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ECHR

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train

001-114936

ENG

POL

CHAMBER

CASE OF ŚWIĄTEK v. POLAND

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

5. The applicant was born in 1954 and lives in Niwiska. 6. The applicant is married and has six children. Prior to his application for an earlyretirement pension he had been employed for twentyfive years and had paid social security contributions to the State. 7. On 5 October 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension. 8. Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist medical centre on 31 August 2001. The certificate stated that the child (born in 1988) suffered from neurofibromatosis and scoliosis and that she was in need of her parent’s constant care. 9. On 8 November 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 October 2001 in the net amount of 1,100 Polish zlotys (PLN). 10. The Social Security Board initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. The payments were resumed as of 1 November 2001 after the applicant resigned from his fulltime job. 11. On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 6 August 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 12. On 26 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”). 13. The applicant appealed against the respective decisions divesting him of the right to an earlyretirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 14. On 1 April 2003 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence, including a medical expert opinion, that while indeed the applicant’s child suffered from neurofibromatosis he did not require his father’s permanent care since his health condition did not significantly impair his bodily functions. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he did not satisfy the requirement of necessary permanent care. 15. The applicant further appealed against the firstinstance judgment. 16. On 29 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. 17. On 17 March 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant. 18. Following the social security proceedings the applicant was not ordered to return his earlyretirement benefits paid by the Social Security Board, despite the revocation of his right to an earlyretirement pension. 19. The applicant submitted that since the revocation of the EWK pension he remained unemployed until today. During this time he received no social or unemployment benefits. His wife was unemployed until 2007 and later found a temporary employment. Their eightyear–old daughter inherited from her grandparents a small farm from which they derived no income. 20. The Government submitted that the applicant did not take up any employment after terminating it on 31 October 2001. They submitted that his wife had been employed between January 2007 and 2009. The Government also maintained that some of their children worked and that their child born in 1992 owned a farm which could have been a source of income for the family. 21. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation. 22. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2019. 23. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 24. Out of all applications lodged with the Court, about twentyfour applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case. 25. One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements. 26. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 3134, 15 September 2009. 27. The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). 28. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”), which at the relevant time read as follows: “The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.” On 1 July 2004 a new subparagraph 114 (1) (a) was added, which reads as follows: “Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.” 29. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser. 30. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 31. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for reexamination. Where the Supreme Court failed to find nonconformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. 32. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an agelimit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution. 33. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits. 34. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted. 35. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.

train

001-5300

ENG

TUR

ADMISSIBILITY

YAVUZ v. TURKEY

Inadmissible

Christos Rozakis

The applicants are all Turkish citizens, born respectively in 1942, 1947, 1971 and 1972. They are resident in Diyarbakır. The first applicant is the father of Genco Yavuz, who was killed in 1991. The second, third and fourth applicants are respectively the deceased’s mother, sister and brother. The applicants are represented before the Court by Mrs Hülya Sarsam and Mr Nusret Senem, lawyers practising in Ankara. A. The facts of the case, as submitted by the parties, may be summarised as follows: On 12 February 1991, Genco Yavuz was shot dead by a soldier in the canteen used by his military unit following a dispute about drugs. The soldier responsible for his death was prosecuted before the Kırklareli Military Court. The applicants joined the proceedings as intervenors. In its judgment of 24 November 1992 the Kırklareli Military Court found the accused soldier guilty of unlawful killing and sentenced him to twenty-years’ imprisonment. When fixing sentence the court had regard to mitigating circumstances, namely the fact that the accused had been severely provoked by the deceased at the time of the incident. On 9 February 1994 the military Court of Cassation annulled the Kırklareli Military Court’s judgment on the ground that the military court had misdirected itself on the level of provocation to be attributed to the behaviour of the deceased at the material time. The case was remitted to the military court. In its judgment of 27 December 1994, the military court had regard to the fact that the accused soldier had finished his military service and for that reason ruled that it had no jurisdiction to deal with the case. The case was transferred to the Kırklareli Assize Court. The applicants joined the proceedings as intervenors. On 17 October 1995 the Kırklareli Assize Court sentenced the accused to death. The sentence was later commuted to thirty-years’ imprisonment. On 29 June 1992 the applicants lodged an action for damages before the Supreme Military Administrative Court against the Ministry of Defence. The applicants maintained that Genco Yavuz was killed by a soldier who, prior to his military service, had been found guilty of wilful homicide. The applicants stated that the rules governing the carrying of firearms had not been respected and that the fault lay with the administration. In its decision of 30 November 1994 the Supreme Military Administrative Court found that the applicants had made out their case in part. The court ruled that a causal link existed between Genco Yavuz’s death and the act of an agent of the State given that the latter had on him at the relevant time a firearm belonging to the State. The court also noted that the deceased had by his behaviour provoked the State agent. Basing itself on an expert’s report, the court awarded compensation for pecuniary and non-pecuniary damage to the father and mother of Genco Yavuz. The applicants’ request for rectification of the judgment was rejected by the same court on 5 April 1995. B. Relevant domestic law Article 157 of the Turkish Constitution provides: “The Supreme Military Administrative Court shall be the first and last instance for the judicial supervision of disputes arising out of administrative actions involving military personnel or relating to military service, even if such acts and actions have been carried out by civilian authorities. However in disputes arising out of the obligation to perform military service, there shall be no condition that the person concerned be a member of the military body. Members of the Supreme Military Administrative Court who are military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the President and members of the court, who are also military judges, by secret ballot and by an absolute majority of the total number of such members, from among military judges of the first category; members who are not military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the Chief of the General Staff from among the officers holding the rank and qualifications prescribed by law. The term of office of members who are not military judges shall not exceed four years. The President, the Chief Public Prosecutor and Head of Division of the Court shall be appointed among military judges according to rank and seniority. The organisation and functioning of the Supreme Military Administrative Court, its procedure, disciplinary affairs and other matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and the requirements of military service.” The Law governing the Supreme Military Administrative Court (Law No. 1602, 4 July 1972) (unofficial translation) Article 4 (Security of tenure) “The President, the Chief Public Prosecutor, the Members and the Presidents of the Chambers of the Supreme Military Administrative Court, being judges of this Court, are guaranteed security of tenure under the Constitution of the Turkish Republic.” Article 8 (Selection of the Members) “The President of the Republic shall select: The members of the Supreme Military Administrative Court from among military judges on the basis of a list of three candidates nominated in respect of each vacant office by an absolute majority of the total number of current members and presidents who belong to the ranks of military judges. The members of the Supreme Military Administrative Court who do not belong to the ranks of military judges shall be appointed from a list of three candidates nominated in respect of each vacant office by the Chief of the General Staff.” Article 14 (Chambers) “The Supreme Military Administrative Court shall be composed of two chambers. The Ministry of Defence can increase the numbers of the chambers by up to three upon the proposal of the General Council and with the approval of the Chief of the General Staff. The Ministry of Defence can decrease the numbers of the chambers down to two under the same procedure. Each chamber shall be composed of a president and six members. Four of the members shall be military judges and two of them shall be staff officers. The number of the members in deliberations shall be composed of five. The majority of the members in the deliberations shall consist of military judges. Decisions shall be taken by majority.” The Law governing the Supreme Military Administrative Court (Article 66 of the Law No. 1602) (unofficial translation) “Rectification of a judgment rendered by the Chamber or the Grand Chamber may be requested on one of the following grounds, only once within 15 days after it is served on the parties: a) The judgment does not refer to the allegations and the objections which affect its merits; b) The judgment contains provisions which contradict each other; c) The judgment is contrary (“aykırı”) to procedural and substantive law (“usul ve kanuna aykırı”)”.

train

001-4941

ENG

SWE

ADMISSIBILITY

MARIC v. SWEDEN

Inadmissible

Josep Casadevall

The applicant, born in 1968, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality. a. On 5 February 1994 the applicant arrived in Sweden. He requested asylum the next day. He stated that he is an ethnic Croat from Kakanj in Bosnia-Hercegovina. As from April 1992 he served in the Bosnian-Croatian army. In the beginning of 1993 he was taken prisoner by Muslim troops and held in captivity for 15 days. In June 1993 Kakanj was occupied by Muslim troops who started an ethnic cleansing of the village. In October 1993 he deserted from his military unit and travelled to Stolac where he joined another unit. In January 1994 he absconded also from that unit and left for Croatia. He arrived in Sweden via Munich. During his journey he used his Croatian passport which he tore apart upon arrival in Sweden. The applicant claimed to be a citizen of Bosnia-Hercegovina only. He feared that, if deported to Croatia, he would be sent back to Bosnia-Hercegovina. On 26 August 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant's request and ordered his deportation to Croatia. Finding that the applicant held both Bosnian and Croatian citizenship, the Board referred to a decision concerning asylum seekers with such double nationality taken by the Swedish Government on 26 May 1994. According to the decision, the prevailing situation in Bosnia-Hercegovina rendered deportations to that country impossible. Consequently, in assessing applications from these asylum seekers, the crucial question was whether they could be afforded protection in Croatia. The Board noted that, according to available information, there was no reason to assume that Croatia would not afford the applicant protection. Further, persons in the applicant's situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. Neither was there any risk that Croatian citizens in general would be forced to take part in armed conflict. Moreover, the applicant had failed to show that he would risk persecution or other harassment if deported to Croatia. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 18 May 1995 the Appeals Board granted the applicant a temporary residence permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country. On 22 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements and added that, being an ethnic Croat, he could not return to the Muslim-dominated Kakanj or to any other part of Bosnia-Hercegovina. He risked punishment for having deserted from the Bosnian-Croatian army. Moreover, he could not go to Croatia where he had no place to live. His Croatian passport did not entitle him to full civic rights in Croatia and he would thus be forced to return to Bosnia-Hercegovina. On 12 June 1997 the Immigration Board rejected the applicant's new application and ordered his deportation to Croatia. The Board had regard to guiding decisions taken by the Swedish Government and found that the applicant should not be sent back to BosniaHercegovina. With regard to the possible deportation to Croatia, the Board noted that no circumstances had been invoked by the applicant which could lead to the conclusion that he was unable to go to Croatia. Consequently, the Immigration Board reiterated the conclusions drawn in its previous decision concerning the applicant. Furthermore, the Immigration Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit. On 5 March 1998 the Aliens Appeals Board upheld the Immigration Board's decision. In medical certificates issued by the psychiatric clinic at the hospital in Karlskrona on 25 June and 2 December 1998 physicians C.F. and M.N. stated that the applicant suffered from anxiety and suicide thoughts. He had been treated with antidepressant medication. As from 19 November 1998 he had been treated at the clinic for a post-traumatic stress syndrome. M.N. found that the applicant was in need of qualified psychiatric care and that there was a considerable risk that he would commit self-destructive acts. The clinic submitted the certificate of 2 December to the Appeals Board and requested that the enforcement of the deportation order be suspended. On 7 December 1998 the Appeals Board decided not to suspend the enforcement of the deportation order. Relevant domestic law Under Section 29 of the Act on Compulsory Mental Care (Lagen om psykiatrisk tvångsvård, 1991:1128), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported. This presupposes, however, that the chief physician finds that the alien's condition allows that the deportation takes place. According to Section 33, no appeal lies against the chief physician's decision.

train

001-58099

ENG

FRA

CHAMBER

CASE OF EL BOUJAÏDI v. FRANCE

No violation of Art. 8

C. Russo;John Freeland

7. Mr El Boujaïdi was born in Morocco in 1967 and is a Moroccan national. In 1974 he went with his mother, his three sisters and his brother to join his father in France. He has been living in Morocco since enforcement on 26 August 1993 of an order for his permanent exclusion from French territory. 8. The applicant went to school in France, where he also worked for several years. 9. In October 1986 a network of traffickers in heroin imported from the Netherlands was discovered in the Saint-Etienne area (Loire). Eight people, including the applicant, were committed for trial at Saint-Etienne Criminal Court charged with consumption of and trafficking in prohibited drugs. 10. On 24 March 1988 the Saint-Etienne Criminal Court sentenced Mr El Boujaïdi to three years’ imprisonment, to run concurrently with another sentence of thirty months’ imprisonment imposed by the Annecy Criminal Court on 25 September 1987 for dealing in heroin, and ordered him to pay customs fines. Applying Article L. 630-1 of the Public Health Code, it further imposed permanent exclusion orders on Mr El Boujaïdi and three of his co-defendants and a three-year exclusion order on a fourth. 11. On appeal by the prosecution, the Lyons Court of Appeal, in a judgment of 12 January 1989, increased the applicant’s sentence to six years’ imprisonment, with ineligibility for parole during the first two-thirds thereof, and confirmed the permanent exclusion order. The reasons for the judgment were set out as follows: “In April 1987, in the course of an inquiry aimed at breaking up a heroin-trafficking network operating in Saint-Etienne, the police arrested [the applicant], who had been named as a supplier by various users. During questioning by the police and the investigating judge El Boujaïdi admitted that he had been using heroin for several months and that he injected himself with up to 1.5 grams per day. According to his statements, he obtained his supplies from [K., A. and I.], who obtained their supplies in Holland. Again according to his own statements, El Boujaïdi had been peddling heroin since November 1986 to finance his own consumption. He even stated at one interview that each time he bought five grams he sold on three. The various users named in the charge as buyers from El Boujaïdi confirmed during the course of the inquiry that they had obtained varying quantities of heroin from him throughout the relevant period, namely from September 1986 to April 1987. According to the statements made by a number of these buyers, El Boujaïdi was known to drug addicts in Saint-Etienne as a supplier and users could meet him in a bar in Place Chavanelle, where the transactions took place. El Boujaïdi was found guilty of selling heroin to [B.] in a judgment of Annecy [Criminal] Court of 25 September 1987, which has become final. There is therefore no need to rule on that offence. As regards the remaining charges, and in view of the extreme seriousness of the accused’s conduct, the Court upholds the guilty verdict referred from the court below and sentences El Boujaïdi to six years’ imprisonment, to run concurrently with the thirty-month sentence passed on 25 September 1987 by Annecy Criminal Court ... The Court orders [the applicant’s] permanent exclusion from French territory. ...” 12. On 25 March 1991, pleading his family ties in France, Mr El Boujaïdi lodged a first application to have the order permanently excluding him from French territory rescinded. In a judgment of 14 May 1991 the Lyons Court of Appeal declared the application inadmissible on the ground that under Article L. 630-1 of the Public Health Code an alien permanently excluded from French territory could not apply for the relevant order to be rescinded. 13. Following an attempted robbery, the applicant – who had been released on 19 June 1991 – was arrested and, on 6 December 1992, detained under a committal warrant. For this offence and the fact that he had stayed in France in spite of the permanent exclusion order imposed on him, on 11 January 1993 the Saint-Etienne Criminal Court sentenced him to one year’s imprisonment. 14. On 25 May 1992 Mr El Boujaïdi again applied to have the exclusion order rescinded. He submitted that the length of time he had been living in France brought him into a category of convicted aliens on whom, under Article L. 630-1 of the Public Health Code, in its new version as amended by the Law of 31 December 1991, an exclusion order could not be imposed. He also argued that on account of his family ties in France the exclusion order was in breach of Article 8 of the Convention. 15. The Lyons Court of Appeal refused this application on 26 November 1992 in a judgment containing the following reasons: “The applicant has submitted not only that the order permanently excluding him from French territory should be rescinded in the light of Article 8 of the ... Convention ... but also that, as a matter of fact, he has lived in France since 1974 and the whole of his family lives here too. … While Mr El Boujaïdi’s application has become admissible since the repeal by the Law of 31 December 1991 ... of the last paragraph of Article L. 630-1 of the Public Health Code, the applicant cannot rely on the substantive provisions of that legislation, which are not retrospectively applicable to convictions that became final, as in this case, before its entry into force. His application must accordingly be dealt with on its own merits, on the basis of Article 55-1 of the Criminal Code. Mr El Boujaïdi has adduced no new evidence since his conviction on 12 January 1989. He cannot argue, as an unmarried man, that his exclusion from French territory is an intolerable interference in his family life within the meaning of Article 8 of the Convention ... The offences he has committed, after two previous convictions for drug offences, make his presence on French territory dangerous for public health and public order. ...” 16. On 15 March 1994 the Court of Cassation (Criminal Division) dismissed an appeal on points of law lodged by the applicant on 30 November 1992 against the judgment of the Lyons Court of Appeal on the ground that Mr El Boujaïdi’s statement of the grounds of appeal did not bear his signature. 17. On 22 July 1993 Mr El Boujaïdi made a third application requesting the Lyons Court of Appeal to rescind the exclusion order. In support of his appeal – which was based on Article 8 of the Convention – he pleaded changes in his personal circumstances, namely the fact that he was living with a Frenchwoman, Mrs M., and was the father of the child she had given birth to on 6 July. On 5 August 1993 the social worker at the prison where Mr El Boujaïdi was detained wrote to his lawyer in the following terms: “... In reply to your letter of 28 July 1993 concerning the steps taken over the last few months regarding recognition of the child of Mr El Boujaïdi, currently imprisoned, for whose social welfare I am responsible, I can inform you that, at the request of Mr El Boujaïdi and [Mrs M.], his cohabitant: 1. In April I prepared the paperwork for a prenatal recognition of paternity and sent the file both to the town hall of La Talandière and to Assistant State Counsel so that the appropriate submissions could be made to the Registrar of Births, Marriages and Deaths. 2. As this application had been unsuccessful and the child had been born – on 6 July 1993 – I compiled a new recognition of paternity file and sent it on 3 August 1993 to State Counsel’s Office at the Saint-Etienne tribunal de grande instance. ...” 18. On 26 August 1993 the exclusion order was enforced. 19. On 20 October 1993, at the French Consulate in Fez, Mr El Boujaïdi recognised paternity of Mrs M.’s child. 20. In a judgment of 16 December 1993 the Lyons Court of Appeal refused the application to have the exclusion order rescinded on the following grounds: “Mr El Boujaïdi’s lawyer has produced various documents showing that Mr El Boujaïdi met Mrs M. in January 1992, that is at a date when he should not have been present on French territory. Their child was born on 6 July 1993. The circumstances he relies on therefore came into being at a time when he was permanently excluded from French territory. The exclusion order was imposed to penalise a dangerous trade in heroin. That being so, the Court does not see fit to allow the present application. ...” 21. Relying mainly on Article 8 of the Convention and the European Court’s case-law, the applicant appealed on points of law. In a judgment of 25 October 1994 the Court of Cassation dismissed the appeal on the following grounds: “The judgment under appeal shows that Abderrahim El Boujaïdi, who is a Moroccan national, was sentenced, inter alia, to be permanently excluded from French territory for an offence against the dangerous drugs legislation, in a judgment of the Lyons Court of Appeal of 12 January 1989, which has become final, and that by an application dated 22 July 1993 he sought to have that exclusion order rescinded. In rejecting that application the Court of Appeal observed that the family circumstances on which the appellant relies came into being while he was permanently excluded from French territory. It further stated that the purpose of the additional penalty imposed on the appellant was to ‘penalise a dangerous trade in heroin’. … Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not prohibit limitations prescribed by law on the right to respect for family life, provided that they are necessary for, among other things, public safety, the prevention of disorder and the protection of health. That is the position in the present case. It follows that the appeal, which amounts to a challenge to the courts’ discretionary power under Article 55-1 of the Criminal Code, then in force, cannot be allowed. ...” 22. Article L. 630-1 of the Public Health Code formerly provided: “... the courts ... may order an alien convicted of an offence under Article L. 627 to be permanently excluded from French territory. Exclusion from French territory shall of itself entail the deportation of the convicted person at the end of his sentence. ... Where a person, on conviction, is permanently excluded from French territory, he may not request the benefit of the provisions of Article 55-1 of the Criminal Code.” Law no. 91-1383 of 31 December 1991 replaced the last three paragraphs by the following provisions: “However, exclusion from French territory shall not be imposed on: ... 2. a convicted alien who is the father or mother of a French child resident in France, provided that he or she is vested with or shares parental authority over that child or provides for its needs; ... Nor shall exclusion from French territory be imposed on a convicted alien who can prove either: 1. that he has been normally resident in France since reaching the age of 10 at the most or for more than fifteen years; or 2. that he has been lawfully resident in France for more than ten years. ... Exclusion from French territory shall of itself entail the convicted person’s deportation, where necessary after the end of his prison sentence.” Article L. 630-1 was repealed by Law no. 92-1336 of 16 December 1992. 23. Article 55-1 of the Criminal Code provides: “... Any person who has incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ..., in whole or in part, or vary its duration. …”

train

001-84780

ENG

RUS

ADMISSIBILITY

PUPKOV v. RUSSIA

Inadmissible

Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens

The applicant, Mr Anatoliy Andreyevich Pupkov, is a Russian national who was born in 1940 and lives in Georgiyevsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, 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. In the period between 1982 and 1991 the applicant, then a resident of Grozny, Chechnya, deposited 7,589.17 Soviet roubles in five savings accounts with the Grozny branch of the Chechen Savings Bank, which was an integral part of the USSR Savings Bank. In late 1994 hostilities commenced in Chechnya. In 1999 the applicant left Chechnya because of the fighting and settled in the town of Georgiyevsk in the Stavropol Region. According to the applicant, shortly after his arrival he submitted his savings books (сберегательные книжки) to the Georgiyevsk branch of the Savings Bank of Russia and requested the latter to transfer and repay his deposits and those of his late father. The bank registered the applicant’s savings books, but refused to transfer his savings, referring to a telegram from the Central Bank of Russia which had imposed a ban on any transactions in respect of the deposits made with the Chechen Savings Bank. On 12 July 2001 the applicant complained in writing to the central office of the Savings Bank of Russia and to its Georgiyevsk branch. In letters of 2 August 2001 the central office and the Georgiyevsk branch of the Savings Bank informed the applicant that as a result of the events in the Chechen Republic, the Chechen Savings Bank had lost a considerable number of blank savings books and official seals, which could enable the falsification of claims for the reimbursement of deposits. In these circumstances, in 1996 the Savings Bank of Russia suspended all transactions in respect of deposits made in Chechnya, and then wound up the Chechen Savings Bank. Moreover, the Ministry of Finance did not allot funds for the reimbursement of the deposits made in Chechnya, “in the absence of guarantees that those funds would be used for specified purposes”. Following the bank’s refusal, the applicant filed a court complaint, seeking to have his savings transferred to the Georgiyevsk branch of the Savings Bank of Russia and repaid to him. On 11 December 2001 the Georgiyevsk Town Court rejected the applicant’s claims as unfounded. The court refused to confirm that the applicant was entitled to the reimbursement of his deposits by the Georgiyevsk branch of the Savings Bank of Russia, noting that under relevant regulations the mere fact that an individual had savings books was insufficient to confirm that a particular amount of money had been deposited in his account and that, as well as the savings books, the applicant should have supplied a document proving that his deposits had been transferred from the Chechen Savings Bank to another branch of the Savings Bank of Russia, which the applicant had failed to do. On 23 January 2002 the Civil Section of the Stavropol Regional Court upheld the first-instance judgment on appeal, having noted that the Savings Bank of Russia had defaulted on its obligation to repay the applicant’s savings because of force majeure, namely due to the hostilities in Chechnya and the winding up of the Chechen Savings Bank. The court also noted that as soon as the Savings Bank of Russia reached agreement with the Government of Russia, it would pay back the funds of those individuals who were registered on the list of former depositors of the Chechen Savings Bank, and that it was open to the applicant to apply for registration on that list. The applicant’s attempts to contest the above court decisions by way of supervisory review proved unsuccessful. In their memorial of 25 September 2005 the Government informed the Court that between 21 January and 22 April 2002 the Government of the Chechen Republic within the territory of this republic, and the branches of the Savings Bank of Russia in other regions of Russia, had made a list of the former depositors of the Chechen Savings Bank who had produced their savings books (сберегательные книжки). On 15 April 2003 the Savings Bank of Russia commenced payment of compensation to those included on the list. As provided by governmental decree no. 117 of 19 February 2003, this procedure was applied in respect of savings deposited with the Chechen Savings Bank prior to 20 June 1991. From 1 October 2003 until 31 March 2004 the authorities made an additional list of former depositors of the Chechen Savings Bank. In the Government’s submission, “repayment of deposits to those included in the additional list would be made in the near future”. From 2003 onwards the Russian Government adopted an annual decree which reproduced the provisions of their decree no. 117 of 19 February 2003 concerning compensation of deposits made prior to 20 June 1991 in the territory of the Chechen Republic. According to the Government, the applicant was put on the list of the former depositors of the Chechen Savings Bank, but did not apply for the repayment of his deposits until the present moment. In letters of 2 December 2005 and 21 February 2006 the Georgiyevsk branch of the Savings Bank of Russia informed the applicant that he could apply for his deposits, the accrued interest and compensation, upon presenting his identity documents and submitting his savings books, which would be retained by the bank after the repayment. According to the letters, the applicant would be furnished with a certificate providing the details of calculation of the sum repaid. In August 1996 the President of the Management Board of the Savings Bank of Russia (Председатель правления Сберегательного Банка России) ordered that all operations in respect of deposits with the Chechen Savings Bank be suspended until further notice. By virtue of decision no. 127 of the Management Board of the Savings Bank of Russia dated 16 December 1996 the branches of the Savings Bank of Russia on the territory of the Chechen Republic were wound up and removed from the State Register of Lending Agencies. Powers of attorney issued to the heads of those branches were revoked and annulled. By section 12 of decree no. 117 “On payment to certain categories of citizens of the Russian Federation in 2003 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations” dated 19 February 2003 the Government of Russia entitled the former depositors of the Chechen Savings Bank to compensation for deposits they had made prior to 20 June 1991. In particular, individuals who lived outside the territory of the Chechen Republic could obtain compensation in those branches of the Savings Bank which had put them on the list of former depositors of the Chechen Savings Bank. Section 16 of governmental decree no. 258 “On payment to certain categories of citizens of the Russian Federation in 2005 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations” dated 25 April 2005 reproduces the provisions of section 12 of decree no. 117 of 19 February 2003 concerning compensation of deposits made prior to 20 June 1991 in the territory of the Chechen Republic.

train

001-61563

ENG

POL

CHAMBER

CASE OF PANEK v. POLAND

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

Georg Ress

8. The applicant was born in 1965 and lives in Koszwały, Poland. A. Facts prior to 1 May 1993 9. On 6 February 1992 the applicant was arrested on suspicion of murder, grievous bodily harm, and insulting and assaulting policemen. 10. On 8 February 1992 the Gdańsk District Prosecutor (Prokurator Rejonowy) brought criminal charges against him. 11. On 6 July 1992 prosecution authorities lodged with the Gdańsk Regional Court (Sąd Wojewódzki) a bill of indictment against him. 12. From 29 January 1993 to 30 April 1993 no hearing was held. B. Facts after 30 April 1993 13. A hearing listed for 18 June 1993 was adjourned until 21 September 1993. A further hearing, listed for 21 September 1993, was adjourned because the judge rapporteur was ill. The next hearing, scheduled for 12 October 1993, was cancelled because the judge rapporteur was hospitalised. 14. On 10 January 1994 the case was assigned to another panel of judges as the presiding judge rapporteur resigned from his function. 15. On 15 March 1994 the hearing was re-opened. 16. The subsequent hearings were held on 22 March, 18 May, 12 July and 26 September 1994 and on 10 January 1995. 17. On 13 January 1995 the Gdańsk Regional Court pronounced its judgment. It convicted the applicant as indicted, except for the count of murder, of which he was acquitted. The court sentenced him to five years' imprisonment. On 3 July 1995 the prosecutor lodged an appeal against that judgment, contesting its part relating to the acquittal. 18. On 12 October 1995 the Gdańsk Court of Appeal (Sąd Apelacyjny) quashed the contested part of the first-instance court's judgment and remitted the case for re-examination. 19. The court held hearings on 13 March and 15 May 1996. A hearing scheduled for 8 July 1996 was adjourned until 14 October 1996. A further hearing, listed for 14 October 1996, was cancelled because the judge rapporteur was ill. The subsequent hearing was held on 6 November 1996. 20. On 13 December 1996 the Gdańsk Regional Court convicted the applicant of murder with an oblique intent (w zamiarze ewentualnym) and sentenced him to nine years' imprisonment. The applicant lodged an appeal against that judgment. 21. On 18 June 1997 the Gdańsk Court of Appeal modified the judgment in that it convicted the applicant of grievous bodily harm with deadly effect and sentenced him to seven years' imprisonment. 22. In the letter of 1 July 1997 the applicant's legal aid lawyer informed him that he refused to lodge a cassation appeal against that judgment, arguing that there was no indication of any breach of substantive or procedural law. He explained that lodging that appeal would only delay the proceedings concerning a cumulative penalty (kara łączna) and, afterwards, proceedings concerning the applicant's conditional release. 23. On 13 July 1998 the Gdańsk Regional Court delivered a judgment in which it sentenced the applicant to ten years' imprisonment as the cumulative penalty for the convictions included in the judgments of 13 January 1995, 13 December 1996 and 27 May 1992 (delivered in the course of other criminal proceedings).

train

001-71640

ENG

SWE

ADMISSIBILITY

RRUSTEMAJ v. SWEDEN

Inadmissible

The applicants, Mr A. Rrustemaj, Mrs S. Tiku Rrustemaj and their three daughters are nationals of Serbia and Montenegro, and were born in 1970, 1975, 1999, 2000 and 2002 respectively. They are currently in Sweden. They were represented before the Court by Mr M. Ekelöf, a lawyer practising in Växjö. The applicants are ethnic Albanians from the province of Kosovo in Serbia and Montenegro. In 1991 the first applicant travelled to Sweden and applied for asylum. This request was refused and he was deported to Kosovo in December 1992. On 5 September 1997 the first applicant again came to Sweden and, on 6 October 1997, he submitted an application for asylum and a residence permit to the Migration Board (Migrationsverket). On 6 February 1998 the second applicant joined her husband in Sweden and, three days later, she also joined his application for asylum and a residence permit. Before the Migration Board, they stated that, upon arrival in his home country in 1992, the first applicant had been detained a few hours by the border police and had been instructed to report to the police in Pristina. He had done so with the result that he had been detained there for ten days and questioned about the activities of Albanians in Sweden. Roughly two months later, the police had showed up at his home and had questioned him and all the members of his family about the activities of Albanians in the neighbourhood. Subsequently, the police had on repeated occasions passed by the applicants’ home and questioned the first applicant. In 1997 he had been contacted by a lawyer who had informed him that he was suspected of having connections with the UÇK (Ushtria Çlirimtare Kombetare – the Kosovo Liberation Army). Although the police had never accused him of this, the first applicant had decided to return to Sweden to avoid more problems. In December 1997 the police had come to the applicants’ home and had asked the second applicant about her husband’s whereabouts. They had, again, showed up in January 1998 at which time they had taken the second applicant to the police station and questioned her. She had been released after a few hours but the police had threatened to imprison her if her husband did not show up within ten days. For these reasons, the second applicant had travelled illegally to Sweden. On 14 May 1998 the Migration Board refused the applicants’ request for asylum. It considered that the harassment of which they had been the victims in their home country had been of a general character but not of a serious kind, and that they had not shown that they would be of special interest to the national authorities if they were to be returned to Kosovo. Thus, they could not be granted asylum. Moreover, the applicants had presented no grounds on which they could be granted residence permits on humanitarian grounds. The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden), adding to their claims that, due to the deteriorating situation in Kosovo, it would be impossible to enforce the deportation order against them. On 28 June 1999 the Aliens Appeals Board granted the applicants temporary residence permits for a period of eleven months, as of the date of the decision, due to the very unstable situation in Kosovo at that time. Upon the expiry of their temporary residence permits, the applicants renewed their request for asylum and residence permits to stay in Sweden. On 6 September 2001 the Migration Board rejected the request and, on 2 April 2002, the Aliens Appeals Board upheld the Migration Board’s decision in full and ordered the applicants to leave Sweden within two weeks from the date of the decision. To avoid having to return to Kosovo, the applicants travelled to Norway and applied for asylum there. However, in accordance with the Dublin Convention, they were sent back to Sweden in December 2002 and, once again, lodged a new application for asylum and residence permits with the Migration Board. They stated that there was nothing left for them to return to in Kosovo as they would have nowhere to live and unemployment was very high. Moreover, they claimed that since they had not been in Kosovo since 1997/98 and their three children were born in Sweden, it would be inhuman to send them back. Furthermore, the second applicant was depressed and anxious, and she received medication for these problems. On 7 August 2003 the Migration Board rejected the application. It first noted that the applicants had only invoked humanitarian grounds and they had not claimed that they would risk persecution in their home country. Thus, the Migration Board found that they were not in need of protection in Sweden, and stated that they could not be granted residence permits only because their financial situation would be difficult in Kosovo. Moreover, it noted that the three children were very young and did not have a strong connection to Sweden and that the second applicant’s mental health was not so poor that the family could be granted leave to stay based on these grounds. The applicants appealed against the decision to the Aliens Appeals Board, maintaining their earlier claims and adding that the first applicant was in poor mental health, suffering from anxiety and depression, and the second applicant’s poor mental health had deteriorated further. On 19 April 2004 the Aliens Appeals Board upheld the Migration Board’s decision and reasoning in full and ordered the applicants to leave Sweden within two weeks from the date of the decision. The applicants remained illegally in Sweden and lodged a new application for residence permits with the Aliens Appeals Board, claiming that since they had been outside of Kosovo for almost seven years it would be inhuman to send them back, in particular since their children were born in Sweden. Thus, it would not be in the best interests of the children to deport them to a, for them, completely foreign country. Moreover, they alleged that the situation in Kosovo was unstable and that they were in need of protection in Sweden. On 1 June 2004 the Aliens Appeals Board rejected the application. It first observed that it had already considered the applicants claims in its earlier decision and found no reason to change it. Moreover, it stressed that it was the applicants’ own choice to have been away from Kosovo for so many years since, in spite of several negative decisions from the Swedish immigration authorities, they had remained illegally in Sweden. The applicants lodged yet another new application for residence permits on humanitarian grounds, relying on the second applicant’s deteriorating mental health. She had been diagnosed as suffering from Post Traumatic Stress Disorder and depression, and she had entertained thoughts of committing suicide. On 16 November 2004 the Aliens Appeals Board also rejected this application, finding that the second applicant’ On 20 January 2005 the Aliens Appeals Board rejected yet another application lodged by the applicants as they had invoked no new circumstances. The applicants submitted two medical certificates. The first, dated 15 October 2004, had been issued by H.-G. Nilsson, a psychologist, and the second certificate, dated 5 February 2005, had been issued by P.O. Elfstrand, a chief physician. The certificates stated that the second applicant suffered from Post Traumatic Stress Disorder (PTSD) with recurring depressive instances, including suicidal thoughts, due to which she had been admitted to a psychiatric clinic on two occasions (the certificates did not specify the dates). Her poor mental health was the consequence of traumatic experiences in her home country and of the long, insecure waiting in Sweden. She was very afraid of returning to Kosovo. As concerned the three children, it was observed that they only knew life in Sweden and had integrated into Swedish society. However, they had developed aggressive behaviour, suffered from nightmares and were afraid of sudden noises. According to the certificates, a deportation to Kosovo, where the children had never been, could cause them to develop identity problems of a serious nature. No information was provided as to the first applicant’s state of health. On 5 March 2005 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of their deportation to the province of Kosovo in Serbia and Montenegro. On 15 March 2005 the President of the Section to which the case had been allocated decided to apply Rule 39. He further decided to request the Swedish Government to submit a recent, independent assessment of the physical and mental health of the second applicant. On 4 April 2005 the Government informed the Court that, on 16 March 2005, the Migration Board, following the Court’s request, had decided to stay the deportation of the applicants until further notice. On 17 May 2005 the Government provided the Court with a medical report concerning the second applicant, dated 29 April 2005, by Dr I. Sjödin, doctor in psychiatry and psychosomatics and chief physician at the psychiatric clinic of the University Hospital of Linköping. The report was based on the medical documents available in the case and on a personal examination of the second applicant by the physician. The report stated that the second applicant had suffered from anxiety and sleeplessness already in her home country and that her mental health had deteriorated in June 1999 when she had been informed that her father and brother had been found in a mass grave in Kosovo. It had triggered a panic attack and she had been committed to closed psychiatric care between 20 and 28 June 1999, diagnosed as suffering from an adjustment disorder. Following a rejection of one of their applications for asylum by the Aliens Appeals Board, she had had a crisis reaction and again been committed to closed psychiatric care between 6 and 9 April 2002. One month later, between 7 and 23 May 2002, she was again taken into care and treated for depression. Since then she had taken medication to treat her anxiety and sleeplessness and, periodically, anti-depressants. During the personal examination of the second applicant, she had told the physician that she and the children mostly lived with her sister-in-law and her family because the first and second applicants had problems in their relationship. Moreover, she had stated that she only had sporadic contact with the health services and that, from time to time, she would get suicidal thoughts but that she had to live for the sake of her children. According to the physician, the second applicant appeared tired and dejected but she showed no signs of being psychotic and had no physical health problems. He considered that she suffered from years of anxiety, depression and nightmares which emanated from traumatic experiences in her home country, together with the protracted insecurity of her present situation and her complicated relationship with her husband. Her depressive symptoms appeared to have become chronic but she did not show any suicidal tendencies. The physician found that the second applicant’s poor mental health was not so serious that, in itself, it could justify granting her leave to stay in Sweden on medical grounds. However, he considered that the family’s situation as a whole, and in particular the children’s vulnerability, had to be taken into account before deciding to deport them to their home country. He concluded that the second applicant’s state of health was not an impediment to the enforcement of the deportation order.

train

001-5035

ENG

GBR

ADMISSIBILITY

IAN EDGAR (LIVERPOOL) LIMITED v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicant is a business engaged in the wholesale distribution of firearms. It is represented before the Court by Edwin Coe, Solicitors, of London. The facts of the case, as submitted by the parties, may be summarised as follows. A. The particular facts of the case The applicant business is a wholesaler and distributor of firearms and associated products. It was founded in 1947. The two sons of the founder are directors of the applicant company and between them hold 80% of the share capital. The applicant company operates from wholly-owned offices and a warehouse and owns a 17-acre site where secure licensed magazines for ammunition are located. Controls on firearms in Great Britain, including controls on the possession of pistols, revolvers, rifles and the ammunition for them, were introduced for the first time in 1920. In 1934, fully-automatic weapons were prohibited, and in 1962, airguns and shotguns were made subject to restrictions for the first time. The controls were consolidated in the Firearms Act 1968. In 1988, semi-automatic and self-loading rifles were prohibited, and in 1992, disguised firearms were prohibited. In March 1996, an individual entered a primary school in Scotland and shot dead a teacher and 16 children, and wounded 13 others. He had with him four handguns and 743 rounds of ammunition. The Government subsequently established a public inquiry chaired by the Hon. Lord Cullen, which presented a report to the Parliament of the United Kingdom in October 1996 (“the Cullen Report”). Following the presentation of the Cullen Report, legislation was passed in 1997 prohibiting the possession of handguns, and schemes were set up for the payment of compensation to private individuals and to dealers in firearms in respect of handguns the possession of which was prohibited. Between 1996, when a prohibition on handguns was first contemplated, and August 1997 (the date the application was made), sales of handguns by the applicant company decreased by 65%. Between 31 March 1996 and 31 March 1997, its turnover dropped by 22.3%. Handguns and related products formerly amounted to 30% of the applicant company’s sales. The applicant company received £890,000 in compensation under the schemes. By the beginning of 1999, approximately £22 million had been paid out to some 1,500 dealers under the schemes, of a total of some £67 million which had been paid out to individuals, dealers and others. The Government estimate the total costs which will be involved in paying compensation under the schemes to be some £120 million. B. Domestic law and practice The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act. Section 5 of the Act of 1968, as amended by the First Amendment Act, provided: “(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers - ... (aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.” The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect. The First Amendment Act provides as follows, so far as material: “15 Surrender of prohibited small firearms and munitions (1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above. ... 16 Payments in respect of prohibited small firearms and ammunition (1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above. (2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition - (a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or (b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers, and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above. 17 Payments in respect of ancillary equipment (1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme. (2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which- (a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and (b) has no practicable use in connection with any firearm which is not a prohibited weapon. (3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment- (a) which they had in their possession on 16th October 1996; or (b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date. ... 18 Parliamentary control of compensation schemes (1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament. (2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House. (3) This section applies to any alteration to the scheme as it applies to a compensation scheme. (4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.” The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items; Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme; and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report). Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%. By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.

