000 euros (EUR) in accordance with section 19a in conjunction with section 2 of the Foreign Nationals (Employment) Act. 7. In his written comments (zienswijze) the applicant disputed the amount of the fine and he complained that the inspectors had entered his garage without his permission. By decision of 23 March 2007 the Minister of Social Affairs and Employment rejected the applicant’s arguments and imposed the fine of 8,000 EUR. 8. The applicant lodged an objection (bezwaar) against this decision, explaining in more detail the arguments stated in his written comments, pleading mitigating circumstances and arguing further that he disagreed with the different interpretations of the word “employer” in the Netherlands legal system. Furthermore, he complained about the behaviour of one of the inspectors of the Labour Inspectorate during the interview of 13 October 2006. 9. During a hearing by telephone (telefonische hoorzitting) on 5 December 2007 the applicant was given the chance further to elaborate on these statements. 10. On 11 January 2008 the Minister dismissed the applicant’s objection, stating the legal grounds for the decision and pointing out to the applicant that, in relation to the behaviour of the inspectors during the interview, he could file a formal complaint against these persons with the Labour Inspectorate. The applicant’s complaints regarding the entering of the garage were also rejected as it had appeared that the garage was not in direct connection with his house, which obviated the need for permission to enter it. 11. The applicant appealed against the decision to the Alkmaar Regional Court (rechtbank) on 28 January 2008 restating the arguments set out in his objection, including the complaint that the inspectors of the Labour Inspectorate had entered his garage without his permission. 12. On 27 July 2009 the Regional Court held that because the applicant’s garage was not directly connected to his house, the inspectors had not needed permission to enter it. The Regional Court rejected the applicant’s other complaints but decided to reduce the fine to the amount of EUR 7,600 because the proceedings before the court had exceeded a reasonable time. 13. On 17 February 2010 the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State, “the Administrative Jurisdiction Division”) dismissed the applicant’s appeal holding, inter alia, that it had not been properly argued as regards the entering of his garage by the inspectors. 14. The relevant sections of the Foreign Nationals (Employment) Act provide as follows: 1. In this Act and delegated legislation based on it, [the following definitions shall apply]: a. The Minister: the Minister of Social Affairs and Employment; b. employer: 1º the person who, in the exercise of an office, profession or business, has someone else perform work (degene die in de uitoefening van een ambt, beroep of bedrijf een ander arbeid laat verrichten); ... 1. It is forbidden for an employer to employ a foreign national in the Netherlands without a work permit. 1. Any failures to comply with sections 2(1) ... shall be deemed administrative offences (overtredingen). ... 1. A civil servant appointed by the Minister [i.e. the Minister of Social Affairs and Employment] for that purpose and coming under the Minister’s authority shall, in the Minister’s name, impose an administrative fine on any person to whom the obligations deriving from this Act apply, in so far as the failure to comply with such obligations is deemed an administrative offence. 2. The administrative offences defined for the purpose of this Act ([d]e terzake van deze wet gestelde overtredingen) shall apply with regard to every person with whom or in relation to whom an administrative offence has been committed (ten opzichte van elk persoon, met of ten aanzien van wie een overtreding is begaan).” 15. The Foreign Nationals (Employment) Act Fining Policy Rules, first published in the Official Gazette (Staatscourant) 2004, no. 249 and renewed every year since then (as relevant to the case before the Court, Official Gazette 2006, no. 250), set out a tariff to be applied in imposing administrative fines. A legal body which employs a foreign national without a work permit will be fined EUR 8,000. If the employer is a natural person not a legal entity, the fines are reduced by half.

train

001-61589

ENG

POL

CHAMBER

CASE OF G.K. v. POLAND

Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;Violation of Art. 8;Not necessary to examine Art. 34;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Nicolas Bratza

9. The applicant was born in 1967 and lives in Wrocław, Poland. 10. On an unknown date in 1995 the Wrocław District Prosecutor (Prokurator Rejonowy) issued a warrant to search for the applicant by “wanted” notice on suspicion of his having committed fraud. 11. On 3 March 1995 the police arrested the applicant under that warrant. 12. On 10 March 1995 the applicant was brought before the Wrocław Stare Miasto District Prosecutor (Prokurator Rejonowy). The prosecutor charged him with several counts of aggravated fraud and ordered that he be remanded in custody until 2 June 1995. The detention order was based on Articles 210 § 1 and 217 § 1(2) and (4) of the Code of Criminal Procedure. As to the grounds for the applicant’s detention, the prosecution first relied on the reasonable suspicion that he had committed the offence with which he had been charged. They also considered that the offence in question represented a serious danger to society (wysoki stopień społecznego niebezpieczeństwa czynu) and considered that there was a risk that the applicant might induce witnesses to give false testimony or obstruct the criminal proceedings against him by other unlawful means. 13. On 26 May 1995, on an application made by the Wrocław District Prosecutor, the Wrocław-Śródmieście District Court (Sąd Rejonowy) prolonged the applicant’s detention until 31 August 1995 in view of the reasonable suspicion that he had committed the offence with which he had been charged and the serious nature of that offence. The court also found that, in the light of the material collected in the investigation, there was a high risk that the applicant would obstruct the proper conduct of the proceedings. Finally, the court held that the interests of the investigation, such as the need to obtain and secure evidence, militated in favour of keeping him in custody. 14. Subsequently, the Wrocław Regional Prosecutor (Prokurator Wojewódzki) took over the investigation from the District Prosecutor. 15. On 24 August 1995 the Wrocław Regional Court (Sąd Wojewódzki), on an application made by the Wrocław Regional Prosecutor, prolonged the applicant’s detention until 30 November 1995, finding that it was necessary because there was a reasonable suspicion that the applicant had committed the serious offence. Furthermore, the court found that the need to secure the proper conduct of the proceedings militated against releasing him since, at the current stage of the investigation, it was necessary to hear evidence from all the injured parties, to carry out confrontations between witnesses and defendants and to lay further charges of dealing in stolen goods against several other persons who had not to date been involved in the proceedings. 16. On 24 November 1995, on the subsequent application from the Wrocław Regional Prosecutor, the Wrocław Regional Court prolonged the applicant’s detention until 31 December 1995, holding that there was a reasonable suspicion that he had committed the serious offence with which he had been charged. The court also stressed that the applicant should be kept in custody in order to secure the proper conduct of the proceedings, especially as the charges originally laid against the suspects needed to be supplemented. 17. On 27 December 1995 the Wrocław Regional Prosecutor completed the investigation and, on 30 December 1995, lodged a bill of indictment with the Wrocław Regional Court. The applicant was indicted on several counts of aggravated fraud. The bill of indictment comprised charges against 13 co-defendants. The prosecution asked the court to hear evidence from 9 expert witnesses and 104 lay witnesses, and to consider 400 pieces of documentary evidence. 18. The first hearing was to be held on 15 April 1996. Yet it was eventually cancelled because one of the applicant’s co-defendants, who had already been released under police supervision, was absent. 19. Subsequently, between 15 April 1996 and 28 August 1997, the Wrocław Regional Court listed 12 hearings for various dates but cancelled all of them because several of the applicant’s co-defendants who had already been released under police supervision had repeatedly failed to appear before it. They had submitted medical certificates to the effect that they could not participate in the trial because of their poor health and asked the court to adjourn the proceedings. 20. During that time the applicant made numerous unsuccessful applications for release on bail or under police supervision. He submitted that even though his detention pending trial had exceeded any reasonable limits, not a single hearing on the merits had so far been held. He also asked the Regional Court to order, under Article 24 § 3 of the Code of Criminal Procedure, that the charges against the released co-defendants be severed from the case so as to ensure that the trial proceeded without any further impediment. 21. In the meantime, on 31 December 1996, the Wrocław Regional Court had released A.A., one of the thirteen co-defendants, under police supervision. From then on, only the applicant and two other co-defendants (D.P. and W.K.) were still kept in detention pending trial. 22. On the same day the Regional Court held a session in camera at which the Regional Prosecutor was present. It made an application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court (Sąd Najwyższy), asking it to prolong the applicant’s and his two co-defendants’ detention for six further months. That application was prepared in view of the fact that on 1 January 1997 the amendments to the Code of Criminal Procedure were to take effect. The new provisions set statutory time-limits for detention pending trial and, in consequence, in all cases where detention had already exceeded, or was about to exceed, the relevant terms, the courts had either to release the person concerned or to ask the Supreme Court to prolong his detention (see also “B. Relevant domestic law and practice” below). The reasons for the Regional Court’s application read, in so far as relevant: “[In respect of the applicant and two other co-accused] the [maximum] time-limits for detention on remand laid down in Article 222 § 3 of the Code of Criminal Procedure have expired and 31 December 1996 is the deadline for lodging a request for further prolongation of their detention on remand. During the period following the date on which the bill of indictment was lodged with this court, it scheduled numerous hearings; however, the trial has not yet began as this court, for valid reasons [,such as the fact that the defendants, one after another, had failed to appear before us,] could not proceed with the trial. In this connection, this court has, in accordance with the suggestion of the Wrocław Court of Appeal, considered whether it would be sensible to sever the charges laid against the co-defendants concerned, pursuant to Article 24 § 3 of the Code of Criminal Procedure. Yet, as all the charges in the present case are interrelated, this court finds that there is no just cause to proceed in this way. The detained defendants have repeatedly asked this court to lift or vary the preventive measure imposed on them. This court has dismissed their applications and in doing so it has had [particular] regard to the serious nature of the offences, the likelihood that a severe penalty would be imposed and, more particularly, to the conduct of the defendants during the investigation, that is to say [the fact that they had had to be] searched for by a “wanted” notice and that there had been problems in the course of their arrest [which had justified the risk that] they might go into hiding. The [Wrocław] Court of Appeal, which has dealt with the defendants’ appeals [against decisions refusing to release them], expressed the same opinion. That being so, and there being other serious obstacles [to the proper course of the trial] the present application for the defendants’ detention to be prolonged must be submitted to the Supreme Court.” 23. The application was posted to the Supreme Court on 13 January 1997. 24. On 24 January 1997, a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor (Prokurator Krajowy), who had been summoned to the session and represented the prosecution, dealt with, and granted, the application. The Supreme Court prolonged the applicant’s and his co-defendants’ detention “from 24 January 1997 to 24 July 1997”. The defendants were not present. Nor were they legally represented since, under Polish law as it stood at that time, defendants or their counsel were not entitled to participate in court sessions held in camera (see also paragraphs 65-66 below). 25. The Supreme Court’s decision contained exhaustive reasons, the relevant part of which may be summarised as follows: The Supreme Court, noting that the application was filed on 31 December 1996 but posted as late as 13 January 1997, first considered what was the proper date of “lodging” such an application for the purposes of Article 222 § 4 of the Code of Criminal Procedure. The Supreme Court next observed that, depending on the answer to this question, it would have to determine the legal consequences of a potential failure on the part of the Wrocław Regional Court to respect the rule laid down in Article 10 (a) § 2 of the Interim Law of 1 December 1995, which stated that in cases where no request for a further prolongation of detention on remand had been “lodged”, the detention on remand had to be lifted and the person concerned released not later than on 1 January 1997. The Supreme Court considered that it should also deal with the question of whether it was competent to rule on the application if it had been “lodged” after the expiry of the term referred to in Article 10 (a) of the Interim Law of 1 December 1995, i.e. after 1 January 1997. Referring to the first question, the Supreme Court held that the proper date of “lodging” an application under Article 222 § 4 of the Code of Criminal Procedure had to be deemed either the date of posting the request or the date of submitting it to the registry of the Supreme Court since to hold otherwise would mean leaving a detainee without any guarantee that the Supreme Court was properly supervising his detention. Moreover, if the requesting court was not bound by any time-limits for submitting its application, detention, the most severe among the preventive measures, might continue for an unspecified and unlimited time outside the Supreme Court’s supervision. In consequence, an application under Article 222 § 4 of the Code of Criminal Procedure, a mere “proposal” to continue detention, would, for all practical purposes, transform into a basis for continuing detention. Clearly, that was not the intention of the legislator. The Supreme Court therefore concluded that since in the applicant’s case no application for a further prolongation of his detention was “lodged” before 1 January 1997, the applicant’s (and his co-defendants’) detention from that date to the date of its present decision lacked any legal basis and was, accordingly, unlawful. It went on to find that it was, nevertheless, competent to deal with the application lodged outside the relevant date. It considered that a lower court’s obligation to release a detainee in case of its failure properly to lodge an application under Article 222 § 4 of the Code of Criminal Procedure was one thing, but its right to make such an application at any time was another. In the Supreme Court’s opinion, the application in question should be deemed a “fresh application” and be examined as such. It considered that further prolongation of the applicant’s detention was necessary. In essence, it repeated the arguments adduced by the Wrocław Regional Court and stressed the complexity of the case. 26. On 9 July 1997 the Wrocław Regional Court made another application under Article 222 § 4 of the Code of Criminal Procedure. It asked the Supreme Court to prolong the applicant’s, W.K.’s and D.P.’s detention until 31 December 1997. The Regional Court submitted that regardless of its consistent efforts to proceed with the trial, it could not begin the main hearing because several released co-accused had repeatedly failed to appear before it. However, the applicant had to be kept in custody since there was still a risk that he might go into hiding because at the initial stage of the proceedings he had had to be searched for by a “wanted” notice and, likewise his two detained co-defendants, had obstructed his arrest. Finally, the court relied on the complexity of the case and the fact that evidence gathered in the investigation sufficiently supported the charges laid against him. 27. In the meantime, in July and August 1997, the applicant repeatedly complained to the Wrocław Regional Prosecutor, the Wrocław Regional Court, the Supreme Court, the Minister of Justice and the Ombudsman (Rzecznik Praw Obywatelskich) that, from 1 to 24 January 1997, he had been kept in detention without any legal basis. He also asked for release. 28. On 28 August 1997 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor, prolonged the applicant’s, W.K.’s and D.P.’s detention pending trial until 31 December 1997. The Supreme Court fully upheld the arguments adduced by the Wrocław Regional Court in its application. However, it expressed the opinion that, for the sake of the proper conduct of the trial, the charges against the released co-defendants should be severed from the case. 29. On 8 September 1997 the Wrocław Regional Court held the first hearing. It did not deal with the merits of the case but ordered that the charges against three of the released co-defendants be severed from the case and adjourned the trial until 13 October 1997. The applicant asked for release. The court refused, holding that the reasons for his continued detention, as cited in the Supreme Court’s decision of 28 August 1997, were still valid. 30. In August, September and October 1997 the applicant sent numerous petitions, letters and applications to, inter alia, the Minister of Justice, the Supreme Court, the Ombudsman, the Wrocław Regional Court, the Wrocław Regional Prosecutor and the Wrocław District Prosecutor. He complained about the unlawfulness and length of his detention, the slow conduct of his trial and asked the authorities to release him and to institute criminal proceedings against the persons who had kept him in unlawful custody. He invoked Article 5 § 4 of the Convention, submitting that he had no remedy whereby he could challenge the lawfulness of his detention from 1 to 24 January 1997 and obtain release. He also relied on Article 5 § 3 of the Convention and maintained that his right to trial within a reasonable time or to release pending trial was not respected. 31. On 15 September 1997 the applicant made an application for release to the Wrocław Regional Court. He asserted that there was no risk of his going into hiding. He admitted that it was true that, nearly three years previously and before he had been detained, he had used a false identity card. However that single fact could not justify holding him in custody for such a long time. At that point, he added, his detention had already exceeded thirty months. The applicant further complained that there had been an exceptional delay in the proceedings which, in his opinion, had resulted solely from the fact that the Regional Court had failed to ensure the presence of the released co-defendants at the trial. He also maintained that, following his arrest, there had been no single attempt on his part to obstruct the proper course of the proceedings. In his view, there was no evidence whatsoever to demonstrate that, had he been released, he would have evaded justice or any sentence that might be imposed. 32. That application was dismissed on 9 October 1997. The Regional Court repeated the reasons previously given to justify the applicant’s detention. It was stressed that he should be kept in detention to secure the proper conduct of the proceedings. Moreover, the court considered that the applicant had failed to adduce any arguments militating in favour of his release. On 13 October 1997 the court cancelled a hearing since one of the released co-defendants had failed to appear before it and submitted a medical certificate stating that he was ill. 33. On 28 October 1997 the Wrocław Regional Court held the first hearing on the merits. Since some of the co-defendants decided not to give any oral evidence at the trial stage, the court read out the record of evidence given by them in the investigation. 34. The next hearing was to be held on 18 November 1997 but was cancelled because one of the released co-defendants had submitted a medical certificate stating that he was ill. 35. On 20 November 1997 the Regional Court, at the Minister of Justice’s request, submitted to the Ministry a report on the progress of the proceedings. Further similar reports were submitted on 23 and 30 March, 25 May, 26 August and 9 December 1998. 36. On 25 November 1997 the court held a hearing and had the record of evidence taken from other five co-defendants in the investigation read out. The court then started to hear witnesses. After hearing evidence from two of them, it adjourned the trial in order to hear six other witnesses. 37. In the meantime, in November 1997, the applicant had again filed several petitions with the Ombudsman, the Minister of Justice and the Division of Judicial Supervision (Wydział Wizytacyjny) of the Wrocław Regional Court. He complained that the overall period of his detention had meanwhile amounted to nearly thirty-three months but the determination of the charges against him had merely begun. He asked the authorities concerned to react, in an appropriate manner, to the fact that he had been unlawfully detained in January 1997, a fact that had already been confirmed by the highest national court. 38. On 11 December 1997 the Wrocław Regional Court dismissed a further application for release which had been filed by the applicant on an unknown date. The court held that all the legal and factual grounds previously given for his detention were still valid. It also considered that since there were no circumstances justifying release, as listed in Article 218 of the Code of Criminal Procedure, his detention should continue to ensure the proper conduct of the proceedings. 39. On 19 December 1997 the court held a hearing. It heard evidence from three witnesses and adjourned the trial until 30 January 1998 because other witnesses had not appeared. 40. On the same day the Regional Court made a fresh, and third, application under Article 222 § 4 of the Code of Criminal Procedure to the Supreme Court, asking for the applicant’s, D.P.’s and W.K.’s detention to be prolonged until 31 March 1998. It stressed that it had eventually been able to begin the trial. It considered that, given that evidence had already been taken from all the co-defendants, it could not be said that the court had not handled the case efficiently. While it was true that the process of obtaining evidence had not come to an end, that was not due to any fault on the part of the trial court but had arisen out of other factors. There were still valid reasons justifying the defendants’ continued detention, notably the well-founded suspicion that they had committed the offences with which they had been charged and the risk that they might abscond or go into hiding. 41. From 19 December 1997 to the beginning of January 1998 the applicant filed numerous petitions with the Minister of Justice, the Supreme Court and the Wrocław Regional Court, submitting that his constitutional right to personal liberty, as well as his rights secured by Article 5 §§ 3 and 4 of the Convention, had been violated. He maintained that he had spent nearly three years in detention because the trial court had – wrongly – concluded that there was a risk of his absconding even though, after his arrest, there had never been a single basis for such a finding. Whatever his arguments, the court had never believed him and never given him a chance to prove that his release would not have obstructed the course of the trial. In fact, the applicant claimed, the proper conduct of the proceedings had constantly been impeded by his seven released co-defendants. 42. On 15 January 1998 a panel of three judges, sitting in camera as the Criminal Chamber of the Supreme Court, after obtaining oral comments from the State Prosecutor, prolonged the applicant’s, W.K.’s and D.P.’s detention until 31 March 1998. The Supreme Court fully upheld the reasons given by the Wrocław Regional Court to justify its application. 43. On 30 January 1998 the Wrocław Regional Court held a hearing but the trial was again adjourned since, in the applicant’s words, “one of the defence counsel [had] left the courtroom”. 44. On 20 March 1998 the court released the applicant, D.P. and W.K. under police supervision. In its decision, the court conceded that the period of nearly three years that the applicant had spent in detention had been nearly as long as the anticipated penalty and that, in consequence, his continued detention would amount to serving a sentence of imprisonment. 45. Between 20 March 1998 and 4 February 1999 the Regional Court held eleven hearings. At the hearings held on 30 November and 1 December 1998 the court heard evidence from thirty-one witnesses. On 5 January 1999 the court heard fifteen witnesses. The applicant twice failed to appear before the court. 46. Further hearings were held on 4 February, 11 March, 14 April, 7 and 28 May and 9 June 1999. During that time the court heard evidence from 8 witnesses and read out records of evidence taken from 11 witnesses. 47. At a hearing held on 15 December 1999 the court heard evidence from 3 witnesses and read out records of evidence taken from 5 witnesses. The trial continued on 14 and 21 January 2000. 48. On 21 January 2000 the Regional Court gave judgment. It convicted the applicant as charged and sentenced him to 4 years and 6 months’ imprisonment and a fine. The applicant did not appeal against his conviction. Accordingly, the judgment became final on 29 January 2000. 49. On 16 January 2001 the Court’s registry received the applicant’s declaration of means filed on 12 December 2000. It was delivered in an envelope bearing two stamps. The first of them read: “Wrocław Remand Centre – Department of Records and Employment. Received on [handwriting] 2000-12-13. No. 651/099” The second stamp read “cenzurowano” (censored). The envelope itself bore traces of opening after being sealed: its right side had been cut open and then resealed with six white self-sticking paper slips. It was postmarked 8 January 2001. 50. Over the period to which the facts of the present case relate, i.e. from March 1995 to the beginning of 1999, Polish criminal legislation was amended on several occasions. 51. In so far as the present case is concerned, there were two relevant amendments to the Code of Criminal Procedure (“the 1969 Code”), a law which is no longer in force as it was repealed and replaced by the so-called “New Code of Criminal Procedure” of 6 June 1997 (“the 1997 Code”), which entered into force on 1 September 1998. The first such amendment was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes which entered into force on 1 January 1996, except the amendments relating to the imposition of detention on remand (in particular, those stating that only a judge was empowered to detain a suspect on remand); the entry into force of the latter amendments being postponed until 4 August 1996 (see paragraphs 53-54 below). The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (“the 1995 Interim Law”) came into force on 1 January 1996. Section 10(a) of the Law introduced special interim rules governing the prolongation of detention on remand beyond the statutory time-limits laid down in Article 222 §§ 2 and 3 of the 1969 Code in cases where such detention had been imposed before 4 August 1996 (see paragraph 62 below). 52. At the material time the 1969 Code listed as “preventive measures” (środki zapobiegawcze), inter alia, detention on remand, bail and police supervision. 53. Article 210 § 1 of the 1969 Code read (in the version applicable until 4 August 1996): “Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.” 54. Article 222 (in the version applicable until 4 August 1996) stated, in so far as relevant: “1. The prosecutor may order detention on remand for a period not exceeding three months. (1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year; (2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigation.” 55. Under Article 212 § 2 a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal. 56. Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision (as it stood at the material time) provided: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 57. Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far as relevant: “Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or (3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4) an accused has been charged with an offence which creates a serious danger to society.” 58. On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision read: “(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) [as it stood before 1 January 1996].” Paragraph 2 of Article 217 then read: “If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” 59. The 1969 Code set out the margin of discretion as to maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme among the preventive measures, should not be imposed if more lenient measures were adequate. Article 213 § 1 provided: “A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefore has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.” Article 225 stated: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.” The provisions of the Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above. Finally, Article 218 provided: “If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if: (1)o it may seriously jeopardise the life or health of the accused; or (2) oit would entail excessively burdensome effects for the accused or his family.” 60. Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set out any time-limits on detention on remand in court proceedings; it did so only in respect of the investigative stage (see above, 2a) Imposition of detention on remand; Article 222 in the version applicable until 4 August 1996). 61. Article 222 of the 1969 Code in the version applicable after 4 August 1996 provided, in so far as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” 62. On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also: “... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...” However, as already mentioned (see paragraph 51 above), under section 10(a) of the 1995 Interim Law, different rules applied to persons whose detention on remand started prior to 4 August 1996. That section provided: “1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be kept in detention until the Supreme Court gives a decision on an application for prolongation of his detention under Article 222 § 4 of the Code of Criminal Procedure. 2. In cases mentioned in paragraph 1, if no [such] application has been lodged, detention shall be lifted not later than 1 January 1997.” 63. In cases where the Supreme Court dismissed an application under Article 222 § 4, a detainee had to be released. As long as it had not given its ruling, the application of the relevant court – which had the form of a decision (“postanowienie”) – was deemed to be a legal basis for the continued detention. 64. At the material time there were three different legal avenues enabling a detainee to challenge the lawfulness of his detention: appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage; and proceedings set in motion by a detainee’s application for release. As regards the last of these, Article 214 of the 1969 Code stated that an accused could at any time apply to have a preventive measure lifted or varied. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days. 65. Under Article 88 of the 1969 Code the participation of the parties at judicial sessions other than hearings was a matter for discretion of the court. Sessions concerning an application for release, a prosecutor’s application for prolongation of detention or an appeal against a decision on detention on remand were held in camera. If the defendant asked for release at a hearing, the court made a decision either during the same hearing or at a subsequent session in camera. 66. At the material time the law did not give the detainee the right to participate – either himself or through his counsel – in any court session concerning his detention on remand. In practice, only the prosecutor was notified of, and could participate in, those sessions. If he was present, he was entitled to adduce arguments before the court. The prosecutor’s submissions were put on the record of the session (see also Włoch v. Poland, no. 27785/95, judgment of 19 October 2000, §§ 69-73). 67. Under all the relevant provisions read together a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or trial stage. However, no appeal laid in law either against a decision whereby the trial court applied, under Article 222 § 4, for prolongation of detention beyond the statutory time-limit, or against a decision of the Supreme Court prolonging detention under that provision. Under the present criminal legislation (as amended on 20 July 2000), a detainee may appeal against a decision whereby a trial court has asked the higher court to prolong his detention beyond the statutory terms. 68. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 1 September 1998. Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows: “Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.” 69. Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”. Article 217 § 1 reads, in so far as relevant: “... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.” Pursuant to Article 214 § 1, “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.” 70. Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of a letter.”

train

001-90973

ENG

TUR

CHAMBER

CASE OF EVAGOROU CHRISTOU v. TURKEY

Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 8 - Right to respect for private and family life

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

7. The applicant was born in 1925 and lives in Nicosia. 8. The applicant lived with her family in Kalogrea, a village in the District of Kyrenia. During the 1974 intervention, the Turkish military troops evicted the applicant and her family from their home and forced them to leave Kyrenia and flee to the south. 9. The applicant alleged that until 7 September 1999, when the properties were transferred to her children, she had been the owner of ten plots of land in Kalogrea, two of which had one house each on them. One of these houses had been the applicant’s home. It was an ancestral house built in 1916, comprising huge, spacious rooms, two bedrooms, a living room, a kitchen and a bathroom. It had two levels and a huge yard. It was built of stone, had marble floors and a titled roof, and wooden doors and windows. The second house was the applicant’s holiday home, built in 1958 and situated in the locality known as Roukania. It had two spacious bedrooms and was very close to the sea (about 50 metres). 10. In support to her claim to ownership, the applicant produced affirmations of ownership issued by the Department of Lands and Surveys of the Republic of Cyprus, stating that she was the legal and registered owner of the two houses and of the pieces of lands registered under the plots nos. 260, 268, 45, 119/5, 119/6, 164.9, 121/2/3, 122/2/4, 359/1 and 425. The applicant also produced certificates of registration for eight of the ten properties at issue. 11. The applicant claimed that she had been prevented from returning to her home and properties because the Turkish military authorities had continuously occupied and used them. 12. On 9 December 1990 the applicant made an attempt to return to her home and property in Kyrenia and in the Kalogrea Village by participating in a convoy of cars of fellow refugees intending to return home. The demonstration organisers had informed the Commander of the United Nations (UN) forces in Cyprus of their intentions. 13. The applicant and her fellow refugees stopped at the check point in the "buffer zone", on the main road linking Nicosia and Famagusta. There, they asked the UN officer on duty to be allowed to return to their homes, property and villages. They requested the same officer to forward their demand to the Turkish military authorities. The officer replied that the latter had refused their request.

train

001-57432

ENG

DEU

CHAMBER

CASE OF BARTHOLD v. GERMANY

Violation of Art. 10;Just satisfaction reserved

C. Russo

10. Dr. Barthold, who was born in 1926, is a veterinary surgeon practising in Hamburg-Fuhlsbüttel. In 1978 and until March 1980, his practice operated as a "veterinary clinic", of which there were eight in Hamburg at the time. He closed down this clinic on 5 March 1980 but subsequently re-opened it on 1 January 1983. 11. By virtue of the Hamburg Veterinary Surgeons’ Council Act of 26 June 1964 (Tierärztekammergesetz - "the 1964 Act"), the applicant is a member of the Hamburg Veterinary Surgeons’ Council, whose task, among other things, is to ensure that its members comply with their professional obligations (section 1 and section 3 sub-section no. 2 of the 1964 Act). These obligations are laid down principally in the Rules of Professional Conduct of Hamburg Veterinary Surgeons (Berufsordnung der Hamburger Tierärzteschaft - "the Rules of Professional Conduct"), which were promulgated on 16 January 1970 by the Council in pursuance of section 8 sub-section 1 no. 1 of the 1964 Act and approved on 10 February 1970 by the Government (Senat) of the Land of Hamburg (section 8 sub-section 3). 12. As the director and proprietor of a clinic, Dr. Barthold provided a round-the-clock emergency service (Rule 19 of the Rules of Professional Conduct and Regulation 2 of the Regulations of 27 August 1975 on the Establishment of Veterinary Clinics - Richtlinien zur Einrichtung von tierärztlichen Kliniken; see also paragraph 29 below). This was not necessarily the case as far as other veterinary surgeons were concerned (praktische Tierärzte - see paragraph 28 below). From 1974 onwards, the applicant - who was one of the authors of the above-mentioned Regulations and who had insisted on the provision of a round-the-clock service by clinics - advocated within the Council that a regular night service involving the participation, by rota, of all veterinary surgeons should be organised. However, the majority of his colleagues voted on two occasions, on 19 December 1974 and 7 December 1979, against such a proposal (see also paragraph 28 below). 13. On 24 August 1978, there appeared in the daily newspaper Hamburger Abendblatt an article signed by Mrs. B, a journalist, and entitled "Tierärzte ab 20 Uhr schwer erreichbar - Warum ‘Shalen’ die Nacht doch noch überlebte" ("Veterinary surgeons hard to reach after 8 p.m. - why "Shalen" managed to survive the night after all"). The article, 146 lines and 4 columns long, comprised an introductory paragraph and in brackets, in bolder type, the three following sub-heads: "Auf eine spätere Zeit vertröstet" ("Put off until later"), "Unfreundliche Absage" ("Unfriendly refusal") and "Zur Not hilft die Polizei" ("Police to the rescue"). The introductory paragraph, in bold type, read as follows: "When the owner of a domestic pet needs help at night for his beloved animal, he may often become desperate: not one veterinary surgeon can be contacted. This state of affairs ought now to improve. There are plans to bring in a new Act on veterinary surgeons, along the lines of the Hamburg legislation governing doctors. According to Dr. Jürgen Arndt, veterinary surgeon and Chairman of the Hamburg Land Association which is part of the Federal Association of Veterinary Surgeons (Bundesverband praktischer Tierärzte e.V.), ‘it will also regulate the emergency night service’. At present, it is true, a few clinics voluntarily provide an emergency service from time to time, and [other] veterinary surgeons also help, but this is not on a regular basis and does not give pet-owners security. They only do it voluntarily." The journalist writing the article began by recounting the efforts made by the owners of the cat "Shalen" to find a veterinary surgeon prepared to help them one evening between 7.30 and 10.00 p.m. After telephoning in vain to two veterinary practices and to the emergency service, apparently they at last struck lucky: "Dr. Barthold, director of the Fuhlsbüttel veterinary clinic, intervened". The journalist then quoted the applicant as saying: "It was high time; ... [the cat] would not have survived the night." According to the author, Mrs. B, the particular case disclosed a problem, namely the inadequacy of the emergency service, at least on weekdays between 8 p.m. and 8 a.m. There followed a passage which read: "‘I think that in a big city such as Hamburg there ought to be a regular service for attending to animals’, Dr. Sigurd Barthold emphasised. Hamburg’s animal lovers" - added the journalist, summarising her interview with Dr. Barthold - "would then no longer have to get sore fingers trying to ring up veterinary surgeons, looking for one who is prepared to help. In that case it would not only be the clinics which would voluntarily be on emergency duty round the clock; each of the 53 practising veterinary surgeons would be on night duty once a month if arrangements were made for two of them to be on duty each night. The fact that there is a demand for an emergency service at night-time is illustrated by Dr. Barthold by reference to the number of calls received by his practice between 8 p.m. and 8 a.m.: ‘Our telephone rings between two and twelve times each night. Of course these are not all emergency cases. Sometimes advice over the telephone is all that is needed.’" The author concluded the article by presenting under the third sub-head comments of Dr. Jürgen Arndt, "Vice-Chairman of the Hamburg Veterinary Surgeons’ Council and himself director of a clinic in Harburg". Believing that an emergency service organised on a rota basis "would not release clinics from dispensing their voluntary service but would lessen the strain on them", Dr. Arndt said that he was actively trying to promote such a service. He added that the appropriate Hamburg authorities envisaged drafting the Act on veterinary surgeons during the fourth quarter of the year. Until it came into force, owners of animals would have to call one veterinary surgeon after another - or else the police, who would normally be prepared to help them. The article was illustrated by two photographs. The larger, centrally placed, showed a cat and had the caption: "Um das Leben der kleinen ‘Shalen’ wurde gekämpft - erfolgreich" ("They fought for the life of little ‘Shalen’ - and won"). The second one was an identity photograph which appeared alongside the title and introductory paragraph of the article; it was a photograph of the applicant, though its caption erroneously gave the name of Dr. Arndt. Below the photograph of the cat and outside the space occupied by the article, there was a short text under the heading "Hamburg - Stadt der Tiere" ("Hamburg - city of animals"), giving the number of domestic pets, veterinary surgeons and veterinary clinics in Hamburg and the telephone number of the emergency service available at weekends and on public holidays. 14. On 25 August 1978, the Hamburger Abendblatt once again published the applicant’s photograph under the heading "Unter dem Foto ein falscher Name" ("Wrong name under photo"), together with the following explanation: "An error crept into our report yesterday on the emergency veterinary service. Unfortunately, the wrong name appeared under the photograph. The person in question is in fact Dr. Sigurd Barthold, director of the Fulhsbüttel veterinary clinic." 15. A number of Dr. Barthold’s fellow practitioners, who regarded the article in question as publicity conflicting with the Rules of Professional Conduct, referred the matter to the association "PRO HONORE - Verein für Treu und Glauben im Geschäftsleben e.V." ("Pro Honore Association for fairness and trustworthiness in business" - "Pro Honore"). This association was founded in 1925 by the businessmen of Hamburg and exists in order to "ensure honesty and good faith in all spheres of business life" and "in particular to combat unfair competition, fraud in connection with moneylending and corruption" (article 2 of the Charter of 26 September 1979). Between 1978 and 30 September 1980, Pro Honore was operating simultaneously as a branch organisation of the Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. Frankfurt-am-Main (the Frankfurt-am-Main Central Agency for Combatting Unfair Competition - "the Central Agency"). The latter has been active for decades in curbing unfair competition, and counts among its members all the chambers of industry, trade and crafts and some 400 other associations, including the Federal Association of Veterinary Surgeons. The Hamburg Veterinary Surgeons’ Council and the Deutsche Tierärzteschaft e.V, which is the umbrella organisation of the councils and private associations of veterinary surgeons, are not members of the Agency. Under section 13 of the Unfair Competition Act of 7 June 1909 (Gesetz gegen den unlauteren Wettbewerb - "the 1909 Act"), Pro Honore and the Central Agency are empowered to bring against anyone engaged in business proceedings to restrain that person from breaking certain rules set forth in the Act. 16. On 4 September 1978, Pro Honore wrote to the applicant to say that it had been informed by certain veterinary surgeons that he had "instigated or tolerated, in the Hamburger Abendblatt of 24 August 1978, publicity on [his] own behalf". The letter went on to quote extracts from the article in question. The applicant was said to have thereby infringed section 1 of the 1909 Act in conjunction with Rule 7 of the Rules of Professional Conduct. Section 1 of the 1909 Act stipulates that: "Any person who in the course of business commits, for purposes of competition, acts contrary to honest practices (gute Sitten) may be enjoined from further engaging in those acts (Unterlassung) and held liable in damages." Rule 7 of the Rules of Professional Conduct deals with advertising and publicity (Werbung und Anpreisung) and reads as follows: "It is contrary to the ethics of the profession (standeswidrig): (a) to advertise publicly one’s veterinary practice, (b) to instigate or tolerate publicity or public acknowledgements on television, radio or in the press or other publications, (c) to disclose case histories or methods of operation or of treatment elsewhere than in specialised journals (Fachzeitschriften), (d) to co-operate with non-veterinarians for the purpose of publicising one’s own practice." Pro Honore asserted its right to bring proceedings against the applicant for unfair competition (section 13 sub-section 1 of the 1909 Act) and called on him, for the purposes of a friendly settlement of the matter, to sign an enclosed declaration. Under the terms of this declaration, he would undertake not to make publicity on his own behalf by instigating or tolerating press articles such as that which had appeared in the Hamburger Abendblatt, to pay the Central Agency 1000 DM for each infringement and to pay Pro Honore 120 DM by way of costs incurred in asserting its right (Rechtsverfolgung). 17. A lawyer replied two days later on behalf of the applicant. The request made to Dr. Barthold was, he wrote, very close to blackmail. It was presumptuous (Zumutung) to speak of unlawful publicity. The reproaches directed against his client, who had not instigated the article complained of, had done considerable damage to his personal and professional reputation. The applicant’s lawyer asked Pro Honore to confirm in writing that it would be dropping its claim against his client, withdrawing its accusations and expressing regret. He also asked for reimbursement of his costs and announced that he would sue Pro Honore if it failed to meet his demands within three days. 18. The Central Agency then applied to the Hamburg Regional Court (Landgericht) for an interim injunction (Articles 936 and 944 of the Code of Civil Procedure). An interim injunction was issued on 15 September 1978 by the presiding judge of the 15th Civil Chamber. This decision forbade the applicant "to report in the press (except in professional journals), giving his full name, a photograph of himself and an indication of his occupation as director of the Fuhlsbüttel veterinary clinic, that at least on working days between 8 p.m. and 8 a.m., animal lovers in Hamburg would get sore fingers from trying to telephone veterinary surgeons ready to help them, in conjunction with (in Verbindung mit) (a) the statement that only veterinary clinics were on voluntary emergency duty round the clock, and/or (b) the statement that in his practice the telephone rang between two and twelve times between 8 p.m. and 8 a.m., though not all these calls were emergency cases and advice over the telephone would sometimes be sufficient, and/or (c) the description of a case in which the owner of an animal had tried in vain one ordinary weekday between 7.30 p.m. and 10 p.m. to find a veterinary surgeon to treat his cat, until finally he was lucky enough to contact Dr. Barthold, who acted when it was more than ‘high time’, and/or to contribute to such reports by giving journalists information". For each and every breach of the injunction, he was liable to a maximum fine (Ordnungsgeld) of 500,000 DM or non-criminal imprisonment (Ordnungshaft) of up to six months, the precise penalty to be fixed by the court. 19. The applicant lodged an objection (Widerspruch) against this injunction (Articles 936 and 924 of the Code of Civil Procedure). The competent Chamber of the Regional Court upheld the injunction, however, on 15 November 1978. He thereupon entered an appeal which was dismissed on 22 March 1979 by the 3rd Chamber (Senat) of the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht). Finally, on 2 July 1979, the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, decided not to entertain the constitutional application he had brought against the latter judgment and the interim injunction of 15 September 1978, on the ground that the application did not offer sufficient prospects of success. 20. Before completion of the proceedings relating to the interim injunction, Dr. Barthold had asked the Regional Court to set a time-limit within which the Central Agency should commence the action as to the main issue (Articles 936 and 926 of the Code of Civil Procedure); whereupon the Agency instituted the necessary proceedings on 22 December 1978. Its statement of claim was couched in the same terms as the prohibitory injunction issued by the Regional Court on 15 September 1978 (see paragraph 18 above). 21. On 20 July 1979, the 16th Commercial Chamber of the Regional Court found in favour of the defendant. The Regional Court rejected certain objections raised by him as to the Agency’s right of action. Nor did it accept his argument that the plaintiff, in complaining of an infringement of section 1 of the 1909 Act, could not rely upon Rule 7, paragraph (a), of the Rules of Professional Conduct. On the other hand, the Regional Court was satisfied that the evidence adduced did not support the charge of infringing the rules governing competition (Wettbewerbsverstoss). It had not been established that the applicant had influenced to an appreciable extent or tolerated the publication complained of. In fact, there were important indications pointing in the opposite direction. The author of the article had declared that Dr. Barthold’s name had been mentioned without his knowledge. It could be inferred from her testimony that the applicant had not asked for his identity to be divulged and must have expected not to find mention of it in the newspaper. He might thus have believed - as indeed he asserted - that the Hamburger Abendblatt would do no more than discuss the deplorable situation brought about by the absence of a night service. In addition, it was quite possible that the article in question, instigated by the journalist, was not based solely on the interview with Dr. Barthold and that the newspaper or the journalist had included the name of Dr. Barthold and of his clinic so as to emphasise the difference between the latter - praiseworthy - clinic and other less helpful veterinary surgeons. The question whether the applicant had taken care, or at least endeavoured, to prevent his name and clinic being given prominence over his fellow practitioners had been impossible to elucidate - and this should not operate to Dr. Barthold’s detriment - as the journalist had refused to give any further evidence, on the justified ground that she was not obliged to disclose her sources. 22. On 24 January 1980, the Hanseatic Court of Appeal, after declaring admissible the appeal brought by the Central Agency, upheld the Agency’s grounds of appeal, which reiterated the terms of the injunction granted on 15 September 1978 (see paragraphs 18 and 20 above). The Court of Appeal held in the first place that the applicant had infringed Rule 7, paragraph (a), of the Rules of Professional Conduct, a legally valid (formell rechtmässig) provision that was in conformity with the Basic Law as well as other superior rules of law. That Rule did not unreasonably limit Dr. Barthold’s right to freedom of expression as guaranteed by Article 5 of the Basic Law, for there was nothing to prevent him from freely stating his opinion and in particular from criticising deplorable situations, even if this had the inevitable effect of producing publicity favourable to himself. The Agency was not seeking to restrain Dr. Barthold from making public pronouncements about veterinary assistance. Its application was concerned solely with a given form of conduct comprising - "cumulatively!" - several aspects: the giving of Dr. Barthold’s full name, the reproduction of his photograph, the mention of his being director of the Fuhlsbüttel veterinary clinic and the statement that, at least between 8 p.m. and 8 a.m. on working days, animal lovers in Hamburg would get sore fingers trying to telephone a veterinary surgeon willing to help them, plus one of the three assertions set out in the Agency’s grounds of appeal (and, previously, in the interim injunction of 15 September 1978 - see paragraph 18 above). Objectively, the article complained of entailed publicity for Dr. Barthold: compared to other veterinary surgeons, it presented him as an exemplary practitioner, thereby being particularly likely to incite the owners of sick animals to turn to his clinic. Such publicity exceeded the bounds of objective comment on matters of justified concern for the applicant. If in the future he were to supply the press with information necessary for the writing of an article, he should, in order to avoid any infringement of Rule 7, paragraph (a), of the Rules of Professional Conduct, ensure beforehand that the text to be published did not involve any unlawful publicity or advertising, by reserving a right of correction or by agreeing on the form of the article with the journalist. In the view of the Hanseatic Court of Appeal, the respondent had at the same time contravened section 1 of the 1909 Act. His intention of enhancing his own competitivity to the detriment of his competitors was to be presumed in the case of this type of publication, and that presumption was not rebutted in the circumstances. It mattered little (unerheblich) that he may additionally or even primarily have been pursuing other objectives, as there was an act done for the purposes of commercial competition as long as the intent to stimulate such competition had not been entirely overriden by other motives ("nicht völlig hinter sonstigen Beweggründen verschwindet"). As for the risk of repetition, also presumed in this matter, there were no grounds for concluding that this was non-existent. Contrary to what the Regional Court had found, the applicant had knowingly and substantially contributed to the publication which highlighted his person and his clinic. It was true that the press had itself taken up the case of "Shalen" and had invited Dr. Barthold to comment only after being informed of the incident by the animal’s owner. However, the applicant had, by his interview, greatly influenced the content of the article and, what was more, had authorised a photograph to be taken of himself. He had thereby provided the opportunity for producing the article in question, with its character of publicity. He could not have been unaware of this risk and the Rules of Professional Conduct required him to ensure that the text to be published did not involve illegal publicity favourable to himself, by reserving a right of correction or by agreeing on the form of publication with the journalist. He could also have made an arrangement with Mrs. B to remain anonymous, although he was in no way obliged to express his views without disclosing his identity. In fact, the respondent had acknowledged in his written pleadings of 13 December 1978 and 12 January 1979 that he had authorised the inclusion of his name and photograph. Although he retracted those statements on 29 March and 6 April 1979, he had not shown that he had insisted on publication without inclusion of such details. The testimony of the journalist was not conclusive on this point. It was not necessary to take evidence from Dr. Arndt, because Dr. Barthold had unquestionably allowed photographs to be taken. That being so, he ought not to have contented himself with obtaining a verbal promise - as he claimed to have done - that he would not himself appear in one of the photographs. Whilst he claimed to have told the journalist that the Rules of Professional Conduct prohibited advertising and publicity, he was wrong to have passed on to her the responsibility of writing an article which complied with those Rules. The danger of repetition persisted notwithstanding the time that had elapsed. The "Shalen" affair was no longer topical, but the press was likely to come back to the issues it had raised, by making reference to this incident along with others, after another interview with Dr. Barthold. The Court of Appeal decided finally not to give leave to appeal on points of law against its judgment: the latter did not depart from the established case-law of the Federal Court of Justice (Bundesgerichtshof), and the case did not raise questions of principle. 23. Dr. Barthold challenged the judgment of 24 January 1980 before the Federal Constitutional Court. He repeated various arguments on which he had based his constitutional application in the interim proceedings (see paragraph 19 above), namely non-observance of equality before the law, of freedom of expression and of freedom to practise a profession, as safeguarded by Articles 3, 5 and 12 of the Basic Law, and incompatibility of the obligation to belong to the Veterinary Surgeons’ Council with freedom of association, as guaranteed by Article 9 of the Basic Law. In addition, he alleged violation of his right to be heard, in particular by a legally competent court (gesetzlicher Richter). On this latter point, he claimed that it was not within the province of the civil courts to apply the Rules of Professional Conduct. The Constitutional Court, sitting as a bench of three judges, dismissed the constitutional application on 6 October 1980, on the ground that it lacked sufficient prospects of success. 24. In the Federal Republic of Germany, veterinary medicine is governed partly by federal law and partly by the law of the Länder. The principal rules relevant to the present case are to be found in the Federal Veterinary Practitioners Act (Bundes-Tierärzteordnung, in the version of 22 August 1977 - "the Federal Act"), the Hamburg Act of 26 June 1964 on the Veterinary Surgeons’ Council ("the 1964 Act" - see paragraph 11 above), the Hamburg Act on Disciplinary Tribunals for the Medical Professions (Gesetz über die Berufsgerichtsbarkeit der Heilberufe, in the version of 20 June 1972 - "the 1972 Act"), the Rules of Professional Conduct of 16 January 1970 (see paragraph 11 above) and the Regulations on the establishment of veterinary clinics (see paragraphs 12 above and 29 below). 25. The profession of veterinary surgeon is not an industrial, commercial or craft occupation (Gewerbe) but, by its nature, a liberal profession (section 1(2) of the Federal Act). According to sub-section 1 of section 1 of the Federal Act, "It shall be the task of the veterinary surgeon to prevent, alleviate and cure suffering and disease in animals, to contribute to the maintenance and development of productive livestock, to protect man from the dangers and harm arising from animal disease and from foodstuffs and products of animal origin, and to endeavour to improve the quality of foodstuffs of animal origin". In order to be able to practise on a permanent basis, an authorisation (Approbation) issued by the appropriate Land authorities is required; such authorisation is granted if the person concerned satisfies the conditions laid down by law (sections 2 to 4 of the Federal Act). 26. The veterinary surgeons practising in Hamburg constitute the Hamburg Veterinary Surgeons’ Council, which is a public-law association (sections 1 and 2 of the 1964 Act). Its functions include defending the professional interests of the veterinary surgeons, ensuring that the latter meet their professional obligations and assisting the public health services (öffentlicher Gesundheitsdienst) in the performance of their duties (section 3 of the 1964 Act). The Council’s organs are the governing board (Vorstand) and the general assembly; the latter adopts the Charter and the Rules of Professional Conduct, which are submitted to the Government of the Land for approval (sections 5 and 8 of the 1964 Act). The Council is under the supervision of the State, which supervision extends to observance of the laws and the Charter (section 18 of the 1964 Act). 27. The Rules of Professional Conduct of the Hamburg Council require each veterinary surgeon to practise in such a way that the profession inspires respect and confidence; the making of pejorative statements about the person, knowledge or skills of another veterinary surgeon is not allowed (Rule 1 (1) and (2)). The Rules contain a number of provisions forbidding veterinary surgeons from advertising their own practices. Under Rule 5, veterinary surgeons may only intervene if asked to do so; offering or providing their services without being requested is at variance with the rules of the profession. Rule 7 deals more specifically with publicity and lays down conditions to be observed (see paragraph 16 above). In addition there are Rules 8 and 9, which concern advertisements in the press and name-plates respectively. 28. Each veterinary surgeon is required to intervene in the event of an emergency (Rule 1 (3)); he must (soll) participate in providing a service at weekends and on holidays and hold himself in readiness to replace any other colleague (Rule 14). The question of a night service for veterinary surgeons, a matter not dealt with in the law or the Rules of Professional Conduct, has been the subject of debate within the profession (see paragraph 12 above). The Council opted on 11 December 1978 for a voluntary solution whereby veterinary surgeons indicate on a list the times when they may be contacted and the Council communicates to the public, by means of an automatic reply service, the names of those veterinary surgeons who are available even outside normal consultation hours. According to the Government, it was apparently quite a long time before a relatively sizeable number of veterinary surgeons agreed to participate in this scheme. In 1979, the Council was said to have felt the need to launch an appeal for volunteers for the weekend and emergency service. Yet again, in 1981, the director of a veterinary clinic publicly criticised the working of the emergency service in Hamburg and stated that he had been unsuccessfully campaigning for two years for a duty rota for all veterinary surgeons (see Die Zeit of 11 December 1981). However, according to the applicant, there has existed since 1982 a system along the lines he had proposed. The Government did not contest this assertion. 29. An establishment for the treatment of sick animals may be called a "veterinary clinic" if it has the requisite premises and equipment and if the Council has given its approval (Rule 19). The detailed rules are set out in Regulations promulgated by the Council (see paragraph 12 above), the most recent version of which dates from December 1982. The 1982 Regulations lay down that henceforth clinics must provide a round-the-clock service for emergencies unless the Council has made other arrangements guaranteeing adequate assistance. 30. The 1909 Act applies to any person seeking to derive income from a regular economic activity; it thus covers industrial, commercial and craft activities, services and the liberal professions. It is designed to protect competitors and consumers, and applies independently of the texts, if any, governing the conduct of members of the liberal profession in matters of publicity and advertising. 31. The courts with jurisdiction to deal with infringements of the 1909 Act - principally the civil courts (section 13 of the Act) - are not bound by any findings made by such professional tribunals as may have considered the same facts in the light of the professional rules governing publicity. However, it has been consistently held by the Federal Court of Justice that breach of these professional rules will, in the normal course of things, also entail infringement of section 1 of the 1909 Act (see paragraph 16 above). The court having to decide the case on the basis of the 1909 Act must nonetheless inquire in each case whether the requirements of section 1 are satisfied. 32. By virtue of section 13, an action for contravention of, for example, section 1 may be brought by any competitor, by trade and professional associations (gewerbliche und Berufsverbände) and, since 1965, by consumer associations.

train

001-75307

ENG

CYP

CHAMBER

CASE OF SHACOLAS v. CYPRUS

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

Christos Rozakis

9. The applicant was born in 1927 and lives in Nicosia. 10. The applicant, a businessman, was the defendant in an action filed against him before the District Court if Nicosia on 23 January 1986 by the Federal Bank of Lebanon (civil action no. 747/86). The plaintiff bank sued the applicant in his capacity as guarantor of a Greek company, Hellas Eurotrade Ltd. 11. The facts leading to the action had taken place between 1975 and 1977 in a number of countries, including Cyprus, Lebanon, Nigeria, France and Greece. 12. Hellas Eurotrade Ltd had been established in 1975 and had three shareholders: the applicant who held 40% of the shares and three other individuals that held the remaining shares in equal parts. The company had been set up for the purposes of performing a contract between another company, World Tide Shipping Corporation, and the Nigerian Defence Ministry for the provision of 240,000 metric tons of cement to the latter. The Nigerian Central Bank had opened a letter of credit for this purpose, issued by a French bank- Banque Nationale de Paris. The obligations and the rights deriving from the contract and the letter of credit were transferred and/or assigned to Hellas Eurotrade Ltd in 1975. The plaintiff bank had undertaken to act as guarantor of the above-mentioned company for the delivery of the cement and the fulfilment of the obligations connected thereto and to provide banking and exchange facilities regarding the above obligation against personal guarantees, including that of the applicant. The action had been based on differences that arose between the plaintiff bank and the applicant from the performance of the obligation for delivery of cement to the Nigerian Government. 13. On 17 December 1977 the plaintiff bank addressed a letter to the Bank of Cyprus Ltd in Nicosia, together with two bills of exchange, one for 465,915.82 US dollars (USD) and the other for USD 300,000, with instructions that they be presented to the applicant for acceptance and payment. The applicant filed a civil action (no. 5746/77) before the District Court of Nicosia. On 29 December 1977 the court declared the two bills void ab initio and without any legal effect. 14. Consequently, on 29 November 1985 the plaintiff bank filed a civil action before the District Court of Nicosia (action no. 11078/85) against the applicant in his capacity as guarantor of the above-mentioned company. However, this action was discontinued and withdrawn by the plaintiff on 9 January 1986. 15. The plaintiff bank then filed civil action no. 747/86 against the applicant claiming an amount of USD 598,729 plus compound interest, the performance of accounts as to the sums which the company had received from the Nigerian Government and a court order for the payment of an amount equivalent to 1% of the received sum which in total exceeded USD 18,881.562 plus interest. On account of the Limitation of Actions Law, Cap. 115, the filing of the action would have been outside the limitation periods prescribed by the said law. However the Law of Suspension of Limitation of Actions (no. 57/64 of 1964) had suspended the laws of limitations in Cyprus. 16. The action was filed on 23 January 1986 by way of writ of summons. 17. The appearance was filed on 25 February 1986 and the statement of claim was filed on 13 May 1986. 18. On 28 May 1986 the applicant filed an application for security of costs which was granted on 11 June 1986 by consent. 19. Between the above date and 2 October 1987, the applicant filed his defence and the court dealt with four applications by the parties. The plaintiff applied twice for extension of time for the purpose of filing its reply (applications that he later withdrew) and also filed an application for amendment of pleadings. The applicant filed an application for discovery of documents. In this period the case was adjourned five times - twice at the parties’ request and three times at the plaintiff’s request with the applicant’s consent. 20. On 2 October 1987 the plaintiff filed an application to exclude one of the applicant’s advocates. The hearing of this application was adjourned twice, once by the court and once at the plaintiff’s request with the applicant’s consent. The hearing was held on 30 April 1988 and on 30 July 1988 the application was dismissed. On 30 July 1988 the plaintiff filed civil appeal no. 7702 against this ruling (see paragraphs 54-57 below). 21. In the meantime, on 19 October 1987 the amended writ of summons was filed. The plaintiff filed an application on 7 November 1987 for an extension for filing the amended statement of claim. This was granted the same day and the statement of claim was filed one month later. On 28 January 1988 the applicant filed an application for an extension for submitting his defence and on 5 April 1988 he submitted a second application for the same reasons. On 28 June 1988 the applicant filed his defence and counterclaim. 22. On 10 October 1988 the plaintiff filed an application to strike out the applicant’s counterclaim. Following the filing of the applicant’s opposition the application was fixed for hearing for 27 October 1988 but was then adjourned by the court until 24 November 1988. The hearing took place on 3 December 1988 and on 11 January 1989 the court granted the application striking the counterclaim out of the action. On 22 January 1989 the applicant filed civil appeal no. 7804 against this ruling (see paragraphs 58-63 below). 23. From 9 October 1989 until 2 March 1990 the court dealt with two applications. Firstly, it dealt with an application filed by the plaintiff to strike out the applicant’s defence. The applicant had been granted two extensions of time for filing his opposition to this application. Secondly, the court dealt with an application filed on 17 November 1989 by the applicant to stay the proceedings. As a result the hearing of the first application was adjourned twice, once by the court and once at the parties’ suggestion that the application be heard after determination of the applicant’s application for stay of the proceedings. When the latter application was dismissed on 16 February 1990, on 22 February 1990 the court fixed the plaintiff’s application for hearing for 2 March 1990 and on that date with an ex tempore ruling it dismissed the application. On 15 March 1990 the plaintiff filed civil appeal no. 8076 against this decision (see paragraphs 64-67 below). 24. On 21 April 1992 the Supreme Court delivered its judgment in appeal no. 7804 and the plaintiff withdrew appeal no. 8076. 25. On 7 May 1992 the case was fixed for mention for 27 May 1992 by the court, ex proprio motu. The case was adjourned at the applicant’s request with the plaintiff’s agreement until 10 June 1992. 26. In the meantime, on 22 May 1992 the plaintiff withdrew appeal no. 7702. Further, on 27 May 1992 the applicant filed another application to stay the proceedings before the district court until the determination of an application which he had filed before the European Commission of Human Rights (application no. 20492/92) complaining that as a result of the domestic courts’ decision to not examine his counterclaim he had been deprived of his right to a fair trial. The plaintiff filed an objection to this application on 9 June 1992. On 6 July 1992 the hearing of the application was adjourned by the court because the case-file could not be traced. The application was heard on 16 September 1992. On 22 September 1992 the district court dismissed the application. 27. In the intervening time, on 10 June 1992, the main action was fixed for hearing for 11 November 1992. However, on 19 October 1992, the parties jointly applied for the adjournment of the hearing. The court directed the parties that if until 18 December 1992 no application for fixing a hearing was filed, the case file would be brought before the court for directions. 28. Meanwhile, on 6 October 1992 the applicant filed an application for discovery of documents. Following one adjournment to allow service of the application, the case was fixed for 16 October 1992 and then for 11 January 1993 at the parties’ request. In the meantime, on 15 December 1992 the plaintiff had also filed an application for discovery. This was also fixed for 11 January 1993. On that date, at the parties’ request, the applications were fixed for 25 January 1993. On 4 February 1993 the district court issued the relevant orders, and the parties complied with them on 12 April 1993. 29. Within the same period, on 18 December 1992 the plaintiff had filed an ex parte application for extension of time for filing the reply. The application was granted the same day and on 14 January 1993 the plaintiff filed its reply. 30. On 20 September 1993 the plaintiff applied for the main action to be fixed for hearing. It was fixed for mention for 18 October 1993 and then adjourned at the parties’ request to complete the discovery procedure until 16 December 1993. On that date the case was adjourned for the same reasons on the joint request of the parties until 31 January 1994, with discovery to be completed by 28 January 1994. 31. On 31 January 1994, the case was fixed for 23 May 1994 in view of the fact that discovery had not been completed yet. In the meantime, on 18 March 1994, the applicant requested an extension for the purposes of discovery and this was granted on 24 March 1994. 32. On 23 May 1994 the hearing was adjourned following a written request by the parties. The parties requested that the hearing start after the summer holidays. The hearing was adjourned until 14 October 1994 and then until 14 February 1995 at the parties’ request. 33. One day before, on 13 February 1995 the applicant filed an application to have the action dismissed. The application was based, inter alia, on the Cypriot Rules of Civil Procedure, Articles 30, 33, 34 and 35 of the Cypriot Constitution and Articles 6, 13 and 14 of the European Convention on Human Rights. The applicant complained that there had been an inordinate delay both in the filing of the action by the plaintiff and in the hearing of the case. As a result he claimed that deciding the issue of delay at a later stage would infringe the relevant Constitutional and Convention provisions and deprive him of his right to a fair hearing within a reasonable time. The applicant maintained that the continuation of the proceedings would be vexatious and would constitute an abuse of the process of the court. In this context, he requested the court to consider the delay on the part of the plaintiffs in filing the action and the fact that, according to the Limitation of Actions Law (Cap. 115) the action would have been statute-barred several years before its filing, had the operation of this Law not been suspended by the Law of Suspension of Limitation of Actions (no. 57/64 of 1964), the constitutionality of which was challenged. Further, he noted that he had suffered damage because of the protracted length of the proceedings. In this connection he alleged, among other things, that important witnesses had died and that he would not be able to initiate compensation proceedings since one of the co-guarantors had died and Hellas Eurotrade Ltd had been dissolved. 34. On 14 February 1995 the hearing of the main action was adjourned with the plaintiff’s consent, so that the above application would be heard first. The court fixed the application for hearing for 14 and 16 March 1995. From 14 March 1995 until 5 April 1995, four hearing sessions were held and the decision was reserved on the latter date. On 1 August 1995 the district court rejected the application. It noted amongst others that it had not been argued that the action itself and its continuation were frivolous or vexatious and thus, under the applicable rules, the application could not be dismissed on that ground. Furthermore, it concluded that the delays in the proceedings –amounting to five and nine months- were not significant and did have any adverse effects on the applicant so as to justify the dismissal of the action. On the contrary it was more likely that the delays in the presentation of oral and/or written evidence caused prejudice to the plaintiffs who had the burden of proof in the action. Finally, the Supreme Court found that, in line with its jurisprudence, the Law of Suspension of Limitation of Actions was constitutional. 35. On 9 August 1995 the applicant lodged civil appeal no. 9520 against this decision (see paragraphs 68-74 below). 36. On 3 October 1995 the case was fixed before the court. On that date the applicant requested the stay of the main proceedings before the district court pending the determination his appeal. The district court noted that it was well established in the Supreme Court’s case-law that piecemeal appeals could not constitute a valid reason for delaying or adjourning the main proceedings and rejected the applicant’s request. The court fixed the main action for hearing for 4 March 1996. 37. On 4 March 1996 the applicant applied for an adjournment of the hearing pending the determination of his appeal but this was rejected. The hearing thus began on that date with Kronides J and four hearing sessions were held until 8 March 1996. The hearing was then set for 20 March 1996 but was then adjourned until 25 April 1996 at the parties’ request for the purposes of discovery. From that date until 1 July 1996 the hearing was adjourned four times by the court itself in view of the fact that the presiding judge had been promoted to the Supreme Court. On 1 July 1996 the hearing was set for 16 October 1996 to take place de novo. 38. The hearing was however adjourned once at the plaintiff’s request with the applicant’s consent and once by the court due to the enactment of an amendment to the Courts of Justice Law 1960 (Law no. 14/60) abolishing full courts. On 5 December 1996 the hearing was set for 12 February 1997. Following a one-day adjournment by the court and one adjournment at the plaintiff’s request, with no objection on the applicant’s part, the hearing was fixed for 8 May 1997 before Kramvis J, the new President of the District Court. 39. On 8 May 1997 the hearing commenced and from that date until 15 July 1997 nineteen hearing sessions were held. 40. On 17 July 1997 the plaintiff applied for an adjournment which was accepted by the applicant. The case was fixed for 3 September 1997 and then for hearing for 7 September 1997 with continuing hearing sessions to be held. 41. On 8 July 1997 the plaintiffs applied for an order of inspection of documents in the applicant’s possession. The application was fixed for hearing for 11 September 1997 and then 12 September 1997. Following an application by the applicant for an extension to file his opposition it was set for 7 October 1997. On 15 October 1997 the case was assigned to the newly appointed President of the District Court, Clerides J. The applicant filed his objection to the application on 20 November 1997 and the hearing was held on 21 November 1997. On the latter date the application was dismissed in view of the parties’ failure to appear before the court. 42. On 15 December 1997 the President of the District Court fixed the main action for directions for 23 January 1998 and for hearing on 9 and 10 March 1998. The plaintiff requested that the case be heard in March and the applicants accepted. 43. In the meantime, on 22 December 1997, the plaintiffs filed a new application for the inspection of documents, to which the applicant filed an objection on 23 February 1998, following the grant of an extension for its submission. The hearing of the application commenced on 25 February 1998 and four hearing sessions were held on the dates that had been scheduled for the hearing of the main action. The hearing of the application was completed on 8 April 1998 and the application was granted on 5 May 1998. 44. In the intervening time, on 6 March 1998 the plaintiffs filed an application to amend their statement of claim for the second time. The case was fixed for directions for 11 March 1998 and then 30 March 1998, the applicant’s opposition to be filed within this period. 45. On 9 March 1998 the plaintiffs filed an application to allow the continuation of the hearing from where it had been left with the previous President of the District Court. This application was also fixed for 30 March 1998. From that date onwards both applications were considered together. They were fixed for 15 April 1998 with directions for filing opposition. On that date the applicant applied for an extension of time for the filing of his opposition and the applications were fixed for 5 May 1998. On the latter date the hearing was adjourned since the file of the case was transferred to the Supreme Court for the hearing of civil appeal no. 9520, and the applications were fixed for 11 May 1998. On this date the presiding judge requested that no more delays take place. Following another application by the applicant for an extension of time for the filing of his opposition the applications were fixed for hearing for 24 June 1998. On that date the hearing of the first application was fixed for 1 July 1998 whereas the second application was withdrawn. The hearing of the first application took place on 1 July 1998 and on 6 October 1998 it was rejected. On 15 March 1998, the plaintiff lodged civil appeal no. 10341 against the district court’s ruling. 46. Due to the above applications, the hearing of the action which had been fixed for 9 March 1998 was adjourned until 24 June 1998 and then re-adjourned until 15 September 1998. In the interim, on 7 July 1998, the Supreme Court delivered its judgment in appeal no. 9520. 47. On 15 September 1998 the hearing of the main action was scheduled for 21, 22, 25, 26, 27 and 28 January 1999. On 19 January 1999, the Supreme Court issued judgment in appeal no. 10341 reversing the district court’s ruling and granting the plaintiff’s application for amendment. The hearing of the main action was then rescheduled for 29, 30, 31 March and 6 and 7 April 1999. 48. In the meantime the parties submitted their amended pleadings and on 23 March 1999 the applicant filed an application for amendment of his statement of defence which was fixed for 29 March 1999. On that date the application was granted with the plaintiff’s consent. The main action was then re-scheduled for hearing for 31 March 1999. On that date the court fixed the hearing for 6 April 1999 following a joint request by the parties. 49. On 6 April 1999 the hearing of the main action commenced. Between that date and 17 October 2000 approximately twenty-five hearing sessions were held for the examination of the plaintiff’s first witness. Within this period three adjournments took place, two due to the ill-health of the parties’ representatives and one following an application by the applicant for another stay of the proceedings pending the transcription of the records of the previous hearings that had been conducted before the full court and subsequently before the one presiding judge. 50. The cross-examination of the above witness started on 17 October 2000 and continued until 12 September 2001. Approximately thirty-one hearing sessions were held. In this period the hearings were adjourned approximately six times: three times at the plaintiff’s request, one at the applicant’s due to the ill-health of his lawyer and two by the court. 51. From 26 September 2001 until 27 May 2003 they were approximately one hundred and twenty-three sittings for the examination and cross-examination of eleven witnesses, including the applicant. Within this period the applicant filed an application for the amendment of his defence and an application for the withdrawal of his lawyer from the case. 52. From 3 July 2003 until 13 August 2003 the parties’ addressed the court. There were twenty-two sittings in this respect. The court reserved its judgment on the latter date. 53. On 15 September 2005 the district court delivered its judgment dismissing the action and awarding costs in favour of the applicant. 54. On 30 July 1988 the plaintiff filed appeal (civil appeal no. 7702) against the ruling of the district court dismissing its application for the exclusion of one of the applicant’s lawyers. 55. On 29 August 1988 the District Court Registrar forwarded the notice of appeal to the Chief Registrar of the Supreme Court and notified him that the record was being prepared. On 7 September 1988 the Chief Registrar sent a notice to the plaintiff to submit the prescribed fee for the preparation of the record so that the appeal could be fixed for hearing. 56. The file of the proceedings was forwarded to the Supreme Court on 27 September 1988 and on 24 November 1988 the plaintiff wrote to the Supreme Court registry requesting that the appeal be fixed for hearing. On 5 September 1991 the appeal was fixed for hearing on 19 November 1991 together with civil appeals nos. 7804 and 8076. On that date the Supreme Court directed that the hearing in the appeal would take place after the completion of the hearing in appeal no. 7804. 57. On 21 April 1992, following the judgment in appeal no. 7804, on the plaintiff’s request the appeal was fixed for directions for 14 May 1992 and then 15 May 1992. On the latter date the plaintiff requested an adjournment and then withdrew the appeal on 22 May 1992. 58. On 22 January 1989 the applicant filed civil appeal no. 7804 against the district court’s decision ordering the exclusion of the counterclaim from the action. 59. On 7 March 1989 the applicant applied to the Registrar to fix a hearing date. 60. On 29 November 1989 the Registrar advised the parties that the appeal was fixed for hearing for 22 February 1990. On the latter date a member of the bench exempted himself from hearing the appeal and the Registrar was directed to make arrangements for the case to be assigned to a different bench. The Chief Registrar gave notice to the parties that the appeal was fixed for hearing on 26 April 1990. 61. On 12 April 1990 the applicant applied with the plaintiff’s consent for an adjournment of the hearing. The appeal was adjourned sine die and the Registrar was directed to fix it as soon as possible. The hearing was fixed for 19 November 1991. 62. The hearing commenced on the latter date and continued on 13 and 17 January 1992. Judgment was reserved on the latter date. 63. On 21 April 1992 the appeal was dismissed. 64. On 15 March 1990 the plaintiff filed civil appeal no. 8076 against the district court’s decision for dismissal of its application to strike out the defence in the main action. 65. The notice of appeal was forwarded by the District Court Registrar to the Supreme Court and on 28 March 1990 the plaintiff was notified to submit the prescribed fee for preparation of the records. 66. On 19 November 1991 the appeal was fixed together with appeals nos. 7702 and 7804. 67. On 21 April 1992, following the judgment in appeal no. 7804, in view of the outcome of the appeal, the plaintiff sought leave to withdraw the appeal. Leave was granted and no costs were claimed by the applicant. 68. On 9 August 1995 the applicant filed appeal no. 9520 against the district court’s ruling of 1 August 1995 rejecting his application to have the action dismissed due to the delay in the proceedings. 69. On 10 April 1997 the appeal was fixed for preliminary hearing on 22 May 1997. On that date it was adjourned by the court for 27 June 1997 due to the ill-health of one of the judges. 70. Due to the fact that the typed record of the proceedings had only been received on 26 June 1997, the preliminary hearing was set for 17 July 1997. 71. On 17 July 1997 the court gave directions to the parties for the submission of their outline addresses and instructed the Registrar to fix a hearing date. 72. On 4 November 1997 the Registrar fixed the hearing for 28 January 1998. On the latter date the President of the Supreme Court exempted himself from the proceedings. 73. On 2 February 1998 the applicant applied in writing to the Chief Registrar of the Supreme Court to fix a hearing date before the full bench in view of the important issues raised in the appeal. On 11 February 1998 the plaintiff addressed a letter to the Chief Registrar objecting to this. On 18 February 1998 a hearing was fixed on this issue for 6 April 1998. The hearing was conducted on that day and on 15 April 1998 the Supreme Court rejected the applicant’s application. The hearing of the appeal was then fixed for 5 May 1998. 74. Judgment was given on 7 July 1998 and the appeal was partly upheld. In its judgment the Supreme Court considered that the fairness of the proceedings ought to be considered with, and as part of, the proceedings relating to the action itself. It concluded that the district court should not have considered the applicant’s allegations within the context of an interim application but within the framework of the trial taken as a whole. Only in the latter context would it be possible to determine whether or not the trial had been fair. The protection of rights aimed at securing a fair trial and not hampering it. The Supreme Court further rejected the contention that the Law of Suspension of Limitation of Actions which permitted the filing of an action without any time limitation was unconstitutional as decided in its judgment in the case of Michael Paporis v. the National Bank of Greece (civil appeal no. 6897, judgment of 18 December 1986). Accordingly, the Supreme Court ordered the proceedings to be continued and the hearing of the action to be fixed as soon as possible. 75. On 15 March 1998 the plaintiff filed civil appeal no. 10341 against the district court’s decision for dismissal of its application for amendment of its statement of claim. The Supreme Court fixed the appeal for hearing for 15 November 1998. The hearing was held on that day and judgment was delivered on 1 January 1999 upholding the appeal. 76. In its judgment of 15 September 2005 the district court firstly dealt with the applicant’s claims before it concerning the violation of his right under the Cypriot Constitution and the Convention for a fair trial within reasonable time. In this context the court examined the responsibility of the parties and the courts in the delay of the proceedings as well as other factors that the applicant alleged contributed to the delay. 77. In sum, the court found that the parties had caused serious delays to the commencement and the smooth running of the proceedings. The parties’ non-timely observance of the rules or directions of the court, the submission of applications for adjournments and the bombardment of all kinds of interlocutory proceedings and appeals were the principal cause for the delay and perpetuation of the proceedings. The court noted that the defendant (applicant) had not complied with set deadlines and had repeatedly sought the stay of the proceedings. The plaintiff bank had contributed to the overall prolongation of the proceedings by delaying the lodging of the action. The court observed that the courts had dealt with the parties’ handling of the case and applications with satisfactory responsiveness and tolerance and without excessive delay. It was not possible to work out the exact blame of each litigant but it was clear that neither party showed a spirit of pressing on with the case. 78. The court observed that part of the responsibility for the late commencement and/or continuation of the trial was also due to the judicial mechanisms. In this context it pointed out the changes that had taken place in the bench and the delays at the interim appeal stage, in particular the delay that occurred before the Supreme Court in the trial of the interim appeal concerning the striking out of the applicant’s counterclaim. In any event, the court considered that this delay had not affected or should not have affected the furtherance of the main action by the parties, since, pending the appeal, no stay of proceedings had been ordered. On the contrary the applicant had applied to the district court for a stay pending the determination of the above appeal, which was rejected. 79. The court found that the overall length delay in determining the parties’ rights and obligations did not in any way negatively affect the presentation of their case. It concluded that the trial had been fair and that the litigants had been provided with every possible opportunity. 80. On 12 December 2005 the Court was informed that the plaintiff filed an appeal against the first instance judgment on 27 October 2005 (civil appeal no. 314/05). These proceedings are still pending. 81. Articles 30 (2) and 35 of the Cypriot Constitution in so far as relevant provide as follows: 30 (2) “In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by [a] ... court ...”. 35 “The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competency the efficient application of the provisions of this Part”. 82. In the case of Takis Yiallouros v. Evgenios Nicolaou (8 May 2001, civil action no. 9931) the Supreme Court upheld the first instance decision of the Nicosia District Court establishing that a violation of any rights protected by the Cypriot Constitution provided the victim with an actionable right. The respondent had brought an action against the appellant for damages sustained as a result of the violation of his right to private life and secrecy of correspondence and communications by the appellant. The Supreme Court found that the violation of the above rights safeguarded by Articles 15 (1) and 17 of the Constitution gave rise to a right for legal protection through the course of justice and to remedies provided by the law. The respondent was awarded damages as compensation for the consequences of the violation of his rights. 83. On 30 July 2001 the Supreme Court adopted “The Rule of Judicial Practice” which provides as follows: “During the Court’s meeting of 3 July 2001 and before the Court proceeds with its judicial work, the President announced the issuing of the following Judicial Rule of practice. The President of the Supreme Court Mr G.M. Pikis stated as follows: With the unanimous agreement of all the Judges of the Supreme Court, the following Rule of Practice is issued: It is acknowledged that the duty for the hearing of cases within a reasonable time is the individual duty of the trial judge and a collective duty of the judicial function. The establishment of rules for conducting a trial within reasonable time and the supervision of the procedures towards preventing delays is the responsibility of the Supreme Court. Its performance must be regulated in a way which secures, not only in advance but also during the course of the trial of cases, that the safeguards set by Article 30.2 of the Constitution and the principles governing the proper administration of Justice, as set out in circulars of the Supreme Court, are complied with. For achieving this purpose, the present Rule of Practice is adopted: Whenever it comes within the knowledge of the Supreme Court (either through the Registries or following representations made by any person having an interest in the trial of the case without delay) that the trial of the case is being delayed, or it appears from the arrangements made – in respect of its trial– that it is possible that the trial be delayed, or where it appears that the hearing is not conducted uninterruptedly as determined by the circulars of the Supreme Court, the Supreme Court may issue directions for preventing delays in the hearing of the case and for the uninterrupted trial of the case as it deems fit. The responsibility of observing the conduct of cases undergoing trial, for the purpose of briefing the Supreme Court of delays noted or envisaged in the trial of civil and criminal cases, shall be vested with the Registrar, who will serve at the Supreme Court. The gathering of information on this matter shall be regulated by the Chief Registrar in due course”.