train

001-99854

ENG

UKR

CHAMBER

CASE OF GAZETA UKRAINA-TSENTR v. UKRAINE

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

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

4. The applicant company is the editorial body of a limited liability company called the Ukraina-Tsentr Newspaper and is registered in the city of Kirovograd, Ukraine. 5. In June 2002 the mayoral elections were conducted in the city of Kirovograd. On 12 June 2002, during the election campaign, two press conferences relating to those elections were held at the Ukrainian Independent News Agency (“the UNIAN”). During one of those press conferences, a local Kirovograd journalist, Mr M. accused one of the candidates, Mr Y., of ordering him to be murdered for 5,000 US dollars (USD). The wording of the accusation made by Mr M., as later established by the domestic courts, contained the following paragraph: “He (Mr Y.) went to his friend, the one locally known politician, whom I will not name yet, but if necessary we will provide [his name], we have facts. Upon his request, the other took out five thousand dollars of his money and handed it to his head of security service and said the following, that it is necessary to reserve for me a place in the morgue. So, at present, they “ordered” me for five thousand dollars. Who ordered? I say: [Mr] Y. [full name], I declare it officially.” 6. This information among other news was disseminated by the UNIAN via e-mail and posted on its website. According to the applicant company, it received this information by electronic mail in the following form: “Furthermore, [Mr] M. accused the Kirovograd mayoral candidate and President of the Kirovskiy District Court, [Mr] V. Y., “of ordering him to be murdered”. The journalist reported that for safety reasons he had taken his family away from the region. According to him, all four journalists participating in the press conference addressed the General Prosecutor's Office, the Security Service of Ukraine and the Ministry of the Interior concerning the threats to them and claimed that they had proof of pressure being applied to them”. 7. According to the applicant company, on the same day, the STB TV channel in its Vikna-Novyny news programme disseminated similar information, indicating that Mr M. had also mentioned the sum of USD 5,000 for “ordering him to be murdered”. 8. On 14 June 2002 the applicant company published an article which was titled “The metropolitan tour” in which the above-mentioned press conferences of 12 June 2002 were described. Among other things, the article contained the following paragraph: “[Mr] M. accused [Mr] Y. of 'ordering him to be murdered' and even stated the amount paid for the 'order' – 5,000 US dollars. The journalist stated that for safety reasons he had taken his family away from the region. According to him, all four journalists participating in the press conference addressed the General Prosecutor's Office, the Security Service of Ukraine and the Ministry of the Interior concerning the threats to them. He also claimed that they had proof of the pressure being applied to them.” 9. In August 2002 Mr Y. lodged a civil claim in the Kirovograd Leninsky District Court (the Leninsky Court) against the applicant company and Mr M. complaining that the phrase “[Mr] M. accused [Mr] Y. 'of ordering him to be murdered' and even stated the amount paid for the 'order' – 5,000 US dollars” published by the applicant company was untrue and abased his human dignity. He maintained that that publication had affected his professional and private life and damaged his reputation as an individual, lawyer and politician. Taking the view that the publishing of a correction would not be sufficient, he asked the courts to pay him non-pecuniary damages. Later, Mr Y. supplemented his claim by asking for the statement made by Mr M. during the press conference (see paragraph 5 above) to be found untrue and defamatory. 10. According to the applicant company, its co-defendant, Mr M., asked the court to adjourn the proceedings and on 30 November 2002 asked the Supreme Court to transfer the case to another court. The applicant company supported those requests. In his request to the Supreme Court, Mr M. noted in particular that the plaintiff was the President of the Kirovograd Kirovskiy Local Court and therefore, to ensure the objective and unbiased examination of the case, he asked for the case to be transferred to one of the local courts in Kyiv, the city in which the press conference had taken place. By letter dated 12 December 2002, the Deputy President of the Supreme Court allowed the request in part and ordered the case to be transferred to the Kamyansky Local Court in the Cherkassy region. However, by that time, the Leninsky Court had already examined the case (see the next paragraph), having rejected Mr M.'s request for the case to be adjourned. 11. On 10 December 2002 the Leninsky Court, in a single judge formation (Judge B.) found that the accusations made by Mr M. and the applicant company that Mr Y. had ordered Mr M. to be murdered were contrary to the principle of the presumption of innocence guaranteed by the Constitution. The defendants did not prove before the court that the disseminated information was true. The court found the following phrase from the applicant company's article “[Mr] M. accused [Mr] V. Y. 'of ordering him to be murdered' and noted the amount paid for the 'order' – 5,000 US dollars” untrue and defamatory. The court also found that Mr M. had accused Mr Y. of 'ordering' him to be murdered for USD 5,000 during the press conference and that such accusation was also untrue and defamatory. The court noted that, in view of the fact that the two bodies had not drawn up a formal contract between them, the applicant company could not prove that it had received the impugned information officially from the UNIAN. Furthermore, the information published by the applicant company did not correspond to the information disseminated by the UNIAN. For those reasons, the court concluded that the applicant company could not be protected against liability. The applicant company and Mr M. were ordered to pay Ukrainian hryvnias 100,000 (UAH) and UAH 20,000, respectively, in compensation. The court, however, found no liability against the UNIAN, which had been identified as a co-defendant by the court, because the plaintiff had lodged no claims against it and the UNIAN had published a correction. 12. The applicant company appealed against the decision of the first-instance court. It complained, in particular, that Judge B. could not be impartial because Mr Y. was the chairman of the regional council of judges and the deputy chairman of the regional branch of the Union of Lawyers and, as a judge and a lawyer, Judge B. was dependent upon the plaintiff. The applicant company further noted that the court had disregarded the fact that the impugned information had been circulated by electronic mail, had also been freely accessible on the UNIAN website and that such information belonged in the public domain. It also submitted that the plaintiff had not asked it to correct the material and its proposal to publish a correction before the judicial proceedings and during the judicial proceedings had been refused by the plaintiff. 13. On 12 March 2003 the Kirovograd Regional Court of Appeal upheld the decision of the first-instance court but decreased the compensation award. The applicant company was ordered to pay UAH 50,000 in compensation. 14. The applicant company appealed in cassation. 15. On 2 October 2003 the Supreme Court upheld the decisions of the lower courts. 16. On 30 October 2003 the applicant company paid the compensation awarded against it and UAH 2,500 in enforcement fees. 17. Relevant provisions of the Act read as follows: Section 97 Disciplinary proceedings against judges “1. Disciplinary proceedings shall be regarded as the procedure of consideration by the body, specified by the law, of a statement regarding the breaking of judicial status, official duties or the oath by a judge. 2. The right to initiate disciplinary proceedings against a judge shall belong to the following persons: ... the chairman of a relevant council of judges... 3. It is forbidden to abuse the right specified in paragraph 2 of this section. In particular, it is forbidden to initiate consideration of an issue concerning the legal liability of a judge without sound reasons or to use the said right to exert pressure upon a judge in connection with the administration of justice by such a judge...” “1. Within the period between the conferences of judges the functions of a judicial self-government shall be performed by a relevant council of judges. 2. A council of judges shall elect from among its members the chairman, deputy chairman and secretary of a council of judges. Chairmen and deputy chairmen of the courts of appeal and higher courts, head of the military chamber of the Court of Appeal of Ukraine and head of the military chamber of the Court of Cassation of Ukraine shall not be elected to the post of chairman of a relevant council of judges. 3. Within the period between the conferences of judges a council of judges shall provide for execution of the decisions taken by a conference and control over their observance, also decide on convocation of the next conference. The powers and operation of a council of judges shall be specified by this Act and the regulations of a council of judges approved by a conference of judges. 4. A council of judges shall: 1) exercise control over the operation of relevant courts and relevant departments of the State judicial administration, hear progress reports of chairmen of these courts and officials of the State judicial administration; 2) consider the issues of legal and social protection of judges, provision of consumer and household services for judges and their families, and take the decisions to this effect; 3) consider the issues concerning the appointment of judges to administrative posts in courts in the manner prescribed by this law; 4) hear the reports of members of relevant judicial boards of experts concerning their work on these boards; 5) submit the proposals on operation of relevant courts for consideration of the State bodies and local self-government authorities; 6) hear, at least once a year, the information of the State judicial administration of Ukraine on support of operation of the courts of general jurisdiction. 7) take other decisions falling within the limits of its power. 5. The decisions taken by a council of judges shall be binding for the judges holding the administrative posts in relevant courts. A decision of a council of judges may be cancelled only by a conference of judges and suspended by the decision of the Council of Judges of Ukraine.” 18. Relevant extracts from the Constitution read as follows: “... Everyone is guaranteed judicial protection of the right to have corrected misinformation communicated about himself or herself or members of his or her family, and of the right to demand that any type of material be corrected, and also the right to compensation for pecuniary or non-pecuniary damage inflicted by the collection, storage, use and dissemination of such misinformation.” “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.” “A person is presumed innocent and shall not be subjected to criminal conviction unless proved guilty through a legal process which establishes a guilty verdict. No one is obliged to prove that he or she is innocent of committing a crime. An accusation shall not be based on illegally obtained evidence or assumptions. All doubts in regard to the proof of guilt are interpreted in the accussed's favour. In the event that a court verdict is revoked, the State shall, as determined, provide pecuniary or non-pecuniary damage.” 19. Relevant extracts from the Civil Code read as follows: “A citizen or an organisation shall be entitled to demand in a court of law that material be corrected if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is truthful. ... information disseminated about a citizen or an organisation that does not conform to the truth and causes damage to their interests, honour, dignity or reputation shall be subject to rectification, and pecuniary and non-pecuniary damage can be recovered. A limitation period of one year shall apply to claims concerning rectification of such data and compensation.” 20. Relevant extracts from the Printed Media (Press) Act provide: “... A journalist is obliged to: ... 2) provide objective and truthful information for publication; ...” “Citizens, legal entities and State bodies and their legal representatives have the right to demand correction of material published about them or data that does not correspond to the truth or defames their honour and dignity. If the editorial board does not have any evidence that the information published by it corresponds to the truth, it has to correct this material at the request of the plaintiff in the next issue of the printed media or to publish a correction on its own initiative. ...” “The editorial board and journalists are not liable for the publication of information that is untrue, defames the honour and dignity of citizens and organisations, infringes their rights and lawful interests or constitutes abuse of the freedom of activity of the media and the rights of journalists if: 1) this information was received from the news agencies or from the media owner (co-owners); 2) the information contains responses to a formal request for access to official documents or to a request for written or oral information, provided in accordance with the Data Act; 3) the information is a verbatim reproduction of any official address of the officials of State bodies, organisations and the citizens' unions; 4) the information is a verbatim reproduction of materials published by other printed media which refer to that information; 5) the information contains secrets that are specifically protected by law, but the journalist received this information lawfully.” 21. The relevant extract of the Act provides as follows: Section 30 Relationships between news agencies and distributors/owners (users) of a means of communication “The basis of a relationship between a news agency and distributor/owner (user) of a means of communication shall be in the form of a contract. A distributor/owner (user) of a means of communication enters into a contract with the news agency if the latter has a State registration certificate.” 22. The relevant extract from Resolution No. 7 reads as follows: “... 17. In accordance with Article 7 of the Civil Code, the defendant [in a defamation case] has to prove that the information disseminated by him corresponds to the truth. The plaintiff only has the obligation to prove that the defendant has disseminated defamatory information about him. The plaintiff also has a right to provide evidence of the untruthfulness of such information.” 23. The applicant company submitted extracts from reports published in Ukraine by the NGO, the International Foundation “Centre for Judicial Studies”. The reports titled “Monitoring of Judicial Independence in Ukraine (2007)” and “Monitoring of Judicial Independence in Ukraine. (2008)” provided, inter alia, that among the forms of pressure [being put] on judges were threats to 'complicate a career' and to 'initiate dismissal or disciplinary proceedings'. According to the same reports, councils of judges had been rated the third most influential body on judges because they could affect the professional career of a judge.

train

001-91300

ENG

RUS

CHAMBER

CASE OF SAMOKHVALOV v. RUSSIA

Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

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

6. The applicant was born in 1976 and lives in Kurgan, the Kurgan region. He is currently serving a prison sentence in the Kurgan region. 7. On 15 November 2001 the applicant was arrested on suspicion of murder of a certain S. and was placed in detention. 8. On 5 February 2002 the Kurgan Town Court, Kurgan Region (“the trial court”) held a trial in the applicant’s case. The applicant confessed to the murder in part. He submitted that during a quarrel with S. the latter had threatened him with an axe and he (the applicant) had stabbed him several times with a knife in order to defend himself. The Town Court found the applicant guilty of premeditated murder under Article 105 § 1 of the Criminal Code (see “Relevant domestic law and practice” below, paragraph 22) and sentenced him to eleven years and three months’ imprisonment. On 5 March 2002 the Kurgan Regional Court (“the appeal court”) quashed that judgment and remitted the case for fresh examination to the trial court having found, in particular, that the latter had not established whether the victim had had an axe in his hands during the quarrel. On the same date the Regional Court remanded the applicant in custody. The applicant was neither present nor represented by a lawyer at the appeal hearing. 9. On an unspecified date the applicant was additionally charged with several counts of theft. A certain Sch. was charged with concealment of the murder of S. Criminal proceedings against Sch. were joined to those against the applicant. 10. On 22 March 2002 the trial court started the examination of both charges against the applicant and the charges against Sch. At the beginning of the hearing the applicant submitted that he had refused assistance from legal aid counsel and that his refusal was not linked to his financial situation. Lawyer M., who had been provided to the applicant, left the courtroom. 11. The applicant pleaded guilty to theft. As regards the charges of murder, he submitted that he had committed the murder in self-defence because during their quarrel S. had threatened him with an axe. The trial court heard the applicant and his co-accused, the mother of S. and several witnesses including witness K. During the questioning of K. the court rebuked the applicant twice for contempt of court and finally, at the prosecutor’s request, removed the applicant from the hearing for putting pressure on the witnesses. The applicant was absent until the end of the hearing of 22 March 2002. In his absence the trial court continued to hear witness K. and heard witness B. According to the applicant, on 22 March 2002 the trial court also ordered to remove from the hearing everybody except for the victims, their representative, witnesses and his co-accused. The examination of the case continued on 25 March 2002 in the applicant’s presence. The trial court heard seven more witnesses and an expert. 12. On 26 March 2002 the trial court found the applicant guilty of theft and premeditated murder and sentenced him to twelve years’ imprisonment. Having regard to the statements by the witnesses, it found, in particular, that S. had had no axe in his hands at the moment of his murder, and, therefore, the applicant’s version of self-defence had been unfounded. It also held that the applicant’s balance of mind had not been disturbed at the moment of the murder. Sch. was found guilty of concealment of murder and was sentenced to one year’s imprisonment. 13. The judgment stated that the applicant could lodge an appeal against it within seven days of the date he received its copy. The record of the hearing stated that the time-limits and the procedure for appealing against the judgment had been explained [to the parties]. 14. On an unspecified date the applicant lodged his remarks on the record of the hearings of 22 and 25 March 2002 with the trial court. He submitted that the record of the hearing had not mentioned exactly when he had returned to the hearing. He also complained that he had not been given the opportunity to read the record of the questioning of witnesses which had taken place in his absence. 15. On 10 June 2002 the trial court admitted the applicant’s remarks to the file. It also found that the applicant had returned to the hearing at 10 a.m. on 25 March 2002, that the testimony given in his absence had been read out to him and that he had been offered the opportunity to question witnesses K. and B., which he had refused. The trial court ordered that the record of the hearings be amended accordingly. 16. The applicant, but not Sch., appealed against the judgment of 26 March 2002. He argued in the first place that the trial court’s conclusion that S. had no axe in his hands had been inconsistent with the facts of the case and the evidence submitted in the trial. His actions should have been recharacterised as a murder committed as a result of exceeding the limits of necessary defence under Article 108 of the Criminal Code (see “Relevant domestic law and practice” below, paragraph 23), because S. had threatened him with an axe. He further submitted that the trial court had wrongly applied to him a rule on repetition of crimes, which had resulted in a heavier sentence. Finally, he complained that two women had been removed from the hearing of 22 March 2002. In his additional grounds of appeal the applicant submitted that the trial court had removed from the hearing people who had come to support him and left only the relatives and friends of the victims. He requested the appeal court to quash his conviction of premeditated murder and adopt a new judgment. When lodging his appeal the applicant did not expressly state that he wished to take part in the appeal hearing. 17. On 27 June 2002 the applicant received a notification that the appeal hearing would be held on 1 July 2002. The notification stated that personal appearance at that hearing was not obligatory. 18. On 1 July 2002 the appeal court held a hearing in the applicant’s absence. The applicant was not represented at that hearing. The appeal court heard the mother of S. and her representative, who considered that the applicant should be convicted of murder, committed with particular cruelty, and a more severe penalty should be imposed. They asked for the judgment to be quashed and the case remitted for fresh consideration to the trial court. The appeal court also heard the prosecutor. 19. Having studied the materials of the case, the appeal court found, in particular, that the trial court had rightly concluded on the basis of evidence and witnesses’ testimony that S. had no axe and had not represented a serious danger to the applicant. It further confirmed the trial court’s conclusion that the applicant’s balance of mind had not been disturbed when he had committed the murder. The appeal court concluded that the trial court had correctly characterised the applicant’s actions as premeditated murder and had imposed an appropriate sentence. On the same date it upheld the judgment of 26 March 2002 in its totality. 20. It does not appear from the decision of 1 July 2002 that the appeal court verified whether the applicant had been duly informed of the hearing and of the procedure to follow to take part in it, and whether he had expressed a wish to take part in it. 21. Article 37, as worded at the material time, provided that it had not to be deemed a crime when harm was inflicted in the state of necessary defence against an attacking person provided that the limits of necessary defence had not been exceeded. Premeditated actions which clearly did not match the character and danger of the attack had to be deemed exceeding the limits of necessary defence. 22. Article 105 § 1 defines murder as the intentional causing of death to another person which shall be punishable with deprivation of liberty for a term of six to fifteen years. 23. Article 108 provides that murder committed in excess of the limits of necessary defence shall be punishable by deprivation of liberty for a term of up to two years or by restraint of liberty for the same term. 24. Article 335 § 1 provided that during the examination of the case on appeal the public prosecutor would give his opinion as to whether a judgment delivered by the trial court was lawful and well-founded. Defence counsel could also take part in the appeal hearing. Article 335 § 2 stated that a decision regarding the defendant’s participation at the hearing was taken by the appeal court and that a defendant who appeared before the court was always entitled to give evidence. 25. In Ruling of 10 December 1998, the Constitutional Court of the Russian Federation declared Article 335 § 2 of the CCrP incompatible with the Constitution in so far as this provision enabled appeal courts to take a final decision in the case where it had rejected a defendant’s request to attend an appeal hearing without giving him or her the opportunity to study the materials of the hearing and state his or her opinion on the issues examined by the court. 26. Article 336 provided that persons who had lodged appeals were to be apprised of the date of the appeal hearing if it was to be held before courts lower than the Supreme Court of Russia. If an appeal was to be examined by the Supreme Court, an appellant had to be apprised of the appeal hearing if he or she had requested the court to do so in their appeal or observations on the appeal. Failure to appear by persons who had been duly notified of the hearing did not preclude examination of the case. 27. Article 360 establishes the scope of the examination of the case by an appeal court. It provides that the appeal court shall verify the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law of a lesser offence, but shall have no power to impose a more severe penalty or apply a law of a more serious offence. 28. Article 375 § 2 provides that if a convicted person wishes to take part in the appeal hearing, he shall indicate that in his statement of appeal. 29. Under Article 376 § 2 parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. Whether a convicted person held in custody shall be summoned shall be decided by the court. Article 376 § 3 provides that a convicted person held in custody who expressed a wish to be present at the examination of appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall take a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall be always entitled to take part in the hearing. Article 376 § 4 states that if persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude examination of the case. 30. Article 377 describes the procedure for examining cases by the appeal court. It provides, among other things, that at the hearing the court shall hear the statement of the party who had lodged the appeal and the objections of the opposing party. The appeal court shall be empowered, at the party’s request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party. 31. Article 378 establishes which decisions may be taken by the appeal court. It provides that the appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment. 32. Article 379 sets out the grounds for quashing or setting aside judgments by way of appeal. In particular, a judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court in the judgment and the facts established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, shall also constitute grounds for reversing or changing the judgment. 33. Article 383 provides that the judgment shall be deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe. A judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient, but only in instances when there is either a prosecution request or an application as a private prosecution, the victim or his representative to that effect. 34. Article 387 provides that where there has been a violation of the provisions of the Criminal Code, the appeal court may apply a law of a less serious offence and reduce the sentence, in accordance with legal reclassification of the acts committed. In doing so, the appeal court may not apply a law of a more serious offence or aggravate a sentence imposed. In cases where the trial court imposed a sentence more severe than that set forth by the relevant Article of the Criminal Code, the appeal court may reduce the sentence without changing the legal classification of the offence.

train

001-113410

ENG

TUR

CHAMBER

CASE OF EĞİTİM VE BİLİM EMEKÇİLERİ SENDİKASI v. TURKEY [Extracts]

Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

5. Eğitim-Sen, the Education and Science Workers’ Union (“the union”) was formed in Ankara on 13 January 1995. According to the information it has provided, the union has 167,000 members with 90 branches and is present in 430 towns and cities. It is affiliated to the KESK (Kamu Emekçileri Sendikaları Konfederasyonu – the Confederation of Public Sector Workers’ Union), which is a member of Education International. 6. On 15 September 2001 the union amended Article 2 (b) of its constitution to read as follows: “[Eğitim-Sen] defends the right of all individuals in society to receive, with equality and freedom, a democratic, secular, scientific and cost-free education in their mother tongue.” 7. On 15 February 2002 the Governor of Ankara requested the applicant union to delete the words “their mother tongue” from its constitution on the ground that they were in breach of Articles 3 and 42 of the Constitution and of sections 1 and 20 of Law no. 4688 on public servants’ unions. 8. The applicant union informed the Governor that it was too busy but that it undertook to amend its constitution by 30 June 2002. 9. On 29 March 2002, under section 37 of Law no. 4688, the Governor of Ankara requested the public prosecutor of Ankara to bring an action for dissolution against the applicant union on the ground that it had not carried out the requisite amendment of Article 2 (b) of its constitution. 10. On 3 July 2002 the applicant union amended Article 2 (b) of its constitution to read as follows: “[Eğitim-Sen] defends the right of all individuals in society to receive education in their mother tongue and to benefit from the development of their culture.” 11. On 16 July 2002 the public prosecutor gave a decision discontinuing the dissolution proceedings initiated by the Governor, on grounds of insufficient evidence and incriminating factors. In his decision the public prosecutor indicated, firstly, that the applicant union had amended Article 2 (b) of its constitution, which now provided that individuals should “receive education in their mother tongue”; he further stated that the matter was being discussed in some depth both publicly and in political parties and that it would be tabled for debate in Parliament. He concluded that, in those circumstances, it was not appropriate to bring dissolution proceedings against the applicant union or criminal proceedings against the members of its board. 12. On 15 October 2002 the Ministry of Labour and Social Security (“the Ministry”) informed the applicant union that, following the examination of its constitution, as amended on 3 July 2002 to comply with the relevant provisions of Law no. 4688, it had been concluded that the impugned Article was no longer in breach of the law. 13. On 27 June 2003 the Office of the Chief of Staff of the armed forces requested the Ministry to take the necessary measures against the applicant union on the ground that Article 2 (b) of its constitution, as amended on 3 July 2002, was in breach of Articles 3 and 42 of the Constitution. 14. On 15 July 2003 the Ministry requested the Governor of Ankara to examine the provisions of Article 2 (b) of the applicant union’s constitution in the light of section 6 of Law no. 4688. 15. On 28 October 2003 the Governor of Ankara requested the applicant union to delete the words “receive education in their mother tongue” from Article 2 (b) of its constitution. 16. On 12 April 2004 the Governor of Ankara, referring to the provisions of Article 2 (b) of the applicant union’s constitution and summing up the first set of proceedings against it, applied to the public prosecutor of Ankara to initiate fresh dissolution proceedings. The Governor explained that, even though Law no. 2923 of 14 October 1983 provided for the teaching of a number of languages and dialects, Article 2 of the applicant union’s constitution, in so far as it provided for education in a language other than Turkish, was in breach of that Law. 17. On 10 July 2004 the public prosecutor of Ankara brought proceedings against the seven members of the executive board of EğitimSen. In the context of that action, the prosecutor further requested the dissolution of the applicant union under section 37 of Law no. 4688 on the ground that the union had not deleted the impugned wording from its constitution. 18. The Ankara Employment Tribunal assumed jurisdiction to rule on the application for the dissolution of the applicant union pursuant to Law no. 4688. 19. On 13 July 2004 the Ankara Employment Tribunal, applying section 6 of Law no. 4688, granted the applicant union a period of sixty days to amend the impugned provisions of its constitution. 20. In a judgment of 15 September 2004, the Ankara Employment Tribunal dismissed the application for dissolution. In its reasoning it indicated in particular that the relevant Articles of Eğitim-Sen’s constitution did not jeopardise (tehlike) territorial, national or State unity or the existing borders of the Republic of Turkey. It did not find that the union had committed any unlawful action capable of suggesting that the provisions of the impugned Article of Eğitim-Sen’s constitution would be used by those opposed to the unity of the Republic of Turkey. Based on Article 90 of the Constitution and Articles 10 and 11 of the Convention, the tribunal also gave its own interpretation of Articles 10 and 11. It explained in this connection that freedom of expression constituted the basis of a democratic and pluralistic society, and that such freedom was a necessary condition for the progression of democratic societies and the personal development of each individual. It emphasised that, without such freedom, there was no democracy. It concluded that the provisions of Article 2 (b) of Eğitim-Sen’s constitution were not in breach of Articles 10 and 11 of the Convention. It further indicated that section 6(8) of Law no. 4688 – which granted sixty days to a union to comply with the law – should be interpreted in the light of the purpose of that Law. According to the tribunal, even if the union had not complied with the law within the time allowed, it was still for the tribunal to examine whether the application was well-founded and to rule on the merits of the case. 21. On 29 September 2004 the public prosecutor appealed on points of law. 22. In a judgment of 3 November 2004, the Court of Cassation overturned the judgment of 15 September 2004 on the ground that the Ankara Employment Tribunal had not correctly applied section 6(8) of Law no. 4688. It took the view that this section did not allow for any latitude of interpretation and that the dissolution of the union was mandatory where it had not complied with the provisions of the Law within a period of sixty days. It therefore concluded that Eğitim-Sen had to be dissolved, as it had not complied with the law within the time allowed to it by the Governor and the tribunal. 23. In a judgment of 21 February 2005, the Ankara Employment Tribunal, contrary to the Court of Cassation’s judgment of 3 November 2004, reiterated its original findings. It referred back to the legal reasoning used in its judgment of 15 September 2004 and invoked the Strasbourg case-law on the dissolution of political parties, in particular the cases concerning the United Communist Party of Turkey and the Freedom and Democracy Party (ÖZDEP). It further observed that the official language of the Republic of Turkey was Turkish and that, according to Article 66 of the Constitution, any individual attached to the Republic by citizenship was Turkish. In its view, the fact of learning a language other than the official language did not constitute an action or conduct in breach of the law, but such conduct was proof of an attachment to the State of Turkey. Whilst agreeing that the official language was Turkish and that there could not be any other official language, it found that there should not be any particular impediment to the learning of other languages. Referring to its previous reasoning, based on Articles 10 and 11 of the Convention, the tribunal found that there were two main grounds for the dissolution of a union, an association or a political party, namely “an imminent threat” and “the criterion of violence”. It observed that the union whose dissolution was sought defended in its constitution the principle of education in one’s own mother tongue and the development of culture. It emphasised that, even supposing that the wording in question was illegal, the content and weight of the terms did not constitute an imminent threat or an incitement to violence and their inclusion in the union’s constitution did not jeopardise territorial, national or State unity or the existing borders of the Republic of Turkey. It found, on the contrary, that the decision not to dissolve the union would have the effect of calming the social tension, disorder and antagonism that were prevalent in society, and of restoring social peace. 24. In a judgment of 22 May 2005, the combined divisions of the Court of Cassation (Yargıtay Hukuk Genel Kurulu) quashed by a majority the judgment of the court below. In its reasoning the court indicated that Articles 10 and 11 of the Convention provided for statutory limitations to the exercise of the freedoms of expression, assembly and association and that they notably stipulated that such restrictions had to be necessary in a democratic society. It was therefore the court’s task to verify whether the restrictions imposed by domestic law on fundamental rights and freedoms were consistent with Turkey’s international commitments. The court took the view that the union’s call for education in a mother tongue other than Turkish was in breach of Articles 3 and 42 of the Constitution and that it ran counter to the acceptance of a unitary State and to the existing legal system. In the court’s opinion, the right to form a union could thus be limited and such restrictions were necessary in a democratic society. The combined divisions of the Court of Cassation concluded that the defence of education in a mother tongue other than Turkish could not rely on Articles 10 and 11 of the Convention. 25. In their dissenting opinion, some of the members of the combined divisions of the Court of Cassation, relying on section 6 of Law no. 4688, observed that, according to the conclusion of the court below, the impugned provisions of the union’s constitution were compliant with the law. The dissenting judges were of the view that, as a result, there had been no legal basis on which to order the union to amend its constitution within sixty days. They stated that the judgment had to be quashed to enable the court below to comply with section 6 of Law no. 4688 and not for the purpose of having the union dissolved. 26. On 3 July 2005 the applicant union amended the offending part of Article 2 (b) of its constitution to read as follows: “[Eğitim-Sen] defends, in the context of human rights and fundamental freedoms, the right of all individuals in society to receive a democratic, secular, scientific and cost-free education.” 27. In a judgment of 27 October 2005, the Ankara Employment Tribunal, taking note of the amendment to the union’s constitution, found that there was no longer any reason to rule on the dissolution of the union, since the material elements that had given rise to the action no longer existed. 28. The relevant provisions of the Turkish Constitution, as in force at the material time, read as follows. “1. The State of Turkey constitutes, with its territory and nation, an indivisible whole. The official language is Turkish. ...” “Fundamental rights and freedoms may be restricted only by law and on the grounds set out in special provisions of the Constitution, provided always that the essence of such rights and freedoms remain intact. Any such restriction must not conflict with the letter or spirit of the Constitution or the requirements of a democratic, secular social order and must comply with the principle of proportionality.” “Everyone has the right to freedom of thought and opinion. No one may be compelled to reveal his thoughts and opinions or be reprimanded or incriminated on account of his thoughts or opinions for any reason and for any purpose whatsoever.” “Everyone has the right to express, individually or collectively, his thoughts and opinions and to disseminate them orally, in writing, in image or by any other means. This right includes the freedom to receive or impart information and ideas without interference by public authority. The present paragraph shall not preclude the imposition of rules concerning the licensing of broadcasting, television, cinema or other similar enterprises. The exercise of these freedoms may be restricted in the interests of national security, public order and public safety, for the preservation of the fundamental characteristics of the Republic, to protect the indivisible integrity of the State in terms of its territory and nation, to prevent crime, to punish offenders, to prevent the disclosure of information covered by State secrecy, to protect the honour, rights and private and family life of others, together with professional secrecy as provided for by law, and to ensure the fulfilment of the judicial function in accordance with its purpose. Rules governing the use of any means of conveying information and ideas are not to be regarded as restricting freedom of expression or freedom to impart ideas, provided they do not prevent such information or ideas from being conveyed. Any formalities, conditions and procedures concerning the exercise of freedom of expression and the conveying of ideas shall be regulated by law.” “No one may be deprived of the right to education. ... Citizens are not absolved from the duty to remain loyal to the Constitution by the freedom of education. ... No language other than Turkish may be taught to Turkish citizens as their mother tongue or be used for the purposes of teaching in educational institutions. The law lays down the rules concerning the teaching of foreign languages in educational institutions and those that must be complied with by schools where education is provided in a foreign language. The provisions of international conventions are reserved.” “Employees and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop the economic and social rights and interests of their members in the context of their labour relations, and to join or withdraw from such entities of their own free will. No one shall be compelled to join or resign from a trade union. The right to form a union may only be limited as prescribed by law in the interests of national security or public order, for the prevention of crime, for the protection of public health or morals or for the protection of the rights and freedoms of others. The formalities, conditions and procedures applicable to the right to form a trade union shall be prescribed by law. Membership of more than one trade union within the same sector of activity shall be prohibited. The scope of the rights, in this sphere, of public officials other than those who have the status of ordinary contractual employee, and the exceptions and limitations applicable to them, shall be prescribed by law in a manner appropriate to the nature of the services they provide. The constitution, administration and functioning of trade unions and federations of unions shall not be inconsistent with the fundamental characteristics of the Republic or with democratic principles.” “Any individual who is connected to the Turkish State by nationality shall be Turkish. ...” “... In the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute, the provisions of the international agreement shall prevail.” 29. The relevant provisions of Law no. 4688 read as follows. “(1) Trade unions and confederations may be formed freely and without prior authorisation. ... (7) ... In the event of failure to remedy [the breaches observed, the Governor] shall apply to the court for the termination of the activities of the trade union or confederation. ... (8) The court shall allow a time-limit not exceeding sixty days [for the trade union or confederation] to comply with the law or remedy the breaches observed. If, at the end of the said period, the constitution or the documents in question are not compliant with the law, the court may order the dissolution of the union or confederation. ...” “The administration and functioning of trade unions and confederations formed hereunder shall not be incompatible with the democratic qualities and principles of the Republic as defined in the Constitution. ...” “Any trade union or confederation which engages in activities that are incompatible with the qualities and principles of the Republic as defined in the Constitution shall be dissolved by decision of the court which has jurisdiction to hear labour disputes, on an application by the public prosecutor for the district where the registered office [of the union or confederation] is situated. ...” 30. Section 2(a) of Law no. 2923 provides that no language other than Turkish may be taught to Turkish citizens in educational establishments. However, it is permitted to make available to Turkish citizens private classes for the teaching of languages and dialects that they use traditionally in their daily lives, in accordance with a regulation adopted by the Minister for National Education. The teaching of such classes must not undermine the unity of the State and the nation or the indivisibility of national territory. 31. In its latest report on Turkey (paragraphs 60, 61, 62, 63, 70 and 71), adopted on 10 December 2010 and published on 8 February 2011, the European Commission against Racism and Intolerance (ECRI) reported as follows. “Teaching in and of languages other than Turkish to persons belonging to minority groups other than those recognised under the Treaty of Lausanne ... 60. Law no. 4771, enacted in August 2002 and which amended Law no. 2923 on foreign-language education and teaching and the learning of different languages and dialects by Turkish citizens, paved the way for opening private schools to teach ‘languages and dialects traditionally used by Turkish citizens in their daily lives’. In accordance with the Regulation on learning of different languages and dialects traditionally used by Turkish citizens in their daily lives, which came into effect on 5 December 2003, Kurdish language courses opened in seven towns between December 2003 and October 2004. However, all have since closed, and other attempts to open a Circassian language school in Ankara did not come to fruition as the relevant administrative requirements could not be met. The authorities have indicated that applications to open Adyghe and Abkhazian private courses are still being examined by the relevant Governorships in accordance with the above Regulation. At present, there are thus no private language schools open in Turkey for the teaching of the languages spoken by minority groups. ... 61. ... ECRI welcomes the decision taken by the Turkish authorities in October 2009 to open a Living Languages Institute at Mardin’s Artuklu University, at which Kurdish could be taught; courses in Syriac, Farsi and Arabic were also reportedly to be offered at the institute’s opening in February 2010. ... At the same time, ECRI notes with regret that in September 2009, the Council rejected a similar application to open a department of Kurdish studies and Kurdish language and literature at the University of Diyarbakır, on the grounds that the application – introduced by the local Bar Association – had been made by a body that supported terrorism. 62. ECRI recommends that the Turkish authorities revise the wording of Article 42 of the Constitution, which prohibits the teaching of non-Turkish mother tongues in schools except in accordance with provisions of international treaties. ECRI again emphasises that it should be possible for such tuition to be provided alongside tuition in the official language. 63. In addition, ECRI strongly recommends that the Turkish authorities pursue their efforts in favour of tuition in languages and dialects traditionally used in Turkey. It recommends that full effect be given to the existing possibility of opening private courses, particularly by removing all undue administrative obstacles. ... Schooling provided in Turkish to children whose mother tongue is not Turkish ... 70. ECRI again recommends that the Turkish authorities look into the situation of children of non-Turkish mother tongue and ensure that every effort is made to enable them to learn Turkish, the language of instruction, properly, for example through the provision of additional courses or methods for teaching Turkish as a second language. More broadly, ECRI recommends that the authorities conduct research into the overall situation within the education system of children belonging to minority groups, in order to allow targeted measures to be taken to remedy any inequalities in this field. 71. ECRI recommends that the Turkish authorities engage in dialogue with minority groups on the manner in which the concept of citizenship of the Turkish State is taught in schools, in order to ensure that the desired message of inclusiveness is imparted without leading to a sense that diversity is unwanted.”

train

001-103063

ENG

GBR

ADMISSIBILITY

DOWSETT v. THE UNITED KINGDOM (NO. 2)

Inadmissible

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

The applicant, Mr James Dowsett, is a British national who was born in 1946. He is currently detained at HMP Highpoint. He was represented before the Court by Mrs N. Mole, a lawyer practising in London with the AIRE Centre. On 22 March 1989 at Norwich Crown Court the applicant was convicted of the murder of Christopher Nugent and sentenced to life imprisonment. Mr Nugent had been the applicant’s business partner. He was shot and killed at their business premises on 15 December 1987 by Stephen Gray, who left the scene of the crime in a car driven by Gary Runham. The applicant was charged with murder jointly with Runham, Gray and two other men who had allegedly provided money to pay for the killing of Christopher Nugent. The Crown’s case was that the applicant had paid Runham and Gray 20,000 pounds sterling (GBP) to kill Nugent. The applicant’s defence was that he had only hired Runham and Gray to break one of Nugent’s limbs. Runham and Gray pleaded guilty to murder. Gray gave evidence for the prosecution against the applicant concerning the alleged murder conspiracy. In 1993, following a review of the prosecution’s duty of disclosure, 4,000 “actions” in the criminal investigation, which were contained in the police’s “Holmes” computer system, were disclosed to the applicant. Full disclosure of material gathered in the course of a separate fraud inquiry was also made. Prior to an appeal by the applicant to the Court of Appeal, he was served with a schedule of what material was still being withheld from him; this included a document numbered 580, a letter from Gray’s solicitors to a Suffolk police officer, which discussed a prison transfer and the possibility of the police supporting his early release from prison. Document no. 580 subsequently came into the applicant’s possession, though, in proceedings before this Court (see section 2 below), there was a dispute between the parties as to whether the applicant had received it before the appeal hearing. Following the dismissal of the applicant’s appeal, an application was introduced with this Court and, in its judgment of 24 June 2003, the Court found that there had been a violation of the applicant’s right to a fair trial. The Court was not persuaded that the Government had shown that document no. 580, relevant to the applicant’s defence, was made available to his counsel in time for use at the appeal. It went on to state that this finding was not, however, essential to its reasoning as, in any event, it was not in dispute that other documents were not disclosed at this time, on the basis, inter alia, of the prosecution’s assessment that public interest immunity was applicable to them. Moreover, a request to the Court to Appeal that it review the undisclosed material was not to be regarded as an adequate safeguard as the Court of Appeal would neither have been assisted by defence counsel’s arguments as to its relevance nor have been able to draw on any first-hand knowledge of the evidence given at trial. On 16 September 1999 the applicant applied to the Criminal Cases Review Commission to have his case referred back to the Court of Appeal but asked the Commission to defer its report until this Court had given judgment. On 25 July 2005 the Commission informed the applicant of its final decision not to refer his case to the Court of Appeal. In its examination of the case, the Commission exercised its powers under section 17 of the Criminal Appeal Act 1995 (see relevant domestic law and practice below) to obtain and examine the undisclosed material, including document no. 580. It concluded that, aside from document no. 580, nothing seen by the Commission was thought to be either prima facie disclosable or to impact upon the safety of the applicant’s conviction. In the absence of any further undisclosed information that could have undermined the prosecution case or assisted the applicant’s defence, the Commission confined its consideration to whether or not the non-disclosure of document no. 580, along with this Court’s assessment of that nondisclosure, gave rise to a real possibility that the Court of Appeal would quash the conviction. In the Commission’s view, it did not. Despite the expiry of the tariff period of his life sentence, Gray remained in custody at the time of the Commission’s report; there was nothing in the Prison Service’s files that would have undermined his evidence at trial and the Commission had not uncovered any material that could have been used by the applicant’s defence team to more effectively cross-examine him. There was nothing remarkable in the fact that Gray had been given a degree of protection by the authorities before trial and document no. 580 would not have led to any line of cross-examination that was not already open to the applicant. At paragraphs 7.48 and 7.49 of its report the Commission gave its final conclusion as follows: “The ECtHR has itself pronounced that the material non-disclosure was a breach of Mr Dowsett’s rights, a factor that has been weighed heavily by the Commission... The Commission can only conclude that Document 580 was a letter showing that Mr Gray was being held in isolation from his co-defendants, that the police were facilitating visits for his wife and that he was hopeful for relatively favourable treatment (compared, at least, to his co-defendants) in terms of his life sentence. In the view of the Commission, this new information, taken in any combination with any other frailties in the prosecution case, is not sufficient to lead the Commission to believe that there is a real possibility that any properly directed jury might reasonably have reached a different decision in Mr Dowsett’s case.” The applicant sought judicial review of the Commission’s decision. On 7 June 2007, this was refused by the High Court. Mr Justice Mitting observed: “[The Commission was plainly entitled to reach the view that it did and so to refuse to refer. For those reasons I would dismiss this application for judicial review; but, before doing so, it is useful by way of a check to analyse what might happen if, contrary to the view that I have expressed, the Commission were to refer this case to the Court of Appeal Criminal Division. As the Strasbourg court demonstrated in this case and as it has done in other circumstances and in other cases, for example Doorson v The Netherlands [1996] 22 EHRR 330, procedures in an appellate court can cure a defect in a trial at first instance. Thus, for example, as in Doorson, the ability to cross-examine a witness not available at first instance but available on appeal may cure that defect. In this case, as the Strasbourg court held, the opportunity for the Court of Appeal to review, in the light of submissions made by the defence, documents that have been disclosed to the defence cured the defect in disclosure in the court below. It must therefore follow that, on a reference, document D580, available to the defence and to the court, would be open to be considered by the court in circumstances in which its consideration would cure the failure to disclose in the court below. Likewise, in relation to the documents only listed but still not disclosed, two possibilities exist for the defect in the court below to be cured. The Crown might decide that, after the lapse of 20 years, it was no longer necessary to maintain public interest immunity in respect of the documents. Alternatively a special advocate might be appointed to examine them on behalf of the claimant. In either event, the defect below would potentially at least be curable. Accordingly, the effect of a reference by the Commission in this case, if its judgment is right, would be that an otherwise perfectly safe conviction would not only be upheld but also would be upheld in circumstances in which the claimant’s Article 6 rights would ultimately be fully vindicated by the appeal process. To embark on that course, if the judgment of the Commission is right, would be an academic exercise only. In my view there would be no purpose of justice to be served by requiring the Commission and the Court of Appeal to undertake it.” Lord Justice Laws added: “A conviction would not be upheld if and only if the Court of Appeal were to consider it unsafe. Unless the finding by the European Court of Human Rights of a violation of Article 6 necessarily entails the conclusion that the verdict is unsafe, the impact of that finding was for the CCRC to evaluate in the course of their consideration of the section 13(1)(a) question [see relevant domestic law below]. It seems to me that their treatment of it is beyond the reach of sensible challenge in court. I agree with my Lord [Mr Justice Mitting] that not every criminal case where there has been a finding of violation of Article 6 yields the conclusion that the verdict is unsafe and I adopt with gratitude his summary of the relevant learning. While any breach of Article 6 is plainly a cause of concern, and instances of such breaches in cases where the conviction is nevertheless safe may be few and far between, in this area one would not expect to see a rigid rule with no exceptions but a case by case approach with much emphasis laid on the gravity and effect of a particular violation.” At its 1020th meeting from 4–6 March 2008 the Committee of Ministers, having taken note of the proceedings before the Criminal Cases Review Commission and the High Court’s judgment, decided to close its examination of the case. The Criminal Cases Review Commission is regulated by the Criminal Appeal Act 1995. Where a person has been convicted on indictment, section 9(1) gives the Commission the power to refer at any time the conviction to the Court of Appeal. By section 9(2), any such reference is to be treated for all purposes as an appeal by the person concerned against conviction. Section 13 sets the conditions for making references. It provides: “(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless — (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made, (b) the Commission so consider— (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.” Section 17 of the Act provides: “(1) This section applies where the Commission believe that a person serving in a public body has possession or control of a document or other material which may assist the Commission in the exercise of any of their functions. (2) Where it is reasonable to do so, the Commission may require the person who is the appropriate person in relation to the public body— (a) to produce the document or other material to the Commission or to give the Commission access to it, and (b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate, and may direct that person that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Commission. (3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to— (a) the case in relation to which the Commission’s function is being or may be exercised, or (b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case). (4) The duty to comply with a requirement under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of an enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.” On 19 January 2000, at the 694th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to bring about a closer union between its members; 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 ... 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 reexamination 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. Explanatory memorandum on Recommendation R (2000) 2: ... Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist. ...”

train

001-111842

ENG

EST

CHAMBER

CASE OF SAMSONNIKOV v. ESTONIA

Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for private life)

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

6. The applicant was born in 1978. He currently lives in St Petersburg, Russia. 7. The applicant was born in Estonia and had not permanently resided in any other country until his expulsion from Estonia. 8. The applicant completed his basic education in Tallinn in 1993 in a school where the language of instruction was Russian. His knowledge of Estonian was graded “4” (“good”) at school. 9. In 1994 the applicant’s mother died in Moscow. She was buried in Russia. 10. From 20 June 1995 until 20 June 2000, from 5 May 2003 until 4 May 2005 and from 5 May 2005 until 4 May 2008 the applicant had temporary residence permits in Estonia. 11. In the meantime, in 1998, the applicant applied for, and was granted (as a citizen of the former USSR), citizenship of the Russian Federation. According to the applicant, in the late 1990s he attempted to acquire Estonian nationality. However, he never made a formal request to that effect. 12. The applicant has three criminal convictions in Estonia: - on 27 January 1997 the Tallinn City Court convicted him of aggravated hooliganism (he had beaten a person in the street and later broken a door of an apartment and beaten its inhabitants together with two co-defendants), aggravated theft and attempted theft; he was sentenced to two and a half years’ imprisonment, suspended; - on 26 September 2000 the Tallinn City Court convicted him of attempted aggravated theft and violence against a police officer (he had punched the officer in the face); he was again sentenced to two and a half years’ imprisonment, suspended; - on 22 March 2001 the Tallinn City Court convicted him of attempted aggravated theft; he was given eight months’ imprisonment. Taking into account the earlier, unserved sentence, the court set the compound sentence to be served by the applicant at two years and seven months’ imprisonment. It was noted in the judgment that in the course of 2000 the applicant had been punished seven times for administrative offences of petty theft and consumption of narcotic substances. 13. The applicant was released on 4 September 2003 after serving his prison term. 14. From 2006 until 2009 the applicant was given seven punishments for misdemeanours (illegal consumption or possession of narcotic drugs and travelling on public transport without a ticket). 15. The applicant is HIV-positive and suffers from hepatitis C. 16. In the meantime, on 6 December 2007, the applicant was arrested in Sweden on suspicion of smuggling of drugs. 17. On 7 March 2008 he was convicted of aggravated drug smuggling by the District Court of Helsingborg in Sweden. According to the judgment he smuggled more than 400 Subutex pills over the Swedish border. He was sentenced to two years and four months’ imprisonment and began serving his sentence in Salberga Prison in Sweden. In addition, the District Court decided that the applicant was to be expelled from Sweden and to be subsequently prohibited from entering the country before 7 March 2015. The court was unable to verify the applicant’s argument that he had a daughter in Sweden since he declined to disclose the alleged daughter’s or her mother’s personal details such as their names and addresses. 18. The applicant appealed against the District Court’s judgment. However, since he subsequently withdrew his appeal, the Scania and Blekinge Court of Appeal struck the case out of its list of cases on 24 April 2008. 19. In February 2009 the applicant requested the reopening of his case in Sweden, arguing that because of the prohibition on entry imposed by the Swedish court the Estonian migration authorities had refused to extend his residence permit in Estonia. He requested the removal of the deportation order from the judgment. 20. On 20 April 2009 the Scania and Blekinge Court of Appeal refused to reopen the case. On 26 May 2009 the Swedish Supreme Court refused the applicant leave to appeal against that decision. 21. On 10 July 2009 the applicant was released from prison in Sweden and deported to Estonia. 22. In the case file there are also copies of printouts from the Schengen Information System, according to which the applicant was to be refused entry or stay in the Schengen area until 20 September 2010 (this notice was entered into the system on 20 August 2007) and later until 17 July 2011 (entered into the system on 17 July 2008). It appears that on 24 August 2009 the Swedish authorities extended the prohibition on the applicant’s entry to the Schengen area until 24 August 2012. 23. In the meantime, on 11 February 2008, while in custody in Sweden, the applicant applied for an extension of his residence and work permit from the Estonian Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”). 24. By a letter of 10 September 2008 the Board informed the applicant that he would be denied an extension of his residence and work permit. He was requested to present his opinion and objections. In reply, the applicant asked for the Board’s letter to be translated into English or Russian since he did not have sufficient command of Estonian and being in prison he could not have the Board’s letter translated. On 30 September 2008 the Board sent the applicant a Russian translation of the letter. In his objections sent to the Board the applicant reiterated his request for a residence permit, saying that he wished to return to Estonia after his release from prison in Sweden. He submitted that he had been born and raised in Estonia and that he had his father and brother in that country. In spite of his Russian nationality he had never lived in Russia and had no place of residence or relatives there. He was seriously ill and the treatment he would continue to need could be carried out only in Estonia. His father also needed his support because of his age. 25. On 18 November 2008 the Board refused to extend the applicant’s residence and work permit. It had regard to the nature and severity of the offences committed by the applicant (already mentioned above), the fact that his criminal record had not expired and that an alert had been issued for the purposes of refusing him entry into Schengen countries, as well as the fact that he was serving a prison sentence in Sweden. The Board considered that although the applicant had been born in Estonia and his father and brother lived in Estonia, he did not have a family life in that country. It further considered that the applicant could continue his treatment in Russia. The Board found no exceptional circumstances that required extending his residence permit. In conclusion, the Board considered that the refusal to extend the applicant’s residence permit was a proportionate measure for pursuing the aim of protecting the constitutional rights of others. 26. The applicant lodged a complaint against the Board’s refusal with the Tallinn Administrative Court. He argued that the decision of the Board had been insufficiently reasoned and that the refusal infringed his right to respect for family life. At the Administrative Court’s hearing the applicant was represented by his father and a legal advisor. 27. By a judgment of 28 April 2009 the Tallinn Administrative Court dismissed the applicant’s complaint. It found that the Board’s refusal was lawful. The court agreed with the Board’s finding that the applicant’s criminal behaviour posed a threat to public safety. Furthermore, the prohibition on entry into the Schengen area imposed by the Swedish authorities also extended to Estonia. 28. The Administrative Court considered that the Board’s decision did not infringe on the applicant’s right to respect for family life. It noted that the applicant was divorced and had no partner or children. His father lived with his partner at the latter’s residence. The applicant’s brother had a family of his own. The court concluded that the applicant did not have a family life to be protected in Estonia. The court also dismissed the applicant’s arguments related to the advanced age of his father who was sixty-five years old, to the applicant’s illness and the fact that he had been born in Estonia. It found that there were no exceptional circumstances to justify the extension of his residence permit. 29. On 10 July 2009 the applicant was transferred from Sweden to Estonia. 30. On 1 August 2009 the applicant began living with V., a person of undetermined citizenship who held a permanent residence permit in Estonia, as his partner. 31. On 16 September 2009 the applicant sought permission from the Board to be allowed, by way of exception, to submit an application for a residence permit with the Board directly instead of submitting it to a foreign representation of Estonia. On 30 September 2009 the Board refused to grant the permission and declined to consider his application for a residence permit. 32. On 27 October 2009 the Tallinn Court of Appeal heard the applicant’s appeal against the Tallinn Administrative Court’s judgment. The Board’s representative submitted that based on humanitarian considerations the applicant’s expulsion procedure had not been initiated because of the ongoing court proceedings concerning his residence permit. 33. On 12 November 2009 the Tallinn Court of Appeal upheld the Administrative Court’s judgment of 28 April 2009. It noted, inter alia, that under section 12(4-1) of the Aliens Act (Välismaalaste seadus) a temporary residence permit could be issued, by way of exception, to an alien in respect of whom a prohibition on entry into the Schengen area had been issued. The Board and the Administrative Court had considered whether making such an exception had been justified in the present case but had found that this had not been warranted in the circumstances. The Court of Appeal also noted that the applicant had not turned to the Swedish authorities in order to have the period of validity of the prohibition on entry into the Schengen area amended as stipulated by the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus). 34. The Court of Appeal further noted that the refusal to extend the applicant’s residence permit during his imprisonment in Sweden had had no bearing on his private life because the one-year residence permit that was usually granted in such circumstances would have expired before the end of the applicant’s prison term in Sweden. During the time of the service of the prison sentence the applicant’s right to private life had been restricted by the execution of the sentence and it had not been dependent on the granting or refusal of a residence permit in Estonia. 35. The Court of Appeal also noted that the Board had considered the possibility of the applicant’s early release from prison and his expulsion in such case. It agreed with the Board’s preliminary assessment that the applicant’s expulsion was not excluded and that he could reside in the country of his nationality. 36. On 10 March 2010 the Supreme Court declined to hear the applicant’s appeal. 37. By a letter of 22 March 2010 the Police and Border Guard Board (Politsei- ja Piirivalveamet) asked the applicant to come to its offices on 31 March 2010 so that the circumstances of his stay in Estonia could be clarified and an order (ettekirjutus) be made. 38. On an unspecified date the applicant left Estonia for Denmark where he stayed for four months, according to a statement from V. to the Court. He was then arrested in Denmark and on 9 July 2010 the Danish authorities made a request to their Estonian counterparts concerning the applicant’s deportation to Estonia. However, his deportation on 13 July 2010 as agreed by the authorities did not take place since the applicant had escaped from them while in Copenhagen. He arrived in Estonia on 20 July 2010 via a passenger port. 39. On 29 January 2011 the applicant was arrested by the police. He was under the influence of narcotic drugs and presented an identity card of his brother, who was an Estonian national. The applicant was taken into custody. On 28 February 2011 he was fined for a breach of the Narcotic Drugs and Psychotropic Substances and Precursors thereof Act (Narkootiliste ja psühhotroopsete ainete ning nende lähteainete seadus). 40. In the meantime, on 31 January 2011 the Police and Border Guard Board issued an expulsion order (ettekirjutus Eestist lahkumiseks) in respect of the applicant. The order was immediately enforceable on the basis of section 7-2(2)(3) of the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus). In addition, a three-year prohibition on entry was imposed on the applicant. Pursuant to sections 71(2) and 7-1(3) of the above Act, the expulsion order was given by means of a standard form and it only revealed its legal basis without containing the factual basis, related circumstances or relevant considerations. 41. On the same day the Tallinn Administrative Court authorised the applicant’s detention in a deportation centre until his expulsion, but for not more than two months. This authorisation was later extended until 31 May 2011. 42. The applicant challenged the expulsion order and prohibition on entry before the Tallinn Administrative Court. 43. In May 2011 the applicant made inquiries by phone and electronic mail to a public notary about the possibility to get married while in detention. 44. On 26 May 2011 the applicant applied for an interim measure and requested that his expulsion be stayed. On the same day the Tallinn Administrative Court dismissed the request. An appeal was dismissed by the Tallinn Court of Appeal on 7 June 2011. 45. In the meantime, on 27 May 2011 the applicant was expelled to Russia. He stayed with a distant relative in Sebedzh, Pskov Region, for some weeks and then lived on the street for some time. His request for medicines against HIV was granted by the local authorities although one of the medicines he had used in Estonia was not available in Russia. In September 2011 he moved to St Petersburg where he was able to find temporary non-registered accommodation and unofficial employment. 46. In the meantime, on 8 June 2011, the applicant’s lawyer sought to amend the complaint lodged with the Tallinn Administrative Court. She challenged the applicant’s actual expulsion and requested that the State be obliged to allow the applicant to return to the country. The Administrative Court initially registered these complaints as a separate set of proceedings but, following instructions from the Tallinn Court of Appeal, it later joined the cases and proceeded to examine the new complaints. By a judgment of 2 March 2012 the Tallinn Administrative Court dismissed the complaints. It held that the expulsion order was lawful under sections 7-2(2)(3) and 72(2)(4) of the Obligation to Leave and Prohibition on Entry Act, as argued by the Police and Border Guard Board, and that the three-year prohibition on entry was lawful as well. Consequently, the complaint concerning the actual expulsion and the claim to be allowed to return to the country were also dismissed. According to the applicant he has instructed his lawyer to appeal against the judgment. 47. Section 12(4) of the Aliens Act (Välismaalaste seadus), as in force at the material time, listed the instances in which a residence permit could not be issued or extended. Section 12(4)(5) provided that a permit could not be issued or extended if the alien applying for it had been convicted of a criminal offence and sentenced to imprisonment for a term exceeding one year and his or her criminal record had neither expired nor been expunged, or the information concerning the punishment had not been expunged from the punishment register. Section 12(4)(8) provided that a residence permit be denied to persons who had been repeatedly punished for intentional criminal offences. 48. Section 12(5) of the Aliens Act provided that, by way of exception, a temporary residence permit could be issued or extended for aliens falling under the above provisions, if this was not excluded on other grounds referred to in the same provision. 49. Section 12(4-1) of the Aliens Act provided that a residence permit could not be issued or extended in respect of an alien for whom an alert for the purposes of refusing entry had been issued by a State belonging to the common visa area of the European Union and such an alert had been introduced into the Schengen Information System in accordance with the Schengen Convention. By way of exception, a temporary residence permit could be issued or extended on humanitarian grounds or by reason of international commitments. 50. Section 7-2(2)(3) of the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus) provides that no term for voluntary compliance with the obligation to leave is assigned in the expulsion order and it shall be enforced immediately if the order is made in respect of an alien who has arrived in Estonia illegally. Section 7-2(2)(4) provides that the same applies to an alien in respect of whom a prohibition on entry has been imposed. 51. Section 33-5(3) of the Obligation to Leave and Prohibition on Entry Act provides that in order to amend the period of validity of the prohibition on entry into the Schengen area the alien is required to turn to a member State of the Schengen Convention applying the prohibition on entry. 52. In a judgment of 22 March 2007 (case no. 3-3-1-2-07) the Administrative Law Chamber of the Supreme Court found that upon issuing an expulsion order in the case in question the migration authorities had not been required to assess whether the person concerned posed a threat to the national security. An assessment related to the possible infringement of the complainant’s right to respect for his family life had had to be carried out when the question whether to grant him a residence permit had been dealt with. 53. Recommendation Rec(2000)15 of the Committee of Ministers of the Council of Europe to member States concerning the security of residence of long-term migrants states, inter alia: “4. As regards the protection against expulsion a. Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria: – the personal behaviour of the immigrant; – the duration of residence; – the consequences for both the immigrant and his or her family; – existing links of the immigrant and his or her family to his or her country of origin. b. In application of the principle of proportionality as stated in paragraph 4.a, member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled: – after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension; – after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension. After twenty years of residence, a long-term immigrant should no longer be expellable. c. Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen. Long-term immigrants who are minors may in principle not be expelled. d. In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”

train

001-5640

ENG

ESP

ADMISSIBILITY

GONZALEZ MARIN v. SPAIN

Inadmissible

The applicant [Mr Jesús María Gonzalez Marin] is a Spanish national who lives in Valencia. He was represented before the Court by Ms C. García Ramos, of the Valencia Bar. The facts of the case, as submitted by the parties, may be summarised as follows. On 19 and 20 October 1982 the Valencia region was hit by torrential rains which produced a sudden rise in the River Júcar and caused the Tous dam to burst and then collapse. Land was flooded in twenty-five municipalities as a result of the dam collapsing and the water from it pouring into the Júcar. Eight people died, many properties and much farmland were damaged and some 33,000 people were affected by the disaster. The scale of it gave rise to very strong public feeling and wide reporting in the media. At the time of the disaster the applicant was an engineer at the dam. On 23 October 1982 Játiva (Valencia) investigating judge no. 1 started a criminal investigation. In an order of 27 January 1983 he charged the applicant and S.M.S., another engineer who worked at the dam, with serious negligence. On 31 January 1986 those victims of the disaster who had together joined the proceedings as a single civil party applied for two other engineers at the dam, F.S.G. and R.G.M.-R., to be charged with the same offence. In an order of 26 February 1986 the Valencia Audiencia Provincial charged F.S.G. and R.G.M.-R. with serious negligence. The two engineers and counsel representing the government lodged an appeal (recurso de súplica) against that decision. Their appeal was dismissed on 16 April 1986. The trial began on 9 March 1987. The civil party sought to have a further engineer at the dam, J.S.-T.M., likewise charged with the same offence. In an order of 9 June 1987 the Valencia Audiencia Provincial charged J.S.-T.M. with very serious negligence. J.S.-T.M. lodged a súplica appeal against that decision. His appeal was dismissed on 17 July 1987. The trial was then adjourned to 20 February 1989. On 5 October 1987 J.S.-T.M. lodged a criminal complaint against two of the Audiencia Provincial judges for abuse of office. On 30 October 1987 the Audiencia Provincial ruled that there were no grounds for that complaint. J.S.-T.M. lodged a súplica appeal against that ruling. His appeal was dismissed on 21 November 1987. On a further appeal, the Supreme Court upheld the original ruling. Subsequently, on 6 October 1987 and 22 September 1988, J.S.-T.M. challenged the same two judges in the Valencia Audiencia Provincial, but was unsuccessful. He lodged an appeal (recurso de amparo) with the Constitutional Court, which dismissed it on 27 April 1989. The trial was held at the Valencia Audiencia Provincial between 20 February 1989 and 15 February 1990. On 23 October 1990 the court acquitted the applicant, S.M.S. and F.S.G., but sentenced R.G.M.-R. and J.S.-T.M. to one year’s imprisonment and to fines for serious negligence. R.G.M.-R. and J.S.-T.M. appealed on points of law to the Supreme Court, arguing that the trial court’s judgment should be declared a nullity on the ground that the proceedings had been flawed. In a judgment of 8 February 1993 the Supreme Court declared that the order in respect of F.S.G. and R.G.M.-R. was void and that the trial was a nullity on the ground that one of the Valencia Audiencia Provincial judges had been biased. It ordered the proceedings to be resumed expeditiously. In a decision (auto) of 26 April 1993 the Valencia Audiencia Provincial ordered the trial to begin. Hearings were held in open court between 13 October and 29 November 1993. Subsequently, in a decision of 18 December 1993, the Valencia Audiencia Provincial adjourned the date for lodging final written submissions in order to allow other victims of the disaster to bring proceedings. The defendants and the victims lodged súplica appeals (nine in all) against that decision. In a decision of 17 January 1994 the Audiencia Provincial dismissed the appeals and upheld the decision of 18 December 1993. On 9 February 1994 counsel representing the government lodged an amparo appeal against those two decisions. Subsequently the applicant himself joined that appeal. The Constitutional Court, in a decision of 1 December 1994, reversed the decisions, found that the proceedings had been lengthy and ordered the trial to begin. Hearings were held from 30 January to 21 July 1995. In a judgment of 4 October 1995 the Valencia Audiencia Provincial acquitted all the defendants. The public prosecutor’s office and the civil party appealed on points of law to the Supreme Court, which, in a judgment of 15 April 1997, served on 17 April 1997, set aside the Audiencia Provincial’s judgment and sentenced the applicant to one month’s imprisonment and to fines for negligence under Article 586 bis of the Criminal Code. It also ordered the State to pay the damages if the applicant was insolvent. The applicant then lodged an amparo appeal with the Constitutional Court in which he complained, inter alia, of the length of the proceedings. His appeal was dismissed in a decision of 16 July 1997, which was served on 29 July 1997, on the grounds that the fundamental right on which he relied had not been raised earlier and that the appeal did not raise a constitutional issue. The Constitutional Court stated that the applicant had failed to comply with section 44(1)(c) of the Constitutional Court Act in that he had not submitted his complaint to the Supreme Court when it had heard the appeal on points of law; he should in any event have raised it at an earlier stage of the proceedings when formal note could have been taken of the excessive length of the proceedings, and not thirteen years after the violation had occurred and after the authority responsible for the lengthy proceedings had taken steps to expedite them. The Constitutional Court also pointed out that it had already addressed that ground of appeal and granted relief on an earlier amparo appeal. “Everyone is entitled … to a public trial without undue delays …” “Losses incurred as a result of judicial errors or a malfunctioning of the administration of justice shall be compensated by the State, in accordance with the law.” “1. Anyone who incurs a loss as a result of a judicial error or a malfunctioning of the judicial system shall be compensated by the State, other than in cases of force majeure, in accordance with the provisions of this Part. 2. The alleged loss must in any event actually have occurred and be quantifiable in monetary terms and must directly affect either an individual or a group of individuals.” “In the event of a judicial error or a malfunctioning of the judicial system, the complainant shall submit his claim for compensation to the Ministry of Justice. The claim shall be examined in accordance with the provisions governing the State’s financial liability. An appeal shall lie to the administrative courts against the decision of the Ministry of Justice. The right to compensation shall lapse one year after it could first have been exercised.” “1. An amparo appeal in respect of a violation of rights and guarantees capable of constitutional protection … does not lie unless … the violation in question has been formally alleged in the proceedings in question as soon as possible after it has occurred. …”

train

001-96025

ENG

ALB

CHAMBER

CASE OF BUSHATI AND OTHERS v. ALBANIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved

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

7. The applicants were born in 1918, 1939 and 1944, respectively, and live in Shkoder. 8. Following the conclusion of a purchase contract on 10 July 1940, the applicants' relative became the owner of a plot of land measuring 5,000 sq. m and situated on the Durrës coast. The applicants' relative's title to the property was subsequently entered in the Durrës Land Register. 9. In 1946 the State nationalised – without compensation – all the land situated on the Albanian coast, including the applicants' relative's plot of land. 10. On 3 February 1994 the Durrës Commission on Restitution and Compensation of Property (Komisioni i Kthimit dhe Kompensimit të Pronave – hereafter “the Commission”), restored the applicants' property rights over their relative's property pursuant to the Property (Restitution and Compensation) Act of 1993 (see “Relevant domestic law”, paragraph 53 below). On 22 February 1994 the applicants' title to the property was entered in the Durrës Land Register. 11. Between 1994 and 1995 attempts by the applicants to recover possession of the property proved unsuccessful because buildings had been illegally erected on their land by unlawful occupiers. 12. On an unspecified date in 1995, being unable to recover possession of their property, the applicants initiated proceedings before the Durrës District Court (“the District Court”), seeking an order for three occupiers (M., R. and D.) to cease occupation of their property and for the illegal buildings to be demolished. 13. On 11 April 1995 the District Court confirmed the applicants' property rights over the plot of land allocated to them by the Commission and ordered the occupiers to vacate the applicants' property. That decision became final on 23 May 1995. 14. On 1 August 1995 one of the occupiers, M., submitted a request to the President of the then Court of Cassation for supervisory review of the District Court's decision of 11 April 1995 on the ground that he had not been notified of the proceedings. On 23 September 1995 the President of the Court of Cassation endorsed his request by putting it before the Civil Bench. 15. On 2 February 1996 the Court of Cassation quashed the District Court's decision of 11 April 1995 on the ground that none of the three occupiers had been duly informed of the proceedings before the District Court, and remitted the case to the same court for fresh examination. 16. The applicants were neither informed of the proceedings nor invited to attend the hearings before the Court of Cassation. 17. On 21 June 1996 the District Court decided to dismiss the case as none of the parties had attended the hearing and none had given legitimate reasons for their failure to attend. 18. It appears that the proceedings were reopened on an unspecified date. They were also directed against another unlawful occupier, B. On 20 January 1997 the District Court confirmed the applicants' title to their relative's plot of land and ordered the four occupiers (M., R., D. and B.) to cease occupation. 19. In February 1997 the applicants sold a plot measuring 500 sq. m to another party. That transaction was entered in the land register. 20. On an unspecified date the occupiers of the applicants' property appealed against the District Court's decision of 20 January 1997, challenging the lawfulness of the applicants' title to the plot of land. On 1 April 1998 the Durrës Court of Appeal (“the Court of Appeal”) dismissed their appeal and upheld the District Court's decision. 21. On 10 November 1998 the Court of Cassation quashed the Court of Appeal's decision on the ground that the latter had not examined the lawfulness of the applicants' relative's title to the property. It remitted the case to the Court of Appeal for fresh examination. 22. On 24 November 1999 the Court of Appeal found that on 30 August 1994 the Commission had allocated to R. (who had subsequently donated his property to G.) a plot of land that overlapped with 720 sq. m of the plot of land allocated to the applicants by the same Commission on 3 February 1994. Moreover, the court declared null and void the Commission's decision of 3 February 1994 in respect of the plot measuring 720 sq. m, finding that the applicants' relative's purchase contract of 10 July 1940 was null and void. It therefore revoked the applicants' title to the entire plot of land measuring 5,000 sq. m. 23. On 2 April 2001, following appeals by the applicants and by three of the four occupiers (M., B. and D.), the Supreme Court, which had replaced the Court of Cassation after the Albanian Constitution's entry into force on 28 November 1998, quashed the Court of Appeal's decision in part. The court dismissed the occupiers' appeals on the ground that, as they occupied the land without title, they lacked standing to challenge the applicants' title to the property. The Supreme Court therefore ordered them to cease their occupation of the land. Moreover, the court upheld G.'s title to the plot measuring 720 sq. m that overlapped with the land allocated to the applicants and confirmed the applicants' property rights over the remaining 4,280 sq. m. 24. On 11 March 2003 the applicants lodged an appeal with the Constitutional Court under Article 131 (f) of the Constitution, arguing that the Supreme Court's judgment of 2 April 2001, which resulted in only partial recognition of their property, was unconstitutional. They complained that as the Supreme Court had wrongly assessed the evidence, its impartiality was open to doubt. 25. The Constitutional Court found that the applicants' constitutional complaint concerned the assessment of evidence, which fell within the jurisdiction of the lower courts and was outside its jurisdiction. It therefore declared the appeal inadmissible by a decision of 10 July 2003, which was served on the applicants on 14 July 2003. 26. On 28 June 2001 the District Court ordered the bailiffs to enforce the Supreme Court's judgment of 2 April 2001. 27. On 31 July 2001 the bailiff sent three separate letters to M., D. and B. to comply with the judgment within 10 days from the notification thereof. The bailiff drew the occupiers' attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily. 28. On 25 September 2001 the third applicant requested a stay in the execution of the judgment until 15 October for reasons which he did not disclose. The record states that the applicant would appear at the bailiff's office to request the continuation of the enforcement proceedings. 29. On 26 October 2001 the applicant and occupiers M. and D. appeared before the bailiff. The record states that “the parties agreed to postpone the execution of the judgment until 15 November 2001”. 30. On 16 January 2002 the third applicant requested the bailiff to waive the applicants' right of enforcement of the judgment against B. as both parties would resolve the issue by agreement. It appears that on an unspecified date in 2002 the applicants sold a plot measuring 164 sq. m to B. On the same day the third applicant requested enforcement of the judgment against M. and D. by demolishing their constructions. The bailiff agreed to request the assistance of the police for this purpose. 31. On 22 January 2002 M. and D. were informed that the bailiff would proceed with the mandatory execution of the judgment on 4 February, in the presence of police officers. 32. On 4 February 2002 the bailiff decided to postpone the execution to an unspecified date owing to the applicants' absence. It results from the record that the bailiff did not go to the site to undertake any measures with a view to demolishing M.'s and D.'s constructions. 33. On 9 September 2002 the third applicant requested the bailiff to proceed with the enforcement of the judgment, given the failure of M. and D. to comply with an agreement on the amount of compensation in respect of the plots they had occupied. 34. On 10 September 2002 the bailiff sent two separate letters to M. and D. asking them to comply within 10 days with the agreement entered into with the applicants. The bailiff drew the occupiers' attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily. 35. On 16 September 2002 the bailiff had a meeting with M. and D., who informed him that they were unable to pay the price requested by the applicants. The occupiers stated that they would vacate the plot of land on the condition that the applicants compensated them for the construction they had erected or that they provided them with a lawfully constructed flat in another location. The bailiff decided to inform the third applicant of the occupiers' requests. 36. On 4 November 2002 the third applicant requested either the vacation of the plots of land or the payment of compensation by the occupiers at the indicated price. The third applicant consented to having the price paid in instalments over a two-year period. He would come to an agreement with the occupiers as regards the amount of the instalments and the method of payment. Failing an agreement, the third applicant affirmed that he would request that the plot of land be vacated. 37. The bailiff's record of a meeting on 14 February 2003 between the third applicant and both occupiers, states that, “Following a series of discussions the parties did not agree on the price offered by the creditor [the third applicant], who requests [the amount of compensation per sq. m] over a three-year period. The debtors offered to pay a [lower] price at (...). Given this disagreement, it was decided that the creditor would request the mandatory enforcement of the judgment when he was ready (kur të jetë gati)”. 38. On the same day the bailiff decided to suspend the enforcement proceedings. The relevant parts of the decision read: “The creditor [the third applicant] has unsuccessfully been trying to resolve the problem by friendly settlement, save with debtor B. Under these circumstances, the creditor requested suspension of the enforcement proceedings until a later appearance before the bailiff at which he would request the mandatory execution as regards the vacation of the plot occupied by M. and D. This has also been reflected in the record of 14 February 2003.” 39. The Durrës Land Registry (“the Land Registry”) entered in the land register, inter alia, G.'s title to a plot of land measuring 975 sq. m, despite the fact that the Supreme Court's judgment of 2 April 2001 had recognised her property rights over a plot of land measuring 720 sq. m (see paragraph 23 above). 40. On an unspecified date the applicants initiated proceedings with the District Court seeking the removal of 255 sq. m from G.'s title of property as entered in the Durrës Land Registry. 41. On 24 December 2003 the District Court decided to suspend the proceedings pending the outcome of the proceedings for recovery of the property (see paragraph 50 below). 42. On 20 April 2004, following an appeal by the applicants, the Court of Appeal quashed the District Court's decision of 24 December 2003 on the ground that there was no connection between the two sets of proceedings as each of them could be decided upon independently, and remitted the case to the same court for continuation of the proceedings. 43. On 7 January 2005 the District Court decided to suspend the proceedings until the parties had provided updated copies of mortgage certificates issued by the Land Registry. 44. On 30 May 2005, following an appeal by the applicants, the Court of Appeal quashed the District Court's decision of 7 January 2005 and remitted the case to the same court for continuation of the proceedings. 45. On 16 January 2006 the District Court, after having received the updated mortgage certificates and the property plans, decided that there was no overlap between the applicants' property and that of G. That decision was upheld by the Court of Appeal on 20 November 2006. 46. On an unspecified date G. commenced construction works, which allegedly encroached upon the plot of land belonging to the applicants. On 17 June 2003, following proceedings initiated by the applicants, the District Court issued an injunction ordering G. to suspend the construction works since the buildings encroached upon the applicants' property. 47. On 20 June 2003 the District Court ordered the bailiffs to enforce the injunction of 17 June 2003. On 30 October 2003 the bailiffs decided not to enforce it because G. had not encroached upon the applicants' property. 48. On 16 December 20003, following an action initiated by the applicants in accordance with Article 610 of the Code of Civil Procedure, the District Court set aside the bailiffs' decision of 30 October 2003. It found that the bailiffs had exceeded their powers as they were not authorised to overrule a court decision. The decision was upheld by the Court of Appeal on 20 April 2004. 49. On an unspecified date in 2004 G. lodged an action with the District Court requesting that the writ of execution of 20 June 2003 be set aside in the light of the District Court's decision of 20 May 2004 (see paragraph 51 below). On 18 March 2005 the District Court dismissed her request on the basis of the Court of Appeal's decision of 24 November 2004, according to which the merits of the case would be heard by a different bench of the District Court (see paragraph 52 below). 50. In view of G's construction works, which had apparently encroached upon the applicants' property, on an unspecified date in 2003 the applicants initiated proceedings for recovery of possession of their property. In the meantime G. filed a counter civil claim requesting the applicants to vacate her plot of land, which was allegedly occupied by their buildings. 51. On 20 May 2004 the District Court concluded, on the basis of an expert valuation concerning the overlap of the properties, that the applicants had occupied a plot of 172.12 sq. m of G.'s property. It also found that G. had occupied a plot of 200.52 sq. m of the applicants' property. The District Court ordered G. to compensate the applicants in the amount of 2,556 United States dollars (USD) for a plot of 28.4 sq. m, which was the difference between the plots of land occupied by each party to the proceedings. Accordingly, it dismissed the applicants' civil claim and also decided to lift the injunction that had been issued on 17 June 2003 (see paragraphs 46 above). 52. On 24 November 2004, following an appeal by the applicants, the Court of Appeal found that the District Court had not examined the parties' updated property titles, particularly in the light of some changes that had taken place to their properties over the years. Accordingly, it quashed the District Court's decision and remitted the case to the same court for a fresh examination by a different bench. 53. On 10 June 2005 the Supreme Court declared G.'s appeal inadmissible in accordance with Article 472 of the Code of Civil Procedure (no valid grounds of appeal). It accordingly upheld the Court of Appeal's decision. 54. On 25 April 2006, on the basis of an expert valuation, the District Court found that the properties overlapped in respect of a plot of 255 sq. m. It concluded that that plot of land belonged to the applicants. The District Court did not find any occupation of G.'s property by the applicants, but ruled that G. had occupied a plot of 347 sq. m that belonged to the applicants. It rejected G's request to pay compensation for the occupation of that plot of land as this was not envisaged under the law. It ordered G. to vacate and return the plot of 347 sq. m to the applicants. The decision was upheld by the Court of Appeal on 5 March 2007. 55. On 25 April 2007 the District Court ordered the bailiffs to enforce its judgment of 25 April 2006. By a letter of 7 June 2007 the applicant informed the Court that the writ of execution of 25 April 2007 was unlikely to be enforced given the presence of two apartment blocks on the occupied plot of land. 56. On an unspecified date G. lodged an action with the District Court requesting the suspension of the writ of execution in respect of one of the illegal buildings, whose status she was trying to legalise. No further information about the enforcement proceedings has been submitted to the Court. 57. The relevant sections of the Constitution of Albania have been set out in Beshiri and Others v. Albania (no. 7352/03, § 20, 22 August 2006). 58. Article 171 of the 1981 Code of Civil Procedure (“the CCP”), which was in force until 1 June 1996, provided that decisions could be quashed for serious procedural violations, inter alia, when the case was tried in the absence of other parties without their having been informed of the hearing dates. 59. Section 9 of Law no. 7574 of 24 June 1992, which amended the Code of Civil Procedure of 1981 in force at the material time, provided that the Court of Cassation was empowered to examine the lawfulness of court decisions by way of an application for supervisory review (kërkesë për mbrojtje ligjshmërie) lodged by the President of the Court of Cassation or the General Prosecutor. The provision did not impose time-limits for applying for such a review. 60. As provided by the 1996 CCP, which abrogated the Code of Civil Procedure of 1981, supervisory review (rekurs në interes të ligjit) was an extraordinary remedy that enabled the Supreme Court (the new name for the Court of Cassation) to reopen proceedings where judgments had become final. Between 1996 and its abolition in 2001, by virtue of Law no. 8812 of 17 May 2001 the supervisory-review procedure underwent several legislative changes. 61. Article 451/a of the CCP provides that a final court judgment is binding on the parties, their heirs, the court that adopted the judgment and other courts and institutions. 62. Article 510 of the CCP stipulates that a judgment can be enforced only on the basis of an execution title, which includes, inter alia, a final court judgment. Under Article 511 of the CCP, an execution title is executed at the request of the creditor. An execution writ is issued for this purpose. In the wording of Article 515 of the CCP, an execution writ is enforced by the bailiff at, inter alia, the request of the creditor. The bailiff invites the debtor to comply voluntarily with the execution writ in accordance with the time-limits laid down in Article 517 of the CCP. Should the debtor fail to comply with a voluntary enforcement within the prescribed time-limits, the bailiff proceeds with a mandatory enforcement in accordance with Article 519 of the CCP. 63. Under Article 610 of the CCP, the parties may complain to the court of an act or failure to act by the bailiff within five days of the said act or omission. There is a right of appeal against the court decision in accordance with Article 611 of the CCP. The appeals has no suspensive effect on the execution. 64. The bailiff may decide to suspend execution at the request of the creditor in accordance with Article 615 of the CCP. The parties may challenge the bailiff's decision to suspend enforcement at the district court in accordance with Article 617 of the CCP. 65. The relevant sections of the Property (Restitution and Compensation) Act have been set out in Beshiri and Others v. Albania (no. 7352/03, §§ 21-29, 22 August 2006); Driza v. Albania (no. 33771/02, §§ 36-43, ECHR 2007... (extracts); and Ramadhi and Others v. Albania (no. 38222/02, §§ 23-30, 13 November 2007).