train

001-101769

ENG

UKR

CHAMBER

CASE OF MUSHTA v. UKRAINE

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

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

4. The applicant was born in 1952 and lives in Letychivka, Cherkasy region. 5. In March 2005 the applicant instituted proceedings in the Monastyryshche Court against her former employer, the Monastyryshche Department of Land Resources, seeking reinstatement as an employee and recovery of salary arrears. In the proceedings, the applicant was represented by a lawyer. 6. On 23 May 2005 the court allowed the applicant's claims in full. 7. The defendant party appealed against that judgment. The applicant submitted comments on the appeal. 8. At a preliminary hearing on 1 July 2005 the Cherkasy Regional Court of Appeal issued a ruling scheduling a hearing on the merits of the appeal for 17 August 2005. 9. According to the Government, a copy of the ruling of 1 July 2005 was delivered to the applicant in person on 15 July 2005. The Government submitted a copy of the acknowledgment of receipt completed and signed by a postman and a copy of a report from the Cherkasy Post Office, indicating that the applicant had received a copy of the ruling in person. In that report the post office mentioned that the register of delivered mail containing the applicant's signature in that connection had been destroyed and that a copy of it was not available. 10. The applicant stated that neither she nor her lawyer had been informed of the hearing on appeal in advance. According to her, the documents submitted by the Government could not prove that she had received a copy of the ruling of 1 July 2005, as the acknowledgment of receipt did not bear the post mark of Post Office No. 16 of Cherkasy, which normally delivered mail to her place of residence. 11. From 10 to 29 August 2005 the applicant underwent treatment at the Monastyryshche Central Hospital. 12. On 17 August 2005 the Cherkasy Regional Court of Appeal heard the case in the absence of the applicant and her lawyer. It found that the applicant's dismissal had been lawful, quashed the judgment of the first-instance court and rejected the applicant's claims in full. According to the judgment of the Court of Appeal, it could be appealed against in cassation to the Supreme Court within one month. 13. According to the applicant, on 7 September 2005 her lawyer learned that the Court of Appeal had decided on the case on 17 August 2005. On the same day he lodged with the Monastyryshche Court a request for a copy of the decision on appeal. 14. On 5 October 2005 the lawyer received a copy of the decision of 17 August 2005. 15. At the applicant's request, a copy of that decision was also provided to her by the Monastyryshche Court on 6 October 2005. 16. On 3 November 2005 the applicant lodged an appeal in cassation with the Supreme Court, challenging the factual findings and application of law by the Court of Appeal. The applicant also requested the Supreme Court to renew the time-limit for lodging her appeal in cassation, stating that she had not been informed of the decision of 17 August 2005 in due time. 17. On 15 November 2005 a judge of the Supreme Court dismissed the applicant's appeal in cassation as lodged out of time, stating, without any further explanation, that the ground on which the applicant had relied in requesting the renewal of the impugned time-limit was not sufficient to justify the requested course of action. 18. The relevant extracts from Chapter 7 (Procedural terms) of the Code of Civil Procedure of 1963, as worded at the material time, read as follows: “The terms during which procedural acts are to be performed shall be set by the law or by the court.” “...Complaints and documents submitted after the expiry of procedural terms shall be left without consideration if the court does not find reasons for extension or renewal of the term.” “... A term [expressed] in months shall expire on the corresponding date of the last month of the term ... The last day of the term shall run until [midnight]... The term shall not be considered to be missed if the complaint or other documents or money required by the court have been submitted to the post office before its expiry.” “At the request of a party ... the court may renew or extend the terms set by the court. The court may renew the term set by the law if it has been missed for reasons found by the court to be justifiable. The question concerning renewal of the expired term shall be decided by the court ... to which a document was due to be submitted. [T]he parties ... shall be summoned to a hearing [on that question] though their failure to appear shall not prevent the court from considering [it]... A document concerning which the request for renewal of the term has been lodged must be submitted together with the request. A court's ... ruling refusing to renew the missed term may be appealed against ...” 19. The relevant extracts from Chapter 22 (Court judgments) of the Code of Civil Procedure of 1963, as worded at the material time, read as follows: “The court shall send to the parties ... who were not actually present at the court hearing ... copies of the judgment or of the rulings by which the proceedings were suspended or discontinued or the claim was left without consideration, within five days of their pronouncement.” 20. The relevant extracts from Chapter 40 (Appeal procedure) of the Code, as worded at the material time, read as follows: “Cases shall be considered by a court of appeal under the rules set for consideration of cases by a court of first instance, with the exceptions envisaged in this Chapter. ...” 21. The relevant extracts from Chapter 41 (Cassation procedure) of the Code, as worded at the material time, read as follows: “The court of cassation instance is the Supreme Court of Ukraine.” “The parties and other persons taking part in the case ... have the right to challenge in cassation judgments and rulings adopted by the first-instance court which have been considered by the court of appeal, as well as rulings and judgments of the court of appeal. The grounds for [an appeal] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law.” “An appeal in cassation ... shall be lodged within one month of the day of the pronouncement of the ruling or judgment of the appeal court. If the time-limit ... has been missed for reasons which the court recognises as justified, the court may, at the request of the person who lodged the appeal ... renew that time-limit for a period not exceeding one year from the day on which the right to an appeal in cassation arose ...” 22. The relevant extracts from Chapter 6 (Procedural terms) of Section I (General provisions) of the Code of Civil Procedure of 2004, as worded at the material time, read as follows: “1. The terms during which procedural acts are to be performed shall be set by the law, and if they have not been set by the law [the terms shall be] set by the court.” “1. A procedural term shall start running on the day after the calendar date of the event [to which the term is linked]...” “... 2. A term [expressed] in months shall expire on the same date of the last month of the term ... 5. The last day of the term shall run until [midnight] ... 6. The term shall not be considered to be missed if the claim, complaint, other documents or materials, or money have been submitted to the post office or transferred by other means of communication before its expiry.” “1. The court shall renew or extend the term ... at the request of a party ... if it has been missed for justifiable reasons. 2. The question concerning renewal or extension of the expired term shall be decided by the court ... to which a document or evidence was due to be submitted. The persons taking part in the proceedings shall be informed of the place and time of consideration of that question. The presence of those persons is not compulsory. 3. A document or evidence concerning which the request [for renewal or extension of the term] has been lodged may be submitted together with the request...” 23. The relevant extracts from Chapter 7 (Judicial decisions) of Section III (Procedure for consideration of claims) of the Code, as worded at the material time, read as follows: “... 2. At a request of a person who took part in the case copies of a court decision shall be given to him within five days of its pronouncement. 3. Copies of a court decision shall be sent, within five days of its pronouncement, by registered post with acknowledgment of receipt to persons who took part in the case, but who were not present at the court hearing. ...” 24. The relevant extracts from Chapter 1 (Appeal procedure) of Section V (Procedure for review of judicial decisions) of the Code, as worded at the material time, read as follows: “1. Decisions of the court of appeal shall be issued ... in accordance with the procedure envisaged by Article 222 of this Code. 2. Copies of decisions of the court of appeal shall be re-issued by the court of first instance keeping the case-file.” 25. The relevant extracts from Chapter 2 (Cassation procedure) of Section V (Procedure for review of judicial decisions) of the Code, as worded at the material time, read as follows: “1. The court of cassation instance in civil cases is the court which is envisaged by the Judiciary Act as the court of cassation in such cases.” “1. The parties and other persons taking part in the case ... have the right to challenge in cassation: 1) judgments of the court of first instance, after they have been reviewed on appeal, judgments and rulings of the appeal court adopted [in the course of] the consideration [of the case] on appeal ... 2) rulings of the court of first instance ... after they have been reviewed on appeal and rulings of the appeal court if they obstruct further proceedings in the case. 2. The grounds for [an appeal] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law.” “1. An appeal in cassation ... may be lodged within two months of the day on which the judgment (ruling) of the appeal court becomes final. 2. If the term ... has been missed for reasons which the court recognised to be justifiable, the court of cassation instance may, at the request of the person who lodged the appeal, renew that term, though for a period not exceeding one year from the day on which the right to an appeal in cassation arose. 3. An appeal in cassation lodged out of time ... shall be returned by the court of cassation to the person who lodged it, if that person does not raise the question of renewal of that term and also if the [request for] renewal is refused. 4. The question of renewal of the term ... shall be determined by a ruling of the court of cassation instance.” “1. In the course of consideration of the case in cassation, the court shall verify, within the limits of the cassation appeal, the accuracy of the application of norms of substantive or procedural law by the courts of first or appeal instances, [but it] shall have no power to establish or to hold proven facts which were not established in the judgment or dismissed by it, [or] to decide on the question of reliability ... of [particular] evidence or of the weight to be given to certain evidence ... 2. The court of cassation instance shall [examine the question of] the lawfulness of judicial decisions only within the limits of the claims raised before the court of first instance. 3. The court shall not be limited by the arguments of the cassation appeal if, in the course of the consideration of the case, [it] discerns the wrongful application of norms of substantive law or a violation of the norms of procedural law, constituting grounds for the compulsory quashing of the decision.” “1. ...[T]he court of cassation instance has the power to: (1) adopt a ruling dismissing the cassation appeal and leaving the [contested] decision in force; (2) adopt a ruling fully or partly quashing the decision and referring the case back to the court of first instance or appeal for fresh consideration; (3) adopt a ruling quashing the decision of the court of appeal and leaving in force the judicial decision which was erroneously quashed by the court of appeal; (4) adopt a ruling quashing the judicial decisions and terminating the proceedings in the case or leaving the claim without consideration; (5) quash the judicial decisions and adopt a new judgment or vary the judgment [on the merits of the case], without referring it back for fresh consideration ...” 26. The relevant extracts from Section XI (Final and transitional provisions) of the Code, as worded at the material time, read as follows: “1. This Code shall enter into force as from 1 September 2005... 3. [The following normative acts] shall be repealed with the entry into force of this Code: The Code of Civil Procedure of ... 1963... 11. Decisions adopted by courts of appeal before the entry into force of this Code may be appealed against in cassation if the term for [lodging] an appeal in cassation has not expired under the Code of Civil Procedure of 1963.”

train

001-105691

ENG

HRV

CHAMBER

CASE OF ĐURĐEVIĆ v. CROATIA

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

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

4. The applicants were born in 1967, 1966 and 1994 respectively and live in Kloštar-Ivanić. 5. The applicants allege that on 16 June 2009 at about 9.30 p.m. the third applicant and his brother Z.Ð were attacked in front of the “Yogi” restaurant in Ivanić Grad by a group of six men. The police intervened and took the third applicant and his brother to the Ivanić Grad police station. The third applicant refused to sign the police incident report, which stated that he had 1 g/kg of alcohol in his blood. When, at about 10.30 p.m., the first and second applicants arrived at the police station they found that the third applicant had been beaten up and had blood all over him. 6. When the second and third applicants went to their car, two police officers, one of whom was S.M., approached them. The unidentified police officer opened the door and S.M. pulled the second applicant out of the car, twisting her right arm, punched her in the chest and kicked her in the abdomen. S.M. then kicked the third applicant in the abdomen and seized him by the throat. The second applicant called the Zagreb Police to tell them about the incident, but there was no reaction. 7. After the incident, the applicants and other members of their family went to Ivanić Grad Medical Emergency Centre (Služba hitne medicinske pomoći, ispostava Ivanić Grad), where the doctor refused to record the applicants’ injuries. The applicants and other family members then went to Bjelovar General Hospital (Opća Bolnica Bjelovar), where they were examined at about 2 a.m. It was established that the second applicant had suffered contusions of the chest, head and pelvis (contusio thoracis, capitis et pelveos), while the third applicant had suffered contusions on the head, with abrasions, and on the nose (contusio capitis cum excoriations et contusio nasi). The injuries were classified as minor bodily injuries. 8. On an unspecified date, the first applicant complained to the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) that his family had not been treated correctly at Ivanić Grad Medical Emergency Centre. On 17 August 2009 S.L., the principal of Zagrebačka County Health Centre (Dom Zdravlja Zagrebačke Županije), submitted his observations to the Ministry, stating that the applicants had pressured the doctor in charge to diagnose injuries, but the doctor had behaved professionally and refused to record injuries that did not exist. 9. The Government alleged that on 16 June 2009 in the evening Z.Ð., a son of the first and second applicants and brother to the third applicant, was having dinner at the “Yogi” restaurant in Ivanić Grad when M.Š., obviously very drunk, approached him, insulted him because of his Roma origin and spat in his food. Z.Ð. left the restaurant, but soon afterwards, at about 9.30 p.m., came back with the third applicant to retrieve his car, which had been parked in front of the restaurant. 10. There was a verbal and then a physical dispute between Z.Ð. and the third applicant on the one side and M.Š. on the other. Z.Ð. and the third applicant were aided by their relatives S.Ð., V.Ð., T.Ð. and B.Ð. The police soon arrived and the conflict then ceased. The participants were taken to the Ivanić Grad police station. 11. At about 10.30 p.m. the same day a small group of Roma, including the first and the second applicants, arrived at the police station in search of M.Š. When the police officers warned them off, they left the police station. However, the second applicant continued to shout in front of the police station, insulting and threatening the police officers. Police officers S.M. and A.B., now dressed in plain clothes as they were no longer on duty, approached the second applicant asking her to calm down, without using any force. The second applicant then left. 12. The applicants had then gone to the Ivanić Grad Medical Emergency Centre, where the doctor was unable to detect any injuries to them. 13. On 16 June 2009 the Ivanić Grad police interviewed Z.Ð., M.Š. and the third applicant, as well as a witness, I.G., a waitress in the “Yogi” restaurant. 14. I.G. stated that at the critical time she had been serving Z.Ð. in the restaurant when M.Š. had approached him, insulted him because of his Roma origin and spat in his food. Z.Ð. had left and had soon come back with three other Roma persons, a man and two women. A dispute, at first verbal and then physical, had ensued. She could not see clearly who had hit whom, but had heard verbal insults from everyone. 15. The third applicant said that after his brother had come home and told him about the abuse by M.Š. at the restaurant, the two of them had returned to the restaurant, since their car had been left there. A group of unknown men, including M.Š., had approached them. The third applicant had started to run home when suddenly somebody had hit him in the back. He had fallen to the ground and the men had continued to beat him all over the body. He had lost consciousness. 16. Z.Ð. also described the incident in the restaurant and said that when he had come back with the third applicant to retrieve his car, which was parked in front of the restaurant, a group of unknown men, including M.Š., had approached them. He and his brother had started to run home. When he got home and saw that his brother was not there, he had gone back to look for him. He had found him in Babonićeva Street. They had telephoned their relatives V.Ð. and S.Ð. and they had all returned to the restaurant, where they had found M.Š., who had immediately started to insult them and then approached them and hit them. They had hit him back. M.Š. had then kicked S.Ð. several times in the belly. The police had then arrived and the fighting had ceased. 17. M.Š. also described the incident in the restaurant, admitting that he had verbally insulted Z.Ð. because of his Roma origin and then spat in his food. He explained that after a few minutes Z.Ð. had come back with his brother and two Roma women. They had started to insult him and then attacked him. He had defended himself by hitting and kicking the attackers. The police had then arrived and the fighting had ceased. 18. On 9 July 2009 the Ivanić Grad police indicted M.Š., Z.Ð., the third applicant, S.Ð. and V.Ð. in the Ivanić Grad Minor Offences Court. On the same day, on the basis of the police report and without holding a hearing, that court found M.Š., Z.Ð., S.Ð. and V.Ð. guilty of: “on 16 June 2009 at about 9.30 p.m. in Kloštar Ivanić, ... in the “Yogi” bar ..., disturbing public order and peace in that the first defendant M. entered the said premises obviously drunk, approached a table where the second defendant Z. was sitting, started to insult him ..., and spat in his food. Immediately after that the second defendant Z. stood up and left the restaurant. After some time, the second defendant Z. came back, together with his brother, the third defendant D., to retrieve his car, which was parked in front of the restaurant. The first defendant M., together with three unknown men, approached them, and then also the fourth defendant S. and the fifth defendant V., who sided with the second and the third defendants and insulted the first defendant and the others ... After the verbal insults, the first defendant M. attacked the fourth defendant S., who is pregnant, and the fifth defendant V., as well as T. and B.Ð. who were in their company, and hit them several times in the belly. The second defendant Z. and the third defendant D. also got involved in the fight with the first defendant M., all hitting and kicking each other. When officers from the Ivanić Grad police station arrived, the defendants stopped disturbing the peace.” 19. The Minor Offences Court issued a minor-offences order finding M.Š. guilty under section 6 of the Minor Offences Against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira), and fined him 1,170 Croatian kunas (HRK). The other defendants were found guilty under Article 13 of the same Act and fined HRK 195. The order in respect of M.Š. became final, while Z.Ð., S.Ð. and V.Ð. objected, and on 17 November 2009 the same court, after having heard the defendants, again found them guilty and issued a warning against them. No appeal ensued. 20. The proceedings in respect of the third applicant were severed since he was a minor. On 22 October 2009 the Minor Offences Court found him guilty of participating in a fight with his brother Z. against M.Š. and a court reprimand was issued against him. No appeal ensued. 21. On 16 June 2009 the Ivanić Grad police station indicted the second applicant before the Ivanić Grad Minor Offences Court, alleging that on 16 June 2009 at about 10.30 p.m. she had disturbed the peace in Ivanić Grad in that she had approached her husband’s car and shouted and pressed the car’s horn. She had also verbally insulted the police officers at the Ivanić Grad police station, calling them thieves, threatening to burn their houses down and cursing them. 22. On 17 June 2006 the Bjelovar General Hospital submitted a report to the Ivanić Grad police station stating that the second applicant had been seen by a doctor in that hospital on 17 June 2009 at 2 a.m. and that she had sustained contusions to the chest, head and pelvis at the hands of an unknown person; and that the third applicant had suffered contusions on the head, with abrasions, and a contusion on the nose. 23. A medical report of 19 June 2009 shows that ultrasound examination of the second applicant revealed a subcutaneous haematoma in the sacral area measuring 92x74x23 millimetres. 24. On 1 July 2009 the Ivanić Grad police station interviewed M.Šk., a waitress at the “Argentina” bar located near the scene of the incident of 16 June 2009 at about 10.30 p.m. She said that at that time she had been at the terrace of the bar together with two police officers, S.M. and A.B. She had heard noise coming from a nearby car park, the noise of a car horn and shouting. Police officer A.B. had gone to see what was going on. She had heard female voices shouting. Other police officers soon joined him. Shortly afterwards she had heard S.M. shout ”Stop! Police!”. She had gone back into the bar and then come out again. She had seen police officers approaching the car and the situation had calmed down. Soon after that M.S., who lived nearby, had come to the bar saying that the noise had woken him. She had told him not to go there and that the police had already taken care of the situation. She also said that it was not true that the police officers had used force, they had only asked the unknown persons to calm down. 25. On the same day the Ivanić Grad police station interviewed M.S., who said that on 16 June 2009 at about 10.30 p.m. he had been on the terrace of the “Argentina” together with M.Šk. and two police officers from the Ivanić Grad police station, S.M. and A.B. He had heard noise from the nearby car park – someone had been sounding a car horn. Officer A.B. had gone over to see what was going on. The shouting had continued and judging by the voices he had heard he had concluded that they belonged to several women. Police officer S.M. had also gone to the car park. Soon after that he had heard S.M. shout “Stop! Police!”. He had then left the terrace and approached the car park, where he had seen a group of Roma coming from the direction of the police station, talking loudly. One of the women in the group had probably called the Zagreb Police telling them that she had been beaten by two police officers in Ivanić Grad, which was untrue. Soon after that one or two uniformed police officers had appeared and the situation had calmed down. He also said that it was not true that the police officers had used force, they had only asked the unknown persons to calm down. 26. On an unspecified date the second applicant lodged a criminal complaint against the two police officers with the Ivanić Grad Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Ivanić Gradu), on charges of ill-treatment while on duty or in the exercise of services on behalf of a public authority (zlostavljanje u obavljanju službe ili javne ovlasti). She alleged that two police officers, one of whom was S.M., had beaten her and her son and that they had then started to shout. 27. On 12 October 2009 an identification parade was held at the Ivanić Grad police station with five men, one of whom was police officer A.B. The second applicant did not identify any of the men as the perpetrators of the alleged violence against her on 16 June 2009. 28. On 30 November 2009 the Ivanić Grad Municipal State Attorney’s Office dismissed the second applicant’s complaint, finding, inter alia, that she had been unable to identify the alleged perpetrators during the identification parade, and that the surveillance camera at the Ivanić Grad police station had not recorded anything suspicious. The relevant part of the decision reads: “Katica Ðurđevic lodged a criminal complaint against police officer S.M and an unknown police officer from the Ivanić Grad police station for the criminal offence of ill-treatment while on duty or in the exercise of services on behalf of a public authority ... In her criminal complaint she alleges that on 16 June 2009 at about 11 p.m. she and her husband Ðuro went to the Ivanić Grad police station because their sons Z. and Danijel had been taken there. Danijel was covered in blood and she took him out of the police station and they sat in their car parked in front of the police station. While she was lighting a cigarette a police officer opened the car door, grabbed her by her right arm, almost breaking it, dragged her out of the car and kicked her in the chest and belly. S.M., who was with the police officer, took Danijel out of the car, kicked him in the belly, grabbed him by the neck and lifted him against the car. This whole event was recorded by the surveillance video camera, and she suggests that the recording be seen. S.M. said that he was employed as a police officer in the Ivanić Grad police station and that on 16 June 2009 he had been sent to Kloštar Ivanić because [someone was] disturbing the peace. At about 9.45 p.m. he had arrived at the “Yogi” restaurant, where he had found M.Š. sitting in front of the restaurant, obviously drunk, and several persons of Roma origin who were shouting at M.Š. He and other police officers who had arrived saw that there had been a fight between M.Š. and the Roma persons and that M.Š. had hit these persons several times. He had taken M.Š. to the Ivanić Grad police station and then he had gone off duty and left the police station at about 10.15 p.m. to go to the “Argentina” bar. At about 10.30 p.m. he had heard noises and cursing outside the bar ... so he had gone with another police officer to see what was going on. As they approached an “Opel” type car with Dutch licence plates he had heard a woman’s voice shouting even louder and someone was also sounding the car horn, so they had tried to calm them down. They had not calmed down, however, and more police officers had come out of the police station, and he had returned to the bar. He asserted that neither he nor any of the other police officers had used any force against any of the persons present. Danijel Ðurđević said that ... he had been taken to the police station, where he had been told that he had 1 g/kg of alcohol in his blood, which was not true, so he had refused to sign the report. Soon after that his parents had arrived and when he was sitting in their car, parked outside the police station, a man in grey clothes had come and opened the car door, grabbed his mother Katica by the arm, dragged her out of the car and hit her. After that another unknown man in plain clothes had grabbed him by his arms, dragged him out of the car and kicked him in the belly, grabbed him by the neck and pressed him against the car. M.S. said that on 16 June 2009 at about 10.30 he had been in the “Argentina” bar situated next door to the Ivanić Grad police station. The waitress was M.Šk. and there was also another customer, S.M. At one moment he had heard noises and the sound of a car horn coming from the parking lot and S.M. had gone there. He was also curious and had gone out onto the terrace to see what was going on. He had seen a large group of Roma persons coming from the direction of the police station, talking loudly, and one of the women had called the police complaining that she had been beaten by two policemen, which was untrue since M.S. had been standing only a couple of metres away and had seen everything. After that a few more police officers had arrived and the noise had stopped. M.Šk. said that she had been working as a waitress when she heard noise coming from the car park – a car horn and women shouting. She had heard someone shout “Stop! Police!”, and had gone back into the bar. She explained that the police officers had not used any force but had merely asked the persons present to calm down. ... The medical report of 17 June 2009 from Bjelovar General Hospital states that Katica Ðurđević allegedly suffered blows to the chest, head and pelvis, without mentioning visible signs of injuries. The criminal offence of ill-treatment while on duty or in the exercise of services on behalf of a public authority is committed by an official who in the performance of duties on behalf of a public authority ill-treats or insults another person or behaves in a manner which harms his or her dignity. An identification parade was held in the police station but Katica Ðurđević failed to pick out the person who had aggressed her on 16 June 2009 from among the five police officers in the line-up. The Ivanić Grad police station submitted video recordings from the surveillance video cameras for 16 June 2009, which showed no evidence that police officers had beaten Katica Ðurđević or any other person. Neither the information collected nor the video tape indicated that S.M. or any other police officer had hit Katica Ðurđević or ill-treated her in any other manner, and therefore there is no reasonable suspicion that he committed a criminal offence. ...” The second applicant was instructed that she could take over the prosecution and bring charges before the Ivanić Grad Municipal Court within eight days. 29. On 17 December 2009 the second applicant brought charges (optužni prijedlog) against S.M. and an unknown police officer before the Ivanić Grad Municipal Court (Općinski sud u Ivanić Gradu). She alleged that on 16 June 2009 at about 10.30 p.m. the two police officers had beaten her and her son Danijel. On 29 January 2010 the court asked the second applicant to amend her submissions within three days. The second applicant complied. However, on 4 March 2010 the Municipal Court found that the second applicant’s submissions did not take the form required by the Code of Criminal Procedure. 30. The second applicant has seen doctors on several occasions since the alleged incident. On 8 February 2010 she was diagnosed with a mild chronic neural lesion (blaža kronična neuralna lezija). 31. The medical report of 27 October 2008 on the third applicant shows that he complained that he had been hit by a pupil at the school he was attending. He had a deviation of the nasal septum which could be of a post-traumatic character. There were no signs of broken nasal bones. 32. On 19 December 2008 the first applicant complained to the Government that his son, the third applicant, had been constantly insulted and frequently beaten by other pupils because of his Roma origin. 33. An interview with the third applicant was conducted at the Ivanić Grad police station on 12 January 2009. He explained that on an unspecified date in late October 2008, after physical training, he had gone to the changing room to pick up his things. Pupil L.R. had been in front of him. Someone had pushed L.R. and his head had hit the third applicant’s face, hurting his nose. He had reported it to the class teacher, who had sent him to see a doctor. He had not had any other symptoms and the pain had ceased after a few days. 34. On 9 January 2009 the Ministry of Science, Education and Sport asked the school authorities to reply to the first applicant’s allegations of 19 December 2008. The school prepared two reports. The relevant part of the first report, drawn up on 14 January 2009 by the applicant’s class teacher, reads: “... after only two weeks at this school I encountered conflicts between pupils. D. Ðurđević first reported a run-in with another pupil when pupil L.R. unintentionally hit him on the nose with his head because Danijel was standing behind L.R. when L.R. swung his head back. ... Danijel came to me complaining that his nose hurt and told me that L.R. had hit him hard. He made it quite clear that the blow had been unintentional, which other pupils who witnessed the incident confirmed. The next day Danijel complained that his nose still hurt, so I sent him to see a doctor. I also tried to inform the Ðurđević family, but their mobile telephone was switched off. Since it was established that the contact between Danijel and L.R. had been accidental, with no intention of hurting Danijel, I had no reason to punish anyone. This happened on 21, 22 and 23 October 2008. On 22 October 2008, during a break, a verbal and physical conflict involving pupils I.D., M.K., L.R. and D. Ðurđević occurred. From interviews with these pupils I learned that I.D., M.K. and L.R. were playing with a box ... which annoyed Danijel, who wanted to throw the box away, so Danijel and the other pupils started arguing. Pupils I.D., M.K. and L.R. said that after some pushing and shoving Danijel threatened them with physical violence and I.D., M.K. and L.R. answered by swearing at him. Danijel then hit M.K. and L.R. During the following break the pupils reported the incident to me and I reported it to the authorities. A class teacher gave pupils I.D., N.K. and L.R. oral warnings. Pupil D. Ðurđević was given a written warning because he had already had oral warnings. On 16 December, during a break, my pupils came to me to report a fight started by Danijel. They told me that P.G. and D.A. had been standing outside the history classroom talking when Danijel had arrived and kicked P.G.’s bottom. D.A. had asked him why had he done it and Danijel had insulted her. She had returned the insults and entered the classroom. Danijel had followed her in, pressed her against a wardrobe in the classroom, grabbed her by her hair and kneed her in the hip and belly. The pupils had seen Danijel hit her seven times before the boys had managed to separate them. With the help of the history teacher ... Danijel confessed that he had started the fight and explained what he had done ... He confirmed the pupils’ version of events and wrote it all down on paper, as did the girls who witnessed it. He even demonstrated how he had pressed D.A. against the wardrobe and held her while he hit her. I reported the incident to a pedagogue, V.V., who immediately talked to Danijel, D.A. and the pupils who witnessed the incident, then called Danijel’s and A.’s parents and the police. Defectologist A.N. was also informed and set about resolving the situation. I informed the teachers of the incident at their meeting on 19 December 2008 and suggested giving Danijel Ðurđević a written reprimand for causing and participating in verbal and physical conflicts, inflicting bodily injuries on D.A. and violating the school rules by not wearing school slippers, and that suggestion was unanimously accepted. As regards unacceptable behaviour towards pupil Ðurđević, Danijel complained to me on three occasions that other pupils had been teasing him ... about his age and his alleged liking for a pupil in another class. After Danijel’s complaint I warned the pupils concerned and instructed them to avoid verbal conflicts. I also talked to Danijel on several occasions, and he told me that if the teasing continued he would hit the pupils concerned. On the basis of these interviews I concluded that Danijel identified verbal insults with physical violence and considered it appropriate to react to teasing with violence, without showing any remorse. After the incident in December when Danijel inflicted injuries on D.A, the pupils told me that Danijel’s usual reaction to teasing among the pupils included threats of physical violence, swearing and inappropriate comments about a girl pupil from his class, with allusion to her physical attributes and to sexual activity. As an example of his typical behaviour, the pupils mentioned Danijel’s kicking of pupils in passing. He would bend his knee and kick them with a sudden backwards movement of his leg. During our latest conversation the pupils told me that they had been avoiding Danijel for some time, explaining that they had stopped teasing him out of fear that he would put his threats of physical violence into practice. Danijel, on the other hand, has never complained to me that any of the pupils have tried to harm him.” 35. The relevant part of the second report, drawn up on 15 January 2009 by the pedagogue at the same school, reads: “Danijel Ðurđević, has very frequent verbal conflicts with his classmates and sometimes with his teachers as well. The interviews with him reveal that in his opinion the cause of these conflicts is that he ‘wants to have fun and make jokes but the others do not see it that way.’ On innumerable occasions the class teacher, the defectologist and I have explained to him that what he perceives as a joke is not necessarily [seen as such] by others, and that sometimes people are not in the mood for jokes but that does not require a vehement reaction. He is repeating the sixth grade and at the beginning of the school year he said he missed his friends from his former class, but he also promised to be a better pupil, to listen to teachers, me and the defectologist and to refrain from arguing with other pupils. I praised him for that attitude; he showed some improvement in his school work, but the conflicts with other pupils have persisted. Mostly pupils from his class are involved, but sometimes he would go to the class attended by his sister D. and try to solve her problems, in an inappropriate manner, shouting and threatening younger pupils. As regards educational measures, on 23 September [2008] he was issued an oral reprimand by a class teacher and on 28 October 2008 a written warning for fighting with other pupils, of which the parents were informed orally by the class teacher. The other pupils involved in the fighting were given oral warnings while Danijel got a written warning for repeating the unacceptable behaviour for which he had been warned orally on 23 September 2008. On 16 December 2008 during a break ... there was a scuffle between Danijel and pupil D.A. The pupils who witnessed it came to me and the class teacher. [We found] D.A. at the scene, crying, with dishevelled hair, obviously in shock, clutching her belly with both hands. The pupils told us what had happened. I took D.A. to my office and assessed whether an ambulance had to be called. D.A. said that she was frightened and had pains in her head and belly, but that there was no need to see a doctor. She had no external injuries, save for pulled hair and red marks on her belly. Danijel had no injuries, he said that he had hit her because they had said something to him which had made him angry. The parents of both pupils were informed. The Ðurđević parents came immediately, and D.A.’s mother came later ... The Ðurđević parents wanted to talk with D.A. immediately to see what had happened. Since they were shouting and talking at the same time as Danijel, I asked them to calm down and told them that they had no right to question D.A. without her parents being present. As they had been informed about the incident, I told them to go home and that my duty was to report the incident to a welfare centre and the police, and I asked them to take Danijel home. Dissatisfied with what I had said, they reacted inappropriately, especially Mrs Ðurđević, complaining that when Danijel had been insulted there had been no reaction and the police had not been called. They said they would deal with it in their own way. An hour later D.A.’s father came to my office, upset and disappointed that I had not called an ambulance and that the police had not come to the school. At a teachers’ meeting on 19 December 2008 it was decided that a written reprimand would be issued against Danijel for serious physical conflict in which he had inflicted bodily injury. Although this was not his first attack on a pupil at the school and the usual measure would be a harsh reprimand, in view of his overall social condition, which affected his development, a more lenient punishment was issued. It is to be stressed that we regularly talk to Danijel, at his request (at least two or three times a week), and we also provide him with adequate aid in terms of conversations with him, alone and together with other pupils; he receives help with his school work (once I personally cleaned the muddy sneakers he wore to school instead of slippers, because he did not know how to do it). Today he is reported to have punched pupil I.M. on the left cheek because I.M. threw his cap at him. As regards the incident when his nose was hurt on 21 and 22 October 2008 (I do not know the exact date because Danijel cannot remember exactly when it happened), Danijel said in the presence of his parents that he happened to be standing behind a boy who swung his head back because he had long hair, and that his nose had been like that before, which is confirmed by medical documents submitted by the parents ... I would like to stress that in both my personal and my professional capacity I have done a lot to help the Ðurđević parents and their children. Many times the Ðurđević parents have objected that we do not know how to resolve problems with Roma people, alleging that the pupils at school, as well as other people, had been denigrating them. I expressed my regret at such behaviour and stressed that they could not have experienced anything like that from me (which they confirmed), and reassured them that I would certainly react in the event of such behaviour by the pupils, in order to protect their children, and direct the pupils as to the correct attitude to adopt towards the Roma. I could not be held responsible for other people’s reactions because these things are a matter of personal culture. I advised them to tell their older, grown-up children who come to the school to take their younger siblings home to wait outside the school or not to enter the school before the end of classes without registering with a pupil on duty (they would get angry when asked to show their identity cards by pupils on duty, and would go to the classrooms without authorisation). In conversations with them, they have admitted that their children also sometimes use bad language they hear at home, and I think that their complaint that their children are the only ones ill-treated at school is not true. The social services and the police were informed about the supervision of pupils in order to help them with their existential problems. 36. On an unspecified date the second applicant lodged a criminal complaint with the Velika Gorica Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Velikoj Gorici) on charges of bodily harm (tjelesna ozljeda). It appears that this complaint was related to beatings the third applicant had suffered at school. 37. On 24 February 2009 the second and third applicants were invited to the Velika Gorica Municipal State Attorney’s Office for an interview in connection with the incident of 16 December 2008. 38. The medical report of 26 March 2009 indicates that the third applicant claimed that a pupil had hit him in the back with a ball and that he had been beaten by pupils at school and insulted constantly for a week. He alleged that he had pains in his belly and back. There were no visible injuries. He was diagnosed with abdominal contusions (contusio abdominis). The ultrasound examination did not show any injuries. He refused hospitalisation. 39. On 18 September 2009, the first applicant lodged a complaint with an unspecified body against the school authorities who were, in his view, not being proactive in protecting his son, the third applicant, from constant beatings. 40. On 15 December 2009 the third applicant was examined in connection with his headaches by the ophthalmologist in Dubrava Hospital (Klinička bolnica Dubrava). The applicant alleged that he had been beaten up at school and out of school. The doctor requested the opinion of the school authorities and the school psychologist. 41. On 8 February 2010 the third applicant was examined again, and was diagnosed as having serious impairment to the sight in his right eye as a result of a contusion (cephaela gradus gravis post contusionem). The applicant said that he had been beaten up at school and out of school. The doctor observed that there had been no response from the school authorities or the school psychologist and asked once again for their opinion. The third applicant was referred to a neurologist and a brain surgeon. There is no indication that he followed the recommendation. 42. On the same day the Velika Gorica Municipal Court found the third applicant guilty of inflicting bodily harm on D.A. on 16 December 2008 and ordered him to apologise to D.A. and to be placed under strict care and supervision. 43. On an unspecified date the second applicant complained about the violence against the third applicant in school and submitted medical documentation. She alleged that she and the boy’s father had complained to the school about Danijel being beaten by other pupils on many occasions and that nothing had been done. She also alleged that they (the parents) had been thrown out of the school and not allowed to pay insurance for Danijel at the school. She enclosed medical documentation concerning the third applicant dated 17 March 2010, showing that he had been hit on the head on 26 March and 9 December 2009 and 16 February 2010. 44. On 7 April 2010 the school head master drew up a report at the request of the Zagreb Clinic for the Protection of Children. The relevant part of the report reads: “Observations about pupil Danijel Ðurđević ... In the sixth grade [Danijel] has had frequent verbal conflicts with pupils from his class (sometimes also physical conflicts such as pushing, or pulling clothes), and sometimes with teachers as well. The interviews with him reveal that in his opinion the cause of these conflicts is that he ‘wants to have fun and make jokes but the others do not see it that way’. On innumerable occasions the class teacher and professional assistants at school have explained to him that what he perceives as a joke is not necessarily [seen as such] by others and that sometimes people are not in the mood for jokes, but that does not require a vehement reaction. The police intervened for the first time during Danijel’s sixth grade in December 2008, after an serious incident with a pupil. ...Danijel grabbed the girl by the head and kicked her in the belly. After our intervention with the relevant outside services the parents, possibly dissatisfied with our conduct, complained to the Office for National Minorities, which asked for our observations. [the incident when Danijel was hit on the nose is described] ... In December last year Danijel complained about having a headache because ‘he had been hit with an iron bar’. During the interview with him, we learned that the previous day Danijel had been hit by unknown persons ..., out of school, after lessons. He refused our suggestion to call his parents to come to take him home. Instead, he asked for painkillers as he frequently does ... After a few moments he left the school without authorisation, went to see a doctor and returned after an hour with two prescriptions ... On 4 March 2010 the Ðurđević parents were invited to the school to fetch their daughter, who was in sixth grade and who was throwing chairs and benches in her classroom following a verbal conflict with other pupils in her class. When Danijel heard about it, he tried to ‘solve the situation in his way’, by threatening the pupils and teachers (he mentioned a knife). The teachers calmed him down but he had already called his brother or father on a mobile telephone and soon his grown-up elder brother arrived at the school. At the entrance he brushed past the pupil on duty and shouted at him, and opened various classroom doors looking for his sister and brother. One of the teachers ... heard the noise and asked the young man to stop making noise and disturbing classes and told him that he would find his brother and sister. But the brother continued to address the teacher in an inappropriate manner and threatened to ‘take things into his own hands’. The teacher immediately called the police and it is possible that this is incident the Ðurđević parents were referring to in connection with police intervention. Danijel frequently complains to teachers of headaches and asks for pills and permission to leave the classroom. Sometimes he leaves without authorisation or without the teachers’ knowledge. ... In principle we do not give pills to pupils but call the parents to pick up their children and take care of them. Danijel is also complaining less frequently of being insulted by other pupils. We have talked to these pupils and taken educational measures when such incidents continued. It has been noticed lately that Danijel has been refusing schoolwork, has reacted vehemently to advice and would sometimes address the pupils and teachers in an inappropriate manner. I would like to stress that the class teachers informed the parents at parent-teacher meetings of verbal incidents involving individual pupils, and the parents reacted more than correctly and apologised. I would also like to stress that six other Roma pupils attend our school and that they are good pupils and cooperation with their parents is satisfactory for all.” 45. The relevant part of the Code of Criminal Procedure (Official Gazette nos. 62/2003 – Zakon o kaznenom postupku) provides as follows: “... (3) Where not otherwise provided by law, the State Attorney shall bring a criminal prosecution where there is a founded suspicion that an identified individual has committed a criminal offence liable to official prosecution and where there are no statutory obstacles for prosecution of that person.” “(1) All State bodies and all legal entities are obliged to report criminal offences liable to official prosecution, whether they have been informed thereof or have learned about such offences on their own. ...” “(1) A criminal complaint shall be lodged with a competent State Attorney in writing or orally. ...” 46. The relevant part of the Minor Offences against Public Order and Peace Act (Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads: “Anyone who acts in an exceptionally insolent and impolite manner in public by insulting citizens or disturbing their peace, shall be fined for a minor offence ... or imprisoned for up to thirty days.” “Anyone who fights, quarrels or shouts in public or otherwise disturbs public order and peace, shall be fined for a minor offence ... or imprisoned for up to thirty days.”

train

001-57537

ENG

AUT

CHAMBER

CASE OF MATZNETTER v. AUSTRIA

No violation of Art. 5-3;No violation of Art. 5-4;No violation of Art. 6-1

1. The Commission and the Government have referred the Matznetter case to the Court for a decision as to whether the facts of the case disclose a violation by Austria of its obligations under Article 5, paragraphs (3) and (4), and Article 6, paragraph (1) (art. 5-3, art. 5-4, art. 6-1), of the Convention. 2. The facts of the case as appearing from the Commission’s report, the memorial of the Government, the other documents produced and the oral submissions of the representatives of the Commission and the Government may be summarised as follows: 3. Mr. Otto Matznetter, an Austrian citizen born on 21 December 1921, is resident in Vienna. He was called up for service in the German army in September 1940, wounded in November 1941 and taken prisoner by the Russians. In March 1943, his right leg was amputated at the thigh in a prison camp: he remained in the Soviet Union until August 1945. He was released on account of his incapacity for work and he returned to Austria in September 1945. As a result of this amputation and his exposure to cold during captivity, he suffers from myocardial disease and complete deafness in his right ear; he draws an 80 per cent disablement pension. He was married in 1946 and has three children. On his return to Austria the applicant completed his studies. He obtained the degree of "Diplomkaufmann" for advanced commercial studies and later, in March 1948, that of Doctor of Commerce (Doktor der Handelswissenschaften). Shortly afterwards, he was appointed to a post in the Financial Administration of the region of Vienna, Lower Austria and Burgenland. In the course of his duties, he had to check, in 1951, the accounts of the firm Schiwitz and Co. This firm was founded in 1939 by Fritz Schiwitz and Franz Knapitsch and dealt in the sale and resale of cereals, flour, etc. In 1955, Fritz Schiwitz acquired the firm "Arista Tierfutter und chemische Produkte" and made it over as a gift to his wife, Margarete Schiwitz. In 1956, Mrs. Schiwitz acquired 80 per cent of the shares in the firm "Adolf Stögmüller" which was concerned in the manufacture of, and trade in, animal foodstuffs, manures, etc. At the beginning of 1957 the firms "Arista Tierfutter und chemische Produkte" and "Adolf Stögmüller" joined with Margarete Schiwitz in establishing the "Vereinigte Mischfutterwerke" (VMW). "Arista" withdrew from VMW in 1962 and became a limited company under the name "Arista-Mischfutterwerke", all the shares in which were held by Margarete Schiwitz. As four other businesses, including "Arista-Graz" were also under the control of Mr. and Mrs. Schiwitz to varying degrees, the group came to be known as the "Schiwitz group". Otto Matznetter left the civil service in April 1954 and set himself up as a tax consultant on 1 January 1955. In his new profession he was very soon employed by the Schiwitz group, first as assistant and later as their principal adviser in tax, economic and financial matters. He was furthermore given power of attorney (Einzelprokurist) for "Schiwitz and Co." (1960) and was appointed manager (Geschäftsführer) of "Arista-Graz" (1961) and chairman of the board of directors of "Arista-Mischfutterwerke" (1963). In fact, he seemed to play, with Margarete Schiwitz, a predominant role in each of the "Schiwitz companies" and he came to devote himself almost exclusively to these activities. During this time he seems to have lived in great style and, at any rate, beyond his means, considerable though they were. 4. On 13 and 15 May 1963, the Economic Branch of the Vienna police (Wirtschaftspolizei) applied to the Regional Criminal Court (Landesgericht für Strafsachen) of that city for the immediate arrest of Margarete Schiwitz, Fritz Schiwitz and Otto Matznetter. The police suspected the two first-named of having committed the misdemeanour of simple bankruptcy (fahrlässige Krida, Article 486, paragraphs 1 and 2, of the Criminal Code) and the felony of aggravated fraud (Betrug, Articles 197, 200, 201 paragraph (d) and 203 of the Criminal Code) and the third-mentioned person of having abetted them in this crime (Beihilfe, Article 5 of the Criminal Code in combination with Article 197 et seq.). In Austrian law fraud becomes a felony (Verbrechen) if the loss caused or so intended exceeds 2,500 Schillings; it is punishable by five to ten years’ severe imprisonment (schwerer Kerker) if the amount exceeds 25,000 Schillings or if the offender has shown "exceptional audacity or cunning" or if he is an habitual swindler (Articles 200 and 203 of the Criminal Code). At the time these amounts were 1,500 and 10,000 Schillings respectively: they were raised to their present level by an Act of 4 July 1963. Indeed, it was stated in the application of 15 May 1963 that a credit firm, Creditanstalt-Bankverein, had suffered a loss of several million Schillings as the result of the three suspects’ misdeeds and that they could thus expect a heavy sentence; it was deduced therefrom that there was a danger of their absconding (Fluchtgefahr), which was increased in the case of Mr. and Mrs. Schiwitz by the fact that they owned property abroad, namely a farm in Angola. The Economic Branch of the police further maintained that there was a danger of "suppression of evidence" (Verdunkelungs- und Verabredungsgefahr): neither the witnesses nor the suspects had so far been examined and it could be feared that the latter would use tricks to prevent the discovery of the truth or hinder the course of the preliminary investigation. The Public Prosecutor’s Office (Staatsanwaltschaft) of Vienna appears, for its part, to have applied to the court on 14 and 15 May 1963 for the opening of a preliminary investigation (Voruntersuchung) against Margarete Schiwitz, Fritz Schiwitz and Otto Matznetter, and for their immediate arrest. 5. An investigating judge of the Vienna Regional Criminal Court granted these different applications immediately. In the warrants for arrest, which he issued on 15 May 1963, it was stated that Mr. and Mrs. Schiwitz and the applicant were suspected of having committed aggravated fraud (Articles 197, 200, 201 paragraphs (a) and (d), and 203 of the Criminal Code), fraudulent bankruptcy (betrügerische Krida, Article 205 (a) of the Criminal Code) and simple bankruptcy (Article 486 paragraphs 1 and 2, of the Criminal Code) in connection with loans they had obtained from the Creditanstalt-Bankverein and numerous other creditors; it was estimated that their dishonest dealings had caused loss in the region of eighty to one hundred million Schillings. The warrants referred to Article 175 (1), sub-paragraphs 2 to 4 (danger of absconding, danger of suppression of evidence and danger of "repetition of offences", Wiederholungsgefahr) and Article 180 (1) of the Austrian Code of Criminal Procedure. The warrant issued against Matznetter adopted in substance the reasons put forward by the Economic Branch of the police as regards the danger of his absconding and the suppression of evidence (paragraph 4 above). With regard to the first-mentioned danger, it further cited the possibility that he might evade prosecution by going to Angola with the two other persons charged with him. It added that the applicant’s misconduct (Verfehlungen) covered so long a period that there was a consequent danger of repetition of the offences. The three arrests so ordered were effected on 15 May 1963. Matznetter was arrested at about 9.45 p.m., about 12 hours after Fritz Schiwitz; he was in the company of Margarete Schiwitz, a lawyer, Mr. Promitzer and, it seems, his own wife. Other arrests took place later, including those of Herbert Roth (May 1963), Vilma Iby (May 1963), Elizabeth Stögmüller (October 1963) and Adolf Stögmüller (December 1964), persons who were employed in various ways by the Schiwitz firms, and Karl Udolf (May 1963), a branch manager of the Creditanstalt-Bankverein. 6. In accordance with Austrian law (ständige Geschäftsverteilung), the conduct of the preliminary investigation was given automatically to Mr. Gerstorfer, an Investigating Judge, who was already at the time in charge of several cases of lesser importance. 7. On 16 and 17 May, the applicant was examined at some length by the Economic Branch of the police (twelve pages of minutes); on 18 May he appeared before Judge Tinhof for a brief examination as to identity (a one-page minute) and then, on 20 May, before Judge Gerstorfer (a half-page minute). The judge informed him that he was being remanded in custody under Article 176 (1) of the Code of Criminal Procedure. Matznetter stated that he was prepared to do all he could to hasten the course of the preliminary investigation. 8. On 27 December 1963, the applicant made a first application for release on parole (Gelöbnis, Article 191 of the Code of Criminal Procedure); he added further reasons on 7 January 1964. As regards the danger of absconding, he emphasised in substance: - that about two weeks before his arrest, he had read in the newspapers that the activities of the Schiwitz group had been denounced to the authorities by a rival company; that he had received confirmation of this on 10 May from one of the two Chairman-Managing-Directors of the Creditstalt-Bankverein; that nevertheless he had in no way sought, or even thought, to evade the imminent prosecution, as Mr. Leon, lawyer to the Creditanstalt-Bankverein, could bear out; that, on the contrary, he had stayed in Vienna where he had taken an active part in negotiations which led to a settlement out of court between the Schiwitz companies and their creditors, one of whom was the Creditanstalt-Bankverein; that the reason he did not go voluntarily to the police on 15 May was because he wished to warn his wife and await the return of his lawyer; - that since his arrest he had done his best to aid the Economic Branch of the police and the Investigating Judge; he had explained how he came to enter the employment of the Schiwitz group; he had furthermore described the purely sentimental reasons which induced him, in 1957-58, to defend Margarete Schiwitz against blackmailers; that he had also described the bullying and unfair way in which she had dragged him, little by little, into a "vicious circle" (Teufelskreis), forcing him to draw up false balance sheets while at the same time concealing from him, until March 1963, the extent to which the group was indebted; - that he was 80 per cent disabled as a result of his amputation and the diseases from which he suffered (myocardial damage, oto-sclerosis and complete deafness in the right ear); that his family lived in Vienna; that his wife had had to resume, in July 1963, her former occupation as a welfare officer, although during the war she had contracted pulmonary and skeletal tuberculosis which had compelled her to spend three years in a sanatorium; that there was no one to take charge of their three children then aged four-and-a-half, nine and eleven-and-a-half years; that for lack of means, he had had to withdraw the two older children from the French Lycée at Vienna; - that he had no property abroad, nor could he transfer funds abroad; that in any case he was crippled with debt and his lawyer, Mr. Czerwenka, had had great difficulty in saving him, until now, from the institution of insolvency proceedings (Insolvenzverfahren); - that he had no previous convictions and that he enjoyed a good reputation; - if he were to abscond, he would in any event lose his only chance of saving his honour, his home and his private life, that is a trial which would probably throw light on the whole affair. Matznetter also denied that there was a danger of suppression of evidence: he observed that either the court or the police had already taken possession of all documents necessary for the investigation and the principal persons concerned, including those charged, had already been thoroughly interrogated, and that the expert reports to be drafted did not lend themselves to tactics of collusion. The applicant finally recalled that his office was being supervised by a temporary administrator and that the Schiwitz companies were being managed by their principal creditor, the Creditanstalt-Bankverein. In his opinion, this was sufficient to exclude any danger of the offences being repeated. A brief and unfavourable opinion on the application was given by the Public Prosecutor’s Office on 16 January 1964 and the application was refused the next day by the Investigating Judge. In effect, the judge took the view, like the Public Prosecutor’s Office, that neither the danger of absconding nor the danger of repetition of offences had ceased to exist; he considered that the continued existence of the first followed from the extent of the loss caused – about 123 million Schillings - and from the severity of the sentence which was to be expected in consequence, and that of the second danger followed from the duration and systematic character of the alleged dishonest dealings. Matznetter appealed against this decision on 28 January 1964. He adduced the following arguments in addition to some of those previously advanced: - in a judgment delivered on 29 April 1960, the Austrian Supreme Court (Oberster Gerichtshof) had held that the severity of the sentence to be expected does not create "a presumption in law or the danger of absconding" except in the case of a crime punishable by a sentence of not less than ten years’ imprisonment (see the opening words of Article 192 of the Code of Criminal Procedure); in all other cases, and therefore in the present case, the competent court must examine the facts to see whether such a danger actually existed; that the Investigating Judge had failed to fulfil this obligation; - again, Article 175 (1) (4) of the Code of Criminal Procedure would be devoid of meaning if it merely referred to a purely theoretical possibility, in this case that the applicant might make use of his professional qualifications to commit new offences, which, by the nature of things, would necessarily occur outside the "Schiwitz group" which was now being managed by the Creditanstalt-Bankverein. The Judges’ Chamber (Ratskammer) of the Regional Criminal Court of Vienna dismissed the appeal (Beschwerde) on 10 February 1964. It began by setting out a number of factors from which it deduced that there was a danger of absconding: - Matznetter had played an important rôle in the "Schiwitz enterprises"; - he faced a heavy sentence, if only by reason of the enormous loss caused (at least 80 million Schillings) and of the systematic way in which he had abused the trust of others; - the circumstances of his arrest seemed to indicate that he had sought to flee; in fact, he had only been apprehended late in the afternoon of 15 May 1963 and after a real chase (eine ständige Verfolgungsfahrt); he was in the company of Margarete Schiwitz, who was carrying her passport and 16,000 Schillings, and of Mr. Promitzer who, according to the accused Elizabeth Stögmüller, had persuaded her brother, Adolf Stögmüller, to go abroad; - in April 1963, no one foresaw in reality action by the police or the organs of justice in a case which the Creditanstalt-Bankverein and the "Schiwitz group" were seeking to "hush up"; - between the beginning of 1960 and the month of March 1963, more than nine million Schillings lent by the Creditanstalt-Bankverein to the firm of Schiwitz and Co. had been transferred to Germany and Italy on the initiative of Adolf Stögmüller, without it being proved that they corresponded to payments for imports; only long investigations (langwierige Untersuchungen) would make it possible to determine whether Adolf Stögmüller had since brought this sum back to Austria; - the appellant had connections abroad: in 1962, he had visited the property which Fritz Schiwitz had acquired in Angola; moreover, he had frequently travelled outside Austria with Margarete Schiwitz; - his financial position must be considered to be good in spite of debts exceeding 500,000 Schillings. The Judges’ Chamber also found that there existed a danger of repetition of offences. In this respect, it pointed out in particular that Matznetter had begun his fraudulent activity as early as 1957, that he had pursued it energetically and systematically and that he had not troubled himself about making good the loss which had been caused. From this it inferred that he could be suspected of wishing to resume his activities if he recovered his liberty, especially as the "Schiwitz enterprises" had not yet been liquidated and, something impossible to understand, he had not been removed (nicht entfernt) when the Creditanstalt-Bankverein had taken over their management. The applicant wrote to the Public Prosecutor’s Office on 11 February 1964. Referring to a conversation which he had had the day before with Judge Gerstorfer and Mr. Czerwenka, he made the following "offer": in the absence of lawful reasons for his detention and in view of his personal and family situation, he would be released until the opening of the trial; in exchange, he would contribute to the speedy completion of the preliminary investigation by producing documents and giving information; he could also assist the Creditanstalt-Bankverein in realising the assets of the Schiwitz group and recovering certain sums due. The Public Prosecutor’s Office replied to the Investigating Judge, on 14 February, that it saw no reason to change its unfavourable opinion of 16 January. On 18 February 1964, Mr. Czerwenka lodged an appeal against the decision of 10 February. Emphasising that the defence had not yet been permitted to consult the file, he made express reservations as regards the findings of fact on which the Judges’ Chamber had thought it could rely in the light of the first results of the preliminary investigation. In his view, these findings were, besides, irrelevant to the matter: they in no way proved the existence of reasons justifying detention, as the preliminary investigation does not have the same object as the examination of an application for release on bail. Going on from there, Mr. Czerwenka criticised the Judges’ Chamber for having relied on the severity of the sentence facing the appellant and for having thus made the same mistake in law as the Investigating Judge. He further maintained: - that Matznetter had played a minor rôle in the "Schiwitz group"; - that if he had really wished to flee, he would not have remained in Vienna after the arrest of Fritz Schiwitz; that the 16,000 Schillings found on Margarete Schiwitz did not entitle one to speak of preparations for flight, especially with respect to the appellant; that even if Mr. Promitzer had persuaded Adolf Stögmüller to go abroad, he had in no way prevailed upon Matznetter to follow this example; - that, in April 1963, the Creditanstalt-Bankverein and the applicant really did expect a prosecution to be opened; that they had not attempted to "hush up" the affair, but only sought to achieve a settlement out of court which would cause the least possible loss to the creditors of the "Schiwitz group"; - that even if funds had been transferred to Germany and Italy on the initiative of Adolf Stögmüller, there was no evidence that they were at the disposal of Matznetter; that after a preliminary investigation lasting several months it was difficult to see the necessity of "lengthy enquiries" on this point; that the guarantees accorded by law to detained persons would be illusory if it were necessary to proceed to such enquiries in order to establish the absence of reasons justifying detention; on the contrary, it was for the courts to establish that such reasons existed; - that the appellant had no rights over the property owned by Fritz Schiwitz in Angola, which was moreover encumbered with mortgages and of which he had known the existence for a long time; that neither did he have the means of travel to that distant country; that the release on bail of a detained businessman would almost never happen if the mere fact of his having travelled abroad and of having connections abroad was enough to create a danger of his absconding: - that it was not possible to understand how the Judges’ Chamber could, at one and the same time, describe Matznetter’s financial position as good and mention his heavy indebtedness; that, besides, even a sound financial position did not justify the fear of a danger of absconding; - that moreover, there existed no danger of repetition of offences as circumstances had changed since the time of the commission of the acts of which the appellant was charged; that the firms in the "Schiwitz group" had been placed under the administration of their principal creditor; that it was therefore not only incorrect but offensive to the Creditanstalt-Bankverein to suggest that the appellant might again take up the preparation of false balance sheets and similar activities if he were released; that, moreover, Matznetter was doing his utmost to assist the ascertaining of the truth; that his attitude, therefore contradicted the assertion, which was in any case irrelevant, that he had no wish to make good the loss caused by him; that, lastly, his detention scarcely allowed him to take steps designed to repair such loss. On 10 March 1964, the applicant himself addressed to the Court of Appeal (Oberlandesgericht) a supplementary memorial. He alleged in particular: - that the contested transfers of funds would not have been discovered without his statements, which facts showed that he had not been involved in them; - that he had only gone to Angola at the urgent request of the couple Schiwitz and for the sole purpose of negotiating there, with the assistance of the Austrian Consulate, a payment agreement with creditors; that the Schiwitzs had not honoured the agreement so made; that he had been held responsible for this with the result that all his "connections" in Angola had broken with him. However, he was too late; on 4 March, the Court of Appeal had upheld the decision of 10 February, being of opinion that it was grounded on a detailed reasoning to which it was sufficient to refer back. 9. On 13 November 1964, seven months and ten days after lodging his Application with the Commission, Matznetter applied a second time for release on bail, repeating many of his former arguments and citing, in addition, Articles 5 (3) and 6 (2) (art. 5-3, art. 6-2) of the Convention. Over and above his own word of honour, he proffered the fixing, if necessary, of a surety by two named guarantors – a businessman and a tax adviser (Article 193, paragraph 1 of the Code of Criminal Procedure and Article 1374 of the Civil Code). An unfavourable opinion was given by the Public Prosecutor’s Office on 23 November 1964; in its view, the considerations set out in the decision of 10 February retained their full worth. Without committing himself on paper, even to the extent of an expression of opinion, the Investigating Judge informed the Judges’ Chamber of the application made by Matznetter and of the above-mentioned opinion given by the Public Prosecutor’s Office; it is not known whether the judge’s oral report was accompanied by a clear recommendation in favour of or against release. The Judges’ Chamber of the Regional Criminal Court of Appeal dismissed the application on 3 December 1964. On the question of a danger of absconding, the Chamber pointed out, inter alia, that, at the time of his arrest, the appellant was carrying his passport in his car (seinen Reisepass bei sich im Auto hatte). The Chamber added that the existence of a danger of repetition of offences made it superfluous, having regard to Article 192 of the Code of Criminal Procedure ("... detention ordered on account of danger of absconding may be stayed or lifted through ..."), to examine the guarantee proffered. The applicant attacked this decision on 14 December 1964. Taking up - in order to develop it - the argument which he had put forward previously, he also emphasised that the Convention had the force of constitutional law in Austria since 4 March 1964 and therefore took precedence over Article 175 of the Code of Criminal Procedure; in his view, a remand in custody for more than eighteen months exceeded "the reasonable time" provided for by Article 5 (3) (art. 5-3) of the Convention. The appeal was signed by Mr. Czerwenka and was supplemented by two memorials which Matznetter drafted himself. The first, dated 21 December 1964, was above all an effort to prove once again the absence of a danger of absconding. It emphasised particularly the following points: - under the terms of the out of court settlement of 13 May 1963, the Creditanstalt-Bankverein and the other creditors had abandoned their civil claims against the persons charged; - the appellant had only played a minor role in the alleged dishonest dealings, which had, in any event, commenced a good while before his taking up employment in the "Schiwitz group"; - if he had drawn up false balance sheets, he had done so without any criminal intent or hope of gain but was forced to do so by Margarete Schiwitz; - in the execution of his duties, he had at all times sought to save, and later to improve, the "Schiwitz companies" and to protect the interests of other parties concerned; - far from expecting a harsh verdict, he hoped for a prompt beginning of his trial which would give him an opportunity, in public, to admit his mistakes and also to justify himself and claim the benefit of "extraordinary" extenuating circumstances (an allusion to Article 265 (a) of the Code of Criminal Procedure); - he considered that he had served in advance the greater part, if not the whole, of any possible sentence, because he had already spent nineteen months in detention, and could count, as a first offender, on an early release (an allusion to Article 55 (a) of the Criminal Code and to the 1949-1960 legislation on conditional release); consequently, and on account of his disability and his incapacity to engage in any business abroad, he had no reason to think of absconding, a way out which, in any case, he had not chosen at the time when it was possible for him to do so; - when he learnt, about midday on 15 May 1963, of the arrest of Fritz Schiwitz, he had said to Margarete Schiwitz, Mr. Promitzer and Mr. Czerwenka that it was absolutely essential to delay his own until the following day; in fact, he wanted to see Mr. Leon, who had conducted the out-of-court negotiations on behalf of the Creditanstalt-Bankverein and who was due to return that evening from a journey to Hamburg; he also wanted to warn his wife, who was unaware of the whole matter; he had indeed succeeded in reaching her at the last minute and in speaking to her in Mr. Promitzer’s car until he was arrested by the police; as for his passport, which he used as an identity card even in Austria, he did not at all have it "on him": he had left it in its usual place, the glove compartment in his car, which had been damaged the day before and left parked in the city quite some distance away; the expression "ständige Verfolgungsfahrt", which was used in the decision of 10 February 1964 and was worthy of a Sherlock Holmes, did not therefore have anything to do with the realities of the case. On the question of a danger of repetition of offences, Matznetter stressed once more that his office was abandoned by two thirds of his clients and by his chief assistant, and was being managed by a temporary administrator. He added that according to a report of the Economic Branch of the Police, the Schiwitz firms had been liquidated. He recalled once more that up to the end he had taken part, with great effort and to the detriment of his private and family interests, in the preparation of an out-of-court settlement which would cause the least possible loss to the creditors. In conclusion, the appellant had pointed out that the idea of freeing him seemed to have had, this time, the support of the Investigating Judge; he described the critical situation of his wife and his children and claimed that his detention impeded the preparation of his defence. In his memorial of 7 January 1965, Matznetter put forward an additional argument based on the release of Fritz Schiwitz which had taken place on 30 December 1964; as Matznetter considered that he was less seriously implicated in the case, he asked to be granted the benefit of a similar measure. The Vienna Court of Appeal refused the appeal on 20 January 1965 after having observed: - that the appellant was suspected of having fraudulently extorted ("betrügerisch herausgelockt") from several banks, since 1958 and in consort with other persons charged, some hundred and twenty million Schillings by the assignment of fictitious credits, by making accommodation agreements (Gefälligkeitswechsel) and issuing uncovered cheques and by the establishment of false balance sheets, thereby causing a loss amounting to at least eighty million Schillings; - that with respect to the danger of repetition of offences, the Court could limit itself to referring to the detailed and convincing reasoning of the decision challenged; that this reasoning was all the less refuted as the arguments of Mr. Czerwenka contradicted, on one point, those of Matznetter himself: according to the notice of appeal of 14 December 1964, the liquidation of the "Schiwitz enterprises" had not yet taken place while the memorial of 21 December spoke of it as an accomplished fact; - that at a certain moment, the appellant had, on his own admission, gone into hiding; that such an attitude ("Siechverborgenhalten") was sufficient to justify the fear that he might evade prosecution if he were set free; that to this extent the Court also accepted the reasoning of the Judges’ Chamber as regards the danger of absconding; that it was of little importance whether Matznetter had his passport on his person when arrested or whether he had left it in his car; that the provisional release of Fritz Schiwitz did not in any way weaken the decisions of 10 February and 3 December 1964; that in point of fact the Judges’ Chamber had found a continuing danger of absconding - this being moreover the only danger - in the case of the co-accused Schiwitz, which the latter had, however, dispelled by furnishing a guarantee. 10. On 21 April 1965, the applicant made a third application for release on bail which this time was not accompanied by an offer of guarantees. He first complained, in general terms, of the refusal of his earlier applications and of the insufficiency of the reasons (mangelhafte Begründungen) given by the competent instances which, in his view, had in no way rebutted his arguments. He added that the decision to release Fritz Schiwitz proved that neither the necessity to clear up the matter of the transfers of the funds in question nor the prospect of flight to Angola constituted, in the case of the persons charged with him and, a fortiori, in his own case, justifiable considerations. As regards the danger of repetition of offences, he recalled that he had lost all influence over the "Schiwitz companies" on their transfer (faktische Übergabe) to their principal creditor, on the sale of one of them and on the imminent liquidation of the others; here again he drew an argument from the fact of the release of Fritz Schiwitz and he emphasised that his power of attorney had expired. He also laid stress on the fact that his Application No. 2178/64 had been declared admissible by the European Commission of Human Rights on 16 December 1964. Lastly, he asserted that he was suffering from hypertension, an injury to the myocardium, arrhythmia and an oedema of the calf and ankle; he maintained that these various disorders were attributable to his detention and that they risked causing permanent trouble of such a nature as to reduce his capacity to work or even to bring about his death if he did not leave prison very soon. On 26 April 1965, the Investigating Judge communicated this application to the Public Prosecutor’s Office, which, three days later, suggested that the Institute of Forensic Medicine of the University of Vienna should examine Matznetter’s state of health. The report in question was completed on 21 May 1965 - ten days after the closing of the preliminary investigation (paragraph 13 below) - but did not reach the Regional Criminal Court until one month later, 21 June. It was seven pages long and arrived at the conclusion that the applicant was suffering from a serious illness within the meaning of Article 398 of the Code of Criminal Procedure, which rendered him unfit to be kept in detention (nicht haftfähig). On 25 June, the Public Prosecutor’s Office informed Judge Gerstorfer that it was no longer opposed to the release of the applicant in view of the expert report which it had received from the judge on 23 June. Neither the expert report nor the opinion of the Public Prosecutor’s Office seems to have given rise to comment by the Investigating Judge. On 8 July 1865, the Judge’s Chamber of the Regional Criminal Court of Vienna ordered Matznetter’s release on parole for the following reasons: "... In his latest application for release, dated 21 April 1965, he (Matznetter) now submits in essence that there is no danger of repetition of offences as, in effect, any influence (...) over the firms (...) has been lost by him as a result of their transfer to the principal creditor, and, in addition, he is now dangerously ill. The Chamber can not now (nunmehr) disregard these observations, especially since, according to the report from the Institute of Forensic Medicine of the University of Vienna, Otto Matznetter is in fact seriously ill. The facts being as stated, not only does the danger of repetition of the offences (Wiederholungsgefahr) disappear, but also the danger of absconding (Fluchtgefahr), and more especially since, on the basis of the above-mentioned report, the defendant must be considered unfit to serve sentence in the event of his conviction and thus there are now no special grounds to suppose that he might abscond ...". In consequence, the applicant was released on 8 July 1965 at about 4.45 p.m., after making the solemn undertaking provided for by Article 191 of the Code of Criminal Procedure. His remand in custody had therefore lasted, uninterrupted, for twenty five-months and twenty-three days. 11. Several persons charged with him had been released before Matznetter, with or without the provision of sureties, in particular Vilma Iby (20 September 1963), Herbert Roth (23 October 1963), Elizabeth Stögmüller (23 March 1964), Karl Udolf (26 October 1964) and Fritz Schiwitz (30 December 1964). As for Margarete Schiwitz, she came out of prison on the same day and at the same hour as the applicant. On 4 April 1966, the Investigating Judge, Mr. Gerstorfer, gave evidence before two members of the Sub-Commission. They asked him, in particular, what differences the competent authorities saw between the cases of the applicant and of Karl Udolf and Fritz Schiwitz as regards the possibility of release. The witness did not give a specific explanation on this point. Replying then to certain questions concerning Matznetter’s health, he in substance said: - that he had been surprised to read in the application of 21 April 1965 that the applicant was suffering from a serious illness, as he had never spent any time in the prison hospital ward; - that before the month of April 1965, there was no reason to believe in the necessity of a medical examination. 12. The different decisions of the Judges’ Chamber and the Court of Appeal on Matznetter’s applications for provisional release were given, in pursuance of Articles 113 and 114 of the Code of Criminal Procedure, after hearings not open to the public had been held, in the course of which the Public Prosecutor’s Office had been heard in the absence of the suspect and of his lawyer (in nichtöffentlicher Sitzung nach Anhörung der Staatsanwaltschaft bezw. der Oberstaatsanwaltschaft). However, on 4 April 1966, the Investigating Judge asserted, before the Delegates of the Sub-Commission, that he had not omitted to communicate verbally to the Judges’ Chamber the personal observations of the applicant. As regards the officers of the Public Prosecution, the Commission has been unable to determine whether they had presented to the Judges’ Chamber and to the Court of Appeal detailed reasoning or whether they had been satisfied to state their opinion in summary form. 13. On 11 May 1965, a little under two months before the applicant’s release, Judge Gerstorfer had closed the preliminary investigation and sent the case record, which without appendices filled seventeen volumes, several of them containing over a thousand pages, to the Public Prosecutor’s Office (Articles 111 and 112 of the Code of Criminal Procedure). 14. In the proceedings before the Commission, the Parties agreed to acknowledge that the facts which the Investigating Judge had to try to elucidate were of great complexity. The difficulty lay mainly in the nature and volume of the alleged dishonest dealings. At the outset, the preliminary investigation was concerned with eighteen or nineteen persons and it covered a large number of charges. In particular, it was necessary to retrace the economic and financial development of the Schiwitz companies in order to discover when their indebtedness became excessive; to study their correspondence, accounts and portfolio, the minutes of meetings of their statutory organs and their dealings with over a dozen banks; to examine in detail a mass of operations - assignments of credits, transfers abroad, preparation of balance sheets, issue of bills of exchange and cheques, making of mortgages, etc. - involving hundreds of millions of Schillings and spread over about six years, in order to determine whether they involved fraud; to ascertain the part played in each operation by the various persons charged, in particular certain bank officials who were suspected of having been accomplices. 15. The Investigating Judge was assisted in his work by the police, who in this case acted on his instructions and as auxiliaries of justice (Articles 24 to 27 of the Code of Criminal Procedure). He also decided, on 22 May 1964, to call in an expert economist, Mr. Schwarzenberg, and an expert on banking, Mr. Kosian. Their reports, dated 26 March and 1 April 1965 respectively, totalled 490 pages, with hundreds of pages of appendices. On 4 April 1966, Judge Gerstorfer emphasised before two Delegates of the Sub-Commission that his aim in appointing the two experts had been to speed up the proceedings. 16. In this case no investigations outside Austria proved necessary. Adolf Stögmüller, one of the persons charged, had gone to the United States and from there to Mexico and early in 1964 a request for his extradition was made. However, he returned to Austria of his own accord at the end of December 1964. In the course of his interrogation, which began immediately and was completed on 17 February 1965, he said nothing to incriminate the applicant. The police heard thirty-one witnesses between 13 May 1963 and 21 May 1964 at Vienna and in other places (130 pages of records). Between 17 March 1964 and 28 April 1965, the Investigating Judge questioned forty-nine of them in the capital (287 pages of records); eleven of the statements which he took in this way concerned Matznetter. After 20 May 1963 (see paragraph 7 above), the applicant appeared before Judge Gerstorfer more than forty times - six times between 20 November and 19 December 1963, four or five times early in February 1964, twenty-seven or twenty-eight times between 27 August and 11 November 1964 and four or five times between 24 February and 3 March 1965. The records comprise 441 pages. Apart from his examinations by the Investigating Judge, Matznetter was heard eleven times in May, July and August 1963 by the Vienna Economic Police (63 pages of records). 17. After the preliminary investigation had been closed the Vienna Public Prosecutor’s Office instructed one of its members - who was first freed from all other duties - to study the record and, if appropriate, to draft an indictment (Anklageschrift) in accordance with Article 207 of the Code of Criminal Procedure. The preparation of this document lasted a little over ten months: at one point the Public Prosecutor responsible thought he would complete it not later than September 1965, but in fact he did not finish it until 15 March 1966. 18. The indictment was sent to the Regional Criminal Court (Article 208 of the Code of Criminal Procedure) on 13 April 1966, some four weeks after its completion. Three hundred and sixty-five pages long, it brought charges against seven persons: Margarete Schiwitz, Fritz Schiwitz, Otto Matznetter, Karl Udolf, Adolf Stögmüller, Herbert Roth and Vilma Iby, in that order. The prosecutions initiated against the twelve other persons charged (paragraph 14 above) had been severed as being less important, apparently on the initiative of the Public Prosecutor’s Office. The applicant was accused of aggravated fraud (Articles 197, 200, 201 (a) and (d) and 203 of the Criminal Code), of aiding and abetting in aggravated fraudulent conversion (Untreue) (Articles 5 and 205 (c)) and of an offence under Section 24 (1) (a) and (b) of the Currency Act of 25 July 1946. Only a few of the alleged dishonest dealings in question did not involve him; the amount of loss for which he had to answer exceeded 83,000,000 Schillings, 71,270,000 of which concerned the Creditanstalt-Bankverein and nearly 9,750,000 the Girozentrale der Osterreichischen Sparkassen (Austrian Savings Banks’ Central Clearing Office). In particular, the Public Prosecutor’s Office asked that the trial should be opened before the Regional Criminal Court, that the accused should be cited, that fifty-two witnesses should be summoned, and that a number of documents should be read. 19. The applicant lodged an objection (Einspruch) against the indictment, but without success; the Court of Appeal of Vienna dismissed his objection on 2 September 1966 (Articles 208-214 and 219 of the Code of Criminal Procedure), and he was thus conclusively sent for trial. 20. The Regional Criminal Court, sitting as a Lay Judge court (Schöffengericht) gave judgment on 6 February 1967, after a hearing lasting twenty-three days. It found Matznetter guilty of: - having committed, between March 1957 and the spring of 1963, a series of acts of aggravated fraud which caused heavy loss to the Girozentrale der Österreichischen Sparkassen (of at least 8,200,000 Schillings), the Creditanstalt-Bankverein (of over 70,000,000 Schillings), the Mürzzuschlag District Savings Bank (about 92,500 Schillings) and the Kindberg Savings Bank (about 291,500 Schillings); - having wilfully aided and abetted Karl Udolf in committing the crime of fraudulent conversion between the summer of 1962 and the middle of February 1963, thus causing loss to the Creditanstalt-Bankverein (of about 1,600,000 Schillings); - having committed, between 1959 and the spring of 1963, offences under the Foreign Currency Act of 25 July 1946 and Order No. 5/59 of the National Bank of Austria. The Court therefore sentenced the applicant to seven years’ severe imprisonment, with one day’s fast every quarter, and to a fine of 5,000 Schillings or one week’s imprisonment. The judgment was given without prejudice to the rights of the plaintiff at civil law and the right of the Public Prosecutor’s Office to institute proceedings against Matznetter for aggravated fraudulent conversion causing loss to Mr. Franz Knapitsch; on the other counts the applicant was acquitted. Margarete Schiwitz, Fritz Schiwitz, Karl Udolf, Adolf Stögmüller, Herbert Roth and Vilma Iby were also convicted. Margarete Schiwitz received the same sentences as Matznetter, lighter ones being passed on the other five. The period of the applicant’s detention while on remand was counted as part of his sentence (Article 55 (a) of the Criminal Code). Unlike the other persons convicted Margarete Schiwitz and the applicant lodged an appeal (Berufung) against the judgment of 6 February 1967 and also moved to have it set aside (Nichtigkeitsbeschwerde). The Supreme Court (Oberster Gerichtshof) gave judgment in 1969; it dismissed Matznetter’s plea in nullity but allowed the appeal in part and, consequently, reduced the sentence to six years. 21. In his Application of 3 April 1964 to the Commission (No. 2178/64) Matznetter complained of the decisions of the Judges’ Chamber dated 10 February 1964 and of the Court of Appeal dated 4 March 1964. He alleged violation of: - Articles 6, paragraph (1) and 5, paragraph (3) (art. 6-1, art. 5-3) of the Convention; - Article 5, paragraph (4) (art. 5-4) of the Convention. With regard to the first point, he stated that the court which would have to determine the charge against him would not hear him "within a reasonable time". He argued, moreover, that his detention had already lasted longer than was reasonable and pointed out that he had not been released "pending trial"; he also referred to Article 6 (2) (art. 6-2). On the second point, the applicant complained that the proceedings on applications for release (such as that of 27 December 1963) did not take place in the presence of both Parties. In this connection he invoked the spirit of the Convention, Article 6 (3) (art. 6-3), and the general principles of law recognised by civilised nations. The Commission examined the first complaint in the light of Article 5 (3) (art. 5-3) alone and the second in the light of Articles 5 (4) and 6 (1) (art. 5-4, art. 6-1). On 16 December 1964, it declared the Application admissible, following which a Sub-Commission ascertained the facts and tried without success to secure a friendly settlement (Articles 28 and 29 of the Convention) (art. 28, art. 29). 22. Before the Commission and the Sub-Commission, the applicant maintained that his detention while on remand had lasted for longer than the "reasonable time" provided for in Article 5 (3) (art. 5-3) of the Convention. In support of this contention, he repeated most of the arguments which he had put forward before the Investigating Judge, the Judges’ Chamber and the Court of Appeal of Vienna. He furthermore stressed that: - while the "reasonable" or excessive nature of the duration of detention while on remand may be evaluated in the light of the reference to the person charged and not to the advantages which a thorough preliminary investigation may offer to the competent authorities; - in spite of the diligence of the Investigating Judge, the preliminary investigation did not proceed at the necessary pace; that after 20 May 1963, Matznetter had had to wait six months before appearing, and then at his own express request, before Judge Gerstorfer; the judge did not interrogate him until the month of August 1964 about the part he had taken personally in the alleged dishonest dealings; the Investigating Judge had to deal not only with this very complicated case but also with others; the Economic Branch of the Police had certainly helped the judge but, by reason of its unusual quantity, the work done by the police was in this case outside the usual run of investigations; besides, while in such cases the police act, in theory, under the instructions, of, and as assistants to, the judge they do not cease on that account to be under the authority of the Ministry of the Interior, and not of the Ministry of Justice. Secondly, Matznetter criticised the non-contentious one-sided nature of the procedure in Austria, which regulates the examination of applications for release pending trial (Articles 113 and 114 of the Code of Criminal Procedure) and also the manner in which that procedure had been applied in his case. On this point, he invoked Article 5 (4) (art. 5-4) of the Convention and, to a lesser extent, paragraphs (1), (2) and (3) (c) of Article 6 (art. 6-1, art. 6-2, art. 6-3-c). The applicant claimed compensation for the damage which he alleged he had suffered. 23. Following the failure of its Sub-Commission’s attempt to secure a friendly settlement, the plenary Commission drew up the report provided for in Article 31 (art. 31) of the Convention. This report was adopted on 4 April 1967 and transmitted to the Committee of Ministers of the Council of Europe on 28 June 1967. In it the Commission expressed the following opinion: - by nine votes to one, that the applicant’s detention had exceeded a "reasonable time", so that Article 5 (3) (art. 5-3) of the Convention had been violated in this case; - by six votes to two, with two abstentions, that the proceedings with regard to the applicant’s release had been in conformity with Articles 5 (4) and 6 (1) (art. 5-4, art. 6-1). The report contained several individual opinions, some concurring and some dissenting. Arguments of the Commission and of the Government 1. In its Report of 4 April 1967, the Commission followed the method known as that of the seven "criteria" or "factors" which it had already adopted in its opinion on the Wemhoff, Neumeister and Stögmüller Cases (see for example the Publications of the Court, Series A, Neumeister Case, judgment of 27 June 1968, pp. 23-24). After applying each of these criteria to the present case the Commission considered them as a whole. The factors whose consideration, according to the Commission, led it to find unreasonable the nature of the length of detention while on remand in issue, that is to say the first four criteria, appeared to it to weigh more heavily than those telling in the opposite direction. By a majority of nine to one the Commission expressed the opinion that there had therefore been a violation of Article 5 (3) (art. 5-3) of the Convention. 2. At the hearings of 11 and 12 February 1969, the Delegates of the Commission based their arguments essentially on the judgments which had, in the meanwhile, been given by the Court in the Wemhoff and Neumeister Cases. Referring in particular to paragraph 5 of the section "As to the Law" in the second of these judgments they summarised the arguments put forward by the applicant in support of his three applications for release on bail and the reasons for which the competent Austrian courts refused the first two applications and granted the third. The Commission’s Delegates also cited paragraph 16 of the reasons of the Wemhoff judgment, from which it appeared that the Court was of the opinion that the actual length of detention could in certain circumstances be of decisive importance in deciding whether or not the detention was "reasonable". Other circumstances were also relevant to the problem arising under paragraph (3) of Article 5 (art. 5-3): the steps that were taken between 20 November 1963 and the close of the preliminary investigation to enable Judge Gerstorfer to devote himself entirely to the case of Schiwitz and others (Report of the Commission, paragraph 72); the fact that the applications made by Matznetter had not seriously hindered the judge in the performance of his functions (ibidem paragraph 44); the applicant’s family situation and his state of health. On this last point the Commission’s Delegates observed that the applicant does not seem to have relied on his state of health as a ground for release except in his application of 21 April 1965. According to the Commission, the length of time for which Matznetter was detained while on remand could not be justified by facts which occurred later: the only facts to be taken into account were those existing at the time, excluding his conviction on 6 February 1967. The Commission did not consider it necessary to state exactly at what moment the detention while on remand appeared to have lasted for more than a "reasonable time". One was considering a continuous situation which could not be conveniently divided into two periods, the first of which could be considered "reasonable" and the second "unreasonable". In the Commission’s opinion such a division would lead to a confusion between the requirements of paragraph (3) of Article 5 (art. 5-3) and those of paragraph (1) (c) (art. 5-1-c), a confusion which the Government too had shown itself anxious to avoid (see paragraph 5 below). 3. According to the Commission, the period of detention, the compatibility of with which paragraph (3) of Article 5 (art. 5-3) is at issue, extends from 15 May 1963 to 8 July 1965. In replying to the Government’s objection that the present case was exclusively concerned with the period of detention prior to the lodging of the Application (15 May 1963-3 April 1964; see paragraph 6 below), the Commission’s Delegates began by pointing out the importance of this question which concerned the competence both of the Court and of the Commission and which, in their opinion, should have been raised before the Commission. They also recalled that in its judgment of 20 March 1962 the Court had taken into consideration a matter - the Belgian Act of 30 June 1961 - which was subsequent not only to Mr. De Becker’s original application, but also to the adoption of the Commission’s report and even to the commencement of proceedings before the Court. The Delegates of the Commission then replied to the Government’s arguments based on Article 26 (art. 26) of the Convention. In their opinion, an applicant has the right to apply to the Commission before exhausting the domestic remedies; it was sufficient if this condition had been fulfilled when the Commission takes its decision on the admissibility of the application. The Commission’s decisions were unchanging in this respect. They had recently been confirmed in a decision of 18 July 1968 (Application No. 2614/65, Ringeisen against Austria, Collection of Decisions No. 27, pages 51-52) and were supported by the English text of Article 26 (art. 26) and also by the purpose of the rule of exhaustion of the domestic remedies. The words "deal with" and "être saisie" related to the consideration of the merits of the case which could not be undertaken by the Commission if the domestic remedies had not been exhausted. They did not, however, prevent the Commission from taking account of facts subsequent to the application. Indeed, such facts could tell in favour of the Government concerned if in the meantime the remedies exercised had led to the result desired by the applicant. This interpretation was supported by Article 27 (3) (art. 27-3), which implied that the Commission must be satisfied as to the admissibility of the application; this necessarily involved a presumption that the application had been lodged. Besides, the contrary opinion would make it impossible to join the question of exhaustion to the merits as had been done by the Commission in certain cases. Although Article 26 (art. 26) refers to "the generally recognised rules of international law" there was no complete parallelism between the doctrine and diplomatic protection and the new system inaugurated by the Convention, at any rate in so far as applications by private persons were concerned. In the present case the domestic remedies with respect to Matznetter’s first application for release were exhausted on 4 March 1964, i.e. a few weeks before the lodging of his Application and several months before the decision on admissibility of 16 December 1964. The Delegates doubted whether applications made after a long period of detention while on remand had elapsed amounted to true domestic remedies within the meaning of Article 26 (art. 26). For the rest, the Commission’s Delegates referred to the submissions they had made at the hearing in the Stögmüller case. 4. In its Application of 31 July 1967, the Government expressed the opinion that in so far as it related to Article 5 (3) (art. 5-3), the Commission’s report was based on incorrect legal reasoning, a false appreciation of the facts and an inaccurate assessment of the evidence. The memorial of 22 December 1967 developed this argument in detail. The Government relied on arguments very similar to those it had put forward in the Neumeister case (see pages 29-34, paragraphs 18-27 of the Judgment of 27 June 1968). In particular, it objected in principle to the use of the criteria, to the way these were applied to the analysis of the facts and especially to criterion No. 1; it also complained of the manner in which the Commission had applied criteria Nos. 2, 3 and 4 in the present case. 5. At the hearings of 12 February 1969, the Government’s Delegates based part of their argument on the judgments which the Court had given in the meantime in the Wemhoff and Neumeister cases. In their opinion, the reasons which led to the rejection of the applicant’s first two requests for release on bail were conclusive and convincing: the danger of his absconding and the danger of a repetition of the offences had continued to exist throughout the period of detention in issue; this was established by the decisions given at the time by the Judges’ Chamber (specially that of 10 February 1964) and by the Court of Appeal and was confirmed by the applicant’s conviction on 6 February 1967. After all, Matznetter had not succeeded in proving that these two dangers did not exist nor in supplying other evidence calculated to weigh in favour of his release at an earlier date. He did not produce such evidence, i.e. his illness, until his third and last application, which had in fact led to the result he desired. However, the Government considered that the method laid down by the Court in its two judgments of 27 June 1968 (see for example paragraph 5 of the section "As to the Law" in the judgment in the Neumeister case) ran the risk of blurring the clear distinction which in its opinion should be drawn between paragraph (1) (c) and paragraph (3) of Article 5 (art. 5-1-c, art. 5-3). The present case was concerned not with the validity of the detention (paragraph (1) (c) of Article 5) (art. 5-1-c) but only with its duration (paragraph (3)) (art. 5-3). It was therefore scarcely necessary to check the existence of reasonable grounds for detention within the meaning of paragraph (1) (c) (art. 5-1-c); the general effect and the proceedings taken as a whole were decisive. In short, the question was whether an organ of the Austrian State had delayed the proceedings unnecessarily; if this was not the case, the Government considered that it could not be accused of having failed to comply with the requirements of paragraph (3) (art. 5-3). In this respect, the Government laid great emphasis on the extraordinary difficulties encountered by the preliminary investigation; referring again to the judgment of 6 February 1967, it drew attention to the extent of the alleged dishonest dealings, the skill of the accused, their number, the behaviour of one of them (Adolf Stögmüller) and the almost inextricable confusion of the links connecting the various undertakings of the "Schiwitz Group" and the great complexity of the criminal law problems to be solved. It also recalled that the competent authorities, desiring to expedite the proceedings as far as possible, had ordered the severance of certain prosecutions and relieved Judge Gerstorfer of having to deal with new cases from 20 November 1963 to 10 May 1965. Moreover, the Commission had not found that there had been any abnormal delay. It was true that intervals of several months had occurred between Matznetter’s various examinations but the Investigating Judge had used these periods for other work connected with the same case. It was entirely due to the work done during the preliminary investigation that the Regional Criminal Court of Vienna had been able to deal with a case of these proportions in a trial lasting only twenty-three days. The applicant’s family situation and his state of health had nothing to do with the decision in the present case. In the Government’s opinion, if the Court should finally decide that there had been a violation of paragraph (3) of Article 5 (art. 5-3) it should state when this violation had begun. As it had not been disputed that Matznetter’s original arrest was valid (paragraph (1) (c) of Article 5) (art. 5-1-c), according to the Government such a decision would in fact imply that the detention while on remand had remained reasonable during a certain period of time. Every Contracting State was entitled to know as from when it had violated the Convention. The answer to this question was also of great significance with regard to a possible application of paragraph (5) of Article 5 (art. 5-5). 6. In its memorial of 22 December 1967, the Government further complained that the Commission had taken into consideration the period of detention subsequent to the lodging of the Application (3 April 1964 to 8 July 1965): in its opinion, the Commission was not entitled to examine facts other than those of which it is seized by means of an application lodged under Article 24 or Article 25 (art. 24, art. 25) and, logically, such an application could deal only with events prior to the time it was lodged. By its judgment of 27 June 1968 the Court rejected a similar argument put forward by the same Government in the Neumeister case (see pages 30 and 38 of the judgment). The Government, nevertheless, confirmed its view on 11 and 12 February 1969. In its opinion, the period of detention on which the Court is competent to pronounce extended only from 15 May 1963 to 3 April 1964 (or 4 March 1964: see below). The judgment of the Court of 20 March 1962, referred to by the Commission’s Delegates (see above, paragraph 3), was not relevant in the present case : as distinct from the situation of which De Becker complained, the situation of a person in detention while on remand was not of a permanent nature; it varied from second to second until his release. Apart from Articles 24 and 25 (art. 24, art. 25), the Government relied strongly on Article 26 (art. 26) of the Convention although making it clear that it did not intend to dispute the admissibility of Matznetter’s Application. Article 26 (art. 26) prevented the Commission from dealing with facts with regard to which the domestic remedies had not been exhausted before the lodging of the Application. In the present case the "matter" referred to in Article 26 (art. 26) was the length of detention while on remand prior to the lodging of the Application: the subsequent period had not given rise to domestic remedies, the refusal of which might have caused the applicant to lodge one or more new applications. Originally the Commission itself had been of the opinion that the exhaustion of domestic remedies must be judged as from the date of the lodging of the application: this was clear from Rule 41 (2) of the Commission’s Rules of Procedure. No doubt it had since adopted a more flexible approach, particularly in its decision on the admissibility of Application No. 2614/65 (see above, paragraph 3). It was, however, mistaken in relying exclusively on the English wording of Article 26 (art. 26) ("deal with"). It had thus lost sight of the need - recalled by the Court in its judgment of 27 June 1968 (Wemhoff case, page 23, paragraph 8) - to find a solution which was compatible with the French text ("être saisie"): how could the Commission "deal with" ("s’occupe de") a case which had not been "submitted to it" ("dont elle ne serait pas saisie")? The only way of reconciling the English text with the French text was to base one’s interpretation on the latter. In any case, the former did not bear the meaning put on it by the Commission: to examine the admissibility of an application was to "deal with the matter". Moreover, Article 26 (art. 26) of the Convention merely confirmed a traditional rule of international law which had always been interpreted formally by doctrine and practice. The extensive interpretation given by the Commission stood alone: the theory, according to which it is not necessary to wait for the final domestic decision before exercising the right of diplomatic protection or applying to an international authority, did not appear to be supported by any of the recognised authorities. According to the Government, Article 26 (art. 26) in fine would lead to an absurd result if "deal with" were synonymous with "decide on the admissibility": this would force the Commission to decide on the admissibility of an application within the six months following the final domestic decision. In reply to a question from the Court, the Government’s representatives admitted that their arguments, based on Article 26 (art. 26), led logically to the conclusion that the period of detention to be examined in the present case did not extend beyond 4 March 1964, the date of the last domestic decision prior to the lodging of the Application. As later remedies should not be taken into account there would be no point in a finding that the domestic remedies had been exhausted when the Commission’s report was adopted (4 April 1967) and that the Investigating Judge could at any time, with the consent of the Prosecution and, if need be, of his own motion, have put an end to the period of detention in issue. In any case, one appeal was still pending at the time the Commission declared the Application admissible (16 December 1964), i.e. Matznetter’s appeal to the Vienna Court of Appeal against the decision by which the Judges’ Chamber had on 3 December 1964 rejected his second application for release. The Government’s representatives conceded that they did not raise before the Commission the question of the period to be considered. They declared that they had no reason to do so at the time because they thought that the Commission would only deal with the subject-matter of the Application; it was only on reading the report that they observed that the Commission had exceeded its competence. It was true that the Government did not terminate as of 3 April (or 4 March) 1964 the schedule which it had drawn up in order to give the Commission detailed information on the progress of the proceedings instituted against Matznetter (Appendix III to the Report). This attitude, however, did not imply that the Government accepted that the examination should relate to the whole period of the Applicant’s detention while on remand; it was merely a reflection of the generous spirit of co-operation by which the Government was inspired. The fact that it was now presenting to the Court a new legal argument did not imply that it had waived this argument before the Commission, but simply that perhaps it had not been aware of it to begin with. For the rest, the Government’s representatives referred to the observations that they had made in the hearings in the Stögmüller case. 7. In its Report of 4 April 1967 the Commission, by a majority of six to two with two abstentions, expressed the opinion that the proceedings with respect to the Applicant’s requests for release on bail did not violate either Article 5 (4) or Article 6 (1) (art. 5-4, art. 6-1) of the Convention; the reasons given are similar to those given by the Commission in the Neumeister case with respect to a similar complaint. At the hearing of 11 February 1969, the Commission’s Delegates referred to the judgment of the Court in this latter case (pages 28-29 and 43-44) which seemed to them to confirm the Commission’s view on the matter. 8. The Government expressed its agreement with the Commission on this point. 9. At the hearing of 11 February 1969, the Commission requested the Court: "to dismiss the claim of Matznetter before it in so far as it rests on Article 5, paragraph (4) (art. 5-4), and to determine whether the detention of Matznetter on remand from 15 May 1963 to 8 July 1965 was or was not consistent with Article 5, paragraph (3) (art. 5-3), of the Convention". 10. In its Application instituting proceedings of 8 August 1967, the Government formulated the following request to the Court which it confirmed in its memorial and at the hearing of 12 February 1969: "May it please the Court to declare that the measures taken by the Austrian authorities which are the subject of the Application lodged by Otto Matznetter against the Republic of Austria do not conflict with the obligations arising from the European Convention on Human Rights".

train

001-100899

ENG

SVK

CHAMBER

CASE OF SZIGETIOVA v. SLOVAKIA

Violation of Art. 6-1

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

4. The applicant was born in 1964 and lives in Košice. 5. On 4 September 2002 the applicant sought an increase of the maintenance payments from her ex-husband before the Košice I District Court. On 21 July 2005 she complained to the President of the Košice I District Court about undue delays in the proceedings. 6. On 1 August 2005 she was informed that her complaint had been transmitted to the Košice II District Court where the case file had been transferred by a decision of 5 February 2003. 7. On 5 September 2005 the President of the Košice II District Court informed the applicant that her complaint would be dealt with after an expert had returned the case file. 8. On 16 September 2005 the President of the Košice II District Court informed the applicant that the case file concerning the maintenance dispute had been erroneously attached to the file in separate proceedings concerning her ex-husband's contact with their son. The latter proceedings had also been initiated before the Košice I District Court and the case file had been transferred to the Košice II District Court, for reasons of local jurisdiction, by a decision of 2 October 2002. The President of the Košice II District Court noted that the maintenance dispute had not been duly transferred to his court and instructed the judge dealing with the case “to take immediate measures”. 9. In view of the statements of the Presidents of the Košice I and II District Court, on 2 November 2005 the applicant complained of undue delays before the Constitutional Court. The applicant directed her constitutional complaint against the Košice II District Court where, according to the information from the President of the Košice I District Court, the case file had been transferred in 2003. The applicant did not indicate the file number under which the proceedings had been pending before the Košice II District Court as no number had been assigned to the case at that time. 10. On 10 November 2005 the Constitutional Court invited the applicant to indicate the file number of the proceedings before the Košice II District Court. On 11 January 2006 the applicant's representative obtained the requested information and forwarded it by telephone to the Constitutional Court. 11. On 18 January 2006 the Constitutional Court declared the applicant's complaint concerning delays in the proceedings before the Košice II District Court admissible. 12. On 17 February 2006 the President of the Košice II District Court informed the Constitutional Court in writing that the case file concerning the proceedings complained of had been returned (as erroneously attached to another file) to the Košice I District Court on 22 November 2005. The letter further stated that on 30 November 2005 the Košice I District Court had formally re-transferred the case file to the Košice II District Court. 13. At the same time, the applicant unsuccessfully attempted to amend her constitutional complaint as formally directed also against the Košice I District Court. 14. On 15 March 2006 the Constitutional Court found that the applicant's right to a hearing without undue delays had not been violated by the Košice II District Court. The Constitutional Court stated that it was bound by the formulation of the complaint and by its decision on admissibility and could examine the length of proceedings complaint only in respect of the proceedings before the Košice II District Court where the case file had been duly transferred on 30 November 2005. Although the conduct of the Košice I District Court fell outside the scope of the complaint examined by the Constitutional Court, the latter noted that the maintenance proceedings had lasted an unreasonably long time and that undue delay had occurred before the Košice I District Court. 15. On 5 May 2006 the Košice II District Court delivered a judgment which became final on 1 June 2006.

train

001-22394

ENG

AUT

ADMISSIBILITY

A.S. v. AUSTRIA

Inadmissible

Georg Ress

The applicant is an Austrian national, born in 1953 and living in Bergheim. She is represented before the Court by Mr E. Salpius, a lawyer practising in Salzburg. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 June 1989 the Salzburg Regional Court (Landesgericht) started preliminary investigations (file number 26 Vr 1459/89) against the applicant and thirty-four other suspects on suspicion of large-scale fraud and breach of trust in the context of investments in a real estate fund. They were suspected of having sold so called “partial house ownership certificates” to several thousand investors with the assurance that their value was secured by real property, while in fact they had sold the real property in 1986 and misappropriated the proceeds of the sale. On 5 July 1989 a search was carried out at the applicant’s premises and on 22 April 1991 she was heard as a suspect. Later she fled to Panama with her life companion who was also a suspect in the proceedings. As of the beginning of 1990 the investigating judge was relieved of all other business and two junior judges completing their training period (Richteramtsanwärter) were assigned to assist him. In May 1990 one of them took over as the new investigating judge. During the preliminary investigations, which concerned a network of more than 300 firms, about 1,800 bank accounts were examined and about 8,000 volumes of documents were seized and studied. A special computer programme was designed in order to cope with the large volume of data. Most of the time was consumed by the preparation of an expert opinion, whereby the team of accounting experts first had to clarify the balance sheets of the companies, most of which were intertwined. A change in the team of experts became necessary in 1990 due to the potential bias of some of its members. In April 1995 the experts delivered their opinion. On 12 May 1995 the Salzburg Regional Court, upon the Public Prosecutor’s request, issued an international arrest warrant against the applicant. On 3 June 1995 the applicant was arrested in the Netherlands and, on 13 June 1995, she was extradited to Austria where she was remanded in custody. On 29 August 1995 the applicant was released on bail with a surety of 2 million Austrian schillings (ATS) and the withdrawal of her passport. Upon the applicant’s request, the Salzburg Regional Court reduced the amount of the surety to ATS 1 million on 4 April 1997. It also decided that her passport be returned and ordered the applicant to report to the court at regular intervals. On 22 January 1999 the applicant requested the court to lift all measures imposed on her, which request was granted on 22 May 1999. On 13 November 1995 the proceedings against seven co-accused, against whom the indictment comprising about 500 pages had been preferred, were severed from the proceedings concerning the applicant. On 30 April 1996 the preliminary investigations were closed and the file was sent to the Public Prosecutor for a decision under section 112 of the Code of Criminal Procedure (Strafprozessordnung), according to which the Public Prosecutor has to decide within fourteen days whether the proceedings are to be discontinued, whether they need to be supplemented or whether an indictment is to be preferred. No indictment was preferred within the prescribed time-limit since the Public Prosecutor, due to the complexity of the case, had filed several applications for supplementing the preliminary investigations. In order to comply with these applications, the preliminary investigations were re-opened. On 27 April 1998 the applicant informed the court of the Public Prosecutor’s failure to take a decision under section 112 of the Code of Criminal Procedure within the time-limit and requested the court to inform the Principle Public Prosecutor’s Office (Oberstaatsanwaltschaft) pursuant to Section 27 § 2 of the Code of Criminal Procedure. However, the court did not comply with this request. On 20 December 2000 all applications by the Public Prosecutor were complied with and the preliminary investigations under file number 26 Vr 1459/89 were closed. So far the Public Prosecutor has not taken a decision under section 112 of the Code of Criminal Procedure. On 12 December 1997 the investigating judge granted the Public Prosecutor’s request of 4 September 1997 to extend and supplement the above preliminary proceedings as regards one set of facts. These proceedings were conducted under a new file number (26 Vr 2342/97). These further preliminary investigations were closed on 19 December 2000 and the file was sent to the Public Prosecutor for a decision under section 112 of the Code of Criminal Procedure. So far no decision has been taken. It appears that a further set of preliminary investigations concerning related charges (number 26 Vr 367/91) against the applicant and other suspects, which was opened in 1990, is still pending on the ground that one expert has not yet completed his opinion. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows. "(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith. (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request. (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal." Section 91 of the Courts Act applies to all kind of proceedings before the ordinary courts, be it civil or criminal ones.

train

001-72246

ENG

BGR

CHAMBER

CASE OF IOVCHEV v. BULGARIA

Violations of Art. 5-3;Violation of Art. 6-1 (length of criminal proceedings);Violation of Art. 3;Violation of Art. 13 (lack of effective remedies against conditions in detention);Not necessary to examine remainder under Arts. 6 and 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Christos Rozakis

9. On 10 June 1996 the Plovdiv Regional Prosecutor’s Office, acting pursuant to a report from the state financial control authorities, which had audited a company whose chairperson the applicant had been, and reports by the economic police and by the company’s trustee in bankruptcy, decided to open criminal proceedings against the applicant. At that time the applicant was living in the United States of America, where he had arrived on 30 October 1995. 10. On 20 June 1996 the applicant was charged in his absence with misappropriation of funds in large amounts, contrary to Article 203 § 1 in conjunction with Article 201 of the Criminal Code (“the CC”)(see paragraph 69 below). It was alleged that in March 1994, when he had been the chairperson of the board of directors of the abovementioned company, he had misappropriated 792,000 Swiss francs. Reasoning that the applicant was accused of a “serious” offence (see paragraph 73 below) and that he had gone into hiding, the investigator in charge of the case decided that, once apprehended, the applicant should be placed in pretrial detention. This decision was approved by the prosecutor in charge of the case. 11. The applicant averred that, after having been notified by relatives that the Bulgarian media were circulating information that criminal proceedings had been opened against him and that he was wanted by the authorities, and after reading copies of newspapers brought by his wife in October 1996, he decided to return to Bulgaria. 12. The applicant arrived at Sofia airport on 25 October 1996 and was immediately arrested, questioned and brought to the detention centre at the Plovdiv Regional Investigation Service. 13. The following day, 26 October 1996, the applicant was apprised of the charges against him by an investigator and was questioned. The investigator confirmed the order for his detention pending trial. 14. On an unspecified date the applicant’s lawyer requested the Plovdiv Regional Prosecutor’s Office to release the applicant, arguing that there was not enough evidence to prove that the applicant had committed an offence. 15. The Plovdiv Regional Prosecutor’s Office denied the request in a decision of 21 February 1997. It reasoned that, since the applicant had been charged with a serious intentional offence, he had to remain in custody, as mandated by Article 152 § 1 of the Code of Criminal Procedure (“the CCrP”)(see paragraphs 7275 below). The exception provided for by paragraph 2 of that Article was not applicable, because the applicant could jeopardise the investigation in view of the number of impending investigative steps. The issues whether there was enough evidence to sustain the charges against the applicant and whether the applicant had committed other offences would arise after the conclusion of the investigation. 16. The applicant’s lawyer appealed to the Chief Prosecutor’s Office, contending that there was no risk of the applicant absconding, committing an offence, or jeopardising the investigation. In particular, the applicant had returned from abroad of his own accord, despite the fact that he had known that a criminal investigation had been pending against him. 17. The Chief Prosecutor’s Office dismissed the appeal in a decision of 3 April 1997. It reasoned that in view of the rule of Article 152 § 1 of the CCrP the applicant had to remain in custody. There was nothing to indicate that the applicant came within the exception provided for in paragraph 2 of that Article. In particular, no medical reports indicating bad health of the applicant had been submitted. 18. On 26 April 1997 the applicant’s lawyer filed with the Plovdiv Regional Prosecutor’s Office a request for his release. 19. On 3 May 1997 the applicant was also charged with abuse of office, contrary to Article 282 § 1 of the CC (see paragraph 70 below), in the context of a new investigation against him, and his pretrial detention was confirmed. 20. On 6 May 1997 the Plovdiv Regional Prosecutor’s Office decided to release the applicant on bail. It reasoned that the full elucidation of the facts of the case necessitated the questioning of a witness who had absconded and was impossible to find. Hence the proceedings against the applicant had to be stayed pending the apprehending and the questioning of the witness. The applicant’s continued detention was therefore unwarranted and he was to be released against giving an undertaking to not leave town. Concerning the measure to secure appearance in the second proceedings against the applicant, the offence with which he had been charged – abuse of office – was not “serious” within the meaning of Article 93 § 7 of the CC (see paragraph 73 below) and detention was therefore not mandatory under Article 152 § 1 of the CCrP. The applicant could thus be released on bail. 21. The applicant paid the bail on 6 May 1997 and was released the same day. 22. It seems that almost no investigative actions were performed between 1997 and 2001. 23. On 27 July 2001 the criminal proceedings against the applicant were stayed by decision of the Plovdiv Regional Prosecutor’s Office. It reasoned that it was necessary to question two witnesses whose whereabouts were unknown. The proceedings were to be resumed immediately after the two witnesses were tracked down. 24. On 17 September 2003 the Plovdiv Regional Prosecutor’s Office dropped the charges under Article 203 § 1 of the CC, reasoning that, as certain witnesses could not be found and questioned, these charges could not be proven. It seems that the proceedings relating to the charges under Article 282 § 1 of the CC continued, and, as of the date of the latest information from the parties (31 January 2005), were still pending. 25. From the day of his arrest on 25 October 1996 until he was released on 6 May 1997 the applicant was kept in the detention facility of the Plovdiv Regional Investigation Service. 26. There the applicant was held in a cell measuring twenty square metres, which he had to share with three other persons during most of the time. There were no beds and the detainees had to sleep on the cement floor, which they covered with dirty blankets. During the six months and twelve days that the applicant spent in the cell the blankets were allegedly not changed or washed. The cell was illuminated by a single electric bulb. There was no window or access to sunlight. The airing of the cell was apparently very poor. During the winter the temperature in the cell was approximately 1012 degrees Celsius. 27. Food, the quantity and quality of which were, according to the applicant, very insufficient, was served without cutlery, in plastic mugs which were apparently not washed between meals. It seems, however, that the applicant was able to have food brought from the outside. 28. The applicant, as the other detainees, was allowed to go out of the cell for two to three minutes twice a day – in the morning and in the late afternoon – to go to the toilet. During the remaining time the detainees had to relieve themselves in a plastic bucket kept in the cell. They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities. 29. No possibility for spending time in the open or for physical exercise was provided. The detainees could only leave the cell when they received visits, were taken for questioning, or were taken to court. 30. The applicant submits that there were periods of up to thirty or forty days during which he was not allowed to bathe. According to the Government, detainees were allowed to bathe once a week. 31. In an action brought by a person detained in the same detention facility at the same time as the applicant, the Plovdiv Court of Appeals stated that the conditions in the facility were “a manifestation of cruel, inhuman and humiliating treatment, contrary to the absolute prohibition of ... Article 3 of the Convention”. 32. Shortly after his release, on 22 July 1997, the applicant filed an action against the National Investigation Service under the State Responsibility for Damage Act (see paragraphs 7680 below). He alleged that the conditions of his detention had constituted inhuman and degrading treatment, imputable to the defendant which was in charge of the administration of pretrial detention facilities, and claimed 4,000,000 old Bulgarian levs (BGL) as compensation for nonpecuniary damage: pain, suffering and loss of self-respect. He described in detail the conditions of his detention and submitted that they had not been the result of a bias of the authorities against him, but an objective fact which had negatively affected all detainees for lengthy periods of time. These conditions had been violative of, inter alia, Article 3 of the Convention and Article 10 § 1 of the International Covenant on Civil and Political Rights of 1966. 33. The Plovdiv District Court held its first hearing in the case on 15 October 1997. It declared the action admissible, instructed the applicant that he bore the burden of proof and invited him to produce evidence in support of his claim. It also invited the defendant and a prosecutor, who participated as a “special party” to the proceedings, to present their observations. 34. The next hearing took place on 18 December 1997. The applicant requested that the director of the National Investigation Service be summoned as a witness and that an onthespot inspection be carried out in the detention facility and asked for leave to call four witnesses to prove the nonpecuniary damage the applicant had sustained as a result of the conditions of his detention. Counsel for the National Investigation Service requested that the applicant appear in person to testify about the facts laid out in his statement of claim. She also requested that the Ministry of Finance be added as a defendant. The applicant insisted that the proper defendant was solely the National Investigation Service. The court ordered the applicant to appear for questioning. It denied the request to summon the director of the National Investigation Service, holding that the facts could properly be established through other evidence. It also denied the request for an onthespot inspection, holding that almost a year had elapsed since the applicant had been released and that the current state of the detention facility could not be used as a basis for establishing its state at the time when the applicant was kept there. The court gave the applicant leave to call three witnesses. It denied the request to add the Ministry of Finance as a defendant, holding that the entity against which the action had been brought was the National Investigation Service. 35. By an order made in private on 23 January 1998 the court held that the complaint had been improperly characterised by the applicant as one under the State Responsibility for Damage Act. It held that the proper legal characterisation was under general tort law. Accordingly, in order for the proceedings to continue the applicant had to pay the requisite court fee (four per cent of the amount claimed, i.e. BGL 160,000) within seven days. 36. The applicant did not pay the fee and the court discontinued the proceedings by an order of 12 March 1998. 37. On 27 March 1998 the applicant appealed against the order to the Plovdiv Regional Court. 38. On 29 June 1998 the Plovdiv Regional Court quashed the order and remitted the case to the Plovdiv District Court for continuation of the proceedings, holding that the proper legal characterisation of the facts alleged by the applicant was under the State Responsibility for Damage Act. 39. The next hearing before the Plovdiv District Court was listed for 2 November 1998, but was adjourned because of the improper summoning of the defendant. 40. On 15 December 1998 the applicant requested that the National Investigation Service be replaced as a defendant by the Plovdiv Regional Investigation Service and that the Ministry of Justice be added as a second defendant in view of legislative changes whereby the National Investigation Service was liquidated and the administration of the pretrial detention facilities was transferred from the National Investigation Service to the Ministry of Justice. 41. On 8 December 1998 the applicant requested an expert opinion on the hygienic and sanitary conditions in the detention facility. 42. The next hearing took place on 16 December 1998. The court granted the applicant’s request to replace the defendant and add a new defendant and adjourned the proceedings for 4 February 1999 in order to allow the new defendant to prepare. 43. The next hearing was held on 4 February 1999. The prosecutor did not appear. Noting that there was no indication that the prosecutor had been duly summoned, the court decided to adjourn the case. On the motion of the applicant the court struck out the Plovdiv Regional Investigation Service as a defendant. 44. On 9 March 1999 the applicant requested that the Ministry of Finance be added as a defendant, arguing that this was necessary in view of the unclear regulation of the succession between the National Investigation Service and the Ministry of Justice as regards the administration of the pretrial detention facilities. 45. The next hearing was held on 10 March 1999. The court questioned one witness called by the applicant who testified about the conditions in the detention facility. The applicant reiterated his request for an expert report and asked leave to call two more witnesses. The court stated that it would rule on all motions in private. 46. By an order made in private on 17 March 1999 the court denied the request for adding the Ministry of Finance as a defendant, holding that the facts alleged in the statement of claim did not point to a cause of action against it. It allowed the request for an expert opinion and invited the Plovdiv Hygienic and Epidemiologic Inspection to designate an expert who could draw up a report on the conditions in the detention facility. 47. The next hearing, scheduled for 26 April 1999, failed to take place because of the improper summoning of the Ministry of Justice. 48. On 27 April 1999 the applicant requested the court to revoke its order of 17 March 1999 as regards the refusal to add the Ministry of Finance as a defendant. 49. The next hearing took place on 7 June 1999. The court denied the applicant’s request to revoke its order, holding that the Ministry of Finance had nothing to do with the subjectmatter of the case before it. The court invited the applicant to call the allowed witnesses. Pursuant to the motion of the defendant, the court also ordered the applicant to indicate specifically which government bodies and officials had, through their actions or omissions, caused the alleged damage. 50. The court, sitting in private on 6 July 1999, appointed an expert to draw up a report on the hygienic and epidemiological conditions in the detention facility. 51. A hearing listed for 20 September 1999 was adjourned because the judge in charge of the case was on sick leave. 52. The next hearing was held on 2 November 1999. The expert informed the court that she could not draw up the requested report. The court gave leave to the Ministry of Justice to call one witness and replaced the expert. The court also instructed the applicant to rectify his statement of claim within seven days, holding that he had not specified which illegal actions or omissions of which officials had occasioned the damage he alleged to have sustained. 53. On 11 November 1999 the applicant indicated that the officials allegedly responsible for these conditions were “the administration of the National Investigation Service”. Expressing his surprise that the court had not found this alleged omission in the statement of claim until the eighth hearing, the applicant requested that the judge withdraw from the case, averring that her conduct denoted bias against him. 54. By an order of 18 November 1999 the court denied the request for withdrawal, holding that it had power to instruct the plaintiff to rectify its statement of claim during the entire duration of the proceedings before it and its having done so was not indicative of bias, but fully compliant with the rules of procedure. The court also discontinued the proceedings, holding that the applicant had not complied with its instructions to indicate the officials responsible for the conditions in the pretrial detention facility and their exact allegedly illegal actions or omissions. 55. On 2 December 1999 the applicant appealed against the order for the discontinuation of the proceedings. 56. On 1 March 2000 the Plovdiv Regional Court quashed the order and remitted the case, holding that the proper defendant in proceedings under the State Responsibility for Damage Act were the government bodies and not the specific officials alleged to have caused the damage. The instructions of the Plovdiv District Court had therefore been without purpose. 57. On 16 March 2000 the Plovdiv District Court listed a hearing for 8 May 2000. 58. On 2 May 2000 the applicant filed a “complaint for delays” under Article 217a of the Code of Civil Procedure (“the CCP”)(see paragraph 81 above) with the chairperson of the Plovdiv Regional Court, alleging that the Plovdiv District Court had not proceeded with due diligence in examining his action. The chairperson of the Plovdiv Regional Court dismissed the complaint on 11 May 2000, holding that the case had been adjourned many times because of changes in the legislation, the adding of new defendants and the making of evidentiary motions by the parties. The intervals between the hearings had been justified by the busy schedule of the panel examining the case. 59. As between 2 and 11 May 2000 the case file was being transferred from the Plovdiv District Court to the Plovdiv Regional Court in connection with the examination of the above complaint, the hearing listed for 8 May 2000 did not take place. 60. The next hearing took place on 26 June 2000. The court questioned two witnesses called by the Ministry of Justice, who testified about the conditions in the detention facility. The applicant reiterated his request for an onthespot inspection of the facility. The court invited the applicant to specify the facts which he wanted to have proven through the inspection. It also repeated its invitation to the applicant to call the witnesses for whom leave had previously been given. 61. The last hearing took place on 2 October 2000. The court noted that out of three witnesses whom the applicant had been allowed to call, only one had actually been called. It further noted that the applicant had not complied with its instructions to concretise the facts which he intended to establish through the requested inspection of the detention facility. The court thus denied the request to carry out an inspection. It also excluded the requested expert report from the evidence. 62. The Plovdiv District Court dismissed the applicant’s action in a judgment of 2 November 2000. It held, inter alia, as follows: “... [The applicant] bears the burden of establishing the facts which are favourable to him. He was many times invited to do so by the court, but has not presented evidence about the conditions in the detention facility as a result of which he has allegedly suffered nonpecuniary damage. Neither has he adduced evidence in support of the proposition that the damage which is the subjectmatter of the claim is in a causal connection with illegal actions or omissions of officials of the National Investigation Service, which participated in the administration of the pretrial detention facilities at the time when the applicant was in custody. Therefore the court considers that these facts have remained unproven. The court could not hold otherwise even if account is taken of the testimony of the witness [B.N.], because the witness and the [applicant] were not in the same cell ... It is true that that the witness testified about the conditions in the detention facility and the cell in which he had been, but ... his testimony does not establish the nonpecuniary damage suffered by the [applicant], as averred in the statement of claim. Nor does it establish that the nonpecuniary damage suffered by the applicant is a result of the conditions in the detention facility. The court could not hold otherwise even if it takes into account the testimony of the witnesses [P.] and [I.], because in their testimony they describe the conditions in the detention facility and in the cell in which the [applicant] was kept, but do not establish the non-pecuniary damage claimed by the [applicant] and the fact that this damage is in a causal connection with the hygienic and material conditions in the detention facility.” 63. On 15 November 2000 the applicant appealed against the judgment to the Plovdiv Regional Court. He reiterated his request for an onthespot inspection of the detention facility. 64. On 28 February 2001 the Plovdiv Regional Court, sitting in private, gave the applicant leave to call one witness and denied his request for an inspection of the detention facility. It held that, since more than three years had elapsed after the applicant’s release, an inspection could not establish the conditions in the facility as at the time he was kept there. 65. A hearing was held on 23 May 2001. The applicant did not show up and did not bring the witness for whom leave had been given. 66. The Plovdiv Regional Court dismissed the appeal in a judgment of 22 November 2001. It held, inter alia, as follows: “On the basis of the evidence adduced before this court and the court below, the [court] considers that the claim has remained unsubstantiated. The claim was for compensation for nonpecuniary damage suffered by the [applicant]. However, apart from proof about the general state of the hygiene in the detention facility at the time of the [applicant’s] stay there, there is no proof about the specific damage suffered by him. The finding that the detention facility was in a poor hygienic condition does not per se lead to the conclusion that [the applicant] has suffered real moral, nonpecuniary damage, because the objective fact of the hygiene and the regime in the detention facility has a subjective and very individual impact on persons with different mentalities and social status. Due to the lack of evidence about the specific effects which the conditions in the detention facility had on the [applicant], as averred in the statement of claim, the claim remains unsubstantiated. The nongathering of evidence about this is the result of the inactivity of the [applicant] alone. The witness called by him and questioned by the firstinstance court did not testify about the applicant’s condition during his stay in custody, and the other two witnesses for whom leave was given by the firstinstance court and the third witness for whom leave was given by this court were not actually called by the [applicant] without him specifying good reasons for this omission. In view of this the [court] considers that the [applicant’s] lack of procedural activity is tendentious and seeks to surmount the admissibility criteria for lodging an application with European Court of Human Rights...” 67. On 20 December 2001 the applicant lodged an appeal on points of law with the Supreme Court of Cassation. 68. The court listed a hearing for 18 February 2003. However, in November 2002 the CCP was amended, providing that appeals on points of law to the Supreme Court of Cassation were possible only in respect of actions where the amount in controversy was above BGN 5,000. Since the amount claimed by the applicant was BGN 4,000, the Supreme Court of Cassation discontinued the proceedings by an order of 28 November 2002, and the Plovdiv Regional Court’s judgment became final. 69. Article 203 § 1 of the CC, read in conjunction with Article 201, provides that the misappropriation of funds in large amounts by officials or managers is punishable by ten to thirty years’ imprisonment. 70. Article 282 § 1 of the CC makes it an offence for a manager or an official to, inter alia, abuse his power or rights in order to provide a financial benefit to himself or another person, provided that this leads to nonnegligible harmful consequences. The offence is punishable by up to five years’ imprisonment or by compulsory labour. 71. At the relevant time and until the reform of the CCrP of 1 January 2000 an arrested person was brought before an investigator who decided whether or not he or she should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 2529 of the Court’s judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999II). 72. The legal grounds for detention pending trial are set out in Article 152 of the CCrP, the relevant part of which, as worded at the material time, provided as follows: “1. Pretrial detention shall be imposed [in cases where the charges concern] a serious intentional offence. 2. In the cases falling under paragraph 1 [detention] may be dispensed with if there is no risk of the accused evading justice, obstructing the investigation, or committing further offences. ...” 73. A “serious” offence is defined by Article 93 § 7 of the CC as one punishable by more than five years’ imprisonment. 74. The Supreme Court has held that it was not open to the courts, when examining an appeal against pretrial detention, to inquire whether there existed sufficient evidence to support the charges against the detainee. The courts had to examine only the formal validity of the detention order (опред. № 24 от 23 май 1995 г. по н.д. № 268/95 г. на ВС І н.о.). 75. According to the Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of amendments in force since 1 January 2000), Article 152 § 1 required that a person charged with a serious intentional offence be detained. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or reoffending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly or already in custody on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.). 76. Section 1(1) of the Act provides: “The State shall be liable for damage caused to private persons by the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties.” 77. Compensation awarded under the Act comprises all pecuniary and nonpecuniary damages which are the direct and proximate result of the illegal act of omission (section 4 of the Act). 78. The person aggrieved has to file an “action ... against the bodies ... whose illegal orders, actions, or omissions have caused the alleged damage” (section 7 of the Act). 79. Proceedings commenced under the Act are exempt from the initial payment of court fees (section 10(2) of the Act). 80. Persons seeking redress for damage acts or omissions falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). 81. New Article 217a of the CCP, adopted in July 1999, provides: “1. Each party may lodge a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed. 2. The complaint about delays shall be lodged directly with the higher court, no copies shall be served on the other party, and no State fee shall be due. The lodging of a complaint about delays shall not be limited by time. 3. The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been lodged. 4. In case he determines that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.” 82. The CPT visited Bulgaria in 1995 and again in 1999 and 2002. The Plovdiv Regional Investigation Service detention facility was visited in 1999 and 2002. All reports included general observations about problems in all Investigation Service detention facilities. 83. In this report (CPT/Inf (97) 1) the CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were better, the conditions were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light, the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a WC and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in the cell bucket; although according to the establishments’ internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to fiveten minutes or not allowed at all; no other form of outofcell activity was provided to persons detained. 84. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day’s “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or khalva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery - not even a spoon was provided. 85. The CPT also noted that family visits were only possible with permission and that as a result detainees’ contact with the outside world was very limited. There was no radio or television. 86. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities had agreed that the [CPT] delegation’s assessment had been “objective and correctly presented” but had indicated that the options for improvement were limited by the country’s difficult financial circumstances. 87. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes’ exercise per day be fully respected in practice, that cell lighting and ventilation be improved, and that pre-trial detainees should be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency. 88. In this report (CPT/Inf (2002) 1) the CPT noted that new rules, providing for better conditions, had been enacted, but had not yet resulted in significant improvements. 89. In most places visited in 1999 (with the exception of a newly opened detention facility in Sofia), the conditions of detention on Investigation Service premises had remained generally the same as those observed during the CPT’s 1995 visit, including as regards hygiene, overcrowding and outofcell activities. In some places the situation had even deteriorated. 90. With regard to the Plovdiv Regional Investigation detention facility, the CPT found that it was “overcrowded, poorly equipped and dirty, detainees’ access to toilet/shower facilities was problematic, there was insufficient food and drinking water and a total absence of outdoor exercise and outofcell activities”. The CPT further found that detainees in that detention facility “still had to eat with their fingers, not having been provided with appropriate cutlery”. 91. In this report (CPT/Inf (2004) 21) the CPT noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done. The cells remained generally overcrowded. 92. In Plovdiv, only a third of the cells had benefited from a refurbishment which involved making windows in the cell doors, improving the artificial lighting and installing wash basins in the cells. However, the majority of the cells remained in the same inadequate condition as in 1999. The sanitary facilities were not in a satisfactory state of repair. 93. Despite the CPT’s recommendations in the report on their 1999 visit, no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities. Those facilities did not have areas for outdoor exercise. At some of the establishments (e.g. Botevgrad), attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day. The CPT stated that “in this respect, the situation remain[ed] of serious concern”.