train

001-90990

ENG

CZE

ADMISSIBILITY

DOSOUDIL AND CHYTRACKOVA v. THE CZECH REPUBLIC

Inadmissible

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

The applicants, Mr Martin Dosoudil and Ms Jindra Chytráčková, are Czech nationals who were born in 1940 and 1941 respectively and live in Prague. They were represented before the Court by Mr J. Ondroušek, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. i. By a judgment of 20 December 1994, the Benešov u Prahy District Court (Okresní soud) decided that a restitution agreement concluded between a state enterprise H. and the applicants on 18 September 1992 was null and void. On 14 November 1995 the Prague Regional Court (Krajský soud) upheld this judgment. ii. On 24 March 1992 the applicants brought restitution proceedings against that state enterprise. By a judgment of 7 September 2001 the District Court ordered the state enterprise to conclude a restitution agreement with the first applicant. In respect of the second applicant the court found that she had introduced her restitution action outside the statutory time-limit; her claims were therefore dismissed. On 15 January 2003 the Prague Regional Court upheld the first-instance court's judgment. On 29 May 2003 the first applicant filed a constitutional appeal complaining about delays in the restitution proceedings. He further alleged a violation of his property rights. On 23 October 2003 the Constitutional Court (Ústavní soud) dismissed the first applicant's constitutional appeal. On 29 June 2004 the Supreme Court (Nejvyšší soud) rejected an appeal on points of law (dovolání) by the state enterprise H. against the Prague Regional Court's judgment of 15 January 2003. iii. On 10 July 2003 the first applicant brought an action for eviction of a private company H.I. Ltd. from the property he had recovered as a result of the restitution proceedings. According to the information in the case file, the eviction proceedings were terminated on 8 June 2005 when the parties agreed to a friendly settlement. iv. On 1 August 2003 the first applicant brought an action in the Benešov District Court against H.I. Ltd. seeking payment of rent arrears for the period during the eviction proceedings. This action seems to be still pending. v. In a letter of 3 July 2006 the applicants informed the Court that they intended to seek non-pecuniary damages for the length of the restitution proceedings by means of an application to the Ministry of Justice. The outcome of the proceedings is unclear from the case file. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the Court's decision in the case of Vokurka v. the Czech Republic ((dec.) no. 40552/02, §§ 11, 25-33, 16 October 2007).

train

001-113234

ENG

GEO

ADMISSIBILITY

ABASHIDZE v. GEORGIA

Inadmissible

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

1. The applicant, Mr Aslan Abashidze, is a Georgian national, who was born in 1938 and currently lives in Moscow, the Russian Federation. He was represented before the Court by Mr Shalva Shavgulidze, a lawyer practising in Georgia. 2. On 4 January 2006 the applicant, former Head of the Ajarian Autonomous Republic (see Assanidze v. Georgia [GC], no. 71503/01, §§ 63, 69 and 84, ECHR 2004II), was charged with abuse of power, misappropriation of public funds and a number of other offences committed in public office. The applicant evaded the investigation and trial, but his lawyer, Mr Shavgulidze, ensured his defence in the criminal proceedings. 3. By a judgment of 22 January 2007, the Batumi City Court convicted the fugitive applicant of the above-mentioned offences in absentia, sentencing him to fifteen years in prison and to pay a fine of 98,229,530 Georgian laris (some 48,120,812 euros). The City Court explained in the operative part of its judgment, which was announced to the applicant’s lawyer at the end of the hearing on 22 January 2007, that, given the applicant’s absence, the judgment was final and immediately enforceable; an appeal lay against it only in the situation envisaged by Article 523 § 4 of the Code of Criminal Procedure (“the CCP”), namely after the applicant’s surrender to the law-enforcement authorities. 4. Article 523 § 4 of the Code of Criminal Procedure, as it stood at the material time, read as follows: Article 523 “4. If a conviction was delivered following a trial in absentia, the accused may lodge an appeal [on points of law and findings of fact] within one month after having been arrested or surrendered to the relevant authorities”

train

001-21979

ENG

GBR

ADMISSIBILITY

MEADS AND OTHERS v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicants are United Kingdom nationals, who were born in 1959, 1993 and 1996 respectively and live in Haverhill, Suffolk. The first applicant is the mother of the second and third applicants. The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant suffers from chronic obstructive pulmonary disease, which is a terminal illness affecting the heart and lungs. Her doctor advised her to rest and that she was in no state to do anything else. Her oldest son, the second applicant, suffers from asthma. The first applicant is divorced from her husband, who is in the United States Air Force and apparently no longer lives in the United Kingdom. The applicants continued to live in the matrimonial home which was in his name. It was a large house, with a garden and therapeutic pool for use of her son. The applicant’s former husband was made bankrupt and his interest in the property was vested in the trustee in bankruptcy. Barclays Bank took proceedings for possession of the matrimonial home, claiming considerable arrears in mortgage payments. An order for possession was made by Cambridge County Court on 29 February 2000. The first applicant made various applications to suspend possession which resulted in short extensions. On 23 June 2000, the County Court heard an application for ancillary relief in the divorce proceedings. The District Judge made no order for the transfer of the matrimonial home but awarded the applicant a lump sum. Because of the costs attached to the home, it was considered that she would not have received any benefit from such a transfer. The first applicant applied to extend the time for appealing against the ancillary relief order and for permission to appeal against the order refusing to suspend the warrant of possession. These requests were refused by the County Court on 26 September 2000. The applicant’s appeal was refused by the Court of Appeal on 12 January 2001. The date for execution of the order was set for 27 April 2001. This was adjourned pending the applicants’ application for a cancellation of the eviction. The eviction of the applicants from their house was then set for 4 May 2001. This date was also vacated when the first applicant made a further application to the court to stay the eviction. She raised arguments, inter alia, that due to her medical condition it was not reasonable for the bank to evict her, that she had made offers to pay the arrears in the past which the bank had refused and that she could now pay the arrears. On 2 May 2001, the County Court judge refused the first applicant’s applications. He noted that there were substantial arrears in payments (in excess of 26,400 pounds sterling (GBP)) and that monthly instalments now stood at GBP 686.70, with 165.40 payable as interest on the arrears. In her previous letters to the bank, she had made it clear that it was her former husband who was to pay the arrears but the bank however had found that there was no adequate agreement as to how the arrears were to be dealt with. Though the first applicant claimed that she could pay out of her income, her income was noted as being GBP 1,514 per month, whereas the current mortgage instalments were GBP 852. She had no capital or savings with which to pay off the arrears. As regards her medical condition, the court had not been provided with a medical report but seen a note from which it appeared that the first applicant suffered from chronic obstructive pulmonary disease. The judge concluded: “There is no realistic chance that the mortgage will be paid within a reasonable time... I have no alternative but to dismiss the application. I am concerned by the practical consequences. What in practical terms will happen?... where are [the applicants] to go? [The first applicant] has not been in touch with social services since September last year and therefore does not know if she can pack up in a day or two. I’ve come to the conclusion, bearing in mind the practical realities of eviction, to... remove the eviction from 4 to 21 May 2001. Beyond that seems unfair on the claimant, now that there is a possibility of a negative equity... I also intend to direct the court office immediately to phone the Suffolk Social Services and the local housing authority of St Edmondsbury Borough Council to explain to them this order and to seek their assistance in finding alternative accommodation. It is incumbent on [the first applicant] to contact the housing department and make sure they are appraised.” On 18 May 2001, the applicants were informed that they should vacate the house by 22 May 2001, at 10.30 a.m. The first applicant made a further application to the court against the enforcement. On or about 8 May 2001, the County Court judge refused her application. He noted that he had directed the court office to notify the social services and that the first applicant had been in touch with them and the housing authority. She had a meeting arranged with the latter. He found no new matters arising and stated that her medical problems did not give him any right to suspend the warrant for possession. On 22 May 2001, the applicants were required to leave their home by the bailiffs enforcing the possession order. They went to live with the first applicant’s father, who lives in a one-bedroom property. The first applicant made an application to this Court on the same day. The local housing authority meanwhile offered the applicants accommodation in a two-bedroom bungalow. The first applicant refused it, alleging that it was unsuitable for her and her children, as, inter alia, there were steps leading to the front door and it was too small to house all their possessions. On 24 May 2001, the housing authority informed her that they had no other accommodation that they could offer and that if she declined this property they would have to regard her decision as a discharge of their duty towards her and she would have to find her own property. By letter of 30 May 2001, the housing authority stated that modifications could be made to the house on the recommendation of an occupational therapist (e.g. concerning the applicants’ claimed health requirements) and urged her to accept the property. The first applicant declined. On 8 June 2001, the bank obtained an order to remove the applicants’ personal possessions from the house unless the applicants took them within seven days. The first applicant claimed that she was unable to arrange for storage due to the costs involved. The bank informed her on 18 June 2001 that she should inform them of where her possessions should be delivered or they would be obliged to dispose of them to defray their costs of storage. In a letter dated 22 August 2001, the Government submitted that the social services had offered the first applicant advice and assistance which she had declined. The County Council Disability Team had meanwhile given the family a holiday grant. The housing authority records indicated that the first applicant had refused the two bedroom bungalow as it was too small and did not have a therapeutic pool. They had a long waiting list for the type of property which the first applicant would have liked and while willing to place her on the waiting list, could not justify housing her in such a property before persons who had been on the waiting list for many years. In a letter of 27 September 2001, the first applicant informed the Court that she had found a house suitable to her needs and was in the process of moving in.

train

001-57925

ENG

FRA

CHAMBER

CASE OF PIERMONT v. FRANCE

No violation of P4-2;Violation of Art. 10;Not necessary to examine Art. 14+10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

John Freeland

8. Mrs Dorothée Piermont, a German citizen living at Remagen, has long been an environmentalist and a pacifist. At the material time she was a member of the European Parliament (MEP). 9. At the invitation of Mr Oscar Temaru, the President of the French Polynesian Liberation Front, the applicant stayed on Polynesian territory from 24 February to 3 March 1986, during the election campaign preceding the territorial assembly and parliamentary elections that were due to take place on 16 March. 10. As soon as she alighted from the aircraft, the airport and border police, acting on the orders of the High Commissioner of the French Republic in French Polynesia, requested her to show some discretion in any comments she made on French internal matters, failing which she risked being expelled. 11. On 28 February 1986 Mrs Piermont took part in a public meeting and on 1 March joined about 900 other people in the traditional march organised by the independence and anti-nuclear movements. This demonstration, which attracted fewer people than in the previous year, took place without incident on the streets of Faaa, a town just outside Papeete, where it had been banned by order of the High Commissioner because of the risk of "serious public disorder". During the demonstration the applicant denounced the continuation of nuclear testing and the French presence in the Pacific. Her words were reported as follows in the newspapers: "Mrs Piermont spoke in French and mentioned, in particular, the circumstances in which, on her arrival at Tahiti Airport, she had been warned by the ‘chief copper’ in charge of the airport and border police against taking part in a public demonstration, as doing so during an election campaign would amount to interference. Mrs Piermont had replied that she would demonstrate if invited to do so, and she told the demonstrators gathered round her on Saturday that when it came to interference, the French presence was an interference in the affairs of the Polynesians, and this interference was, in her view, manifested in the nuclear tests at Mururoa. Mrs Piermont announced that, being of the view that the whole of the press in French Polynesia was opposed to the trend towards independence and supported the continuation of nuclear testing, the German ‘Greens’ had decided to donate one million CFP francs to the Polynesian Liberation Front to set up ‘a newspaper that will tell the truth’." 12. On the next day, 2 March 1986, the High Commissioner made an order expelling the applicant and prohibiting her from re-entering the territory. The following reasons were given for the order: "All foreign nationals have a duty to maintain a degree of neutrality towards any French territory in which they are staying. Despite an oral warning about the duty of discretion, particularly during an election campaign, given to her on her arrival on 24 February 1986, Mrs Piermont stated, during a public demonstration in favour of the territory’s independence and against nuclear testing, that France was interfering in Polynesian affairs. These statements are an attack on French policy." 13. This order was served on the applicant on 3 March 1986 when she was already on board the aircraft that was to take her to New Caledonia. 14. On 15 April 1986 Mrs Piermont made two applications to the Papeete Administrative Court seeking, firstly, to have execution of the decision stayed and, secondly, to have the decision quashed. 15. The court dismissed the first application on 8 July 1986, but in a judgment of 23 December 1986 it allowed the second application for the following reasons: "Under the provisions of section 7 of the Act ... of 3 December 1849 ..., the representative of the State may ‘as a public-order measure’ require any alien to leave French territory immediately. While the State’s representative in the territory is vested, not only under these provisions ..., with a wide discretion to enable him to maintain order effectively, he must in all circumstances exercise the power thus conferred on him in a manner that respects freedom of movement and freedom of expression, which are secured not only by European Community law but in the first place by the Constitution and the general principles of law which the Republic applies both to its own nationals and to aliens whose presence and attitude on French territory do not constitute a threat to public order. This entails an obligation to ensure that the proposed public-order measure scrupulously conforms to what is strictly needed in order to maintain or re-establish public order. Firstly, the applicant’s utterances ... were not in any way seditious and could not in themselves constitute a serious threat to public order. They were accordingly not such as to justify the impugned measure. Secondly, it furthermore appears from the evidence that the measure was decided on just as the person concerned was about to leave the territory of her own accord. That being so, it could no longer be regarded as essential for maintaining order there. It follows, without there being any need to rely on international or Community law, that the general principles of domestic law are sufficient to establish that the impugned decision was a misuse of authority and must therefore be quashed." 16. The Minister for Overseas Departments and Territories applied to the Conseil d’Etat on 16 March 1987 to have the Administrative Court’s judgment set aside. 17. On 12 May 1989 the Conseil d’Etat allowed the application on the following grounds: "It appears from the evidence that during her visit to French Polynesia Mrs Piermont made utterances violently hostile to France’s defence policy and the integrity of French territory in the course of public demonstrations held during the campaign for the elections to the French National Assembly and to the local assembly. ’s actions constituted a threat to public order and in deciding on those grounds to require her to leave the territory, the High Commissioner did not commit a manifest error of assessment. That being so, the Minister for Overseas Departments and Territories rightly submitted that the Papeete Administrative Court, in quashing the order of 2 March 1986, wrongly based its decision on the lack of grounds warranting Mrs Piermont’s expulsion. ... In the absence of provisions making it applicable to the territory of Polynesia and Dependencies, the Act of 11 July 1979 on the giving of reasons for administrative decisions and the improvement of relations between administrative authorities and the public does not apply there, and no other provision of a statute or of regulations requires reasons to be given for a public-order measure. Although Mrs Piermont relies on the provisions of the Treaty of Rome concerning freedom of movement within the territory of the member States, Articles 135 and 227 of the Treaty make implementation of such freedom of movement in the associated countries, which include France’s overseas territories, subject to agreements to be concluded subsequently, which require the member States’ unanimous approval. In the absence of such agreements, this ground of appeal must in any event fail. The privileges and immunities conferred on members of the European Parliament by Articles 6 to 11 of the Protocol of 8 April 1965 guarantee them free movement for the purpose of travelling to the Parliament and protect them from any prosecution or detention during its sessions but cannot prevent a public-order measure being taken such as the one against Mrs Piermont. Lastly, the impugned measure did not infringe freedom of expression as laid down in Articles 10 and 14 (art. 10, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and came within the ambit of Article 2, paragraph 3, of Protocol No. 4 (P4-2-3) to the Convention, which allows restrictions on freedom of movement that are based on the requirements of national security, public safety or the maintenance of ordre public." 18. After leaving Polynesia on 3 March 1986 (see paragraph 13 above), Mrs Piermont travelled to New Caledonia at the invitation of local elected representatives, including the President of the Socialist Kanak National Liberation Front. On 4 March, at 1.55 p.m., she arrived at Nouméa Airport. After she had gone with the other passengers through immigration control, where the airport and border police stamped her passport, a police officer stopped her and took her into an airport office, where she was held until her departure. 19. Some forty activists known as loyalists had been warned that the applicant was coming and were waiting for her in order to express their hostility to her presence in the territory. They made it known that so long as the MEP was on Caledonian soil they would not leave unless removed by force. 20. Given the risk of confrontation and after unsuccessful attempts at conciliation, the High Commissioner issued an order excluding Mrs Piermont from the territory of New Caledonia. It contained the following reasons: "Having regard to the expulsion and exclusion order of 2 March 1986 issued by the High Commissioner in French Polynesia in respect of Mrs Piermont ...; Being of the view that the presence of Mrs Dorothée Piermont, of German nationality (FRG), on the territory of New Caledonia and Dependencies, in particular during an election campaign, is causing and is likely to cause public disorder ..." A police superintendent served this order on her whilst she was still within the airport perimeter, at about 6.30 p.m. At about midnight the applicant was put on an aircraft bound for Tokyo, her passport having again been duly stamped. 21. On 23 April 1986 Mrs Piermont applied to the Nouméa Administrative Court to have the order excluding her from New Caledonia quashed. 22. In a judgment of 24 December 1986 which upheld the submissions of the Government Commissioner (commissaire du gouvernement), the court quashed the impugned decision on the ground that no reasons had been given for it. It held: "Under section 1 of the Act of 11 July 1979 on the giving of reasons for administrative decisions, ‘... reasons must be given for decisions which ... restrict the exercise of public freedoms or generally constitute public-order measures’. Under section 3 of the same Act, ‘the statement of reasons required by this Act must be in writing and set out the considerations of law and fact on which the decision is based’. Although the impugned order referred to the order of 2 March 1986 issued by the High Commissioner in French Polynesia expelling Mrs Piermont and excluding her from that territory, the High Commissioner in New Caledonia and Dependencies did not state that he was adopting the terms of that order, whose text is neither incorporated in nor appended to his decision. That recital accordingly could not take the place of the statement of reasons required by the Act. Moreover, by merely stating ‘the presence of Mrs Dorothée Piermont, of German nationality (FRG), on the territory of New Caledonia and Dependencies, in particular during an election campaign, is causing and is likely to cause public disorder’ without specifying the facts on which this public-order measure was based, the High Commissioner in New Caledonia and Dependencies did not satisfy the requirements of section 3 of the aforementioned Act. That being so and without there being any need to consider the other grounds put forward in her application, Mrs Piermont is entitled to have that order quashed." 23. On 16 March 1987 the Minister for Overseas Departments and Territories appealed to the Conseil d’Etat. 24. In a judgment of 12 May 1989 the Conseil d’Etat set aside the judgment of the court below. After noting that the aforementioned Act of 11 July 1979 did not apply to the territory of New Caledonia and Dependencies, it gave the following reasons for its decision: "Under section 7 of the Act of 3 December 1849 on the naturalisation and residence of aliens in France, which is still in force in the overseas territories and applies in the territory of New Caledonia and Dependencies, ‘the Minister of the Interior may, as a public-order measure, require any alien travelling or resident in France to leave French territory immediately and have him escorted to the frontier’ ... Regard being had both to Mrs Piermont’s actions during the preceding days and to the unrest caused by the announcement of her arrival in the territory, the High Commissioner, in considering that Mrs Piermont’s presence would constitute a threat to public order and in ordering her exclusion from the territory of New Caledonia on that account, did not commit any manifest error of assessment. Although Mrs Piermont relies on the provisions of the Treaty of Rome concerning freedom of movement within the territory of the member States, Articles 135 and 227 of the Treaty make implementation of such freedom of movement in the associated countries, which include France’s overseas territories, subject to agreements to be concluded subsequently, which require the member States’ unanimous approval. In the absence of such agreements, this ground of appeal must in any event fail. The privileges and immunities conferred on members of the European Parliament by Articles 6 to 11 of the Protocol of 8 April 1965 guarantee them freedom of movement for the purpose of travelling to the Parliament and protect them from any prosecution or detention during its sessions but cannot prevent a public-order measure being taken such as the one against Mrs Piermont. Lastly, the impugned measure did not infringe freedom of expression as laid down in Articles 10 and 14 (art. 10, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and came within the ambit of Article 2, paragraph 3, of Protocol No. 4 (P4-2-3) to the Convention, which allows restrictions on freedom of movement that are based on the requirements of national security, public safety or the maintenance of ordre public." 25. On 23 November 1994 the High Commissioner of the Republic, of his motion, revoked the order of 4 March 1986 on the ground that there was no longer "any reason, having regard to present circumstances, to oppose Mrs Piermont’s entering the territory of New Caledonia". 26. France’s overseas territories ("the OTs") are an integral part of the territory of the Republic. 27. However, by virtue of the "specificity of legislation" principle (Articles 74 and 76 of the Constitution), an enactment applies in the OTs only if such application is expressly provided for or if the enactment has been promulgated there. 28. When depositing the instruments of ratification of the Convention and of Protocol No. 4 (P4) on 3 May 1974, France declared that these would apply to "the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 (art. 63) of the Convention". 29. The Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945 in force in metropolitan France was not promulgated in the OTs and accordingly does not apply in them. The applicable provisions are contained in the Aliens (Naturalisation and Residence) Act of 3 December 1849, section 7 of which provides in its first subsection: "The Minister of the Interior may, as a public-order measure, require any alien travelling or resident in France to leave French territory immediately and have him escorted to the frontier." This Act was made applicable to the colonies by an Act of 29 May 1874. An Act of 6 September 1984 vests the powers of the Minister of the Interior in the High Commissioner of the Republic in the OTs. 30. At the material time the Conseil d’Etat’s power of review in matters of expulsion or exclusion from French territory was limited to ascertaining whether there had been any manifest error of assessment (see, for example, the National Immigration Office judgment of 22 October 1975, Recueil Lebon 1975, p. 520, and, in relation to an expulsion from New Caledonia, the Julbe-Saez judgment of 6 October 1978, Recueil Lebon 1978, p. 900). With more particular reference to the political activities of aliens, the Conseil d’Etat held in the Perregaux judgment of 13 May 1977 (Recueil Lebon 1977, p. 216) that political activity did not in itself justify in law the expulsion of an alien whose presence on French territory did not constitute a threat to public order. 31. At the material time Article 227 of the treaty establishing the European Economic Community ("the EEC Treaty") provided: "1. This Treaty shall apply to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland. 2. With regard to Algeria and the French overseas departments, the general and particular provisions of this Treaty relating to: - the free movement of goods; - agriculture, save for Article 40 (4); - the liberalization of services; - the rules on competition; - the protective measures provided for in Articles 108, 109 and 226; - the institutions, shall apply as soon as this Treaty enters into force. The conditions under which the other provisions of this Treaty are to apply shall be determined, within two years of the entry into force of this Treaty, by decisions of the Council, acting unanimously on a proposal from the Commission. The institutions of the Community will, within the framework of the procedures provided for in this Treaty, in particular Article 226, take care that the economic and social development of these areas is made possible. 3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex IV to this Treaty. This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list." 32. The OTs, including French Polynesia and New Caledonia, are among the territories listed in Annex IV to the EEC Treaty. Their special arrangements for association are laid down in Articles 131 to 136 bis of the treaty. 33. With reference to workers’ freedom of movement, Articles 48 and 135 provide: "1. Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. ..." "Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the [OTs], and within the [OTs] for workers from Member States, shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States." 34. The details of and procedure for the association of the overseas countries and territories with the EEC are set out in an implementing convention of 16 December 1980, which was renewed on 30 June 1986. The arrangements are designed to further the economic and social development of the territories concerned but do not include freedom of movement. 35. The Protocol on the privileges and immunities of the European Communities, signed on 8 April 1965, contains a chapter III on members of the European Parliament which provides: "No administrative or other restriction shall be imposed on the free movement of members of the European Parliament travelling to or from the place of meeting of the European Parliament. Members of the European Parliament shall, in respect of customs and exchange control, be accorded: (a) by their own Government, the same facilities as those accorded to senior officials travelling abroad on temporary official missions; (b) by the Governments of other Member States, the same facilities as those accorded to representatives of foreign Governments on temporary official missions." "Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties." "During the sessions of the European Parliament, its members shall enjoy: (a) in the territory of their own State, the immunities accorded to members of their Parliament; (b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings. Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the European Parliament. Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its members."

train

001-22421

ENG

SVK

ADMISSIBILITY

VIDRA v. SLOVAKIA

Inadmissible

Nicolas Bratza

The applicant, Mr Vladimír Vidra, is a Slovakian national who was born in 1957 and lives in Žilina. The respondent Government were represented by Mr P. Vršanský, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 June 1997 the District Investigation Office in Žilina accused the applicant of fraud and brought criminal proceedings against him. On 24 July 1997 the District Prosecutor’s Office in Žilina dismissed the applicant’s complaint against this decision. The applicant was examined by the police investigator on 14 July 1997 and on 11 August 1997. On 15 August 1997 the applicant refused to be examined as his lawyer was ill. Another examination was held on 18 September 1997. It had to be adjourned as the applicant had health problems. Examinations were scheduled for 25 September 1997, 7 October 1997 and 15 October 1997. On the last two dates the applicant refused to answer further questions as his complaint about the investigator had not been decided upon. At the examination held on 3 November 1997 the applicant availed himself of his right not to answer the investigator’s questions. On 19 January 1998 the applicant was allowed to consult the case file and he was examined by the investigator. In a report of 26 January 1998 a public prosecutor noted that the length of the preliminary proceedings was due to the fact that documentary evidence had to be obtained from the Czech Republic. The report stated that it had been difficult to contact the witnesses during the summer period and that the applicant and his lawyer had also contributed to the length of the proceedings. The police was instructed to conclude the investigation before 30 March 1998. On 19 February 1998 the applicant requested the public prosecutor to order further evidence to be taken. On 17 March 1998 the applicant was questioned for half an hour. Subsequently he decided to remain silent and refused to have his handwriting examined by an expert as an expert opinion to the same effect had already been ordered. On 23 March 1998 the applicant challenged an expert. The public prosecutor dismissed the request on 30 March 1998. On 6 May 1998 the public prosecutor filed an indictment with the Žilina District Court (Okresný súd). On 23 June 1998 the Žilina District Court returned the case to the public prosecutor. The District Court shared the applicant’s view that the case had not been properly investigated into and ordered further comprehensive evidence to be taken. On 22 September 1998 the Žilina Regional Court (Krajský súd) dismissed the public prosecutor’s complaint against the District Court’s decision. On 5 October 1998 the case file was returned to the District Court and it reached the police investigator on 6 November 1998. On 26 November and on 1 December 1998 respectively the applicant challenged the officials dealing with his case and complained about shortcomings in the examination of a witness. On 7 December 1998 the Regional Office of Investigation in Žilina found that the investigators were not excluded. A reconstitution of the alleged offence was scheduled for 4 December 1998. It did not take place as the applicant objected that several witnesses were absent. The reconstitution was held on 21 December 1998. The applicant challenged the way in which it was carried out and proposed further evidence to be taken. On 5 January 1999 the applicant complained to the public prosecutor that the police investigator lacked impartiality. On 5 February 1999 the public prosecutor instructed the investigator to remedy shortcomings in the proceedings. On 22 February 1999 another reconstitution of the alleged offence was carried out. On 8 April 1999 a witness was heard and confronted with the applicant in the Czech Republic. The applicant challenged the examination. On 24 June 1999 an expert was appointed at the applicant’s request. Another confrontation of the applicant with a witness in the Czech Republic was scheduled for 25 June 1999. In the morning of the same day the lawyer informed the police that the applicant was ill and that he could not attend. On 24 September 1999 the applicant challenged all Žilina police investigators. On 11 October 1999 the Ministry of the Interior refused to exclude the Žilina police investigators from dealing with the case. On 12 October 1999 the applicant challenged the public prosecutor involved in his case. On 21 October 1999 the Žilina District Prosecutor dismissed the request. On 27 October 1999 the applicant challenged the police investigators and the public prosecutor dealing with his case. The case file was submitted to the General Prosecutor’s Office. On 13 December 1999 the Žilina District Prosecutor’s Office discontinued the criminal proceedings on the ground that the applicant had committed no offence. The person who had filed the criminal complaint against the applicant lodged a complaint which was dismissed by the Žilina Regional Prosecutor. The decision to discontinue the criminal proceedings against the applicant thus became final on 4 April 2000.

train

001-60026

ENG

BEL

CHAMBER

CASE OF ČONKA v. BELGIUM

Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;No violation of Art. 5-2;Violation of Art. 5-4;Violation of P4-4;No violation of Art. 13+3;Violation of Art. 13+P4-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

7. Mr Ján Čonka, Mrs Mária Čonková, Miss Nad'a Čonková and Miss Nikola Čonková are Slovakian nationals of Roma origin who were born in 1960, 1961, 1985 and 1991 respectively. The first two applicants are the parents of the third and fourth applicants. 8. The applicants say that on several occasions between March and November 1998 they were violently assaulted by skinheads in the Slovak Republic. Indeed, in November 1998 Mr Čonka had been so seriously injured in an assault that he had had to be hospitalised. The police had been called but had refused to intervene. Several days later Mr and Mrs Čonka had been subjected to renewed insults and threats by skinheads, but the police had again refused to intervene. As a result of those constant threats, the applicants had decided to flee Slovakia and travel to Belgium, where they had arrived at the beginning of November 1998: Mr Čonka and the two minor children on 6 November and Mrs Čonka two days later. 9. On 12 November 1998 the applicants requested political asylum in Belgium. 10. On 3 March 1999 their applications for asylum were declared inadmissible by the Minister of the Interior through the Directorate-General of the Aliens Office on the ground that they had not produced sufficient evidence to show that their lives were at risk in Slovakia for the purposes of the Geneva Convention relating to the Status of Refugees. The decisions refusing permission to remain in Belgium were accompanied by a decision refusing permission to enter the territory itself, endorsed with an order to leave the territory within five days. 11. On 5 March 1999 the applicants lodged an appeal under the urgent-applications procedure with the Commissioner-General for Refugees and Stateless Persons (“the Commissioner-General”) against the decisions refusing them permission to remain in Belgium. 12. On 14 April 1999 Mr Čonka was invited to attend the Commissioner-General's Office to set out his grounds for seeking asylum. He failed to keep the appointment. 13. On 23 April 1999 Mrs Čonková, assisted by an interpreter, was heard by representatives of the Commissioner-General's Office at Ghent Prison, where she was in custody pending trial. On 17 May 1999 she was sentenced to eight months' imprisonment for theft by the Ghent Criminal Court. 14. On 18 June 1999 the Commissioner-General's Office upheld the decision of the Aliens Office refusing the applicants permission to remain. Its decision in Mr Čonka's case was based on his failure to attend his appointment without showing due cause. As regards Mrs Čonková, in some two pages of reasons the Commissioner-General pointed out major discrepancies in her deposition and expressed serious doubts about her credibility. For example, Mrs Čonková had declared among other things that on 4 November 1998 her husband, Mr Čonka, had been assaulted by skinheads so violently that he had had to be taken to hospital. The police had been called but had not come out. That incident had been the direct cause of their decision to flee Slovakia. However, the Commissioner-General considered that statement to be refuted by the fact that the travel tickets had been issued before the above incident of 4 November: Mrs Čonková's plane ticket on 2 October and her husband's and their children's bus tickets for the journey to Belgium on 2 November 1998. Furthermore, Mrs Čonková's account of the incident did not match her stepdaughter's, in particular on the important issue of whether the police had attended the scene. The Commissioner-General stipulated in his decisions that the applicants could be deported to the country from which they had fled (Slovakia), and that for the purposes of calculating the five-day period for leaving the territory, which had been suspended by the application under the urgent procedure, time began to run again from the date of service of the decisions on the applicants. 15. On 24 June 1999 Mrs Čonková was released and a new order was served on her to leave the territory within five days, that is to say by midnight on 29 June. 16. On 3 August 1999 the applicants lodged applications with the Conseil d'Etat for judicial review of the decision of 18 June 1999 and for a stay of execution under the ordinary procedure. They also applied for legal aid. 17. On 23 September 1999 the Conseil d'Etat dismissed the applications for legal aid on the grounds that they had not been accompanied by the means certificate required by Article 676-3 of the Judicial Code, a photocopy, rather than the original, of the certificate having been enclosed with Mrs Čonková's application. Consequently, the applicants were invited by the orders refusing legal aid to pay the court fees within fifteen days after service. As they failed to respond to that invitation, their applications for judicial review and for a stay of execution were struck out of the list on 28 October 1999. 18. At the end of September 1999 the Ghent police sent a notice to a number of Slovakian Roma families, including the applicants, requiring them to attend the police station on 1 October 1999. The notice was drafted in Dutch and Slovak and stated that their attendance was required to enable the files concerning their applications for asylum to be completed. 19. At the police station, where a Slovak-speaking interpreter was also present, the applicants were served with a fresh order to leave the territory dated 29 September 1999, accompanied by a decision for their removal to Slovakia and their detention for that purpose. The documents served, which were all in identical terms, informed the recipients that they could apply to the Conseil d'Etat for judicial review of the deportation order and for a stay of execution – provided that they did so within sixty days of service of the decision – and to the committals division (chambre du conseil) of the criminal court against the order for their detention. According to the Government, some of the aliens concerned were nevertheless allowed to leave the police station of their own free will on humanitarian grounds or for administrative reasons. 20. A few hours later the applicants and other Roma families, accompanied by an interpreter, were taken to a closed transit centre, known as “Transit Centre 127 bis”, at Steenokkerzeel near Brussels Airport. It appears that the interpreter only remained at the centre briefly. According to the Government, he could have been recalled to the centre at the applicants' request. The applicants say that they were told that they had no further remedy against the deportation order. 21. While at the centre, the Slovakian families received visits from a delegation of Belgian members of Parliament, the Slovakian Consul, delegates of various non-governmental organisations and doctors. At 10.30 p.m. on Friday 1 October 1999 the applicants' counsel, Mr van Overloop, was informed by the President of the Roma Rights League that his clients were in custody. Taking the view that he was still instructed by them, Mr van Overloop sent a fax on 4 October 1999 to the Aliens Office informing it that the applicants were in Transit Centre 127 bis awaiting repatriation to Slovakia. He requested that no action be taken to deport them, as they had to take care of a member of their family who was in hospital. However, Mr van Overloop did not appeal against the deportation or detention orders made on 29 September 1999. 22. On 5 October 1999 the families concerned were taken to Melsbroek Military Airport, where the seat numbers allocated to them in the aircraft were marked on their hands with a ballpoint pen. The aircraft left Belgium for Slovakia at 5.45 p.m. 23. Shortly afterwards the Minister of the Interior declared in reply to a parliamentary question put on 23 December 1999: “Owing to the large concentration of asylum-seekers of Slovakian nationality in Ghent, arrangements have been made for their collective repatriation to Slovakia. ... Reports I have received from the mayor of Ghent and the Director-General of the Aliens Office indicate that the operation was properly prepared, even if the unfortunate wording of the letter sent by the Ghent police to some of the Slovaks may have been misleading. Both the Aliens Office and the Ghent Police Department were surprised by the large number of Slovaks who responded to the notice sent to them. That factual circumstance resulted in their being detained in Transit Centre 127 bis for deportation a few days later. ...” 24. The procedure relating to the recognition of refugee status is governed under Belgian law by the Law of 15 December 1980 on the entry, residence, settlement and expulsion of aliens (“the Aliens Act”) and by the Royal Decree of 8 October 1981 on the entry, residence, settlement and expulsion of aliens. The procedure for according refugee status is in two stages. The first concerns admissibility for refugee status, while the second concerns eligibility for such status. The authorities with jurisdiction to take part in the examination of the issue of admissibility are the Aliens' Office and, on appeal, the Commissioner-General for Refugees and Stateless Persons, as administrative authorities, and the Conseil d'Etat, which hears applications for judicial review. The relevant authorities at the eligibility stage are the Commissioner-General for Refugees and Stateless Persons, as the administrative authority, the Permanent Tribunal for Refugees' Appeals, as an administrative tribunal, and the Conseil d'Etat, which hears administrative appeals on points of law. Lastly, the committals division (chambre du conseil) of the criminal court has jurisdiction to hear appeals against orders depriving aliens of their liberty during or at the end of the proceedings (see below). 25. The provisions of the Aliens Act applicable in the instant case read as follows: “Except where permitted by international treaty, statute or royal decree, aliens may not stay more than three months in the Kingdom, unless a different period is stipulated in the visa or the authorisation in lieu stamped in their passport or on the travel document issued in lieu thereof. ...” “Without prejudice to any more favourable provision in any international treaty, the Minister or his or her delegate may order an alien who is not authorised or has not been given permission to remain for more than three months or to settle in the Kingdom to leave the territory before a set date: ... (2) if the alien has stayed in the Kingdom beyond the period fixed in accordance with section 6, or is unable to establish that the period has not expired; ... In the same sets of circumstances, if the Minister or his or her delegate considers it necessary, they may have the alien deported. The alien may be detained for that purpose for the time strictly necessary for the execution of the measure provided that the period of detention shall not exceed two months.” “Any order to leave the territory or deportation order shall state which provision of section 7 is being applied.” Section 57/2 “The Commissioner-General's Office for Refugees and Stateless Persons is hereby established. It shall be attached to the Ministry and shall comprise a Commissioner-General for Refugees and Stateless Persons and two deputies. The Commissioner-General and his or her deputies shall be wholly independent in taking their decisions and expressing their opinions.” “The Commissioner-General shall be in charge of the Commissioner-General's Office for Refugees and Stateless Persons. The Commissioner-General shall be appointed by the King by a decree approved by the Cabinet on a proposal by the Minister. The Commissioner-General shall be appointed for a period of five years. His or her term in office may be renewed. ...” “An appeal under the urgent-applications procedure shall lie to the Commissioner-General for Refugees and Stateless Persons against decisions of the Minister or his or her delegate pursuant to section 52 refusing aliens claiming refugee status permission to enter, remain or settle in the Kingdom.” “Aliens against whom a measure has been taken depriving them of their liberty pursuant to sections 7, 25, 27, 29, second paragraph, 51/5(3), fourth paragraph, 52 bis, fourth paragraph, 54, 63/5, third paragraph, 67 and 74/6 may appeal against that measure by lodging a notice of appeal with the committals division of the criminal court with jurisdiction for the place where they reside in the Kingdom or the place where they are found. ... They may renew the appeal referred to in the preceding paragraphs at monthly intervals. ...” “The committals division shall deliver its decision within five working days from the date an appeal is lodged after hearing the submissions of the alien or his or her counsel and the opinion of State Counsel's Office. ... If the committals division fails to deliver its decision within the period fixed, the alien shall be released. The committals division shall review the legality of the detention and deportation orders but shall have no power to review their reasonableness. An appeal shall lie against orders of the committals division by the alien, State Counsel's Office and, in the circumstances set out in section 74, the Minister or his or her delegate. The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file. Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.” “If the committals division decides that the alien shall not remain in custody, he or she shall be released as soon as the decision has become final. The Minister may order the alien to reside in a designated place either until the deportation order has been executed or until his or her appeal has been decided.” 26. In a judgment of 14 March 2001 the Court of Cassation reversed a decision of the Indictment Division of the Liege Court of Appeal ordering an alien's release. The Indictment Division had held that, contrary to Article 13 of the Convention, the authorities had deprived the alien of an effective remedy in law by interpreting the fact that appeals to the Conseil d'Etat had no suspensive effect as meaning that it was lawful for illegal immigrants to be forcibly expelled. The Court of Cassation held that, on the contrary, the issue whether an alien who had applied for refugee status had an effective remedy for the purposes of Article 13 had to be examined in the light of the procedure as a whole. After observing that appeals to the Commissioner-General for Refugees and Stateless Persons under the urgent procedure were of suspensive effect and that aliens were entitled, when lodging applications with the Conseil d'Etat for judicial review, to apply at the same time for a stay of execution under the ordinary or extremely urgent procedure, it concluded that those remedies taken as a whole satisfied the requirements of Article 13 of the Convention. 27. The relevant provisions of the Royal Decree of 5 December 1991 laying down the urgent procedure in the Conseil d'Etat read as follows: “In cases certified to be extremely urgent, Article 7 and 11 to 14 shall not be applicable. In such cases, the president may issue a summons ordering the applicants, the respondent, any intervening party and any persons with an interest in the outcome of the case to attend a hearing (which may be held at the president's home) at the time indicated, including on bank holidays and on a few days' or a few hours' notice. The order shall be served on Crown Counsel or on a designated member of Crown Counsel's Office. The notice shall, if applicable, indicate whether the administrative file has been lodged. If the opposing party has not communicated the administrative file beforehand, it shall produce it to the president at the hearing and the president may suspend the hearing to allow the representative of Crown Counsel's Office, the applicants and any intervening party to inspect it. The president may order immediate execution of the judgment.” “Applications for provisional measures shall be made separately from applications for a stay of execution or for judicial review. The application shall be signed by a party, a person with an interest in the outcome of the case or a lawyer satisfying the conditions laid down by section 19, second paragraph, of the consolidated Acts.” “If an applicant for a stay of execution also seeks extremely urgent provisional measures, Article 25 shall apply to his or her application. Articles 29 to 31 shall not be applicable. In cases certified to be extremely urgent, the president may issue a summons ordering the parties and any persons with an interest in the outcome of the case to attend a hearing (which may be held at the president's home) at the time indicated, including on bank holidays and on a few days' or a few hours' notice. The order shall be served on Crown Counsel or on a designated member of Crown Counsel's Office. The notice shall, if applicable, indicate whether the administrative file has been lodged. The president may order immediate execution of the judgment.” 28. The Conseil d'Etat's practice direction on the “procedure to be followed by duty staff at weekends” includes the following passage concerning “the receipt of applications for stays under the extremely urgent procedure”: “The caretaker shall contact the duty judge, the representative of Crown Counsel's Office and the registrar so that the degree of urgency can be determined and a hearing date agreed. In cases concerning 'aliens', the registrar shall, at the judge's request, contact the Aliens Office to ascertain the scheduled repatriation date and shall seek confirmation by fax. It is advisable in all cases concerning 'aliens' for the Minister of the Interior and the Commissioner-General for Refugees and Stateless Persons to be recorded as the opposing parties. It is also prudent in cases involving imminent repatriation to order the applicant's appearance in person.” 29. There are a number of examples in the case-law of the Conseil d'Etat of cases in which it ordered a stay of execution of a deportation order on the same day as the application for a stay under the extremely urgent procedure or on the following day, or, in any event, before the time-limit for leaving the territory expired. These are to be found in the following judgments: nos. 40.383 of 20 September 1992, 51.302 of 25 January 1995, 57.807 of 24 January 1996, 75.646 of 2 September 1998, 81.912 of 26 July 1999, 84.741 of 18 January 2000 and 85.025 of 1 February 2000. The Conseil d'Etat has also ruled that it may entertain applications for judicial review of deportation orders (see, for instance, the following judgments: nos. 56.599 of 4 December 1995, 57.646 of 19 January 1996, 80.505 of 28 May 1999 and 85.828 of 3 March 2000). 30. In August 1999 there was a sharp increase in the number of asylum-seekers from Slovakia. While the average for the first seven months of 1999 had been 22 applications monthly, including 51 applications in July alone, no less than 359 applications were made between 1 and 24 August 1999. On that latter date, the Director-General of the Aliens Office wrote to the Minister of the Interior and the Commissioner-General for Refugees and Stateless Persons to inform them of his intention to deal with asylum applications from Slovakian nationals rapidly in order to send a clear signal to discourage other potential applicants. 31. A “Note providing general guidance on overall policy in immigration matters” approved by the Cabinet on 1 October 1999, contained, inter alia, the following passage: “A plan for collective repatriation is currently under review, both to send a signal to the Slovakian authorities and to deport this large number of illegal immigrants whose presence can no longer be tolerated.” 32. The report on Slovakia of 15 June 1998 of the European Commission against Racism and Intolerance contains the following passage: “In Slovakia as in several other countries of central and eastern Europe, Roma/Gypsies belong to the most disadvantaged sections of society. Apart from a few isolated cases, they live outside the public arena, cut off from decision-making centres and the main currents of political opinion. They are often the victims of skinheads' violence and are regularly subjected to ill-treatment and discrimination by the authorities.” 33. A further report produced by the applicants and drawn up after a joint mission to Slovakia in February 1999 of the Aliens Office and the Commissioner-General's Office for Refugees and Stateless Persons appears to confirm the existence of serious discrimination against Roma, who are treated as a lower class.