train

001-107286

ENG

DEU

CHAMBER

CASE OF LITWIN v. GERMANY

Remainder inadmissible;No violation of Art. 6-1

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

5. The applicant was born in 1958 and lives in Fulda. 6. On 23 February 2000 the applicant was arrested on suspicion of having committed robberies. He was detained pending trial. The trial, at which he was represented by counsel, began on 19 October 2000. At the end of the fifth day of the trial, and after evidence had been heard, the court set the next trial hearing for 17 November 2000 at 9 a.m. According to the court transcript, the trial only started at 10 a.m. on that date. 7. On 17 November 2000 between 9 a.m. and 10 a.m. negotiations took place inside the court building, the content of which are in dispute between the parties. 8. According to the applicant’s submissions, the court, having previously indicated that the potential penalty that the applicant faced could amount to fourteen years’ imprisonment, promised a maximum penalty of nineandahalf years’ imprisonment in exchange for the applicant’s waiver of his right to appeal, as well as a waiver of the applicant’s and his wife’s claims over confiscated assets and an agreement that he would not call for further evidence. 9. According to the Government, the public prosecutor did not take part in the agreement reached. The court, following a proposal made by the applicant’s counsel, promised a penalty of less than ten years’ imprisonment in exchange for the applicant’s waiver of claims over confiscated assets. 10. According to the court transcript of the hearing on 17 November 2000, which makes no mention of the agreement, further documents were then read out, the presiding judge gave legal advice as to the qualification of the alleged offences and both the applicant and his wife, who was present in the courtroom, declared that they waived any rights to the assets confiscated by the prosecution service. 11. At the end of the hearing, the Fulda Regional Court convicted the applicant of aggravated extortion, aggravated robbery and attempted aggravated robbery (two counts of each offence) and dangerous bodily injury (one count) and sentenced him to nine-and-a-half years’ imprisonment. The court, stating that the applicant had not entered a plea, based its findings on DNA expert evidence pointing to a high probability that the applicant had been the person that had caused marks found at the crime scenes and on further circumstantial evidence derived, in particular, from witness testimony. The court considered the fact that the applicant had eventually waived his right to the confiscated assets and had thus delivered a major proportion of his criminal profits as a mitigating factor. 12. After delivery of the judgment, the court verbally informed the applicant of his right to lodge an appeal on points of law. In the applicant’s presence, counsel for both the defence and the prosecution waived their rights to appeal. 13. The applicant subsequently appointed new counsel. On 12 April 2001 the applicant’s new counsel applied for restitution of the status quo ante and lodged an appeal on points of law, arguing that the waiver of the right to appeal had been invalid because it had not complied with the requirements of the Federal Court of Justice’s case-law. As the applicant had not been aware of the invalidity of his waiver, he could not be held responsible for having failed to comply with the statutory time-limit of one week for lodging an appeal on points of law. In a written statement attached to the application, the applicant submitted that his previous counsel had informed him that he would have to expect the imposition of a prison sentence of at least fourteen years if he did not accept the court’s proposal and that he was only informed about the invalidity of the waiver during a first conversation with his new counsel which took place on 10 April 2001. 14. In pleadings dated 10 May 2001 counsel specified the grounds of appeal on points of law. He complained that the negotiated agreement had not been recorded in the court transcript, as required by the case-law of the Fourth Chamber of the Federal Court of Justice (see paragraph 19 below). In his view, this constituted a breach of the principle of a public hearing. He also argued that the actual waiver of the right to appeal had been declared before delivery of the judgment – namely when negotiating the agreement – and had been invalid for this reason as well. 15. On 11 June 2001 the Second Chamber of the Federal Court of Justice (file no. 2 StR 223/01) dismissed the applicant’s request for restitution of the status quo ante and rejected his appeal on points of law as inadmissible. Relying on its own settled case-law, the court observed that a waiver of the right to appeal could not be revoked, rescinded or withdrawn. The Court of Justice did not find it necessary to establish whether the waiver had been part of a negotiated agreement, as this fact did not call into question the validity of the waiver as such. The waiver had to be measured by different standards: notably, whether the accused had retained the freedom to either accept a judgment against him or lodge an appeal had to be verified. This freedom had to be preserved, even if the judgment had been based on an objectionable agreement and the waiver had constituted honouring such an agreement. Notwithstanding any procedural defect in the alleged agreement, the accused may have pursued his interests in an autonomous and appropriate way. The only decisive factor was whether the accused had been unduly influenced when waiving his right to appeal. In the present case, there was no indication that there had been such undue influence. The applicant’s submissions neither disclosed an error or misunderstanding on the applicant’s part, nor any deceit or false information given by the court, nor any impairment of the interests of the defence. 16. The court further considered that, as a result of the valid waiver of the right to appeal, the Fulda Regional Court’s judgment had become legally binding on 17 November 2000 and that the appeal on points of law thus had to be rejected as inadmissible. It followed that the applicant could not be granted restitution of the status quo ante. If a person had knowingly waived a right to appeal, he had not been “prevented from observing a time-limit” within the meaning of Article 44 § 1 of the Code of Criminal Procedure. The decision was served on the applicant’s counsel on 5 July 2001. 17. On 3 August 2001 the applicant lodged a constitutional complaint, claiming that he had been unduly influenced when waiving his right to appeal in exchange for a maximum penalty of nine-and-a-half years’ imprisonment. Furthermore, the Federal Court of Justice had failed to consider the fact that his wife, who had not been involved in the trial, had also been asked to waive any rights she had to the confiscated assets. This procedural method had been arbitrary, had not been in accordance with the statutory provisions governing the confiscation of assets in criminal proceedings and had also constituted a violation of the right to an effective remedy. On 20 November 2003 the Federal Constitutional Court (file no. 2 BvR 1339/01), relying on the relevant provisions of its rules of procedure, refused to admit the constitutional complaint for examination without giving further reasons. This decision was served on the applicant’s counsel on 4 December 2003. 18. Relevant provisions: “If a person was prevented from observing a time-limit through no fault of his own, he shall be granted restitution of the status quo ante upon application. ...” “(1) The application for restitution of the status quo ante shall be filed with the court where the time-limit should have been observed within one week after the reason for non-compliance no longer applies. To observe the time-limit, it shall be sufficient for the application to be filed in time with the court which is to decide on the application. ...” “(1) In suitable cases the court may, in accordance with the following subsections, come to an agreement with the other parties to the proceedings regarding the further progress and outcome of the proceedings. ... (2) The subject matter of such an agreement may only comprise the legal consequences which could form part of the judgment and of the associated rulings, other procedural measures related to the proceedings, and the conduct of the parties. The verdict and measures of correction and prevention may not be the subject of an agreement. (3) The court shall announce what content the agreement might have. In this context, it may ... also indicate an upper and lower limit of the sentence. ...” “(1) Withdrawal of an appeal, as well as waiver of the right to lodge an appeal, may also take effect before expiry of the time-limit for filing. ... (2) Defence counsel shall require express authorisation for such withdrawal.” “(1) Withdrawal of an appeal, as well as waiver of the right to lodge an appeal, may also take effect before expiry of the time-limit for filing. If a negotiated agreement (Section 257c) has preceded the judgment, a waiver shall be excluded. ... (2) Defence counsel shall require express authorisation for such withdrawal.” 19. There has always been agreement between the Chambers of the Federal Court of Justice that agreements with a view to terminating criminal proceedings are not per se inadmissible. It has also been accepted that a waiver of the right to appeal should not be negotiated in the context of such an agreement and that such a waiver is not legally binding on the defendant. However, the Chambers have differed on the question of the consequences of such a waiver if a defendant has nevertheless promised to grant the waiver and has made a declaration that he or she will do so to the trial court. The First and Second Chambers have held that a waiver of the right to appeal is not invalid simply because it formed – though inadmissibly – part of an agreement between the court, the prosecution and the defence. Rather, it has only been considered to be invalid if the procedural defect led to undue influence at the time the waiver was declared. The Third, Fourth and, since 2003, Fifth Chambers have found a waiver of the right to appeal, which has been the subject of an agreement with a view to terminating criminal proceedings, to always be invalid. They have held that a promise not to lodge an appeal, made before delivery of a judgment, albeit not legally binding, always constitutes undue influence on the accused. 20. In a leading decision of 3 March 2005, the Grand Chamber of the Federal Court of Justice laid down the principles governing the validity of a waiver of the right to appeal in the context of agreements entered into with a view to terminating criminal proceedings (file no. GSSt 1/04). It considered such agreements, in which the criminal courts make a binding declaration on the maximum penalty to be imposed in exchange for the defendant’s confessing to (part of) the offences he has been charged with, to be compatible with the Code of Criminal Procedure and the Basic Law if certain conditions are met. 21. In particular, all participants in the proceedings (that is, professional and lay judges, the prosecution, the defence counsel and the defendant) must be involved in reaching the agreement, the result of which must be made public at a hearing and must be duly noted in the court transcript. The veracity of any confession made by the defendant in accordance with the agreement must be verified. The agreement is not allowed to concern the legal qualification of the acts the defendant has been charged with. The penalty proposed by the court still must reflect the defendant’s guilt and the penalty which, according to the court, could be expected without a confession may not be disproportionately severe in order to subject the defendant to undue pressure to confess. The court is only allowed to agree a maximum penalty (as opposed to a specific penalty) and may only exceed that penalty if relevant factual or legal issues have been overlooked and if it has previously advised the defendant at a hearing of its intention to set a higher penalty. The Federal Court of Justice noted that in view of their heavy workload, the courts would be unable to render criminal justice and to avoid delays in proceedings without being allowed to have recourse to such agreements. 22. The Federal Court of Justice further observed that in the past, such agreements had in practice often involved the defendant’s promise to waive his right to appeal against the judgment, or at least the court’s suggestion to do so. However, the criminal courts were not authorised, in the context of these agreements, to arrange for a waiver of the right to appeal. An agreement aimed at terminating the proceedings was not to prevent the effective review, by the appeal courts, of the lower courts’ judgments. After the delivery of a judgment which was given following an agreement – irrespective of whether a waiver of the right to appeal had been included or discussed – the court therefore had to inform the defendant not only of his right to appeal, but also of the fact that he was free to lodge an appeal irrespective of the agreement reached (what is termed a qualified instruction). If such a qualified instruction had not been given, the defendant’s waiver of his right to appeal was void. 23. These guidelines of the Federal Court of Justice have meanwhile been incorporated in Sections 257c and 302 of the Code of Criminal Procedure (see paragraph 18 above).

train

001-82504

ENG

NLD

ADMISSIBILITY

MERIE v. THE NETHERLANDS

Inadmissible

David Thór Björgvinsson

The applicant, Mr John Merie, claims to be a Burundian national who was born in 1985. At the time of the events complained of he was staying in the holding centre for asylum seekers and illegal immigrants (grenshospitum) at Amsterdam (Schiphol) Airport. He is represented before the Court by Mr P.A. Blaas, a lawyer practising in 's-Hertogenbosch. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant arrived at Amsterdam (Schiphol) Airport on 8 October 2004. An officer of the Royal Military Constabulary (Koninklijke Marechaussee) initially refused him admission to the country on the ground that he did not hold a valid passport, and that he had insufficient means either to provide for his own subsistence in the Netherlands or to cover the cost of his journey to a destination outside the Netherlands. When the applicant then asked for asylum, the same officer ordered that he be detained in the asylum application centre (aanmeldcentrum) at Schiphol for the purposes of prevention of unauthorised entry into the Netherlands, in accordance with Article 6 §§ 1 and 2 of the Aliens Act 2000 (Vreemdelingenwet). In an asylum application centre, and following an initial intake interview with the asylum seeker, the Netherlands immigration authorities make the first selection between prima facie unfounded and possibly founded asylum requests. Petitioners falling within the latter category are transferred to a reception and investigation centre for asylum seekers (opvang- en onderzoekscentrum), whereas petitioners falling within the former category remain in detention in the asylum application centre pending the determination of their asylum request, which may be dealt with in an accelerated procedure if they do not require a time-consuming investigation; the accelereated procedure means that the asylum request can be processed with all due care within 48 working hours. On 9 and 10 October 2004 the applicant was interviewed by an immigration official in relation to his asylum request. On 11 October 2004, on the basis of these interviews, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected the applicant's asylum application. Apart from the fact that he had not submitted any documents capable of demonstrating his identity, nationality or travel itinerary, the applicant was deemed to have insufficiently cooperated in the establishment of his travel itinerary, since he had provided virtually no tangible or verifiable statements about his journey (departure and arrival times of the airplane(s), the name and/or logo of the airline company, and whether or not the airplane had made a stop-over). Given the applicant's inability to answer a large number of elementary and basic questions about Burundi and his alleged area of origin, the Minister also had doubts as to whether the applicant was a Burundian national or of Burundian origin. The Minister further maintained the aliens' detention order. On the same day the applicant appealed to the Regional Court (rechtbank) of The Hague against his placement in aliens' detention. The Regional Court held a hearing on 25 October 2004. The applicant's counsel – referring to the European Court's judgment in the case of Shamsa v. Poland (nos. 45355/99 and 45357/99, 27 November 2003) – argued that a measure whereby a non-judicial authority issues a detention order can only justify detention for a few days and that, consequently, his detention after 13 October 2004 had to be regarded as unlawful. The Minister submitted, inter alia, that an application for a laissez-passer had already been filed but that no date had yet been fixed to present the applicant to the Burundian authorities. The Regional Court gave its decision on 29 October 2004. Referring to a precedent set by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) in a ruling of 13 May 2004 (see below under “Relevant domestic law”), it dismissed the appeal. On 1 November 2004 the applicant lodged an appeal against the decision of 29 October 2004 with the Administrative Jurisdiction Division. He raised only one complaint, namely that the Regional Court had unjustly failed to acknowledge that, where a detention order has been issued by an administrative authority, the alien concerned must – pursuant to the Court's considerations in its Shamsa judgment – be brought before a judge within a few days. On 24 November 2004 the Administrative Jurisdiction Division dismissed the further appeal, confining its reasoning to a reference to its earlier ruling of 13 May 2004. No further appeal lay against this ruling. Until 1 April 2001 the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet; “the Aliens Act 1965”). Further rules were set out in the Aliens Decree 1966 (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the Aliens Act 1965, unless indicated otherwise in this Act. On 1 April 2001 the Aliens Act 1965 and the associated regulations were replaced by the Aliens Act 2000, the 2000 Aliens Decree, the 2000 Regulation on Aliens and the Aliens Act 2000 Implementation Guidelines. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence. The Aliens Act 2000, in so far as relevant to the case, provides: “1. An alien who has been refused permission to enter the Netherlands may be obliged to remain in a space or area indicated by an official charged with border control. 2. A space or area as referred to in the first paragraph may be secured against unauthorised departure. ...” “In derogation from Article 37 § 1 of the Act on the Council of State (Wet op de Raad van State), no appeal lies against a decision of the Regional Court ...: a. about a decision or act based on Article 6 § 1[of the Aliens Act 2000] ...” “1. Our [competent] Minister shall notify the Regional Court of a decision to impose deprivation of liberty as referred to in Article 6 ... [of the Aliens Act 2000] no later than the twenty-eighth day after communication of the decision, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty. The appeal shall also constitute a request for the award of damages. 2. The Regional Court shall immediately fix the date of a hearing. The hearing shall take place no later than the fourteenth day after the receipt of the written statement of appeal or the notification. ... In derogation from Article 8:42 § 2 of the General Administrative Law Act, the delay referred to in that Article cannot be prolonged. 3. The Regional Court shall give judgment orally or in writing. A written judgment shall be given within seven days of the conclusion of the hearing. In derogation from Article 8:66 § 2 of the General Administrative Law Act, the delay referred to in that Article cannot be prolonged. 4. If the Regional Court finds on appeal that the application or implementation of the decision [to impose deprivation of liberty] is contrary to this Act or is – on consideration of all the interests involved – not reasonably justified, it shall accept the appeal. In such a case the Regional Court shall order that the deprivation of liberty be terminated or the manner of its implementation altered.” Article 95 “1. In derogation from Article 84 under a., an appeal to the Administrative Jurisdiction Division of the Council of State lies against a ruling given by the Regional Court as referred to in Article 94 § 3...” Article 96 “1. Should the Regional Court reject as unfounded an appeal within the meaning of Article 94 and [should] the deprivation of liberty continue, Our Minister shall notify the Regional Court of the continuation of the deprivation of liberty no later than four weeks after the ruling within the meaning of Article 94 has been given, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the decision to prolong the decision imposing deprivation of liberty. ” Pursuant to Article 94 §§ 1 and 2, as in force until 1 September 2004, the delay within which the Minister was to notify the Regional Court of the placement of an individual in aliens' detention was three days and the Regional Court was to hold a hearing no later than seven days after receipt of the appeal. On 1 September 2004 an amendment to Article 94 entered into force, prolonging these time-limits to twenty-eight and fourteen days respectively. In practice, this meant a revival of the legal situation that existed until 1 April 2001 in respect of these two time-limits under the former Aliens Act 1965 and associated regulations (for further details, see Tekdemir v. the Netherlands (dec.), nos. 46860/99 and 49823/99, 1 October 2002, under “Relevant domestic law and practice”). Article 69 § 3 of the Aliens Act 2000 stipulates that there is no time-limit for filing an appeal within the meaning of Articles 94 and 96 of the 2000 Aliens Act and that an appeal referred to in Article 95 must be filed within one week. Accordingly, an individual placed in aliens' detention may in principle file as many appeals against this placement as he or she sees fit. When the lawfulness of a decision to place an individual in aliens' detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens' detention. Pursuant to Article 84 of the Aliens Act 2000, no appeal to the Administrative Jurisdiction Division lies against a decision by the Regional Court on such a subsequent appeal (Administrative Jurisdiction Division, 1 November 2006, case no. 200607626/1). The hearing and determination of any such subsequent appeal are subject to the same mandatory time-limits as those for a first appeal (Regional Court of The Hague sitting in Groningen, 19 June 2006, case no. AWB 06/22632). According to a ruling given by the Administrative Jurisdiction Division on 11 February 2005 (Jurisprudentie Vreemdelingenrecht (Immigration Law Reports – “JV”) 2005/172), the time-limit set out in Article 94 § 2 of the 2000 Act is of a strict mandatory nature. If this time-limit has not been respected, the placement in aliens' detention becomes unlawful on the day following the day on which this time-limit expired. In a ruling handed down on 13 May 2004 (JV 2004/290), the Administrative Jurisdiction Division held, in so far as relevant for the present case: “The judgment of the European Court of Human Rights [in the case of Shamsa v. Poland] of 27 November 2003, relied on by the [appellant], concerns the continued detention of aliens against whom an expulsion or extradition procedure was no longer pending, for which continued detention there was no legal basis. Consequently, the detention had lost its lawful character and thus did not fall within the scope of one of the permissible grounds of deprivation of liberty as listed in an exhaustive manner in Article 5 § 1 of the Convention. In this light, the Administrative Jurisdiction Division understands the judgment and in particular the reasoning set out in paragraph 59 to mean that the Court – in assessing such detention – incorporates the rationale of Article 5 taken as a whole and, in that context, also considers relevant the guarantees for legal protection and legal certainty as incorporated in the third paragraph of [Article 5 of the Convention]. Noting this as well as the [decisions on admissibility taken by] the Court in the case Leaf v. Italy [no. 72794/01, 27 November 2003] and Vikulov and Others v. Latvia [16870/03, 25 March 2004], the Administrative Jurisdiction Division is of the opinion that the Court did not have the intention to consider Article 5 § 3 applicable by analogy to the detention of aliens in accordance with [Article 5 § 1 (f) of the Convention], which would also be at variance with the wording of [Article 5 § 3 of the Convention]. In this connection the Administrative Jurisdiction Division also finds of relevance that the Court, in its [decision on admissibility] in the case of Tekdemir v. the Netherlands (no. 46860/99, 1 October 2002) found that there was no reason for holding that there was a violation of Article 5 § 4 of the Convention, as the alien concerned who had been placed in aliens' detention under the Aliens Act [as in force until 1 April 2001] could at any point challenge the lawfulness of [that] detention before [a] judge, who should determine [this issue] speedily. The Court did not conduct an additional examination of the matter under [Article 5 § 3 of the Convention]. In accordance with Article 94 § 1 (and Article 96 §§ 1 and 5) of the Aliens Act 2000 an alien may also at present file an appeal at any point against a decision imposing deprivation of liberty.” As there is no statutory fixed maximum duration of a placement in aliens' detention for the purpose of preventing unauthorised entry into the country or expulsion, an alien refused admission or whose expulsion has been ordered may, in principle, remain in aliens' detention for an unlimited period of time, provided there are reasonable prospects for departure or expulsion within the foreseeable future. However, it has been established in domestic case-law that the interest of an alien to be released from aliens' detention increases with the passage of time. Where a placement in aliens' detention exceeds a period of six months, the alien's interest in being released may – but not necessarily – be accepted as having become greater than the interest in keeping him in detention for the purpose of preventing unauthorised entry. Depending on the specific circumstances of each case, this turning point may be attained later than six months when, for instance, the alien concerned insufficiently cooperates in the determination of his/her identity and nationality and in making documents available. However, once an alien has spent six months in aliens' detention for the purpose of preventing unauthorised entry, the judge is to verify more thoroughly whether the authorities have complied with their obligation to do whatever they can do to facilitate the alien's departure to a destination outside of the Netherlands (see, Regional Court of The Hague sitting in Amsterdam, 10 January 2006, Landelijk Jurisprudentienummer (National Case-law (database) number ) – “LJN”) AU9605 with further references).

train

001-69616

ENG

RUS

CHAMBER

CASE OF TRUBNIKOV v. RUSSIA

No violation of Art. 2 (obligation to protect the right to life);Violation of Art. 2 (obligation to provide an effective investigation);Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

7. The applicant was born in 1940 and lives in the village of Khokholskiy in the Voronezh Region. He is the father of Viktor Trubnikov, who was found dead on 13 September 1998 in a punishment cell of the prison where he had been serving his sentence. He had died of asphyxia caused by hanging. At the time of his death, Viktor Trubnikov was 26 years old and was due to be released 21 days later. 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. On 8 July 1993 Viktor Trubnikov was remanded in custody in connection with criminal charges brought against him. 10. On 30 August 1993 Viktor Trubnikov was convicted of manslaughter and sentenced to seven years’ imprisonment. He was serving his sentence in the correctional labour colony (исправительно-трудовая колония) OZH 118/8 in Rossosh, Voronezh Region. He expected to be released on probation on 4 October 1998. 11. According to the records submitted by the Government, on three occasions in 1994-1995 Viktor Trubnikov had been found to be under the influence of alcohol and placed in a punishment cell. During his second disciplinary confinement, Viktor Trubnikov inflicted bodily injury on himself, and during his third disciplinary confinement he attempted suicide (see the section entitled “Medical records”). 12. Following the suicide attempt, Viktor Trubnikov was placed under regular psychiatric supervision. 13. On 13 September 1998 a prison football team, of which Viktor Trubnikov was a member, took part in a match outside the prison. 14. On return to the prison after the match, Viktor Trubnikov was found to be under the influence of alcohol. At 7.15 p.m. a prison officer placed him in a punishment cell where he was to be kept in solitary confinement before his inspection by the prison warder the following morning. At 8.20 p.m. Viktor Trubnikov was found dead, hanged by the sleeve of his jacket with another sleeve attached to a water pipe. 15. That evening the prison governor conducted an inquest. He examined six documents: (i) the order to place Viktor Trubnikov in the punishment cell, (ii) the disciplinary offence report, (iii) the report drawn up on finding Viktor Trubnikov dead, (iv) the site inspection report, (v) the site plan and (vi) the post mortem report. On the basis of this file, he stated that Viktor Trubnikov had hanged himself using the sleeve of his jacket and ordered that no criminal investigation be opened, as there had been no appearance that a crime had been committed. A reference was also made to his attempted suicide in June 1995, and it was stated that he had had suicidal tendencies. 16. On 15 September 1998 an autopsy was performed on the body. In October 1998 a post mortem report was issued according to which abrasions and bruises were found on the nose, hand, forearm and elbow. The expert came to the conclusion that death had been caused by pressure on the neck through hanging. 17. The applicant was informed orally that his son had committed suicide. He asked the prison authorities to initiate a criminal investigation. The authorities did not inform him that a decision had already been taken not to do so. 18. In March 1999 the applicant requested the Voronezh Regional Prosecutor’s Office to provide him with information about the circumstances of his son’s death. The request was transmitted to the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions. 19. On 8 April 1999 the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions informed the applicant of the decision not to investigate the circumstances of Viktor Trubnikov’s death in criminal proceedings. The applicant was informed that his son had had a record of good conduct, that he had been rewarded on several occasions and that no conflict had been registered between him and other inmates or the prison administration. He was also informed that, in the circumstances, the decision not to institute a criminal investigation was lawful and well-founded. 20. On 16 April 1999 the Voronezh Regional Prosecutor’s Office informed the applicant of the refusal to institute criminal proceedings and invited him, on 30 April 1999, to view the case file concerning the death of his son. 21. On 30 April 1999 the applicant arrived at the prosecutor’s office for the appointment to view the file, but the officer in charge was absent and he could not gain access to the file. 22. On 26 June 1999 the applicant received a copy of the prison governor’s decision of 13 September 1998. 23. On 18 September 2000 the applicant lodged a request with the Rossoshanskiy District Court of the Voronezh Region that it order a criminal investigation into his son’s death. The court declined jurisdiction in the matter, however, on 2 October 2000. It stated that the institution of criminal proceedings fell within the competence of the prosecutor’s office. 24. After the case had been communicated to the respondent Government by the Court, the Voronezh Regional Prosecutor’s Office annulled the decision of 13 September 1998 on 5 February 2002 and instituted a criminal investigation into Viktor Trubnikov’s death. 25. On 23 March 2001 the applicant brought proceedings before the same district court to have the refusal of the prison governor to institute criminal proceedings declared unlawful. 26. On 20 March 2002 the Rossoshanskiy District Court of the Voronezh Region held that the decision of 13 September 1998 was unlawful. At the same time it discontinued the examination of the applicant’s claim as no longer necessary, given the prosecutor’s decision of 5 February 2002 which had already dealt with the issue. 27. In June 2002 two forensic examinations were carried out. First, experts were appointed to conduct a new autopsy of the body. Secondly, another group of experts carried out a posthumous examination of Viktor Trubnikov’s psychiatric and psychological condition. 28. The autopsy resulted in substantially the same findings as the first post mortem report, namely, that the death had been caused by mechanical asphyxia (more specifically, strangling), and established a mediumdegree alcoholic intoxication at the time of death. 29. On 27 June 2002 the posthumous psychiatric report was submitted. The experts concluded that at the time of his death Viktor Trubnikov had not been predisposed to suicide on account of any long or short-term psychiatric disorder. However, they concluded that he had been under the influence of alcohol and that it could have triggered his decision to commit suicide. 30. During the investigation the following witnesses were examined and gave the following testimonies: (i) Six officers who were on duty at the prison entrance when Viktor Trubnikov returned to the prison after the football match, testified that he had been drunk and had behaved aggressively. He therefore had to be isolated in the punishment cell. They all stated that no force had been applied to him. (ii) Two inmates who had been on the same football team testified that Viktor Trubnikov had been under the influence of alcohol on their return from the match, and that was why he had been stopped by the prison warders at the prison entrance. They stated that there had been no threats or violence at the prison entrance. (iii) Three other inmates who had known Viktor Trubnikov well testified that he had had good relations with other inmates and warders and that there had been no conflict between him and the prison administration. (iv) Six officers who had been on duty in the punishment ward when Viktor Trubnikov died, testified that he had been placed in the cell at about 7.30 p.m. and had been found dead during the warder’s round at 8.15 p.m. They stated that first aid had been administered, but that it had been too late. (v) Inmates L. and M. testified that they had been confined to punishment cells next to Viktor Trubnikov. M. stated that at first they had communicated through the wall, but then Viktor Trubnikov had gone quiet. Neither of them had heard any noises or screams. (vii) Two officers testified that they had witnessed Viktor Trubnikov’s previous suicide attempt in 1995 and administered first aid to him. They considered that that attempt had not been a genuine suicide, but that he had rather been trying to attract attention and demonstrate his independence. (viii) Ms. K, the psychiatrist who had supervised Viktor Trubnikov, testified that his first suicide attempt had been demonstrative and had not reflected a genuine wish to die. She also considered, on the basis of her observations, that he had been likely to make another attempt, also demonstrative and not aimed at causing death, and that the probability of such behaviour increased under the influence of alcohol. 31. On 10 October 2002 the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions terminated the criminal investigation, having established that Viktor Trubnikov had committed suicide. 32. On 3 March 2003 the applicant received a copy of the termination order of 10 October 2002. 33. The Government submitted a collection of medical records concerning Viktor Trubnikov’s condition throughout his detention. In so far as the copies are legible, they contain the following relevant entries. 34. On 13 July 1993, upon his arrest, Viktor Trubnikov was examined by a psychiatrist and found to be in good health. 35. On 10 September 1994 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell. 36. On 21 March 1995 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell where he inflicted injuries on himself, recorded as follows: “As a protest against being put in a punishment cell [Viktor Trubnikov] inflicted three horizontal cuts on his abdomen: measuring 10x2 cm, 8x2 cm and 6x1 cm, each about 1.5 cm deep. Minor bleeding ...” 37. From 21 to 27 March 1995 Viktor Trubnikov was kept in the medical block for treatment of the self-inflicted wounds. 38. On 22 June 1995 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell where he attempted to hang himself, as recorded: “Emergency call for an attempted suicide. Trubnikov detained in the punishment cell No. 22 attempted to hang himself by a string attached to a water pipe ... Consultation with a psychiatrist is required.” 39. Following that incident, Viktor Trubnikov was supervised by a psychiatrist, Ms K., who made the following entries in the records. On 23 June 1995: “Complains about depression, unwillingness to live, weakness, insomnia, irritability. Psychologically [stable]. Enters into contact. Orientation in space and time, as regards own personality is correct. Depressed overall. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms can be observed at the time of examination. Diagnosis: short-term depressive reaction; suicide attempt. (i) [prescription medicines]; (ii) psychotherapy.” On 24(29) June 1995: “Conscious. Enters into contact. Depressed. Thinking is consistent. Demonstrative behaviour. Explains the suicide attempt by saying that he is ‘fed up with a life like that’. The attitude to the suicide attempt is not self-critical. Memory and reason are intact. No pathological psychiatric condition. Diagnosis: short-term depressive reaction. Suicide attempt. Fixation behaviour. Continue treatment.” On 30 June 1995: “Has no medical complaints. His mood is steady and positive. Goes in for sport. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms can be observed. Self-critical attitude to the recent suicide attempt. No acute psychiatric symptoms are observed. Prescribed rational psychotherapy. The next visit is scheduled for 25 December 1995.” On 25 December 1995: “Has no medical complaints. Mood is steady. Demonstrative behaviour. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: fixation behaviour. Prescribed rational psychotherapy. The next visit is scheduled for 25 June 1996.” On 25 June 1996: “Complains about depression, weakness, irritability, insomnia, inability to work. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: hyposthenic form of neurasthenia.” On 25 December 1996: “Has no medical complaints. His mood is steady. Thinking is consistent. Self-critical attitude to the suicide attempt in the past. Memory and reason are intact. Demonstrative behaviour. Diagnosis: hyposthenic form of neurasthenia. The next visit is scheduled for 25 June 1997.” On 25 June 1997: “Mood is changeable. Thinking is consistent. Self-critical attitude to the suicide attempt in the past. No acute psychiatric symptoms are observed. Diagnosis: hyposthenic form of neurasthenia. The next visit is scheduled for 25 December 1997.” On 25 December 1997: “Complains about depression, weakness, insomnia, irritability. No acute psychiatric symptoms are observed. Depressed. The next visit is scheduled for 25 June 1997.” The next entry is dated 25 June 1997, although it immediately follows the above record of 25 December 1997: “Condition has improved. Mood has stabilised. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: the same. The next visit is scheduled for 25 December 1998.” The next entry is dated 17 February 1997, although it immediately follows the above record dated 25 June 1997: “Has no medical complaints. Mood is steady, depressed. No acute psychiatric symptoms are observed. Diagnosis: depressive reaction. Attempted suicide in the past. No complaints at the time of examination. [Fixation]. The next visit is scheduled for 17 August 1998. Rat[ional] psychotherapy.” 40. On 8 August 1998 a psychological test revealed, inter alia, a potential psychiatric condition, a tendency towards impulsive reactions and, possibly, a tendency towards conflict with others. 41. The last record in Viktor Trubnikov’s lifetime was made on 17 August 1998: “Complains about depression, weakness, insomnia, irritability. Enters into contact. Orientation is correct. Depressed. Thinking is consistent. No acute psychiatric symptoms are observed. No suicidal thoughts. Diagnosis: short-term depressive syndrome. The next visit is scheduled for [unclear].” 42. On 20 February 2002 the deputy prison warder in charge of the prison medical office issued a certificate that Viktor Trubnikov had been under permanent psychiatric supervision, having been diagnosed as suffering from neurasthenia and a psychopathic condition with depressive reactions. 43. Article 20 of the Constitution of the Russian Federation protects the right to life. 44. The Health Care (General Principles) Act of 22 July 1993 provides that persons serving a sentence in prisons are entitled to medical assistance at the State’s expense and, as the case may be, at institutions run by the general public health service (Section 29). 45. The Law on Penitentiary Institutions of 21 July 1993 provides that penitentiary institutions are responsible for inmates’ security and health care (section 13). 46. Article 18 of the 1997 Penitentiary Code, as it read at the material time, provided that inmates suffering from a psychiatric disorder which did not affect their capacity to serve a criminal sentence could be subjected to medical treatment at the penitentiary institutions. The authorisation of a competent court was required for any such treatment. After recent amendments, the same provision specifies that such inmates include persons who pose a danger to others or themselves. The provisions currently in force require the penitentiary authorities to identify such inmates and to apply for a court order imposing medical treatment on them. 47 The 1960 Code of Criminal Procedure, which was in force at the material time, required that a competent authority institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts (Articles 3, 108-09). 48. No criminal proceedings could be brought in the absence of a corpus delicti (Article 5). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Articles 113 and 209). 49. During criminal proceedings, persons who had been granted victim status could submit evidence and file applications, had full access to the case file once the investigation was complete, and could challenge appointments and appeal decisions or judgments in the case. At an inquest, the close relatives of the deceased were to be granted victim status (Article 53).

train

001-98191

ENG

GBR

ADMISSIBILITY

DAVISON v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Richard Davison, is a British national who was born in 1965 and lives in Middlesex in England. He was represented before the Court by Mr S. Humber of Leigh Day & Co Solicitors, a lawyer practising in London. The applicant’s personal circumstances The applicant served a sentence of twelve years’ imprisonment for offences relating to the importation of drugs, from which he secured early release in September 2009. The applicant has a long-term girlfriend who has a child from a previous relationship. He also has an adult son from a previous relationship. Whilst in prison, he kept in contact with these and other family members by telephone. As a prisoner, the applicant’s earnings were limited. He earned on average about GBP 10 a week. Prisoners can only make telephone calls if they have credit on their prison pin account. The applicant’s complaint to the Prison Ombudsman On 31 January 2006 the applicant submitted a complaint to the Prison Ombudsman that the charges for telephone calls made from prisons were not equivalent to those made from payphone boxes in the community. On 23 August 2006 the Ombudsman upheld the applicant’s complaint and recommended that the Prison Service reopen negotiations with British Telecom (“BT”, their telephone communications provider) over the cost of prison telephone calls, “with a view to reducing the tariff so that prisoners are not penalised for making longer calls.” In his consideration of the applicant’s complaint, the Ombudsman made the following observations; Firstly, he noted that the cost of a telephone call from a prison telephone was higher than the cost of a call from a public payphone if the call lasted more than two minutes and 45 seconds. In particular, if a prisoner were to make a 15 minute telephone call it would cost him/her over five times more from a prison telephone compared to a public payphone. It was further remarked that the Prison Service had entered into a contract with BT in 1999 for the provision of telephone services to prisoners. The contract was awarded following a tendering process. The invitation to tender had required that prisoners should not be charged above public payphone rates and the contract itself had also stated that prices would be kept to the public payphone level. Moreover, the contract identified that a commission would be paid by BT to the Prison Service on the sale of all telephone credits to prisoners. The difference in charges had first arisen in October 2000 when BT decided to increase the minimum charge for using a public payphone from 10 pence to 30 pence. The Prison Service wished to retain a 10 pence minimum charge and thus decided to agree to a different regime of call charges to that applied in the community. The deviation between the charging system in prisons and public payphones had since increased owing to more competitive public pricing. The change in the contract appeared to have been confirmed in a Change Control Note between the Prison Service and BT dated June 2004. It further appeared that there was no tendering process adopted at this or any other time since the deviation in charging rates. Figures obtained by the Ombudsman’s investigator suggested that prisoners lost significant amounts of money as a result of their not being charged public payphone rates for making telephone calls. In the applicant’s case, he had lost GBP 83.82 per annum as a consequence of being required to pay more than public payphone rates. This represented over two months’ earnings for the applicant. The Ombudsman also highlighted that no impact assessment had been undertaken of the effect on prisoners of the decision that charges for prison telephone calls should deviate from those for public payphones. The information obtained in the course of the Ombudsman’s investigation suggested that the average length of a prisoner’s call was between two minutes and six minutes, which meant that a significant proportion of the prison population was likely to be disadvantaged. Finally, the Ombudsman considered that, given the high levels of literacy problems amongst prisoners, the choice to communicate by letter or telephone was not an equal one. Furthermore, letter writing between family and friends was on the decline in society at large. The immediacy and intimacy of telephone communication could not be substituted by letter writing. In particular, letter writing was time consuming, and whilst prisoners might have the time to write, their family and friends outside might not. The high cost of telephone calls would have an indirect impact on prisoners’ ability to maintain contact with their family and friends. 3. The reaction of the Prison Service to the Ombudsman’s Report On 9 November 2009, in a letter directed to the Prisons Ombudsman, the Director General of the Prison Service (“Director General”) stated that the separate pricing structure from that used in payphones was assumed following the introduction of the 30 pence minimum charge in 1999 and that it ensured that pricing was consistent so that prisoners who made short calls did not effectively subsidise those who made longer calls. The Director General further maintained that the majority of calls made by prisoners were short while only six percent of calls lasted longer than 15 minutes. Thirty-eight percent of calls lasted less than two minutes and 53 percent of calls were less than two minutes 53 seconds, which was the point where public payphone calls became cheaper by comparison. Having regard to the foregoing, the Director General saw no reason to change the practices in this area. In a letter dated 4 January 2007 the Director General confirmed its intention not to follow the Ombudsman’s recommendation. It was underlined that the current contract with BT would expire in May 2011 and that BT had been informed that there would be no extension. The applicant’s letter before action to the Secretary of State On 13 February 2007 the applicant’s solicitors wrote a letter before action challenging the Prison Service’s failure to reduce the excessive cost of telephone calls for prisoners. On 27 February 2007 the Prison Service responded to the applicant’s letter before action. They made the following arguments. The pricing structure for telephone calls made by prisoners was reasonable and proportionate as it prevented prisoners who made short telephone calls from subsidising those making long telephone calls. Any reduction in the cost of calls would require a subsidy from the taxpayer which was unacceptable. Moreover, there was no legal obligation for the Prison Service to provide prisoners with telephone services. It could therefore be argued that prisoners’ access to a telephone was a privilege and not a right. Prisoners traditionally made calls of short duration and historical call data suggested that 64 percent of prisoner calls would be cheaper using the prison call rates. Prisoners still benefited from the 10 pence minimum charge and analysis of the historical call data clearly indicated that a significant volume of calls were terminated before the connection was made (for example due to an answering machine or the unavailability of the person sought). Finally, the contract with BT allowed prisoners to pay for their calls with BT meeting the whole cost of the telephone network with the potential to make a profit. The applicant’s application for permission to apply for judicial review On 29 March 2007 the applicant lodged an application for permission to apply for judicial review of the Prison Service’s refusal to reopen negotiations with BT, with regard to reducing the cost of telephone calls for prisoners as recommended by the Ombudsman. On 6 July 2007 Sullivan J refused the application following a review of the papers. In so doing, he reasoned that even if Article 8 was engaged, which he doubted, given the other means available to the applicant to maintain family contact (such as correspondence, visits and short telephone calls), and despite their limitations, any interference was not arguably so serious so as to amount to an infringement of the applicant’s Article 8 rights. The applicant had contended that his rights under Article 8 had been violated as it had not been demonstrated that there were legitimate reasons for the charging regime. Though one might agree or disagree with the Prison Service’s assertion that prisoners were better served by the current charging regime in place, it was an entirely rational justification. The fact that no research had demonstrated that the Prison Service’s view was true did not mean that there was a lack of justification or that there was an arguable breach of Article 8 of the Convention. On 22 November 2007 permission to apply for judicial review was again refused following an oral hearing. Mitting J pointed out that the applicant’s claim for a mandatory order was impossible, but he accepted that if a breach of the applicant’s Convention rights had occurred, it would be appropriate for the court to make a declaration to that effect. In refusing the application, Mitting J considered that Article 8 was engaged in a limited sense as prisoners, notwithstanding their incarceration, had a family life. Of course, such family life could not be maintained in the same way as someone at liberty would seek to maintain it but it nevertheless could be maintained by correspondence, family visits and telephone calls. Within that context, telephone calls were of some importance. Consequently, the ability of a prisoner to communicate with his family by telephone was capable of engaging Article 8 and any interference would “arguably amount to a violation of that right unless it could be shown under Article 8 § 2 to be proportionate and justified.” It was “self evident” that this was a “question of fact and degree and that not every restriction upon free use of telephone facilities can constitute an interference with family life such as to engage Article 8...” In Mitting J’s view, the facts of the present case were incapable of giving rise to a reasonable argument that the applicant’s Article 8 rights had been infringed. The means of communication open to prisoners, which included correspondence, family visits and telephone calls (albeit on the tariff criticised by the Ombudsman) demonstrated proper regard for the family life of serving prisoners. The fact that a different tariff would permit prisoners to make telephone calls at a lesser cost than under the current regime was “simply incapable of infringing family rights in the circumstances...” The applicant’s appeal against the refusal to grant him permission to apply for judicial review On 2 May 2008 the Court of Appeal dismissed the applicant’s appeal against the refusal to grant him permission to apply for judicial review. Buxton LJ, in delivering judgment, accepted at the outset that under the prison telephone regime applicable to the applicant “... a 15 minute call from prison costs £1.64, or more than five times the public box rate”. He further found that Article 8 was capable of being engaged by an issue relating to telephone calls made by prisoners to their families. He considered that the question before the court was whether the availability of telephone calls in itself engaged Article 8, and if so, whether the facts of the case demonstrated an interference sufficiently severe to breach Article 8 § 1 of the Convention. In light of this Court’s judgment in the case of A.B. v. the Netherlands, no. 37328/97, 29 January 2002, it was doubtful whether it was open to the Court even to question the availability of telephone calls through the application of Article 8. Notwithstanding, the circumstances in the present case with regard to the availability of telephone calls were not sufficiently severe to constitute an interference under Article 8 § 1. As such, the Prison Service had no obligation to justify the charging regime as being proportionate under Article 8 § 2. As to the applicant’s complaint under Article 14 of the Convention, a limited approach had to be taken when considering whether the availability of telephone calls fell within the ambit of Article 14. In light of the fact that Article 8 was not engaged in the circumstances, Article 14 could not be relied on. In any event, in respect of use of the telephone, prisoners could not claim to be in a relatively comparable position to persons in the wider community. National Consumer Council (NCC) Complaint to Office of Communications (Ofcom) On 24 June 2008 the NCC submitted a complaint to Ofcom, with the assistance of the Prison Reform Trust (PRT). The complaint stated specifically that the high cost of telephone calls made by prisoners in England, Wales and Scotland seemed unrelated to the cost of provision of the service and that the service contract itself prevented competition. On 22 September 2008 Ofcom published its response to the complaint. It found that the cost of telephone calls made by prisoners appeared to be high compared to the measure of costs involved and the cost of telephone calls in private prisons. It also noted that at least until May 2008, the average cost of telephone calls from Prison Service prisons in England, Wales and Scotland was higher than if the same pattern of telephone calls were made from a BT public payphone. In particular, the average cost of a telephone call to a landline was 53 pence from a prison telephone but only 40 pence from a BT public payphone. It was observed that three of the eleven privately managed prisons in the United Kingdom operated on a non-BT pinphone system. The average cost of a telephone call from Prison Service prisons in England, Wales and Scotland to a landline was 53 pence but only between 32 pence to 46 pence from private prisons not using the BT pin-phone system. Moreover, under the contract with BT, the Prison Service received a 7 % commission on the revenue generated by telephone calls made by prisoners. BT, on the other hand, received a relatively high rate of return on the revenue generated by these telephone calls which amounted to 20 to 30 % return over the entire contract period until 2011 and which was worth more than GBP 10 million in revenue. Ofcom recommended early renegotiation between the Ministry of Justice and BT of the current service contract with a view to reducing the cost of telephone calls made by prisoners. Ofcom warned that if the Ministry of Justice did not engage in early renegotiation, or if the renegotiation was unsuccessful in reducing the cost of telephone calls, they might reconsider the matter and take further action. This further action could include referring the matter to the Competition Commission. 1. Telephone Services The prison telephone service (except in certain private prisons) is provided under a contract between BT and the Prison Service. A prisoner will pay 10 pence for the first 55 seconds of any call to a United Kingdom landline and 1 p for each 5.5 seconds thereafter. In public telephone boxes, a minimum charge of 30 pence is imposed for any call of up to 15 minutes, and thereafter 10 pence for each period of 7.5 minutes. This means that calls by a prisoner that last for no more than two minutes and 45 seconds are cheaper than from a public payphone, but longer calls will be more expensive than public telephone calls by amounts significantly increasing as the call increases in length. For instance, a 15 minute call from prison costs GBP 1.64, or more than five times than from a public payphone. Prison Rules Rule 4 of the Prison Rules 1999 (SI 1999/728) (“the 1999 Rules”) provides the following: “4. - (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both. (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.” Rule 34 of the Prison Rules 1999 (as amended by the Prison (Amendment) (no.2) Rules 2000) provides that any interference with a prisoner’s right to communicate is subject to the qualification that such restrictions must not interfere with the prisoner’s Convention rights unless proportionate to the aims prescribed by Article 8 § 2 or for prison security, discipline or good order. Handbook for Prison Staff In “A Human Rights Approach to Prison Management,” Handbook for Prison Staff, Second Edition, which was produced by the International Centre for Prison Studies in conjunction with the Foreign and Commonwealth Office in 2009, prison staff are instructed as follows (see p. 100): “Forms of contact other than family visits are also important. Prisoners should be able to send and receive correspondence as freely as possible and where feasible to make and to receive telephone calls.” It further states (see p. 104): “In many prison systems it is now possible for prisoners to make or to receive telephone calls. Logistical arrangements differ from country to country. In some cases the person receiving the call from the prisoner has to agree to meet the cost of the call. This can be a very expensive arrangement since such calls are normally charged at a higher rate than normal calls. In other prison systems prisoners can purchase special telephone cards, which sometimes will only permit calls to be made to approved telephone numbers. Telephone conversations become especially important when the prisoner is being held many miles from home and it is difficult for his or her family to visit.” Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules, adopted by the Council of Europe’s Committee of Ministers on 11 January 2006, recommends the following at paragraph 24: “Contact with the outside world 24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.”

train

001-97437

ENG

UKR

CHAMBER

CASE OF BAYSAKOV AND OTHERS v. UKRAINE

Remainder inadmissible;Violation of Art. 3 (in case of extradition to Kazakhstan);Violation of Art. 13

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

6. The applicants were born in 1962, 1960, 1971 and 1963 respectively and currently live in Kyiv. 7. At the end of 2002 the applicants left Kazakhstan, allegedly because of political persecution by the authorities. They arrived in Ukraine in 2005 and have remained there. 8. By four separate decisions of 28 March 2006, the Ukrainian State Committee on Nationalities and Migration granted the applicants’ requests for refugee status, finding that there were legitimate grounds to fear that the applicants would risk political persecution in Kazakhstan for their activities in 2001-02. In particular, the Committee noted that in November 2001 several top political and business figures in Kazakhstan had formed the opposition group Democratic Choice of Kazakhstan. The applicants took part in the activities of that group, mainly by providing it with financial and technical support, particularly through a television company owned by the first and second applicants. The fourth applicant held posts in the governing body (political council) of that group. Shortly afterwards, the Kazakh authorities arrested the leaders of the group. The authorities also instituted criminal proceedings against the applicants on various charges, including conspiracy to murder, abuse of power and fraud, annulled the broadcasting licence of their television company, and blocked the activities of their other companies. As pressure from the authorities mounted, the applicants fled the country. 9. By four separate requests issued in September 2007 and April and May 2008, the Office of the General Prosecutor of the Republic of Kazakhstan requested the applicants’ extradition with a view to criminal prosecution for organised crime and conspiracy to murder (first applicant, Articles 28, 96 and 237 of the Criminal Code of the Republic of Kazakhstan), tax evasion and money laundering (second and third applicants, Articles 193 and 222 of the Criminal Code) and abuse of power (fourth applicant, Articles 307 and 308 of the Criminal Code). Pursuant to Article 96 of the Criminal Code of the Republic of Kazakhstan, murder was punishable by deprivation of liberty for a term of from ten to twenty years or by the death penalty, or by life imprisonment with or without confiscation of property. As regards other crimes of which the applicants were accused, the relevant provision of the Criminal Code provided for punishment not exceeding ten years’ imprisonment. The Kazakh prosecutors provided assurances that the criminal prosecution of the applicants was not related to their political views, race, nationality or religion, and that the prosecutors would not request the domestic courts to sentence the first applicant to death for the crimes for which he was wanted. 10. On 19 and 21 May 2008 the Deputy Prosecutor General lodged objections (protests) with the State Committee on Nationalities and Religion (the former State Committee on Nationalities and Migration) seeking reconsideration and subsequent annulment of its decisions of 28 March 2006. She submitted that the applicants were wanted by the Kazakh authorities on charges of “grave” crimes and that the Office of the General Prosecutor of the Republic of Kazakhstan guaranteed that the criminal prosecution of the applicants was not related to their political views, race, nationality or religion. 11. On 30 May 2008 the Committee rejected the objections and confirmed its previous findings. 12. On 17 June 2008 the Deputy General Prosecutor lodged two separate administrative claims with the District Administrative Court of Kyiv seeking annulment of the Committee’s decisions of 28 March 2006. The prosecutor also requested the court to suspend the contested decisions. On 4 July 2008 the court opened the proceedings and informed that it would decide on the prosecutor’s request for suspension of the Committee’s decisions at one of its next hearings. 13. On 24 November 2008 the court dismissed the prosecutor’s claims. On 22 January 2009 the Kyiv Administrative Court of Appeal upheld the first-instance court’s decision. No copies of the decisions were provided by the parties. 14. On 11 February 2009 the Office of the General Prosecutor of Ukraine lodged an appeal in cassation with the Higher Administrative Court, the outcome of which is unknown. 15. By a letter of 25 May 2009, the First Deputy General Prosecutor of the Republic of Kazakhstan sent the Deputy General Prosecutor of Ukraine assurances that in accordance with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, if extradited to Kazakhstan the applicants would not be subjected to illtreatment, that they would receive a fair trial, and that if necessary they would be provided with adequate medical aid and treatment. 16. The Government submitted that they had received assurances from the Office of the General Prosecutor of Ukraine that no decision on the applicants’ extradition would be taken before the Court had considered the case. 17. The relevant extracts from the Constitution provide as follows: “Foreigners and stateless persons who are lawfully in Ukraine enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties to which Ukraine is a party. Foreigners and stateless persons may be granted asylum under the procedure established by law.” “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies exercising State power, local self-government bodies, officials and officers. ...After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant. Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen; ... (14) the judicial system, judicial proceedings, the status of judges, the principles of judicial expertise, the organisation and operation of the prosecution service, the bodies of inquiry and investigation, the notary, the bodies and institutions for the execution of punishments; the fundamentals of the organisation and activity of the advocacy; ...” 18. Ukraine joined the Convention on 10 January 2002. The relevant extracts from the Convention provide as follows: “For the purposes of the present Convention, the term “refugee” shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling, to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling, to return to it.” “1. The Contracting States shall not expel a refugee who is lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law...” Article 33 “1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 19. The Convention entered into force in respect of Ukraine on 9 June 1998. Its relevant provisions read as follows: “The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.” “Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons. The taking or attempted taking of the life of a Head of State or a member of his family shall not be deemed to be a political offence for the purposes of this Convention. This article shall not affect any obligations which the Contracting Parties may have undertaken or may undertake under any other international convention of a multilateral character.” 20. Ukraine’s reservation in respect of Article 1 of the Convention contained in the instrument of ratification deposited on 11 March 1998 reads as follows: “Ukraine reserves the right to refuse extradition if the person whose extradition is requested cannot, on account of his/her state of health, be extradited without damage to his/her health.” 21. The Convention was ratified by the Ukrainian Parliament on 10 November 1994. It entered into force in respect of Ukraine on 14 April 1995 and in respect of Kazakhstan on 19 May 1994. The relevant extracts from the Convention provide as follows: “1. The Contracting Parties shall ... on each other’s request extradite persons who find themselves on their territory, for criminal prosecution or to serve a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence...” “1. No extradition shall take place if: a) the person whose extradition is sought is a citizen of the requested Contracting Party; b) at the moment of receipt of the request [for extradition] criminal prosecution may not be initiated or a sentence may not be executed as time-barred or for other reasons envisaged by the legislation of the requested Contracting Party; c) concerning the same crime there has been a judgment or a decision which has entered into the force of law discontinuing the proceedings against the person whose extradition is sought, on the territory of the requested Contracting Party; d) the legislation of the requesting and requested Contracting Parties envisages that criminal prosecution for [the crimes of which the person is accused] may be initiated [only upon a victim’s complaint]. 2. Extradition may be refused if the crime in connection with which it is sought, was committed on the territory of the requested Contracting Party. 3. In the event of refusal to extradite the requesting Contracting Party shall be informed of the reasons for the refusal.” “1. A request for extradition shall include the following information: (a) the title of the requesting and requested authorities; (b) a description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law; (c) the [name] of the person to be extradited, the year of birth, citizenship, place of residence, and, if possible, a description of his appearance, his photograph, fingerprints and other personal information; (d) information concerning the damage caused by the offence. 2. A request for extradition for the purpose of criminal prosecution shall be accompanied by a certified copy of a detention order...” “1. If a request for extradition does not contain all the necessary data, the requested Contracting Party may ask for additional information, for the submission of which it shall set a time-limit not exceeding one month. This time-limit may be extended for up to a month at the request of the requesting Contracting Party...” 22. Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public law relations from violations by State bodies, bodies of local self-government, their officials and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts. 23. Pursuant to Article 117, an administrative court may suspend a disputed decision by way of application of an interim measure, on a party’s own initiative. This measure may be applied if there exists a real danger of harm to the plaintiff’s rights, freedoms and interests, or if there are grounds to believe that the failure to apply the measure would render impossible the protection of such rights, freedoms and interests or would require considerable efforts and expense for their restoration. It can also be applied if it is evident that the contested decision is unlawful. 24. The relevant provisions of the Prosecution Service Act provide as follows: “An objection to [the decision] shall be lodged by a prosecutor or his deputy with the body which issued [that decision] or with a higher authority... In [his] objection a prosecutor raises a question of annulment of [the disputed decision] or of bringing it into compliance with the law... An objection by a prosecutor suspends [the decision] in respect of which it was introduced and must be examined by the relevant authority ... within ten days... In case the protest was rejected or was not examined, a prosecutor may challenge [the decision] before a court ... [w]ithin fifteen days... The introduction of such a complaint [by a prosecutor] suspends ... [the decision].” 25. The relevant extracts from the Refugees Act provide as follows: “...a refugee is a person who is not a citizen of Ukraine and who, due to wellfounded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to avail himself of the protection of that country or, due to such fear, is unwilling to avail himself of such protection, or who, not having a nationality and being outside the country of his former permanent residence, is unable or unwilling to return to it because of the said fear...” “Matters relating to refugees are regulated by the Constitution of Ukraine, this law, and other normative acts, as well as by international treaties which have been agreed by the Verkhovna Rada of Ukraine. If an international treaty which has been agreed to be binding by the Verkhovna Rada of Ukraine provides for rules other than those envisaged in this law, the rules of the international treaty shall apply.” “No refugee may be expelled or forcibly returned to a country where his life or freedom is endangered for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion. No refugee may be expelled or forcibly returned to a country where he may suffer torture and other severe, inhuman or degrading treatment or punishment, or [to a country] from which he may be expelled or forcibly returned to a country where his life or freedom is endangered for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion. This article shall not apply to a refugee convicted of a serious crime in Ukraine.” 26. The relevant extracts from the resolution read as follows: “... 2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State; the courts are not empowered to decide on this issue. They [the courts] cannot on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer, including their detention, as these matters are to be decided by the competent Ukrainian authorities...” 27. The relevant extracts from the resolution read as follows: “... 2. ...The administrative courts enjoy jurisdiction over all disputes concerning claims by a foreigner or a stateless person challenging decisions, actions or inactivity of the authorities carrying out extradition ... except for cases concerning the authorities’ requests for arrest or detention with a view to extradition ... which fall to be considered in the framework of criminal proceedings... 16. Before deciding on an administrative case, the court ... may apply the measures envisaged by Article 117 of the Code of Administrative Justice... In particular, [the measures may be applied] if there exists a danger of harm to the interests of a foreigner or a stateless person, or if failure to apply the measures would render difficult or impossible the protection of a person’s rights... Given the provisions of part 4 of section 21 of the Prosecution Services Act ... the courts should take into account that the introduction of a claim by the prosecutor under the procedure envisaged by this provision has a suspensive effect on the contested decision. Therefore, in such a case there is no need to decide on the application of the [interim] measures... 23. ...In the course of consideration of a case in which a decision granting refugee status ... is being challenged, the court may find such a decision unlawful, annul it and order the respondent [authority] to re-examine a request for refugee status with due regard to the circumstances on the basis of which the court annulled the decision. With the annulment of the decision granting refugee status the person [concerned] may not be forcibly removed or extradited before the procedure concerning [the request for] refugee status is completed... 28. ...In the course of the consideration of a dispute in which a foreigner or a stateless person challenges a decision, actions or inactivity of the authorities carrying out extradition ... the courts should take into account that the prohibition of removal of a person under international law on human rights and protection of refugees’ rights takes precedence over any obligation to extradite... If an extradition is requested by the State of origin of a refugee, the courts should take into account that according to Article 33 (1) of the [United Nations] Convention [Relating to the Status of Refugees] of 1951 no extradition of such a person shall be carried out. In such cases the principle of non-refoulement ... provides for a complete prohibition of extradition, if it has not been established that [a refugee’s personal situation] provided for one of the exceptions [to this rule]...” 28. The relevant provisions of the instruction read as follows: “1. General provisions ... The procedure ... established by the Instruction ... is aimed at [introducing] uniform approaches to [dealing with] ... foreign States’ extradition requests [and] ensuring appropriate consideration and preparation of necessary documents, securing of rights and lawful interests of persons whose extradition is requested... 3. Procedure of consideration of foreign States’ requests 3.1. Upon receipt of information concerning an arrest on the territory of Ukraine of a person wanted for crimes committed in other countries [the prosecutor responsible for the consideration of a particular request] shall immediately, and at least within three days, prepare a relevant notification of the competent body of the foreign State, in which he should ask for confirmation of the [latter’s] intention to submit a request for removal of the person. In this context, [the prosecutor] must establish the qualification of the unlawful acts, for which extradition ... will be requested, and check whether the criminal proceedings are time-barred in accordance with the legislation of Ukraine. At the same time, for the purposes of securing the rights of the arrested person ... the relevant prosecutors’ offices shall be given instructions to carry out a thorough examination of the lawfulness of the person’s arrest and to check if there are any circumstances capable of preventing the arrested person’s removal... If in the course of an inquiry it is established that the arrested person is a Ukrainian national or a stateless person permanently residing on the territory of Ukraine or that there are other circumstances which according to the law render the person’s extradition impossible, [the prosecutor] shall immediately submit to the Deputy Prosecutor General ... a proposal for the person’s release or for remanding the person in custody and initiating criminal proceedings in Ukraine. The foreign authority shall be informed of such circumstances and, if there are [relevant] grounds, it shall be invited to consider the possibility of transferring the criminal [case to Ukraine]... 3.3. Upon [submission by] the regional prosecutors’ offices of materials of the inquiry and information concerning any obstacles to extradition ... the prosecutor [dealing with an extradition request] shall study all the documents concerning the matter, being mindful of the need to establish certain circumstances, in particular whether: - it has been established ... which language the wanted person speaks... - in the [written] explanations of the offender the date and purpose of his arrival in Ukraine, his place of residence and registration, his nationality, any requests for asylum or refugee status, his state of health, notification of the reasons of his arrest in Ukraine are mentioned; - the lawfulness of his arrest ... has been ensured... - information has been received on the arrested person’s ability to remain in detention ... - it has been thoroughly checked if if the arrested person is a Ukrainian national, actually residing on a permanent basis in Ukraine ... [and if there are] other circumstances which could constitute an obstacle to removing the person; - a reasoned opinion concerning the matter has been received from the State body [responsible for nationality matters]. Having examined [the documents] the prosecutor ... has prepared a reasoned opinion concerning the decision to be taken by the Office of the General Prosecutor concerning the extradition request... 3.4. The offender ... shall be notified of the decision taken by the Office of the General Prosecutor concerning the extradition request. 3.5. If a decision to extradite is taken ... instructions concerning the organisation of the person’s transfer abroad shall be prepared... 3.7. If the person or his lawyer has lodged with the court a complaint challenging the actions of the Office of the General Prosecutor ... or its decision [to extradite], [the prosecutor] shall make available, at the court’s request, materials confirming the lawfulness and reasonableness of the decision...” 29. At its forty-first session (3-21 November 2008) the CAT considered its second periodic report on Kazakhstan. The relevant extracts from its concluding observations provide as follows: “6. While the Committee acknowledges the efforts made by the State party to enact new legislation incorporating the definition of torture of the Convention [against Torture] into domestic law, it remains concerned that the definition in the new article 347-1 of the Criminal Code [of the Republic of Kazakhstan] does not contain all the elements of Article 1 of the Convention, restricts the prohibition of torture to acts by “public officials” and does not cover acts by “other persons acting in an official capacity”, including those acts that result from instigation, consent or acquiescence on the part of a public official. The Committee notes further with concern that the definition of Article 347-1 of the Criminal Code excludes physical and mental suffering caused as a result of “legitimate acts” on the part of officials... 7. The Committee is concerned about consistent allegations concerning the frequent use of torture and ill-treatment, including threat of sexual abuse and rape, committed by law enforcement officers, often to extract “voluntary confessions” or information to be used as evidence in criminal proceedings, so as to meet the success criterion determined by the number of crimes solved... 8. The Committee is particularly concerned about allegations of torture or other illtreatment in temporary detention isolation facilities (IVSs) and in investigation isolation facilities (SIZOs) under the jurisdiction of the Ministry of Internal Affairs or National Security Committee (NSC), especially in the context of national and regional security and anti-terrorism operations conducted by the NSC. The Committee notes with particular concern reports that the NSC has used counter-terrorism operations to target vulnerable groups or groups perceived as a threat to national and regional security, such as asylum seekers and members or suspected members of banned Islamic groups or Islamist parties... 9. The Committee is deeply concerned at allegations that torture and ill-treatment of suspects commonly takes place during the period between apprehension and the formal registration of detainees at the police station, thus providing them with insufficient legal safeguards. The Committee notes in particular: (a) the failure to acknowledge and record the actual time of the arrest of a detainee, as well as unrecorded periods of pre-trial detention and investigation; (b) Restricted access to lawyers and independent doctors and failure to notify detainees fully of their rights at the time of apprehension; (c) The failure to introduce, through the legal reform of July 2008, habeas corpus procedure in full conformity with international standards... 10. The Committee expresses concern that the right of an arrested person to notify relatives of his/her whereabouts may be postponed for seventy-two hours from the time of detention, in the case of so-called “exceptional circumstances”... 11. The Committee notes with concern the Government’s acknowledgement of frequent violations of the Code of Criminal Procedure by State party officials as regards the conduct of an interview within a twenty-four-hour period, detention prior to the institution of criminal proceedings, notification of relatives of the suspect or accused person of that person’s detention within twenty-four hours, and the right to counsel. The Committee is also concerned that most of the rules and instructions of the Ministry of Interior, the Prosecutor’s Office and especially the National Security Committee are classified as “for internal use only” and are not in the realm of public documents. These rules leave many issues to the discretion of the officials, which results in claims that, in practice, detainees are not always afforded the rights of access to fundamental safeguards... 13. The Committee is concerned that Article 14 of the Code of Criminal Procedure provides for forced placement of suspects and defendants at the stage of pre-trial investigation in medical institutions in order to conduct a forensic psychiatric expert evaluation. The Committee notes with further concern that the grounds for making such a decision are subjective and that the law fails to regulate the maximum duration of forced placement into a medical institution, as well as to guarantee the right to be informed of and to challenge methods of medical treatment or intervention... 17. The Committee expresses concern that sentences of those convicted under Part 1 of article 347-1 of the Criminal Code are not commensurate with the gravity of the offence of torture as required by the Convention... 18. The Committee is also concerned that despite the criminalisation of torture in 2002 in a separate article of the Criminal Code, it appears that when prosecuted, law enforcement officials continue to be charged under Articles 308 or 347 of the Criminal Code (“Excess of authority or official power” or “Coercion into making a confession” respectively)... 21. The Committee welcomes the successful reform of much of the Kazakh penitentiary system through the adoption of programmes conducted in close cooperation with international and national organisations, as well as the enactment of new laws and regulations. It further notes that this reform resulted in a decrease in the rate of pre-trial detention, an increased use of alternative sanctions to imprisonment, more humane conditions of detention, and a marked improvement in the conditions of detention in post-conviction detention facilities. However, the Committee remains concerned at: (a) The deterioration of prison conditions and stagnation in the implementation of penal reforms since 2006; (b) Persistent reports of abuse in custody; (c) Poor conditions of detention and persistent overcrowding in detention facilities; (d) Excessive use of isolation with regards to pre-trial detainees and prisoners and lack of regulation of the frequency of such isolation; (e) Instances of group self-mutilation by prisoners reportedly as a form of protest for ill-treatments; (f) Lack of access to independent medical personnel in pre-trial detention centres and reported failure to register signs of torture and ill-treatment or to accept detainee’s claims of torture and ill-treatment as the basis for an independent medical examination; (g) Persistent high incidence of death in custody, in particular in pre-trial detention (such as the case of the former KNB General Zhomart Mazhrenov), some of which are alleged to have followed torture or ill-treatment... 22. While welcoming the creation in 2004 of the Central Public Monitoring Commission and in 2005 of regional independent public monitoring commissions with the power to inspect detention facilities, the Committee remains concerned that their access to IVSs is neither automatic nor guaranteed and that their access to medical institutions has yet to be considered. Furthermore, it has been reported that the commissions have not been granted the right to make unannounced visits to detention facilities, that they are not always given unimpeded and private access to detainees and prisoners, and that some inmates have been subjected to ill-treatment after having reported to the commissions’ members... 23. The Committee welcomes the creation of the Human Rights Commissioner (Ombudsman) in 2002 with a broad mandate and notably the competence to consider communications of human rights violations and to conduct visits of places of deprivation of liberty. The Committee notes however with concern that the ombudsman’s competencies are substantially limited and that it lacks independence due to the fact that it does not have its own budget. The Committee notes with further concern that the mandate of the Human Rights Commissioner does not empower it to investigate action taken by the Prosecutor’s office... 24. The Committee notes with concern that the preliminary examinations of reports and complaints of torture and ill-treatment by police officers are undertaken by the Department of Internal Security, which is under the same chain of command as the regular police force, and consequently do not lead to prompt and impartial examinations. The Committee notes with further concern that the lengthy period for preliminary examination of torture complaints, which can last up to two months, may prevent timely documentation of evidence... 25. While noting with satisfaction the introduction of many fundamental legislative amendments, the Committee remains concerned about allegations, as reported by the Special Rapporteur on the independence of judges and lawyers in 2005 (see E/CN.4/2005/60/Add.2), of a lack of independence of judges since the designation of oblast and rayon judges rests entirely with the President... 26. While welcoming the adoption of a recent legal amendment transferring the power of issuing arrest warrants to courts solely, the Committee expresses concern, however, at the preeminent role performed by the Procuracy. The Committee reiterates the concerns expressed in its previous concluding observations (A/56/44, para. 128(c)) regarding the insufficient level of independence and effectiveness of the Procurator, in particular due to its dual responsibility for prosecution and oversight of proper conduct of investigations and failure to initiate and conduct prompt, impartial and effective investigations into allegations of torture and ill-treatment... 27. The Committee notes with concern the report by the Special Rapporteur on the independence of judges and lawyers that defence lawyers lack adequate legal training and have very limited powers to collect evidence, which conspires to hamper their capacity to counterbalance the powers of the Prosecutor and impact on the judicial process. The Committee notes with further concern allegations that the procedure of appointing a lawyer lacks transparency and independence... 28. While welcoming the information provided by the delegation that victims of torture have the opportunity to be compensated, the Committee is concerned, nevertheless, at the lack of examples of cases in which the individual received such compensation, including medical or psychosocial rehabilitation... 29. While welcoming the assurance given by the delegation that judges reject such evidence in court proceedings, the Committee notes however with grave concern reports that judges often ignore the complaints of torture and ill-treatment, do not order independent medical investigations, and often proceed with the trials, therefore not respecting the principle of non-admissibility of such evidence in every instance...” 30. In its 2004 report “Political Freedoms in Kazakhstan”, Human Rights Watch made the following observations: “...On November 18, 2001, the day after Abliazov lost his bid for control of Halyk Savings Bank, he and Zhakianov founded Democratic Choice of Kazakhstan (DVK). The new organisation’s platform included broadening the parliament’s powers, establishing direct elections of regional political leaders, instituting electoral and judicial reform, and expanding media freedoms. As of the end of 2003, it reportedly had about 32,000 members. The central government’s response to the establishment of DVK was to immediately dismiss its members who held government posts and to prosecute others. On November 20, just two days after DVK’s formation was announced, Zhakianov was abruptly dismissed from his post as governor of Pavlodar. Other DVK founding members and principals who were also senior government officials – including a deputy prime minister, the deputy minister of defence, the minister of labour, and a deputy finance minister – were also dismissed. Zhakianov’s four deputies from the Pavlodar governor’s office were immediately fired, and almost twenty other Pavlodar provincial and local government members perceived as DVK supporters were alleged to have submitted "voluntary" resignations in the wake of the DVK’s founding. In late December 2001, state authorities brought charges of abuse of position against two of Zhakianov’s Pavlodar administration deputies, Sergei Gorbenko and Aleksandr Riumkin. A few days later, on January 4, 2002, the same charges were brought against Zhakianov. Confrontation between the DVK and the Nazarbaev government was heated during the early days after its founding. On January 19-20, 2002, the DVK joined forces with other opposition groups and led large-scale meetings in Almaty, attracting about 1,000 participants. At the meeting, Zhakianov and other prominent political figures delivered speeches that criticized the Nazarbaev government, and Zhakianov called for a referendum on the direct election of regional political leaders. President Nazarbaev countered on January 25 with a speech criticising the meeting, and demanded that law enforcement agencies take steps to stop "the buffoonery". The government also moved to restrict information about the DVK and its calls for reform. Television stations that had covered DVK activities, including the Almatybased Tan and Pavlodar-based Irbis were abruptly taken off the air. Publishing houses came under pressure from the government, and as a result refused to print DVK material. Committee for National Security (KNB) and other security officials interrogated meeting participants in at least five provinces. In the days that followed the Almaty gathering, criminal charges of abuse of position and financial mismanagement were brought against Mukhtar Abliazov. Then, on March 27 2002, following publication of materials on “Kazakhgate” in Abliazov-controlled media, Abliazov himself was arrested. Five months later, both Abliazov and Zhakianov were convicted on charges of abuse of office and sentenced to six and seven-year prison terms respectively, during trials that international observers called grossly flawed...” 31. Several Amnesty International reports dating back to 2002 referred to politically motivated prosecutions of persons who openly disagreed with and criticised the Kazakh authorities. In particular, in its report ‘Concerns in Europe and Central Asia: January - June 2002’, published on 1 September 2002, Amnesty International observed that: “...[In Kazakhstan] [i]n the period under review, criminal cases were opened on charges of “abuse of office” and financial crimes against two well-known leaders of the opposition party Democratic Choice for Kazakstan (DCK), Mukhtar Ablyazov - the former Minister of Energy, Industry and Trade - and Galymzhan Zhakiyanov - the former Governor of the Northern Pavlodar region. There were reports that the charges were brought to punish them for their peaceful opposition activities. Mukhtar Ablyazov was detained on 27 March [2002], and on 28 March [2002] a criminal case was reportedly opened against Galymzhan Zhakiyanov. Galymzhan Zhakiyanov subsequently sought refuge in the French embassy in Almaty from 29 March to 3 April [2002]. He reportedly agreed to leave the embassy and be placed under house arrest on condition that he had free access to lawyers and that embassy representatives of European Union states could visit him freely. On 10 April [2002] police transferred him to the town of Pavlodar, where he was also kept under house arrest.” 32. Its next report “Concerns in Europe and Central Asia: July - December 2002”, published on 1 July 2003, contained the following observations: “...Mukhtar Ablyazov and Galymzhan Zhakiyanov, two former senior government officials and well-known leaders of the opposition Democratic Choice for Kazakstan movement, were sentenced to six and seven years’ imprisonment respectively, on charges of “abuse of office” and financial crimes, including misappropriation of state funds. Mukhtar Ablyazov was convicted on 18 July [2002] by the Supreme Court of Kazakstan and Galymzhan Zhakiyanov was convicted on 2 August [2002] by Pavlograd city court... Reportedly, the trials of both men did not conform to international fair trial standards. There were allegations of limited access to both men by lawyers and family members before and after the trial... Despite a sharp deterioration in Galymzhan Zhakiyanov’s health as a result of interrogations in May and June [2002], the investigator had reportedly insisted on continuing interrogating him... Mukhtar Ablyazov and Galymzhan Zhakiyanov were apparently targeted because of their peaceful opposition activities... Forty-nine-year old Sergey Duvanov – independent journalist and editor of a human rights bulletin – was arrested by police on 28 October [2002], accused of having raped a minor. The trial against him opened on 24 December [2002] in Karasay district court in Almaty region. There were allegations that the rape charge was brought to discredit him and that the case was politically motivated. Reportedly, Sergey Duvanov had been targeted before to punish him for his independent journalism. He had been interrogated by the security service in Almaty on 9 July [2002] and subsequently charged with “insulting the honour and dignity of the President” (Article 318 of the Criminal Code of Kazakhstan), reportedly in connection with an article implicating governmental officials in financial crimes; on 28 August [2002] he was assaulted by three unidentified men in plainclothes and had to be hospitalised...” 33. In November 2008 Amnesty International submitted its briefing ‘Kazakhstan: Summary of Concerns on Torture and Ill-treatment’ to the CAT to complement the information concerning the human rights situation in Kazakhstan provided by various domestic and international NGOs with the aim of assisting the CAT in the examination of the Kazakhstan’s second periodic report under Article 19 of the Convention against Torture (see above). This briefing covered the period 2002-08 with more emphasis on recent years, and focused on Amnesty International’s “most pressing concerns about the failures of the authorities in Kazakhstan to implement fully and effectively Articles 2, 3, 4, 11, 12, 13, 15 and 16 of the Convention against Torture”. The relevant extracts from the briefing read as follows: “...Amnesty International has ... received allegations in some high-profile criminal cases linked to the prosecution and conviction in absentia of the former son-in-law of President Nazarbaev, Rakhat Aliev, for planning an alleged coup attempt and several other charges, that associates or employees of Rakhat Aliev were arbitrarily detained by NSS officers, held incommunicado in pre-charge and pre-trial detention facilities where they were tortured or otherwise ill-treated with the aim of extracting “confessions” that they had participated in the alleged coup plot. In at least one case, relatives have alleged that the trial was secret and that the accused did not have access to adequate defense...” 34. The same document also contained more general observations relating to the issue of torture and ill-treatment in Kazakhstan: “...Amnesty International remains concerned that despite efforts by the authorities of Kazakhstan to fulfill their obligations under the CAT and implement recommendations made by the Committee in 2001 torture and other ill-treatment remain widespread and such acts continue to be committed with virtual impunity... According to reports received by Amnesty International from domestic and international non-governmental organizations (NGOs) and inter-governmental organizations (IGOs), lawyers, diplomats, citizens and foreign nationals, beatings by law enforcement officers, especially in temporary pre-charge detention centers, in the streets or during transfer to detention centers, are still routine. From interviews Amnesty International conducted in 2006 and 2008 with concerned organizations and individuals it has emerged that torture or other ill-treatment in detention continues to be widespread, despite the safeguards against torture or other ill-treatment which the authorities have introduced and the education, reform and training programs for law enforcement forces and the judiciary often run in conjunction and in cooperation with NGOs and IGOs. While, by all accounts, Kazakhstan had implemented a successful reform of its penitentiary system - starting with the transfer of the prison system to the Ministry of Justice in late 2001 - with significant improvements in the conditions of detention in post-conviction detention centers, the last two years have reportedly seen a decline in prison conditions, and many of the abusive practices reoccurring more and more often. Comparatively few law enforcement officers – even according to official figures – have been brought to trial and held accountable for violations they have committed, including torture, and yet scores of people throughout the country routinely allege that they have been arbitrarily detained and tortured or ill-treated in custody in order to extract a “confession”. Evidence based on such “confessions” is still routinely admitted in court. Corruption in law enforcement and the judiciary is believed to contribute largely to a climate of impunity. This climate of impunity leads to a lack of public confidence in the criminal justice system. It was reported to Amnesty International that people only rarely lodge complaints as they feel that they will not obtain justice, nor get compensation. Many are not willing to testify against law enforcement officers out of fear of reprisals against themselves or their relatives and associates...” 35. As regards the application of the death penalty in Kazakhstan, Amnesty International made the following observations: “...In May 2007 the scope of the application of the death penalty permitted by the constitution was reduced from 10 "exceptionally grave" crimes to one – that of terrorism leading to loss of life. The death penalty also remains a possible punishment for "exceptionally grave" crimes committed during times of war. A person sentenced to death in Kazakhstan retains the right to petition for clemency. A moratorium on executions, which had been imposed in 2003, remained in force and no death sentences were passed during 2007 and the first 10 months of 2008. All 31 prisoners on death row had their sentences commuted to life imprisonment...”