train

001-139785

ENG

ROU

ADMISSIBILITY

TRIPON v. ROMANIA

Inadmissible

Josep Casadevall

1. The applicant, Mr Teodor Octavian Tripon, is a Romanian national, who was born in 1968 and lives in Beius. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 21 September 2001 the applicant, who was a civil servant employed as a customs officer at a border crossing point, was placed in pre-trial detention by a decision of the public prosecutor’s office. Along with six other colleagues working at the same customs office, he was suspected of having abused his office contrary to State interests, which is an offence under Article 248 of the Criminal Code. By a decision of 21 November 2001, the Oradea Court of First Instance extended the applicant’s pre-trial detention to 1 December 2001, when he was released. 4. On 28 November 2001, by a decision of the Ministry of Public Finance, the applicant was dismissed under Article 130 (j) of the Labour Code, which authorised employers to dismiss an employee who had been placed in pre-trial detention for a period exceeding sixty days, irrespective of the grounds for detention. 5. The applicant appealed against his dismissal to the Oradea Court of Appeal. 6. In a ruling of 29 April 2002 on a preliminary question of law, the Oradea Court of Appeal applied to the Constitutional Court of its own motion for examination of an objection on grounds of constitutionality, namely, whether Article 130 (j) of the Labour Code was compatible with the applicant’s constitutional right to respect for the presumption of innocence. The Court of Appeal held that Article 130 (j) of the Labour Code infringed the right to be presumed innocent because it allowed consequences to be drawn for the purposes of labour law even before guilt had been established by a final decision and did so entirely independently of the grounds for placing the suspect in pre-trial detention. 7. In a decision of 14 January 2003, the Constitutional Court dismissed the objection on grounds of unconstitutionality, holding that an employer’s right to dismiss an employee who had been placed in pre-trial detention for over sixty days was justified by an objective fact, namely, his prolonged absence from work, and not by considerations linked to whether or not he was guilty of an offence that had justified imposing a custodial measure on him. In the Constitutional Court’s view, the primary purpose of Article 130 (j) of the Labour Code was to protect the employer from the potentially adverse effects of an employee’s prolonged absence from work and resulting failure to fulfil his contractual obligations. 8. In the written grounds of appeal lodged with the Court of Appeal by his lawyer, the applicant agreed with the Court of Appeal’s view, considering, for his part, that Article 130 (j) of the Labour Code was contrary to the right to respect for the presumption of innocence, guaranteed by the Constitution. While not denying that a custodial measure of over sixty days had been imposed on him, the applicant pointed out that greater respect for the principle of the presumption of innocence would have been achieved by merely suspending his employment contract pending the relevant court’s final decision regarding his guilt, which was a measure available under section 79 of Law no. 188/1999 on the status of civil servants. 9. In a decision of 24 February 2003, the Oradea Court of Appeal dismissed the applicant’s appeal. It held that his dismissal had been in conformity with the law and was not contrary to the Constitution, having regard to the decision of the Constitutional Court and the provisions of the Labour Code. It noted that Law no. 188/1999 on the status of civil servants, which provided that a civil servant could be suspended from service if he had been committed for trial for an offence that was incompatible with his duties, expressly provided that the provisions of the Labour Code supplemented that Law. Accordingly, Article 130 (j) of the Labour Code was also applicable to civil servants such as the applicant. 10. In a final judgment of 16 January 2004, the Supreme Court of Justice dismissed an appeal by the applicant against the Court of Appeal’s decision, upholding it on the merits. 11. After 1 December 2001, when the decision of 21 November 2001 of the Oradea Court of First Instance extending the applicant’s pre-trial detention expired, the applicant was released. He remained free throughout the remainder of the criminal proceedings against him. 12. In a judgment of 11 October 2004, the Oradea Court of First Instance sentenced the applicant to one year and eight months’ imprisonment, suspended. It deducted from that period the time the applicant had spent in pre-trial detention from 21 September to 10 December 2001. The court found, after hearing submissions from the applicant, who was represented by a lawyer, and at the end of public and adversarial proceedings, that the applicant and six of his colleagues also employed as customs officials had committed the offences of abusing their office contrary to State interests and giving false data for inclusion in a document, contrary to Articles 248 and 289 of the Criminal Code respectively, thereby causing the Ministry of Finance, through their illegal customs activities, to incur a loss of 2,201,573,847 Romanian lei (approximately 519,424,189 euros) in tax and excise duty not collected by the State. 13. On appeal by the applicant and his co-defendants, who sought an acquittal on grounds that the Court of First Instance had wrongly interpreted the applicable laws, the Timiş County Court gave judgment on 17 December 2007 upholding the lower court’s judgment on the merits. 14. In a judgment of 30 September 2008, the Timişoara Court of Appeal remitted the case to the Timiş County Court. The applicant sought a finding by that court that the offences of which he was accused were statute-barred. He nonetheless asked the court to continue with his criminal trial under Article 13 § 2 of the Code of Criminal Procedure, in order to secure an acquittal. 15. In a decision of 31 March 2010, the Timiş County Court set aside the judgment of 11 October 2004. While noting that the offences were statute-barred, it granted the applicant’s request to continue his criminal trial under Article 13 § 2 of the Code of Criminal Procedure. Having re-examined all the evidence adduced in the case (statements of witnesses and co-accused, expert technical reports, various documents, and so forth), the court found that the applicant could not be acquitted of the charges against him as the prosecution evidence adduced in the case proved his guilt. The court then ordered the trial to be discontinued on all counts, in accordance with Article 13 § 3 of the Code of Criminal Procedure, thus bringing into effect the applicable special time bar. 16. On an appeal by the applicant, who sought an acquittal, the Timişoara Court of Appeal delivered a final judgment on 14 December 2010 upholding the decision of 31 March 2010 of the Timiş County Court on the merits. 17. Article 130( j) of the Labour Code provided, at the material time, that an employer could dismiss an employee if his detention exceeded sixty days. The new Labour Code, which came into force on 5 February 2003, initially contained a similar provision, in Article 61 (b), providing that an employer could dismiss an employee if he was in pre-trial detention for more than sixty days, in the conditions set forth in the Code of Criminal Procedure. The sixty-day period was reduced to thirty days by Government Ordinance no. 65/2005 amending the Labour Code. 18. Regarding pre-trial detention, the Code of Criminal Procedure in force at the relevant time provided that over and above a period of thirty days, during which the public prosecutor’s office had power, at that time, to issue a detention order, any extension of the period of pre-trial detention had to be ordered exclusively by a court. At the material time Article 159 of the Code of Criminal Procedure was worded as follows: “The investigation file shall be lodged by the prosecutor [with the court] at least two days prior to the hearing and may be consulted by the lawyer on request. The defendant shall be brought before the court, assisted by a lawyer. ... If the court allows a request to extend [the period of detention], this shall not exceed 30 days. The prosecutor or accused may appeal against a decision on a preliminary question of law in which the court has ruled on an extension of the period of pre-trial detention. The time-limit for appealing is three days and shall run from the date of delivery of judgment for those who are present at trial and from the date of service for those who are not. An appeal against a decision extending the period of pre-trial detention shall not have suspensive effect ... The court may allow further requests for an extension of the period of pre-trial detention, but no period shall exceed 30 days.” 19. Since the adoption of Government Emergency Ordinance no. 109 of 24 October 2003 the public prosecutor’s office no longer has power to order the pre-trial detention of a person accused of having committed an offence. Only an independent and impartial tribunal may order pre-trial detention or an extension thereof, by a reasoned decision, amenable to appeal, taken after hearing submissions from the accused in the presence of his lawyer.

train

001-90406

ENG

UKR

ADMISSIBILITY

BOYARCHENKO v. UKRAINE

Inadmissible

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

The applicant, Mr Sergiy Vasylyovych Boyarchenko, is a Ukrainian national who was born in 1957 and lives in Chernigiv. He was represented before the Court by Mr I. Uvarov, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 February 2001 the applicant brought a car registered in Lithuania (a 1986 Volvo 740) into the customs territory of Ukraine. When crossing the border he undertook an obligation to re-export the car before 27 February 2001. According to the State authorities he failed to do so. On 23 June 2003, the Chernigiv Customs Office (“the Customs Office”) drew up a report on an infringement of customs regulations due to the applicant’s failure to remove the car from the customs territory of Ukraine (Article 113 of the Customs Code 1991). This case of a violation of customs regulations was referred to the Novozavodsky District Court of Chernigiv (“the Novozavodsky Court”) for consideration. On 26 December 2003, having heard the applicant, who stated that he had taken the car to Russia, although he had no confirmation for this, and the Customs Office, which explained that a check of the records did not confirm that the car had crossed the border into Russia, the Novozavodsky Court returned the case to the customs authorities for corrections and additional verification. In particular, the court noted that the information submitted by the Customs authority contained an inaccuracy as to the chassis number of the vehicle (00761 instead of 007612) and therefore the court ordered that the customs records be checked once again with the correct chassis number. On 23 January 2004 the applicant left Ukraine to take up permanent residence in Russia without informing the court about his new address. The Novozavodsky Court summoned the applicant for a further hearing in February 2004. By a letter of 16 February 2004, the applicant’s lawyer informed the court that the applicant had registered as having left his apartment in Ukraine and had left for Russia at the end of January. He also stated that the applicant had not been notified about the court hearing as the applicant’s actual location was unknown to him. The court summoned the applicant again for a hearing in March 2004. On 16 March 2004 the court considered the case in the applicant’s absence. The applicant’s mother, who appeared before the court, confirmed that his actual place of residence was unknown. The court considered the applicant’s failure to appear before it as an intentional evasion from justice and decided that the case could be considered in the applicant’s absence. The court then found the applicant guilty of having failed to re-export the car in violation of Section 113 of the Customs Code 1991 and reclassified the offence under Section 348 of the Customs Code 2002. The court ordered the confiscation of the vehicle, but given that the car’s location was unknown, it replaced confiscation with payment of 16,779.31 Ukrainian hryvnias (UAH) (about 2,237 euros (EUR)), which corresponded to the value of the car, in accordance with Section 450 of the Customs Code 2002. On an unknown date the applicant lodged a request for review of the decision of 16 March 2004 with the President of the Chernigiv Court of Appeal. By a letter of 7 July 2004 the President of the Chernigiv Court of Appeal informed the applicant that he had examined his case file and his request and found no reason for the review. He noted, in particular, that the decision of 16 March 2004 was in accordance with law and that the applicant had been duly summoned twice at the address indicated by him and had provided no justification for his absence. Relevant provisions of the Codes are summarised in the case of Nadtochiy v. Ukraine (no. 7460/03, §§ 13-14, 22 April 2008.) The new Customs Code contains provisions relevant to the case which are similar to those in the old Customs Code. Section 348 of the Code provides for a fine or confiscation of goods in case of infringement of the obligation on taking the items in or out the customs territory of Ukraine (Section 113 of the Customs Code 1991). Section 390 of the Code foresees that, as a general rule, court hearings shall be conducted in the presence of the person against whom proceedings on violation of custom regulations have been brought. However, the hearings can be conducted in the absence of such a person when there is information about the timely notification of this person about the place and time of consideration of the case, but he or she has not submitted any request for adjournment of the case. Section 405 of the Code stipulates that if the confiscation ordered by the court is impossible the pecuniary equivalent of the value of the items to be confiscated shall be collected from the persons who have infringed the customs regulations (Section 149 of the Customs Code 1991).

train

001-110440

ENG

POL

CHAMBER

CASE OF HORYCH v. POLAND

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman punishment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award

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

5. The applicant was born in 1957 and lives in Warszawa. He is currently detained in the Warsaw Mokotów Remand Centre. 6. On 14 July 2004 the applicant was arrested on suspicion of drug smuggling. On 15 July 2004 the Gdańsk District Court (Sąd Rejonowy) remanded him in custody for 3 months, relying on the reasonable suspicion – supported by evidence taken from witnesses – that he had committed the offence in question and the need to secure the proper course of the proceedings. The court also attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to induce witnesses to give false testimony or would otherwise obstruct the proceedings. That risk was justified by the fact that the case involved a large number of accomplices who had not yet been apprehended. 7. An appeal by the applicant against the detention order, likewise his further appeals against subsequent decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful. In his applications and appeals, he argued that his lengthy detention violated the provisions of the Code of Criminal Procedure relating to the imposition of this measure. 8. In the course of the investigation, the applicant’s detention was extended on several occasions, namely on 21 September 2004 (to 31 December 2004), 21 December 2004 (to 31 March 2005) and 22 March 2005 (to 30 June 2005). In all their decisions the authorities relied on the original grounds given for the applicant’s detention. The courts also stressed the fact that, owing to the complexity of the case, the investigation had still not been completed. 9. On 16 June 2005 a bill of indictment was lodged with the Gdańsk Regional Court (Sąd Okręgowy). The applicant, together with 3 other coaccused, was indicted on charges of drug smuggling and conspiracy to import drugs committed in an organised criminal group aiming at importing into Poland considerable amounts of drugs. 10. During the court proceedings the courts further extended the applicant’s detention on several occasions, namely on 23 June 2005 (to 30 September 2005), on an unspecified subsequent date, on 28 June 2006 (to 30 October 2006), 3 October 2006 (to 31 December 2006), 28 December 2006 (to 30 April 2007), 25 April 2007 (31 August 2007), 22 August 2007 (to 31 December 2007), 11 December 2007 (to 31 March 2008), 18 March 2008 (until 30 June 2008), 25 June 2008 (until 30 September 2008) and 18 September 2008 (until 31 December 2008). The courts repeated the grounds previously given for keeping the applicant in custody. They attached importance to the likelihood of a severe sentence of imprisonment being imposed on him and the risk that he would obstruct the proceedings. 11. On 19 October 2005 the Regional Court held the first hearing. The trial continued until 30 December 2008. Throughout that time 98 hearings were scheduled. The hearings took place at last once a month but at certain periods the court held up to 5 hearings per month. On average, they were held at 2 week-intervals and there was no interruption of the trial longer than 5 weeks. 12. On 30 December 2008 the court convicted the applicant of drug smuggling and conspiracy to import drugs but acquitted him of acting in an organised criminal group. He was sentenced to a cumulative penalty of 12 years’ imprisonment. The Court deducted the period of his detention from 14 July 2004 to 12 June 2005 from his sentence. The applicant appealed. 13. The applicant did not specify when the proceedings had terminated but it appears that they most likely ended between the end of 2009 and the beginning of 2010. 14. On an unspecified date in 2005 the Kraków Regional Court convicted the applicant of drug-related offences committed in an armed organised criminal group and sentenced him to 15 years’ imprisonment. The applicant started to serve the sentence on 13 June 2005. 15. On an unspecified date, apparently on 18 January 2006, the Ostrołęka Regional Prosecutor charged the applicant with, among other things, leading an organised criminal group called “mokotowska” involved in trafficking large amounts of drugs, arms and ammunition, money laundering, bribery of public officials, kidnapping, extortion, armed robbery and other theft-related offences. 16. On 19 January 2006 the Ostrołęka Distrcit Court remanded the applicant in custody relying on the reasonable suspicion that he had committed the offences with which he had been charged. The court underlined that the suspicion was fully supported by evidence obtained from a crown witness (świadek koronny) and confirmed by other evidence, such as searches, inspections of crime scenes and testimonies of other witnesses. It also referred to the risk that the applicant would try to bring pressure to bear on witnesses, the need to secure the proper course of the investigation and the likelihood that a severe penalty – minimum 8 years’ imprisonment would be imposed on him. 17. On an unspecified date, apparently in 2009, the Warsaw Regional Court convicted the applicant as charged and sentenced him to 14 years’ imprisonment. 18. The applicant did not inform the Court of the further course of the proceedings. 19. On 18 July 2007 the applicant lodged with the Gdańsk Court of Appeal (Sąd Apelacyjny) a complaint under section 5 of 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”). 20. The applicant sought a ruling that the length of the proceedings in case no. IV K 200/05 (see paragraphs 6-13 above) had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. 2,500 euros (EUR)). 21. On 25 September 2007 the Gdańsk Court of Appeal dismissed his complaint as unfounded. It held that since the beginning of the trial 61 hearings had been scheduled in the case until 24 August 2007 and only 11 of them had been adjourned due to the absence of counsel or cosuspects and because of a lay judge’s illness. The court concluded that the proceedings had been conducted with the requisite speed and without undue delay. 22. After his arrest on 14 July 2004 (see paragraph 6 above) the applicant was detained in the Sztum Prison (Zakład Karny). Shortly afterwards, on an unspecified date, he was transferred to the Gdańsk Remand Centre (Areszt Śledczy). He remained there until 22 January 2009 but in 2008 he was transferred to the Warszawa-Mokotów Remand Centre for a few months. From 22 January 2009 to 9 June 2009 he was detained in the Kraków Remand Centre. Later he was held in the Radom Prison and then transferred to the Warsaw Mokotów Remand Centre. 23. On 22 July 2004 the Sztum Prison Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee” (a so-called ”tymczasowo aresztowany niebezpieczny”; in the relevant legal provisions referred to as ”tymczasowo aresztowany stwarzający poważne zagrożenie społeczne albo poważne zagrożenie dla bezpieczeństwa aresztu”). It considered that it was necessary to place the applicant in a solitary cell designated for such detainees at a special high-security prison ward because he had been charged with serious offences committed in an organised criminal group. Pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy), this circumstance by itself justified the classification of a detainee as “dangerous”. The commission also referred to the applicant’s serious lack of moral character (wysoki stopień demoralizacji). 24. Every three months the Gdańsk Remand Centre’s Penitentiary Commission (Komisja Penitencjarna Aresztu Śledczego) reviewed its decision on the classification of the applicant as a “dangerous detainee”. The applicant appealed against many of those decisions. He submitted that the offences with which he had been charged, in particular drug-smuggling, did not justify the imposition of the special regime. He argued that the measure had been extended automatically without any consideration for his health and mental well-being, that it had in fact been imposed for an unlimited duration and was putting an exceptionally severe strain on him and his family. He also complained about being subjected to a strip search every time he left and entered the cell. All the appeals were dismissed. 25. On 3 September 2007 the Gdańsk Regional Court – Penitentiary Division examined the applicant’s appeal against the Gdańsk Remand Centre’s Penitentiary Commission’s decision of 10 July 2007 prolonging the application of the “dangerous detainee” regime and continuing to hold him in a solitary cell. In his appeal, the applicant underlined that the special regime had already been imposed on him for some 3 years and that its continuation had been based solely on the charges laid against him, without any court conviction. In his view, this was in breach of the principle of the presumption of innocence. The court rejected the applicant’s argument that the nature of the offences with which he had been charged did not justify the continued application of that regime in his case. In that regard, it stressed that the applicant had been charged in three separate sets of criminal proceedings conducted by different courts or prosecutors and those other charges included, among other things, the leading of an organised and armed criminal group, kidnapping, armed robbery and arms trafficking. The nature of the charges and the applicant’s personal circumstances, such as his previous criminal record, leadership qualities and tendency to dominate the others fully supported the view that there existed the “danger [to society and the security of a remand centre]” referred to in Article 212a of the Code of Execution of Criminal Sentences. In sum, there was no indication that the contested decision was contrary to the law, which was the sole ground on which it could be challenged and possibly quashed. As regards the applicant’s argument that his contacts with his family were severely restricted as a result of his “dangerous detainee” status, the court held that those restrictions were lawful as being applied under the relevant provisions of the Code of Execution of Criminal Sentences and did not make it impossible for him to maintain such contacts. 26. On 11 December 2007, 15 February 2008 and 3 June 2008 the Gdańsk Regional Court – Penitentiary Division, relying on the same grounds, rejected further appeals against the Penitentiary Commission’s decisions prolonging the imposition of the “dangerous detainee” regime on the applicant. In his appeals, the applicant submitted that his prolonged solitary confinement was putting an exceptionally severe emotional strain on him, which was compounded by his lack of sufficient contact with the family. He also complained that the routine strip-searches, to which he had been subjected, sometimes several times a day, were intrusive, unnecessary and humiliating. 27. Further decisions on the prolongation of the “dangerous detainee” regime were based on similar grounds or repeated the initial reasons. On 19 August 2009 the Radom Regional Court upheld the Penitentiary Commission’s decision to continue the imposition of the regime, given on 23 June 2009, in view of the serious nature of the charges brought against the applicant and his personal circumstances, such as his leadership qualities and tendency to dominate the others and his serious lack of moral character. On 23 October 2009 the Warsaw Regional Court upheld a similar decision, stressing that since 13 June 2005 the applicant had been serving a sentence of 15 years’ imprisonment, following his conviction for drugrelated offences committed in an organised criminal group. He had also been convicted at first instance by the Gdańsk District Court for other drugrelated offences and sentenced to 12 years’ imprisonment. In these circumstances, the special regime had to be continued. On 14 July 2010 the Warsaw Regional Court upheld another decision of the Penitentiary Commission, relying on the applicant’s criminal convictions and stressing that under the applicable legal provisions no timelimit was set for the imposition of the regime. On 30 August 2011 the Warsaw Regional Court upheld the Penitentiary Commission’s decision of 2 August 2011. Noting that the decision was based on the fact that the applicant, in view of his personal circumstances and serious lack of moral character, posed a serious danger to prison security and order, as well as to prison officers’ safety, the court found that this assessment had been objective and fully justified the continuation of the regime. 28. Throughout his detention the applicant repeatedly requested the authorities to place him with another inmate, complaining that his excessively long solitary confinement had severely affected his emotional and mental well-being. 29. The regime is still being applied to the applicant and he is still held in a solitary cell. In all likelihood, pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences (see paragraph 44 below), the regime will continue until he has finished serving his three consecutive sentences of imprisonment, or at least the sentence following the conviction for leading an organised and armed criminal group, kidnapping, arms and drug trafficking. At present it is estimated that the applicant’s imprisonment would come to an end at the end of 2031. 30. Since 22 July 2004, when the applicant was placed in a solitary cell for dangerous detainees at the high-security prison ward until present, he has remained under increased supervision. The cells in which he has been held, including their sanitary facilities, have been constantly monitored via close-circuit television. They have also been searched frequently, sometimes on a daily basis. He has been subjected to a socalled “personal check” (kontrola osobista), i.e. a thorough body search every time he has left and entered the cell. The applicant has explained that this means that each time he enters or leaves the cell he must strip naked in front of prison guards and carry out deep knee-bends from 6 to 10 times to enable an examination of his anus. Whenever he is outside his cell and the high-security ward, including his appearances at court hearings, the applicant must be handcuffed or required to wear so-called “joined shackles” (kajdanki zespolone) on his hands and feet (see paragraph 47 below). Those shackles consist of handcuffs and fetters joined together with chains. The applicant has many times unsuccessfully complained to the authorities that outside his cell his hands were handcuffed behind his back, which caused him considerable pain and difficulty in moving, especially during a daily walk. The applicant’s movements outside his cell and the special ward must be supervised by 2 prison guards. He is allowed to have a 1-hour long solitary walk per day in a segregated area. 31. The applicant was entitled to 1 one-hour visit from the family per month. 32. He supplied a document issued by the Governor of the Gdańsk Remand Centre on 13 February 2008, setting out a list of visits received by him up to that date. From 23 August 2004 to 20 January 2008, i.e. for 3 years and some 5 months, he was granted permission to have 11 “open visits” (widzenie przy stoliku). He was also granted 21“closed visits” (widzenie przez telefon) (see also paragraph 58 below). 33. On most occasions only the applicant’s wife visited him. The applicant has 3 daughters M.H., K.H. and S.H. born, respectively, in 1988, 1993 and 1998. Throughout the above period he received visits from his oldest daughter on 2 occasions and from each of the two younger daughters once. 34. In 2004 the applicant was granted 6 visits, 2 of which were open and 4 closed. They took place on 23 August (this was an open visit from the applicant’s wife), 17 September (this was a closed visit from his wife, E.H., and M.H., his oldest daughter), 15 October, 29 October (on this occasion he received an open visit from his daughter M.H.), 19 November and 17 December respectively. 35. In 2005 the applicant was granted 10 visits, only 1 of which was open. They took place on 11 February, 11 March, 15 April, 12 May, 5 July, 28 July, 16 August, 30 September (this was a closed visit from his wife and K.H., one of his daughters), 28 October and 9 December 2005. 36. In 2006 the applicant received 7 visits (including 1 “open”) from his wife only. They took place on 28 February, 5 April, 13 June, 23 August, 20 October, 30 November and 29 December. 37. In 2007 the applicant was granted 7 visits from his wife, 4 of which were open visits. They took place on 9 February, 29 March, 1 June (on this open visit the applicant could also see S.H., his youngest daughter), 24 July, 6 September, 24 October and 27 November. 38. In 2008, as of the date of the issuance of the document, the applicant received one “open visit” from his wife – on 20 January 2008. He submitted that throughout the whole of 2008 he had received 5 family visits. 39. The applicant stated that his very limited contact with his daughters had been caused by the fact that the Gdańsk Remand Centre and the Kraków Remand Centre did not provide satisfactory conditions for visits by children or minor persons. A visit took place in a room where visitors were separated from a detainee by a Perspex window partition and bars, making it impossible for them to have any direct contact. A visitor, including a child, in order to reach the visiting area in the ward for dangerous detainees had to walk through the entire prison, past prison cells situated on both sides of the corridor. This exposed his daughters to the gaze of inmates and their reaction to the girls’ presence constituted an exceptionally traumatic experience for them. During the meeting, they were separated by a window and bars from their father, which was very stressful for them and made it impossible for them to have any normal contact. For that reason, considering that the conditions in which he was allowed to see his family in prison caused too much distress and suffering for his daughters, the applicant had to give up receiving visits from his daughters. 40. In the Kraków Remand Centre the visits to “dangerous detainees” could take place only on Tuesdays. For that reason, the applicant’s wife was unable to visit him on every occasion he was entitled to have a monthly visit because she worked from Monday to Friday. 41. The applicant made numerous complaints about poor visiting conditions and the practical impossibility of having contact with his daughters, but they were to no avail. 42. The applicant’s correspondence with his family was censored. He supplied three envelopes bearing stamps that read respectively: “censored on 12 November 2007”, “censored on 8 January 2008”, “censored on 30 January 2008” and illegible signatures. The first letter was from his daughter, K.H., and two others from a family member, a certain K[a]. H. The applicant did not inform the Court about the contents of the letters and whether any parts of them had been expunged or otherwise censored. 43. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006). 44. Article 212a of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows: “1. The penitentiary commission shall classify a detainee as posing a serious danger to society or to the security of a remand centre. It shall review its decisions on that matter at least once every three months. The authority at whose disposal a detainee remains and a penitentiary judge shall be informed of decisions taken. 2. A detainee, referred to in subparagraph 1, shall be placed in a designated remand centre’s ward or in a cell in conditions ensuring increased protection of society and the security of the remand centre. A penitentiary judge shall be informed about this placement. 3. A detainee who is suspected of committing an offence in an organised criminal group or organisation aimed at committing offences shall be placed in a remand centre in conditions ensuring increased protection of society and the security of the remand centre, unless particular circumstances militate against such placement. ...” The penitentiary commission referred to in the above provision is set up by the governor of the prison or the governor of the remand centre. It is composed of prison officers and prison employees. Other persons such as representatives of associations, foundations and institutions involved in the rehabilitation of prisoners as well as church or religious organisations – may participate in the work of the commission in an advisory capacity. If the commission’s decision on the classification of a prisoner or detainee is contrary to the law, the relevant penitentiary court may quash or alter that decision (Article 76). A detainee may appeal against the penitentiary commission’s decision but solely on the ground of its non-conformity with the law (Article 7). 45. Article 212b of the Code of Execution of Criminal Sentences lays down specific arrangements for the detention of a “dangerous detainee”. It reads, in so far as relevant, as follows: “1. In a remand centre a detainee referred to in Article 212a shall be held in the following conditions: 1) cells and places designated for work, study, walks, visits, religious services, religious meetings and religious classes, as well as cultural and educational activities, physical exercise and sports, shall be equipped with adequate technical and protective security systems; 2) cells shall be controlled more often than those in which detainees [not classified as “dangerous”] are held; 3) a detainee may study, work, participate directly in religious services, religious meetings and classes, and participate in cultural and educational activities, exercise and do sports only in the ward in which he is held; 4) a detainee’s movement around a remand centre shall be under increased supervision and shall be restricted to what is strictly necessary; 5) a detainee shall be subjected to a personal check (kontrola osobista) each time he leaves and enters his cell; 6) a detainee’s walk shall take place in designated areas and under increased supervision; ... 8) visits shall take place in designated areas and under increased supervision ...; 9) a detainee may not use his own clothes or footwear. Rules on the use of handcuffs, fetters and other restraint measures are laid down in the Cabinet’s Ordinance of 17 September 1990 on conditions and manner of using direct restraint measures by policemen (as amended on 19 July 2005) (Rozporządzenie Rady Ministrów z dnia 17 września 1990 r. w sprawie określenia przypadków oraz warunków i sposobów użycia przez policjantów środków przymusu bezpośredniego) (“the 1990 Ordinance”). Paragraph 6 of the 1990 Ordinance reads, in so far as relevant, as follows: “1b Handcuffs shall be put on hands kept on the front. If a person is aggressive or dangerous, handcuffs may be put on hands kept behind the back. 2b In respect of persons detained or sentenced to imprisonment, in particularly justified cases joined shackles designed to be worn on hands and legs may be used.” 46. The “N” wards (from “niebezpieczny” – dangerous in Polish) designed for dangerous detainees are closed units within prisons or remand centres, shut off from other sections of the detention facility. They are placed in a separate building or in a specific part of the prison building fully isolated from other sections of the prison, usually through a special entry or corridor. A security door remains closed at all times and the entire ward is continually monitored via close-circuit television. Regular daily routines (provision of meals, clothes, etc.) are organised with the use of remotecontrolled devices, reducing to the minimum any direct contact between the detainees and the prison guards. The prison guards wear bulletproof jackets. Routine searches of cells are often carried out. 47. The detainees, whenever outside cells, even within the “N” ward, wear “joined shackles” or are handcuffed at all times. They are subjected to a personal check before leaving cells and on return. They all wear special red uniforms. They have a daily, solitary walk in a specially designated and segregated area and if they are allowed to spend some time in a day room, they usually remain alone. They are not necessarily subjected to solitary confinement and may share the cell with an inmate or inmates but, pursuant to paragraph 90 of the 2003 Ordinance, the number of detainees in the cell is limited to 3 persons at the same time. According to paragraph 91(1) of the Ordinance of the Minister of Justice of 31 October 2003 on means of protection of organisational units of the Prison Service (Rozporządzenie Ministra Sprawiedliwości z dn. 31 października 2003 r. w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej) (“the 2003 Ordinance”), a dangerous detainee can move about within the detention facility only singly. In justified cases such detainees may move in a group of three but under the increased supervision by the prison guards. Paragraph 91(4) states that, outside the cell and facilities designated for “N” detainees, an “N” inmate must be permanently and directly supervised by at least 2 prison guards. This restriction can only exceptionally and in justified cases be lifted by the Prison Governor. A dangerous detainee cannot perform any work using dangerous tools, handle devices designed to make dangerous or illegal objects, take up any work enabling him to set fire, cause an explosion or any danger to the prison security or work in any place enabling an escape or uncontrolled contact with other persons (paragraph 92). He is not allowed to make purchases in the prison shop but must submit his shopping list to a designated prison guard. The goods are delivered directly to his cell (paragraph 93). 48. As of 2008 there were 16 “N” wards in Polish prisons, which had the capacity to hold from 17 to 45 detainees. As of February 2010 there were 340 “dangerous detainees” (convicted or detained on remand) in “N” wards. 49. Article 116 § 2 of the Code of Execution of Criminal Sentences defines the “personal check” in the following way: “A personal check means an inspection of the body and checking of clothes, underwear and footwear as well as [other] objects in a [prisoner’s] possession. The inspection of the body, checking of clothes and footwear shall be carried out in a room, in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex.” 50. Pursuant to paragraph 94 § 1 of the 2003 Ordinance: “1. A [dangerous] detainee shall be subjected to a personal or cursory check, in particular: 1) before leaving the ward or the workplace and after his return there; 2) before individual conversations or meetings with the representatives of the prison administration or other persons that take place in the ward; 3) immediately after the use of a direct coercive measure – if it is possible given the nature of the measure; 4) directly before the beginning of the escort.” 51. By virtue of the law of 18 June 2009 on amendments to the Code of Execution of Criminal Sentences (ustawa o zmianie ustawy – Kodeks karny wykonawczy) (“the 2009 Amendment”) Article 212b was rephrased and new rules on monitoring detention facilities by means of close-circuit television were added. The 2009 Amendment entered into force on 22 October 2009. 52. The former text of Article 212b (see paragraph 45 above) became paragraph 1 of this provision and a new paragraph 2 was introduced. This new provision is formulated as follows: “2. The behaviour of a person in pre-trial detention referred to in Article 212a § 1 and 4 in a prison cell, including its part designated for sanitary and hygienic purposes and in places referred to in paragraph 1 (1) [of this provision] shall be monitored permanently. The images and sound [obtained through monitoring] shall be recorded.” 53. The above provision belongs to the set of new rules that introduced monitoring in prisons by means of close-circuit television as a necessary security measure. The new Article 73a reads, in so far as relevant, as follows: “1. Detention facilities may be monitored through an internal system of devices recording images or sound, including close-circuit television. 2. Monitoring, ensuring the observation of a prisoner’s behaviour, may be used in particular in prison cells including parts designated for sanitary and hygienic purposes, in baths, in premises designated for visits, in places of employment of detainees, in traffic routes, in prison yards, as well as to ensure observation of the prison grounds outside buildings, including the lines of external walls. 3. Monitored images or sound may be recorded with the help of appropriate devices. 4. Monitoring and recording of sound may not include information subject to the seal of confession or secret protected by law. 5. Images from close-circuit television installed in the part of the prison cell designated for sanitary and hygienic purposes and in baths shall be transmitted to monitors or other devices referred to in paragraph 3 in a manner making it impossible to show [detainees’] private parts or their intimate physiological functions. ...” 54. Pursuant to Article 73 (a) §§ 6 and 7, if the recorded material is not relevant for the prison security or security of an individual prisoner it shall be immediately destroyed. The Prison Governor decides for how long the relevant recorded material should be stored and how it is to be used. 55. However, all recorded material concerning a dangerous detainee is stored in accordance with Article 88c, which reads as follows: “The behaviour of a [detainee classified as dangerous] in a prison cell, including its part designated for sanitary and hygienic purposes and in places referred to in Article 88b (1) [places and premises designated for work, education, walking exercise, receiving visits, religious service, religious meetings and teaching, as well as cultural, educational and sports activity] shall be monitored permanently. The images and sound [obtained through monitoring] shall be recorded.” 56. Before that amendment, the rules on monitoring detainees were as included in paragraph 81 § 2 of the 2003 Ordinance, according to which a prison cell could be additionally equipped with video cameras and devices enabling listening. 57. Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, as applicable until 8 June 2010, a detainee was allowed to receive visitors, provided that he had obtained a visit permission (“zezwolenie na widzenie”) from the authority at whose disposal he remained, i.e. an investigating prosecutor (at the investigative stage) or from the trial court (once the trial had begun) or from the appellate court (in appeal proceedings). A detainee was entitled to 1 onehour long visit per month. 58. According to paragraphs 2 and 3, a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions. In practice, there are 3 types of visits: an “open visit”, a “supervised visit” (widzenie w obecności funkcjonariusza Służby Więziennej) and a “closed visit”. An open visit takes place in a common room designated for visits. Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact. Several detainees receive visits at the same time and in the same room. A supervised visit takes place in the same common room but the prison guard is present at the table, controls the course of the visit, may restrict physical contact if so ordered under the visit permission, although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transferring of any forbidden objects from or to prison. A closed visit takes place in a special room. A detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone. 59. Article 217 § 5 lays down specific conditions for receiving visits by dangerous detainees in the following way: “In the case of a [dangerous detainee], the governor of the remand centre shall inform the authority at whose disposal a detainee remains of the existence of a serious danger for a visitor and that it is necessary to grant a visit permission in a manner making [his or her] direct contact with a detainee impossible.” 60. The judgment was given following an application, lodged by the Ombudsman on 2 January 2007, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences was incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the Convention and Article 37 of the United Nations Convention on the Rights of the Child. The Constitutional Court’s judgment became effective on 8 July 2009, the date of its publication in the Journal of Laws (Dziennik Ustaw). 61. The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusing family visits to those in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee’s constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against a prosecutor’s decision to refuse a family visit to those in pre-trial detention. 62. On 5 November 2009 Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions stipulate that a detainee is entitled to at least one family visit per month. In addition, they indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments entered into force on 8 June 2010. 63. The relevant domestic law and practice concerning the censorship of prisoners’ correspondence are set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007. 64. Article 23 of the Civil Code contains a non-exhaustive list of socalled “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.” Article 24, paragraph 1, of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” 65. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 66. Articles 417 et seq. of the Polish Civil Code provide for the State’s liability in tort. Article 417 § 1 of the Civil Code (as amended) provides: “The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 67. Article 4421 of the Civil Code sets out limitation periods for civil claims based on tort, including claims under Article 23 read in conjunction with Articles 24 and 448 of the Civil Code. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows: “1. A claim for compensation for damage caused by a tort shall lapse after the expiration of three years from the date on which the claimant learned of the damage and of a person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.” 68. The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and in its the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. 69. The recommendation, in its part relating to the application of security measures reads, in so far as relevant, as follows: “51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. 51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control. 51.3 As soon as possible after admission, prisoners shall be assessed to determine: a. the risk that they would present to the community if they were to escape; b. the risk that they will try to escape either on their own or with external assistance. 51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk. 51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.” “52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves. 52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety. 52.3 Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety. 52.4 It shall be possible for prisoners to contact staff at all times, including during the night. 52.5 National health and safety laws shall be observed in prisons.” “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners.” 70. From 26 November to 8 December 2009 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) carried out a periodic visit to selected detention establishments in Poland. The CPT visited wards designated for dangerous detainees in the Poznań Remand Centre, the Racibórz Prison and the Rawicz Prison. The CPT report contains a general description of the “N” regime and a number of specific recommendations aimed at ameliorating conditions of detention of inmates with “N” category status in the establishments visited. It also lists recommendations aimed at removing perceived shortcomings in the “dangerous detainee” regime in general. 71. The following observations were made in paragraph 91 of the report in respect of the application of the regime: “The regime applied to ‘N’ category prisoners remained very restrictive, similar to the one described in the report on the 2004 visit. Out-of-cell time consisted essentially of one hour of outdoor exercise per day (taken either alone or in the company of a cellmate) and access to a recreation room twice weekly at Poznań Remand Prison and Racibórz Prison. Inmates could have their own TV in the cell. They were entitled to a weekly shower, two visits a month, and two phone calls per month for sentenced prisoners (at the prosecutor’s discretion for remand prisoners) at Rawicz and Racibórz prisons, and a five-minute-daily phone call for sentenced prisoners at Poznań Remand Prison. Contact with staff was limited to occasional visits by educators, psychologists and a chaplain. The CPT remains of the opinion that the regime for ‘N’ status prisoners should be fundamentally reviewed. Solitary confinement or small-group isolation for extended periods is more likely to de-socialise than re-socialise people. There should instead be a structured programme of constructive and preferably out-of-cell activities, and educators and psychologists should be proactive in working with "N" status prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day. As stressed in the report on the visit in 2004, regardless of the gravity of the offences of which prisoners are accused or have been convicted and/or their presumed dangerousness, efforts must be made to provide them with appropriate stimulation and, in particular, with adequate human contact.” 72. In paragraph 92 of the report the CPT referred to the procedure for the classification as a “dangerous detainee” and the usually lengthy application of the “dangerous detainee” status in the following terms: “The procedure for allocation and review of ‘N’ status remained unchanged. Despite the presence of regular quarterly reviews, most prisoners remained in ‘N’ status for lengthy periods of time. ... The Committee must stress that placement in an ‘N’ unit should not be a purely passive response to the prisoner’s attitude and behaviour. Instead, reviews of placement should be objective and meaningful, and form part of a positive process designed to address the prisoner’s problems and permit his (re-)integration into the mainstream prison population. In the CPT’s opinion, the procedure for allocating a prisoner to ‘N’ status should be refined to ensure that only those who pose an ongoing high risk if accommodated in the mainstream of the prison population are accorded this status. Reviews of ‘N’ status should specify clearly what is to be done to assist the prisoner concerned to move away from the ‘N’ status and provide clear criteria for assessing development. Prisoners should be fully involved in all review processes. The Committee reiterates its recommendation that the Polish authorities review current practice with a view to ensuring that "N" status is only applied and maintained in relation to prisoners who genuinely require to be placed in such a category.” 73. In paragraph 94, the CPT expressed the following opinion regarding the practice of routine strip-searches: “The CPT also has serious misgivings about the systematic practice of obliging ‘N’ status prisoners to undergo routine strip-searches whenever entering or leaving their cells. The prisoners concerned had to undress completely, and squat fully naked in view of the guards and any prisoner(s) sharing the cell while all their clothes were examined. In the CPT’s opinion, such a practice could be considered as amounting to degrading treatment. The Committee recommends that strip-searches only be conducted on the basis of a concrete suspicion and in an appropriate setting and be carried out in a manner respectful of human dignity.” 74. The CPT gave the following general recommendations to the Polish Government in respect to prisoners classified as “dangerous” (“N” status): “- the Polish authorities to review the regime applied to ‘N’ status prisoners and to develop individual plans aimed at providing appropriate mental and physical stimulation to prisoners (paragraph 91); - the Polish authorities to review current practice with a view to ensuring that ‘N’ status is only applied and maintained in relation to prisoners who genuinely require to be placed in such a category (paragraph 92); - strip-searches to be conducted only on the basis of a concrete suspicion and in an appropriate setting, and to be carried out in a manner respectful of human dignity (paragraph 94). 75. The Polish Government’s response to the CPT report was published on 12 July 2011. 76. In respect of the recommendation that the Polish authorities should revise the regime applied to “N” status prisoners and develop individual plans aimed at providing inmates with appropriate psychological and physical stimulation (paragraph 91), they stated: “Adult[s] ... classified in the category of so-called dangerous offenders have a possibility of selecting a system in which they serve their sentence of imprisonment, i.e. programmed impact or an ordinary system. The above does not apply to sentenced juvenile offenders who are classified as dangerous and who obligatorily serve their sentence in the system of programmed impact. In an ordinary system, a convict may use employment available at the penitentiary institution, as well as education and cultural-educational and sports classes. As far as such convicts are concerned, no plans are made for application of the individual programme of impact. The individual programme of impact is prepared in co-operation with the convict who declared that he wishes to serve his sentence in the system of programmed impact, which anticipates active participation of the convict in the process of re-socialization by means of fulfilment of tasks imposed upon him as part of the programme which are aimed at solving the problems constituting the grounds for the offences he committed. Dangerous convicts qualified in a therapeutic system requiring specialized impact are presented with individual therapeutic programmes preceded by diagnosis, which encompasses: 1) a description of the causes of the event; 2) a description of irregularities in the area of cognitive, emotional and behavioural processes; 3) characteristics of the actual state of their psychological and physical condition; 4) a description of the problem constituting the grounds justifying delegation for the therapeutic system; 5) description of individual problems of the convict; 6) evaluation of motivation to participate in implementation of the individual therapeutic programme; 7) indication of positive features if personality and behaviour of the convict. When developing an individual therapeutic programme, the following should be specified: 1) the scope of the conducted activities; 2) purpose of impact, possible to be undertaken in the conditions of a therapeutic ward or outside such ward, taking into account the properties of the convict; 3) methods of specialized impact; 4) criteria for implementation of an individual therapeutic programme. Convicts qualified in the category of so-called dangerous are subjected to penitentiary impact with limitations deriving from the fact of causing by them of serious social threat or a serious threat to security of the institution. Moreover, they are subjected to impact whose purpose is to, in particular, decrease emotional tensions, as well as limitation of tendencies for aggressive or self-aggressive behaviours. In the individual programme of impact and the individual therapeutic programme conducted for him, methods and measures are specified which are aimed at mental and physical stimulation of the convict. It should also be emphasised that each inmate, including dangerous offender, exhibiting symptoms of worsening of his mental conditions is covered by psychological and psychiatric help. Moreover, dangerous inmates are also covered by intensive psychological supervision for the purpose of elimination of tensions resulting from an increased isolation. The Polish prison system developed rules of organization and conditions of conduct of penitentiary impact against convicts, persons under detention on remand and punished persons who pose serious social danger or serious danger for security of the penitentiary institution or a detention on remand centre, kept in conditions ensuring increased security of the community and the security of the penitentiary institution. Such solutions are aimed at intensification and unification of impact against dangerous inmates, and in particular: - directing the penitentiary work on preventing of negative consequences of limitation of social contacts by organization and initiation of desirable activity as part of cultural-educational and sports activities, re-adaptation programmes; - undertaking measures connected with maintenance of mental hygiene, including the reduction of the level of stress and aggression; - a need of allowing the inmate to commence or continue education (in particular in case of juvenile offenders); - undertaking of employment in the division; - impact based on educational and prophylactic programmes. Recommendations of the Committee concerning development of individual programmes for dangerous convicts have been taken into account and are implemented according to the provisions binding in this regard.” 77. Referring to the recommendation that the Polish authorities should verify their current practice in order to ensure that the “N” status is accorded appropriately and maintained only in respect of prisoners who do, in fact, require to be qualified in such category (paragraph 92), the Government responded: “In the Polish penal law, the basic legal act specifying criteria of qualifying inmates creating serious social danger or serious danger to security of the institution is the [Code of Execution of Criminal Sentences]. The aforementioned inmates are placed in a designated division or cell of a penitentiary institution or an investigation detention centre in conditions ensuring increased protection of the community and the security of the penitentiary unit. An authority authorized to verify a necessity of further stay of the inmate in a designated division or cell is a penitentiary commission. The penitentiary commission is obliged to verify its decisions in this regard at least once every three months. Decisions taken by the penitentiary commission shall be each time notified to the penitentiary judge, and in the event of detention on remand, also to the authority at whose disposal the inmate is. The penitentiary commission performed an inquisitive and, in every case, individual analysis of justification of the request for qualification, as well as verifies a necessity of continued stay of the inmates in delegated division or cell. Moreover, attention should be drawn to the fact that each decision of the authority executing the judgement according to Art. 7 of the [Code of Execution of Criminal Sentences] is subject to an appeal by the inmate. Summing up the above, we can state that such frequent verification of this category of inmates, an analysis of behaviours and a legal situation gives a guarantee of real evaluation of the situation of the inmate and possible benefits deriving from continued application against him of an extended system of protection.” 78. Lastly, in regard to the recommendation that a strip-search should be conducted only on the basis of a concrete suspicion and under appropriate conditions, as well as with respect for human dignity (paragraph 94 of the Report), the Government stated: “The principles and procedures of performing a personal search of the inmate and other persons in penitentiary institutions and investigation detention centres are regulated in the [Code of Execution of Criminal Sentences] and the [Ordinance of the Minister of Justice of 31 October 2003 on means of protection of organisational units of the Prison Service]. According to these provisions, personal check-up consists of examination of the body and checking clothes, underwear and shoes, including any objects in possession of the convict. Inspection of the body and checking-up clothes and shoes is each time performed by officers of the Prison Service in a separate room, in absence of any third parties and persons of a different sex, and is performed by persons of the same sex. The conducted control must, on many occasions have a prevention character, but it is always performed with respect for human dignity, applying the principle of humanitarianism and legality. The control is conducted for the purpose of finding dangerous and forbidden products and preventing an escape or in other justified cases. Departure from these rules would entail a realistic threat to security of the penitentiary unit and inmates kept therein.”

train

001-82782

ENG

DEU

ADMISSIBILITY

BUSSMANN v. GERMANY

Inadmissible

Peer Lorenzen

The applicant, Mr Volker Bussmann, is a German national who was born in 1945 and lives in Frankfurt (Main). He was represented before the Court by Mr K. Petzel, a lawyer practising in Frankfurt (Main). The applicant has a daughter born in 1991. In 1998, he divorced the mother of the child who has obtained the sole right to custody (alleiniges Sorgerecht) and with whom the child is living. In 1998, both parents agreed that the applicant should have access to the child on a weekly basis. The relationship between the parents subsequently deteriorated. In summer 2000, the mother refused the applicant’s access because the child suffered from headaches and bad dreams. In November 2000, the child’s mother filed a claim in order to exclude the applicant’s access rights. On 17 December 2003, the Frankfurt (Main) District Court suspended the applicant’s access rights to his child for a period of two years. The District Court had heard the child in 2002 in the presence of the curator ad litem (Verfahrenspflegerin). After the competent judge at the District Court had changed, it heard the child again in 2003. Moreover, it considered an expert opinion and heard the expert, a psychologist, in person. On this basis, the District Court concluded that the exclusion of the applicant’s access rights was necessary for the child’s welfare pursuant to section 1984 § 4 of the Civil Code (see Relevant domestic law, below). It reasoned that the child, being almost thirteen years old and going through the period of puberty, severely suffered from the fact that her mother was unable to give her the necessary support to deal with the applicant’s visits. The District Court observed that the mother had reacted very agitated during a court hearing because of the applicant’s presence. According to the expert, that situation was emotionally extremely difficult for, and harmful to, the child. The child had testified during the last court hearing that she wanted to decide for herself when to see the applicant, a view that was also confirmed by the curator ad litem. During the visits, the applicant would constantly talk, mostly in a derogatory way about the mother, and seek to manipulate the child’s views, even in the presence of a neutral third person. Because of his age and his lack of understanding, the applicant could not be expected to change his behaviour, as could be seen by the content of a letter which he had sent for the child’s twelfth birthday. Moreover, the applicant had approached the child at school on two occasions which had been very embarrassing for her. The District Court also ordered the mother to ensure that the child would write to the applicant every three months. Considering that the child did not obtain the emotional support from her, the District Court ordered the mother to bring the child to a psychological clinic for juveniles in order to start a therapy with a view to teach the child that affection and sympathy was not inevitably connected with the intrusive and manipulative conduct which the applicant had shown. As results of that therapy could not be expected earlier, it was necessary to exclude the applicant’s access rights for the period of two years. On 8 April 2004, the Frankfurt (Main) Court of Appeal dismissed the applicant’s appeal, granted the mother legal aid and refused to grant legal aid to the applicant because his appeal lacked any prospects of success. The Court of Appeal found that the District Court had rightly excluded the applicant’s access rights for the period of two years, in particular taking into account that during the proceedings the child had clearly stated that she felt hassled and not taken serious by the applicant, that she did not want any further visits (even in the presence of third persons) and that she wanted the applicant to respect her decision. The present proceedings however showed that the applicant was incapable of accepting this. The applicant had paid two uninvited visits to the child’s school which had been very awkward for the child. Moreover, the letter which the applicant had sent to the child showed his negative attitude towards the mother and put the child under massive pressure. The content of the father’s letter indicated that the child’s objections had not been manipulated by the mother. The District Court had rightly found that there was no indication that the applicant would show comprehension and change his behaviour. The applicant did not appear to be aware or interested in the child’s needs. Moreover, the District Court had rightly taken the view that the mother’s behaviour had also not contributed to a normal relationship between the child and the applicant either. At the same time the mother had been willing to accept the help offered by the District Court. Taking into consideration the age of the child, the Court of Appeal considered it best to give the child the opportunity to reflect on her situation without the distress of the applicant’s visits and to decide for herself about any future contacts with the applicant to whom she still had a clearly visible relationship. The Federal Constitutional Court refused to admit the applicant’s constitutional complaint on 22 September 2004. Section 1684 “1. The child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. 2. The parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. ... 3. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties. They may order the parties to fulfil their obligations towards the child. 4. The family courts may restrict or suspend the right of access or the enforcement of previous decisions on access if this is necessary for the child’s welfare. A decision restricting or suspending the right of access or its enforcement for a longer period of time or permanently may only be taken if the child’s well-being were endangered otherwise. The family courts may order in particular that contacts may only take place in the presence of a cooperating third party.”

train

001-72586

ENG

SVK

CHAMBER

CASE OF JAKUB v. SLOVAKIA

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

Nicolas Bratza

4. The applicant was born in 1954 and lives in Humenné. 5. Under a contract of employment of 1991, the applicant was employed with the municipality of Humenné and occupied the position of the head of one of its departments. 6. In December 1994 the new mayor of the municipality cancelled the applicant’s appointment as the head of department and informed him that, due to the lack of other appropriate posts for him, his employment with the municipality would be terminated. The notice of termination was served on the applicant at some point in February 1995. 7. On 11 July 1995 the applicant challenged the cancellation of his appointment and the termination of his employment before the Humenné District Court (Okresný súd). He also claimed compensation in respect of lost wages. 8. On 18 August 1995 the District Court discontinued the proceedings observing that the applicant had not paid the court fee and finding that he was not eligible for an exemption from the obligation to do so. 9. On 28 November 1995, on the applicant’s appeal (odvolanie), the Košice Regional Court (Krajský súd) quashed the decision of 18 August 1995, finding that the applicant’s action fell within the ambit of the exemption under section 4 (2) (d) of the Court Fees’ Act (Law no. 71/1992 Coll., as amended). 10. On 15 March 1996 the District Court ruled that both the cancellation of the applicant’s appointment and the termination of his employment were void. The District Court found that the applicant’s employment had not been established by a deed of appointment (vymenovaním) under Article 27 §§ 4 and 5 of the Labour Code but by an ordinary employment contract (pracovná zmluva) under Article 27 § 2 of that Code. The applicant’s “appointment” thus could not be “cancelled” and the statutory condition for the valid termination of his employment contract had not been met. The District Court further ruled that the applicant’s claim for compensation for lost wages would be dealt with in separate proceedings. 11. On 25 June 1997, on the defendant’s appeal, the Regional Court quashed the judgment of 15 March 1996 and remitted the case to the District Court for reexamination. The Regional Court noted that, at the time of the applicant’s dismissal, the post of his superior - the head of the municipal office - had been vacant. The applicant had thus been directly answerable to the mayor of the municipality. This being so, the applicant’s employment fell within the category of employment by appointment. In the light of these findings, the case had to be reconsidered at first instance. 12. On 29 June 1998 the District Court dismissed the action. It observed that the applicant had been directly answerable to the mayor and that, consequently, the rules for the cancellation of an appointment had applied to him and were complied with. As the municipality had had no possibility of continuing to employ the applicant and all other conditions for the termination of his employment contract had been met, the applicant’s dismissal was lawful. 13. On 17 December 1998, on the applicant’s appeal, the Regional Court upheld the part of the judgment of 29 June 1998 dismissing the applicant’s motion to declare the cancellation of his appointment void. The Regional Court further overturned the part of the District Court’s judgment concerning the termination of the applicant’s contract of employment and ruled that it was void. It was observed that the applicant undoubtedly became the employee of the defendant. There was however no deed of appointment. Declaring the cancellation of the applicant’s appointment void would therefore not reestablish his appointment. The applicant thus could not be considered as having a “pressing legal interest”, within the meaning of Article 80 (c) of the Code of Civil Procedure, in obtaining the declaratory ruling sought in respect of the cancellation of his appointment. The termination of the applicant’s employment with the defendant, as such, could not be justified by the restructuring of the defendant’s office, on which the defendant had relied, as this restructuring had only taken place after the applicant’s dismissal. 14. On 29 November 2000, on the applicant’s appeal on points of law (dovolanie), the Supreme Court (Najvyšší súd) quashed the judgment of 17 December 1998 and remitted the case to the Regional Court for a new determination of the applicant’s appeal against the judgment of 29 June 1998. In particular, the Supreme Court found a flaw in the procedure before the Regional Court requiring the quashing of its judgment. It further found that the Regional Court had failed to examine adequately the factual and legal grounds on which the applicant’s contract of employment had been terminated. 15. On 16 May 2001 the Regional Court held a hearing of the applicant’s appeal against the District Court’s judgment of 29 June 1998, following which it upheld the latter’s judgment. It endorsed the reasoning given by the District Court and, in addition, it observed that, in view of the scope of his duties and his working relationship with the mayor, the applicant had clearly been in a “leading position” to which the rules on employment by appointment had applied. 16. On 28 November 2002 the Supreme Court dismissed the applicant’s appeal on points of law against the judgment of 16 May 2001 as unfounded. It was held that, as for its substance and irrespective of the formal designation of the applicant’s contract, his relation with his former employer was one falling within the category of appointment within the meaning of Article 27 § 5 of the Labour Code. The applicant’s appointment thus could be, and in fact had been, cancelled. As the defendant had no other appropriate posts for the applicant, the termination of his employment was justified and lawful under Article 46 § 1 (d) of the Labour Code. On 10 February 2003 the Supreme Court corrected clerical errors in the decision. No appeal lay against it. 17. Following its decision of 15 March 1996 to deal separately with the applicant’s claim for compensation in respect of lost wages, at some unspecified time in 2001, the District Court opened a new set of proceedings under a different file number for this purpose. 18. On 6 November 2001 the District Court dismissed the claim. Referring to the judgments of 29 June 1998 and 16 May 2001, the District Court took it as established that the applicant’s dismissal was lawful. It thus could not have resulted in the loss of any wages. 19. On 21 May 2003, on the applicant’s appeal, the Regional Court quashed the judgment of 6 November 2001 observing that the District Court had deprived the applicant of an opportunity to assert his rights adequately in that it had determined the claim without having heard him. The matter was remitted to the District Court for re-examination. 20. On 29 September 2003 the District Court again dismissed the applicant’s claim for compensation for lost wages in substance for the same reason as on 6 November 2001. 21. On 13 September 2004, on the applicant’s appeal, the Regional Court quashed the judgment of 29 September 2003 finding that the District Court had failed to decide on the part of the applicant’s claim concerning severance pay. The matter was again remitted to the District Court where it is still pending. 22. On 21 June 2000, on the applicant’s petition (podnet) under Article 130 § 3 of the Constitution, the Constitutional Court (Ústavný súd) found that the District Court had violated the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. It considered that the subject matter of the proceedings was not of particular complexity, that the applicant’s conduct had been cooperative and that what was at stake for him called for special diligence. As to the conduct of the District Court, the Constitutional Court observed in particular that it had failed to open a new set of proceedings or take any procedural steps in respect of the applicant’s claim for compensation for lost wages, as it had announced it would do in its judgment of 15 March 1996. 23. In February 2002 the applicant seized the Constitutional Court anew by a complaint (sťažnosť) under Article 127 of the Constitution, as in force since 1 January 2002, of continuing undue delays in his proceedings. The complaint was formally directed against the District Court. 24. On 19 February 2003 the Constitutional Court declared the complaint inadmissible. It observed that, at the time when the constitutional complaint had been lodged, the District Court had no longer been dealing with the case. By then the case had already been transmitted to the Supreme Court for a determination of the applicant’s appeal on points of law. In these circumstances, an examination of the part of the proceedings before the District Court could no longer serve to expedite them. Thus, in line with its established practice, the Constitutional Court found that it was not called upon to examine the complaint. 25. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 26. Pursuant to Article 130 § 3 of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition presented by any individual or a corporation claiming that their rights had been violated. 27. According to its case-law under the former Article 130 § 3 of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of petitioners’ rights under Article 48 § 2 of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights had been violated (for further details see, e.g., Bánošová v. Slovakia (dec.), no. 38798/97, 27 April 2000). 28. As from 1 January 2002 the Constitution has been amended in that, inter alia, natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 § 2 of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, ECHR 2002-IX). 29. The implementation of the amended Article 127 of the Constitution is set out in more detail in sections 49 to 56 of the Constitutional Court Act (Law no. 38/1993 Coll., as amended). The relevant amendment (Law no. 124/2002 Coll.) was published in the Collection of Laws and entered into force on 20 March 2002. 30. Pursuant to section 24 (a), which applies to all motions for any type of constitutional proceedings to be opened, a motion is inadmissible if it concerns a matter which the Constitutional Court has already determined. 31. Section 53 (3) provides that a constitutional complaint can be filed within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them. 32. Under section 79a (2), which was introduced by the abovementioned amendment no. 124/2002 Coll., and which specifically concerns constitutional complaints by natural and legal persons, the Constitutional Court is to declare inadmissible a complaint if it has already decided on substantially the same matter in proceedings on a complaint or in proceedings on a petition under the applicable legal rules. 33. In proceedings file nos. IV. ÚS 68/02, I. ÚS 64/00 and IV. ÚS 140/03 the Constitutional Court examined the length of civil proceedings before first instance courts on individual complaints under Article 127 of the Constitution, as in force from 1 January 2002. In all 3 cases the Constitutional Court had already examined the length of those proceedings at their first instance stage on petitions under Article 130 § 3 of the Constitution, as in force until 30 June 2001, and had found unjustified delays therein. In judgments (nález) of 6 March, 3 April and 29 October 2003, respectively, the Constitutional Court found continued unjustified delays in the proceedings under review, in their phase after the previous examinations. The Constitutional Court awarded the complainants just satisfaction. In determining the merits of the case and amounts of the just satisfaction, it took into consideration that delays in those proceedings had already been found before. 34. It has been the Constitutional Court’s longstanding practice to entertain constitutional petitions or, as the case may be, complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such petitions or complaints are lodged (see, for example, decisions file nos. I. ÚS 34/99, II. ÚS 55/02, III. ÚS 20/00, I. ÚS 29/02, II. ÚS 55/02, IV. ÚS 96/02, II. ÚS 138/02, ÚS 139/02, I. ÚS 161/02, IV. ÚS 176/03 and many others). 35. In proceedings file number I. ÚS 56/02 the Constitutional Court examined an individual complaint under Article 127 of the Constitution of delays in enforcement proceedings concerning a minor’s claim for maintenance. The enforcement commenced in 1998 in Bratislava IV District Court and, from 2001, continued in Bratislava I District Court where it was still pending. In a judgment (nález) of 14 May 2003 the Constitutional Court found that there had been unjustified delays in the proceedings before both District Courts and awarded the minor complainant just satisfaction in respect of nonpecuniary damage to be paid by both courts. 36. In proceedings file number I. ÚS 145/02 the Constitutional Court examined a complaint by an individual under Article 127 of the Constitution of delays in proceedings in his civil action of 1995. The action was partially granted at first instance in 1999. That judgment was however quashed on appeal in March 2002 and the matter was remitted to the first instance court where it was still pending. In a judgment of 6 June 2003 the Constitutional Court found that there had been unjustified delays in the proceedings before the first instance court and awarded the complainant nonpecuniary damages. The Constitutional Court also examined the phase of the proceedings before the court of appeal but found no unjustified delays. A similar approach was adopted in proceedings nos. I. ÚS 100/02 and III. ÚS 10/03. 37. In proceedings file number III. ÚS 123/02 the Constitutional Court examined a complaint by an individual under Article 127 of the Constitution of delays in proceedings in a civil action against him. The action was lodged in 1993 with a District Court which, shortly after, transferred it to a Regional Court for reasons of jurisdiction. The action was then pending at the Regional Court until 1998 when the Supreme Court ruled that it should be determined at first instance by the District Court. The action was eventually withdrawn and the proceedings were consequently discontinued by a final decision of January 2003. In a judgment of 6 June 2003 the Constitutional Court found that there had been unjustified delays in the proceedings both before the District Court and the Regional Court. The complainant was awarded nonpecuniary damages to be paid by both courts. A similar approach was adopted in proceedings no I. ÚS 52/02. 38. In proceedings file no. IV. ÚS 176/03 the Constitutional Court examined a complaint by an individual under Article 127 of the Constitution of, inter alia, delays in court proceedings concerning her maintenance. The action was originally filed with the Košice II District Court in 1998. The question arose whether the first instance and the second instance court judges were impartial. On 24 May 1999 the Supreme Court decided that the question of impartiality of the judges at the first instance would be determined by the Žilina Regional Court. The latter decided on 28 January 2000 that the action would be examined at first instance by the Michalovce District Court which determined it on 11 December 2002. On 10 September 2003 the Žilina Regional Court upheld the first instance judgment. In her complaint to the Constitutional Court of 28 February 2003 the plaintiff alleged that the ordinary courts had violated her right to a hearing without undue delay. On 9 October 2003 the Constitutional Court declared this complaint inadmissible as being manifestly ill-founded. The decision stated that, in so far as the complaint related to the part of the proceedings leading to the Supreme Court’s decision of 24 May 1999, it had been filed out of time since, at the moment of the introduction of the constitutional complaint, the relevant part of the proceedings had no longer been pending. For similar reason the Constitutional Court rejected the complaint in respect of the subsequent proceedings before the Michalovce District Court which had ended on 11 December 2002. As to the appellate proceedings before the Žilina Regional Court, the Constitutional Court noted that they had lasted less than five months and found that this period was not excessive. Similar approach was adopted for example in proceedings nos. II. ÚS 39/03, IV. ÚS 219/03 and I. ÚS 84/05.

train

001-23651

ENG

POL

ADMISSIBILITY

BELLER v. POLAND

Inadmissible

Nicolas Bratza

The applicant, Mrs Joanna Beller, is a Polish national who was born in 1934 and lives in Warsaw. She was represented before the Court by Mr W. Hermeliński, a lawyer practising in Warsaw. The respondent Government were represented by Mr K. Drzewicki, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s father owned the so-called “Kraków Bishops’ Palace” situated in the centre of Warsaw and a plot of land under it. The Government submitted that 75 to 80 % of the building had been destroyed during the Second World War. By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw (dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw. The decree provided for a possibility to obtain the perpetual lease (after 1946 - temporary ownership) of a plot of land on request. In 1947 the applicant’s father concluded before a public notary an agreement with a certain state institution, according to which that institution was to obtain the right of use of the property upon its declaration to reconstruct the palace. The use was supposed to last 36 years and be followed by a 10-year lease. The Government submitted that the agreement at issue had never been enforced because it was contrary to a number of provisions of law. In 1948 the applicant’s father lodged, in accordance with the 1945 decree, a request to be granted the right of the temporary ownership of the plot of land formerly owned by him. It was refused by a decision issued in 1949, which was served neither on him, nor on his lawyer. In 1951 the applicant’s father died. In 1955 another decision refusing the request was issued and it was not served either. On 14 March 1990 the applicant, as the sole heir to her father’s property (the inheritance proceedings completed in October 1990), filed with the Warsaw Śródmieście Quarter Office (urząd dzielnicowy) a petition in which she requested the restitution of her property. Subsequently, the Social Security Board (Zakład Ubezpieczeń Społecznych), which occupied the property, requested the administrative authorities to grant it the right of management (zarząd) of that property, but to no avail. On 16 September 1991 the applicant was served with the decision of 1955 refusing her father the right of temporary ownership of the land. On 24 September 1991 she lodged with the Warsaw Governor (wojewoda) a request for the annulment of that decision. On 11 October 1991 the Warsaw Regional Prosecutor (prokurator wojewódzki) joined the proceedings, considering that in the light of the gravity of the alleged breaches of the law the participation of the prosecutor was necessary. On 27 July 1992 the applicant lodged with the Supreme Administrative Court (Naczelny Sąd Administracyjny) a complaint about the inactivity of the Governor, who had failed to issue a decision concerning her request. On 11 December 1992 the court rejected the complaint, relying on ratione temporis limits on its jurisdiction. On 24 December 1992 the Minister of Construction (minister gospodarki przestrzennej i budownictwa) quashed the decision of 1955. He found that the impugned decision did not contain any reference to the 1949 decision, whereas they concerned the same matter. The Minister further considered that the reasoning of the decision was not supported by any documents. On 5 October 1993 the Head of the Warsaw District Office (kierownik urzędu rejonowego) refused to grant the applicant the right of perpetual use (użytkowanie wieczyste, which replaced the former temporary ownership) of the land. He relied, inter alia, on the fact that over 70 % of the palace had been destroyed during the Second World War, thus after reconstruction it could be considered as a new building. Therefore, having reconstructed it on its own land, the State became that building’s owner. On 1 March 1994 the Warsaw Governor quashed that decision and discontinued the proceedings, considering that they were pointless, because the request of the applicant’s father had been already refused by the decision of 1949. On 16 October 1995 the Supreme Administrative Court allowed the applicant’s appeal and declared the Governor’s decision null and void as having been issued in flagrant breach of the administrative procedure. It found that the Governor had overlooked the fact that the 1949 decision had probably never been served on the applicant’s father. On 18 March 1996 the Governor quashed the decision of the Head of the District Office issued on 5 October 1993 and remitted the case for re-examination. On 18 July 1997 Warsaw District Office sent a copy of the 1949 decision to the applicant. It informed her that no acknowledgement of receipt of that decision by her father had been found. On 1 August 1997 the applicant requested the annulment of that decision. On 25 August 1997 the Warsaw Governor quashed the 1949 decision and remitted the case for re-examination. On 12 November 1997 the Head of the Warsaw District Office re-examined the request lodged by the applicant’s father in 1948. He granted the applicant the perpetual use of the land and declared that she retained the ownership of the building located there, in accordance with the 1947 agreement. The Head of the District Office found that a project for the future use of the building, prepared by the applicant, complied with the town planning scheme. On 25 February 1998 the Warsaw Regional Prosecutor raised an objection (sprzeciw) to that decision. She mentioned that the clause concerning the ownership of the building made in that decision was only of a declaratory nature, i.e. it confirmed something that had been stipulated already in the 1945 decree. Following that objection the Warsaw Governor instituted ex officio proceedings for the annulment of that decision. On 3 April 1998 the Governor rejected an appeal against the decision of 12 November 1997 lodged by the Social Security Board, considering that the Board had no standing in the proceedings. The Board appealed to the Supreme Administrative Court. On 6 April 1998 the Governor stayed the enforcement proceedings in respect of the decision of 12 November 1997. On 12 April 1999 the Supreme Administrative Court quashed the Governor’s decision of 3 April 1998, pointing out that the Governor, having found that the Social Security Board had no standing in the proceedings, should have issued a decision discontinuing the proceedings. On 31 August 1999 the Regional Prosecutor withdrew her objection and subsequently the proceedings concerning the annulment of the decision of 12 November 1997 were discontinued. However, the proceedings concerning the appeal lodged by the Social Security Board were still pending. On 15 December 1999 the Governor discontinued the appeal proceedings, relying on the Social Security Board’s lack of standing in the proceedings. The Board appealed that decision, submitting that the buildings occupied by it were constructed in such a way that their walls did not run along the boundary between the plots of land underneath and, therefore, the 1997 decision was impossible to enforce. The Board also argued that, being a State-owned entity occupying the property, it should take part in the proceedings in order to ensure the proper representation of the interests of the State and pointed out that it was involved in administrative proceedings relating to its petitions to be granted the right of management of the disputed plot of land and the neighbouring ones. On 7 January 2000 the applicant summoned a representative of the State Treasury to appear before a specified public notary for the purpose of concluding an agreement concerning the grant of perpetual use of the land, but to no avail. On 24 January 2000 the applicant requested the Supreme Administrative Court, before which the Board’s appeal against the decision of 15 December 1999 was pending, to dismiss the Board’s petition to have the enforcement of that decision stayed. In reply, the court informed the applicant that the enforcement was stayed ex lege and there was no need to issue any specific decision in this respect. On 21 November 2000 the Supreme Administrative Court allowed the Social Security Board’s appeal and quashed the decision of 15 December 1999. It noted that in 1984 the Board had been granted the use of a neighbouring plot of land and, on the strength of a law enacted in 1998, became the owner of that plot. The court found that it was necessary to establish whether the plot owned by the Board overlapped the plot covered by the 1997 decision. If so, the Board should be allowed to take part in the proceedings as a party. On 23 July 2001 the Governor quashed the decision of 12 November 1997 and remitted the case for re-examination. He pointed out that in the course of further proceedings the line of the boundary in question should be established and, consequently, it should be decided whether the Board had standing. The applicant appealed that decision to the Supreme Administrative Court, submitting that it was not necessary to remit the case for re-examination and that the Governor could have ruled on the Board’s rights in the proceedings himself on the basis of the material already contained by the case-file. Meanwhile, on 26 November 1999 the President of the Office for the Housing and Urban Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) on the request of the Ministry of Labour instituted proceedings aimed at the annulment of the decision of 25 August 1997 (quashing the above-mentioned 1949 decision). On 19 October 2001 the applicant lodged with the Supreme Administrative Court a complaint about the inactivity of the President of that office. She submitted that despite her two requests to expedite the examination of the case the authority concerned had not taken any action. On 13 December 2001 the President of the Office for the Housing and Urban Development annulled the decision of 25 August 1997. He considered that the Governor had not been competent to issue that decision. On 18 December 2001 the Supreme Administrative Court asked the applicant whether she was pursuing her complaint about inactivity, despite the fact that the authority concerned had given a decision. She withdrew her complaint. On 30 April 2002 the President of the Office for the Housing and Urban Development, after the re-examination of the case requested by the applicant, upheld his own decision of 13 December 2001. The applicant lodged an appeal with the Supreme Administrative Court. The proceedings are still continuing. In 1990 the applicant enquired about the legal status of the disputed property. She received a certificate from a public notary office stating that in the land-and-mortgage register her father was mentioned as the owner of property no. 496. Although in 1983 the State authorities requested that an entry be made in the register declaring that the State Treasury was the owner, the request was not granted, as they failed to submit the 1955 decision refusing the applicant’s father the right to temporary ownership with a clause confirming its legal force. In 1985 the proceedings concerning that request were stayed. Another entry in the register concerned the 1945 decree, following which the State Treasury became the owner of the land. The certificate contains a clause stating that it does not concern the ownership rights to the buildings located on the plot. On 28 January 1991 the public notary office refused the applicant’s request to make an entry replacing the name of her father by her name in the land register. The office pointed out that, as long as the issue of the perpetual use was not decided, it could not make any amendments to the register. Similar information is contained in a certificate issued on 4 April 1996 by the land-and-mortgage register department of the Warsaw District Court (sąd rejonowy). According to the Code of Administrative Procedure cases shall be handled without undue delay and the time of their examination, even if they are complex, shall not exceed two months (Article 35 § 3). Having failed to comply with the time-limit prescribed by the Code, the administrative organ must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Article 37 of that Code provides: “§ 1. A complaint about failure to handle a case within the time-limit set forth in Article 35 or fixed under Article 36 can be lodged with an administrative organ of a higher level. § 2. [That] organ, having found the complaint to be well-founded, shall fix an additional time-limit for the completion of the case ...” Further remedies in respect of inactivity on the part of an administrative organ are provided for by the Law on the Supreme Administrative Court. Under Section 17 of that Law a party to administrative proceedings may lodge with the Supreme Administrative Court a complaint about such inactivity. Section 26 of the Law provides that the Court, having found such a complaint to be well-founded, shall oblige the administrative organ concerned to issue a decision or to perform an activity. Section 31 reads in so far as relevant: “1. In case of establishing that the administrative organ, to ... the inactivity of which the court’s judgment relates, has not ... carried out that judgment, the court can decide to impose a fine on that organ. ... 2. In the instance referred to in § 1 the court can, in addition, rule on the existence or non-existence of a right or obligation, if the nature of the case and its uncontested facts ... make this possible. 3. The court shall apply the provisions of §§ 1 and 2 in case of granting a complaint lodged by an entitled entity, which has previously applied to the organ concerned with a written notice to carry out the court’s judgment. 4. A compensation claim is vested in a person sustaining damage as a result of failure to carry out the court’s judgment ...” Section 34 of the Law on the Supreme Administrative Court sets out the requirement of the exhaustion of available remedies before lodging a complaint with that court. Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the above-mentioned Article 37 of the Code of Administrative Procedure. In its case-law the Supreme Administrative Court has stated that that requirement does not apply to complaints concerning the inactivity of administrative organs of the highest level, such as the President of the Office for the Housing and Urban Development (see the Supreme Administrative Court’s judgment of 29 August 2000, no. I SAB 52/00). According to the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) the ownership of all land was transferred to the municipality. The decree provided in so far as relevant: “Article 5. Buildings and other objects located on the land being transferred to the municipality’s ownership remain the property of those who have owned them so far, unless specific provisions provide otherwise. Article 7. (1) The owner of a plot of land (...) can within 6 months after the taking of possession of the land by the municipality file a request to be granted (...) the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ... (2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania). ... (4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, the perpetual lease of land of equal value to use, on the same conditions, or the right to construct on such land. (5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to article 9. Article 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land become the property of the municipality, which is obliged to pay, pursuant to article 9, compensation for the buildings which are fit to be used or renovated. Article 9. ... (2) The right to compensation begins to apply 6 months after the day of taking the land into possession by the municipality of Warsaw and expires 3 years after that date. ...” According to article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa). Section 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste). The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right on land owned by the State or local self-government. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. A person entitled to the right can dispose of it. In 1997 there was enacted the Law on Transforming Perpetual Use Vested in Individuals into Ownership (ustawa o przekształceniu prawa użytkowania wieczystego przysługującego osobom fizycznym w prawo własności). The law guarantees individuals who acquired perpetual use of property before 31 October 1998 the right to have that right transformed into ownership. Article 6 § 1 (6) of that law provides that individuals who acquired the right to perpetual lease under article 7 of the 1945 decree are entitled to such transformation free of charge, regardless of when they acquired their right to a perpetual lease. Requests for the transformation could be submitted until the end of 2002.