train

001-78724

ENG

TUR

ADMISSIBILITY

GUL AND OTHERS v. TURKEY

Inadmissible

The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date in 1953, the authorities conducted a land registry survey in Bismil, during which the land allegedly belonging to the applicants' ancestors was registered in the land registry in the name of other individuals and the Treasury. Following this, Aziz Gül, the father and uncle to several of the applicants, brought actions to intervene in the proceedings before the Bismil Cadastral Court, claiming that the land in fact belonged to his mother. The information in the relevant files can be summarised as follows. On 10 April 1953, Aziz Gül brought an action against E.Ö. and the Treasury, contesting the result of the cadastral survey and claiming that the plot of land no. 16 belonged to him. On 13 April 1957 the Bismil Cadastral Court dismissed the claims of Aziz Gül and ordered that the contested land be registered in the name of E.Ö. Aziz Gül did not appeal against this judgment. However, the Treasury appealed. The Court of Cassation quashed the judgment and remitted the case to the Bismil Cadastral Court. The latter delivered its second judgment on 6 August 1963, confirming the first. The applicants were not party to these proceedings. On 14 April 1958 the Bismil Cadastral Court rendered a judgment, which became final 26 June 1959. Aziz Gül was not a party to these proceedings. On 25 March 1953, Aziz Gül brought another action before the Bismil Cadastral Court, contesting the cadastral record of a plot of land, no. 67, along with other plaintiffs. He failed to attend the hearings held after 14 May 1957, or to submit his witness list, despite the court's request. None of the applicants pursued the case as the heirs of Aziz Gül. On 15 April 2004 the court delivered its judgment and dismissed Aziz Gül's claims. On 5 September 2005, Aziz Gül's grandson, Miktad Gül (not an applicant in the present case), was notified of this judgment.

train

001-61536

ENG

LTU

CHAMBER

CASE OF GIRDAUSKAS v. LITHUANIA

Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Inadmissible under Art. 6-1 with regard to fairness

Georg Ress

4. The applicant was born in 1947 and lives in Kaunas. 5. The applicant was suspected of committing various financial irregularities. Criminal proceedings were instituted in this respect on 15 May 1995. On the same date the applicant was arrested. 6. On 18 May 1995 the applicant was released on bail. 7. On 13 May 1996 the applicant was charged with appropriating property of another and embezzlement. On the same date he was again arrested. 8. On 9 July 1996 the Kaunas City District Court committed the applicant for trial. 9. On 11 October 1996 the court remitted the case to the prosecution for further investigative measures to be carried out. 10. Upon the prosecutors' appeal, on 17 December 1996 the Kaunas Regional Court quashed the above decision, ordering that trial should recommence. 11. On 7 February 1997 the Kaunas City District Court adjourned the examination of the case in order to conduct an audit of an enterprise owned by the applicant. On the same date the applicant was released on bail. 12. During the period from 7 February 1997 until 13 December 2001 the investigative authorities conducted the audit of the applicant's company. 13. On 21 February 2001 the trial recommenced. 14. On 2 April 2002 the Kaunas City District Court convicted the applicant on two counts, obtaining property of another and improper operations with currency, sentencing him to two years' imprisonment. Civil damages in the amount of 811,560 Lithuanian litai (LTL) were also ordered against him. 15. Upon the applicant's appeal, on 10 October 2002 the Kaunas Regional Court quashed the conviction, referring the case back to the first instance court for a fresh trial. 16. On 25 February 2003 the Supreme Court quashed the appeal judgment, returning the case for a fresh examination at appellate instance. 17. On 17 April 2003 the Kaunas Regional Court acting as a court of appeal pronounced a new judgment, acquitting the applicant on one of the charges against him (obtaining property of another). However, his conviction for improper currency operations stayed. The sentence was reduced to one year' imprisonment. No civil damages were ordered against the applicant. 18. The applicant submitted a cassation appeal which is currently pending before the Supreme Court.

train

001-71042

ENG

AUT

CHAMBER

CASE OF REINPRECHT v. AUSTRIA

No violation of Art. 5-4;No separate issue under Art. 6-1

Nicolas Bratza

9. The applicant was born in 1966 and lives in Graz. 10. On 6 May 2000 the Graz Regional Criminal Court (Landesgericht für Strafsachen) ordered the applicant's pre-trial detention on suspicion of attempted sexual coercion (geschlechtliche Nötigung). The court based the suspicion against the applicant on the statement of the victim, who had identified the applicant in an identity parade. Further, it considered that, given the applicant's criminal record, there was a risk that he might commit another offence similar to the one of which he was suspected (Tatbegehungsgefahr). 11. On 19 May 2000 the Graz Regional Court, after a hearing held in the presence of the public prosecutor, the applicant and his defence counsel, ordered that the applicant's pre-trial detention should continue. Referring to the testimony of the victim, it found that there was a reasonable suspicion against the applicant. Further, there was a risk that he might commit another offence similar to the one of which he was suspected. The court stated that the applicant had nine previous convictions, mainly for property-related offences, but recently also for violent crimes. The court found that, in the light of the applicant's recidivism and his character, the prolongation of his pre-trial detention was reasonable. The applicant appealed against this decision. 12. On 7 June 2000 the Graz Court of Appeal (Oberlandesgericht), sitting in private, dismissed the appeal and upheld the Regional Court's decision. 13. On 19 July 2000 the Graz Regional Court, after holding a hearing in the presence of the parties, dismissed an application for the applicant's release and ordered the continuation of his pre-trial detention. The applicant lodged an appeal against this decision. 14. On 20 July 2000 the applicant lodged another application for release. He stressed that there were no reasons to maintain his pre-trial detention. 15. On 26 July 2000 the public prosecutor's office (Staatsanwaltschaft) filed the bill of indictment. The applicant appealed against it. 16. On 2 August 2000 the Graz Regional Court, having held a hearing in the presence of the parties, ordered that the applicant's pre-trial detention should continue. 17. On 7 August 2000 the applicant appealed against this decision. He submitted that there was no reasonable suspicion against him as the testimony of the only witness for the prosecution had been contradictory. 18. On 17 August 2000 the Graz Court of Appeal, sitting in private, dismissed the applicant's appeal against the bill of indictment and the appeals against the Regional Court's decisions of 19 July 2000 and 2 August 2000. It found that there was no doubt about the credibility of the witness and that there was therefore a reasonable suspicion against the applicant. Further, it upheld the Regional Court's repeated finding that reasons for detention on remand (Haftgründe) existed. 19. On 18 September 2000 the applicant lodged a fundamental rights complaint (Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof) against this decision. He submitted that there was no strong suspicion against him and that there were no reasons to maintain the detention on remand. 20. On 16 October 2000 the Supreme Court, sitting in private, dismissed the complaint. It found that there was no doubt about the credibility of the witness and that reasons for the applicant's detention on remand subsisted. 21. On 24 October 2000 the Regional Court, sitting with two professional and two lay judges, held a public hearing, convicted the applicant of attempted sexual coercion and sentenced him to two years' imprisonment. 22. On 8 March 2001 the Supreme Court rejected the applicant's plea of nullity. 23. On 8 May 2001 the Court of Appeal dismissed an appeal by the applicant, but allowed one lodged by the public prosecutor and increased the term of imprisonment to two years and six months. 24. Article 181 of the Code of Criminal Procedure (Strafprozeβordnung) establishes a system of periodic hearings for the review of pre-trial detention, which are to be conducted proprio motu. The relevant part of Article 181 provides as follows: “1. Decisions ordering or continuing detention on remand and decisions of the court of second instance continuing detention on remand shall not be effective for longer than a certain period; the date of expiry shall be given in the decision. Prior to the expiry of the period of detention a hearing regarding the detention shall be held or the accused shall be released. 2. The period of detention shall, (1) where detention on remand is ordered, be for fourteen days from the date on which the accused is arrested; (2) where the first decision is taken to continue detention on remand, be for one month from the date of the decision; (3) where a further decision is taken to continue detention on remand, be for two months from the date of the decision. ...” An accused who is held in pre-trial detention has to be assisted by counsel (Article 41 of the Code of Criminal Procedure). Copies of all documents relevant for assessing the suspicion or the reasons for the detention must be served on the prosecution and the defence free of charge before the first hearing (Article 45a of the Code of Criminal Procedure). 25. The relevant part of Article 182 of the Code of Criminal Procedure provides: “1. The investigating judge shall conduct the hearing regarding the detention; it is not open to the public. The accused, his counsel, the public prosecutor and the probation officer shall be informed of the date of the hearing. 2. The accused shall be brought before the judge at the hearing, unless this is impossible because of illness. He shall be represented by counsel. ...” The court of appeal, when dealing with appeals against decisions of the investigating judge concerning pre-trial detention, takes its decision sitting in private pursuant to Article 114 of the Code of Criminal Procedure.

train

001-99974

ENG

DEU

ADMISSIBILITY

BAUER v. GERMANY

Inadmissible

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

The applicant, Mr Heinz-Peter Bauer, is a German national who was born in 1953 and lives in Herzlake. He is represented before the Court by Mr M. Kleine-Cosack, a lawyer practising in Freiburg. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The applicant had been practising as a lawyer since 1982 and as a notary since 1986. On 14 May 2001 the President of the Oldenburg Court of Appeal (Oberlandesgericht) opened formal disciplinary proceedings against him on suspicion of official misconduct involving a large number of failures to honour his notarial duties between January 1997 and April 1999. Consequently, on 3 July 2001 the President of the Oldenburg Court of Appeal provisionally removed the applicant from the office of notary. Given the nature and seriousness of the alleged misconduct, the President considered that there was a risk that the interests of individuals in need of legal advice would be adversely affected if the applicant continued to pursue his notarial activities. On 6 August 2001 the applicant challenged that decision before the Celle Court of Appeal. On 1 November 2001 that court confirmed his provisional removal from office. On 18 March 2002 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal against this decision. Between 12 September 2001 and 20 November 2002 the President of the Oldenburg Court of Appeal heard twenty-five witnesses. On 20 November 2002 the applicant was informed that the taking of evidence was terminated and granted a four-weeks' time-limit to submit comments, which was later extended on the applicant's request until 20 January 2003. On 3 February 2003 the report on the preliminary investigations was finalised. On 18 March 2003 the President of the Oldenburg Court of Appeal finalised the charges and accused the applicant of two hundred thirty four violations of his professional duties, inter alia, of falsely certifying contracts, of creating an appearance of partiality and dependence in certifying a great number of contracts and of assisting in activities with clearly dishonest aims. On 19 May 2003 the applicant suggested that the disciplinary proceedings be suspended pending criminal investigations. On 22 May 2003 the President of the Oldenburg Court of Appeal requested the court to decline to suspend the proceedings. On 24 June 2003 the Celle Court of Appeal stayed the disciplinary proceedings in accordance with Article 17 § 2 of the Lower Saxony Disciplinary Code (see “Relevant domestic law” below) with respect to the then ongoing criminal proceedings concerning the same facts. In criminal proceedings, on 12 December 2003, the prosecution filed the bill of indictment with the Lübeck District Court (Amtsgericht). On 11 April 2005 the President of the Oldenburg Court of Appeal requested the Celle Court of Appeal to resume the disciplinary proceedings, arguing that the applicant's ongoing provisional removal from office since 3 July 2001 could infringe the principle of proportionality. On 12 May 2005 the applicant requested the Celle Court of Appeal to annul its decision regarding his provisional removal from office. He further requested the court not to resume the suspended proceedings. On 19 May 2005 the Celle Court of Appeal rejected the President's request to resume the proceedings. On 6 June 2005 the Celle Court of Appeal found for the applicant. It held that, in view of the length of the proceedings (three years and eleven months so far) and the unlikelihood that permanent removal from office would be imposed as a disciplinary penalty, the ongoing provisional removal from office was disproportionate. On 8 August 2005 the Lübeck District Court convicted the applicant of two counts of abetment to fraud and imposed a fine of 25 euros (EUR) per day for 220 days, taking into account as a mitigating factor that the applicant had lost his office as a notary and hence his source of income. The applicant continued to practise as a notary until 20 March 2006 when the Federal Court of Justice quashed the Court of Appeal's decision of 6 June 2005. The Federal Court of Justice found that the disciplinary proceedings had not been protracted. The fact that the proceedings came to a standstill on 24 June 2003 had been the result of the Court of Appeal's obligation under Article 17 § 2 of the Lower Saxony Disciplinary Code to suspend the disciplinary proceedings while the criminal proceedings were pending. Even taking into account the considerable duration of the still pending criminal proceedings, the Court of Appeal's refusal to resume the suspended disciplinary proceedings did not yet overstep that court's margin of appreciation. The duration of the proceedings, which had been pending for more than four years and eight months, did not justify as such the conclusion that the continuation of the provisional removal was disproportionate. Given the gravity of his alleged misconduct and the great number of accusations, the applicant's conduct had severely endangered the sound administration of justice. The applicant, who had admitted the facts, continued to maintain that his behaviour had been compatible with his notarial duties. Therefore, it could not be ruled out that he would continue to breach his duties if he was allowed to pursue his official functions as a notary. Finally, the court considered that it was very likely that the disciplinary proceedings would end with the applicant's permanent removal from office. By way of a separate decision, also issued on 20 March 2006, the Federal Court of Justice rejected the President of the Court of Appeal's complaint against the refusal to resume the disciplinary proceedings as inadmissible. The court considered, however, that the length of the proceedings obliged the Court of Appeal to observe special diligence. It considered that the disciplinary proceedings had to be resumed without awaiting the outcome of the criminal proceedings if the latter proceedings on the applicant's appeal were not terminated by the end of May 2006. On 22 May 2006 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant's constitutional complaint against the Federal Court of Justice's decision on his provisional removal from office as there had been no appearance of a violation of the applicant's fundamental rights. On 30 June 2006 the Celle Court of Appeal ordered the continuation of the disciplinary proceedings. On 9 July 2007 following a hearing, the Celle Court of Appeal decided to permanently remove the applicant from office as he had been found guilty of misconduct, partly through negligence and partly intentional, which involved numerous failures to comply with his professional obligations between January 1997 and January 2000. The reasoned judgment with a volume of 153 pages was submitted to the court's registry on 26 July 2007. On 25 September 2007 the Lübeck Regional Court (Landgericht), in the criminal proceedings, upon the applicant's appeal, modified the criminal sentence imposed by the Lübeck District Court, and issued a formal admonishment (Verwarnung) to the applicant while reserving its right to impose a fine. The court considered as mitigating factors that the delays in the criminal proceedings – even taking into account the thorough examination of the facts and the necessity to hear extensive evidence in the first instance proceedings – fell within the judiciary's responsibility. On 16 September 2008 the applicant, in order to avoid losing his license to practice as a lawyer, filed a request that he be permanently removed from notary office; the request was granted on 31 December 2008. Therefore, on 23 March 2009 the Federal Court of Justice discontinued the proceedings in accordance with Articles 64, 76 and 85 of the Federal Disciplinary Code as in force at the material time (see “Relevant domestic law” below). Section 96 of the Federal Notaries Act in conjunction with Article 17 § 2 of the Lower Saxony Disciplinary Code provides that if criminal proceedings are brought against a notary, disciplinary proceedings instituted on account of the same facts shall be suspended until such time as the criminal proceedings have been concluded. The factual finding of a final judgment in criminal proceedings is binding on the disciplinary panel (Article 18 § 2). Section 96 of the Federal Notaries Act in conjunction with Article 91 of the Lower Saxony Disciplinary Code provides that the authority which institutes disciplinary proceedings against a notary can provisionally remove the latter from office as soon as formal disciplinary proceedings are opened. According to section 108 of the Federal Notaries Act in conjunction with Articles 64, 76 and 85 of the Federal Disciplinary Code, as in force at the material time, the Federal Court of Justice discontinues the disciplinary proceedings if the notary has resigned or has been dismissed.

train

001-111364

ENG

DEU

CHAMBER

CASE OF K v. GERMANY

Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);Non-pecuniary damage - award

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

5. The applicant was born in 1957 and is currently detained in Schwalmstadt Prison. 6. On 26 January 1979 the Frankfurt am Main Regional Court convicted the applicant, inter alia, of repeated rape and of two counts of attempted rape, together with dangerous assault respectively, committed against three young women he did not previously know and whom he had seriously beaten or injured with weapons, and sentenced him to three years’ imprisonment. The court found that owing to a sadistic sexual deviation, the applicant had acted with diminished criminal responsibility. 7. On 20 May 1983 the Frankfurt am Main Regional Court convicted the applicant of dangerous assault and sentenced him to two years and six months’ imprisonment. It found that the applicant had caused a knife injury to a prostitute who had resisted sexual intercourse with him. It considered that the sadistic sexual deviation the applicant suffered from had not diminished his criminal responsibility. 8. On 28 August 1987 the Frankfurt am Main Regional Court convicted the applicant, in particular, of four counts of rape, sexual assault and assault and of one count of attempted rape, attempted sexual assault and assault, committed against five drug-addicted prostitutes in 1985 and 1986. It found that the applicant had raped or attempted to rape the five women, had beaten and mistreated them in a torture-like manner and had partly urinated on them or forced them to have obscene photographs taken of them. It sentenced him to eight years and six months’ imprisonment and ordered his placement in a psychiatric hospital (Article 63 of the Criminal Code, see paragraph 51 below). It considered that the applicant suffered from a serious personality disorder and from a sadistic sexual deviation and had committed his offences with diminished criminal responsibility. 9. The Regional Court further found that the applicant was liable to reoffend and was therefore dangerous to the public as long as he was not undergoing therapy. The therapy in question was only possible in a psychiatric hospital. The court considered that the conditions for the applicant’s preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 41-42 below) were also met. However, owing to the fact that preventive detention only entailed a person’s safe custody, without offering any specific medical and psychological treatment, this measure was clearly less suitable in the applicant’s case than his placement in a psychiatric hospital. Therefore, the court did not order the applicant’s preventive detention in addition to his placement in a psychiatric hospital. 10. The judgment became final in March 1988 and from August 1988 onwards the applicant was initially detained in a psychiatric hospital in Giessen. 11. On 19 February 1992 the Marburg Regional Court ordered that the applicant serve his prison sentence prior to his continued placement in a psychiatric hospital. It argued that the applicant denied the offences he had been found guilty of and refused to undergo therapy. Furthermore, doubts had arisen as to whether he had actually acted with diminished criminal responsibility. 12. The applicant was retransferred to prison on 8 April 1993 and then served his full sentence mainly in Schwalmstadt Prison. 13. In 1994 an expert, C., confirmed that the applicant, who suffered from a borderline personality disorder, had originally been wrongly placed in a psychiatric hospital from a present-day perspective. 14. From 20 October 1995 onwards the applicant, having served his full sentence, was again detained in a psychiatric hospital, initially in Giessen and subsequently in Hanau, on an order of the Frankfurt am Main Regional Court, based on the Regional Court’s judgment of 28 August 1987. In these proceedings, expert L., who had already examined the applicant prior to the Regional Court’s judgment in 1987, confirmed that the applicant, an autistic psychopath, had acted with diminished criminal responsibility and that his placement in a psychiatric hospital had therefore been justified. 15. On 24 July 2007 the Marburg Regional Court terminated the applicant’s detention in a psychiatric hospital (Article 67d § 6 of the Criminal Code, see paragraph 48 below). Having heard evidence from another expert, F., it found that the applicant did not suffer from a serious personality disorder or from a sadistic sexual deviation which diminished his criminal responsibility. It further ordered the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively as the applicant still had a propensity to commit serious offences. The applicant was accordingly detained in Weiterstadt Prison since August 2007. 16. On 8 January 2008 the Frankfurt am Main Court of Appeal quashed the Regional Court’s order for the applicant’s detention. The applicant was released on that day. Shortly afterwards, he harassed a young woman and threatened her presumed partner. 17. Following the applicant’s failure to appear at the hearing before the Frankfurt am Main Regional Court on 22 January 2008 in the proceedings at issue, that court ordered the applicant’s arrest in order to secure the conduct of the proceedings. The applicant has been in detention since that date, first in Weiterstadt Prison and subsequently, since December 2008, in Schwalmstadt Prison. 18. On 9 April 2008 the Frankfurt am Main Regional Court, relying on Article 66b § 3 of the Criminal Code (see paragraph 47 below), ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung). 19. The Frankfurt am Main Regional Court found that, in accordance with Article 66b § 3 of the Criminal Code, the Marburg Regional Court had terminated the applicant’s placement in a psychiatric hospital on 24 July 2007 pursuant to Article 67d § 6 of the Criminal Code as the requirements for placing him in such a hospital had not been met at the time of that court’s decision. The court further noted that the requirements of Article 66b § 3 (1) of the Criminal Code were met. The order for the applicant’s placement in a psychiatric hospital had been made in the judgment of the Frankfurt am Main Regional Court of 28 August 1987 convicting him, inter alia, of four counts of rape and one count of attempted rape and sentencing him to eight years and six months’ imprisonment. Moreover, the applicant had already been convicted of rape and sentenced to three years’ imprisonment by a judgment of the Frankfurt am Main Regional Court of 26 January 1979. 20. The Regional Court further found that a comprehensive assessment of the applicant, his offences and his development during his placement in a psychiatric hospital revealed that it was very likely that, if released, he would again commit serious sexual offences resulting in considerable psychological or physical harm to the victims (Article 66b § 3 (2) of the Criminal Code). It based its findings on the reports submitted by a psychological expert, D.-S., and a psychiatric external expert, S. Both experts had considered that the applicant was a psychopath suffering from a serious dissocial personality disorder and from a sexual deviation, sadism. There was a high risk that the applicant would commit further violent sexual offences if released. The experts and all the witnesses confirmed that the applicant had not changed throughout his detention and placement in a psychiatric hospital and had not made any serious effort to reflect on his offences. 21. On 21 November 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. It found that Article 66b § 3 of the Criminal Code was compatible with the Basic Law and applied also to cases in which a person’s placement in a psychiatric hospital was terminated because the person concerned had not been suffering from a disorder warranting his or her placement from the outset. 22. On 30 December 2008 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the retrospective order for his preventive detention had violated the prohibition of retrospective punishment under the Basic Law (Article 103 § 2). He argued that Article 66b of the Criminal Code had been applied with retrospective effect to him as, at the time of his conviction, ordering preventive detention retrospectively had not been authorised. In view of the manner in which preventive detention orders were executed in practice, there was no material difference compared to the execution of a prison sentence. Preventive detention therefore had to be treated as a penalty to which the prohibition of retrospective punishment applied. 23. The applicant further submitted that the retrospective order for his preventive detention amounted to the correction of a final judgment of a criminal court without any new facts having emerged. Even though the Frankfurt am Main Regional Court had considered, in its judgment of 1987, that the requirements of Article 66 § 1 of the Criminal Code had been met, it had not ordered his preventive detention. 24. On 5 August 2009 a chamber of three judges of the Federal Constitutional Court declined to consider the applicant’s constitutional complaint – as well as that of another applicant, G., who lodged application no. 65210/09 before this Court – on the grounds that it was ill-founded (file no. 2 BvR 2633/08). 25. The Federal Constitutional Court noted that Article 67d § 6 and Article 66b § 3 had been inserted into the Criminal Code because, under the Federal Court of Justice’s well-established case-law, a person could no longer be detained in a psychiatric hospital under Article 63 of the Criminal Code and had to be released if that person no longer suffered from a condition excluding or diminishing his criminal responsibility. This was considered problematic in cases in which the person concerned, without suffering from the said condition, was still dangerous to the public. 26. The Federal Constitutional Court found that Article 66b § 3 of the Criminal Code and the courts’ decision to order the applicant’s placement in preventive detention retrospectively were compatible with the Basic Law. Article 66b § 3 of the Criminal Code did not breach the ban on the retrospective application of criminal laws imposed by Article 103 § 2 of the Basic Law. That Article applied only to State measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a sanction to compensate for guilt. Unlike such a penalty, preventive detention was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender. For the same reason, Article 66b § 3 of the Criminal Code did not breach the right not to be punished twice for the same offence under the Basic Law. 27. The Federal Constitutional Court further took the view that Article 66b § 3 of the Criminal Code was in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law, even if applied to a case such as that of the applicant, who had committed his offences and had been convicted and sentenced prior to the entry into force of the said provision. It considered as compatible with the Basic Law the legislator’s decision whereby the effective protection of the public from very dangerous offenders who were liable to commit serious offences resulting in considerable psychological or physical harm to the victims – which was a paramount public interest – outweighed the offender’s interest in protection of his legitimate expectations. 28. The Federal Constitutional Court noted that the impugned provisions allowed the courts in a case like that of the applicant to amend retrospectively a sanction fixed in a previous final judgment in the light of new evidence (in particular new expert reports), without new facts having come up. It emphasised that the sentencing criminal courts’ decision not to order preventive detention became final even if it later emerged that the courts had erred in considering the offender not to be dangerous. Nevertheless, the retrospective preventive detention order under Article 66b § 3 of the Criminal Code, read in conjunction with Article 67d § 6 of the Criminal Code, entailed only very limited disadvantages of constitutional relevance. In substance, the ordering of a measure of indefinite duration depriving the person concerned of his or her liberty – namely, placement in a psychiatric hospital – was merely replaced, under certain qualified conditions, by the ordering of a different such measure of indefinite duration, namely preventive detention. Any remaining disadvantages for the offender in the protection of his legitimate expectations were outweighed by the paramount interest of the public pursued by the provisions in question. 29. The Federal Constitutional Court further found that Article 66b § 3 of the Criminal Code was compatible with the applicant’s right to liberty under the Basic Law (Article 2 § 2). In order to protect the right to life, physical integrity and liberty of citizens the legislator was authorised, within the limits set by the principle of proportionality, to deprive of his liberty a person who could be expected to violate the citizens’ said rights. 30. In Schwalmstadt Prison, persons in preventive detention are placed in a separate building from prisoners serving their sentence. They have certain minor privileges compared with convicted offenders serving their sentence (see, for instance, M. v. Germany, no. 19359/04, § 41, ECHR 2009). As regards therapeutic measures, persons held in preventive detention in Schwalmstadt Prison are offered a weekly discussion group proposing ideas for recreational activities and for structuring daily life. They are further offered discussions with an external psychiatrist once per month as well as psychological or psychotherapeutic measures and social training considered suitable for them. 31. When placed in preventive detention, the applicant was not motivated to undergo therapy. He denied the offences he had been convicted of and considered himself to be detained unlawfully. Therefore, he had not been transferred to a social therapeutic department of another prison. He worked in prison in 2009 and has been out of work since then. In 2010 he participated in a social training course. 32. On 15 April 2010 the Marburg Regional Court dismissed the applicant’s request to suspend the execution of his preventive detention and to grant probation. 33. On 1 July 2010 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal against that decision. It found that there was a risk that the applicant would commit further violent sexual offences if released (Article 67d § 2 of the Criminal Code; see paragraph 50 below). Having regard to this Court’s judgment in the case of M. v. Germany (cited above), the Court of Appeal took the view that the question of whether the applicant’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant’s preventive detention. That issue could only be dealt with following a reopening of the proceedings in which that detention had been ordered. 34. Following the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 52-55 below), the applicant again requested the Marburg Regional Court to order his release. On 30 August 2011 the Marburg Regional Court refused to suspend the applicant’s preventive detention, ordered retrospectively on 9 April 2008, and to grant probation. Having regard to the expert reports obtained in those proceedings, it found that it could not be expected that the applicant would not commit any further unlawful acts on his release (Article 67d § 2 of the Criminal Code). There was, on the contrary, a risk that the applicant, owing to specific circumstances relating to his person and his conduct in prison, would commit the most serious crimes of violence or sexual offences soon after his release from prison. The stricter standards for a prolongation of his preventive detention set up by the Federal Constitutional Court in its judgment of 4 May 2011 were therefore met. 35. The Regional Court considered, in particular, that according to the pertinent findings of the Federal Constitutional Court in the said judgment, a retrospective order of preventive detention following the termination of a person’s placement in a psychiatric hospital did not breach the protection of legitimate expectations guaranteed in a State governed by the rule of law or the prohibition of retrospective punishment. As the judgments of the European Court of Human Rights only had the force of Federal legislation in Germany, the fact that that Court had considered, in its judgment of 17 December 2009, that retrospective preventive detention was in breach of human rights, did not alter that conclusion. 36. On 15 November 2011 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 37. On 8 October 2010 the Darmstadt Regional Court dismissed the applicant’s request of 6 July 2010 for a reopening of the proceedings in which his preventive detention had been ordered as inadmissible as there was currently no ground for reopening. In particular, a reopening on the ground that the European Court of Human Rights had found a domestic court’s judgment to be in breach of the Convention applied only to applicants who had themselves obtained a judgment of that Court in their favour. 38. On 26 November 2010 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 39. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). A summary of the provisions of the Basic Law governing the right to liberty (Article 2 § 2) and the ban on retrospective application of criminal laws (Article 103 § 2) can also be found in that judgment (ibid., §§ 57 and 61). The provisions referred to in the present case provide as follows: 40. Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) cover, in particular, placement in a psychiatric hospital (Article 63 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). 41. Article 66 of the Criminal Code governs orders for a person’s preventive detention made by the sentencing court when finding the person guilty of an offence. That court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public. 42. In particular, under Article 66 § 1 of the Criminal Code, in its version in force at the relevant time, the sentencing court had to order preventive detention in addition to the penalty if someone was sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions were 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 (Article 66 § 1 (1)). 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 (Article 66 § 1 (2)). 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 (Article 66 § 1 (3)). 43. Under Article 66 § 3, first sentence, of the Criminal Code, preventive detention may further be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including murder, rape and dangerous assault, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met. 44. Article 72 of the Criminal Code governs the combination of different measures of correction and prevention. If the conditions for several such measures are met, yet the desired objective may be attained by one or a part of these measures, then only those latter measures shall be ordered (see Article 72 § 1). Otherwise, such measures shall be ordered cumulatively unless the law provides otherwise (Article 72 § 2). 45. The Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004, inserted Articles 66b and 67d § 6 into the Criminal Code; the latter provision was amended by an Act of 13 April 2007. The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met, but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14). 46. In fact, under the case-law previously established by the courts dealing with the execution of sentences, a person’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered from a condition excluding or diminishing his criminal responsibility, even if that person was still dangerous to the public (see Hamm Court of Appeal, no. 4 Ws 389/81, decision of 22 January 1982, Neue Zeitschrift für Strafrecht (NStZ) 1982, p. 300; Karlsruhe Court of Appeal, no. 1 Ws 143/82, decision of 30 June 1982, Monatsschrift für Deutsches Recht (MDR) 1983, p. 151; Federal Court of Justice, no. 3 StR 317/96, judgment of 27 November 1996, Collection of decisions of the Federal Court of Justice in Criminal Matters (BGHSt) no. 42, p. 310; see also Federal Constitutional Court, nos. 2 BvR 1914/92 and 2105/93, decision of 28 December 1994, Neue Juristische Wochenschrift (NJW) 1995, p. 2406; and Federal Court of Justice, no. 4 StR 577/09, decision of 12 May 2010, § 13 with further references). 47. Article 66b § 3 of the Criminal Code, in its version in force at the relevant time, provided: “(3) If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement, the court may order preventive detention retrospectively if 1. the placement of the person concerned under Article 63 was ordered on the basis of several of the offences listed in Article 66 § 3, first sentence, or if the person concerned had either already been sentenced to at least three years’ imprisonment or had been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63, and 2. a comprehensive assessment of the person concerned, his offences and, in addition, his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.” 48. Article 67d § 6 of the Criminal Code provides: “(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. The release of the person concerned from the psychiatric hospital shall entail supervision of his or her conduct. ...” 49. The said two provisions remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code, the former paragraph 3, slightly amended, became the only provision of that Article. 50. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release. 51. Article 63 of the Criminal Code governs the detention of mentally ill persons as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. It provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court shall order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public. 52. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 53. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003 and Article 66b § 3 of the Criminal Code in its version of 23 July 2004. 54. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively under Article 66b § 2 of the Criminal Code (but not preventive detention ordered under Article 66b § 3 of the Criminal Code), the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 55. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).

train

001-79579

ENG

POL

CHAMBER

CASE OF MACIEJ v. POLAND

Violation of Art. 6-1

Nicolas Bratza

4. The applicant was born in 1949 and lives in Radom. 5. On 4 February 1993 the applicant was charged with acting as a procurer of prostitution. 6. On 15 October 1993 the Radom District Prosecutor filed a bill of indictment against the applicant with the Radom District Court. 7. The hearing set for 6 June 1994 was cancelled due to the applicant’s absence. Subsequently several hearings were cancelled. In particular, hearings scheduled for 4 July 1994, 22 September 1994, 3 November 1994 and 2 February 1995 were cancelled due to the absence of one of the coaccused. Seven hearings scheduled between 21 July 1995 and 7 February 1996 were cancelled for various procedural reasons. On 18 July 1996 the court held a hearing. 8. Between 20 February 1997 and 25 February 1999 the court held sixteen hearings at regular intervals of six weeks. 9. On 23 September 1999, 5 October 1999 and 18 October 1999 the court held further hearings. 10. On 25 October 1999 the Radom District Court gave judgment and convicted the applicant as charged. The court also sentenced the applicant to 1 year’s imprisonment stayed for 2 years. 11. On an unknown later date the applicant appealed against this judgment. 12. On 8 December 2000 the Radom Regional Court held a hearing and gave judgment. The court upheld the firstinstance sentence and dismissed the applicant’s appeal. 13. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 200V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005-V.

train

001-95374

ENG

TUR

CHAMBER

CASE OF EFENDİOĞLU v. TURKEY

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

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

5. The applicant was born in 1930 and had been living in Erzurum. On 11 June 2009 he died. 6. On 6 April 1989 the applicant bought a plot of land (no. 5784) in Istanbul. The land was later divided in five parts (plot nos. 13320, 13321, 13322, 13323 and 13324). 7. Upon the Ümraniye Municipality's decision to put a notice in the Land Registry in 1993, the applicant learned that there was a water pipeline passing underneath plot no. 13324. 8. On 12 April 2000 the Istanbul General Directorate for Water and Infrastructure (the “ISKI”) filed an action with the Üsküdar Civil Court of First Instance and requested the annulment of the title deed of the applicant to the land in question and its registration in their name. In this respect, they submitted that they had occupied the disputed plot of land since 1970 by way of laying down a water pipeline underneath it and that, therefore, it should be registered under its name pursuant to Article 38 of Law no. 2942. 9. In the course of the proceedings a commission of experts examined the documentary evidence and conducted an onsite inspection together with the court. On 17 July 2001 the experts submitted their report where they considered, inter alia, that the land in question would be worth around 305,972,500,000 Turkish liras. In the annexed document it was noted that plot no. 13324 was de facto a road. 10. On 28 December 2001 the Üsküdar Civil Court of First Instance, noting that as of 15 November 2001 the Ümraniye Civil Court of First Instance had become operational, transferred the case to it. 11. On 18 June 2002 the Ümraniye Civil Court of First Instance, on the basis of the evidence, particularly official documents concerning the construction of the water pipeline, accepted the request of the ISKI and ordered that the land be registered in their name. It considered, in particular, that the applicant's property rights over the land in question had ceased, following the expiry of the statutory timelimit provided under Article 38 of the Law no. 2942. 12. The applicant appealed. Referring to a court case concerning the previous owner of the plot of land, the applicant submitted, inter alia, that the water pipeline in question passed through another plot and not plot no. 13324, and that the statutory time-limit provided under Article 38 of the Law no. 2942 had not expired since a notice was put in the Land Registry only in 1993. 13. On 10 December 2002 the Court of Cassation upheld the firstinstance court's judgment. The applicant's request for rectification was rejected on 17 March 2003. This decision was served on him on 8 April 2003. 14. On 10 April 2003 the Constitutional Court annulled Article 38 of Law no. 2942. 15. On an unspecified date the applicant asked the Ümraniye Civil Court of First Instance to reopen the proceedings on the ground, inter alia, that, according to their own investigation there were no water pipelines passing underneath plot no. 13324 and, consequently, the court's earlier decision had been based on erroneous official documents and the false testimony of State officials. 16. On 11 December 2003 the Ümraniye Civil Court of First Instance dismissed the applicant's request on the ground that the applicant had already made similar claims in the earlier proceedings, that in the presence of official documents there was no need, in such cases, to investigate by digging up the disputed land, and that, although Article 38 of Law no. 2942 had been subsequently annulled by the Constitutional Court, this was not a reason for reopening the proceedings. 17. The applicant's appeal and subsequent request for a rectification was dismissed by the Court of Cassation on 17 May 2004 and 28 September 2004 respectively. 18. In 2004 the Ümraniye Magistrates' Court, upon the applicant's request, conducted an onsite inspection of the land. The appointed experts considered that the water pipelines in question were not laid underneath the applicant's plot but next to it. 19. In 2008 the Ümraniye Magistrates' Court, upon the ISKI's request, conducted another inspection of the land. The appointed experts considered that the water pipelines in question passed next to plot no. 13324, not underneath it. 20. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no. 58650/00, §§ 23-29, 19 October 2006).

train

001-84610

ENG

GBR

ADMISSIBILITY

SHELLEY v. THE UNITED KINGDOM

Inadmissible

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant, a United Kingdom national, born in 1972, is currently serving a sentence of imprisonment in H.M. Prison Whitemoor. He was represented before the Court by Mr Sean Humber, a solicitor practising in London. The United Kingdom Government (“the Government”) are represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. Drugs use is prohibited in prisons in the United Kingdom. In 1997-1998 the Public Health Laboratory Service carried out an anonymised survey in eight prisons, the results of which indicated that the prevalence of HIV was 0.36%, Hepatitis B was 7.8% and Hepatitis C was 7.5%. 24% of the prisoners surveyed had injected drugs at some stage, 30% of whom had injected whilst in prison. 75% of those who injected in prison shared equipment. The most recent Home Office Study (Research Study 267, July 2003) suggested that 2% of prisoners inject drugs while detained, acknowledging that there may however have been significant under-reporting due to the stigma attached to drugs use. The Department of Health identify Hepatitis B and C and HIV as the most common serious viruses carried in the bloodstream. They can cause serious long-term health problems or be life-threatening. The Department considers Hepatitis C as being the certified cause of death in about 100 people per year and as contributing to a further 5,000 deaths each year from the complications of chronic liver disease. It has also identified the sharing of needles by intravenous drugs users as being responsible for over 91% of cases of Hepatitis C between 1992 and 2002. Needle exchange programmes, whereby equipment is exchanged for sterile needles and syringes, are generally acknowledged as an important way of reducing the risk of infection from the sharing of needles and syringes. Reports suggest that once-only use of sterile needles and syringes is the most effective measure for preventing infections. There are also a number of studies suggesting that in practice disinfection of needles is less effective at preventing transmission. The Department of Health’s statistics suggest that at least 99% of health authorities have needle exchange programmes available to the general public. In prisons there have never been needle exchange programmes. In 1995 the Prison Service’s AIDS Advisory Committee recommended that disinfecting agents be made available to prison inmates in England and Wales as a measure to lessen the risks of spreading infections from shared use of drug injecting equipment. This recommendation was implemented but withdrawn after only a few weeks due to health and safety concerns surrounding the tablets. Three years later a pilot project was launched, involving 11 prisons, which was evaluated by the London School of Hygiene and Tropical Medicine in a detailed report. It concluded that there were real benefits from reintroducing disinfecting tablets and recommended that tablets be made available throughout prisons. On 1 December 2003 Prison Service Instruction No. 53/2003 issued, introducing a scheme to make tablets available as from 1 April 2004. The scheme is currently being implemented and evaluated. Tablets have been available in Scottish prisons since 1993, in which jurisdiction a pilot needle exchange programme has been reported to have been recently initiated. The applicant is a prisoner. In 2004, he instructed solicitors as he was concerned that the provision of tablets instead of needle exchange programmes failed sufficiently to address the risks caused by the sharing of infected needles. Such risks were not confined to drugs users but also other prisoners or prison staff who could be accidentally infected. In correspondence with his solicitors, the Department of Health acknowledged that tablets would only disinfect, not reach the clinical standards of sterilization. They stated that there was no plan to introduce a needle exchange programme. In correspondence with his solicitors, the Treasury Solicitor explained that the introduction of tablets was a reasonable and proportionate response as Hepatitis B and C would be inactivated by several moderately potent disinfectants and stated the view that needle exchanges would increase drugs use and the number of needles in circulation. It was stated that it was not always possible to replicate health care provided in the community and that disinfecting tablets provided an effective way of cleaning needles and fell within the range and quality of health services to be provided to prisoners. On 11 November 2004, the applicant commenced judicial review proceedings arguing that the failure to introduce a trial of needle exchanges into English and Welsh prisons violated Articles 2, 3 and 8 of the Convention. He did not specify whether he was himself an intravenous user of drugs, claiming that other prisoners and staff could be affected by the risks of needle sharing. Permission to pursue such proceedings was refused after consideration of the papers by Mr Justice Harrison. The application was renewed orally and there was a full hearing before Mr Justice Beatson at which the applicant and the Secretary of State were represented by counsel. The Secretary of State relied on the following grounds: the Prison Service was concerned not to increase drugs use and there was no safe way of injecting drugs; drugs use was dropping in prison – this might in part be due to a lack of needles and a concern about infectious diseases; needle exchanges would increase the number of syringes in prison; the introduction of needle exchanges was to be kept under review. It was accepted that if a prisoner did inject drugs it was safer to use a new syringe rather than a disinfected syringe. Later, in the oral proceedings, counsel for the Secretary of State also alleged that syringes could be used as weapons. At the conclusion of argument, Mr Justice Beatson refused the applicant’s renewed application for permission to apply for judicial review. He found that steps taken by the Secretary of State to protect the health of prisoners were not unreasonable, noting that providing syringes would remove one of the disincentives to prisoners injecting themselves and that the effect of a decision to introduce a policy of distributing disinfecting tablets had yet to be assessed. He also found that the security considerations of managing a prison population in which people lived cheek by jowl meant that it was not realistic to assume that the same regime could apply as in the community. He found no issues arising under Articles 2 or 3 of the Convention. The applicant’s legal representatives obtained new evidence which was submitted in the renewed application to the Court of Appeal. This was a report dated July 2005 from the Addiction Development Officer of the Scottish Prisons Addictions Team which inter alia noted that rigorous evaluations in Germany and Switzerland consistently found that needle exchange programmes did not increase drugs use, drugs users or the amount of drugs in circulation; that the provision of bleach was only a partial solution and its use often inadequate; lower transmission rates of HIV and hepatitis had been found to result from needle exchange schemes which had been in operation in 46 prisons in 4 European countries for ten years, without any increase in drugs use, interference with drugs prevention strategies or attacks on either staff or prisoners. It was stated: “... it could be argued that the refusal to make sterile equipment available to prisoners is actually condoning the spread of HIV and HCV among prisoners and, indirectly, to the community at large.” On 29 November 2005, the Court of Appeal refused the renewed application for permission to apply for judicial review. It noted that it was far from clear on the facts of this case that Article 2 was engaged. On the assumption that it was, it was nonsense to suggest that the failure to attempt a trial of needle exchanges amounted to a violation of the positive right to life. The applicant himself had only argued for a trial period which was an indicator in itself that the overall benefits of such a policy had yet to be established. There was no satisfactory evidence as to the difference in the decreased risk to life inherent in a needle exchange programme as opposed to a disinfectant scheme. Also the United Kingdom was far from alone in refusing to introduce such programmes. It was satisfied that there remained a legitimate concern that a needle exchange programme might increase drugs use and the number of syringes in prison. While in the future the balance might tip in favour of needle exchange programmes this was not inevitable and the Home Office had put in place an effective and sensible policy of assessing such programmes and the results thereof. It was emphasised that the matter should be kept under review. Prison Service policy provides as follows: Standards: Health Services for Prisoners (May 2004) “To provide prisoners with access to the same range and quality of services as the general public receives from the National Health Service.” The Committee for the Prevention of Torture has set out in its general standards the following approach to medical services in prison (Chapter III Health Care Services in Prison): “b. Equivalence of care i) general medicine 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. d. Preventive health care 52. The task of prison health care services should not be limited to treating sick patients. They should also be entrusted with responsibility for social and preventive medicine. ...ii) transmittable diseases 54. A prison health care service should ensure that information about transmittable diseases (in particular hepatitis, AIDS, tuberculosis, dermatological infections) is regularly circulated, both to prisoners and to prison staff. Where appropriate, medical control of those with whom a particular prisoner has regular contact (fellow prisoners, prison staff, frequent visitors) should be carried out. ” Rule 40 of the European Prison Rules "Medical services in prison shall be organised in close relation with the general health administration of the community or nation. ... Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation." Drug use was common in prison, with most studies reporting prisoners who have used drugs as at 50% or greater. While it was true that some prisoners stopped injecting on entering prison, some continued: a 2002 European Union report showed that 0.3% to 34% of the prison population injected while incarcerated. Elevated risks of HIV and HCV flowed from the prevalence of sharing needles, often home-made (with additional risks of scarring, vein damage and other infections). HIV infection ran from a reported 4% in Russia to 38% in some prison populations in Spain. The vast majority of peer-reviewed studies put HCV infection at between 20-40% of prison populations. Cleaning syringes with disinfectant such as bleach did not sufficiently reduce the risk of infection. Bleach was not fully effective in reducing HCV transmission. While repeated applications of bleach had been shown to eliminate HIV in syringes, field studies indicated users (amongst those who bothered to avail themselves of available bleach) had trouble following the instructions correctly and thus the method offered no, or little, protection. Needle exchange programmes (NEPs) had been acknowledged to be the most effective harm reduction method in the community, reducing infection substantially without increasing the initiation, duration or frequency of illicit drug use. NEPs had been in operation in prisons since 1992 and now existed in at least one prison within nine jurisdictions: Armenia, Belarus, Germany, Kyrgyzstan, Luxembourg, Moldova, Scotland, Spain and Switzerland. NEPs were also in development in Belgium, Iran, Portugal, Tajikistan and Ukraine. The evidence and experience from the prison schemes showed that they reduced needle-sharing, reduced drug overdoses and led to a decrease in abscesses and injection-related injections and facilitated referral of users to treatment programmes. It had not been demonstrated that they resulted in an increase in drug consumption, increase in drug injection or in any incidents of intentional use of needles as weapons or accidental needle-stick injuries. HIV prevalence in drug injectors (IDUs) was about 2.1% in England and Wales. 31% of HCV infections occurred in current IDUs and 57% in ex-IDUs as opposed to 12% in non-IDUs. Infection rates were substantially higher amongst the prison population than the general population. The Health Protection Agency identified NEPs as the key to preventing infections amongst IDUs in the community. This was also the established opinion of the National Health Service. An estimated 90% of IDUs in England and Wales had accessed a needle exchange service. No such facilities were available in prisons. Some eight prisons appeared to be using disinfectant tablets, which were to be made available in all prisons during 2007. The Prison Service nonetheless had the responsibility, under guidelines, to ensure that prisoners had access to health services broadly equivalent to those in the community. The Department of Health did not consider that disinfectant tablets were an adequate response to risks of HIV and HCV transmission for the general public. There was strong evidence from around the world that NEPs in prison did not produce countervailing effects that could outweigh the benefits to prisoners. There had been no instances of needles being used as a weapon, nor any increase in drug use or injections. The only difference was that the possession of needles had ceased to be illegal. The fact that drugs use did drop on entry to prison was probably a consequence not of the absence of clean needles but of the fact that possession and use were illegal in prisons and that prisoners were closely supervised.

train

001-99626

ENG

UKR

CHAMBER

CASE OF OLEKSIY MYKHAYLOVYCH ZAKHARKIN v. UKRAINE

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantial aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1-c;Violation of Art. 5-3;Non-pecuniary damage - award

Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

5. The applicant was born in 1979. At the material time he lived in the town of Kalush, Ivano-Frankivsk Region. 6. At about 4 p.m. on 17 May 2003, when the applicant was driving from Ivano-Frankivsk to Kalush, he was stopped by police because they had received information that the applicant, who had previously been convicted of theft, might have been involved in recent burglaries committed in the neighbourhood. 7. When searching the applicant's car, the police officers seized an adjustable wrench, gloves, two pocket torches and some other things. They further allegedly found in the car and the applicant's pocket small amounts of cannabis. According to the applicant, he had no cannabis on him and there was none in his car. 8. Following the search, the police officers decided to formalise the applicant's arrest under Articles 44 and 263 of the Administrative Offences Code for possession of illegal drugs in small amounts (administrative offence). In the meantime they sent the seized adjustable wrench to an expert for an opinion as to whether it might have been used to break down the doors of the recently burgled apartments. 9. During the questioning, the applicant informed the police officers that the cannabis did not belong to him and stated that it had been planted on him and his car by the police officers. In response the applicant was allegedly beaten up. 10. According to the applicant, he was hung over a horizontal crowbar when handcuffed and with his head pointing downwards; when held in this position, he was threatened with being killed. 11. On 20 May 2003, after the expert confirmed that the adjustable wrench had been used for a number of burglaries, the police officers took the applicant to the investigator, who at 1 a.m. on 21 May 2003 formalised the applicant's further detention in the status of criminal suspect in respect of the burglaries. 12. When questioned, the applicant rejected the accusations of burglary. In response, he was allegedly beaten up by police officers. According to the applicant, he was hung over a horizontal crowbar when handcuffed and with his head pointing downwards; when he was in that position his head was beaten with a plastic bottle filled with water and his feet with a wooden bat; a gas mask filled with liquid was placed over his head, which made it impossible to breathe. During this treatment the applicant lost consciousness several times and when he came round he was told he had to confess to the crimes. Finally, he signed a confession to one burglary. Subsequently, he signed a number of other documents given to him by police officers. 13. During the night of 24 May 2003 the applicant, still being detained at the police station, asked to use the toilet. When allowed to use it, he cut his left-hand arterial vein. When the resultant bleeding was seen he was delivered to a local public hospital. The same day, having been provided with the requisite medical assistance, the applicant was released. The medical examinations and treatment provided to the applicant in connection with that injury were documented by medical officers. 14. On 26 May 2003 medical officers examined the applicant and issued a medical report. According to the letter of the Ivano-Frankivsk Regional Prosecutor's Office (“the Regional Prosecutor's Office”) of 16 October 2003, the report attested that the applicant had suffered (in addition to the cut on the left arm) three abrasions to his right shoulder and arm, three bruises to his left shoulder, three abrasions and eight scratches to his left arm, and two abrasions to his right leg. According to the bill of indictment of 28 December 2007 (see also paragraph 32 below), the report, after describing the above injuries, ended with the conclusion that they had to be qualified as minor bodily injuries, which could have been inflicted by blunt objects (except for the cut on the left arm), about five days before the examination. 15. On 29 May 2003 the applicant was diagnosed with a severe and suicidal depressive disorder. 16. Following his release the applicant and his mother lodged numerous complaints with law enforcement authorities requesting that the police officers involved be held criminally responsible. 17. On 21 July 2003 the Ivano-Frankivsk Town Prosecutor's Office refused to institute criminal proceedings following the applicant's allegations, stating that there was no evidence of crime. The fact that the applicant sustained numerous injuries was noted but disregarded without explanation. 18. The applicant challenged that refusal before the Regional Prosecutor's Office which, in the course of reviewing the impugned decision, also requested the Ivano-Frankivsk Regional Police Department, supervising the relevant local police offices, to carry out an additional internal inquiry concerning the facts complained of. 19. On 27 October 2003 the Regional Prosecutor's Office quashed the decision of 21 July 2003 on the basis that the circumstances in which the applicant had sustained the injuries had not been examined. 20. On 3 November 2003 the Regional Prosecutor's Office instituted an investigation of the allegedly unlawful detention and ill-treatment of the applicant. 21. On 15 December 2003 the applicant applied to the General Prosecutor's Office asserting that the Regional Prosecutor's Office could not carry out an impartial investigation in respect of police officers working in the same region. He requested therefore that the case be referred to a prosecutor's office of another region. 22. On 16 June 2004 the applicant repeated that request as there had been no reply to the first one. He stated that he could still remember the events in detail and identify the policemen involved but the relevant investigatory steps had not been taken. 23. On 24 June 2004 the Kalush Town Prosecutor's Office refused to institute criminal proceedings against Yu. and B., two of the police officers who, it was alleged by the applicant, had been involved in the crimes. 24. On 26 July 2004 the Regional Prosecutor's Office itself considered the applicant's requests for referral of the investigation to another prosecutor's office and rejected them as unsubstantiated. 25. On 25 September 2004 the Regional Prosecutor's Office refused to institute criminal proceedings against police officers Zh., K., and H. for lack of evidence of their involvement in the alleged crimes. On several occasions the applicant requested a copy of that decision in order to challenge it before a court, but to no avail. 26. The Regional Prosecutor's Office then charged two police officers, A. (who was the operative officer of the local police office) and M. (who was the head of the division of the local police office dealing with crimes against individuals and crimes committed by group of persons), with abuse and exceeding their powers, forgery of documents, and unlawful arrest in respect of the applicant. 27. On 22 October 2004, having completed its investigation, the Regional Prosecutor's Office referred the case file to the Ivano-Frankivsk Town Court (“the Town Court”) for trial. 28. Between 3 November 2004 and 15 November 2006 the hearings in the case were adjourned by the Town Court five times because of the prosecutor's failure to appear, seven times at the request of the prosecutor, and once because the prosecutor was on holiday. 29. On 18 July 2007 the Town Court held a hearing in the case, in the course of which it established that the investigation had been carried out superficially and inadequately. The Town Court noted that the decisions to refuse to institute criminal proceedings against the other police officers had not been substantiated. It therefore remitted the case for further investigation and ordered that the other police officers be brought before the applicant for identification; that they be questioned; that a confrontation be held between them and the applicant; that the alibi of the accused M. be verified; that the staff of the hospital where the applicant was provided with medical assistance be questioned; and that a detailed reconstruction of the events be held with the participation of the applicant, given that the latter had made contradictory statements about how he had allegedly been hung over the crowbar. 30. On 24 September 2007 the Ivano-Frankivsk Court of Appeal upheld the decision of 18 July 2007 noting, inter alia, that the applicant's inconsistent statements should have been properly verified. 31. On 15 November 2007 the Regional Prosecutor's Office commenced additional investigations ordering that they should be terminated within one month. 32. On 28 December 2007 the Regional Prosecutor's Office, having completed the additional investigation, referred the case file to the Town Court. It charged A. with abuse of powers, excess of powers, forgery of documents, deliberately unlawful arrest. It further charged M. with excess of powers and deliberately unlawful arrest. All of the charges referred to the qualified corpi delicti of the relevant crimes. The bill of indictment stated, among other things, that M. requested the other police officers to handcuff the applicant and to hang him over the crowbar which was placed between two chairs; to place a gas mask over the applicant's head and block the air flow. It was specified that “the torture lasted from 1 a.m. on 21 May to 9.50 a.m. on 22 May 2003”. 33. According to the bill of indictment, the other police officers were not prosecuted as the applicant's mother submitted that, given the lapse of time, the applicant would not be in position to identify any other police officer except for A. and M.; moreover, all the other police officers denied their involvement in the crimes. 34. On 25 March 2009 the Town Court found that the Regional Prosecutor's Office had failed to comply with the investigatory instructions contained in the decision of 18 July 2007. The Town Court further decided to disjoin from the case the charges against M. and remitted this part of the case for additional investigation. As to the charges against A., the Town Court proceeded with their consideration. 35. On 26 March 2009 the Town Court found that in the course of the applicant's arrest A. planted drugs on the applicant, ill-treated him by punching and kicking him, falsified the administrative case in his respect, and illegally detained him. The Town Court found A. guilty of exceeding his powers, forgery of documents and unlawful arrest, and sentenced him to three years' imprisonment with a prohibition on occupying posts in law enforcement bodies for the same period. It also allowed the applicant's civil claim for damages in part. 36. On 15 September 2009 the Ivano-Frankivsk Court of Appeal upheld the decision of 25 March 2009. It further quashed the judgment of 26 March 2009 as unsubstantiated and remitted the whole case for additional investigation. It noted that A.'s guilt had not been properly established either, because of the serious shortcomings of the investigation. It also held thatthe Town Court had been wrong in its decision to examine the charges against A. separately from the charges against M. 37. The investigation against A. and M. is pending. 38. The relevant provisions of the Constitution read as follows: “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” “... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. ...” 39. Chapter II of the Code deals with crimes against the life and health of an individual. Article 127 of the Code which is included in that chapter provides as follows: “1. Torture, that is intentional causing of strong physical pain or physical or moral suffering by way of beating, tormenting or committing other violent acts with the purpose of compelling the victim or any other person to commit an act against his or her will shall be punished by imprisonment for a period of from three to five years. 2. The same acts, if committed repeatedly or premeditatedly by a group of persons shall be punished by imprisonment for a period of from five to ten years.” 40. Chapter XVII of the Code deals with crimes committed by public servants and other persons performing official functions. These offences include abuse of powers (Article 364); excess of powers (Article 365); forgery of documents (Article 366). The qualified corpi delicti are envisaged in the event of grave consequences and other circumstances. In particular, if the abuse of powers is committed by a law-enforcement officer, punishment for such a crime shall be imprisonment for a period of from five to twelve years with the prohibition to occupy certain posts (or to carry out certain activities) for a period of up to three years and with the confiscation of property (Article 364 § 3). Chapter XVIII of the Code deals with the crimes against the justice and provides, inter alia, the crime of deliberately unlawful arrest (Article 371). 41. Article 4 of the Code provides that the court, the prosecutor or the investigator must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them. 42. Article 99 of the Code provides that if there are no grounds to institute criminal proceedings, the prosecutor, the investigator, the body of inquiry, or the court shall take a decision refusing to institute criminal proceedings and give relevant notices to the interested persons, companies, institutions and organisations. 43. The relevant parts of Article 106 of the Code read as follows: “The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home. If there is other information giving grounds to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempts to flee, or does not have a permanent place of residence, or the identity of that person has not been established. For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up a minutes outlining the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The minutes of detention shall be signed by the person who drew it up and by the detainee. A copy of the minutes with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for detention shall be sent to him as well. ... Within seventy-two hours of the arrest the body of inquiry shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. ... Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the minutes to that effect, and shall inform the official or body that carried out the arrest accordingly.” 44. Article 217 of the Code provides, inter alia, that after the completion of the investigation in the case, which has to be referred to the court for trial, the investigator gives relevant notices to the victim and his representative, civil plaintiff, civil defendant, or their representatives, and explains to them their right to familiarise themselves with the materials of the case file. 45. Article 44 of the Code prohibits the fabrication, purchase, storage, transport, or dispatch of drugs or psychotropic substances in small quantities without the purpose of their trafficking. 46. Article 263 of the Code provides, inter alia, that anyone who violates the rules on circulation of drugs may be arrested and detained for up to three hours in order for a report on the administrative offence to be drawn up. However, in order to identify the perpetrator of the offence, subject him to a medical examination, clarify the circumstances of purchase of the drugs or psychotropic substances and examine them, the detention may be extended by up to three days. In such cases the prosecutor shall be informed of the extension in writing within twenty-four hours. If the arrested person does not have identity documents the detention may be extended by up to ten days subject to the prosecutor's approval.