train

001-57626

ENG

FRA

CHAMBER

CASE OF KRUSLIN v. FRANCE

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

8. Mr Jean Kruslin, who is unemployed and has no fixed abode, is currently in custody at Fresnes (Val-de-Marne). 9. On 8 and 14 June 1982 an investigating judge at Saint-Gaudens (Haute-Garonne), who was inquiring into the murder of a banker, Mr Jean Baron, at Montréjeau on the night of 7-8 June ("the Baron case"), issued two warrants to the commanding officer of the investigation section of the Toulouse gendarmerie. In the second of these the officer was instructed to tap the telephone of a suspect, Mr Dominique Terrieux, who lived in Toulouse. From 15 to 17 June the gendarmes intercepted seventeen telephone calls in all. The applicant, who was staying with Mr Terrieux at the time and occasionally used his telephone, had been a party to several of the telephone conversations and more especially to one between 9 p.m. and 11 p.m. on 17 June with someone calling him from a public telephone-box in Perpignan (Pyrénées-Orientales). During their short conversation the two men had spoken in veiled terms about a different case from the Baron case, concerning in particular the murder on 29 May 1982 of Mr Henri Père, an employee of the Gerbe d’Or jewellers in Toulouse ("the Gerbe d’Or case"). The gendarmes reported this the next day to colleagues from the criminal-investigation branch of the police. On 11 June 1982 an investigating judge in Toulouse had issued a warrant to these officers to investigate that case, and they now immediately listened to the recording of the telephone conversation in question, had it transcribed and appended the text to a report drawn up at midnight on 18 June; the original tape remained, sealed, with the gendarmerie. 10. At dawn on 18 June the gendarmes arrested Mr Kruslin at Mr Terrieux’s home and held him in custody in connection with the Baron case. Early that afternoon he was questioned about the Gerbe d’Or case by the police (who had already questioned him on 15 June and then released him after about four hours) and - the next day, it seems - he was charged together with Mr Terrieux and one Patrick Antoine with murder, aggravated theft and attempted aggravated theft. On 25 October 1982 the Toulouse investigating judge held a confrontation of the three men, during which after the seals had been broken in their presence - the aforementioned taperecording was heard in its entirety, including the conversation on the evening of 17 June. Mr Kruslin adopted the same attitude as when questioned by the police on 18 June: he protested his innocence and denied - in respect of this conversation but not of the others - that the voice was his. Mr Terrieux now said that he did not recognise the voice, whereas he had identified it earlier. The tape was resealed, again in the presence of the persons charged. The applicant refused to sign either the report or the form recording the sealing. He subsequently applied for an examination by experts, and the investigating judge granted the application in an order of 10 February 1983. In their report of 8 June 1983, however, the three experts who were appointed felt able to state "with 80% certainty" that the voice they had analysed was indeed Mr Kruslin’s. 11. Before the Indictment Division (chambre d’accusation) of the Toulouse Court of Appeal, to which the case was sent after the judicial investigation was completed, the applicant requested that the recording of the disputed conversation should be ruled inadmissible in evidence because it had been made in connection with proceedings which, he claimed, did not concern him - the Baron case. On 16 April 1985 the Indictment Division dismissed this plea in the following terms: "... while this telephone tapping was ordered by the investigating judge at the Saint-Gaudens tribunal de grande instance in connection with other proceedings, the fact remains that judges are not prohibited by either Article 11 [which lays down the principle that judicial investigations shall be confidential] or Articles R.155 and R.156 of the Code of Criminal Procedure from deciding to include in criminal proceedings evidence from other proceedings which may assist them and help to establish the truth, on the sole condition - which was satisfied in the instant case - that such evidence is added under an adversarial procedure and that it has been submitted to the parties for them to comment on ..." In so doing, the Indictment Division, it appears, took as its inspiration - and extended by analogy to the field of telephone tapping the settled case-law of the Criminal Division of the Court of Cassation, developed in respect of other investigative measures (see, for example, 11 March 1964, Bulletin (Bull.) no. 86; 13 January 1970, Bull. no. 21; 19 December 1973, Bull. no. 480; 26 May and 30 November 1976, Bull. nos. 186 and 345; 16 March and 2 October 1981, Bull. nos. 91 and 256). In the same decision the Indictment Division committed Mr Kruslin - with four others, including Mr Terrieux and Mr Antoine - for trial at the Haute-Garonne Assize Court on charges, in his case, of aiding and abetting a murder, aggravated theft and attempted aggravated theft. 12. The applicant appealed to the Court of Cassation on points of law. In the second of his five grounds of appeal he relied on Article 8 (art. 8) of the Convention. He criticised the Indictment Division of the Toulouse Court of Appeal for having "refused to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible; whereas interference by the public authorities with a person’s private and family life, home and correspondence is not necessary in a democratic society for the prevention of crime unless it is in accordance with a law that satisfies the following two requirements: it must be of a quality such that it is sufficiently clear in its terms to give citizens an adequate indication of the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence, and it must define the scope and manner of exercise of such a power clearly enough to give the individual adequate protection from arbitrary interference; these requirements are not satisfied by any provision of French law, and particularly not by Article 81 of the Code of Criminal Procedure". In his supplementary pleadings of 11 June 1985 (pp. 5-8) counsel for Mr Kruslin relied on the case-law of the European Court of Human Rights, both in regard to telephone tapping (Klass and Others judgment of 6 September 1978 and Malone judgment of 2 August 1984, Series A nos. 28 and 82) and in other respects (Golder judgment of 21 February 1975, Sunday Times judgment of 26 April 1979 and Silver and Others judgment of 25 March 1983, Series A nos. 18, 30 and 61). The Criminal Division of the Court of Cassation dismissed the appeal in a judgment of 23 July 1985. As regards the point in question it gave the following reasons for its decision: "... An examination of the evidence shows that the transcript of a tape recording of conversations in calls made on Terrieux’s telephone line was included in the file of the murder investigation then being conducted by the Toulouse investigating judge following the death of Henri Père at the hands of a person or persons unknown; this recording had been made pursuant to a warrant issued by the investigating judge at Saint-Gaudens in connection with the investigation of another murder, likewise committed by a person or persons unknown; it was because of its relevance to the investigation into Père’s death that the transcription was made by senior police officers acting under a warrant issued by the investigating judge in Toulouse; The tenor of the conversations recorded was made known to the various persons concerned, notably Kruslin, who was asked to account for them both during the inquiries made pursuant to the investigating judge’s warrant and after he was charged; furthermore, an examination of the tape recording by an expert, whose report was subsequently added to the evidence, was made pursuant to a lawful decision by the investigating judge; That being so, the Indictment Division did not lay itself open to the objection raised in the ground of appeal by refusing to rule that the evidence from telephone tapping in connection with other proceedings was inadmissible; In the first place, there is no statutory provision prohibiting the inclusion in criminal proceedings of evidence from other proceedings which may assist the judges and help to establish the truth; the sole condition is that such evidence should be added under an adversarial procedure - which was so in this case, in which the documents were submitted to the parties for them to comment on; In the second place, it is clear from Articles 81 and 151 of the Code of Criminal Procedure and from the general principles of criminal procedure that, among other things, firstly, telephone tapping may be ordered by an investigating judge, by means of a warrant, only where there is a presumption that a specific offence has been committed which has given rise to the investigation which the judge has been assigned to undertake, and that it cannot be directed, on the off chance, against a whole category of offences; and, secondly, that the interception ordered must be carried out under the supervision of the investigating judge, without any subterfuge or ruse being employed and in such a way that the exercise of the rights of the defence cannot be jeopardised; These provisions governing the use of telephone tapping by an investigating judge, which have not been shown to have been infringed in the instant case, satisfy the requirements of Article 8 (art. 8) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; ..." (Bull. no. 275, pp. 713-715) 13. It appears from the file that the recording of the telephone conversation of 17 June 1982 was a decisive piece of evidence in the proceedings against the applicant. These proceedings ended, on 28 November 1986, with a judgment of the Haute-Garonne Assize Court. Mr Kruslin was acquitted of murder but sentenced to fifteen years’ imprisonment for armed robbery and attempted armed robbery; an appeal by him to the Court of Cassation was dismissed on 28 October 1987. He seems always to have protested his innocence. 14. In the Baron case the Indictment Division of the Toulouse Court of Appeal likewise committed the applicant, on 2 June 1987, for trial at the Haute-Garonne Assizes, together with Mr Antoine and one Charles Croce. At that trial too he alleged that the telephone tapping carried out from 15 to 17 June 1982 was inadmissible; on 4 November 1987 the Criminal Division of the Court of Cassation dismissed this plea on grounds identical, mutatis mutandis, to those in its judgment of 23 July 1985 previously cited (see paragraph 12 above - Recueil Dalloz Sirey (DS) 1988, sommaires, p. 195). On 2 December 1988 the Assize Court sentenced the applicant to life imprisonment for premeditated murder; he lodged an appeal on points of law, but this was dismissed by the Criminal Division of the Court of Cassation on 6 November 1989. The complaints he made to the Commission, however, related solely to the telephone tapping whose results were used in the Gerbe d’Or case. 15. French criminal law adopts the principle that any kind of evidence is admissible: "unless otherwise provided by statute, any type of evidence shall be admissible to substantiate a criminal charge ..." (Article 427 of the Code of Criminal Procedure). There is no statutory provision which expressly empowers investigating judges to carry out or order telephone tapping, or indeed to carry out or order various measures which are nonetheless in common use, such as the taking of photographs or fingerprints, shadowing, surveillance, requisitions, confrontations of witnesses and reconstructions of crimes. On the other hand, the Code of Criminal Procedure does expressly confer power on them to take several other measures, which it regulates in detail, such as pre-trial detention, seizure of property and searches. 16. Under the old Code of Criminal Procedure the Court of Cassation had condemned the use of telephone tapping by investigating judges, at least in circumstances which it regarded as disclosing, on the part of a judge or the police, a lack of "fairness" incompatible with the rules of criminal procedure and the safeguards essential to the rights of the defence (combined divisions, 31 January 1888, ministère public c. Vigneau, Dalloz 1888, jurisprudence, pp. 73-74; Criminal Division, 12 June 1952, Imbert, Bull. no. 153, pp. 258-260; Civil Division, second section, 18 March 1955, époux Jolivot c. époux Lubrano et autres, DS 1955, jurisprudence, pp. 573-574, and Gazette du Palais (GP) 1955, jurisprudence, p. 249). Some trial courts and courts of appeal which had to deal with the issue, on the other hand, showed some willingness to hold that such telephone tapping was lawful if there had been neither "entrapment" nor "provocation"; this view was based on Article 90 of the former Code (Seine Criminal Court, Tenth Division, 13 February 1957, ministère public contre X, GP 1957, jurisprudence, pp. 309-310). 17. Since the 1958 Code of Criminal Procedure came into force, the courts have had regard in this respect to, among others, Articles 81, 151 and 152, which provide: "The investigating judge shall, in accordance with the law, take all the investigative measures which he deems useful for establishing the truth. ... If the investigating judge is unable to take all the investigative measures himself, he may issue warrants to senior police officers (officiers de police judiciaire) in order to have them carry out all the necessary investigative measures on the conditions and subject to the reservations provided for in Articles 151 and 152. The investigating judge must verify the information thus gathered. ..." "An investigating judge may issue a warrant requiring any judge of his court, any district-court judge within the territorial jurisdiction of that court, any senior police officer (officier de police judiciaire) with authority in that jurisdiction or any investigating judge to undertake any investigative measures he considers necessary in places coming under their respective jurisdictions. The warrant shall indicate the nature of the offence to which the proceedings relate. It shall be dated and signed by the issuing judge and shall bear his seal. It may only order investigative measures directly connected with the prosecution of the offence to which the proceedings relate. ..." "The judges or senior police officers instructed to act shall exercise, within the limits of the warrant, all the powers of the investigating judge. ..." 18. An Act of 17 July 1970 added to the Civil Code an Article 9 guaranteeing to everyone "the right to respect for his private life". It also added to the Criminal Code an Article 368, whereby: "Anyone who wilfully intrudes on the privacy of others: 1. By listening to, recording or transmitting by means of any device, words spoken by a person in a private place, without that person’s consent; 2. ... shall be liable to imprisonment for not less than two months and not more than one year and a fine ... or to only one of these two penalties." During the preparatory work, one of the vice-chairmen of the National Assembly’s Statutes Committee, Mr Zimmermann, sought "certain assurances" that this enactment "[would] not prevent the investigating judge from issuing strictly within the provisions of the law warrants to have telephones tapped, obviously without making use of any form of inducement and in compliance with all the legal procedures" (Journal officiel, National Assembly, 1970 proceedings, p. 2074). The Minister of Justice, Mr René Pleven, replied: "... there is no question of interfering with the powers of investigating judges, who are indeed empowered, in the circumstances laid down by law, to order tapping"; he added a little later: "When an official taps a telephone, he can only do so lawfully if he has a warrant from a judicial authority or is acting on the instructions of a minister" (ibid., p. 2075). Both Houses of Parliament thereupon passed the Bill without amending it on this point. 19. Article 41 of the Post and Telecommunications Code provides that any public servant or anyone authorised to assist with the performance of relevant official duties who breaches the secrecy of correspondence entrusted to the telecommunications service shall be liable to the penalties provided for in Article 187 of the Criminal Code - a fine, imprisonment and temporary disqualification from any public office or employment. Article 42 provides that anyone who, without permission from the sender or the addressee, divulges, publishes or uses the content of correspondence transmitted over the air or by telephone shall be liable to the penalties provided for in Article 378 of the Criminal Code (on professional confidentiality) - a fine or imprisonment. General Instruction no. 500-78 on the telephone service - intended for Post and Telecommunications Authority officials - contains the following provisions, however, given here in the amended version of 1964 (Article 24 of Part III): "Postmasters and sub-postmasters are required to comply with any requests that ... calls to or from a specified telephone should be monitored by the relevant authority, made by: 1. An investigating judge (Articles 81, 92 and 94 of the Code of Criminal Procedure) or any judge or senior police officer (officier de police judiciaire) to whom a judicial warrant has been issued (Art. 152); ..." The General Instruction was published in the official bulletin of the Ministry of Post and Telecommunications and was described by the Government as an "implementing regulation". 20. The striking development of various forms of serious crime - large-scale thefts and robberies, terrorism, drug-trafficking - appears in France to have led to a marked increase in the frequency with which investigating judges resort to telephone tapping. The courts have as a result given many more decisions on the subject than formerly; telephone tapping has not been held to be unlawful in itself, although the courts have occasionally shown some distaste for it (Paris Court of Appeal, Ninth Criminal Division, 28 March 1960, Cany et Rozenbaum, GP 1960, jurisprudence, pp. 253-254). The decisions cited to the Court by the Government, the Commission and the applicant, or of which the Court has had cognisance by its own means, are mostly of later date than the facts of the instant case (June 1982) and have gradually provided a number of clarifications. These do not all stem from judgments of the Court of Cassation, and do not for the time being constitute a uniform body of case-law, because the decisions or reasons given in some of the cases have remained unique. They may be summarised as follows. (a) Articles 81 and 151 of the Code of Criminal Procedure (see paragraph 17 above) empower investigating judges - and them alone, as far as judicial investigations are concerned - to carry out telephone tapping or, much more commonly in practice, to issue a warrant to that effect to a senior police officer (officier de police judiciaire) within the meaning of Article 16 (see, in particular, Court of Cassation, Criminal Division, 9 October 1980, Tournet, Bull. no. 255, pp. 662-664; 24 April 1984, Peureux, Huvig et autre, DS 1986, jurisprudence, pp. 125-128; 23 July 1985 - see paragraph 12 above; 4 November 1987 - see paragraph 14 above; 15 February 1988, Schroeder, and 15 March 1988, Arfi, Bull. no. 128, pp. 327-335). Telephone tapping is an "investigative measure" which may sometimes be "useful for establishing the truth". It is comparable to the seizure of letters or telegrams (see, among other authorities, Poitiers Court of Appeal, Criminal Division, 7 January 1960, Manchet, Juris-Classeur périodique (JCP) 1960, jurisprudence, no. 11599, and Paris Court of Appeal, Indictment Division, 27 June 1984, F. et autre, DS 1985, jurisprudence, pp. 93-96) and it similarly does not offend the provisions of Article 368 of the Criminal Code, having regard to the legislative history and to the principle that any kind of evidence is admissible (see paragraphs 15 and 18 above and Strasbourg tribunal de grande instance, 15 February 1983, S. et autres, unreported; Colmar Court of Appeal, 9 March 1984, Chalvignac et autre, unreported but cited by the Government at the Commission hearing on 6 May 1988; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited and judgment of 31 October 1984, Li Siu Lung et autres, GP 1985, sommaires, pp. 94-95). (b) The investigating judge can only issue such a warrant "where there is a presumption that a specific offence has been committed which has given rise to the investigation" which he is responsible for conducting and not in respect of a whole category of offences "on the off chance"; this is clear not only from Articles 81 and 151 (second and third paragraphs) of the Code of Criminal Procedure but also "from the general principles of criminal procedure" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 23 July 1985, 4 November 1987 and 15 March 1988 previously cited). The French courts do not seem ever to have held that telephone tapping is lawful only where the offences being investigated are of some seriousness or if the investigating judge has specified a maximum duration for it. (c) "Within the limits of the warrant" that has been issued to him - if need be by fax (Limoges Court of Appeal, Criminal Division, 18 November 1988, Lecesne et autres, DS 1989, sommaires, p. 394) - the senior police officer exercises "all the powers of the investigating judge" (Article 152 of the Code of Criminal Procedure). He exercises these under the supervision of the investigating judge, who by the fifth paragraph of Article 81 is bound to "verify the information ... gathered" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987 and 15 March 1988 previously cited). The warrant apparently sometimes takes the form of a general delegation of powers, including - without its being expressly mentioned - the power to tap telephones (Court of Cassation, Civil Division, second section, judgment of 18 March 1955 previously cited, and Paris Court of Appeal, judgment of 28 March 1960 previously cited). (d) In no case may a police officer tap telephones on his own initiative without a warrant, for example during the preliminary investigation preceding the opening of the judicial investigation (see, among other authorities, Court of Cassation, Criminal Division, 13 June 1989, Derrien, and 19 June 1989, Grayo, Bull. no. 254, pp. 635-637, and no. 261, pp. 648-651; full court, 24 November 1989, Derrien, DS 1990, p. 34, and JCP 1990, jurisprudence, no. 21418, with the submissions of Mr Advocate-General Emile Robert). (e) Telephone tapping must not be accompanied by "any subterfuge or ruse" (see, among other authorities, Court of Cassation, Criminal Division, judgment of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988 and 15 March 1988 previously cited) failing which the information gathered by means of it must be either deleted or removed from the case file (Court of Cassation, Criminal Division, judgments of 13 and 19 June 1989 previously cited). (f) The telephone tapping must also be carried out "in such a way that the exercise of the rights of the defence cannot be jeopardised" (see, among other authorities, Court of Cassation, Criminal Division, judgments of 9 October 1980, 24 April 1984, 23 July 1985, 4 November 1987, 15 February 1988, 15 March 1988 and 19 June 1989 previously cited). In particular, the confidentiality of the relations between suspect or person accused and lawyer must be respected, as must, more generally, a lawyer’s duty of professional confidentiality, at least when he is not acting in any other capacity (Aix-en-Provence Court of Appeal, Indictment Division, 16 June 1982 and 2 February 1983, Sadji Hamou et autres, GP 1982, jurisprudence, pp. 645-649, and GP 1983, jurisprudence, pp. 313-315; Paris Court of Appeal, Indictment Division, judgment of 27 June 1984 previously cited). (g) With this reservation, it is permissible to tap telephone calls to or from a charged person (Court of Cassation, Criminal Division, judgments of 9 October 1980 and 24 April 1984 previously cited) or a mere suspect, such as Mr Terrieux in the instant case (see paragraph 9 above and also the previously cited judgments of the Strasbourg tribunal de grande instance, 15 February 1983, the Colmar Court of Appeal, 9 March 1984, and the Indictment Division of the Paris Court of Appeal, 27 June 1984) or even a third party, such as a witness, whom there is reason to believe to be in possession of information about the perpetrators or circumstances of the offence (see, among other authorities, Aix-en-Provence Court of Appeal, judgment of 16 June 1982 previously cited). (h) A public telephone-box may be tapped (Seine Criminal Court, Tenth Division, 30 October 1964, Trésor public et Société de courses c. L. et autres, DS 1965, jurisprudence, pp. 423-424) just like a private line, irrespective of whether current is diverted to a listening station (Court of Cassation, Criminal Division, 13 June 1989, and full court, 24 November 1989, previously cited). (i) The senior police officer supervises the tape or cassette recording of the conversations and their transcription, where he does not carry out these operations himself; when it comes to choosing extracts to submit "for examination by the court", it is for him to determine "what words may render the speaker liable to criminal proceedings". He performs these duties "on his own responsibility and under the supervision of the investigating judge" (Strasbourg tribunal de grande instance, judgment of 15 February 1983 previously cited, upheld by the Colmar Court of Appeal on 9 March 1984; Paris Court of Appeal, judgment of 27 June 1984 previously cited). (j) The original tapes - which in the instant case were sealed (see paragraphs 8-9 above) - are "exhibits", not "investigation documents", but have only the weight of circumstantial evidence; their contents are transcribed in reports in order to give them a physical form so that they can be inspected (Court of Cassation, Criminal Division, 28 April 1987, Allieis, Bull. no. 173, pp. 462-467). (k) If transcription raises a problem of translation into French, Articles 156 et seq. of the Code of Criminal Procedure, which deal with expert opinions, do not apply to the appointment and work of the translator (Court of Cassation, Criminal Division, 6 September 1988, Fekari, Bull. no. 317, pp. 861-862 (extracts), and 18 December 1989, M. et autres, not yet reported). (l) There is no statutory provision prohibiting the inclusion in the file on a criminal case of evidence from other proceedings, such as tapes and reports containing transcriptions, if they may "assist the judges and help to establish the truth", provided that such evidence is added under an adversarial procedure (Toulouse Court of Appeal, Indictment Division, 16 April 1985 - see paragraph 11 above; Court of Cassation, Criminal Division, 23 July 1985 - see paragraph 12 above - and 6 September 1988 previously cited). (m) The defence must be able to inspect the reports containing transcriptions, to hear the original tape recordings, to challenge their authenticity during the judicial investigation and subsequent trial and to apply for any necessary investigative measures - such as an expert opinion, as in the instant case (see paragraph 10 in fine) - relating to their contents and the circumstances in which they were made (see, among other authorities, Court of Cassation, Criminal Division, 23 July 1985 - see paragraph 12 above; 16 July 1986, Illouz, unreported; and 28 April 1987, Allieis, previously cited). (n) Just as the investigating judge supervises the senior police officer, he is himself supervised by the Indictment Division, to which he - exactly like the public prosecutor - may apply under Article 171 of the Code of Criminal Procedure. Trial courts, courts of appeal and the Court of Cassation may have to deal with objections or grounds of appeal as the case may be - particularly by defendants but also, on occasion, by the prosecution (Court of Cassation, judgments of 19 June and 24 November 1989 previously cited) - based on a failure to comply with the requirements summarised above or with other rules which the parties concerned claim are applicable. A failure of this kind, however, would not automatically nullify the proceedings such that a court of appeal could be held to have erred if it had not dealt with them of its own motion; they affect only defence rights (Court of Cassation, Criminal Division, 11 December 1989, Takrouni, not yet reported). 21. Since at least 1981, parties have increasingly often relied on Article 8 (art. 8) of the Convention - and, much less frequently, on Article 6 (art. 6) (Court of Cassation, Criminal Division, 23 April 1981, Pellegrin et autres, Bull. no. 117, pp. 328-335, and 21 November 1988, S. et autres) - in support of their complaints about telephone tapping; they have sometimes as in the instant case (see paragraph 12 above) - cited the case-law of the European Court of Human Rights. Hitherto only telephone tapping carried out without a warrant, during the police investigation (see, among other authorities, Court of Cassation, judgments of 13 June and 24 November 1989 previously cited), or in unexplained circumstances (see, among other authorities, Court of Cassation, judgment of 19 June 1989 previously cited) or in violation of defence rights (Paris Court of Appeal, Indictment Division, judgment of 31 October 1984, previously cited) has been held by the French courts to be contrary to Article 8 § 2 (art. 8-2) ("in accordance with the law") or to domestic law in the strict sense. In all other cases the courts have either found no violation (Court of Cassation, Criminal Division, judgments of 24 April 1984, 23 July 1985, 16 July 1986, 28 April 1987, 4 November 1987, 15 February 1988, 15 March 1988, 6 September 1988 and 18 December 1989 previously cited, and 16 November 1988, S. et autre, unreported, and the judgments of 15 February 1983 (Strasbourg), 9 March 1984 (Colmar) and 27 June 1984 (Paris) previously cited) or else ruled the plea inadmissible for various reasons (Court of Cassation, Criminal Division, judgments of 23 April 1981, 21 November 1988 and 11 December 1989 previously cited and the unreported judgments of 24 May 1983, S. et autres; 23 May 1985, Y. H. W.; 17 February 1986, H.; 4 November 1986, J.; and 5 February 1990, B. et autres). 22. While academic opinion is divided as to the compatibility of telephone tapping as carried out in France - on the orders of investigating judges or others - with the national and international legal rules in force in the country, there seems to be unanimous agreement that it is desirable and even necessary for Parliament to try to solve the problem by following the example set by many foreign States (see in particular Gaëtan di Marino, comments on the Tournet judgment of 9 October 1980 (Court of Cassation), JCP 1981, jurisprudence, no. 19578; Albert Chavanne, ‘Les résultats de l’audio-surveillance comme preuve pénale’, Revue internationale de droit comparé, 1986, pp. 752-753 and 755; Gérard Cohen-Jonathan, ‘Les écoutes téléphoniques’, Studies in honour of Gérard J. Wiarda, 1988, p. 104; Jean Pradel, ‘Écoutes téléphoniques et Convention européenne des Droits de l’Homme’, DS 1990, chronique, pp. 17-20). In July 1981 the Government set up a study group chaired by Mr Robert Schmelck, who was then President of the Court of Cassation, and consisting of senators and MPs of various political persuasions, judges, university professors, senior civil servants, judges and a barrister. The group submitted a report on 25 June 1982, but this has remained confidential and has not yet led to a bill being tabled.