train

001-95067

ENG

UKR

CHAMBER

CASE OF STOROZHUK v. UKRAINE

Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy

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

4. The applicant was born in 1951 and lives in the town of Chervonograd, Ukraine. 5. On 10 November 2003 the Chervonograd Court ordered the State company Lvivvugilllya to pay the applicant 42,000 Ukrainian hryvnias (UAH) in compensation for the non-pecuniary damage caused by the company's failure to provide him with an apartment. 6. On 17 December 2003 the State Bailiffs' Service initiated enforcement proceedings in respect of the above judgment. 7. On 30 December 2005 the enforcement proceedings were terminated in accordance with the Law of Ukraine on Measures to ensure the Stable Operation of Fuel and Energy Sector Enterprises. 8. The judgment given in the applicant's favour remains unenforced. 9. The Law of 23 June 2005 on Measures to ensure the Stable Operation of Fuel and Energy Sector Enterprises (Закон України „Про заходи, спрямовані на забезпечення сталого функціонування підприємств паливно-енергетичного комплексу” від 23 червня 2005 року) introduced a new mechanism for the payment and amortisation of companies' debts for energy resources. It also introduced a special register of companies concerned by debt payments and amortisation under its provisions. A company's inclusion on the register suspends any enforcement proceedings against it. The domestic courts will also dismiss any request to initiate insolvency or liquidation proceedings against the company in question. By the most recent amendment to the Law, enacted on 16 December 2008, the effect of the debt payment and amortisation programme was extended until 1 January 2011. 10. The remainder of the relevant law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, §§ 17-22, 26 April 2005).

train

001-87144

ENG

TUR

CHAMBER

CASE OF SOLOMOU AND OTHERS v. TURKEY

Preliminary objection rejected (victim);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Pecuniary damage - claim rejected;Non-pecuniary damage - award

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

7. The applicants are Cypriot citizens, born in 1941, 1964, 1966, 1972, 1975, 1974 and 1971 respectively. They all reside in Paralimini, Cyprus. 8. The first applicant is the father of Solomos Solomou, a Greek Cypriot who died on 14 August 1996. The remaining applicants are the first applicant’s children and Solomos Solomou’s siblings. Solomos Solomou was not married and did not have any children. 9. The parties disagree as to the facts of the case. 10. On 14 August 1996 Solomos Solomou attended the funeral of a man who had been killed during a demonstration against the Turkish occupation of part of Cyprus. With other persons, he entered the UN buffer zone near the spot of the killing. A road passed the buffer zone at that point, leading to checkpoints guarded by the Cypriot National Guard on the southern side and by officials of the “Turkish Republic of Northern Cyprus” (“TRNC”) on the northern side. At the Turkish checkpoint there were two military sentry boxes, one on either side of the road leading into the occupied territory. There was also a Turkish flag on a pole situated just behind the Turkish sentry box. Near the sentry box there was a Turkish observation post on a two-storey house. 11. Notwithstanding the efforts of the United Nations Force in Cyprus (UNFICYP) and the United Nations Civil Police (UNCIVPOL), some demonstrators, including Solomos Solomou, entered the buffer zone. Solomos Solomou and a handful of other demonstrators ran to the Turkish side of the buffer zone, pursued by UNFICYP personnel. Solomos Solomou crossed the barbed wire at the Turkish ceasefire line and entered the occupied territory. He was pursued by a British soldier from UNFICYP, who attempted to pull him back. 12. Solomos Solomou broke free from the British soldier and attempted to climb the pole where the Turkish flag was flying. He was unarmed, was not acting in a manner which could have been considered threatening and was smoking a cigarette. While he was approximately three metres up the pole he was hit by five shots fired by at least three persons from the Turkish side and was fatally injured. He died almost instantly. The Turkish forces then opened fire in an indiscriminate manner, wounding two members of UNFICYP, a civilian in the buffer zone and a civilian who was standing behind the Cypriot Government’s ceasefire line. 13. In order to support their version of facts, the applicants produced the following evidence: (a) five statements from eyewitnesses (Lance Bombardier Sanders, Garda O’Reilly, Sergeant Hayward, Sergeant Whiley and Garda Brennan – see paragraphs 15-20 below); (b) a collection of photographs prepared by the Cyprus police (see paragraph 31 below); (c) a video film of the shooting (see paragraph 31 below); (d) a pathologist’s report (see paragraph 29 below). 14. As to the identity of the perpetrators, the evidence pointed, in particular, to three persons: a man in civilian clothes who fired from the balcony of the Turkish observation post; a man in uniform standing near the Turkish check point; and a third man in Turkish uniform who fired from a distance of approximately 10 metres. 15. Before the Court, the applicants produced a number of statements from eyewitnesses. The relevant parts of these statements read as follows. 16. Statement of Lance Bombardier Michael John Sanders from UNFICYP: “... Between two and three hundred Greek-Cypriot demonstrators were in the buffer zone and approached our formation. These people were in an agitated state, abusive, were singing patriotic songs and several were carrying Greek flags. I also saw several television cameras amongst the crowd. ... The demonstrators were becoming more agitated and were throwing missiles towards UN personnel and Turkish forces. ... A short time later ... I saw a male person previously unknown to me, this person was between myself and the road and was jogging towards the Turkish-Cypriot fire line [TCFL]. This person was wearing black jeans and a black T shirt ... I also saw that this person was smoking. This person appeared to be extremely agitated and was verbally abusing UN and Turkish troops. I saw Lance Bombardier Booth run after this person and heard Booth yell out to the person to ‘stop’ and also to ‘get back’. The male person ran to a Turkish sentry box on the western side of Dherynia road where he got in between the coiled barbed wire and the sentry box. Booth caught the male person at this stage and held him by the shirt with one hand. The male person then broke free of this hold and run around the eastern side of the sentry box where I briefly lost sight of him. I next saw this person attempting to climb on the top of the sentry box which was unsuccessful. I then turned my back and attempted to prevent another person from going towards the TCFL. I heard a shot fired and turned around and saw the same male person attempting to climb a flagpole on the Turkish side of the TCFL. I saw a Turkish Police officer with a drawn handgun aimed at the male person standing on Dherynia road, I saw this officer walk towards the male person and saw several muzzle flashes from the gun and heard several shots, I saw a wound on the male person’s neck and a large amount of blood from that wound. The male person then slid down the flagpole where I lost sight of him. The same police officer was firing at this time. A volley of shots then rang out from the Turkish side of the TCFL. I ran towards the cover of two UN barrels, about 40 to 50 metres south of my location. I lay prone next to the barrels with my head turned and facing the TCFL. At this time I saw numerous muzzle flashes emanating from one or two positions within a grove of trees on the western side of the Derenyia road behind the TCFL. ... Several rounds hit the barrels and the ground close to us whilst the volley of shots continued. .. I ... saw that Hudson had sustained a wound to his buttock. At this time shots were still being fired from the Turkish side of the TCFL. I administered first aid. The volley of shots ceased. I estimate that the volley of shots lasted between ten and twenty seconds ... I approached the TCFL where I saw the male person who had attempted to climb the flagpole being carried under the TCFL coiled wire by members from IRCIVPOL. I saw that the person had sustained wounds on either side of the neck and chest. The Greek-Cypriot crowd that were still in the buffer zone became very aggressive towards UN personnel claiming that they could not get the required medical assistance for the person who had been shot. The situation did not settle until an ambulance had arrived and conveyed the person from the scene.” 17. Statement of Garda Pauroic O’Reilly, from UNFICYP: “... A large crowd of people had gathered at this stage and the crowd was hostile. ... At this stage the crowd of people were making efforts to break through the barrier. The crowd were also throwing stones and other missiles at the UN personnel. They were advised on several occasions not to enter the buffer zone. A number of people then broke through the barrier and stated they wanted to lay a wreath where Tassos Isaak had died. They were advised they could not. At this time more people came through the barrier and started to head towards the ceasefire line. Efforts were been made to try and stop them but they continued onwards and would not listen to anybody. Some of the crowd carried iron bars, stones, sticks and flags. When the crowd got close to the Turkish position they started to throw stones at the Turkish position. I would say there were 300 people in the buffer zone. A group of these people got to the murder scene and planted a Greek and Cyprus flag where he had been killed. They also removed the iron stakes which had marked the murder scene. The crowd [was] still hostile and angry. They started to sing and shout insults towards the Turkish forces. After planting the wreath and flags they moved over towards the road which leads to the Turkish checkpoint. They were still throwing stones and chanting insults. One of the group broke through and run up to the barbed wire and planted a Greek flag on it. When the flag was planted, Turkish forces appeared from a group of trees. I removed this flag ... The Turkish forces members returned to the trees when the flag was removed. I was continually telling people not to enter the buffer zone as it was dangerous and to return behind the UN barrier. I noticed a man break through the UN lines and run towards the Turkish forces checkpoint. A member of BRITCON was in pursuit and caught the man at the barrier, the soldier appeared to lose his grip and let this man go and he crossed into [the] Turkish occupied area. He started to climb the flagpole with the Turkish [flag] on it. I then saw a Turkish soldier with a pistol fire shots, maybe two towards this man. I saw blood spurt from this man’s neck and he slumped on the pole and fell to the ground. There was a burst of firing as this man fell to the ground and I saw two other Turkish soldiers firing rifles. I was 10 to 15 metres approximately from the shooting. I then took cover and remained on the ground till the shooting stopped. When I got up after the shooting I noticed members of BRITCON attending one of the men who had been shot. ... We removed the body from its position under the flagpole and passed it under the barrier to members of the UN and people in the crowd of demonstrators. The crowd took the body out of my view and placed it in a jeep ... When the body was passed under the barrier there was a Cyprus doctor there [who] started to render aid to this man who had been shot. ... There were no further incidents after the shooting ...” 18. Statement of Acting Station Sergeant Bruce Ihian Hayward, from UNFICYP: “... I noticed that a group of Greek-Cypriot demonstrators, in my estimation to be in excess of 300, were at the CYPOL line attempting to break through. After a token effort by CYPOL, the demonstrators broke through the line with ease and approached the Southern barrier of the buffer zone. This barrier was manned by members of BRITCON and AUSCON. After numerous attempts to breach this line, the demonstrators were eventually successful and at the same time a large group of these demonstrators had run around the Western flank of the UN members and ran into the buffer zone. I saw that the majority of these demonstrators were carrying pieces of wood, metal and other objects. ... On numerous occasions, I was spat upon, verbally abused and pushed out of the way by the Greek-Cypriot demonstrators. In one instance I was threatened by a male demonstrator carrying a 10cm bladed knife, whom I have no doubt would have used it if I had not relinquished my position. At this stage, I saw a red flare overhead that had been fired from a southerly direction towards the Turkish side. When the demonstrators reached an area about 30 metres from the Turkish lines, they commenced to throw a barrage of rocks at the Turkish soldiers and police and at a building situated on the eastern side of the entrance barrier. All attempts to negotiate with the demonstrators by the UN personnel within the buffer zone failed both verbally and physically. I was positioned at an area approximately 20 metres’ distance from the northern entrance barrier and 10 metres from the barbed wire barrier on the northern extremity of the buffer zone, when I saw a male demonstrator wearing black trousers and a black T-shirt with white writing on the front, run towards the entrance barrier of the Turkish-Cypriot side, closely pursued by a member of BRITCON. As the male person attempted to get between the barbed wire and a guard box on the western side of the entrance, a member of BRITCON grabbed hold of his shirt and attempted to pull him back. However, the BRITCON member was struck on his helmet by a rock thrown by one of the demonstrators and as a result, released his hold of the male demonstrator. The male demonstrator then attempted to climb onto the guard box but was unable to, so then started to climb a flagpole flying the Turkish flag which was situated on the western side of the entrance, several metres inside Turkish-Cypriot territory. I saw the male climb about three metres up the flagpole when I noticed a Turkish Army officer remove his pistol and commence shooting towards the male person on the flagpole. This Turkish officer was standing in the middle of the road facing in a southerly direction about 30 metres distance from the buffer zone barrier. I then saw two other Turkish army soldiers step out of some bushes on the western side of the barrier, about 25 metres away, and started firing their rifles in the direction of the male person on the flagpole. At this stage I saw an amount of blood appear on the male person’s neck just below the jaw line on the left hand side. The male then appeared to slide back down the flagpole onto the ground. I remember seeing the Turkish army officer who had fired his pistol running off into some bushes on the eastern side. At this stage, myself and other UN personnel immediately lay down on the ground. I believe I heard continual gunfire for a period of between 10 and 15 seconds and on several occasions, heard bullets passing over my head. At no time did I hear bullets being fired from the direction of the Greek-Cypriot demonstrators, nor did I see any of the demonstrators with firearms. The majority of the demonstrators then ran back towards the southern barrier of the buffer zone. When the gunfire had ceased, I saw that the Turkish army officers and police had left their original locations and could not be sighted. Shortly after, I saw IRCIVPOL members ... enter through the Turkish barrier and remove the body of the male person whom I had seen climbing the flagpole and had been subsequently shot. ... ... I was made aware that two BRITCON members had sustained gunshot wounds.” 19. Statement of Sergeant Geoffrey William Whiley, from UNFICYP: “... After numerous attempts to breach this line [the UN barriers], the demonstrators were eventually successful and at the same time a large group of these demonstrators, numbering approximately 100 persons ran around the western flank of the UN members and into the buffer zone. I saw that many of these demonstrators were carrying pieces of wood, metal stakes, rocks and other objects. There were no visible firearms amongst the demonstrators. All UN members including all CIVPOL continually formed lines in an attempt to prevent the demonstrators from reaching the northern side of the buffer zone ... The Greek-Cypriot demonstrators were extremely agitated and violent towards UN members. I saw several UN soldiers get hit by rocks thrown from south to our position. The demonstrators then forced their way to a position about 15 metres south of the Turkish barbed wire barriers. There two flags were planted using a small rock cairn, apparently as a memorial. The demonstrators paused briefly at this point singing and shouting before moving generally back towards the roadway and continuing their yelling and rock throwing at the Turkish positions. There were many rocks thrown at Turkish positions which hit the buildings just north of the Turkish forces barriers. ... The UN soldiers and CIVPOL made many attempts to push the demonstrators back ..., all to no avail. I saw a red flare come from the demonstration group, fired into the sky over Turkish positions. I was standing about 10 metres to the south of the Turkish barbed wire demarcation, approximately 15 metres to the west of the roadway. The roadway passes to the north between two guard posts located on either side of the roadway. There was a barbed wire barrier between the two guard posts. Beyond this position there were no further barriers to the Turkish positions. I saw a demonstrator who was wearing a black shirt run towards the guard house located at the Turkish checkpoint. A BRITCON UN member chased this person. The demonstrator made his way through a gap between the guard house and [the] barbed wire gate. The BRITCON soldier grabbed hold of the demonstrator; however [he] lost his grip. The demonstrator ran past the barbed wire gate and was briefly lost from my sight. I then had a partial view of the demonstrator as he stood beside a flagpole located to the north of the guardhouse on the western side of the roadway. I saw a Turkish forces soldier approach from bushes further to the north and walk to a position about 10 metres from the flagpole. I saw he was carrying a firearm, which appeared to be some form of assault rifle. I saw him drop to one knee and raise his rifle to his right shoulder. I heard two spaced shots as this was happening. At this point the demonstrator had begun to climb up the flagpole and I had a clear view of him as he climbed higher. He did not appear to react to the first two shots as he continued to climb. I then heard a third shot and saw the demonstrator fall from the flagpole to the ground. I turned away at this point to look for some cover to move to. As I did this I heard a volley of rapid fire shots and I moved a few steps away from the firing line to a depression in the ground where I sought cover. After the firing ceased I stood up and moved back to the roadway area, I saw a BRITCON soldier lying on the ground and being attended by several other BRITCON soldiers. Myself and other UN soldiers began forcing media persons away to clear the area of the casualty. A short time later UN ambulances arrived. ... I saw the body of the wounded demonstrator taken by demonstrators who gradually moved off to the south.” 20. Statement of Garda Fidelma Brennan, from UNFICYP: “... I saw approximately 25 uniformed Turkish police and 50 Turkish riot police in the area around the Turkish checkpoint. I also saw that these troops were well armed. [At] about 13h56 I saw between thirty and forty demonstrators moving towards the Greek National Guard checkpoint on Dherynia Road. ... I saw no Cyprus police in that area. ... This group was joined by other demonstrators. As the number of demonstrators grew they eventually got past UN personnel at that location. ... [At] about 14h05 I saw the Greek-Cypriot demonstrators throw rocks towards the Turkish forces. The demonstrators at this stage were on the southern side of UN personnel deployed in crowd control formation. The demonstrators were throwing stones that were landing in the building TK34. UN soldiers and UNICIVPOL members were making every effort to prevent demonstrators getting past their position. At this time I was advised by Major Ilerici from the Turkish forces that if demonstrators went past the Turkish ceasefire line they would be shot. I attempted to relay this information but could not do so as I could not use my portable radio. I believe the reason for this was interference from Cyprus police channels. I saw a man I would describe as fit and well built run towards a sentry box at the Turkish checkpoint on the right hand side of Dherynia road. This man attempted to climb the roof of the sentry box and then got down. I then saw this same man run towards the flagpole, I took cover and heard a shot fired. A short time later I heard a volley of shots fired. I made a note that I heard shots fired at 14h25. After the shots had ceased I looked down to the flagpole area, I saw the same man lying on the ground with his head pointing towards the Greek national guard checkpoint, he was facing towards UN OP 142. After 14h30 I saw IRCIVPOL members ... remove the body of the man.” 21. According to the Government, the chain of events which led to the death of Solomos Solomou might be described as follows. (a) On 11 and 14 August 1996 serious disturbances occurred in the buffer zone. (b) The Greek-Cypriot Motorcycle Federation, with the support of the Greek-Cypriot authorities, had organised a rally which was meant to cross the ceasefire line and perform an illegal entry into the territory of the “TRNC”. The organisers had used abusive and degrading language and expressed violent intentions against the Turkish people in general. (c) These acts, accompanied by media coverage, led to tensions on both sides of the border. (d) The Turkish-Cypriot side repeatedly invited the Greek-Cypriot leadership to persuade the organisers of the rally to abandon the idea of illegally trespassing across the border and to enter the “TRNC” through the official entry point. These appeals were ignored. (e) The “TRNC” announced that it would stop such a provocative and aggressive action in order to protect its citizens. (f) The UN Deputy Special Representative in Cyprus and the UN Secretary-General called for respect for the integrity of the buffer zone. However, UNFICYP did not have sufficient personnel or means to effectively control and prevent large-scale demonstrations. (g) On 11 August 1996 thousands of Greek-Cypriot demonstrators, escorted by the Greek-Cypriot police, arrived at the Greek-Cypriot ceasefire line in Dherynia. The Greek-Cypriot police deliberately left the checkpoint unguarded in order to allow the demonstrators to enter the UN buffer zone. The situation developed into a violent riot when the demonstrators entered Turkish-Cypriot territory. They became involved in clashes with TurkishCypriot counter-demonstrators. Hundreds of people were injured and a Greek Cypriot died. (h) The funeral of that person took place on 14 August 1996, in a climate of anti-Turkish feeling. The same day, at about 10 a.m., hundreds of Greek-Cypriot demonstrators once again entered the buffer zone and approached the ceasefire line. (i) In order to avoid further clashes, the “TRNC” authorities prevented counter-demonstrators from approaching the area. They also took all necessary measures to prevent forcible entry into their territory. (j) The Greek-Cypriot demonstrators carried the Greek flag and started throwing missiles into the Turkish-Cypriot area. As a precautionary measure, a Turkish-Cypriot police team was positioned, out of sight, in the vicinity of the ceasefire line. (k) The Greek-Cypriot demonstration developed into a riot and the demonstrators started rushing towards the Turkish-Cypriot ceasefire line. One of them unsuccessfully tried to run towards a sentry post, then started to climb the flagpole marking the Turkish-Cypriot ceasefire line. The other demonstrators threw stones, bottles, iron rods and other missiles. According to eyewitnesses, shots were also fired from the Greek-Cypriot side and at least one demonstrator posing as a cameraman was seen with an automatic pistol firing shots. At this stage, the Turkish-Cypriot police team came out from their position and fired in the air in order to stop the advance of the demonstrators and to prevent the situation getting out of control. There was then a crossfire as shots were fired from the Greek-Cypriot side. (l) Solomos Solomou was injured during the crossfire and was immediately picked up by UN personnel. Greek-Cypriot demonstrators prevented the UN from bringing an ambulance to the scene, thus hindering any chance of his survival. After having waited in the buffer zone, Mr Solomou was eventually picked up by a jeep and taken across to the Greek-Cypriot side. He later died from his injuries. 22. The Government of Cyprus observed that the Cypriot police had conducted an in-depth investigation into the circumstances surrounding the killing of Solomos Solomou, in cooperation with UNFICYP. Having regard to the results of these investigations, the facts of the case can be described as follows. 23. On 11 August 1996 demonstrations occurred in the Dherynia area of Cyprus. Many of the demonstrators were Greek-Cypriot motorcyclists. At one of those demonstrations, which took place inside the UN buffer zone, a certain Anastasios Isaak was bludgeoned to death by persons who had entered the buffer zone in circumstances making Turkey responsible for that death. 24. The funeral of Anastasios Isaak took place on 14 August 1996 at 11 a.m. A crowd of 3,000 people attended the funeral, including about 100 motorcyclists. At about 1.47 p.m. around 700 demonstrators came into the southern side of the buffer zone area, following the funeral service. A group of demonstrators sought to enter the buffer zone in order to lay a wreath at the site of the killing, but was refused permission by the UN forces. The group forced its way past the UN barrier and went into the buffer zone near the site of Mr Isaak’s death. Around 200 to 400 demonstrators entered the buffer zone, but almost all were contained by the security forces. Some demonstrators had sticks or iron bars; one was seen to have a knife. No demonstrator had a firearm. Stones were thrown at the Turkish forces. 25. Solomos Solomou, who was unarmed and not carrying a stick, bar or other implement, broke through a line of UN personnel and ran towards the Turkish ceasefire line. He was chased by a member of UNFICYP, Mr Booth, who tried to prevent him from going further. Mr Solomou escaped Mr Booth’s grip. He then ran around the sentry box inside the Turkish ceasefire line. He started to climb a pole holding the Turkish flag which was positioned six metres behind the sentry box. When he was about 3 metres up the pole (less than one-quarter of the way to the top) he was shot and fell to the ground. He was hit by five bullets and died almost instantaneously. 26. The Turkish forces then opened fire indiscriminately. Four other persons (two UN personnel and two civilians) were wounded. From the balcony of the Turkish observation post (a two-storey house), Lieutenant General Hasan Kundakci (the Commander of the Turkish occupation forces), Major General Mehmet Karli (Commander of the 28th Turkish Division) and Attila Sav (the Chief of Police) were surveying the operations. Next to them was Kenan Akin, a minister in the “TRNC” administration. 27. According to the Cypriot Government, at least three persons from the Turkish side (two of whom were wearing Turkish military uniforms) fired directly at Solomos Solomou. Even if it was not possible to say who inflicted the fatal wound, each of them intended to kill him. 28. In support of their version of facts, the Government of Cyprus produced the following evidence: a pathological report, a ballistic report, photographs, a videotape and witnesses’ statements. Their content may be summarised as follows. 29. A forensic investigation established that: (a) Solomos Solomou had been struck by five bullets; (b) one bullet had entered his head behind the right ear, and exited to the left of the nose. The position of the firearm must have been above ground level at a point higher that the victim’s head and behind the victim. This was not the fatal bullet; (c) one bullet had entered the deceased’s body behind the left nipple and had come to rest by the right scapula. This wound was the direct cause of death; (d) another bullet had been recovered from below the skin of the middle of the back; it had entered by the upper left buttock; and (e) bullet fragments had been recovered from the right thigh. The forensic doctors came to the conclusion that the bullets had been fired with an intention to kill, that the first wound had been inflicted while the victim was climbing the flagpole and that the other bullet had hit him while he was falling or while he was lying on the ground. 30. The bullets and fragments recovered from Mr Solomou’s body were of 9 mm P calibre. This type of bullet is used by the Turkish-Cypriot forces and by the Turkish military forces. 31. One photograph showed Mr Solomou starting to climb the pole and with one foot still on the ground. A man in Turkish uniform (Mr Erdal Emanet, who was the Commander of the Special Forces of the Turkish-Cypriot police) was aiming his pistol at him. Other photographs and extracts from the videotape showed Mr Emanet levelling his pistol, cocking it and aiming it at Mr Solomou. Another man in civilian clothes (Mr Kenan Akin) was on the balcony of the Turkish observation post and had not yet drawn a weapon. In another picture, Mr Solomou had climbed about one metre up the flagpole and Mr Akin was aiming a pistol directly at him. The videotape showed a uniformed soldier, whose identity was not established, shooting directly at Mr Solomou with an automatic weapon (a rifle). 32. Numerous eyewitnesses (Nectarios Zalistis, Tasos Anastasiou, Floros Constanti and Kyriakis Pomilorides) declared that they had seen Mr Akin shooting at Mr Solomou from the balcony of the observation post. Other witnesses (Lance Bombardier Michael Sanders, Garda Pauroic O’Reilly, Garda Michael Fitzpatrick, Acting Sergeant Hayward, Photis Photiou, Nectarios Zalistis and Kyriakos Pomilorides) identified Mr Emanet as one of the shooters. The soldier with an automatic rifle was seen or heard firing at Mr Solomou by Sergeant Geoffrey Whiley, Acting Sergeant Brian Hayward, Georgios Aresti and Costas Charalambous. 33. The Government of Cyprus underlined that no witness had reported any warning being issued to the demonstrators by the Turkish forces either verbally or by warning shots. Nor was any warning apparent from the filmed footage. 34. On 26 August 1996, AUSTCIVPOL sought the assistance of the Turkish forces in providing information about the incident involving the killing of Solomos Solomou. A list of detailed questions was forwarded to the “TRNC” authorities. The Government of Cyprus were not aware of any answer given to these questions or of any investigation carried out by the “TNRC” authorities. The latter had denied access to the crime scene. 35. The Government of Cyprus furthermore drew the Court’s attention to the following statements and press articles. At the beginning of August 1996, Lieutenant-General Kundakci (the Commander in Chief of the Turkish Forces in Cyprus) declared to a local newspaper: “No one can cross our borders by motorcycle. Those who try pay the price. What is necessary shall be done. Without permission it is not possible to cross the TRNC borders, either by motorcycles or by any other means, and if they come, of course we will not welcome them with flowers. If they want to try let them do so. Those who try pay the price.” On 7 August 1996 the Turkish-Cypriot newspaper Kibris reported that Turkish military sources had said: “Our basic aim is to deter the Greek Cypriots from resorting to such provocations. However, if the Greek Cypriots insist on the action, then we will teach them a lesson so that they will never ever attempt such a thing again.” On 13 August 1996 the Turkish-Cypriot newspaper Halkin Sesi published the following declaration by Mrs Çiller, the Turkish Foreign Minister and Acting Prime Minister: “If an attempt is made not to recognise the TRNC borders, we will do whatever is necessary. Those who attempt to cross over the border will be immediately pushed back and the legitimacy of our borders shall be re-established again.” On 15 August 1996 the Turkish-Cypriot newspaper Yeni Demokrat wrote: “Lieutenant-General Kundakci has said that the Turkish side did not issue any invitation to anybody, and that it had no eyes on others’ territory. Against this, stressed Lieutenant-General Kundakci, ‘we do not let anybody with bad intentions enter our territory. Those who force their way in get their punishment. Everybody should know this.” On the same day, a recording by Mrs Çiller was played on Turkish television. It contained, inter alia, the following passage: “The world should know that we will not allow anyone to raise his hand against the flag. We will break the hands that are raised against the flag. For us, this is a matter of honour.” 36. The Government of Cyprus also underlined the following passages of UNFICYP’s report on the events surrounding the demonstration of 14 August 1996: “As a result of the indiscriminate shooting by Turkish or Turkish-Cypriot soldiers, two British UNFICYP soldiers were shot from behind and two Greek-Cypriot civilians were also hit by gunfire. Three were inside the buffer zone and one of the civilians, who sustained a serious gun shot wound to the abdomen, was standing outside the UN buffer zone close to the National Guard checkpoint. The Force Commander of UNFICYP accompanied by the Chief of Staff met with the Commander of the Turkish Forces in Cyprus late in the afternoon of 14 August to strongly protest the totally unwarranted use of force by Turkish or Turkish-Cypriot military personnel which resulted in the killing of Solomou and in injuries to two peace keepers and two civilians.”

train

001-96341

ENG

RUS

CHAMBER

CASE OF VOLNYKH v. RUSSIA

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

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

4. The applicant was born in 1950 and lives in Kropotkin, a town in the Krasnodar Region of Russia. 5. The applicant is a retired serviceman. In 1992 when the applicant was still serving, his military unit signed a contract with a building enterprise of the Kropotkin Town Authority for the construction of an apartment house for servicemen, the applicant included. In 1993 the military unit was disbanded, and the applicant retired. 6. Not having received the flat, the applicant sued the enterprise. On 24 November 1997 the Kropotkin Town Court ordered the Town Authority to provide the applicant with a three-room flat in the 199-apartment house no. 19, 20, 21 that was being constructed in Microdistrict no. 1 of Kropotkin. This judgment became binding on an unspecified date in 1997. 7. In 1997 the authority informed bailiffs that the construction had been delayed by a difficult socio-economic situation in the country. In 1999 the authority informed the bailiffs that the construction would be finished during the first three months of 2000. 8. Frustrated with the delay, the applicant asked the court to change the mode of enforcement to a lump-sum payment of 250,000 Russian roubles. The court refused that change because the applicant had failed to prove the impossibility of a literal enforcement. The court noted that the judgment had not specified a time frame for the provision of the flat, and that the construction was in progress. The court also noted that a lump-sum payment would have prejudiced other public expenditure.

train

001-92556

ENG

NLD

ADMISSIBILITY

NARENJI HAGHIGHI v. THE NETHERLANDS

Inadmissible

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

The applicant, Mr Esmail Narenji Haghighi, is an Iranian national who was born in 1969 and lives in Teheran. He was represented before the Court by Mr G.J. van der Graaf, a lawyer practising in Arnhem. The applicant first entered the Netherlands on 18 July 1994. On 9 August 1994 he applied for asylum. His request was denied in final instance on 10 September 1996. On 24 May 1997 the applicant was convicted of shoplifting and sentenced to a fine of 50 Netherlands guilders (NLG) (22.73 Euros (EUR)). On 14 January 1998 the applicant filed a second request for asylum. That same year the applicant started cohabiting with a Dutch national with whom he had started a relationship. The applicant’s partner suffers from a psychiatric disorder. On 26 July 1999 the applicant accepted a deal proposed by the public prosecutor and paid NLG 240 (EUR 109.10) in relation to an offence of shoplifting committed on 16 June 1999. His second request for asylum was denied in final instance on 15 August 2000. However, the applicant did not at that time leave the country and neither was he forcibly expelled. On 27 July 2001 the applicant was convicted of defamation, destruction and attempted aggravated assault, committed on 29 November 1999, and sentenced to a suspended term of two months’ imprisonment as well as to 100 hours’ community service. In March 2002 the applicant married his partner and on 14 August 2002 he applied for a residence permit for the purpose of residing with his wife (verblijfsvergunning regulier voor bepaalde tijd voor verblijf bij echtgenote). On 29 January 2004 the applicant’s request was rejected by the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie). The Minister considered that the applicant was not in possession of a provisional residence visa (machtiging tot voorlopig verblijf). Such a visa is normally a prerequisite for the grant of a residence permit, which confers more permanent residence rights, and it has to be applied for in a person’s country of origin. The Minister further considered that the applicant was not in possession of a valid document to cross international borders (document voor grensoverschrijding). The applicant lodged an objection (bezwaar) against this decision. He subsequently returned to Iran and filed a request for a provisional residence visa with the Dutch representation in Teheran on 4 May 2005. On 1 August 2005 the applicant’s request was rejected by the Minister of Foreign Affairs (Minister van Buitenlandse Zaken), who considered that the applicant had repeatedly committed criminal offences and that he had already committed his first offence two years after arriving in the Netherlands. Furthermore the applicant had continued to commit criminal offences even after he had started cohabiting with his partner. The Minister of Foreign Affairs therefore also dismissed the applicant’s argument that he should be granted a residence permit in view of the medical condition of his wife, as he should have realised that the commission of criminal offences would affect his chances of a residence permit. Furthermore, it was considered that the applicant had never had legal residence in the Netherlands and it was thus for him to bear the risks involved in starting family life at that time. The Minister of Foreign Affairs therefore found that, in these circumstances, Article 8 of the Convention did not impose a positive obligation on the State of the Netherlands to allow the applicant to reside in that country. Moreover, it had not appeared that there was an objective obstacle standing in the way of family life being enjoyed outside of the Netherlands. On 19 August 2005 the applicant filed an objection (bezwaar) against the decision to deny him a provisional residence visa. He argued that the offences he had committed were only minor ones and that he had not reoffended since his last conviction of 27 July 2001. In the view of the applicant, his and his wife’s interests in being able to enjoy family life in the Netherlands outweighed public order interests. In this context he also pointed to a letter drawn up by a social-psychiatric nurse to his lawyer, saying that the applicant’s wife was suffering from a schizoaffective disorder, bipolar type, and that she had had to be admitted to a closed ward of a clinic after her husband had returned to Iran as the stress, loneliness and despair concerning the uncertainty about his return had become too much and had led her to take an overdose of pills. According to the nurse, it was realistic to expect that her situation would improve if her husband returned as he was the only stable factor in her life and exerted a positive influence on her. Although the nurse stated that a long-term stay of the applicant’s wife in Iran hardly appeared to be an option, this was ultimately for her to decide. On 30 March 2006 the Minister of Foreign Affairs dismissed the applicant’s objection, considering that the situation of the applicant’s wife had already been taken into account in the original decision and the applicant had not submitted any new facts or circumstances leading to the conclusion that the condition of his wife should be deemed a special circumstance. Moreover the Minister considered that the criminal offences carried a certain gravity, regardless of the fact that it had been five years since the last offence had been committed. Finally, the Minister concluded that sufficient consideration had been given to the applicant’s family life in the balancing of the public and private interests involved. In his subsequent appeal (beroep) against this decision, the applicant argued that the Minister of Foreign Affairs had failed to motivate properly why the condition of his wife did not constitute a special circumstance. According to the applicant, the Minister had not correctly balanced the interests at issue. The objection which the applicant had lodged against the decision to refuse him a residence permit was rejected by the Minister for Immigration and Integration on 11 May 2006. The Minister considered that the mere fact that the applicant was now in possession of a valid passport did not qualify him for a residence permit as he still did not posses the required provisional residence visa. On 19 May 2006 the applicant filed an appeal against this decision also, arguing that it was contrary to the principle of fair play to refuse him a residence permit for the sole reason that he did not hold a provisional residence visa. The applicant further submitted that the interests at stake had not been properly balanced since his and his wife’s interests ought to outweigh the interest served by the mere formality of obtaining a provisional residence visa. On 24 October 2006 the Regional Court (rechtbank) of The Hague, sitting in Arnhem, delivered its verdict in both the appeal against the refusal of a residence permit and the appeal against the refusal of a provisional residence visa. Regarding the application for a residence permit the Regional Court considered that this had been rejected on the basis of the legal provisions in force at the time the application had been lodged, and which required that the applicant hold a provisional residence visa. The court further held that the question whether or not Article 8 of the Convention should lead to the applicant being admitted to the Netherlands fell to be determined in the proceedings relating to the provisional residence visa rather than in the context of the question whether or not the lack of such a visa should be held against the applicant. In its second decision of 24 October 2006, relating to the refusal to issue the applicant a provisional residence visa, the Regional Court considered that the Minister had had sufficient regard to the psychological problems of the applicant’s wife. It further found that it had not been unreasonable for the Minister to attach more weight to the interests of the community than to the private interests of the applicant. The Regional Court took into account that the applicant had been convicted of a number of criminal offences; that he had not held a residence permit when he started a relationship in 1998 or when he married in 2002; that he had committed offences during the time he had been cohabiting; that the applicant’s wife was thus aware of the fact that she was living with, and subsequently married, a repeat offender; and that it could not be said that the applicant had committed minor offences only. In the opinion of the court, the State was also not under a positive obligation to admit the applicant. In this context it inter alia considered that it had not appeared that there were any objective obstacles to family life being continued in Iran, the mere claim that settlement in the latter country was not a realistic option for the applicant’s wife not having been substantiated. On 23 November 2006 the applicant lodged a further appeal (hoger beroep) against both judgments of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State). In his appeal in the procedure against the Minister for Immigration and Integration, the applicant argued inter alia that the Minister was obliged to examine the application for a residence permit also in the light of Article 8 instead of restricting that examination to the proceedings relating to the request for a provisional residence visa. In the accompanying appeal in the procedure to deny him a provisional residence visa, the applicant argued that insufficient account had been taken of his wife’s psychological problems, that the Regional Court had failed to acknowledge that the original decision by the Minister of Foreign Affairs did not contain a proper balancing of the interests involved and that no weight had been given to the fact that the applicant and his wife were married. The applicant further submitted that no proper examination had been conducted of the question whether Article 8 entailed the existence of a positive obligation for the Dutch authorities in the present case. Furthermore the Regional Court had failed to conclude that the original decision did not contain a proper motivation as to why the applicant’s (suspended) sentences could lead to the conclusion that public order grounds carried more weight than the personal interests of the applicant and his ill wife, especially considering that the applicant had not re-offended since 16 February 2000. On 7 March 2007 the Council dismissed both appeals on summary grounds for not raising any points of law. It appears from the case file that the applicant’s wife has visited her husband in Iran a number of times. The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000 (Vreemdelingenwet 2000). Further rules are set out inter alia in the Aliens Decree 2000 (Vreemdelingenbesluit 2000). As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa. Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit. The Government pursue a restrictive immigration policy owing to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds. Pursuant to article 3.20 of the Aliens Decree 2000, a residence permit for the purposes of family reunion or family formation can be refused if the alien constitutes a threat to public order or national security. In this respect, article 3.77 paragraph 1 sub c of the Aliens Decree 2000 reads in its relevant part that a threat to public order exists when: “c. the alien has been convicted of a criminal offence and sentenced to either a nonsuspended prison sentence or custodial measure, a community service order or nonsuspended financial penalty, or if, in relation to a criminal offence, the alien has accepted an out-of-court settlement or if a punishment order has been issued against him by a public prosecutor.” Under the relevant provisions of the Criminal Code (Wetboek van Strafrecht), shoplifting attracts a prison sentence of up to four years (article 310), attempted aggravated assault, a prison sentence of up to 5 years and 4 months (article 311), destruction, a prison sentence of up to 2 years (article 350) and defamation, a prison sentence of up to 3 months (article 266).

train

001-72590

ENG

CZE

CHAMBER

CASE OF KRASNIKI v. THE CZECH REPUBLIC

Violation of Art. 6-1;Violation of Art. 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

8. The applicant was born in 1971 and lives in Skopje (“the former Yugoslav Republic of Macedonia”). 9. On 24 April 1997 the applicant was accused of having committed the offence of the unauthorised production and possession of narcotics and poisonous substances between January and April 1997, contrary to Article 187 § 1 of the Criminal Code as in force at the material time. 10. According to the Government, a witness using the fictitious name of “Jana Charvátová” was examined for the first time on 24 April 1997, having been contacted by the police in connection with their investigation into the applicant’s criminal activities. The witness stated, inter alia, that “she want[ed] to testify because she kn[ew] what heroin c[ould] do and that she want[ed] Teplice to be free of drug dealers” and that “for great fear for her own life she w[ould] testify provided that anonymity w[ould] be granted to her, because after the police had detained most of former dealers, the Yugoslavs threaten[ed] that if anybody w[ould] ‘rat’ on the dealers and they w[ould] find it, they w[ould] ‘annihilate’ him or her”. 11. The applicant stated that the record of the interview in his criminal file was not a statement signed by the witness, but a so-called official record (úřední záznam) drawn up and signed by the police officer afterwards. He further maintained that it was not clear from that record whether “Jana Charvátová” had been examined or whether the report had been drawn up before or after the applicant was charged. He contended that such a record could not be used as evidence for the prosecution. 12. In the course of the pre-trial proceedings the applicant denied his guilt, stressing that he was a heroin addict and that the drugs found in his possession were for his own use only. “Jana Charvátová” and another witness, using the fictitious name of “Jan Novotný”, were questioned by the Teplice District Investigation Office (okresní úřad vyšetřování) on 11 July 1997. The applicant’s lawyer attended the interview, the applicant not being present. Witness “Jana Charvátová” said: “... as for Hasan Krasniki, I am not familiar with his surname, I got in touch with him some time in the winter of last year ... my boyfriend, who is also a drug addict, sent me to see him. I wish to correct the facts concerning the individual named Hasan Krasniki. As I have already said, I am not familiar with his surname. I know, or more precisely, I remember the forename: my boyfriend sent me to Pikes in Trnovany and told me to find a certain Hasan in order to get 0.5 grams of heroin. ... As for Hasan, I was still buying narcotics ... from him ... last year. I do not remember seeing him since then. As for his description, I can say that he is about 170 cm tall, slim with short dark blond hair ... and I recall that he wore blue jeans and a dark jacket.” 13. In reply to a question put by the applicant’s lawyer, the witness said that she was giving evidence as an anonymous witness because she owed money for drugs. In reply to a question put by the investigating officer as to whether the persons to whom she owed money had ever threatened or beaten her, she replied that a Yugoslav to whom she had owed money for drugs had beaten her up and that there had been similar incidents. 14. She was shown a photograph album with ten photographs and was asked to examine them. She stated: “... I do not know the name of the person in photograph no. 5 ... I was buying narcotics from him ... in Pikes in Trnovany some time after Christmas ...; he then moved to Pikes near the railway station. It was some time in winter when I last saw him.” 15. In reply to a question put by the applicant’s lawyer, “Jana Charvátová” said that “Hasan” from whom she had bought heroin around Christmas 1996 was not among the individuals in the photographs. In reply to the investigating officer’s question as to whether she knew somebody called “Jura” or “Džura” and whether he was in any of the photographs, she answered: “I am not familiar with the name “Jura”, but rather Džuro. I have the impression that I was buying heroin from somebody like him; I’m sure I was buying heroin from him in Pikes in Trnovany; it was some time in winter, last year or this year, I do not know precisely. ... I think that must be him in photograph no. 1.” 16. According to the applicant, the chronology of the examination of “Jana Charvátová” was as follows: the witness was asked about Hasan Krasniki and therefore she started to speak about a person called Hasan first. She described him and, after that, she was shown the photograph album and then incidentally mentioned that she knew most of the persons shown in the photographs including the applicant. The official record of the interview stated that “Jana Charvátová” was questioned about Hasan Krasniki, alias “Jura” or “Džuro”, during the examination of 11 July 1997, and that she identified “Džuro” as being the individual in photograph number one. 17. Interviewed on the same day, witness “Jan Novotný” stated: “I know quite a lot of Yugoslavs and I can definitely speak about the person concerned - I know him by his nickname Džuro. I know that he was here about four years ago, then he left and reappeared some time at the beginning of this year. He was selling heroin for about three months in the Pikes gambling club in Trnovany; ... he moved to Pikes near the railway station for a while. I could buy 10 g of heroin altogether from him ... I last saw Džura three months ago, so some time in the second half of April or at the beginning of May ... As for his description, I can say that he was about 25 years old, some 170 cm tall, slim, with short dark blond hair. ...” 18. When presented with a photograph album, “Jan Novotný” stated: “I clearly recognise the person in photograph number five: it is Džura from whom I was buying heroin in the Pikes gambling club in Teplice, in Masarykova Street and near the railway station from the beginning of this year to about April or the beginning of May.” 19. The applicant’s lawyer asked the witness why he was so afraid and why he wished to remain anonymous. The witness stated that Yugoslavs were a temperamental people, that they had threatened him when he had wanted to buy drugs from someone else and that he had been concerned about the safety of his family. To the lawyer’s further question whether the person in photograph number five had ever threatened him, the witness replied in the negative. In reply to the lawyer’s last question, “Jan Novotný” said more precisely that he had bought heroin from the man in photograph number five after the New Year, most recently around mid-April. 20. The police case file was sent to the Teplice District Prosecutor’s Office (okresní státní zastupitelství), which on 12 September 1997 filed an indictment against the applicant with the Teplice District Court (okresní soud). The prosecutor charged the applicant with having distributed heroin in Teplice during the period between January 1997 and 23 April 1997, with having sold at least twenty packets each containing 0.5 grams of heroin to “Jan Novotný” and with having sold the same drug to “Jana Charvátová”. The prosecutor suggested that the two anonymous witnesses as well as witnesses K. and S. give evidence at the trial and that the police records on the photograph-based recognition of the applicant be read out. 21. On 18 November 1997 the applicant’s trial began in the District Court. The applicant entered a plea of not guilty. 22. The record of the hearing shows that, under Article 209 § 1 of the Code of Criminal Procedure (“the CCP”), the presiding judge heard the anonymous witness “Jan Novotný” outside the courtroom and out of sight of the applicant and his counsel, who were able to put questions to the witness through the presiding judge. The witness stated that the applicant was the person who had sold drugs to him and that he had bought heroin from the applicant some time in early 1997. In his testimony, the witness also stated that he was cured and was no longer addicted to any drug. In reply to several questions put by the applicant’s lawyer, the witness stated that the applicant had sold drugs some time ago. He had then disappeared and had started selling them again in 1997. He also said that he had been buying drugs from the applicant during a one-month period in 1997 and that he had seen him selling heroin to other people during the first three months of 1997. He described the applicant as a man of about 175-180 cm in height, slim, with straight dark hair. He added that, unlike at present, he had not been good at recalling the colour of hair at that time. In reaction to the anonymous witness’s testimony, the applicant claimed that it was not true. 23. The court then read out the witness statements of K. and S., an expert report and other written evidence. It adjourned the proceedings until 25 November 1997 with a view to summoning “Jana Charvátová”. 24. Another hearing was held on 9 December 1997. It was recorded that the investigating authorities had reported by telephone that, at the time of the hearing, “Jana Charvátová” could not be found at her home. The proceedings were therefore adjourned until 14 January 1998. The police were instructed to conduct a search to find out whether the witness was staying at her home address. 25. According to the record of the hearing of 14 January 1998, the District Court read out the police reports of 9 and 17 December 1997 on the unknown whereabouts of “Jana Charvátová”. In accordance with Article 211 § 2 (a) of the CCP, her witness statement from the pre-trial police records was read out. In reaction to the witness’s testimony, the applicant claimed that he had not been in the Czech Republic at the relevant time. 26. In a judgment given on the same day, the court found the applicant guilty of the unauthorised production and possession of narcotics and poisonous substances, and sentenced him to two years’ imprisonment, as well as expulsion from the Czech Republic for an unlimited period of time. It held that, from January 1996 to 23 April 1997, the applicant had been selling heroin in “small envelopes”. He had sold at least twenty “envelopes” of heroin to “Jan Novotný”, and on a number of occasions during this time he had also sold heroin to “Jana Charvátová”. 27. The applicant maintained that he had not been in the Czech Republic at the relevant time and that the drugs found in his possession had been for his personal use. 28. The District Court based its finding of guilt exclusively on the testimonies of the two anonymous witnesses. It stated that the confidentiality of their identities prior to their interview in order to safeguard their security was justified under Article 55 § 2 of the CCP, having regard to the seriousness of the offence at issue and the witnesses’ fear of testifying in open court. 29. The District Court stated that anonymous witness “Jan Novotný” had stated that he had bought at least twenty “envelopes” of heroin from the applicant and that he had recognised the latter from photographs, both in the pre-trial proceedings and at trial, as the person who had been selling heroin not only to him, but also to other persons. 30. As regards “Jana Charvátová”, the court referred to the police report stating that the witness could not be found at her place of residence and that the search for her had been unsuccessful. It mentioned that she had testified in the pre-trial proceedings in the presence of the applicant’s lawyer and had said that she had been buying heroin from the applicant, whom she had recognised from photographs. 31. The court also had regard to a photocopy of the applicant’s passport, finding that he had arrived in the Czech Republic on 17 March 1997 from Bulgaria. According to the expert psychiatric report, the applicant was, inter alia, a drug addict who should have been aware of the dangerousness of his criminal activity for society and could have controlled his conduct. An expert examination of the substance found on the applicant indicated that it was heroin. 32. The court, having assessed all the relevant evidence, held that the testimonies of the anonymous witnesses were trustworthy and consistent and that they incriminated the applicant. It also stated that the witness “Jan Novotný” had recognised the applicant in both the trial and pre-trial proceedings. It concluded that the evidence adduced by the applicant - the copy of his passport and a plane ticket showing that he was not in the Czech Republic for most of the period during which he was alleged to have committed the offence - was not sufficient to rebut the strength of the case against him. It seems that the court did not rely on the witness statements of K. and S. 33. On 2 February 1998 the applicant appealed, claiming that he had not committed any criminal offence and that the heroin found in his possession had been for his personal use only. He also challenged the District Court’s reliance on the testimonies of the anonymous witnesses whose statements had been misused to his detriment. The applicant further complained of the failure of both the investigating authorities and the District Court to resolve material contradictions in the statements of the anonymous witnesses. 34. On 9 March 1998 the Ústí nad Labem Regional Court (krajský soud) dismissed the applicant’s appeal, finding his objection to the use of anonymous testimony unsubstantiated. It noted that both anonymous witnesses had been interviewed in the pre-trial proceedings and that the statement of “Jana Charvátová” had been read out because she could not be located at her home address. The court further noted that witnesses K. and S. had refused to testify at trial. 35. The court found that, owing to the nature of the criminal activity, the witnesses had been recruited from among drug users and drug addicts, who were “much more vulnerable”. It concluded that the concerns which the two anonymous witnesses had expressed to the investigating authorities had resulted in the correct procedural steps being taken, in accordance with Article 55 § 2 of the CCP, including the decision to interview them under fictitious names. 36. As regards the inconsistency in the witnesses’ statements, the Regional Court stated that witness “Jana Charvátová” had recognised the applicant from the photographs as the person from whom she had bought heroin, but had not known his name. She had described a drug dealer whom she had known by the name “Hasan” and who had not corresponded to the description of the applicant. The court held that the testimony given by witness “Jan Novotný” had not been contradictory and that he had repeatedly described from whom, where and when he had bought heroin. He had usually seen the applicant in a smoke-filled gambling hall under subdued lighting and had not been concentrating on remembering details of the applicant’s appearance, but rather on obtaining drugs. The court held that his inability to describe the correct hair colour “did not play an important role”. It fully endorsed the District Court’s findings of fact and law. 37. On 6 May 1998 the applicant lodged a constitutional appeal (ústavní stížnost), claiming a violation of his rights as guaranteed by Article 6 § 3 (d) of the Convention. He alleged that there had been no legal basis for the use of the anonymous witness testimony and that the authorities had put the defence at a substantial disadvantage, contrary to the principle of equality of arms. He complained that his conviction had been based solely on the testimonies of anonymous witnesses. 38. On 3 March 1999 the Constitutional Court (Ústavní soud) dismissed the applicant’s appeal as unsubstantiated. It held that statements by anonymous witnesses could only be used in evidence if the principle of subsidiarity was observed, namely if there were no other means of ensuring the safety of a witness and any limitation on the rights of the defence had been minimised. The court recognised that there was a conflict between, on the one hand, the constitutional right to defend oneself and, on the other hand, the need to protect the health and life of witnesses. It held that this conflict could be resolved only on the basis of the principle of proportionality. 39. The Constitutional Court did not accept the applicant’s allegation that the anonymous witness procedure had been misused to his detriment. It held that, to the extent that defence rights might found that, according to official police records, the two anonymous witnesses had been interviewed in the presence of the applicant’s lawyer, who had had the opportunity to question them. The court concluded that, having regard to the photograph-based recognition of the applicant before the pre-trial authorities, as well as before the trial court, no doubt could be cast on the legality and fairness of the proceedings. It held that any disadvantages under which the defence might have operated did not give rise to a question of unconstitutionality, as it was the content of the witnesses’ evidence rather than their identity that was relevant, notwithstanding the fact that the courts had not provided sufficient reasons for having adopted the procedure laid down in Articles 55 and 209 of the CCP. 40. On 18 April 2005 the Minister of Justice lodged a complaint in the applicant’s favour, alleging a breach of law (stížnost pro porušení zákona). He based his complaint on the following grounds: “... [the courts] did not sufficiently offer the necessary guarantees to ensure a fair trial as [the applicant’s] lawyer could not see both anonymous witnesses during their interviews in order to learn their identity, the prosecuting authorities did not examine the question whether it was necessary to conceal the identity of the witnesses, before the decision to conceal the identity of the witnesses was taken, the defence was never given an opportunity to raise objections concerning their credibility or the justification of the alleged threats against them which might justify their anonymity, the courts did not specify ... that they knew the true identity of both witnesses and found that the accused represented a serious threat to the life and liberty of both anonymous witnesses, [the applicant’s] lawyer could not verify the credibility of the anonymous witnesses and their statements, and the courts did not do so either, inadequate conditions during the identification of the accused from photographs deprived the witnesses of their credibility, and the conviction of the accused was based exclusively on the statements of the anonymous witnesses.” 41. In a decision of 31 May 2005 the Supreme Court (Nejvyšší soud) dismissed the complaint, relying on and sharing the legal opinions of the Constitutional Court. It added that Article 55 § 2 of the CCP did not provide for the right of counsel to see anonymous witnesses and to be informed of their identity. The Minister’s two specific arguments in this connection had therefore been submitted contra legem. 42. Article 187 § 1 provided that anyone who manufactured, imported, exported, transported, or kept or acquired for a third party, narcotics or poisonous substances, without authorisation, would be punished by imprisonment of up to three years or by a fine. 43. Under Article 55 § 2 of the CCP, where the circumstances indicated that a witness or a person close to the witness ran an obvious risk of bodily harm or other serious danger of interference with his/her fundamental rights in testifying, and when it was not possible to ensure the effective protection of the witness in another manner, the authorities were required to take measures to prevent the visual identification of the witness. The witness’s name and surname as well as his/her other particulars were not recorded in the statement, but were kept separate from the criminal file and known only to the authorities. The witness had to be informed of the right to have one’s identity concealed and to sign the statement using a fictitious forename and surname, by which the person would subsequently be identified. If the reasons for concealing the witness’s identity and for separating the witness’s particulars ceased to exist, that information would be attached to the criminal file and the witness’s identity would no longer be concealed. 44. Under Article 209 § 1, the president of the division was to ensure that any witness who had not yet testified did not attend the interview of the defendant or of other witnesses. If there was any doubt that the witness would not testify truthfully in the presence of the defendant, or if the witness or persons close to him or her were at risk of bodily harm, death or any other serious danger, the president of the division was required to take appropriate measures to ensure the safety or to conceal the identity of the witness, or to order the defendant to leave the courtroom while the witness was being questioned. However, once having returned to the courtroom, the defendant had to be informed of the content of the witness’s testimony and be given the opportunity to comment on it, and, without meeting the witness in person, might put questions to the witness through the president of the chamber. When the witness’s identity was to remain confidential, the president of the chamber was required to take measures in order to prevent the true identity of the witness being revealed. 45. Article 209 § 2 provided that when a witness whose identity had been concealed was examined at trial, the court, acting of its own motion, was required to take all necessary steps with a view to verifying the witness’s credibility. 46. Article 101 § 1 provided, inter alia, that prior to examination, the identity of a witness and his or her relationship to the accused, if any, had to be ascertained. The witness was to be advised that he or she had the right to refuse to give testimony and, if need be, to proceed under Article 55 § 2. The witness was also to be warned to tell the truth and nothing but the truth. At the same time, instructions had to be given on the importance of the testimony with regard to the general interest and on the criminal law consequences of perjury. The second paragraph provided, inter alia, that at the beginning of the examination, the witness would be asked about his or her connection with the case at issue and any relationship to the parties and, if need be, about other circumstances that might be important for ascertaining his or her reliability. 47. The plenary assembly of the Constitutional Court declared unconstitutional the version of Articles 55 § 2 and 209 of the CCP then in force. It held that the criteria for assessing whether the use of anonymous witnesses was constitutional and in line with the principle of subsidiarity were as follows: first, anonymity may only be granted if the witness cannot be provided with reliable protection in any other way; secondly, any constraints on the exercise of the rights of the defence resulting from the hearing of evidence from anonymous witnesses must be kept to a minimum. 48. In this case, the court found the criminal proceedings unfair because the appellant’s identification had been based on photograph albums alone and the witness had not described the appellant prior to the identification procedure. Concerning the use of anonymous witnesses, the Constitutional Court concluded that the trial court had not verified the credibility of the witnesses as required by Article 209 § 2 of the CCP. The trial court had only declared that the witnesses had no “outstanding accounts” with the appellant and hence there was no reason for them to take revenge against him and to incriminate him falsely. Such a declaration could not in itself mean that the trial court had complied with Article 209 § 2 of the CCP. It should have examined and verified the relationship between the witnesses and the appellant, checked the latter’s objections to their credibility and produced all necessary evidence, for example the full transcript of the criminal records of the witnesses, the reports of the local police and administrative authorities on the reputation of the witnesses, and the expert psychological reports on the witnesses, under Article 118 of the CCP. The Constitutional Court quashed the decisions of both the trial and appellate courts. 49. The Appendix to Recommendation No. R (97) 13 of the Committee of Ministers of the Council of Europe, concerning the intimidation of witnesses and the rights of the defence, includes the following passage: “...11. Anonymity should only be granted when the competent judicial authority, after hearing the parties, finds that: – the life or freedom of the person involved is seriously threatened or, in the case of an undercover agent, his/her potential to work in the future is seriously threatened; and – the evidence is likely to be significant and the person appears to be credible. 12. Where appropriate, further measures should be available to protect witnesses giving evidence, including preventing the identification of the witness by the defence, for example by using screens, disguising the face or distorting the voice. 13. When anonymity has been granted, the conviction shall not be based solely or to a decisive extent on the evidence of such persons. 14. Where appropriate, special programmes, such as witness protection programmes, should be set up and made available to witnesses who need protection. The main objective of these programmes should be to safeguard the life and personal security of witnesses, their relatives and other persons close to them. 15. Witness protection programmes should offer various methods of protection; this may include giving witnesses and their relatives and other persons close to them a change of identity, relocation, assistance in obtaining new jobs, providing them with bodyguards and other physical protection. 16. Given the prominent role that collaborators of justice play in the fight against organised crime, they should be given adequate consideration, including the possibility of benefiting from measures provided by witness protection programmes. Where necessary, such programmes may also include specific arrangements such as special penitentiary regimes for collaborators of justice serving a prison sentence.” 50. Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at the domestic level following judgments of the European Court of Human Rights, adopted by the Committee of Ministers of the Council of Europe on 19 January 2000, provides as follows: “... Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”); Noting that under Article 46 of the Convention on Human Rights and Fundamental Freedoms (“the Convention”) the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights (“the Court”) in any case to which they are parties and that the Committee of Ministers shall supervise its execution; Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum); Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system; Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum; I. Invites, in the light of these considerations, the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum; II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.”

train

001-89025

ENG

UKR

ADMISSIBILITY

SHYTIK v. UKRAINE

Inadmissible

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

The applicant, Ms Klara Nikolayevna Shytik, is a Ukrainian national who was born in 1937 and lives in Bratske, the Mykolayiv Region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. In December 2001 the applicant instituted civil proceedings against Mrs G.N., her neighbour, seeking damages for the latter's having hit her on the head with a stick and caused her light bodily injuries. At the hearing the court examined the parties and four witnesses. The applicant argued that the defendant had started hitting her in response to a reprimand for allowing her turkeys to graze in the applicant's garden. The defendant acknowledged having had an argument with the applicant, but denied hitting her. She submitted that, on the contrary, the applicant had hit and scratched her, and had torn her jacket. One witness, Mrs T.N., claimed to have seen the defendant hitting the applicant on the head. Another witness, Mrs G.P., claimed that it had been the applicant who had hit the defendant with a shovel, and that the defendant had not harmed her. Mr K.N., the applicant's husband, was unable to explain who started the fight; however, he claimed to have seen the defendant hit his wife. Finally, Mr E.N., the defendant's husband, submitted that he had learned about the fight from his wife. On 18 February 2002 the Bratskе Court (Місцевий суд Братського району Миколаївської області) partly allowed the applicant's claim for damages. Mrs G.N. appealed before the Mykolayiv Regional Court of Appeal (Апеляційний суд Миколаївської області). According to the Government, the Regional Court duly notified the applicant that the hearing in her case was scheduled for 10 April 2002. In support of this argument the Government presented a copy of page 43 of the case-file, containing an acknowledgement slip for a summons addressed by the Regional Court to the applicant's home address, which included the following text: “the summons [was] received [on] 4 April 2002; delivered for handing over to Shytik”. The date and the applicant's last name are handwritten, while the remainder of the text is preprinted. According to the postmarks on the document, it was despatched from Mykolayiv on 29 March 2002 and sent back from Bratske on 5 April 2002. According to the applicant, she never received the above notification and therefore failed to appear at the hearing. On 10 April 2002 the Regional Court decided to hold the hearing in the applicant's absence, noting that she had been duly notified of its date and time. It heard the defendant, who repeated the version of events submitted to the first-instance court. No questions were asked of her. Lastly, the court examined documentary evidence submitted to the first-instance court. According to the minutes of the hearing, contained on pages 45 to 48 of the case-file, it started at 12:55 and finished at 13:20 with the delivery of a new judgment, by which the applicant's claims were dismissed. The Regional Court found that the District Court had erred in assessing the evidence. In particular, the submissions of Mrs T.N., the only witness in the applicant's favour, were inconsistent, as she had testified that the incident had happened on a different date. The statements by the other witnesses were insufficient to prove that the defendant had assaulted the applicant rather than defended herself. On 23 May 2002 the applicant appealed in cassation. Her only complaint was that she had been unlawfully deprived of an opportunity to attend the hearing on appeal, as the case-file materials contained no proof that the summons had been served on her. On 11 September 2002 the Supreme Court of Ukraine rejected the applicant's request for leave to appeal in cassation.

train

001-101647

ENG

HUN

CHAMBER

CASE OF DEES v. HUNGARY

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

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

5. The applicant was born in 1950 and lives in Alsónémedi. 6. It appears that from early 1997 the volume of cross-town traffic in Alsónémedi increased, since a toll had been introduced on the neighbouring, privately owned motorway M5. In order to avoid the rather high toll charge, many trucks chose alternative routes including the street (a section of national road no. 5201) in which the applicant's house is situated. 7. To counter this situation, from 1998 onwards three bypass roads were built; and several measures, including a 40 km/h speed limit at night, were implemented in order to discourage traffic in the neighbourhood. Two nearby intersections were provided with traffic lights. In 2001 road signs prohibiting the access of vehicles of over 6 tons and re-orientating traffic were put up along an Alsónémedi thoroughfare, an arrangement which also affected the applicant's street. The Government submitted that compliance with these measures had been enforced by the increased presence of the police in general in Alsónémedi and in particular in the applicant's street; in the applicant's view, however, no effective enforcement was in place. 8. In or about 1997 the applicant observed damage to the walls of his house. He obtained the opinion of a private expert, who stated that the damage was due to vibrations caused by the heavy traffic. The applicant also alleges that, because of the increased noise and pollution due to exhaust fumes, his home has become almost uninhabitable. 9. On 23 February 1999 the applicant brought an action in compensation against the Pest County State Public Road Maintenance Company before the Buda Central District Court. He claimed that, due to increased freight traffic in his street, the walls of his house had cracked. The case was transmitted to the Budapest Regional Court for reasons of competence on 11 March 1999. On 11 November, 16 December 1999 and 30 March 2000, the court held hearings. On 6 April 2000 it dismissed the claims. 10. On appeal, the Supreme Court, acting as a second-instance court, held a hearing on 30 January 2002, quashed the first-instance judgment and remitted the case. 11. In the resumed proceedings, on 2 June 2002 the Regional Court appointed as expert the Department of Road Construction at Budapest Technical University. The latter presented an opinion on 20 January 2004 which was discussed at the hearing of 29 April 2004. The expert stated that the level of noise outside the applicant's house had been measured as 69.0 dB(A) on 5 May and 67.1 dB(A) on 6 May 2003, daytime on both occasions, as opposed to the applicable statutory limit of 60 dB(A). On 10 June 2004 the court held another hearing and ordered the supplementation of the opinion, which was done on 15 September 2004. 12. On 17 February 2005 the Regional Court dismissed the applicant's claims. It relied on the opinion of the expert, documentary evidence and the testimony of the parties. It refused the applicant's motion to obtain the opinion of another expert since it was of the view that the original opinion was thorough and precise. 13. The court noted the expert's opinion that the vibration, as measured on the scene, was not strong enough to cause damage to the applicant's house, nor could the traffic noise entail cracks in its walls although it was higher than the statutory level. The court therefore concluded that no causal link could be established between the measures adopted by the respondent authority and the damage to the house. The court observed that the respondent had spent more than one billion Hungarian forints on developing the road system in the area, constructed four roundabouts and put up several road signs and traffic lights in order to divert traffic from Alsónémedi. In sum, it had carried out every measure with a view to sparing Alsónémedi from heavy traffic and limiting the speed of cross-town traffic that could reasonably be expected in the circumstances to protect the applicant's interest. The respondent had to balance competing interests, since the barring of heavy vehicles from a public road might have been advantageous to the inhabitants of Alsónémedi but could have caused disproportionate prejudice to the other users or providers of public and private transportation. 14. On 15 November 2005 the Budapest Court of Appeal dismissed the applicant's appeal.

train

001-113118

ENG

CHE

GRANDCHAMBER

CASE OF NADA v. SWITZERLAND

Preliminary objections dismissed (Article 35-3 - Ratione personae);Preliminary objections dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life)

Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Giorgio Malinverni;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Kristina Pardalos;Mihai Poalelungi;Nicolas Bratza;Sverre Erik Jebens

11. The applicant was born in 1931 and has been living since 1970 in Campione d’Italia, which is an Italian enclave of about 1.6 sq. km in the Province of Como (Lombardy), surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano. 12. He describes himself as a practising Muslim and a prominent businessman in the financial and political world, in which he purports to be highly regarded. An engineer by training, he has worked in very diverse sectors, in particular banking, foreign trade, industry and real estate. In the course of his business activities, he founded numerous companies of which he was the sole or principal shareholder. 13. In his submission, he is opposed to all uses of terrorism and has never had any involvement with al-Qaeda. On the contrary, he has consistently denounced not only the means used by that organisation, but also its ideology. 14. The applicant has further indicated that he has only one kidney that is still functioning properly (the other having deteriorated in recent years). He also suffers from bleeding in his left eye, as shown by a medical certificate of 20 December 2001, and arthritis in the neck. In addition, according to a medical certificate issued by a doctor in Zürich on 5 May 2006, he sustained a fracture in his right hand which was due to be operated on in 2004. The applicant has alleged that, because of the restrictions imposed on him which gave rise to the present application, he was unable to undergo this operation and has continued to suffer from the consequences of the fracture. 15. On 15 October 1999, in response to the 7 August 1998 bombings by Osama bin Laden and members of his network against the US embassies in Nairobi (Kenya) and Dar es Salaam (Tanzania) the Security Council of the United Nations (adopted, under Chapter VII of the United Nations Charter, Resolution 1267 (1999), providing for sanctions against the Taliban (see paragraph 70 below) and created a committee consisting of all the members of the Security Council to monitor the enforcement of that Resolution (“the Sanctions Committee”). 16. On 2 October 2000, to implement that Resolution, the Swiss Federal Council (the federal executive) adopted an Ordinance “instituting measures against the Taliban” (“the Taliban Ordinance” – see paragraph 66 below), which subsequently underwent a number of amendments, including to its title. 17. By Resolution 1333 (2000) of 19 December 2000 (see paragraph 71 below), the Security Council extended the sanctions regime. It was now also directed against Osama bin Laden and the al-Qaeda organisation, as well as the Taliban’s senior officials and advisers. In both Resolutions 1267 (1999) and 1333 (2000), the Security Council requested the Sanctions Committee to maintain a list, based on information provided by States and regional organisations, of individuals and entities associated with Osama bin Laden and al-Qaeda. 18. On 11 April 2001 the Swiss government amended the Taliban Ordinance in order to implement Resolution 1333 (2000). It added a new Article 4a, paragraph 1 of which prohibited entry into and transit through Switzerland for the individuals and entities concerned by the Resolution (but without naming them). 19. On 24 October 2001 the Federal Prosecutor opened an investigation in respect of the applicant. 20. On 7 November 2001 the President of the United States of America blocked the assets of Al Taqwa Bank, of which the applicant was the Chairman and principal shareholder. 21. On 9 November 2001 the applicant and a number of organisations associated with him were added to the Sanctions Committee’s list. On 30 November 2001 (or 9 November according to the applicant’s observations), their names were added to the list in an annex to the Taliban Ordinance. 22. On 16 January 2002 the Security Council adopted Resolution 1390 (2002), introducing an entry-and-transit ban in respect of “individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000)” (see paragraphs 70-71 and 74 below). On 1 May 2002 Article 4a of the Taliban Ordinance was amended accordingly: the entry-and-transit ban applied henceforth to all individuals named in Annex 2 to the Ordinance, including the applicant. 23. On 10 September 2002 Switzerland became a member of the United Nations. 24. When he visited London in November 2002, the applicant was arrested and removed to Italy, his money also being seized. 25. On 10 October 2003, following criticism by the Monitoring Group for the application of the sanctions (see paragraph 72 below), the Canton of Ticino revoked the applicant’s special border-crossing permit. The Monitoring Group had observed, in the course of its inquiry into the applicant’s activities, that he was able to move relatively freely between Switzerland and Italy. In the Government’s submission, it was only from this time onwards that the applicant was actually affected by the entry-and-transit ban. 26. On 27 November 2003 the Swiss Federal Office of Immigration, Integration and Emigration (IMES) informed the applicant that he was no longer authorised to cross the border. 27. On 23 March 2004 the applicant lodged a request with the IMES for leave to enter or transit through Switzerland for the purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy. The IMES dismissed that request on 26 March 2004 as being ill-founded. Moreover, it indicated to the applicant that the grounds put forward in support of his request, namely, the need to consult his lawyers and receive treatment and, secondly, the specific situation related to his residence in Campione d’Italia, were not such as to permit the authorities to grant him an exemption from the measure taken against him. 28. By a decision of 27 April 2005, the Federal Criminal Court ordered the Federal Prosecutor either to discontinue the proceedings or to send the case to the competent federal investigating judge by 31 May 2005. By an order of that date the Federal Prosecutor, finding that the accusations against the applicant were unsubstantiated, closed the investigation in respect of the applicant. 29. On 22 September 2005 the applicant requested the Federal Council to delete his name and those of the organisations associated with him from the annex to the Taliban Ordinance. He argued, in support of his claim, that the police investigation concerning him had been discontinued by a decision of the Federal Prosecutor and that it was therefore no longer justified to subject him to sanctions. 30. By a decision of 18 January 2006, the State Secretariat for Economic Affairs (SECO) rejected his request on the ground that Switzerland could not delete names from the annex to the Taliban Ordinance while they still appeared on the United Nations Sanctions Committee’s list. 31. On 13 February 2006 the applicant lodged an administrative appeal with the Federal Department of Economic Affairs (“the Department”). 32. By a decision of 15 June 2006, the Department dismissed that appeal. It confirmed that the deletion of a name from the annex to the Ordinance could be envisaged only once that name had been deleted from the Sanctions Committee’s list, and explained that, for this purpose, it was necessary for the State of citizenship or residence of the person concerned to apply for delisting to the United Nations institutions. As Switzerland was neither the applicant’s State of citizenship nor his State of residence, the Department found that the Swiss authorities were not competent to initiate such a procedure. 33. On 6 July 2006 the applicant appealed to the Federal Council against the Department’s decision. He requested that his name and those of a certain number of organisations associated with him be deleted from the list in Annex 2 to the Taliban Ordinance. 34. On 20 September 2006 the Federal Office for Migration (FOM), which had been created in 2005, incorporating the IMES, granted the applicant an exemption for one day, 25 September 2006, so that he could go to Milan for legal proceedings. The applicant did not make use of that authorisation. 35. On 6 April 2007 the applicant sent to the “focal point” of the Sanctions Committee – a body set up by Resolution 1730 (2006) to receive requests for delisting from individuals or entities on the Sanctions Committee’s lists (see paragraph 76 below) – a request for the deletion of his name from the relevant list. 36. By a decision of 18 April 2007 the Federal Council, ruling on the appeal of 6 July 2006, referred the case to the Federal Court, finding that the applicant had been subjected to direct restrictions on his right to enjoy his possessions; also that Article 6 of the European Convention on Human Rights consequently applied to his request for deletion from the annex to the Taliban Ordinance, and that, accordingly, the case had to be examined by an independent and impartial tribunal. 37. In its observations, the Department submitted that the appeal should be dismissed, pointing out that Security Council Resolution 1730 (2006) of 19 December 2006 allowed persons and organisations whose names appeared on the Sanctions Committee’s list to apply for delisting on an individual basis rather than through their State of citizenship or residence. 38. The applicant maintained his submissions. Moreover, he alleged that on account of the FOM’s evident reluctance to grant exemptions under Article 4a § 2 of the Taliban Ordinance, he could not leave his home in Campione d’Italia despite the lack of adequate medical facilities there, or even go to Italy for administrative or judicial reasons, and that he had therefore effectively spent the past years under house arrest. The addition of his name to the Sanctions Committee’s list was also tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case. Furthermore, he argued that the listing, without any justification or any possibility for him to be heard beforehand, breached the principles of prohibition of discrimination, individual freedom, enjoyment of possessions and economic freedom, together with the right to be heard and the right to a fair trial. Lastly, taking the view that the Security Council’s sanctions were contrary to the United Nations Charter and to the peremptory norms of international law (jus cogens), he argued that Switzerland was not obliged to implement them. 39. By a decision of 11 May 2007, in which it indicated the remedy available, the FOM dismissed a new exemption request by the applicant. By a decision of 12 July 2007, once again indicating the available remedies, it refused to examine a letter from the applicant that it regarded as a request for review. In a letter of 20 July 2007, the applicant explained that there had been a misunderstanding and that his previous letter had in fact been a new request for exemption. On 2 August 2007 the FOM again rejected his request, reminding him that he could challenge the decision by lodging an appeal with the Federal Administrative Court. The applicant did not appeal against the decision. 40. On 29 October 2007 the focal point for delisting requests denied the applicant’s request of 6 April 2007 to have his name removed from the Sanctions Committee’s list (see paragraph 35 above). On 2 November 2007 the focal point also rejected a request for information concerning the country that had designated him for listing and the reasons for that designation, invoking the confidentiality of the process. Lastly, in letters of 19 and 28 November 2007 the focal point reaffirmed the confidentiality of the process, but nevertheless informed the applicant that a State whose identity could not be disclosed had opposed his delisting. 41. By a judgment of 14 November 2007 the Federal Court, to which the Federal Council had referred the applicant’s appeal (see paragraph 36 above), declared that appeal admissible but dismissed it on the merits. 42. It firstly pointed out that, under Article 25 of the United Nations Charter, the United Nations member States had undertaken to accept and carry out the decisions of the Security Council in accordance with the Charter. It then observed that under Article 103 of the Charter the obligations arising from that instrument did not only prevail over the domestic law of the member States but also over obligations under other international agreements, regardless of their nature, whether bilateral or multilateral. It further stated that this primacy did not relate only to the Charter but extended to all obligations which arose from a binding resolution of the Security Council. 43. The Federal Court observed, however, that the Security Council was itself bound by the Charter and was required to act in accordance with its purposes and principles (Article 24 § 2 of the Charter), which included respecting human rights and fundamental freedoms (Article 1 § 3 of the Charter). At the same time, it took the view that the member States were not permitted to avoid an obligation on the ground that a decision (or resolution) by the Security Council was substantively inconsistent with the Charter, in particular decisions (resolutions) based on Chapter VII thereof (action with respect to threats to the peace, breaches of the peace and acts of aggression). 44. The Federal Court then observed that under Article 190 of the Federal Constitution (see paragraph 65 below), it was bound by federal laws and international law. It took the view that the applicable international law, in addition to international treaties ratified by Switzerland, also included customary international law, general principles of law and the decisions of international organisations which were binding on Switzerland, including the Security Council’s decisions concerning the sanctions regime. 45. However, it observed that Article 190 of the Constitution contained no rules on how to settle possible conflicts between different norms of international law which were legally binding on Switzerland, and that in the present case there was such a conflict between the Security Council’s decisions on the one hand and the guarantees of the European Convention on Human Rights and the International Covenant on Civil and Political Rights on the other. It took the view that unless the conflict could be resolved by the rules on the interpretation of treaties, it would be necessary, in order to settle the issue, to look to the hierarchy of international legal norms, according to which obligations under the United Nations Charter prevailed over obligations under any other international agreement (Article 103 of the Charter, taken together with Article 30 of the Vienna Convention on the Law of Treaties; see paragraphs 69 and 80 below). The Federal Court was of the opinion that the uniform application of United Nations sanctions would be endangered if the courts of States Parties to the European Convention or the International Covenant on Civil and Political Rights were able to disregard those sanctions in order to protect the fundamental rights of certain individuals or organisations. 46. The court nevertheless accepted that the obligation to implement the Security Council’s decisions was limited by norms of jus cogens. Accordingly, it considered itself bound to ascertain whether the sanctions regime set up by the Security Council was capable of breaching the peremptory norms of international law, as the applicant had claimed. 47. The Federal Court then cited, as examples of jus cogens norms, the right to life, protection from torture and inhuman or degrading treatment, the prohibition of slavery, the prohibition of collective punishment, the principle of individual criminal responsibility and the non-refoulement principle. It took the view, however, that the enjoyment of possessions, economic freedom, the guarantees of a fair trial or the right to an effective remedy did not fall within jus cogens. 48. As regards the consequences for the applicant of the measures taken against him, in particular the ban on entry into and transit through Switzerland, the Federal Court found as follows: “7.4 ... These sanctions include far-reaching commercial restrictions for those affected; the funds necessary for their survival are not, however, blocked (see Resolution 1452 (2002), paragraph 1(a)), as a result of which there is neither any threat to their life or health nor any inhuman or degrading treatment. The travel ban restricts the freedom of movement of those concerned but in principle represents no deprivation of liberty: they are free to move around within their country of residence (see, however, point 10.2 below regarding the appellant’s particular situation); journeys to their home country are also specifically permitted (see Resolution 1735 (2006), paragraph 1(b)). ...” 49. The Federal Court further indicated that, generally speaking, sanctions were decided by the Security Council without individuals or organisations being afforded the opportunity to comment either in advance or afterwards or to appeal against them before international or national courts. It mentioned in this connection that, in particular under the terms of Resolution 1730 (2006), the delisting procedure allowing individuals to have direct access to the Sanctions Committee already represented substantial progress, even though the system still had considerable shortcomings from the point of view of human rights. 50. The Federal Court then examined the question of the extent to which Switzerland was bound by the relevant resolutions, in other words whether it had any latitude (Ermessensspielraum) in implementing them: “8.1 The Security Council adopted Resolution 1267 (1999) and the subsequent Resolutions regarding sanctions affecting al-Qaeda and the Taliban on the basis of Chapter VII of the United Nations Charter, with the express obligation on all member States to adopt an integral and strict approach to implementing the sanctions envisaged therein, ignoring any existing rights and obligations under international agreements or contracts (see paragraph 7 of Resolution 1267 (1999)). The sanctions (freezing of assets, entry-and-transit ban, arms embargo) are described in detail and afford member States no margin of appreciation in their implementation. The names of those affected by the sanctions are also indicated to the member States: this is determined by the list drawn up and maintained by the Sanctions Committee (see paragraph 8(c) of Resolution 1333 (2000)). As regards the possibility of obtaining deletion from the list, the Sanctions Committee has introduced a specific procedure (see paragraphs 13 et seq. of Resolution 1735 (2006) and the directives of the Sanctions Committee dated 12 February 2007). The member States are thus debarred from deciding of their own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee’s list. Switzerland would therefore be in breach of its obligations under the Charter were it to delete the names of the appellant and his organisations from the annex to the Taliban Ordinance. ... 8.3 In view of the foregoing, Switzerland is not permitted, of its own motion, to delete the appellant’s name from Annex 2 to the Taliban Ordinance. It is to be admitted that in this situation no effective remedy is available to the appellant. The Federal Court may certainly examine whether and to what extent Switzerland is bound by the Resolutions of the Security Council, but it is not permitted to remove the sanctions against the appellant on the ground that they breach his fundamental rights. The Sanctions Committee alone is responsible for the delisting of persons or entities. In spite of the improvements mentioned above, the delisting procedure fails to meet both the requirement of access to a court under Article 29a of the Federal Constitution, Article 6 § 1 of the [Convention] and Article 14 § 1 of the United Nations Covenant on Civil and Political Rights, and that of an effective remedy within the meaning of Article 13 of the [Convention] and Article 2 § 3 of the United Nations Covenant ...” 51. The Federal Court further examined whether Switzerland, even if it were not authorised to delete the applicant’s name from the list on its own initiative, was nevertheless at least obliged to assist him in connection with the delisting procedure. Its reasoning was as follows: “9.1 The lower courts examined whether Switzerland was obliged to initiate the delisting procedure on behalf of the appellant. In the meantime, this issue has become irrelevant as, since the amendment of the delisting procedure, the appellant has been able to make an application himself and has indeed availed himself of this opportunity. 9.2 For his application to be successful he nevertheless relies on the support of Switzerland, since this is the only country to have conducted a comprehensive preliminary investigation, with numerous letters of request, house searches and questioning of witnesses. United Nations member States are obliged to prosecute persons suspected of financing or supporting terrorism (see paragraph 2(e) of Security Council Resolution 1373 (2001)) ... On the other hand, should the criminal proceedings end in an acquittal or be discontinued, this should lead to the removal of the preventive sanctions. Admittedly, the country which has conducted the criminal proceedings or preliminary investigation cannot itself proceed with the deletion, but it can at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting.” 52. Lastly, the Federal Court examined whether the travel ban enforced under Article 4a of the Taliban Ordinance extended beyond the sanctions introduced by the Security Council Resolutions and whether the Swiss authorities thus had any latitude in that connection. The court found as follows: “10.1 Article 4a § 1 of the Taliban Ordinance prohibits the individuals listed in Annex 2 from entering or transiting through Switzerland. Article 4a § 2 provides that, in agreement with the United Nations Security Council decisions or for the protection of Swiss interests, the Federal Office for Migration is entitled to grant exemptions. According to the Security Council Resolutions, the travel ban does not apply if the entry or transit is required for the fulfilment of a judicial process. In addition, exemptions can be granted in individual cases with the agreement of the Sanctions Committee (see paragraph 1(b) of Resolution 1735 (2006)). This includes in particular travel on medical, humanitarian or religious grounds ... 10.2 Article 4a § 2 of the Taliban Ordinance is formulated as an ‘enabling’ provision and gives the impression that the Federal Office for Migration has a certain margin of appreciation. Constitutionally however, the provision is to be interpreted as meaning that an exemption should be granted in all cases where the United Nations sanctions regime so permits. A more far-reaching restriction on the appellant’s freedom of movement could not be regarded as based on the Security Council Resolutions, would not be in the public interest and would be disproportionate in the light of the appellant’s particular situation. The appellant lives in Campione, an Italian enclave in Ticino, with an area of 1.6 sq. km. As a result of the ban on entry into and transit through Switzerland, he is unable to leave Campione. Practically speaking, as the appellant correctly argued, this is tantamount to house arrest and thus represents a serious restriction on his personal liberty. In these circumstances the Swiss authorities are obliged to exhaust all the relaxations of the sanctions regime available under the United Nations Security Council Resolutions. The Federal Office for Migration thus has no margin of appreciation. Rather, it must examine whether the conditions for the granting of an exemption are met. Should the request not fall within one of the general exemptions envisaged by the Security Council, it must be submitted to the Sanctions Committee for approval. 10.3 The question whether the Federal Office for Migration has disregarded the constitutional requirements in dealing with the appellant’s applications for leave to travel abroad does not need to be examined here: the relevant orders of the Federal Office have not been challenged by the appellant and are not a matter of dispute in the present proceedings. The same applies to the question whether the appellant should have moved his place of residence from the Italian enclave of Campione to Italy. To date the appellant has made no such request.” 53. Following the Federal Court’s judgment, the applicant wrote to the FOM to request it to re-examine the possibility of applying general exemptions to his particular situation. On 28 January 2008 he lodged a new request seeking the suspension of the entry-and-transit ban for three months. By a letter of 21 February 2008, the FOM denied that request, stating that it was unable to grant a suspension for such a long period without referring the matter to the Sanctions Committee, but that it could grant one-off safe conducts. The applicant did not challenge that decision. 54. On 22 February 2008, at a meeting between the Swiss authorities and the applicant’s representative on the subject of the support that Switzerland could provide to the applicant in his efforts to obtain his delisting, a representative of the Federal Department of Foreign Affairs observed that the situation was rather singular as the applicant, on the one hand, was asking what support the Swiss authorities could give him in the United Nations delisting procedure and, on the other, had brought a case against Switzerland before the Court. During the meeting the applicant’s representative explained that he had received verbal confirmation from the FOM to the effect that his client would be granted one-off authorisations to go to Italy, in order to consult his lawyer in Milan. The representative of the Federal Department of Foreign Affairs also indicated that the applicant could ask the Sanctions Committee for a more extensive exemption on account of his particular situation. However, she also repeated that Switzerland could not itself apply to the Sanctions Committee for the applicant’s delisting. She added that her government would nevertheless be prepared to support him, in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued. The applicant’s lawyer replied that he had already received a letter attesting to the discontinuance in favour of his client and that this letter was sufficient. As to the applicant’s requests to the Italian authorities with a view to obtaining their support in a delisting procedure, the Federal Department’s representative suggested that the lawyer contact the Italian Permanent Mission to the United Nations, adding that Italy had, at that time, a seat on the Security Council. 55. The Government informed the Court that in April 2008 an Egyptian military tribunal had sentenced the applicant in absentia to ten years’ imprisonment for providing financial support to the Muslim Brotherhood organisation (see the article on this subject in the daily newspaper Corriere del Ticino of 16 April 2008). The applicant did not dispute the fact that he had been convicted but argued that he had never been informed of the proceedings against him and that he had therefore never had the possibility of defending himself in person or through the intermediary of a lawyer. For those reasons, and also taking into account the fact that the trial was held before a military tribunal even though he was a civilian, he claimed that the proceedings in question were clearly in breach of Article 6. 56. On 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the case against him in Italy had been dismissed. The Committee denied that request by a decision of 15 July 2008. In the applicant’s submission, the Committee had not allowed him to submit his observations to it beforehand. 57. On 11 September 2008 the FOM granted the applicant the right to enter Switzerland and to remain in the country for two days, but the applicant did not make use of this authorisation. 58. By a letter of 23 December 2008, the FOM informed the applicant that the entry of Switzerland into the Schengen Area, on 12 December 2008, did not affect his situation. 59. In their observations before the Chamber, the Swiss Government stated that, to their knowledge, the applicant’s listing had been initiated by a request from the United States of America, and that the same State had submitted to the Sanctions Committee, on 7 July 2009, a request for the delisting of a number of individuals, including the applicant. 60. On 24 August 2009, in accordance with the procedure laid down by Security Council Resolution 1730 (2006), the applicant submitted a request to the focal point for delisting requests for the deletion of his name from the Sanctions Committee’s list. 61. On 2 September 2009 Switzerland sent to the Sanctions Committee a copy of a letter of 13 August 2009 from the Federal Prosecutor’s Office to the applicant’s lawyer, in which that Office confirmed that the judicial police investigation in respect of his client had not produced any indications or evidence to show that he had ties with persons or organisations associated with Osama bin Laden, al-Qaeda or the Taliban. 62. On 23 September 2009 the applicant’s name was deleted from the list annexed to the Security Council Resolutions providing for the sanctions in question. According to the applicant, the procedure provided for under Resolution 1730 (2006) was not followed and he received no explanation in this connection. On 29 September 2009 the annex to the Taliban Ordinance was amended accordingly and the amendment took effect on 2 October 2009. 63. By a motion passed on 1 March 2010, the Foreign Policy Commission of the National Council (lower house of the Federal Parliament) requested the Federal Council to inform the United Nations Security Council that from the end of 2010 it would no longer, in certain cases, be applying the sanctions prescribed against individuals under the counterterrorism resolutions. It moreover called upon the Government to reassert its steadfast commitment to cooperate in the fight against terrorism in accordance with the legal order of the States. The motion had been introduced on 12 June 2009 by Dick Marty, a member of the Council of States (upper house of the Federal Parliament), and it referred to the applicant’s case by way of example. 64. The Government asserted that even though Switzerland was not a member of the Security Council it had, with other States, actively worked since becoming a member of the United Nations on 10 September 2002 to improve the fairness of the listing and delisting procedure and the legal situation of the persons concerned. Thus, in the summer of 2005, it had launched with Sweden and Germany a new initiative to ensure that fundamental rights would be given more weight in the sanctions procedure. Pursuing its initiative, Switzerland had submitted to the Security Council in 2008, together with Denmark, Germany, Liechtenstein, the Netherlands and Sweden, concrete proposals for the setting-up of an advisory panel of independent experts authorised to submit delisting proposals to the Sanctions Committee. Moreover, in the autumn of 2009 Switzerland had worked intensively with its partners to ensure that the Resolution on the renewal of the sanctions regime against al-Qaeda and the Taliban, scheduled for adoption in December, met that need. In the meantime Switzerland had supported the publication in October 2009 of a report proposing, as an option for an advisory review mechanism, the creation of an ombudsperson. On 17 December 2009 the Security Council adopted Resolution 1904 (2009), setting up the office of ombudsperson to receive complaints from individuals affected by the United Nations Security Council counterterrorism sanctions (see paragraph 78 below). Lastly, Switzerland had called on many occasions, before the United Nations Security Council and General Assembly, for an improvement in the procedural rights of the persons concerned by the sanctions. 65. Article 190 (“Applicable law”) of the Federal Constitution provides: “The Federal Court and the other authorities shall be required to apply federal statutes and international law.” 66. The Ordinance of 2 October 2000, instituting measures against persons and entities associated with Osama bin Laden, the group “al-Qaeda” or the Taliban, has been amended several times. The relevant provisions read as follows, in the version that was in force in the period under consideration in the present case, and in particular at the time when the Federal Court delivered its judgment (14 November 2007). “1. The supply, sale or brokerage of arms of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts or accessories for the above-mentioned, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited. ... 3. The supply, sale or brokerage of technical advice, assistance and training related to military activities, to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, shall be prohibited. 4. Paragraphs 1 and 3 above shall apply only to the extent that the Property Regulation Act of 13 December 1996, the Federal Act on War Materiel of 13 December 1996 and their respective implementing ordinances are not applicable. ...” “1. Assets and economic resources owned or controlled by the individuals, undertakings, groups or entities referred to in Annex 2 hereto shall be frozen. 2. It shall be prohibited to supply funds to the individuals, undertakings, groups or entities referred to in Annex 2 hereto, or to make assets or economic resources available to them, directly or indirectly. 3. The State Secretariat for Economic Affairs (SECO) may exempt payments related to democratisation or humanitarian projects from the prohibitions under paragraphs 1 and 2 above. 4. The SECO may authorise, after consulting the competent services of the Federal Department of Foreign Affairs and the Federal Department of Finance, payments from blocked accounts, transfers of frozen capital assets and the release of frozen economic resources, in order to protect Swiss interests or to prevent hardship cases.” “1. Anyone holding or managing assets acknowledged to be covered by the freezing of assets under Article 3 § 1 hereof must immediately declare them to the SECO. 2. Any person or organisation knowing of economic resources acknowledged to be covered by the freezing of economic resources under Article 3 § 1 hereof must immediately declare them to the SECO. 3. The declaration must give the name of the beneficiary, the purpose and the amount of the assets or economic resources frozen.” “1. Entry into and transit through Switzerland shall be prohibited for the individuals listed in Annex 2 hereto. 2. The Federal Office for Migration may, in conformity with the decisions of the United Nations Security Council or for the protection of Swiss interests, grant exemptions.” 67. The United Nations Charter was signed in San Francisco on 26 June 1945. The relevant provisions for the present case read as follows. “We the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims. Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.” “The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; ... 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and ...” “1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII. ...” “The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” 68. Chapter VII of the Charter is entitled “Action with respect to threats to the peace, breaches of the peace, and acts of aggression”. Article 39 reads as follows: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” 69. Chapter XVI is entitled “Miscellaneous Provisions”. Article 103 reads as follows: “In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 70. Resolution 1267 (1999) was adopted on 15 October 1999. It created the Sanctions Committee, consisting of all Security Council members. This Committee was in particular entrusted with the task of requesting all States to keep it informed of the steps taken to ensure the effective implementation of the measures required under the Resolution, namely the denial of permission for aircraft associated with the Taliban to use their territory for take-off or landing, unless the Sanctions Committee had approved the flight in advance for humanitarian reasons and, secondly, the freezing of the Taliban’s funds and other financial resources. The relevant parts of this Resolution read as follows. “... The Security Council, Reaffirming its previous resolutions, in particular Resolutions 1189 (1998) of 13 August 1998, 1193 (1998) of 28 August 1998 and 1214 (1998) of 8 December 1998, and the statements of its President on the situation in Afghanistan, Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage, Reiterating its deep concern over the continuing violations of international humanitarian law and of human rights, particularly discrimination against women and girls, and over the significant rise in the illicit production of opium, and stressing that the capture by the Taliban of the Consulate-General of the Islamic Republic of Iran and the murder of Iranian diplomats and a journalist in Mazar-e-Sharif constituted flagrant violations of established international law, Recalling the relevant international counterterrorism conventions and in particular the obligations of parties to those conventions to extradite or prosecute terrorists, Strongly condemning the continuing use of Afghan territory, especially areas controlled by the Taliban, for the sheltering and training of terrorists and planning of terrorist acts, and reaffirming its conviction that the suppression of international terrorism is essential for the maintenance of international peace and security, Deploring the fact that the Taliban continues to provide safe haven to [Osama bin Laden] and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations, Noting the indictment of [Osama bin Laden] and his associates by the United States of America for, inter alia, the 7 August 1998 bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania and for conspiring to kill American nationals outside the United States, and noting also the request of the United States of America to the Taliban to surrender them for trial (S/1999/1021), Determining that the failure of the Taliban authorities to respond to the demands in paragraph 13 of Resolution 1214 (1998) constitutes a threat to international peace and security, Stressing its determination to ensure respect for its resolutions, Acting under Chapter VII of the Charter of the United Nations, ... 3. Decides that on 14 November 1999 all States shall impose the measures set out in paragraph 4 below, unless the Council has previously decided, on the basis of a report of the Secretary-General, that the Taliban has fully complied with the obligation set out in paragraph 2 above; 4. Decides further that, in order to enforce paragraph 2 above, all States shall: (a) Deny permission for any aircraft to take off from or land in their territory if it is owned, leased or operated by or on behalf of the Taliban as designated by the Committee established by paragraph 6 below, unless the particular flight has been approved in advance by the Committee on the grounds of humanitarian need, including religious obligation such as the performance of the Hajj; (b) Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need; 5. Urges all States to cooperate with efforts to fulfil the demand in paragraph 2 above, and to consider further measures against [Osama bin Laden] and his associates; 6. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council consisting of all the members of the Council to undertake the following tasks and to report on its work to the Council with its observations and recommendations: ... 7. Calls upon all States to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraph 4 above; 8. Calls upon States to bring proceedings against persons and entities within their jurisdiction that violate the measures imposed by paragraph 4 above and to impose appropriate penalties; 9. Calls upon all States to cooperate fully with the Committee established by paragraph 6 above in the fulfilment of its tasks, including supplying such information as may be required by the Committee in pursuance of this Resolution; 10. Requests all States to report to the Committee established by paragraph 6 above within 30 days of the coming into force of the measures imposed by paragraph 4 above on the steps they have taken with a view to effectively implementing paragraph 4 above; ...” 71. By Resolution 1333 (2000), adopted on 19 December 2000, the Security Council extended the application of the sanctions provided for under Resolution 1267 (1999) to any individuals or entities identified by the Sanctions Committee as being associated with al-Qaeda or Osama bin Laden. The Resolution further required a list to be maintained for the implementation of the United Nations sanctions. The passages that are relevant to the present case read as follows. “... The Security Council, Reaffirming its previous resolutions, in particular Resolution 1267 (1999) of 15 October 1999 and the statements of its President on the situation in Afghanistan, Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, and its respect for Afghanistan’s cultural and historical heritage, Recognizing the critical humanitarian needs of the Afghan people, ... 8. Decides that all States shall take further measures: (a) To close immediately and completely all Taliban offices in their territories; (b) To close immediately all offices of Ariana Afghan Airlines in their territories; (c) To freeze without delay funds and other financial assets of [Osama bin Laden] and individuals and entities associated with him as designated by the Committee, including those in the [al-Qaeda] organization, and including funds derived or generated from property owned or controlled directly or indirectly by [Osama bin Laden] and individuals and entities associated with him, and to ensure that neither they nor any other funds or financial resources are made available, by their nationals or by any persons within their territory, directly or indirectly for the benefit of [Osama bin Laden], his associates or any entities owned or controlled, directly or indirectly, by [Osama bin Laden] or individuals and entities associated with him including the [al-Qaeda] organization and requests the Committee to maintain an updated list, based on information provided by States and regional organizations, of the individuals and entities designated as being associated with [Osama bin Laden], including those in the [al-Qaeda] organization; ... 12. Decides further that the Committee shall maintain a list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, including the United Nations and its agencies, governmental relief agencies providing humanitarian assistance, the International Committee of the Red Cross and non-governmental organizations as appropriate, that the prohibition imposed by paragraph 11 above shall not apply to humanitarian flights operated by, or on behalf of, organizations and governmental relief agencies on the list approved by the Committee, that the Committee shall keep the list under regular review, adding new organizations and governmental relief agencies as appropriate and that the Committee shall remove organizations and governmental agencies from the list if it decides that they are operating, or are likely to operate, flights for other than humanitarian purposes, and shall notify such organizations and governmental agencies immediately that any flights operated by them, or on their behalf, are thereby subject to the provisions of paragraph 11 above; ... 16. Requests the Committee to fulfil its mandate by undertaking the following tasks in addition to those set out in Resolution 1267 (1999): (a) To establish and maintain updated lists based on information provided by States, regional, and international organizations of all points of entry and landing areas for aircraft within the territory of Afghanistan under control by the Taliban and to notify member States of the contents of such lists; (b) To establish and maintain updated lists, based on information provided by States and regional organizations, of individuals and entities designated as being associated with [Osama bin Laden], in accordance with paragraph 8 (c) above; (c) To give consideration to, and decide upon, requests for the exceptions set out in paragraphs 6 and 11 above; (d) To establish no later than one month after the adoption of this Resolution and maintain an updated list of approved organizations and governmental relief agencies which are providing humanitarian assistance to Afghanistan, in accordance with paragraph 12 above; ... 17. Calls upon all States and all international and regional organizations, including the United Nations and its specialized agencies, to act strictly in accordance with the provisions of this Resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed by paragraphs 5, 8, 10 and 11 above; ...” 72. In Resolution 1363 (2001), adopted on 30 July 2001, the Security Council decided to set up a mechanism to monitor the measures imposed by Resolutions 1267 (1999) and 1333 (2000) (“the Monitoring Group”), consisting of up to five experts selected on the basis of equitable geographical distribution. 73. In Resolution 1373 (2001), adopted on 28 September 2001 – following the events of 11 September 2001 – the Security Council decided that States should take a series of measures to combat international terrorism and ensure effective border controls in this connection. The passages that are relevant to the present case read as follows. “... The Security Council, ... 1. Decides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities; (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons; 2. Decides also that all States shall: (a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists; (b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information; (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; (e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts; ... 3. Calls upon all States to: ... (f) Take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts; ...” 74. In Resolution 1390 (2002), adopted on 16 January 2002, the Security Council decided to impose a ban on entry and transit for individuals and entities concerned by the international sanctions. This Resolution also made the sanctions regime more precise and transparent, because the Sanctions Committee was requested to update regularly the list of persons concerned by the sanctions, to promulgate expeditiously such guidelines and criteria as might be necessary to facilitate the implementation of the sanctions, and to make any information it considered relevant, including the list of persons concerned, publicly available. The passages that are relevant to the present case read as follows: “... The Security Council, ... 2. Decides that all States shall take the following measures with respect to [Osama bin Laden], members of the [al-Qaeda] organization and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000) to be updated regularly by the Committee established pursuant to Resolution 1267 (1999) hereinafter referred to as ‘the Committee’; (a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons’ benefit, by their nationals or by any persons within their territory; (b) Prevent the entry into or the transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case by case basis only that entry or transit is justified; (c) Prevent the direct or indirect supply, sale and transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities; ... 8. Urges all States to take immediate steps to enforce and strengthen through legislative enactments or administrative measures, where appropriate, the measures imposed under domestic laws or regulations against their nationals and other individuals or entities operating on their territory, to prevent and punish violations of the measures referred to in paragraph 2 of this Resolution, and to inform the Committee of the adoption of such measures, and invites States to report the results of all related investigations or enforcement actions to the Committee unless to do so would compromise the investigation or enforcement actions; ...” 75. In Resolution 1526 (2004), adopted on 30 January 2004, the Security Council requested States, on the submission of new names to be added to the Committee’s list, to supply information facilitating the identification of the persons or entities concerned. It also expressly encouraged States to inform, as far as possible, the persons and entities on the Committee’s list of the measures taken against them, of the Committee’s guidelines and of Resolution 1452 (2002) concerning the possibility of exemption from certain sanctions. 76. In response to a surge in criticism of the sanctions regime, the Security Council adopted increasingly detailed resolutions to strengthen the procedural safeguards. In this connection, Resolution 1730 (2006) established the current procedure by creating a “focal point” to receive delisting requests in respect of persons or entities on the lists kept by the Sanctions Committee. Under that Resolution the focal point was responsible for forwarding such requests, for their information and possible comments, to the designating government(s) and to the government(s) of citizenship and residence. That was to be followed by a consultation between the governments concerned, with or without the focal point acting as an intermediary. If recommended by one of those governments, the delisting request was to be placed on the agenda of the Sanctions Committee, which would take decisions by consensus among its fifteen members. 77. Resolution 1735 (2006) established a procedure for notifying the individuals or entities whose names were on the list. It further clarified the criteria for delisting as follows: “14. ... the Committee, in determining whether to remove names from the Consolidated List, may consider, among other things, (i) whether the individual or entity was placed on the Consolidated List due to a mistake of identity, or (ii) whether the individual or entity no longer meets the criteria set out in relevant resolutions, in particular Resolution 1617 (2005); in making the evaluation in (ii) above, the Committee may consider, among other things, whether the individual is deceased, or whether it has been affirmatively shown that the individual or entity has severed all association, as defined in Resolution 1617 (2005), with [al-Qaeda], [Osama bin Laden], the Taliban, and their supporters, including all individuals and entities on the Consolidated List;” 78. The procedure was subsequently reinforced with the adoption of Resolutions 1822 (2008) and 1904 (2009), which post-date the present case. In the latter, adopted on 17 December 2009, the Security Council decided to create an Office of the Ombudsperson, whose task is to receive requests from individuals concerned by the sanctions imposed by the Security Council in the fight against terrorism. Under that Resolution, persons on the sanctions list are entitled to obtain information on the reasons for the measures taken against them and to file delisting petitions with the Ombudsperson, who examines each case impartially and independently and then submits a report to the Sanctions Committee explaining the reasons for or against delisting. 79. Article 27 (“Internal law and observance of treaties”) of the Vienna Convention on the Law of Treaties reads as follows: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. ...” 80. Article 30 (“Application of successive treaties relating to the same subject matter”) reads as follows: “1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States Parties to both treaties the same rule applies as in paragraph 3; (b) as between a State Party to both treaties and a State Party to only one of the treaties, the treaty to which both States are Parties governs their mutual rights and obligations. 5. Paragraph 4 is without prejudice to Article 41, or to any question of the termination or suspension of the operation of a treaty under Article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.” 81. The report of the study group of the International Law Commission entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, published in 2006, contains the following observations concerning Article 103 of the Charter: “37. In international law, there is a strong presumption against normative conflict. Treaty interpretation is diplomacy, and it is the business of diplomacy to avoid or mitigate conflict. This extends to adjudication as well. As Rousseau puts the duties of a judge in one of the earlier but still more useful discussions of treaty conflict: ... lorsqu’il est en présence de deux accords de volontés divergentes, il doit être tout naturellement porté à rechercher leur coordination plutôt qu’à consacrer à leur antagonisme [Charles Rousseau, “De la compatibilité des normes juridiques contradictoires dans l’ordre international”, RGDIP vol. 39 (1932), p. 153]. 38. This has emerged into a widely accepted principle of interpretation and it may be formulated in many ways. It may appear as the thumb-rule that when creating new obligations, States are assumed not to derogate from their obligations. Jennings and Watts, for example, note the presence of a: presumption that the parties intend something not inconsistent with generally recognized principles of international law, or with previous treaty obligations towards third States [Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law (London: Longman, 1992) (9th ed), p. 1275. For the wide acceptance of the presumption against conflict – that is the suggestion of harmony – see also Pauwelyn, Conflict of Norms ..., pp. 240-44]. 39. As the International Court of Justice stated in the Right of Passage case: it is a rule of interpretation that a text emanating from a government must, in principle, be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it [Case concerning the Right of Passage over Indian Territory (Preliminary Objections) (Portugal v. India) ICJ Reports 1957 p. 142]. ... 331. Article 103 does not say that the Charter prevails, but refers to obligations under the Charter. Apart from the rights and obligations in the Charter itself, this also covers duties based on binding decisions by United Nations bodies. The most important case is that of Article 25 that obliges member States to accept and carry out resolutions of the Security Council that have been adopted under Chapter VII of the Charter. Even if the primacy of Security Council decisions under Article 103 is not expressly spelled out in the Charter, it has been widely accepted in practice as well as in doctrine ...” 82. The measures taken under the Security Council resolutions establishing a listing system and the possibility of reviewing the legality of such measures have been examined, at international level, by the Court of Justice of the European Communities (“CJEC”) and by the United Nations Human Rights Committee. 83. The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (joined cases C-402/05 P and C-415/05 P – hereinafter “Kadi”) concerned the freezing of the applicants’ assets pursuant to European Community Regulations adopted in connection with the implementation of Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), which, among other things, required all United Nations member States to take measures to freeze the funds and other financial resources of the individuals and entities identified by the Security Council’s Sanctions Committee as being associated with Osama bin Laden, al-Qaeda or the Taliban. In that case the applicants fell within that category and their assets had thus been frozen – a measure that for them constituted a breach of their fundamental right to respect for property as protected by the Treaty instituting the European Community (“the EC Treaty”). They contended that the EC Regulations had been adopted ultra vires. 84. On 21 September 2005 the Court of First Instance (which on 1 December 2009 became known as the “General Court”) rejected those complaints and confirmed the lawfulness of the Regulations, finding mainly that Article 103 of the Charter had the effect of placing Security Council resolutions above all other international obligations (except for those covered by jus cogens), including those arising from the EC Treaty. It concluded that it was not entitled to review Security Council resolutions, even on an incidental basis, to ascertain whether they respected fundamental rights. 85. Mr Kadi appealed to the CJEC (which on 1 December 2009 became known as the “Court of Justice of the European Union”). The appeal was examined by a Grand Chamber jointly with another case. In its judgment of 3 September 2008, the CJEC found that, in view of the internal and autonomous nature of the Community legal order, it had jurisdiction to review the lawfulness of a Community regulation adopted within the ambit of that order even if its purpose was to implement a Security Council resolution. It thus held that, even though it was not for the “Community judicature” to examine the lawfulness of Security Council resolutions, it was entitled to review Community acts or acts of member States designed to give effect to such resolutions, and that this “would not entail any challenge to the primacy of that resolution in international law”. 86. The CJEC concluded that the Community judicature had to ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested Regulation, were designed to give effect to resolutions of the Security Council. The judgment contained the following relevant passages: “... 281. In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (Case 294/83 Les Verts v. Parliament [1986] ECR 1339, paragraph 23). ... 290. It must therefore be considered whether, as the Court of First Instance held, as a result of the principles governing the relationship between the international legal order under the United Nations and the Community legal order, any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is in principle excluded, notwithstanding the fact that, as is clear from the decisions referred to in paragraphs 281 to 284 above, such review is a constitutional guarantee forming part of the very foundations of the Community. ... 293. Observance of the undertakings given in the context of the United Nations is required just as much in the sphere of the maintenance of international peace and security when the Community gives effect, by means of the adoption of Community measures taken on the basis of Articles 60 EC and 301 EC, to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations. 294. In the exercise of that latter power it is necessary for the Community to attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of resolutions under Chapter VII of the Charter constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which, under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them. ... 296. Although, because of the adoption of such an act, the Community is bound to take, under the EC Treaty, the measures necessitated by that act, that obligation means, when the object is to implement a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations, that in drawing up those measures the Community is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations relating to such implementation. 297. Furthermore, the Court has previously held that, for the purposes of the interpretation of the contested Regulation, account must also be taken of the wording and purpose of Resolution 1390 (2002) which that Regulation, according to the fourth recital in the preamble thereto, is designed to implement (Möllendorf and Möllendorf-Niehuus, paragraph 54 and case-law cited). 298. It must however be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each member of the United Nations. The Charter of the United Nations leaves the members of the United Nations a free choice among the various possible models for transposition of those resolutions into their domestic legal order. 299. It follows from all those considerations that it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested Regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations. 300. What is more, such immunity from jurisdiction for a Community measure like the contested Regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.” 87. The CJEC concluded that the contested Regulations, which did not provide for any remedy in respect of the freezing of assets, were in breach of fundamental rights and were to be annulled. 88. In the case brought by Nabil Sayadi and Patricia Vinck against Belgium (Views of the Human Rights Committee of 22 October 2008, concerning Communication no. 1472/2006), the Human Rights Committee had occasion to examine the national implementation of the sanctions regime established by the Security Council in Resolution 1267 (1999). The two complainants, Belgian nationals, had been placed on the lists appended to that Resolution in January 2003, on the basis of information which had been provided to the Security Council by Belgium, shortly after the commencement of a domestic criminal investigation in September 2002. They had submitted several delisting requests at national, regional and United Nations levels, all to no avail. In 2005, the Brussels Court of First Instance had ordered the Belgian State, inter alia, to initiate urgently a delisting procedure with the United Nations Sanctions Committee, and the State had subsequently done so. 89. The Human Rights Committee noted that the travel ban imposed on the complainants resulted from the transmittal by Belgium of their names to the Sanctions Committee, before they had been heard. It thus took the view that even though Belgium was not competent to remove their names from either the United Nations or the European Union lists, it was responsible for the presence of their names on the lists, and for the resulting travel ban. The Committee found a violation of the complainants’ right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights, because both the dismissal of the criminal investigation and the State Party’s delisting requests showed that the restrictions were not necessary to protect national security or public order. 90. The Committee also found an unlawful attack on the complainants’ honour and reputation, in breach of Article 17 of the Covenant, based on the accessibility of the list on the Internet, a number of press articles, the transmittal of the information about them prior to the conclusion of the criminal investigation, and the fact that, despite the State Party’s requests for removal, their personal contact details were still accessible to the public. 91. In the Committee’s opinion, although the State Party itself was not competent to remove the names from the list, it had the duty to do all it could to obtain that deletion as soon as possible, to provide the complainants with compensation, to make public the requests for delisting, and to ensure that similar violations did not occur in the future. 92. On 20 July 2009 the complainants’ names were removed from the list pursuant to a decision of the Sanctions Committee. 93. The measures in question have also been examined at national level, by the United Kingdom Supreme Court and the Canadian Federal Court. 94. The case of Ahmed and others v. HM Treasury, examined by the Supreme Court of the United Kingdom on 27 January 2010, concerned the freezing of the appellants’ assets in accordance with the sanctions regime introduced by Resolutions 1267 (1999) and 1373 (2001). The Supreme Court took the view that the government had acted ultra vires the powers conferred upon it by section 1 of the United Nations Act 1946 in making certain orders to implement Security Council resolutions on sanctions. 95. In particular, Lord Hope, Deputy President of the Supreme Court, made the following observations: “6. ... The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.” 96. He acknowledged that the appellants had been deprived of an effective remedy and in that connection found as follows: “81. I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy. As Mr Swift indicates, seeking a judicial review of the Treasury’s decision to treat him as a designated person will get him nowhere. G answers to that description because he has been designated by the 1267 Committee [the Sanctions Committee]. What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review. This is something that, under the system that the 1267 Committee currently operates, is denied to him. I would hold that Article 3 § 1 (b) of the AQO [al-Qaeda Order], which has this effect, is ultra vires section 1 of the 1946 Act. It is not necessary to consider for the purposes of this case whether the AQO as a whole is ultra vires except to say that I am not to be taken as indicating that Article 4 of that Order, had it been applicable in G’s case, would have survived scrutiny. 82. I would treat HAY’s case in the same way. He too is a designated person by reason of the fact that his name is on the 1267 Committee’s list. As has already been observed, the United Kingdom is now seeking that his name should be removed from it. By letter dated 1 October 2009 the Treasury’s Sanctions Team informed his solicitors that the delisting request was submitted on 26 June 2009 but that at the Committee’s first consideration of it a number of States were not in a position to accede to the request. Further efforts to obtain delisting are continuing, but this has still not been achieved. So he remains subject to the AQO. In this situation he too is being denied an effective remedy.” 97. The Supreme Court found unlawful both the order implementing Resolution 1373 (2001) in a general counterterrorism context (“the Terrorism Order”) and the order implementing the al-Qaeda and Taliban Resolutions (“the al-Qaeda Order”). However, it annulled the al-Qaeda Order only in so far as it did not provide for an effective remedy (see Lord Brown’s dissenting opinion on this point). 98. In its judgment of 4 June 2009 in the case of Abdelrazik v. Canada (Minister of Foreign Affairs), Canada’s Federal Court took the view that the listing procedure of the al-Qaeda and Taliban Sanctions Committee was incompatible with the right to an effective remedy. The case concerned a ban on the return to Canada of the applicant, who had Canadian and Sudanese nationality, as a result of the application by Canada of the Security Council Resolutions establishing the sanctions regime. The applicant was thus forced to live in the Canadian embassy in Khartoum, Sudan, fearing possible detention and torture should he leave this sanctuary. 99. Zinn J, who pronounced the lead judgment in the case, stated in particular: “51. I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or delisting procedure that recognizes the principles of natural justice or that provides for basic procedural fairness.” 100. He further observed: “54. ... it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion.” 101. After reviewing the measures implementing the travel ban on the basis of the al-Qaeda and Taliban Resolutions, the judge concluded that the applicant’s right to enter Canada had been breached, contrary to the provisions of the Canadian Charter of Rights and Freedoms (see paragraphs 62 et seq. of the judgment).

train

001-61089

ENG

TUR

CHAMBER

CASE OF TEPE v. TURKEY

No violation of Art. 2 with regard to abduction and killing;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3 and 5;Not necessary to examine Art. 10;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Failure to comply with obligations under Art. 38-1-a;Not necessary to examine Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Christos Rozakis

8. The applicant, Mr İsak Tepe, is a Turkish citizen who was born in 1943 and is at present living in İstanbul (Turkey). At the time of the events giving rise to his application, the applicant was the provincial chairman of a political party, the DEP (Democracy Party), in the province of Bitlis (southeast Turkey). The application concerns the applicant’s allegations that his son, Mr Ferhat Tepe, was abducted and killed by undercover agents of the State. 9. The facts surrounding the death of the applicant’s son are disputed between the parties. 10. The facts as presented by the applicant are set out in Section 1 below. The facts presented by the Government are contained in Section 2. 11. A summary of the documents submitted by the parties is to be found in Part B. The witness evidence taken by the Court’s delegates at hearings conducted in Ankara is summarised in Part C. 12. In the beginning of July 1993, General Korkmaz Tağma, the commander of the Tatvan 6th Armoured Brigade, invited the provincial leaders of all political parties to a meeting at the army barracks. The applicant attended this meeting as the representative of the DEP and spoke in support of the cultural and democratic rights of the Kurdish population in Turkey. During the meeting, General Tağma claimed that there were no Kurds in Turkey and that those who had taken to the mountains were Armenians. He then asked the participants to report to him the names of the people who helped the PKK. The applicant replied to General Tağma that there were Kurds in Turkey as well as Turks and other minorities and that these people should be treated on the basis of equality in a democratic manner. He added that the denial of other people’s existence and the oppression or repression of others would not lead anywhere. General Tağma was furious and wanted to obtain information on the children of the chairmen, for example where they worked and how old they were. He warned the chairmen, including the applicant, that their children would be destroyed if they were not raised as loyal citizens of the State. 13. In the afternoon of 10 July 1993 the applicant’s son, Ferhat Tepe, born in 1974 and working as a reporter for the Özgür Gündem newspaper in Bitlis, was taken into police custody. No reasons were given for his arrest. He was released the same day in the afternoon. 14. On 28 July 1993 at around 7 p.m., while Ferhat was in the schoolyard of the Şemsi Bitlis primary school, a tall, bearded man who was known in the area to be a policeman, took him by the arm, put him in a car and drove away with him. Their car was followed by a white car, a Renault with the registration number 65 AD 095. There were two persons inside the white Renault, which was seen later that day parked next to Mahallebaşı police station. 15. Later on the same day, the applicant learned from İsmetullah Güzelsoy and Adnan Karslıoğlu that two plain-clothes policemen had made enquiries about Ferhat in the building where they lived. He went home in panic and realised that Ferhat was missing. 16. On 29 July 1993 at around 6 a.m. the applicant received a phone call from an anonymous person who claimed to be a member of an organisation called the “Ottoman Turkish Revenge Brigade” and said that they were keeping his son as a hostage. The caller said that Ferhat would be killed unless the applicant closed down the DEP’s Bitlis branch, released four French tourists who were in the hands of the PKK and paid one billion Turkish liras (TRL). The applicant said he could close down the Bitlis branch and try to find TRL 1 billion but had no power to secure the release of the French tourists, as he had no connection with the PKK. The caller warned the applicant that his son would be killed if the conditions were not met. 17. On the same day at 8 a.m. the applicant went with his wife and daughter to the Bitlis Security Directorate, where he told the director and the provincial governor of his suspicion that Ferhat had been abducted by contra-guerrillas operating within the State security forces. The governor and the director denied the existence of contra-guerrillas in Turkey and affirmed that the State did not commit murder. 18. On the same day the applicant applied to the Bitlis Public Prosecutor and asked that his home and office telephones be tapped in order to trace the caller’s number if another call was made. He also requested that all necessary action be taken to rescue his son. 19. On 30 July 1993 the applicant sent telegrams to the Prime Minister, the Minister of the Interior and the Governor of the state of emergency region asking for their aid in rescuing his son. 20. On 1 August 1993 the applicant and his wife went to Tatvan to talk to General Korkmaz Tağma at the brigade headquarters. They were told that the general was ill and had gone to Antalya. They were received by a colonel and attended a meeting at General Tağma’s office. During this meeting, Mrs Tepe stated that the bloodshed between Turks and Kurds had to stop and that she would sacrifice her son if this were to bring the animosity to an end. During the second or the third telephone call, the anonymous caller said that Mrs Tepe had spoken well at General Tağma’s office, which proves that the caller was either present at the meeting or had been informed by someone who had attended the meeting. 21. Subsequently, the applicant informed the Security Director that according to Fatih Olcay and Adnan Karslıoğlu, eye-witnesses to Ferhat’s abduction, the people who had taken Ferhat away were policemen. The applicant also said that there was evidence that the white Renault, which had followed the car in which Ferhat Tepe was abducted, belonged to the security forces. 22. On 4 August 1993 the applicant received another phone call at around 3 a.m. He immediately alerted the authorities while he was on the phone and asked them to identify the caller’s number. The conversation that followed was recorded. The person on the phone said that the applicant had failed to fulfil their conditions for the release of Ferhat since the DEP branch had not been closed down, and the applicant had failed to pay and had reported everything to the authorities. The caller told the applicant to bring TRL 1 billion to an address in the province of Elazığ. After listening to the recording, the Security Director told the applicant that the State could give him special bank notes, the serial numbers of which had been noted by the police, and told him to come back later for the bank notes. Later on the same day, when the applicant called again, the Director told him that he was having difficulty in obtaining the bank notes. 23. On the same day the applicant, together with four policemen and four of his relatives, went to the address in Elazığ indicated by the caller but could not find anyone. 24. Still on 4 August 1993, Ferhat’s dead body was found by a civil servant at the Lake Hazar, in Karakem. On the same day the public prosecutor and a medical expert examined the body. The report of their findings concluded that the cause of death was drowning and that there was no need for a systematic autopsy. It also stated that no signs of blows or the use of force on the body or of friction on the wrists and ankles had been detected. 25. On 5 August 1993 the applicant, who had not yet been informed of Ferhat’s death, applied to the Public Prosecutor enquiring whether the anonymous caller’s number had been traced. His application remained unanswered. 26. On 8 August 1993 the applicant received a third anonymous telephone call in which he was told that Ferhat’s body was at the morgue in Elazığ. Later that day the applicant discovered that the body had been buried on 5 August 1993 in the Elazığ cemetery for persons with no known relatives. 27. On 9 August 1993 the applicant identified Ferhat’s body, which had been exhumed by the authorities. In preparation for the funeral ceremony, the applicant washed the body himself in a mosque. He saw that his son’s testicles had been crushed and that there were marks on the arms, ankles, testicles and chest. He observed some cigarette burn marks on the body but no fractures. There were also deep wounds on the wrists and ankles showing that Ferhat had been bound hand and foot. The applicant alleged that, according to the eyewitnesses Mümtaz Çerçel, Ömer Aceban, Bahri Elçi, Miğdat Yaşar, Murat Koparan, Taner Şarlak, Erkan Dağdelen, Urfi Pasin and Rıza Demirtaş, who had been apprehended and questioned at the relevant time in the Diyarbakır Recruitment Office, Ferhat had been held there and tortured by members of the security forces between 28 July and 4 August 1993. Mümtaz Çerçel allegedly gave a statement, but withdrew it after being threatened by the police. 28. On 9 August 1993 the Sivrice Public Prosecutor issued a decision of non-jurisdiction, referring the investigation file to the Bitlis Public Prosecutor’s office. 29. At the funeral procession in Bitlis on 10 August 1993, there was a strong police presence. The police filmed those who attended, checked their identification and arrested fifteen persons. Later on the same day the police searched the applicant’s house. 30. On 12 August 1993 the Bitlis Public Prosecutor issued a decision of non-jurisdiction and referred the case to the Elazığ Public Prosecutor. 31. On 19 October 1993 the applicant sent a letter to the Committee of the Turkish Parliament on Murders Perpetrated by Unknown Persons, alleging that secret forces within the State security forces had killed his son. 32. On 2 November 1993 the applicant filed a petition with the Ministry of Justice, alleging that the abduction and killing of his son had been the acts of State forces and requesting an investigation into the matter. 33. On 16 March 1994 the applicant asked the Bitlis Public Prosecutor whether any inquiry into the killing of his son had been initiated. The Public Prosecutor told him there were some obstacles which he had been unable to overcome. On the same day the applicant went to the Bitlis Provincial Security Directorate and asked the assistant director why no investigation had been carried out. The Assistant Director said he did not have to explain anything to the applicant. 34. On 28 September 1994 the applicant applied again to the Ministry of Justice asserting that certain State security forces had been responsible for the abduction and death of his son. He requested that his allegations be investigated. 35. On 15 November 1994 the Elazığ Chief Public Prosecutor issued a permanent search warrant for the perpetrators of the killing of Ferhat Tepe. 36. Following the applicant’s complaints to the authorities, the police took tight security measures. The applicant, his office, his home and the DEP party building were put under constant surveillance. The police filmed the applicant’s colleagues and his fellow-townsmen who came to console him, and checked their identity cards. 37. In the meantime, the applicant’s family had been under intense pressure from the State authorities in relation to his political activities, the investigation he had personally carried out into the killing of his son and his application to the European Commission of Human Rights. The applicant’s daughter was remanded in custody in December 1993; his son was remanded in custody in 1994 for four months and is currently being tried for an offence which carries the death sentence; another of the applicant’s daughters was taken into custody in April 1994; four of the applicant’s nephews were remanded in custody in 1994, one of whom is being tried for an offence which carries the death sentence; the applicant’s brother was taken into custody in April 1994 and the applicant’s cousin has been in Elazığ Prison since 1994. On 24 February 1996 the applicant was arrested in Bartın and held in police custody for eight days in Bitlis. During his detention, the police officers asked him why he accused the State and why he had taken his complaints to the European Commission. They further threatened him and said among other things: “We will kill you just as we killed Ferhat. You are complaining to the infidels about our State. Are they the ones who will save you? Well, let them come and save you.” After being released, the applicant was acquitted of the charges by the Diyarbakır State Security Court. On 4 March 1996 the applicant was allegedly taken into custody in Bitlis on charges of aiding the PKK. He was released on an unspecified date after being interrogated. 38. On 19 February 1997 criminal proceedings were brought against the applicant on account of a speech he had made on a private TV channel, where he had alleged that his son had been murdered by the State. The applicant was charged with insulting the security forces. On an unspecified date, the applicant was convicted as charged and sentenced to one year’s imprisonment. 39. In 1999 the applicant was arrested by police officers from the anti-terrorist department while entering the HADEP (People’s Democracy Party) party building in the Kadıköy district in Istanbul. He was kept in detention for one day. The police officers insulted him and threatened him with death. One of the police officers said that they would kill him just as they had killed Ferhat. The applicant complained to the Fatih Public Prosecutor in Istanbul, who decided to discontinue the proceedings, as there was no witness to confirm his allegations. 40. The applicant’s son Ferhat Tepe had been arrested on two occasions in 1991, as he was suspected of acting as a PKK courier. 41. The Government submitted that, according to various witnesses, on 28 July 1993 Ferhat had met someone in the schoolyard and had left with him of his own free will. 42. The authorities, at the request of the applicant, tapped the anonymous telephone call on 4 August 1993. Although a raid was carried out at the address mentioned in the telephone conversation, the premises were found to be empty. The authorities of the Ministry of the Interior nevertheless established that the residence searched belonged to reporters from Özgür Gündem in Elazığ and concluded that Ferhat’s killing had been the work of the PKK. 43. A report of 24 September 1993 from the Ministry of the Interior to the Ministry of Foreign Affairs and a letter of 16 November 1995 from the governor of Bitlis province indicate that the death of the applicant’s son was the work of the PKK. 44. In a letter of 10 November 1995 the Chief Public Prosecutor of Elazığ, charged with investigating Ferhat Tepe’s death, informed the Ministry of Justice that there was no indication or record of Ferhat’s having been taken into custody. Moreover, the custody records of the Bitlis Security Directorate contained no mention of him. 45. The parties submitted various documents concerning the investigation into the alleged abduction and killing of Ferhat Tepe. 46. On 30 March 1995 the applicant’s lawyer filed a petition with the Chief Public Prosecutor’s office in Bitlis requesting information as to what steps had been taken to find the perpetrators of the abduction and killing of Ferhat. 47. On 31 March 1995, subsequent to the Bitlis Chief Public Prosecutor’s decision of non-jurisdiction, the applicant’s lawyer submitted a petition to the Sivrice Public Prosecutor’s office in Elazığ via the Şişli Chief Public Prosecutor in İstanbul and requested information about the current state of the investigation into the impugned incident. 48. The custody records of the Diyarbakır provincial gendarmes headquarters for the period between 28 July and 4 August 1993 do not contain the name of Ferhat Tepe. 49. The anonymous telephone caller told the applicant that their conditions for the release of Ferhat had not been fulfilled. The applicant replied that he was unable to close down the Bitlis branch of the DEP since this required a decision by the central board in Ankara. The applicant was then told to bring TRL 1 billion by 5 p.m. the next day to an address in Elazığ if he did not want his son to be killed. The person in question warned the applicant not to inform the authorities. The applicant’s request to talk to Ferhat was rejected. 50. An autopsy was carried out on Ferhat’s body by the public prosecutor, a medical expert and the latter’s assistant in the presence of two witnesses and a clerk. It was observed that rigor mortis had not set in and the body had not yet turned blue, that water spurted out when the chest was pressed, that light violet-coloured cyanosis was perceptible on the ears and the nails of both the hands and the feet as a result of suffocation and that there were no signs of any blow or of the use of force on the body, nor were there any signs of friction on the hands and feet. It was therefore concluded that the cause of death was drowning and that there was no need for a systematic autopsy. 51. Nine photographs were submitted to the Court, taken when the body had been pulled out of the lake. No signs of any blows or ill-treatment are visible on the body in these photographs. 52. Following the finding of a corpse in Lake Hazar and its transfer to the morgue of Elazığ State Hospital, the applicant’s nephew, Mr Talat Tepe, went to the hospital to identify the body, which he recognised as being his uncle’s son, Ferhat Tepe. 53. This document states that Ferhat Tepe’s clothes and shoes were given to Mr Talat Tepe. 54. In his statement, Mr Aceban submitted that he had been kept in detention in a military detention centre in Diyarbakır between 25 July and 6 August 1993. He alleged that he had seen a detainee called “Ferhat” or “journalist” by the [officers] on the 3rd and 4th days of his detention. He described Ferhat as being a young man of about 18 or 19 years of age, with long, dark hair. 55. In this statement, the witness was asked to say what he knew about the incident. He replied that on 28 July 1993, at around 4 p.m., he had seen two plain-clothes men making enquiries about Ferhat. When one of them asked whether he knew Ferhat and the other residents of the building, the witness told them that Ferhat lived there and gave the names of the other residents. He claimed that he did not know whether these men were police officers but that they spoke Turkish with a western accent. 56. Mr Güzelsoy asserted that Ferhat had twice been taken into custody prior to his disappearance and that he was an irresponsible boy according to his father. The witness stated that on 28 July 1993, at 4 or 4.30 p.m., Mr Karslıoğlu had told him that two police officers had made enquiries about Ferhat. He had told Mr Karslıoğlu that this might have been an investigation in relation to the attack on police buildings which had taken place the previous day. Later that day, at approximately 5 p.m., he had seen Ferhat and had informed him that two police officers had been looking for him. Ferhat had replied to him that he had not done anything wrong. The next day, the witness had learned from the applicant of Ferhat’s disappearance. 57. On 28 July 1993, at around 6.30 or 7 p.m., the witness saw Ferhat Tepe talking to two women and one or two men next to a bakery. A white Renault Toros with the registration number “65” attracted the witness’s attention as its parking lights were on. There were two young men in the car. The driver was bearded and approximately 35-40 years old, while the man sitting next to him was about 25-30. According to the witness, these men could not have been police officers, otherwise he would have recognised them. The witness learned of the abduction of Ferhat Tepe when he went to the Social Democrat Populist Party building next day. 58. The witness was 17 years old at the relevant time. On 28 July 1993, at about 7 or 7.30 p.m., he was playing football with his friends in the Şemsi Bitlis primary school yard. He saw a bearded man aged about 20-25 waiting in the schoolyard. Two or three minutes later Ferhat arrived and they left the schoolyard arm in arm, like two friends. The bearded man did not use any force against Ferhat. 59. The witness was a police constable at the traffic registration and inspection department of Bitlis Security Directorate. On 28 July 1993 he was on duty, between 7.30 a.m. and 6 p.m., in charge of traffic control in the town centre. His car was parked in front of his house throughout the day. Next day he went to the city centre at around 1 or 1.30 p.m. and parked his car in front of the Çarşı police station. He returned home at 5 p.m. He did not lend his car to anyone on 28 and 29 July 1993. 60. In their statement addressed to the public, the witnesses alleged that they had been taken into custody on 24 July 1993 and kept in a detention centre in Diyarbakır where they were tortured for five days. During their detention, Mr Elçi heard some officers call out “Come on, journalist, it is your turn”. Mr Yaşar heard them asking a man “Journalist, where are you from?”, to which the reply was “I am from Bitlis”. Following their detention on remand they read in Özgür Gündem that a journalist called Ferhat Tepe had been killed under torture and that his corpse had been found in Elazığ. The witnesses submitted that Ferhat Tepe was the journalist whose voice they had heard during their detention. 61. The witnesses alleged that they had been kept in a military detention centre in Diyarbakır for twenty-two days. On the fourth or fifth day of his detention, Mr Dağdelen had seen a man called “journalist” by others. The journalist was chained by his hands to a water pipe and his body was bloody. He was unable to move or speak. Interrogators were torturing him and putting questions to him concerning his involvement with Özgür Gündem. Following their detention on remand, the witnesses read in Özgür Gündem that Ferhat Tepe had been killed. They identified him from his photos. They claimed that they were sure that they had seen Ferhat Tepe in the military detention centre in Diyarbakır. 62. The Chief Public Prosecutor informed the gendarmes and the police of Ferhat Tepe’s disappearance and asked them to verify whether he had been taken into custody for any offence. The Public Prosecutor further instructed that the whereabouts of Ferhat Tepe be determined, that those responsible for Ferhat’s disappearance be brought to his office and that all documents related to the case be sent to him. 63. The Deputy Gendarmes Commander informed the prosecuting authorities in this letter that Ferhat Tepe had not been taken into custody and that he had eventually been found dead. 64. The Elazığ Public Prosecutor requested the former authority to carry out a comprehensive investigation into the death of Ferhat Tepe and to inform him of the outcome. He requested the latter authority to find the person(s) responsible for the killing of Ferhat Tepe and to bring them to his office. 65. In this letter, the authorities of the Ministry of the Interior informed the Foreign Ministry of their conclusion that, having regard to the way in which Ferhat Tepe had been abducted and to the anonymous telephone calls, Ferhat must have been killed by members of the PKK, in a settling of scores within the organisation. They also noted that the allegation that the authorities had failed to respond to the applicant’s request for help was untrue since, following receipt of the applicant’s complaint, an investigation had been started and the photographs of Ferhat Tepe had been distributed to all the provinces and the security units had been alerted. 66. The Chief Public Prosecutor, Mr Süleyman Tutal, issued a permanent search warrant for the perpetrators of the killing of Ferhat Tepe. He requested the Elazığ Central Gendarme Commander and the Bitlis Chief Public Prosecutor to inform him every three months of any developments in the investigation. 67. In reply to the petition filed by the applicant’s lawyer on 31 March 1995, the Elazığ Public Prosecutor declared that the perpetrators of Ferhat’s killing had not yet been found and that the complainants would be informed of any developments in the investigation. 68. It is stated in this letter that there is no record of Ferhat Tepe’s having been taken into custody in Bitlis. According to the evidence given by the witnesses, Ferhat met a man in the Şemsi Bitlis Primary School yard and left the premises with that man arm in arm, without any force being used. It is also noted that, according to the autopsy report and the photos taken when Ferhat was found, there were no traces of ill-treatment and no blood stains on his body or his clothes, contrary to the allegations. 69. Following the lodging of the present application with the former Commission and its communication to the Government, in a letter of 27 October 1995 the authorities of the Ministry of Justice requested information from the Elazığ Chief Public Prosecutor’s office on the current state of the investigation into the applicant’s allegations. 70. The Chief Public Prosecutor wrote back stating that there was no evidence in support of the applicant’s allegations that Ferhat had been abducted, kept in custody and killed under torture by the security forces. He noted that the investigation into the murder was pending. He appended to his letter the post-mortem examination report, the autopsy and identification reports and copies of statements taken from İsmetullah Güzelsoy, Osman Pekdaşoğlu, Adnan Karslıoğlu, Fatih Olcay and the applicant as well as the decisions of non-jurisdiction, the permanent search warrant and 7 photos of Ferhat Tepe. 71. The subject of this letter was Ishak Tepe’s application to the European Commission of Human Rights. Having summarised the events, the governor concluded that the accusations made by the applicant were mere allegations since there was no evidence to substantiate them. He noted that on 4 August 1993 the applicant had received a phone call from a person who had told him to bring TRL 1 billion to an address in Elazığ if he wanted to rescue his son. When the applicant had gone to the address accompanied by police officers from the Elazığ Security Directorate, they had not been able to find anyone. Meanwhile, following inquiries made by the Elazığ police, it had been established that the residents at this address were two journalists from Özgür Gündem who had moved out 15 or 20 days before. The police had found the two journalists concerned and had taken statements from them. The governor concluded from these facts that the impugned incident had been a settling of scores within the PKK. 72. The Hozat Public Prosecutor took statements from the witnesses concerning the contents of the document signed by them on 16 August 1993 and entitled “To the Public”. 73. The witnesses admitted to having signed this document but claimed that the contents were untrue. Mr Şarlak and Mr Koparan submitted that a person called İrfan Güler, who was responsible for their prison ward, had written this document and made them sign it. They believed that nothing unpleasant would befall them if they signed the document. They further averred that they had not seen a person called Ferhat Tepe; nor did they know of how he had been killed. Mr Dağdelen, however, asserted that he did not remember when and where he had signed this document. 74. In this letter, the Chief Public Prosecutor was informed that statements had been taken from Murat Koparan, Taner Şarlak and Erkan Dağdelen, that these persons did not know Ferhat Tepe and that they had denied the contents of the document entitled “To the Public”. It was further noted that on 15 November 1996 a permanent search warrant had been issued to find the perpetrators of the killing of Ferhat Tepe. 75. The following documents concern the internal communication of the national authorities concerning the investigation into the disappearance and subsequent death of Ferhat Tepe: (i) Letter of 29 July 1993 from the Bitlis Chief Public Prosecutor to the PTT Telephone Directorate; (ii) Letter dated August 1993 from the Elazığ State Hospital Chief Doctor to the Sivrice Chief Public Prosecutor; (iii) Letter of 4 August 1993 from the Bitlis deputy governor of Bitlis to the Bitlis governor requesting the latter to submit information pertaining to the fate of Ferhat Tepe; (iv) Letter of 5 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis; (v) The Sivrice Chief Public Prosecutor’s decision of 7 August 1993 to indemnify those who were involved in the conduct of the autopsy on the body of an unidentified person (Ferhat Tepe); (vi) Letter of 9 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis; (vii) Letter dated 9 August 1993 from Public Prosecutor no. 30760 to the PTT Telephone Directorate; (viii) Letter of 9 August 1993 from the Sivrice Chief Public Prosecutor to the Mayor of Elazığ; (ix) Letter of 9 August 1993 from the Sivrice Chief Public Prosecutor to the Registry Office enclosing Ferhat Tepe’s death certificate; (x) Letter of 11 August 1993 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Elazığ; (xi) Letter of 16 August 1993 from the Sivrice Public Prosecutor to the Mayor of Elazığ; (xii) Letter of 17 August 1993 from the Elazığ Public Prosecutor to the Minister and Deputy Minister of Justice; (xiii) Letter of 25 August 1993 from the Elazığ Public Prosecutor to the Diyarbakır Chief Public Prosecutor’s office; (xiv) Letter of 25 August 1993 from the Elazığ Public Prosecutor to the Bitlis Chief Public Prosecutor’s office; (xv) Letter of 26 August 1993 from the Sivrice Chief Public Prosecutor to the Chief Public Prosecutor’s office in Elazığ; (xvi) Letter dated 1 September 1993 from the public prosecutor, Süleyman Tutal, to the Chief Public Prosecutor’s office in Elazığ; (xvii) Letter of 1 September 1993 from the Elazığ Chief Public Prosecutor to the Elazığ Governor’s office. (xviii) Letter of 6 September 1993 from the Elazığ Chief Public Prosecutor to the Provincial Central Gendarme Command in Elazığ; (xix) Letter of 15 September 1993 from the Diyarbakır Security Directorate Traffic Department to the Diyarbakır Chief Public Prosecutor’s office; (xx) Letter dated 27 October 1993 from the Public Prosecutor Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ; (xxi) Report of 12 December 1993 prepared by the police officers Mr Nizamettin Elma and Mr Halit Yılmaz, informing the Security Director that it had been impossible to find those responsible for the killing of Ferhat Tepe; (xxii) Letter of 28 December 1993 from the Bitlis Security Directorate informing the Chief Public Prosecutor of Elazığ it had been impossible to find those responsible for the killing of Ferhat Tepe. (i) Letter of 1 February 1994 from the Elazığ Chief Public Prosecutor requesting information from the Public Prosecutor, Mr Tuna Güngör; (ii) Mr Tuna Güngör’s letter of 3 February 1994 addressed to the Chief Public Prosecutor of Elazığ, informing the latter that no evidence had been obtained in regard to the death of Ferhat Tepe; (iii) Letter of 16 March 1994 from the Elazığ Chief Public Prosecutor requesting the Public Prosecutor Mr Süleyman Tutal to inform him of developments in the investigation into the death of Ferhat Tepe; (iv) Letter of 21 March 1994 from Mr Süleyman Tutal informing the Chief Public Prosecutor in Elazığ that no evidence had been obtained about the persons responsible for the killing of Ferhat Tepe; (v) Letter of 25 October 1994 from the Deputy General Director for the Council of Europe and Human Rights Affairs to the Ministry of the Interior and to the Ministry of Justice; (vi) Letter dated 7 November 1994 from Mr İlmettin Köklü, Elazığ Public Prosecutor, to the Chief Public Prosecutor’s office in Elazığ; (vii) Letter of 17 November 1994 from Mr Süleyman Tutal to the Chief Public Prosecutor in Elazığ. (i) Letter dated 12 January 1995 from Mr İlmettin Köklü, Elazığ Public Prosecutor, to the Chief Public Prosecutor’s office in Elazığ; (ii) Letter of 1 February 1995 from Mr Süleyman Tutal to the Chief Public Prosecutor’s offices in Bitlis and Elazığ and to the Provincial Central Gendarme Command in Elazığ. Mr Tutal noted that there was a permanent search warrant for the person(s) responsible for the killing of Ferhat Tepe and requested those authorities to submit information every three months about the investigation; (iii) Letter of 5 March 1995 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department; (iv) Letters of 20 March 1995 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department; (v) Letter of 20 March 1995 from the Elazığ Chief Public Prosecutor’s to Mr Süleyman Tutal; (vi) Letter of 21 March 1995 from Mr Süleyman Tutal’s to the Chief Public Prosecutor’s office in Elazığ; (vii) Letter of 27 March 1995 from the Elazığ Provincial Central Gendarme Commander, informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (viii) Letter of 13 June 1995 from Mr Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ; (ix) Letter of 26 June 1995 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis; (x) Letter of 27 June 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (xi) Letter of 11 July 1995 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis; (xii) Letter of 27 September 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (xiii) Letter of 23 October 1995 from the Ministry of Foreign Affairs to the Ministry of Justice; (xiv) Letter of 23 October 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ; (xv) Letter of 27 October 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ; (xvi) Letter of 27 October 1995 from the Elazığ Chief Public Prosecutor to Mr Süleyman Tutal; (xvii) Letter of 21 November 1995 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ; (xviii) Letter of 22 November 1995 from the Elazığ Chief Public Prosecutor to Mr Süleyman Tutal; (xix) Letter of 7 December 1995 from the Elazığ Provincial Central Gendarme Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (xx) Letter of 7 December 1995 from Mr Süleyman Tutal requesting the Chief Public Prosecutor at the Diyarbakır State Security Court to submit information as to whether Mr Murat Koparan, Mr Taner Şarlak, Mr Erkan Dağdelen and Mr Ömer Aceban had been kept in detention on remand in July and August 1993 and whether these persons had seen Ferhat Tepe in detention. He further requested information regarding the current addresses of these persons; (xxi) Report of 29 December 1995 regarding the search for the person(s) responsible for the killing of Ferhat Tepe, from Osman Badraslı Police Station to the Bitlis Security Directorate’s Law and Order Department. (xxii) Letter dated 31 December 1995 regarding the search for the person(s) responsible for the killing of Ferhat Tepe, from Osman Badraslı Police Station to the Bitlis Security Directorate’s Law and Order Department. (i) Letter dated 5 January 1996, from the Presidency of the State Security Court to the Chief Public Prosecutor’s office at the same court, indicating the addresses of Mr Murat Koparan, Mr Taner Şarlak, Mr Erkan Dağdelen and providing information about them; (ii) Letter of 2 February 1996 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Hazro (iii) Letter dated 12 February 1996 from the Chief Public Prosecutor’s office in Hazro to the Bitlis Security Directorate; (iv) Letter of 26 February 1996 from the Hazro Security Director to the Chief Public Prosecutor’s office in Hazro; (v) Letter of 8 March 1996 from the Elazığ Chief Public Prosecutor to the Chief Public Prosecutor’s office in Bitlis; (vi) Letter of 27 March 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (vii) Letters of 30 March 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis; (viii) Report of 30 March 1996 drafted by police officers, who informed the Security Directorate that the perpetrator(s) of the killing of Ferhat Tepe could not be identified; (ix) Report of 31 March 1996 drafted by police officers who informed the Security Directorate that the perpetrator(s) of the killing of Ferhat Tepe could not be identified; (x) Letter of 3 April 1996 from the Elazığ Chief Public Prosecutor to the Registry of the Preliminary Investigation Department; (xi) Letter of 3 June 1996 from the Sivrice Chief Public Prosecutor to the Chief Public Prosecutor’s office in Elazığ; (xii) Letter of 23 June 1996 from Mr Süleyman Tutal to the Chief Public Prosecutor’s office in Elazığ; (xiii) Letter of 3 July 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis; (xiv) Letters of 30 September 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (xv) Letter of 24 December 1996 from the Ministry of Foreign Affairs to the Ministry of Justice; (xvi) Report of 25 December 1996, drafted by police officers, informing the Bitlis Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xvii) Letter of 27 December 1996 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis; (xviii) Letter of 30 December 1996 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (xix) Report of 31 December 1996, drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified. (i) Report dated 19 February 1997 drafted by police officers, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (ii) Letter of 5 March 1997 from the Ministry of Justice to the Chief Public Prosecutor’s office in Elazığ; (iii) Report dated 14 March 1997, drafted by police officers, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (iv) Letter of 17 March 1997 afrom Mr Süleyman Tutal to the Chief Public Prosecutor in Elazığ; (v) Letter of 27 March 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (vi) Report of 28 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (vii) Report of 30 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (viii) Report of 31 March 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (ix) Letter of 1 April 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis; (x) Report dated 3 June 1997, drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xi) Report of 30 June 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xii) Letter of 30 June 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (xiii) Letter of 2 July 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis; (xiv) Report dated 13 September 1997, drafted by gendarmes; noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xv) Report of 28 September 1997, drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xvi) Report of 30 September 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xvii) Letter of 30 December 1997 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (xviii) Report of 31 December 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xix) Letter of 2 October 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis; (xx) Report of 12 December 1997 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xxi) Letter of 31 December 1997 from the Bitlis Security Directorate to the Chief Public Prosecutor’s office in Bitlis. (i) Follow-up report of 21 January 1998 about the suspects in respect of whom a search warrant had been issued; (ii) Report of 31 March 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (iii) Letter of 1 April 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis; (iv) Report dated 15 June 1998 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (v) Follow-up report of 15 June 1998 about the suspects in respect of whom a search warrant had been issued; (vi) Report of 25 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (vii) Letter of 25 June 1998 from the Mollakendi Gendarmes Station Commander to the Elazığ Provincial Central Gendarme Headquarters; (viii) Report of 29 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (ix) Report of 30 June 1998 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (x) Letter of 1 July 1998 from the Bitlis Şehit Fuat Bal Police Station Director to the Law and Order Department; xi) Letter of 1 July 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis; (xii) Letter of 6 July 1998 fro the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis; (xiii) Letter of 15 July 1998 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the perpetrator(s) could not be identified and that the investigation into the incident was still pending; (xiv) Report dated 11 August 1998, drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xv) Letter of 1 October 1998 from the chief of Bitlis Şehit Fuat Bal Police Station to the Law and Order Department; (xvi) Letter of 2 October 1998 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis; (xvii) Follow-up report of 14 December 1998 about the suspects in respect of whom a search warrant had been issued. (i) Letter of 1 January 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (ii) Report dated 21 January 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (iii) Report dated 1 February 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (iv) Report dated 19 March 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (v) Reports of 24 March 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (vi) Report dated 24 March 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (vii) Letter of 7 April 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (viii) Report dated 14 June 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (ix) Report dated 21 June 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (x) Report of 30 June 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xi) Letter of 1 July 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xii) Report dated 22 September 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xiii) Follow-up report of 22 September 1999 about the suspects in respect of whom a search warrant had been issued; (xiv) Report dated 29 September 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xv) Report of 30 September 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xvi) Letter of 4 October 1999 from the Bitlis Security Director informing the Chief Public Prosecutor’s office in Bitlis that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xvii) Follow-up report of 12 December 1999 about the suspects in respect of whom a search warrant had been issued.; (xviii) Report dated 13 December 1999 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (xix) Letters of 31 December 1999 from the chief of the Bitlis Şehit Mustafa Yeter Police Station to the Law and Order Department; (xx) Export of 31 December 1999 drafted by police officers, informing the Security Directorate that the person(s) responsible for the killing of Ferhat Tepe could not be identified. (i) Letter of 5 January 2000 from the Elazığ Provincial Central Gendarmes Commander informing the Chief Public Prosecutor in Elazığ that the person(s) responsible for the killing of Ferhat Tepe could not be identified and that the investigation into the incident was still pending; (ii) Letter dated 18 February 2000 from Public Prosecutor no. 24705 to the Chief Public Prosecutor’s office in Bitlis; (iii) Follow-up report of 25 February 2000 about the suspects in respect of whom a search warrant had been issued.; (iv) Report dated 25 February 2000 drafted by gendarmes, noting that the person(s) responsible for the killing of Ferhat Tepe could not be identified; (v) Letter of 6 March 2000 from the Bitlis Security Director to the Chief Public Prosecutor’s office in Bitlis; (vi) Letter of 13 March 2000 from the Elazığ Provincial Central Gendarme Commander; (vii) Report dated 1 May 2000 drafted by Public Prosecutor no. 24705, noting that the negatives of the films taken of the body of Ferhat Tepe had been given to an officer from the Provincial Central Gendarmes Command; (viii) Letter dated 26 June 2000 drafted by Public Prosecutor no. 24705, informing the Elazığ Chief Public Prosecutor that every three months reports on developments in the investigation were received from the Bitlis and Elazığ Security Directorates and the Provincial Central Gendarme Headquarters and that a permanent search warrant had been issued in respect of the person(s) responsible for the killing of Ferhat Tepe. 76. The applicant produced press releases concerning the alleged abduction and killing of Ferhat Tepe as well as the general situation in south-east Turkey at the relevant time. It was reported that Ferhat Tepe was the sixth correspondent of Özgür Gündem to be killed since the paper had gone into publication in May 1992. It was also stated that a previously unknown underground organisation calling itself the “Turkish-Ottoman Revenge Brigade” had claimed responsibility for the abduction of Ferhat in a telephone call to his family. 77. In a press release issued by Amnesty International on 6 March 1996, calling for urgent action, it was reported that the applicant, Ishak Tepe, had been taken into custody on charges of aiding the PKK. It was claimed that İshak Tepe had met the police officers against whom he had filed an official complaint after the murder of his son and his nephew and that he had been released after being brought before a court in Bitlis on 4 March 1996. Mr Tepe had not been subjected to any form of ill-treatment and had been able to see his wife and his lawyer while in police custody. 78. The facts of the case being in dispute between the parties, the Court conducted an investigation with the assistance of the parties. In this respect, three delegates of the Court took oral evidence between 9 and 14 October 2000 from twenty-four witnesses. A further nine witnesses had been summoned but did not appear for various reasons. The evidence given by the witnesses may be summarised as follows. 79. The applicant; who is currently living in İstanbul, was the provincial chairman of the DEP in Bitlis in 1993. He was at the same time a building contractor. During the taking of evidence in Ankara, in addition to his submission of the facts, the applicant stated the following. 80. At the relevant time, the applicant’s son Ferhat lived with him and helped him at his building site. Ferhat also worked for Özgür Gündem as a provincial reporter. He was not politically active. However, he had been taken into custody on two occasions before his disappearance. His first detention, on charges of aiding and abetting the PKK, took place three or four months before his release on 2 February 1992. The second arrest was probably on 12 July 1993, when he had not been taken into police custody. Ferhat was taken to the police station, where he met a police officer from the anti-terrorist department called Nurhan Şentürk, known as “sakallı” (the bearded one) in Bitlis and bearing the nickname “Hacı”. There were also two other men in the room whom Ferhat had never seen before. Ferhat felt that Hacı had taken him there to show him to these two newcomers. 17 or 18 days later Ferhat was abducted. 81. In the morning of 29 July 1993, at 6 a.m., the applicant received an anonymous phone call from a person claiming to belong to an organisation called the “Turkish-Ottoman Revenge Brigade” who declared that they were keeping his son as a hostage. In the applicant’s opinion, the anonymous person on the phone was General Korkmaz Tağma. He recognised the general’s voice from their meeting some 15 to 20 days earlier, when General Tağma had held a meeting with the provincial chairmen of all the political parties. 82. Immediately after this call, the applicant and his wife went to the Bitlis Security Directorate where they met the security director, Mr Orhan Ekinci, and the provincial governor of Bitlis, Mr Fethi Tunç. At the latter’s request, the applicant wrote a petition to the administrative authorities and to the public prosecutor complaining that his son had been abducted by contra-guerrillas operating within the State. He asked the authorities to take immediate action to find him. He refrained from naming any suspects at the time, in particular General Korkmaz Tağma, as he hoped to get his son back alive. The chief of police told the applicant that his son had not been taken into custody. 83. Later that day the applicant contacted Fatih Olcay, who had witnessed Ferhat’s abduction. Fatih told him that a tall person with a slight beard had held Ferhat by the arm and had taken him away. From his manner and the fact that he was holding a walkie-talkie in his hand, Fatih had deduced that he was a policeman. However, Fatih was unable to repeat these allegations at the police station since he was under pressure. 84. A construction worker called Suat also told the applicant that he had seen Ferhat being taken away in a car with the registration number 65 AD 095. The applicant did not see Suat again and later learned that Suat had gone to İstanbul. 85. The applicant’s nephew, Safiye Tepe, contacted former PKK members who had later become “confessors” (i.e. persons who cooperate with the authorities after confessing to having been involved with the PKK) for information about this case. One of them, A.İ., stated that General Korkmaz Tağma had ordered the killing of Ferhat. Some police officers and the JITEM (the gendarmes’ intelligence agency), led by Major Cem Ersever and the Turkish-Ottoman Revenge Brigade, were involved in this plot. A warfare specialist, Ahmet Demir, code name “Yeşil” (“the Green”) was at the head of this plot. Another “confessor “called Kenan – code name Cihan – confirmed that General Tağma had been involved in the killing of Ferhat. 86. A journalist, Soner Yalçın, published his interviews with Major Cem Ersever, the head of JITEM, who said that Ferhat Tepe and another person had been abducted by Ahmet Demir’s team, who had been assigned to the Diyarbakır-Bitlis-Muş-Bingöl zone. The JITEM headquarters were at the gendarmes’ interrogation centre in Diyarbakır, where Ferhat had been taken and murdered. 87. The witness is currently living in Manisa. He was on a visit to Bitlis at the end of July 1993. He stated that in the evening of 28 July 1993, around 5.30 or 6 a.m., he had been playing football in the yard of the Şemsi Bitlis primary school when he had seen Ferhat walk over. He noticed that a young man around the age of 2025, who was slightly bearded and dressed in civilian clothes was following Ferhat. They shook hands and walked away arm in arm, like ordinary friends. The witness did not see any cars around. The next day he heard that Ferhat was missing. 88. The witness denied the allegation that he had told the applicant about a tall bearded man, known in the area to be a policeman, or that this man had approached Ferhat, taken him by the arm and put him in a car. 89. The witness is a practising lawyer in İstanbul. He was the lawyer of Özgür Gündem at the relevant time and became the applicant’s counsel following the killing of his son. 90. The witness interviewed Mümtaz Çerçel in the Diyarbakır prison. The latter told him that he had seen Ferhat Tepe (“the journalist”) while being held in custody by the gendarmes. However, Mr Çerçel did not maintain his statement for fear of persecution. He also met Urfi Pasin and Rıza Demirtaş, who mentioned having seen Ferhat Tepe in custody. They were also afraid to testify before the authorities. They told the witness that a person by the name of Çetin Demirhan had also seen Ferhat and had even talked to him. The witness’s attempts to reach Mr Demirhan also failed as the latter was under threat of death because of this incident. The witness has never spoken to Murat Koparan, Taner Şarlak and Erkan Dağdelen. He did not take statements from Bahri Elçi and Migdat Yaşar. 91. The witness was the applicant’s business partner at the time. On 28 July 1993 he was told by Adnan Karslıoğlu that two police officers had made enquiries about Ferhat and the applicant. He reported this to Ferhat and asked him not to go anywhere. Ferhat was very calm about it and told him that he would be at home. That was the last time he had seen Ferhat. 92. The witness was the provincial commander of the Bitlis Gendarmes Headquarters at the relevant time. He was in charge of security and law-and-order services outside the borders of the municipality. He had no judicial authority. He was not involved in the investigation into the disappearance and murder of Ferhat, as the incident had taken place within the police authority zone. He heard from the intelligence services in the area that Ferhat was suspected at the time of being involved in money laundering business and that he might have been killed by the PKK. 93. The above witnesses were all police officers at the time in Bitlis occupying different functions in different departments, namely anti-terrorism, contraband and traffic. None of the witnesses were involved in the investigation into the disappearance and subsequent killing of Ferhat Tepe. Nor did they know of Ferhat, with the exception of Nurhan Şentürk, who said that Bitlis was a small town with a population of 28,000 where everyone knew each other. He had seen Ferhat before 28 July 1993, when the latter had made a statement at the police headquarters. Mr Şentürk did not remember when this statement had been made and what it had been about. However, the statement was sent to the Public Prosecutor, with a note that Ferhat was a PKK sympathiser. Mr Şentürk further stated that he had grown a beard at the time. He also stressed that Ferhat had never been taken into custody. 94. Mr Çavdar confirmed that Mr Şentürk’s nickname was “the bearded one”. Mr Pekdaşoğlu was first asked to give an account of what he had been doing on 28 July 1993 three days after the incident. He explained that he used to have a beige car at the time, with the licence plate number 65 DA 092, and that on 28 July 1993 this car had been parked in front of his house. He had not lent it to anyone. Eye-witnesses identified it as not being the vehicle involved in the incident. The car involved in the abduction had been a white Renault Toros. 95. The witness was a former member of the PKK, holding a leadership position in the organisation until he was caught on 28 December 1992. Benefiting from the confession law, he became a “confessor” in return for information he gave to the authorities. He was released in mid-1994. 96. In or around March 1992 the witness and two other local leaders of the PKK summoned Ferhat Tepe to Germak village in the Bitlis area and questioned him in relation to his activities. Subsequent to a second meeting held on 14 August 1992 in the mountains, in September 1992 Ferhat was sentenced to death on the grounds that he had been the cause of the killing of a female member of the PKK as a result of having had sexual intercourse with her and that he had used money collected for the PKK for his own purposes, i.e. to build a house and to buy a car. 97. The witness explained that the PKK carried out death sentences by shooting where security did not pose a problem. Alternatively, other methods were used, such as throwing people down from rocks and strangling or drowning. Subsequent to his arrest, the witness reported to the police that Ferhat was on the list of persons sentenced to death by the PKK. However, he did not know whether Ferhat had been killed by the PKK. 98. The witness was the commander of the Diyarbakır provincial gendarmes headquarters from 1992 to 1995. He was in charge of law and order and security in the rural areas within the boundaries of the province of Diyarbakır, which did not include the area around Bitlis. His organisation did not carry out any investigation into Ferhat Tepe’s death. He was asked by the Chief Public Prosecutor at the Diyarbakır State Security Court whether Ferhat Tepe had been taken into their custody. After examining the custody records and consulting his colleagues in all the gendarmes stations under his command, the witness reported back that no one of that description had been brought to their premises or taken into custody or involved in any incident in their region. 99. The witness admitted to mistakes or negligence in the keeping of the custody records at headquarters. He stated that, for security reasons, it was routine practice to blindfold people taken into custody when they arrived at headquarters. The blindfold was taken off once they were inside and, after that, they were never blindfolded. While he was serving in Diyarbakır, the witness heard some rumours about a Turkish-Ottoman Revenge Brigade, but there was never any concrete evidence of the existence of such an organisation. 100. The witness had been the head of the interrogation unit composed of ten officers at the Diyarbakır provincial gendarmes headquarters. His recollection of Ferhat Tepe’s death was limited to the question asked by his commander, Mr Eşref Hatipoğlu, namely whether Ferhat had been taken into custody. He consulted the records and told his commander that Ferhat had not been detained. 101. The witness was not in charge of keeping the custody records and there was an officer specifically responsible for that duty at the headquarters. He asserted that detainees were never blindfolded during interrogation and that there was never any physical contact between the interrogators and those detained. He denied the suggestion that anybody had been tortured in the interrogation unit, since medical certificates were issued at the end of the custody period. He further stated that, at the relevant time, there had been twenty detention cells. If more than twenty detainees were brought in, they were transferred to other districts and held there until a cell became vacant in Diyarbakır. 102. The witness was the Bitlis Security Director in command of a staff of eight hundred people at the relevant time. On 29 July 1993 he was on duty when the applicant, along with his wife and daughter, came to the Bitlis police headquarters to tell him that he feared for the life of his son who had disappeared. The witness reassured the applicant, saying that he had checked with his colleagues that Ferhat had not been taken into their custody. He explained that every morning he received a list of the persons taken into custody by any of the security forces in his zone. This list was drawn up by the provincial police headquarters in the form of a report, listing the incidents of the day in the municipal area. It was then sent to the governor’s office. A similar report was submitted to the governor by the gendarmes responsible for rural areas. There were also daily security meetings held in the province with the Governor, which the witness and Yüksel Özçelik attended. 103. The witness assigned a police superintendent to the task of keeping in touch with the Tepe family. Statements were taken from all the persons named by the family. The information regarding the disappearance of Ferhat was communicated by radio and telex to all provinces in Turkey. The witness confirmed that he had been asked by the applicant to trace phone calls, but this procedure had not led anywhere, as in 1993, it was not possible to trace calls made from public telephone booths. Unable to obtain traceable bank notes from the National Police Headquarters owing to bureaucratic obstacles, he could not give cash to the applicant to pay the ransom. 104. The witness was the doctor who signed the autopsy report. At the relevant time, he was a general practitioner working at the district health centre in the Sivrice district of Elazığ. He was not a pathologist qualified to conduct autopsies. He had, however, witnessed many autopsies carried out on persons drowned in Lake Hazar. He claimed that there were ten to fifteen drowning incidents per day at the relevant time. 105. The witness said he remembered the incident very well. He arrived at the scene of the incident at about 8 a.m. on 4 August 1993. After examining the body, he concluded that it was definitively a case of death by drowning which had occurred within a maximum of four hours. The deceased’s lips were discoloured as though he had been deprived of oxygen and cyanosis had occurred. Rigor mortis had not set in. He could not see any scratches on the body. Nor did he find any fracture or bruising thereon. There was no sign that the deceased had been either in a fight or hit, beaten, pushed, thrown or killed, or that the body had been brought and thrown into the water. However, the witness saw some marks on the neck and diagnosed them as being erythema, an allergic reaction. He did not think it was necessary to note this in the autopsy report. The witness considered it unnecessary to call in a pathologist or to apply to superior authorities for an autopsy, since he had no doubt that it was a case of ordinary drowning. 106. The witness found the body on 4 August 1993, at 7.30 a.m. He had gone to the lake early in the morning for fishing. He saw the body half submerged in the water. The body had underpants on. He pulled the body onto the shore and left it right by the edge of the water. He did not notice any particular features on the body, such as bloodstains or marks of any kind. He saw that there were some clothes – trousers and a shirt which had been placed on the shoes – about half a metre from the shore. He then went to a petrol station and called the Sivrice gendarmes station. He stayed on the spot for about an hour and a half and statements were taken from him by the public prosecutor. 107. The witness, who signed the autopsy report, was at the time the Sivrice Public Prosecutor in Elazığ. Although it was not the usual practice, he had photographs taken of the body for identification purposes following the post-mortem examination. At the beginning of his testimony, the witness stated that he had not taken any steps to see whether the body he had found matched any person reported as missing. After consulting the doctor and having heard the witnesses, he decided that a systematic autopsy was unnecessary as there was nothing suspicious about the incident and that he had come across similar drowning incidents in the past. However, he had not encountered a case where the identity of the victim was unknown and the identity card missing. Later he said that he had instructed both the gendarmes and the police to investigate whether anyone had reported a relative missing. He had the body sent to the morgue of the Elazığ State Hospital as there was no suitable morgue in Sivrice. He was informed later that the body had been buried because of a technical problem in the morgue. However, he did not know when the body had been buried and who had ordered the burial. He did not know anything about Ferhat Tepe until Ferhat’s cousin, a lawyer, had applied to their office five days after the incident. When the witness learned that the scene of the incident fell within the territorial jurisdiction of Elazığ, he issued a decision of non-jurisdiction on 9 August 1993. 108. The witness was the public prosecutor in Elazığ, in charge of the investigation into the death of Ferhat Tepe. In the investigation file and the autopsy report he received, there were no findings indicating that the deceased had been tortured. There was no sign of any ill-treatment on the photographs. In their statements made at the Hozat Public Prosecutor’s office, Mr Murat Koparan, Mr Taner Şarlak and Mr Erkan Dağdelen had denied the allegations contained in the declarations addressed “To the Public”. There was therefore no evidence that Ferhat had been abducted or killed under torture. The witness considered the incident to be a case of ordinary death by drowning and, accordingly, did not deem it necessary to conduct any further investigation. 109. The witness was the Chief Public Prosecutor in Bitlis at the time of the events. He was on judicial leave from 20 July to 6 September 1993. On 28 September 1993 he was appointed as a judge to a court in İstanbul. He could not contribute to the elucidation of the facts. 110. The witness was one of the two Public Prosecutors who were deputies to the Chief Public Prosecutor in Bitlis. He was on duty when the Chief Public Prosecutor was on leave. He issued a decision of non-jurisdiction on 12 August 1993 after the body had been found and sent the preliminary investigation file he had prepared to the Sivrice Chief Public Prosecutor’s office. He said the case had struck him as a unique and unusual one at the time. However, he could not remember whether he had done anything about the case, but said: “I must have started the investigation”. 111. The witness was a trainee public prosecutor in Ankara in July and August 1993. He did not take part in any investigation concerning Ferhat Tepe. 112. The witness was assigned to the Bitlis office as a public prosecutor on 24 February 1993. He was on duty in July and August 1993 along with his colleague, Mr Erdal Poyraz. He confirmed that Mr Poyraz had been in charge of the investigation while he personally had not been involved in it. He did remember, however, that there had been some incidents during the funeral. 113. On 20 July 1993 all three witnesses were arrested on suspicion of aiding and abetting members of the PKK and taken into custody at the Hazro gendarmes headquarters, where they stayed for two days. The witnesses were then taken to Diyarbakır and kept at the gendarmes headquarters between 22 July and 13 August 1993. On the latter date, the Diyarbakır State Security Court ordered the witnesses’ detention on remand and they were transferred to Diyarbakır E-type Prison. They stayed in the same cell for two months until the State Security Court ordered their release following acquittal. 114. The witnesses denied the suggestion that, during their detention, they had seen Ferhat Tepe being tortured or killed. Nor had they known of him or heard of a journalist being detained in the same place with them. As regards the document addressed to the public which they had signed in prison, the witnesses alleged that the persons in the ward who had told them to sign this document had tricked them into it, as it contained statements which they had never uttered. They thought that it was a document prepared for the purposes of their defence in court; they had not read the document before signing it. The witnesses further stressed that they had been very young at the relevant time (16, 20, and 14 years old respectively) and that the persons who had made them sign the document had taken advantage of their youth and inexperience. The witnesses finally claimed that they had learned of the content of the impugned document when the Hazro Public Prosecutor had taken their statements about it on 26 February 1996. 115. The Turkish Criminal Code (Türk Ceza Kanunu), as regards unlawful killings, has provisions dealing with unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450). 116. Under Articles 151 and 153 of the Turkish Code of Criminal Procedure (Türk Ceza Muhakemeleri Usulü Kanunu; hereinafter “CCP”), complaints in respect of these offences may be lodged with the public prosecutor. The complaint may be made in writing or orally. In the latter case, such a complaint must be recorded in writing (Article 151 CCP). The public prosecutor and the police have a duty to investigate crimes reported to them (Article 153 CCP). 117. If there is evidence to suggest that death is not due to natural causes, police officers or other public officials who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152 CCP). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duties is liable to imprisonment. 118. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient. 119. In so far as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP). 120. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows: “All acts of decisions of the administration are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 121. This provision is not subject to any restriction even in a state of emergency or war. The second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus, the administration may indemnify individuals who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 122. Under Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tort may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court as to the issue of the defendant’s guilt (Article 53).

train

001-60974

ENG

SVK

CHAMBER

CASE OF LESNIK v. SLOVAKIA

No violation of Art. 10

Nicolas Bratza

9. The applicant was born in 1940 and lives in Košice. He is a businessman. 10. On 2 December 1991 the applicant requested the Košice City Prosecutor’s Office to bring criminal proceedings against H., a businessman from the Czech Republic whom he suspected of having committed fraud. The request was examined by various authorities but no criminal proceedings were brought. 11. On 4 December 1992 the applicant complained to the police that two unknown men had left a message at the entrance to his flat saying that they would break his hands if he did not “abstain from writing”. On 13 April 1993 the applicant complained to the police that a shot had been fired through a window in his flat. He claimed that he was being harassed because he had written articles about several former members of the Communist Party. Subsequently the applicant was informed that the police could not identify the perpetrators. 12. On 5 April 1993 the applicant complained to the head of the Košice Telecommunications Authority that, following a change of the central switchboard, telephone conversations at his agency were frequently interrupted. The applicant stated that there was a noise on the telephone prior to the interruption of a call which was similar to that which had formerly occurred when telephone calls were tapped by the communist secret police. He requested that the fault be remedied. 13. On 10 June 1993 a police investigator brought criminal proceedings against the applicant on the ground that he was suspected of having stolen goods from H. The decision was based on a written communication by the district prosecutor in Semily (Czech Republic). 14. On 1 November 1993 the applicant asked the Košice Regional Prosecutor to discontinue the criminal proceedings against him. In his letter the applicant complained, without providing further details, that the police investigator dealing with his case had obtained information on him by unlawfully tapping his telephone. He requested that criminal proceedings be brought against a person or persons unknown for illegal telephone tapping. 15. On 6 December 1993 the applicant addressed a letter to P., the Košice I district prosecutor. The letter contained, inter alia, the following statements: “Since you have not succeeded, comrade prosecutor, in attaining your aims in one area, you continue energetically, in accordance with the practice of the [former] State Security agents, to fabricate another case [against the applicant] as you have learned to do under the so-called infallible socialist law. On this occasion I can assure you, however, that I have not bowed to the high representatives of the former political system and, in particular, the [former] State Security agents who paid at least as much attention to my person as you do now. I do not intend today to let myself be intimidated, especially not by individuals such as yourself, a person with a dubious past, not to speak of [your] other qualities ... It is not only my earlier experience of managing a detective agency which makes it difficult for me to associate you with objectivity, professionalism and respect for the law. I would therefore like to remind you on this occasion that you are also bound by the law despite the fact that you probably consider yourself ... to be an almighty lord of the Tatra [Mountains] and the Váh [River] and, as such, beyond anyone’s reach as you are, for the time being, under the protective hand of comrade [M.]. Abuse of the law may have very unpleasant consequences for you. For the time being, I will only mention some of the abuses which do not call for any comments.” 16. In the letter the applicant further stated that the addressee was responsible for the dismissal of his criminal complaint against H. and the institution of criminal proceedings against him in 1993, and that he had unlawfully ordered the tapping of his telephone. 17. P. submitted the letter to his hierarchical superior, the Košice Regional Prosecutor. In a letter of 17 March 1994 the latter informed the applicant that it had not been established that P. had given an order to tap his telephone or that he had otherwise acted unlawfully. 18. In the meantime, on 7 March 1994, the applicant complained to the General Prosecutor that P. had committed an offence in that he had misused his authority. The letter read, inter alia, as follows: “[P.] accepted the request of [H.’s lawyer] ... that no criminal proceedings would be brought against [H.] in Slovakia notwithstanding that sufficient evidence existed to do so ... Of course, money paid by [H.] with a view to covering up his fraudulent activity also played a role in the matter. It would therefore be worth examining in this context whether [an offence of bribery was not committed] ... Following a ... threat ... by ... an investigator from the Košice I Investigation Office in the context of the case of [H.] ... I went to the aforesaid office on 10 June 1993. After I had rejected an ‘agreement’ which was proposed to me, [the investigator], a former State Security agent, accused me of having stolen [goods from H.] in 1991. Thus [P.] has been unwilling to bring proceedings against [H.] since 1991, and has arranged, through a police investigator who can easily be blackmailed, for proceedings to be brought against me in revenge for the justified complaints I had lodged against him. [P.] did so contrary to [the relevant provisions of the Code of Criminal Procedure] because so far ... there is no evidence before [the relevant authorities] from which to conclude with sufficient certainty that I stole anything from [H.] Subsequently I realised that my telephone, which was also used by my detective agency, had been tapped contrary to Article 88 of the Code of Criminal Procedure.” 19. On a petition by P., the General Prosecutor’s Office agreed that criminal proceedings be brought against the applicant for insulting a public prosecutor. The case was transferred to a public prosecutor in Liptovský Mikuláš. On 2 June 1994 the applicant was charged with insulting a public official in his letters of 6 December 1993 and 7 March 1994 mentioned above. 20. In a letter of 5 September 1994 addressed to the Košice Regional Prosecutor’s Office, the applicant expressed the view that the purpose of the harassment to which he was subjected in 1992 and 1993 had been to make him withdraw his criminal complaint against H. He requested that an investigation be opened. 21. In September 1994 the newspaper Necenzurované noviny published an article by a third person describing the applicant’s case in detail. It was entitled “How the Red Plague operates in Eastern Slovakia” and contained quotations from the applicant’s letters. The relevant parts read as follows: “... It is on this basis that the district prosecutor’s office in Liptovský Mikuláš started a prosecution against [the applicant] on 2 June 1994. In order to give the reader an idea of what is possible in [Slovakia], I will quote the text which, according to public prosecutor [L.], constitutes a criminal offence. In his message of 7 March 1994 addressed to the General Prosecutor in Bratislava, [the applicant] stated in respect of [public prosecutor P.] that in the criminal case of [H.] he had deliberately acted wrongly so that ‘he could satisfy his friend [M.] from Košice, the former President of the Košice City Court whom the City Committee of the Communist Party of Slovakia had identified as a key official and who is now [H.]’s lawyer, that no criminal proceedings would be brought against [H.] in Slovakia notwithstanding that sufficient evidence existed to do so ... Of course, money paid by [H.] with a view to covering up his fraudulent activity also played a role in the matter. It would therefore be worth examining in this context whether the facts do not fall under Articles 161 and 162 of the Criminal Code [which govern the offence of bribery]’. In the same document [the applicant] stated: ‘Subsequently I realised that my telephone, which was also used by my detective agency, had been tapped contrary to Article 88 of the Code of Criminal Procedure.’ In a letter dated 6 December 1993 and addressed to public prosecutor [P.], [the applicant] stated among other things: ‘Since you have not succeeded, comrade prosecutor, in attaining your aims in one area, you continue energetically, in accordance with the practice of the [former] State Security agents, to fabricate another case as you have learned to do under the so-called infallible socialist law. On this occasion I can assure you, however, that I have not bowed to the high representatives of the former political system and, in particular, the [former] State Security agents who paid at least as much attention to my person as you do now. I do not intend today to let myself be intimidated, especially not by individuals such as yourself, a person with a dubious past, not to speak of [your] other qualities ...’ In the same letter [the applicant] went on: ‘It is not only my earlier experience of managing a detective agency which makes it difficult for me to associate you with objectivity, professionalism and respect for the law. I would therefore like to remind you on this occasion that you are also bound by the law despite the fact that you probably consider yourself to be an almighty lord of the Tatra [Mountains] and the Váh [River] and, as such, beyond anyone’s reach since you are, for the time being, under the protective hand of comrade [M.]. Abuse of the law may have very unpleasant consequences for you. For the time being, I will only mention some of the abuses which do not call for any comments.’ Thus, on the basis of these statements, prosecutor [L.], on the instructions of [the General Prosecutor], started a prosecution against [the applicant]. Every decent person must be astonished to learn of such stupid behaviour.” 22. On 7 November 1994 the applicant stated before the prosecutor in Liptovský Mikuláš that he had intended to criticise P. for his wrongful actions but not to insult him. He further informed the public prosecutor dealing with the case that he had not written any newspaper article on the issue, but had merely provided the author with the relevant documents. 23. On 8 November 1994 the Košice Regional Prosecutor submitted a document to the district prosecutor’s office in Liptovský Mikuláš indicating, with reference to the relevant register, that the Košice I district prosecutor had not ordered the tapping of the applicant’s telephone between 1992 and 1994. 24. On 23 November 1994 the Liptovský Mikuláš district prosecutor indicted the applicant before the Liptovský Mikuláš District Court on the charge of insulting a public official. On 25 November 1994 the Liptovský Mikuláš District Court transferred the case to the Košice I District Court for reasons of jurisdiction. As the public prosecutor affected by the applicant’s statements was responsible for the same district, the Košice Regional Court, on 9 March 1995, transferred the case to the Trebišov District Court. 25. On 25 April 1995 the Trebišov District Court issued a penal order in which it convicted the applicant of attacking a public official, on the ground that, in his letters of 6 December 1993 and 7 March 1994, he had insulted a public prosecutor. The court sentenced the applicant to four months’ imprisonment suspended for a probationary period of one year. 26. The applicant appealed against the order. The case was assigned to another judge. On 25 June 1996 the Trebišov District Court convicted the applicant under Article 156 § 3 of the Criminal Code of insulting a public official and sentenced him to four months’ imprisonment suspended for a probationary period of one year. The judgment stated, in particular, that in his letters the applicant had alleged that the public prosecutor had deliberately acted improperly as regards the applicant’s request of 1991 for criminal proceedings to be brought against H.; that the public prosecutor had done so at the request of the lawyer representing H.; and that H. had paid a sum of money for this purpose. The District Court also noted that the applicant had accused P. of having been unwilling to uphold his criminal complaint, of having ordered criminal proceedings to be brought against him and of having his telephone illegally tapped. 27. The judgment further stated that the applicant had not shown that the public prosecutor in question had failed to act in accordance with the law. The court therefore concluded that the applicant’s statements were defamatory and grossly offensive. 28. The District Court did not accept the applicant’s defence that the sole purpose of his letters had been to have his request for criminal proceedings to be brought against H. dealt with appropriately. The court noted that, besides the two letters in question, the applicant had sent a considerable number of other complaints concerning the same issue which, however, had contained no defamatory or offensive remarks. Both the Košice Regional Prosecutor’s Office and the General Prosecutor’s Office had dealt with the applicant’s complaints and had dismissed them as being unsubstantiated. 29. The applicant appealed, both personally and through his lawyer. He alleged that the purpose of his remarks had been to prevent further delays in the proceedings concerning his criminal complaint of 1991, and not to offend P. He further claimed that the statements in question were not offensive and did not constitute an offence. 30. On 24 September 1996 the Košice Regional Court dismissed the appeal after hearing evidence from the applicant and asking him to substantiate his allegations. 31. The Regional Court found that in the statements made in his letters of 6 December 1993 and 7 March 1994 the applicant had grossly insulted a public prosecutor without justification. In particular, it stated that the applicant had failed to substantiate his allegation that H. had paid a sum of money in order to prevent criminal proceedings being brought against him and reiterated that the General Prosecutor’s Office had not established that P. had acted unlawfully in this or any other respect. 32. The Regional Court further considered defamatory and grossly offensive the applicant’s statements that the public prosecutor had acted in accordance with the practice of the former State Security agents, had a dubious past, not to speak of his other qualities, and possibly considered himself to be an almighty lord of the Tatra Mountains and the Váh River who was “beyond anyone’s reach”. 33. In the Regional Court’s view, the applicant had failed to show that he had a justified reason to make such statements. The court did not accept the applicant’s argument that he had doubts about the past and qualities of the public prosecutor because the latter had studied socialist law, had failed to take appropriate action on the applicant’s criminal complaint of 1991, and initiated criminal proceedings against him. 34. In its judgment the Regional Court pointed out that the applicant had not been hindered in seeking redress before the appropriate authorities for the actions of P. which he considered inappropriate or unlawful. It held, however, that by making defamatory and offensive remarks the applicant had committed an attack against a public official within the meaning of Article 156 § 3 of the Criminal Code. The Regional Court upheld the sentence which the District Court had imposed on the applicant. 35. On 28 October 1996 the Košice IV District Office revoked the trading licence under which the applicant had been authorised, inter alia, to run a detective agency, on the ground that he had been convicted of an offence. On 12 December 1996 the Košice Regional Office dismissed the applicant’s appeal against this decision. 36. On 4 June 1997 the Košice Regional Court quashed the administrative decisions concerning the revocation of the applicant’s trading licence and remitted the case to the Košice Regional Office. In its judgment the Regional Court noted that both administrative authorities, deciding at lower instances, had failed to establish any relevant legal grounds for their decisions. 37. On 18 November 1997 the Trebišov District Court issued a decision noting that the applicant had not committed any offence during the probationary period and stating that he was to be considered as not having been convicted. 38. As from 1 January 1998 the relevant law was amended in that persons wishing to run private security agencies were required to obtain the approval of the police headquarters. The applicant did not ask for such approval and returned his trading licence of 7 January 1993, under which he had been allowed to run a detective agency, to the Košice IV District Office on 3 June 1998. In the meantime, on 18 February 1998, he registered with the relevant authorities as running a different business. He attached a certificate indicating that his criminal record was clean and received a new trading licence on 6 April 1998. 39. Article 156 § 3 of the Criminal Code provides that a person who utters grossly offensive or defamatory remarks in respect of a public official relating to that official’s exercise of his or her powers shall be punished by up to one year’s imprisonment or a fine.

train

001-114244

ENG

GBR

CHAMBER

CASE OF HODE AND ABDI v. THE UNITED KINGDOM

Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for home;Article 8 - Right to respect for private and family life)

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

4. The first applicant was born on 13 February 1980 and currently lives in Leeds. The second applicant was born on 15 January 1990 and currently lives in Djibouti. 5. The first applicant arrived in the United Kingdom on 18 February 2004. He claimed asylum and that claim was accepted in March 2006. Prior to 30 August 2005, successful asylum seekers were granted Indefinite Leave to Remain in the United Kingdom along with refugee status. However, after 30 August 2005 the Immigration Rules were amended and refugees were granted an initial period of 5 years’ Leave to Remain, following which they could apply for Indefinite Leave to Remain. Consequently, the first applicant was granted five years’ leave to remain in the United Kingdom, to expire on 16 March 2011. At the same time, he was provided with a Refugee Convention Travel Document (“CTD”), also to expire on 16 March 2011. 6. In June 2006 the first applicant was introduced to the second applicant through a friend. In February 2007 he travelled to Djibouti to meet her and they married on 5 April 2007. They lived together in Djibouti until the first applicant returned to the United Kingdom on 15 May 2007. 7. The second applicant applied for a visa to join the first applicant in the United Kingdom. Although the first applicant was a refugee, the applicants did not qualify for “family reunion” under the Immigration Rules HC 395 (as amended) (“the Immigration Rules”) because paragraph 352A of the Immigration Rules only applied to spouses who formed part of the refugee’s family unit before he or she left the country of permanent residence. The second applicant therefore applied for leave to enter the United Kingdom under paragraph 281 of the Immigration Rules, as the spouse of a person present and settled in the United Kingdom. 8. On 18 November 2007 the Entry Clearance Officer refused the application on the ground that the first applicant, having only been granted five years’ Leave to Remain, was not a person present and settled in the United Kingdom for the purposes of paragraph 281. 9. On 17 February 2008 the second applicant gave birth to a son. The first applicant was named as the father on the birth certificate. 10. The second applicant appealed against the decision to refuse her application for leave to enter. The Immigration Judge accepted that the applicants were married and that the first applicant had sufficient funds to accommodate and maintain his wife and child. He also accepted that the refusal of entry clearance engaged the rights of both applicants under Article 8 of the Convention. He dismissed the appeal, however, holding that the refusal of entry clearance would not interfere disproportionately with the second applicant’s rights under Article 8 of the Convention. In particular, he noted that she had never enjoyed her family life in the United Kingdom and there were no obstacles to prevent the first applicant from living in Djibouti other than that he could not speak French and would be unlikely to secure employment there. 11. The second applicant applied for reconsideration of the decision. In a decision dated 28 August 2008, the Asylum and Immigration Tribunal refused to order reconsideration. On 24 October 2008 the Administrative Court also dismissed the application for reconsideration. 12. The first applicant’s leave to remain in the United Kingdom expired on 16 March 2011. He was subsequently granted Indefinite Leave to Remain. 13. In April 2011 the Immigration Rules were amended to permit refugees to be joined in the United Kingdom by post-flight spouses during their initial period of leave to remain, provided certain other conditions were met. 14. The second applicant has not re-applied for leave to enter the United Kingdom as the spouse of the first applicant. 15. The second applicant gave birth to the applicants’ second child on 17 July 2011. 16. At the relevant time paragraph 352A of the Immigration Rules contained the requirements for family reunion for refugees. It provided that: “The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that: (i) the applicant is married to or the civil partner of a person granted asylum in the United Kingdom ; and (ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and (iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and (iv) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage is subsisting; and (v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.” 17. Consequently, at the relevant time a refugee could only be joined in the United Kingdom by a spouse pursuant to paragraph 352A if the marriage took place before leaving the country of formal habitual residence. 18. In April 2011 the Government introduced paragraph 319L of the Immigration Rules, which made family reunion available to post-flight family members of refugees. It provided that: “319L. The requirements to be met by a person seeking leave to enter the United Kingdom as the spouse or civil partner of a person with limited leave to enter or remain in the United Kingdom as a refugee or beneficiary of humanitarian protection, are that: (i) (a) the applicant is married to or the civil partner of a person who has limited leave to enter or remain in the United Kingdom as a refugee or beneficiary of humanitarian protection granted such status under the immigration rules and the parties are married or have formed a civil partnership after the person granted asylum or humanitarian protection left the country of his former habitual residence in order to seek asylum or humanitarian protection; and (b) the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference) unless: (i) the applicant is aged 65 or over at the date he makes his application; or (ii) the Secretary of State or Entry Clearance Officer considers that the applicant has a physical or mental condition that would prevent him from meeting the requirement; or (iii) the Secretary of State or entry Clearance officer considers there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement; or (iv) the applicant is a national of one of the following countries: Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; USA; or (v) the applicant has obtained an academic qualification (not a professional or vocational qualification), which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Masters degree or PhD in the UK, from an educational establishment in one of the following countries: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and The Grenadines; Trinidad and Tobago; the UK; the USA; and provides the specified documents; or (vi) the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Masters degree or PhD in the UK, and (1) provides the specified evidence to show he has the qualification, and (2) UK NARIC has confirmed that the degree was taught or researched in English, or (vii) has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Masters degree or PhD in the UK, and provides the specified evidence to show: (1) he has the qualification, and (2) that the qualification was taught or researched in English; and (ii) the parties to the marriage or civil partnership have met; and (iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and (iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and (v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and (vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.” 19. Paragraph 281 of the Immigration Rules is a general provision enabling persons present and settled in the United Kingdom to be joined by a spouse or civil partner if certain conditions are met. It provided that: “The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that: (i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or (b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and (b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and (ii) the parties to the marriage or civil partnership have met; and (iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and (iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and (v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and (vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.” 20. Prior to 30 August 2005, successful asylum seekers were given Indefinite Leave to Remain alongside refugee status. As they were “persons present and settled in the United Kingdom”, post-flight spouses could join them provided the other requirements set down in paragraph 281 of the Immigration Rules were met. After 30 August 2005 the rules were changed and refugees were instead granted an initial period of five years’ leave to remain, although they could subsequently be granted Indefinite Leave to Remain. As a consequence of the change of the rules, for the first five years refugees were not “persons present and settled in the United Kingdom” and could not be joined by a post-flight spouse during this period even if all the other requirements of paragraph 281 were met. 21. Under the Immigration Rules the spouses of other categories of person granted limited leave to enter the United Kingdom could accompany or join their spouse without any requirement that the marriage took place in the country of former habitual residence. Paragraph 76 of the Immigration Rules contained the requirements for entry to the United Kingdom as the spouse of a student or prospective student. It provided that: “The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a student or a prospective student are that: (i) the applicant is married to or the civil partner of a person admitted to or allowed to remain in the United Kingdom under paragraphs 57-75 or 82-87F; and (ii) each of the parties intends to live with the other as his or her spouse or civil partner during the applicant’s stay and the marriage or the civil partnership is subsisting; and (iii) there will be adequate accommodation for the parties and any dependants without recourse to public funds; and (iv) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and (v) the applicant does not intend to take employment except as permitted under paragraph 77 below; and (vi) the applicant intends to leave the United Kingdom at the end of any period of leave granted to him.” 22. Similarly, paragraph 194 of the Immigration Rules contained the requirements for entry to the United Kingdom of a person with leave to remain for the purpose of obtaining employment. It provided that: “The requirements to be met by a person seeking leave to enter the United Kingdom as the spouse or civil partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that: (i) the applicant is married to or a civil partner of a person with limited leave to enter the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K); and (ii) each of the parties intends to live with the other as his or her spouse or civil partner during the applicant’s stay and the marriage or civil partnership is subsisting; and (iii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and (iv) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and (v) the applicant does not intend to stay in the United Kingdom beyond any period of leave granted to his spouse; and (vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.” 23. In 2009 the case of A (Afghanistan) v. the Secretary of State for the Home Department [2009] EWCA Civ 825 came before the Court of Appeal. The appellant, an Afghani national resident in Pakistan, was refused leave to join her husband, a refugee, in the United Kingdom because the marriage had taken place after he left his country of permanent residence. At the time of the application the appellant was heavily pregnant and there was evidence to suggest that her husband could not live in Pakistan. An Immigration Judge dismissed her appeal, which then went before the Asylum and Immigration Tribunal for reconsideration. The Tribunal was unable to identify any public interest being served by the omission from the Immigration Rules of any provision for a refugee to bring a post-flight spouse to the country. However, it held that Article 8 could not be used to plug lacunae in the Immigration Rules and, on the facts of the case, it was not engaged. 24. On appeal, the Court of Appeal had no doubt that the interference with family life which would result from not allowing a husband and his heavily pregnant wife in a genuine and subsisting marriage to cohabit had consequences of such gravity as potentially to engage the operation of Article 8. It therefore fell to the Court of Appeal to consider whether or not there was a public interest in refusing to grant the appellant leave to enter. As the Government had submitted its skeleton argument on the public interest point at a late stage, the court held that it was estopped from reopening the issue. Although it went on to allow the appellant’s appeal against the refusal of entry clearance, it clearly stated that its decision could be of no authority if and when the issue arose again. 25. The following year the Upper Tribunal (Immigration and Asylum Chamber) had to consider the same question in FH (Post-flight spouses) Iran [2010] UKUT 275. The appellant was an Iranian national resident in Iran who was refused leave to join her husband, also an Iranian national, who had been granted refugee status in the United Kingdom. It was not suggested that there was any other country where the appellant and sponsor could live together as husband and wife. An Immigration Judge refused her appeal. The Upper Tribunal allowed her appeal. It noted that with regard to the admission of post-flight spouses, refugees in the United Kingdom were in a particularly disadvantageous position compared to students, persons working in the United Kingdom, businessmen, artists and ministers of religion and so on. In particular, the Tribunal stated that: “...the appellant’s situation is by no means an unusual one, and it arises from provisions of the Rules for which there appears to be no justification. Unless there is some justification, of which we have not been made aware, of the Rules’ treatment of post-flight spouses, we think that the Secretary of State ought to give urgent attention to amending the Rules, by extending either paragraph 281 or, (perhaps preferably) paragraph 194, so as to extend to the spouses of those with limited leave to remain as refugees. In the meantime, it seems to us that although a decision based on Article 8 does have to be an individual one in each case, it is most unlikely that the Secretary of State or an Entry Clearance Officer will be able to establish that it is proportionate to exclude from the United Kingdom the post-flight spouse of a refugee where the applicant meets all the requirements of paragraph 281 save that relating to settlement.” 26. Paragraph 20 of the Immigration Rules provided that: “The leave of a person whose stay in the United Kingdom is subject to a time limit lapses on his going to a country or territory outside the common travel area if the leave was given for a period of six months or less or conferred by a visit visa. In other cases, leave lapses on the holder remaining outside the United Kingdom for a continuous period of more than two years. A person whose leave has lapsed and who returns after a temporary absence abroad within the period of this earlier leave has no claim to admission as a returning resident. His application to re-enter the United Kingdom should be considered in the light of all the relevant circumstances. The same time limit and any conditions attached will normally be reimposed if he meets the requirements of these Rules, unless he is seeking admission in a different capacity from the one in which he was last given leave to enter or remain.” 27. Paragraphs 11 and 13 (1) of the Schedule to the Refugee Convention provided that: “When a refugee has lawfully taken up residence in the territory of another Contracting State, the responsibility for the issue of a new document, under the terms and conditions of article 28, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply. ... Each Contracting State undertakes that the holder of a travel document issued by it in accordance with article 28 of this Convention shall be readmitted to its territory at any time during the period of its validity.”

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001-91724

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CHAMBER

CASE OF GUTL v. AUSTRIA

Violation of Art. 14+9;Non-pecuniary damage - award

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

6. The applicant was born in 1977 and lives in Belgrade (Serbia). 7. On 6 July 1991 the applicant was baptised in accordance with the ceremonial rite of the Jehovah’s Witnesses and became an active member. On 1 December 1995 he assumed the function of a preacher (“special full-time servant” or “regular pioneer” – Sondervollzeitdiener, allgemeiner Pionier). 8. On 20 December 1995 the Styrian Military Authority (Militär-kommando) found the applicant fit to perform military service. It subsequently called him up (Einberufungsbefehl) to begin his military service on 1 July 1996. That order was later revoked. 9. The applicant, on 13 January 1997, filed a request with the Federal Minister for Internal Affairs (Bundesminister für Inneres) for recognition as a conscientious objector (Zivildiensterklärung). 10. Subsequently, on 14 April 1997, the Minister for Internal Affairs recognised the applicant as a conscientious objector. Accordingly, he was exempted from the duty to perform military service but liable to perform civilian service (Zivildienst). 11. From 28 July 1997 until 1 July 1998 the applicant lived in a community of preachers (“Bethel family” – Bethelfamilie), which, in the applicant’s view, is similar to a religious order (Orden) and is called the Religious Order of the Jehovah’s Witnesses (Orden der Sonder-vollzeitdiener der Zeugen Jehovas). 12. On 1 April 1998 the Ministry for Internal Affairs ordered the applicant to commence his civilian service (Zuweisungsbescheid) with the Styrian Regional Fire Brigade (Landesfeuerwehrkommando Steiermark) on 2 June 1998. 13. On 17 April 1998 the applicant became a deacon (“ministerial servant” – Diakon, Dienstamtgehilfe) within the Jehovah’s Witnesses. 14. On 30 April 1998 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) against the Ministry’s order of 1 April 1998, also requesting the suspension of its effect. The applicant submitted that he had been living in a community of preachers since 28 July 1997 and devoted all his time to religious activities. On 17 April 1998 he had become a deacon and aspired to assume the function of an elder within the Jehovah’s Witnesses. Referring to German law (section 10(1)(3) of the German Civilian Service Act) and the case-law and practice of the Federal Administrative Court (BVerwG, 29 September 1989, Zl. 8 C 53.87), he argued that persons in a similar situation (preachers and deacons) were exempt from compulsory military or civilian service. Further, the applicant complained that section 13a(1) of the Civilian Service Act exempted only members of recognised religious societies performing specific services relating to worship or religious instruction from the obligation to perform civilian service, whereas he held a comparable clerical position within the Jehovah’s Witnesses. Furthermore, section 11(1) of the newly introduced Federal Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as the “1998 Act”), which had entered into force on 10 January 1998, established that recognition under the Recognition Act was only possible after ten years’ existence as a registered religious community. Therefore this new provision precluded any recognition during the following ten years and made the Recognition Act inapplicable until 2008. The applicant requested the Constitutional Court to revoke the restriction limiting the application of section 13a(1) of the Civilian Service Act to “recognised religious societies”, and in the alternative to revoke the ten-year’ requirement laid down in section 11(1) of the 1998 Act. 15. On 8 June 1998 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It further dismissed the applicant’s request for his complaint to have suspensive effect. 16. Subsequently, on 24 June 1998, the applicant agreed with the Ministry for Internal Affairs that he would begin his civilian service in an institution for disabled persons on 1 July 1998, and he consequently left the community of preachers. 17. On 7 July 1998 the applicant requested the Constitutional Court to transmit his complaint of 30 April 1998 to the Administrative Court (Verwaltungsgerichtshof). 18. On 23 July 1998 the Constitutional Court granted the applicant’s request. 19. On 18 August 1998 the applicant supplemented his complaint and requested the Administrative Court to institute proceedings to review the constitutionality (Gesetzesprüfungsverfahren) of the wording “recognised religious societies” in section 13a(1) of the Civilian Service Act. In the alternative, he requested that the provision at issue be interpreted in conformity with the principle of equality. He thus argued that, in view of his position as a deacon in the Jehovah’s Witnesses, he should be dispensed from the obligation to perform civilian service as his position involved supporting elders by guiding the communities, carrying out clerical work in cooperation with other fellow Jehovah’s Witnesses, giving Bible readings, speeches and commentaries during worship and offering guidance for prayers; accordingly, his functions were equivalent to those of members of registered religious societies who provided services relating to spiritual welfare or clerical teaching after graduating in theological studies, or to those of students of theology who were preparing to assume a clerical function. 20. By a decision of 10 November 1998 the Administrative Court dismissed his complaint. It noted that the 1998 Act and in particular section 11(1) had not been applied and were not to be applied by the Ministry for Internal Affairs in the applicant’s case. Rather, the Ministry had to apply section 13a(1) of the Civilian Service Act, requiring recognition of a religious society as a precondition for exemption from civilian service. The provision as such raised no concerns as regards constitutionality, since its objective was not to grant an exemption from the obligation to perform civilian service to every functionary of a religious community, whether or not it was recognised. It further held that the impugned provision, on account of its explicit wording, could not be interpreted in the manner suggested by the applicant. The decision was served on the applicant’s counsel on 15 January 1999. 21. On 30 June 1999 the applicant ended his civilian service and, on 1 July 1999, he rejoined the Religious Order of the Jehovah’s Witnesses, where he stayed until the end of July 2000. Subsequently, he left the community of preachers, continued to work as a preacher and received further clerical training. 22. In September 2003 the applicant began to do missionary work as a preacher in Serbia and Montenegro. 23. Section 13a(1) of the Civilian Service Act (Zivildienstgesetz) provides as follows: “An exemption from the obligation to perform civilian service shall apply to the following members of recognised religious societies: 1. ordained priests, 2. persons involved in spiritual welfare or in clerical teaching after graduating in theological studies, 3. members of a religious order who have made a solemn vow, and 4. students of theology who are preparing to assume a clerical function.” 24. For a detailed description of the legal situation in Austria in this field see Löffelmann v. Austria (no. 42967/98).