train

001-23669

ENG

GBR

ADMISSIBILITY

ASHWORTH AND OTHERS v. THE UNITED KINGDOM

Inadmissible

Matti Pellonpää;Nicolas Bratza

The applicants are British citizens, born in 1924, 1932, 1925, 1955 and 1945 respectively. They live near Denham aerodrome, Buckinghamshire. They were represented before the Court by Mr Richard Buxton, a lawyer practising in Cambridge, England. The Government were represented by their agent, Mr Huw Llewellyn, of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. Denham aerodrome is a privately owned and operated aerodrome, most of which lies within the London Control Zone. 110 full-time and 45 part-time employees, of various companies, work there. Current activity at Denham comprises flights by fixed wing aircraft and helicopters, maintenance and testing, pilot training and aerobatics. The most common aircraft are the Piper 23 and Cessna 152, which are four-seater light propeller aircraft with fixed undercarriages. The most common helicopters are Robinson 22s. An Air Traffic Zone (ATZ) is set aside exclusively for the safe operation of aircraft using the aerodrome. It extends for a radius of 2 nautical miles around the aerodrome, and it is only within the ATZ that the aerodrome operator has supervision of the airspace and the aircraft within it. Pilots must advise the aerodrome of their entry into the ATZ. Because of its proximity to Northolt and Heathrow airports, the circuit height at Denham is limited to 750 feet. The aerodrome currently has two runways, a 779m asphalt runway which runs north-east/south-west, and a 564m grass runway which runs north-west/south-east. Helicopters have used the aerodrome since 1955. Most (some 95%) of the large helicopter activities are commercial, and include training, maintenance and testing. Aircraft flights are divided roughly equally between commercial and leisure purposes; many flights in each category involve pilot training, with basic training most often carried out in fine weather. Aerobatic flying takes place on average once a fortnight during the summer. On 13 June 1996, the applicants’ lawyer wrote to the Secretary of State for Aviation and Shipping on behalf of the Denham Airfield Environment Federation (“DAEF”), an association with about 1,000 members. The lawyer formally requested that the Minister should exercise the powers given to him under Section 5 of the Civil Aviation Act 1982 (“the 1982 Act”) to specify Denham Aerodrome for the purposes of that section, and then have the Civil Aviation Authority re-licence the airfield taking into consideration the need to minimise so far as reasonably practicable any adverse effects on the environment and disturbance to the public. On 7 August 1997, Mr Grindrod of the Aviation Environmental Division of the Department of Environment, Transport and the Regions (“DETR”) replied to the lawyer that he was not satisfied that specification or designation of Denham Aerodrome under either Section 5 or Section 80 (for the purposes of Section 78) of the 1982 Act would be appropriate. He indicated that in reaching this view he had taken into account the aerodrome’s procedures for noise mitigation including their implementation, and he indicated that the aerodrome had also been visited by officers from the Aviation Environmental Division of the DETR. Mr Grindrod further stated that he was not persuaded that there was significant or serious weakness in the environmental policies of the aerodrome or in their implementation. He concluded that the disturbance from aircraft at the aerodrome was not such as to justify specification under Section 5 of the 1982 Act. Mr Grindrod indicated that designation of Denham aerodrome under Section 80 of the 1982 Act for the purposes of Section 78 would not accord with Ministers’ general policy that noise issues should so far as possible be resolved at local level. He stated that, given that he had seen no evidence to persuade him that Denham aerodrome was not being managed in an environmentally responsible manner, he did not consider that there was evidence of particular circumstances at Denham such as would justify the Secretary of State intervening to stipulate noise mitigation measures there as an exception to this general policy. Mr and Mrs Ashworth: Mr and Mrs Ashworth moved to the current address in Denham, Buckinghamshire, in 1970. Mr Ashworth died on 4 March 2003. The Ashworths’ house is approximately 115 metres from the airfield perimeter fence, and the end of their garden is approximately 53 metres from the airfield. The part of the airfield which is closest to the Ashworths’ property was, until 1997, the area where most of the airfield-based helicopter activity, and all of the helicopter testing, including compass testing, took place. Compass testing involves a helicopter hovering a few feet above the ground for 20 to 30 minutes. It was not unusual for a single helicopter to be operating continuously within the area of the airfield closest to the Ashworths’ property for up to an hour. Occasionally, more than one helicopter is involved simultaneously. Mr and Mrs Ashworth found that the noise generated by the operation of the airfield at Denham was not merely intrusive, but after a short time became absolutely intolerable. The applicants have submitted a report which includes the result of tests carried out by CST Environmental and Acoustic Consultants in which they recorded the noise levels in the garden of the Ashworths’ house from 16 to 22 October 1996. The report indicates that mid-morning background noise levels without aviation activity are between 41 to 43 dB(A), which is a level typically found in a semi-rural location such as the area in which the property is located. It notes that it is generally accepted that noise excursions which give an LAeq reading of 10dB(A) or more above background may generate justifiable complaints, and states that this situation was frequently recorded at the Ashworths’ house. Further, the report states that individual LA max. levels generated by both fixed-wing and helicopter aircraft were unexpectedly high, with typical LA max. values of 64 to 67 dB(A) for aircraft and helicopters were recorded, with some excursions in excess of 75 dB(A). Finally, the report indicates that the audio recording revealed that helicopter activities lasted for several minutes at a time, compared with fixed-wing flights which usually passed overhead in under one minute. The applicants contend that the level of noise in the summer is much greater than that recorded in October 1996, which is the end of the season. Nevertheless, they contend that the results of the tests indicate that the level of noise experienced by the Ashworths is such as to amount to a nuisance, and that it is only by virtue of the operation of the relevant legislation, and in particular Section 76(1) of the 1982 Act, that it is not actionable. It is estimated that the value of the Ashworths’ property has been reduced by about a third as a result of the existence of the airfield and activity at current levels. Mr Vogel: Mr Vogel lives in Gerrards Cross, Buckinghamshire. He has lived at his present address since 1960. He lives with his wife. Mr Vogel’s property is 3 km from Denham Aerodrome. He estimates that on average, one aircraft passes his property about every 40 seconds. The maximum height of the aircraft is 225 metres due to the proximity of Northolt aerodrome. If the wind is blowing towards Mr Vogel’s property, he finds the noise from take-off makes conversation in the garden, and therefore social use of the garden, impossible. Aircraft on circuit usually pass slightly to the airfield side of Mr Vogel’s property, causing a serious and repetitive intrusion into their home and family life. Mrs Rawson: Mrs Rawson has lived with her husband at her present address in Harefield, Middlesex, since 1997. Mrs Rawson’s property is about 2 miles to the east of Denham Aerodrome. She complains that the noise from the aircraft engines is very intrusive and intimidating. Mrs Rawson and her husband noted the frequency of flights on various days between 13 July and 25 August 1999. Their notes indicate that they were often able to read the numbers on the aircraft with the naked eye. The notes show that during certain periods at weekends the frequency of flights close to the house reached approximately one every minute to two-and-a-half minutes. Mrs Rawson states that during the week, flights are less frequent. She complains that the aircraft fly low over her house and garden, and that they do not keep to the circuit prescribed by the aerodrome when taking off or landing, or practising approaches to landing. Mrs Rawson works from home, and she is therefore adversely affected by the noise from the airfield during the week as well as at weekends. Mr Holyoake: Mr Holyoake has lived with his wife and son at his present address in Gerrards Cross, Buckinghamshire, since 1997. Mr Holyoake complains of “incredible” noise resulting from low flying aircraft completing circuits of four or five minutes’ duration on a regular basis. He states that often at weekends this results in an aircraft every one or two minutes flying over his house and garden, which creates an impossible situation outside the house and can be heard inside the house. The maximum height of the aircraft flying from Denham Aerodrome and the circuit which they may take is limited by the proximity of Northolt airfield. Aircraft flying from Denham often take a low flight path, which increases the noise at ground level. Mr Holyoake states that aircraft from Denham Aerodrome regularly fly well below 500 feet (150 metres) and sometimes at half this height. He complains that the position is exacerbated by the fact that aircraft use four large oak trees in the grounds of his house, which is positioned on the top of a hill, as markers when they come in to land, and therefore continuously take this route when landing. Helicopters use the same circuit, and fly at lower heights. Mr Holyoake states that the resultant high noise and resonance levels have caused earaches and headaches, particularly after regular exposure when circuits are carried out. Section 35 of the Civil Aviation Act 1982 (the 1982 Act) provides for designation of aerodromes by the Secretary of State. Where an aerodrome has been designated under Section 35 (1), the management of the aerodrome is required to consult organisations representing the interests of local people (amongst others) “with respect to any matter concerning the management or administration of the aerodrome which affects their interest ...”. Guidelines for Airport Consultative Committees, published in 1987, state that the aim of consultation is “to provide an effective forum for the discussion of all matters concerning the development or operation of the aerodrome, which have an impact on ... people living and working in the surrounding area”, and to “provid[e] an opportunity to reconcile any differences of view that may arise, and [to resolve] difficulties through agreed voluntary action”. Denham aerodrome has been designated under Section 35. Sections 5 and 78/80 of the 1982 Act permit the imposition of specific noise and/or use control measures. Where an aerodrome has been specified under Section 5, the Civil Aviation Authority is under a duty “to have regard to the need to minimise so far as reasonably practicable - (a) any adverse effects on the environment, and (b) any disturbance to the public, from noise, vibration, atmospheric pollution or any other cause attributable to the use of aircraft for the purpose of civil aviation”. No aerodromes have been specified under Section 5, although the Secretary of State has indicated to Plymouth City Airport that he is “minded” to specify it. Where the Secretary of State has designated aerodromes under Section 78 of the 1982 Act, the operator of the aerodrome is required to comply with requirements set out in the notice relating to noise and vibration connected with the taking off or landing of aircraft. Only the major London airports (Heathrow, Gatwick and Stansted) have been designated under Section 78. Section 79 of the 1982 Act permits the Secretary of State to make grants towards the cost of sound-proofing buildings near an aerodrome which has been designated under that section. Section 76 of the 1982 Act excludes civil liability in trespass or nuisance in respect of flights of aircraft over property provided that the provisions of Air Navigation Orders have been complied with. The Rules of the Air Regulations 1996 made under the Air Navigation (No. 2) Order 1995 apply to all pilots. They prohibit low flying (generally, flying below a height of 1500 feet (450 metres) above the highest fixed object within 600 metres of the aircraft or helicopter (Rule 5(1)(a)), or closer than 500 feet (150 metres) to any person, vessel, vehicle or structure: Rule 5(1)(e)). However, the prohibition in Rule 5(1)(e) does not apply to aircraft which are taking off or landing (Rule 5(2)(d)); nor does it apply to practising approaches to landing at aerodromes (Rule 5(4)(a)), as long as this is “confined to the airspace customarily used by aircraft when landing or taking off in accordance with normal aviation practice at the aerodrome concerned” (Rule 5(4)(b)). The general planning legislation in the Town and Country Planning Act 1990 (as amended) is applicable to airports. Where planning consent is necessary, the local authority (in the first place) must determine the application in the light of Planning Policy Guidance issued by central Government. PPG24 relates to Planning and Noise. Certain operational developments are excluded by the Town and Country Planning (General Permitted Development) Order 1995 from the need for planning permission, although even in those cases the local authority must be consulted. For certain types of development, such as applications to construct airports with a basic runway length of 2100 metres or more, environmental impact assessments must be submitted (Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations (SI 1999/293). In a Consultation Paper published in July 2000, the DETR asked for comments on a number of proposals connected with the control of aircraft noise, including proposals to give aerodromes power to establish noise control arrangements, and proposals to compel aerodromes to prepare noise amelioration schemes. The conclusions drawn from the consultation paper, together with procedures arising from a proposed EC Directive Com 2001 (695), will be included in, or published with, a White Paper which is expected to be published at the end of 2003. The current aerodrome rules at Denham date from December 1999, and are set out in a document entitled “Operations and Procedures”, and in the “Denham Aerodrome Rules”. The circuit applied at Denham follows a rectangular path around the aerodrome measuring roughly 2 nm x 1 nm. The height of circuit flying is 1000 feet, which is lower than some aerodromes, but enables aircraft to fly a smaller circuit than if they had to fly higher. The circuit is designed to be as small as practically possible to avoid flying over sensitive residential areas. Only four aircraft are permitted to fly circuits at any one time. In connection with engine failure practice (which involves throttling the engine back in the circuit and returning it to full power a few seconds later), the rules draw attention to the fact that pilots cannot be prosecuted for low flying whilst landing or taking off in according with normal aviation practice, but that they may commit an offence if they deliberately go nearer than 500 feet to a person or structure. Runways are available for use between 8.00 am and 6.00 pm in winter, and 8.00 am and 8.00 pm in summer. Twin-engined aircraft are not permitted to carry out circuit training after 1.00 pm at weekends. Helicopters are not allowed to carry out hover training or circuit training on Sundays or after 1.00 pm on Saturdays, and are restricted to 10 minutes hovering followed by a circuit. The Government state that alleged breaches of the rules are investigated by the aerodrome management, and the pilot is asked to explain his or her actions. The disciplinary regime includes written warnings, fines, requests for further training to be undertaken, and banning from using the aerodrome. One pilot has been banned in the last five years. The applicants complain under Article 8 § 1 of the Convention that the noise caused by low flying aircraft including aerobatic activity, and helicopters, particularly training and maintenance, amounts to an interference with their right to respect for their private and family lives, and their homes, and that it cannot be justified under Article 8 § 2 because Denham Aerodrome does not serve important national economic interests. The applicants identify a legitimate aim which might be put forward in the case of a small, privately owned and operated aerodrome such as Denham, that of allowing “innocent passage” for aircraft across people’s property. They contend that a balance should be struck between this and the interference with the rights guaranteed under Article 8 § 1. They complain that the fact that a bar on actions for nuisance is imposed by the 1982 Act, and in particular by Section 76(1) thereof, that the bar applies regardless of the time of day or night when the noise is made, and regardless of the level or type of noise made, and that there are no effective alternative mechanisms in place to prevent noise nuisance, means that no balance has been struck, in breach of Article 8. The applicants further contend that the fact that the 1982 Act prevents them from bringing an action in nuisance, together with the fact that there is no other remedy available to them for breach of Article 8, amounts to a violation of Article 13 of the Convention. Finally, the applicants contend that the level of noise generated by Denham Aerodrome has serious potential effects on the value of their properties. The Ashworths contend that this is particularly so in their case, as the noise has become significantly worse since they purchased the house in 1970. The applicants contend that this amounts to a violation of Article 1 of Protocol No. 1.

train

001-72240

ENG

TUR

CHAMBER

CASE OF ÖZTOPRAK AND OTHERS v. TURKEY

Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 and 8 and of P1-1;No violation of Art. 5-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings

9. The applicants are all Turkish nationals. They were living in Halitpınar village at the time of the alleged events giving rise to the present application. The facts of the case are in dispute between the parties and may be summarised as follows. 10. Until October 1994 the applicants all lived in Halitpınar, a village of Ovacık district in Tunceli province, in the then state-of-emergency region of Turkey. In 1994, terrorist activity was a major concern in this area. Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers Party of Kurdistan). The inhabitants of the applicants’ village were suspected of “aiding and abetting terrorists”; and accordingly they were strictly and frequently controlled by the gendarmes stationed near the village. 11. On 4 October 1994 security forces surrounded Halitpınar and assembled the inhabitants in the village square. Using curse words, they told the villagers that the village would be evacuated at once with no possibility of return. The applicants took what they were able to carry with them and left the village. Immediately after the evacuation, the soldiers set the houses and the crops on fire. 12. The applicants moved temporarily into a prefabricated State disaster housing complex close to Ovacık. 13. Following the incident, the applicants filed individual petitions with the Ovacık Public Prosecutor’s office complaining about the burning down of their village by gendarmes. The applicants noted their temporary addresses as the reply address for their petitions. 14. As the case concerned an investigation into alleged acts of the security forces, the Ovacık Public Prosecutor issued a decision of nonjurisdiction and referred the petitions to the office of the District Governor in Ovacık in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu). 15. The District Governor sent a letter to the Ovacık Gendarmerie Headquarters and requested information about the applicants’ allegations. 16. In a letter of 1 November 1994 the Gendarmerie Commander informed the District Governor that the security forces had not burned any house during their operations in the area. Accordingly, the Ovacık Administrative Council issued a decision to discontinue the criminal proceedings against the gendarmes. 17. On 25 October 1995 the Ovacık District Governor sent a letter to the applicants. Relying on the Ovacık Gendarmerie Commander’s letter of 1 November 1994, he explained that he was unconvinced by their allegations. He further explained that pursuant to the established case-law of the Supreme Administrative Court (Danıştay), no inquiry was possible unless the identity of the accused civil servant were specified. He therefore stated that the authorities would not initiate an investigation into the alleged events. 18. The applicants did not receive this letter. They learned about the Ovacık Public Prosecutor’s decision of non-jurisdiction and the Ovacık Administrative Council’s decision from their fellow villagers and acquaintances at a much later stage. 19. In 1994 members of the PKK started a propaganda campaign for the organisation in the villages of Ovacık district. They kidnapped young men from these villages and forced them to join the organisation. The PKK militants issued threats against the villagers and harassed them. The inhabitants of the villages left their homes as a result of the pressure exerted by the PKK. 20. The investigation carried out by the authorities revealed that the applicants’ houses had not been burned by the security forces but by terrorists wearing military uniforms. In their statements to the investigating authorities, the applicants failed to indicate the identity of the perpetrators of the alleged crime. 21. The parties submitted various documents with a view to substantiating their claims. These documents, in so far as they are relevant, can be summarised as follows. 22. The Human Rights Foundation is a non-governmental organisation with its head office in Ankara, Turkey. Its 1993 Report stated that, from 1990 to 1993, more than 913 villages and hamlets had been evacuated. The 1993 Report maintained that village evacuations had accelerated in 1993, mostly targeting the villages whose inhabitants refused to serve as village guards. 23. The 1994 Report of the TIHV argued that the Government’s policy was to claim that the evacuations and eventual destructions were caused by PKK terror, poverty and the forces of nature. According to the same report, some 50 to 60 villages were burned down in each of the provinces subject to the emergency rule. 24. The 1995 Report maintained that more than 400 villages had been evacuated in 1995. According to the 1996 Report, the State-of-Emergency Regional Governor once mentioned that a total of 918 villages and 1,767 hamlets had been evacuated for various reasons, although never admitting that evacuations had been carried out by security forces. 25. The 1997 and 1998 Reports described the Government’s policy of evacuating villages as a systematic “internal security operation” applied throughout the 1990s. 26. The excerpts gave a comprehensive list of burned-down and/or evacuated villages from February 1990 to January 1999. The list did not make any reference to Halitpınar as having been evacuated and destroyed. 27. The excerpts contained several articles reproduced from a daily newspaper Ülkede Gündem, relating to the evacuation of villages and its detrimental effects on the displaced persons. The articles stressed that numerous villagers had filed petitions with the State authorities, complaining that their villages had been burned down by security forces. 28. The articles also emphasized that the Government’s public declarations, which appeared to allow displaced villagers to return to their villages, were unreliable. Whenever villagers had attempted to do so, they were physically denied access to their villages. 29. This report was prepared by a Commission of Inquiry composed of ten members of parliament. According to the report, in 1993 and 1994 the inhabitants of 905 villages and 2,923 hamlets were evicted and forced to move to other regions of the country (p.13). 30. The report included a statement by Mr Doğan Hatipoğlu, a former governor of Diyarbakır. Mr Hatipoğlu explained that, during his office, occasional village evacuations by military authorities were brought to his attention. He stated that – although very rarely – he had received complaints about village burnings. According to Mr Hatipoğlu, it was inconceivable to assert that all the villages were vacated due to PKK coercion. He alleged that the Government had failed to take the necessary measures for a healthy resettlement of displaced persons (p.13). 31. The report also referred to the “Human Rights Report – Turkey”, prepared and submitted to the Commission of Inquiry in 1995 by Mr Yavuz Önen, the chairman of the Human Rights Foundation. This latter report dedicated a chapter to immigrants and evacuated villages. It argued that, in 1995, the practice of evacuation of villages and hamlets was widespread. Many houses in villages were either destroyed or made uninhabitable. People were forced to emigrate from the region and pressure was exerted on the inhabitants until they left their villages. In early 1995 there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards (p.19). 32. The report of the Commission of Inquiry also referred to the speech delivered at the Turkish Grand National Assembly by Mr Salih Yıldırım, a deputy from Şırnak, on 3 June 1997 on the question of evacuated villages. Mr Yıldırım stated, inter alia, that the villages were evacuated either by the PKK, in order to intimidate those who opposed it, by the authorities since they were unable to protect the villages, or because the inhabitants of those villages refused to become village guards or were suspected of having aided the PKK (p. 20). 33. In conclusion, it was recommended in the report that the inhabitants of the settlement units should be re-housed in the provinces, districts or central villages – rather than hamlets – close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region, priority being given to the immigrants. 34. This report aims at establishing the property owned by each of the applicants. Having regard to the registers of the land registry office and municipality registry office, it appears that Abbas Öztoprak did not own any property. He was not subscribed to TEDAŞ, meaning that he did not have electricity at home. However, he receives pension from the State. It further appeared that Mr Öztoprak owned a “green card” given to very poor people for medical care and that he received TRL 75,000,000 in aid from the Ovacık District Governor’s office. 35. Mehmet Öztoprak owned 8,000 square metres of land according to the land registry records. It was estimated that he could derive TRL 128,000,000’s annual income at the relevant time. Mr Öztoprak owned a “green card” given to very poor people for medical care. The Ovacık District Governor’s office gave him 11 sheep, TRL 195,000,000 and food in aid for his living. Between 1994 and 2002 Mr Öztoprak lived in a house in the disaster houses complex provided by the Government. In 2002 he moved into a house which was built within the context of “return to village and rehabilitation project”. 36. Şahin Toprak did not own any property according to the land registry records. But he owned a 60 square metres, a house and a stable as well as land measuring 14,000 square metres according to his declaration of 9 June 1994 to the municipality registration office. It was estimated that he could derive TRL 224,000,000’s annual income at the relevant time. Since 24 April 1993 he is the holder of a “green card” given to very poor people for medical care. Mr Toprak received food and TRL 125,000,000’s in aid from the Ovacık District Governor’s office. Furthermore, he lived in a house in the disaster houses complex provided by the Government. In 2002 he moved into a house which was built within the context of “return to village and rehabilitation project”. 37. The witness is a former resident of Halitpınar village. He is currently the mayor of Kandolar neighbourhood in Ovacık. His statements were taken in order to determine the situation of the applicants who had lodged an application with the Court. The witness stated that between 1994 and 2002 the applicants had lived in prefabricated houses in Kandolar neighbourhood of Ovacık. In 2002 they had moved into new houses built by the Government. At the relevant time nobody lived in Halitpınar. There was no electricity, school or telephone in the village. 38. Gendarme Major Yüksel Sönmez informed the Chief Public Prosecutor that the houses belonging to Reis Toprak, Kamber Çelik, Veli Çelik and Süleyman Toprak in Halitpınar village and in Toprak hamlet had been burned down by terrorists wearing military uniforms. In his opinion, the terrorists aimed at pacifying the security forces and creating hostility between the latter and the people in the region. 39. Following an investigation conducted into the allegations that State security forces had burned down houses in Halitpınar village, the inspector established that the houses had not been burned down by the security forces but by terrorists wearing military uniforms. The terrorists had further forced the villagers to complain to the authorities that their houses had been burned down by the security forces. The inspector also noted that the security forces had been conducting operations in the region with a view to maintaining the security of the people and that therefore they would not burn villages or give damage to property. 40. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003) and Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002).

train

001-108017

ENG

UKR

CHAMBER

CASE OF OLEYNIKOVA v. UKRAINE

Violation of Art. 2 (procedural aspect)

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

5. The applicant was born in 1956 and lives in Kharkiv. 6. On 30 June 2002 the applicant’s son, D., who was then nineteen years old, had a picnic with his friends (Mr) L., (Ms) N. and (Ms) G. on the bank of a lake not far from the village of Staryy Saltiv in the Kharkiv region. They drank some alcohol and took a swim. According to D.’s friends, D. could not swim and stayed in the shallow part of the lake. As submitted by the applicant, he had aquaphobia. 7. That evening D. and L. had a fight with a group of about ten young people picnicking nearby, which left D. with a bleeding nose and an injured lip. 8. According to L., N. and G., after the fight was over and the other group left for their camp, D. washed his face in the lake. Shortly afterwards, at about 11 p.m., he took a towel and went towards some bushes in the opposite direction to the lake. 9. Some minutes later, worried by his absence, L. and the girls started looking for him. They continued the search for about three hours, but to no avail. At some point N. thought she had heard D.’s voice, saying that he was there and that he was unwell, after which it had been interrupted abruptly as if forcibly stifled. The others did not hear anything. The friends asked two fishermen fishing nearby whether they had seen D., but were told in reply that there had been many young men passing by. Having met three persons from the “rival” group, L. asked whether they had seen D., but they replied that they had not. Shortly after that four teenagers, including one of the three mentioned above, approached L., N. and G. and asked whether they had found D. On hearing that they had not, they wished them “good luck with the search” with what D.’s friends perceived as ironic smiles. 10. L., N. and G. decided to wait until dawn to continue the search. While L. and N. were asleep, G. heard some muffled noises not far from their camp, followed by a splash. 11. Having resumed the search at 5 a.m. on the following day, 1 July 2002, L. and the girls found D.’s towel on a tree some fifty metres from their campsite. D.’s dead body was floating in the lake about twenty metres from the bank. L. brought it back to the shore. He noticed a bruise on D.’s head, which he did not remember having been there after the fight. 12. L., N. and G. went to call the police. 13. The youths from the other group left their camp at dawn and took the first morning bus to Kharkiv. 14. On the morning of 1 July 2002 the police, having been informed of D.’s death by his friends, intercepted the aforementioned bus and apprehended some of the young people in question. 15. According to a report drafted on the same date by the officer on duty at Staryy Saltiv police station, at 7 a.m. L. had informed the police of D.’s drowning. The following officials had gone to inspect the scene of the incident: the prosecutor, an investigator from the prosecutor’s office, a forensic medical expert, the deputy chief of the investigation unit of the local police station, and the neighbourhood police inspector. 16. According to an on-site inspection report of the same date, the scene where the body had been discovered was inspected from 8 to 9 a.m. It was stated in the report that the inspection group had discovered D.’s body floating in the lake three metres from the bank and had taken it to the shore. The report was signed by the prosecutor, the investigator, two medical experts, and two attested witnesses. 17. The applicant arrived at the scene at some point during the aforementioned inspection. 18. The case file also contains an “accident report” of 1 July 2002 signed by the head of the Staryy Saltiv rescue station and a nurse (apparently from the same rescue station). It is limited to outlining the following events and their timing: 8.30 a.m. – receipt of the information about the accident; 8.40 a.m. – arrival at the scene; and 8.45 a.m. – removal of the body from water. 19. Still on 1 July 2002, a post mortem was conducted. It gave drowning as the cause of D.’s death. 20. At some point in July 2002 the applicant complained to the Vovchansk Town Prosecutor’s Office (hereafter “the VTPO”) that the persons with whom her son had been fighting could have been involved in his death and sought the initiation of a criminal investigation into the matter. 21. Later in July 2002 she additionally brought to the prosecutor’s attention the fact that on the arrival of the police at the site on 1 July 2002 the body of her son had been found in the water several metres from the shore, while L. had clearly stated that he had already taken it out. It was unclear in what circumstances the body had been put back into the water. 22. On 16 July 2002 the applicant complained to the Kharkiv Regional Prosecutor that the VTPO had been refusing to accept her complaints under the pretext that the prosecutor’s personal authorisation was required for that. Having received some additional facts from L., N. and G., the applicant brought them to the attention of the prosecution. She had found out, in particular, that two of the persons who had fought with her son, nicknamed T. and U., had apparently had a previous conflict with D. During the fight on 30 June 2002 they had violently plunged L. into the water. Later, the young man nicknamed T. had been among those who had wished D.’s friends “good luck with the search”. Furthermore, the group who had attacked D. and L. had hastily left their own campsite at dawn on 1 July 2002. When being apprehended, some of them had referred to the connections and influence of their parents as a threat to the police. T. and U. had later gone into hiding. 23. On 19 July 2002 the VTPO investigator decided not to open criminal proceedings regarding the death of the applicant’s son, having concluded that it had been an accident. The decision was mainly based on the post mortem report, according to which D. had died by drowning. As to the fight which had taken place on the eve of the death, the investigator considered that its circumstances disclosed elements of hooliganism. The case was therefore referred to the Vovchansk police department for further verification in that regard. 24. As a result, on 21 July 2002 criminal proceedings were instituted in respect of the fight of 30 June 2002, which was classified as hooliganism. 25. On 22 July 2002 the VTPO investigator ordered a forensic medical examination with a view to clarifying the following issues: (a) whether there were any injuries on D.’s body and, if so, what their origin was and how serious they were; (b) what the cause of the death was; and (c) whether D. had consumed alcohol before his death. 26. On 10 August 2002 the forensic examination was completed. According to its report, D. died from “asphyxia caused by water blocking the airways as a result of drowning”. The expert noted that there was a bruise on D.’s head and a wound on his lower lip. He concluded that those injuries, which might have been caused by blunt objects, had been sustained shortly before D. had died, but had no relation to his death. It was also noted that D. had been moderately drunk at the time of his drowning. 27. On 25 October 2002 the Vovchansk Town Court (“the Vovchansk Court”) set aside the investigator’s decision of 19 July 2002 not to institute criminal proceedings regarding the death. Its criticism mainly concerned the absence of any conclusion as to the possible connection between the fight and the subsequent drowning of the applicant’s son. Furthermore, the court noted that the case file did not contain the post mortem report referred to. 28. On 21 November 2002 the VTPO again refused to open a criminal case, given that while D.’s death had indeed been preceded by the fight, there had been no causal link between those two events. The investigator relied, in particular, on the statements of the youths with whom D. and L. had had the fight, who claimed to have stayed in their camp all night and not have seen or heard anything suspicious. They explained their hasty departure from the campsite early in the morning on 1 July 2002 by having panicked following the discovery of D.’s body in the lake. 29. On 12 August 2003 another forensic medical examination regarding D.’s death was completed, this time undertaken as part of the criminal investigation into hooliganism. It concluded that D. had died as a result of drowning, some eight to twelve hours before the examination of his body (conducted at 8.50 a.m. on 1 July 2002). The following injuries to the body had been documented: a bruise on the left of the forehead, a bruise on the lower lip, and an abrasion on the chin. All these injuries were classified as light and estimated to have been inflicted by solid blunt objects shortly before D. died. However, no causal link was established between those injuries and the death. After D. had sustained them, he would have been able to act consciously and move. Lastly, the report noted that, at the time of his death, D. had been moderately drunk. 30. On 24 November 2003 the Vovchansk Court quashed the prosecutor’s decision of 21 November 2002, refusing to institute criminal proceedings concerning D.’s death as being premature and based on an incomplete and perfunctory investigation in disregard of the court’s earlier guidelines. It noted, in particular, the following: “... [The applicant’s] complaints and submissions have not in fact been verified, additional explanations have not been taken from specific [witnesses], and the necessary documents, in particular, the forensic medical reports regarding the nature and location of D.’s injuries and the cause of his death, as well as the results of the operational enquiry measures, have not been studied. ... In the court’s opinion, the [decision] complained of is premature and not based on thoroughly verified data, while the arguments contained therein are unconvincing.” 31. On 24 December 2003 the VTPO once again refused to initiate criminal proceedings stating that there was no case to answer. This decision was based on the lack of any established connection between the fight and the resulting injuries on the one hand and the drowning of D. on the other. The investigator relied on the statements of the witnesses (the deceased’s friends and some of those with whom D. and L. had been fighting) and the findings of the forensic medical reports. 32. The applicant unsuccessfully challenged that refusal before the domestic courts at three levels of jurisdiction. On 12 March, 20 May 2004 and 10 February 2005 respectively, the Vovchansk Court, the Kharkiv Regional Court of Appeal (“the Court of Appeal”) and the Supreme Court, dismissed her complaint in that regard with succinct reasoning that it was overall unsubstantiated. 33. Meanwhile, on 6 February 2004, the VTPO prosecutor had disciplined the investigator in charge of the hooliganism case (see paragraph 24 above) for the latter’s failure to comply with his superiors’ guidelines and to duly report on the progress of the investigation since the institution of the proceedings on 21 June 2002. 34. On 25 August 2005 the General Prosecutor’s Office (“the GPO”) quashed the investigator’s decision of 24 December 2003 (see paragraph 31 above) as premature. The parties did not provide a copy of this decision of the GPO to the Court. 35. On 24 September 2005 the VTPO again refused to institute criminal proceedings in respect of D.’s death. The reasoning of this decision was identical to that of the earlier one of 24 December 2003, except that the investigator inserted a new paragraph with his critical assessment of the statements of D.’s friends about having heard some stifled cries. The investigator considered them to be too vague and not at variance with the version that the death had been an accident. He also noted that there appeared to have been no witnesses to the death. 36. The applicant challenged that decision before the Vovchansk Court. Following several dismissals of her complaint on procedural grounds, it was finally accepted for examination. 37. On 16 March 2006 the Moskovskyy District Police Department in the Kharkiv Region terminated the criminal proceedings regarding the hooliganism offence (instituted on 21 July 2002), having found that there was no indication of a crime. The investigator noted, in particular, that the fight in question had not breached public order, having taken place in a forest where it could not have disturbed anybody. Furthermore, it had resulted in light injuries found to have had no connection to D.’s death. 38. On 16 January 2008 the case regarding D.’s death was transferred to the Velykyy Burluk Town Court (hereafter “the Velykyy Burluk Court”), as all the judges of the Vovchansk Court had already sat in it. 39. On 26 February 2008 the Velykyy Burluk Court quashed the VTPO’s decision of 24 September 2005 (see paragraph 35 above), having found that the additional investigation undertaken pursuant to the GPO’s ruling of 25 August 2005 had failed to comply with the latter’s instructions despite their binding nature. The court also reiterated, in substance, the criticism which had earlier been expressed by the Vovchansk Court in its ruling of 24 November 2003 (see paragraph 30 above). 40. The Velykyy Burluk Court also specified the measures to be undertaken in the course of the additional investigation, such as the further questioning of N. and G. on account of the noises and cries they claimed to have heard after D.’s departure, as well as the questioning of L., who had not been examined at all in that regard. Furthermore, the investigation had to identify three persons who had been present during the on-site inspection on 1 July 2002 by the operational enquiry group without disclosing their identities and without their presence having been recorded in the police report. Referring to the confirmed threats the teenagers had made about their influential relatives to the police officers during their apprehension, the court noted that the applicant had in fact reasons to fear that those persons could have been relatives in high-ranking posts in law-enforcement authorities. Her allegation that the body of her son had been put back into the water after L. had already brought it out to the shore had to be verified as well. Moreover, the origin of all the injuries on D.’s body remained to be clarified, given the witnesses’ statements that not all of them had resulted from the fight of 30 June 2002. It was also necessary to identify and question the two fishermen who had been near the camp of D. and his friends during the night of 30 June 2002, the teenagers who had allegedly enquired in a sarcastic tone about the search for D., as well as the police officer who had arrived at the site first, who had waited there alone for his colleagues to arrive and might therefore have been able to offer an explanation as to how the body had ended up back in the lake. The court also instructed the investigation to find out whether there had been any plankton from the lake in issue in D.’s lungs. Lastly, it was necessary to clarify the outcome of the investigation initiated on 21 July 2002 in respect of the fight (the court was apparently not aware that the investigation in question had been terminated on 16 March 2006 – see paragraphs 24 and 37 above). 41. The Velykyy Burluk Court underlined that all the aforementioned instructions had already been given by the GPO in the ruling of 25 August 2005, but had remained unlawfully ignored. 42. On 23 July 2008 the Vovchansk police department, to which the VTPO had apparently forwarded the case, issued a decision refusing to institute criminal proceedings regarding D.’s death. In addition to the reasoning, which had already been given in the VTPO’s decision of 24 September 2005 (see paragraph 35 above), the investigator stated the following. He had interviewed one of the police officers and one of the attested witnesses who had arrived at the scene together with the other officials for the on-site inspection on the morning of 1 July 2002 (see paragraphs 15-16 above). The officer had confirmed what had already been stated in the report (ibid.). The attested witness had submitted that the body had indeed been found floating in the water and that he had personally taken it to the shore in the presence of the other participants of the inspection. Lastly, the investigator referred to the accident report issued by the rescue station staff (see paragraph 18 above), without commenting on it. A general conclusion was reached that D.’s drowning had been an accident. 43. On 22 June 2010 the Vovchansk Court upheld the above decision. 44. On 22 November 2010 the Court of Appeal quashed the aforementioned ruling in allowing the applicant’s appeal and remitted the case to the Vovchansk Court for fresh examination. It noted that the first-instance court had incorrectly adjudicated the case in the applicant’s absence. Furthermore, it had failed to duly assess the lawfulness of the impugned decision of 23 July 2008. The Court of Appeal noted, in particular, that the Vovchansk Court had left the incompleteness of the investigation into D.’s death without any legal assessment, having ignored the applicant’s argument in that regard. 45. On 28 February 2011 the Vovchansk Court quashed the investigator’s decision of 23 July 2008 (see paragraph 42 above) and ordered an additional investigation. It reasoned its ruling as follows: “... The pre-trial investigation authority implemented the guidelines of the ... General Prosecutor’s Office of 25 August 2005 ... and ... the Velykyy Burluk Court ... of 26 February 2008 in an incomplete and perfunctory manner. As can be seen from the submitted materials, the pre-trial investigation authority failed to verify the arguments about the possible connection between the hooliganism-driven beating of [D.] on the night of 30 June 2002 and his subsequent death. Thus, while on 21 July 2002 a criminal investigation ... was instituted into the fact of hooliganism, the case file regarding the investigation [into the death] does not contain any information about its outcome. Furthermore, the pre-trial investigation authority did not verify [the applicant’s] argument that her son could not have died swimming given that he had been afraid of water and could not swim and that the depth of the lake at the place where the body had been found was 0.6 metres. Moreover, not all the participants of the fight have been identified or questioned. This concerns, in particular, those nicknamed U. and T., who might have been involved in the events that took place on 30 June 2002 ... Following the study of the materials on the basis of which the impugned decision was taken [not to institute criminal proceedings], it has been established that the investigator did not fully implement the guidelines of the judge and the prosecutor and that the additional investigation was incomplete...” 46. On 25 March 2011 the Vovchansk police department issued another decision refusing to institute criminal proceedings regarding D.’s death with concise reasoning that it had been an accident. On 2 September 2011 the Kharkiv Regional Prosecutor quashed this decision as unlawful and remitted the case to the VTPO for additional investigation which is apparently still ongoing. 47. The relevant legal provisions can be found in Myronenko v. Ukraine, no. 15938/02, §§ 28 and 29, 18 February 2010.

train

001-59762

ENG

GRC

CHAMBER

CASE OF E.H. v. GREECE

Violation of Art. 6-1;Pecuniary damage - financial award

András Baka

7. The applicant is a Greek national, born in 1963 and living in Veroia (Greece). 8. The applicant graduated in 1991 from the Faculty of Humanities of the University of Bari (Italy) with a Bachelor’s Degree in Literature. On 20 June 1991 he submitted his degree to DIKATSA, a public body empowered to award to Greek students recognition of diplomas obtained from foreign schools and Universities. On 14 October 1991 the committee of history and archaeology of DIKATSA examined the degree and proposed to recognise it as equivalent to a Greek degree. However, the committee considered that the applicant should take part in fourteen supplementary examinations. On 9 July 1992 the committee of classical literature of DIKATSA decided that the applicant should take eighteen supplementary examinations. On 30 July 1992, the Chairman of the Board of Directors of DIKATSA considered the degree as equivalent to a Greek degree but not fully corresponding to such a degree and, accordingly, invited the applicant to take nine supplementary disciplines. On 4 December 1992 the applicant introduced an application for review of the decision of 30 July 1992, but on 25 May 1993 DIKATSA reiterated its refusal to recognise the applicant’s degree and invited him to sit eighteen supplementary examinations (decision N° 11/55/93). 9. On 24 April 1995 the applicant applied to the Supreme Administrative Court asking it to set aside decision No. 11/55/93 of DIKATSA. He also requested the Supreme Court to refer to the Court of Justice of the European Communities the prejudicial question of Community law raised by the case. He alleged that the above-mentioned decision was not taken in conformity with Council Directive 89/48/EEC of 21 December 1988 setting up “a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration”; in particular, he stressed that the Greek State had not yet taken the necessary measures to comply with the Directive although two years had elapsed since its notification to the member States of the EEC. He also maintained that following that decision, it was impossible for him to find a job or to work in a public school because he did not meet any longer the condition of the age limit. 10. The Supreme Administrative Court fixed the date of the hearing on 24 September 1996. On that date, the hearing was adjourned ex officio and the case was referred to an enlarged formation of the Chamber because of its major importance. Then the Chamber set down the hearing for 7 October 1996 but on that date three more actions aiming at setting aside decisions of the DIKATSA having the same subject-matter with that concerning the applicant were introduced before the same Chamber. The hearing was thus adjourned until 13 January 1997. However, the Chamber decided to relinquish jurisdiction in favour of the Plenary for the three new cases and, accordingly, the hearing in the applicant’s case was adjourned again until 17 March 1997, 2 June 1997, 1 December 1997, 6 April 1998, 1st June 1998 and 7 December 1998. 11. On 20 May 1994 the applicant had introduced an action for damages before the First Instance Administrative Court of Veroia. He claimed a substantial amount for the pecuniary damage he had suffered as a result of the omission of the State to implement Directive 89/48/EEC and alleged that the amount sought corresponded to the loss of income he would have earned if he had been able to work as a teacher in a private school. The hearing was listed for 24 September 1996. However, on that date the Administrative Court adjourned the consideration of the case due to the parliamentary elections. A new hearing date was fixed on 21 July 1997 but the hearing was adjourned by agreement of both parties awaiting the Supreme Administrative Court’s judgment. On 29 September 1997, 17 March 1998 and 24 November 1998 the Court adjourned again the examination of the action. 12. On 11 January 1999 the Supreme Administrative Court rejected the abovementioned application because the applicant was not represented by a lawyer at the hearing. The judge rapporteur had, however, proposed to have the decision of the DIKATSA set aside for lack of reasoning. 13. The hearing before the Administrative Court of Veroia took place on 22 June 1999. In its judgment of 24 September 1999 the Administrative Court declared that it was incompetent to deal with the case and referred it to the Administrative Court of Athens, on the ground that the competent administrative authorities which allegedly omitted to take the necessary measures to comply with the European Communities directives and amend the relevant legislation in matters relating to recognition of degrees had their seat in Athens.

train

001-83580

ENG

TUR

CHAMBER

CASE OF BALÇIK AND OTHERS v. TURKEY

Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

David Thór Björgvinsson

4. The applicants were born in 1967, 1979, 1971, 1963, 1979, 1973 and 1972 respectively and live in Istanbul. 5. Upon receipt of intelligence reports that on 5 August 2000 a group of demonstrators would gather in the İstiklal Street in Istanbul to read a press declaration and block the tram line to protest against F-type prisons, police officers and members of the “Rapid Intervention Force” (çevik kuvvet) were deployed in the area. At noon, the applicants, together with thirty-nine others, gathered in İstiklal Street to make a press declaration to protest against F-type prisons. The police asked the group to disperse and to end the gathering and informed them that the demonstration was unlawful since no advance notice had been submitted to the authorities. The demonstrators refused to obey and attempted to march along İstiklal Street, chanting slogans and reading out a press declaration. Subsequently, at about 12.30 p.m. the police dispersed the group, allegedly by using truncheons and tear-gas. The applicants were arrested along with thirty-nine other persons. The applicants Sema Gül and Semiha Kırkoç were subsequently taken to the Taksim Hospital. 6. The doctor who examined Sema Gül noted the following: “There are bruises on both arms and a swelling on the left foot.” As regards Semiha Kırkoç, the doctor noted the following: “There is a 4 cm long laceration on the left parietal region...” 7. There were no medical reports in respect of the remaining applicants. 8. The incident report dated 5 August 2000 stated that the security forces had to use force to disperse the group as they refused to obey the warnings. It was further indicated that one police officer was wounded during the incident. 9. The applicants were subsequently taken to Beyoğlu central police directorate and Karaköy police station, where they were kept for one day. 10. The next day, they were released upon the order of the Beyoğlu public prosecutor. 11. On an unspecified date, the applicants filed a petition with the Beyoğlu public prosecutor against the police officers who had carried out the arrest. In their petition, they complained, inter alia, of the unlawfulness of their arrest and the excessive use of force by the police officers during and after the arrest. 12. On 5 January 2001 the Beyoğlu public prosecutor issued a decision of non-prosecution in respect of the police officers who had been on duty at the relevant time. In his decision, the public prosecutor considered that the force used by the security forces was in line with Article 16 of the Law No. 2559 on the Duties and Powers of the Police and had not been excessive. In the public prosecutor's opinion, the injuries sustained by the complainants had been caused by the use of force which was proportionate. 13. The applicants filed an objection against the public prosecutor's decision. 14. On 25 June 2001 the Istanbul Assize Court dismissed the applicants' objection. 15. Meanwhile, on 14 August 2000, the Beyoğlu public prosecutor filed a bill of indictment with the Beyoğlu Criminal Court. The public prosecutor accused the applicants under Article 28 § 1 of Law no. 2911 of taking part in an illegal demonstration without prior authorisation and not dispersing despite the police officers' warning. 16. On 19 September 2005 the Beyoğlu Criminal Court acquitted the applicants. The court held that making a press statement was a constitutional right and that prior authorisation was not needed to use this right. The court further observed that it was not certain that the warning given to the accused to disperse could be heard by all the demonstrators. It concluded that the accused had used their constitutional rights and, consequently, had not committed any offence. 17. Article 34 of the Constitution provides: “Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ... The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.” 18. At the material time section 10 of the Assemblies and Marches Act (Law no. 2911) was worded as follows: “In order for a meeting to take place, the governor's office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board...” 19. Section 22 of the same Act prohibited demonstrations and processions on public streets, in parks, places of worship and buildings in which public services were based. Demonstrations organised in public squares had to comply with security instructions and not disrupt individuals' movement or public transport. Finally, section 24 provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor's office and after the demonstrators had been warned. “The police may use firearms in the event of: (a) Self defence, ... (h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.” “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions. Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.”

train

001-5642

ENG

DEU

ADMISSIBILITY

DÖRING v. GERMANY

Inadmissible

The applicant [Mr Peter Döring] is a German national who was born in 1946 and lives in Magdeburg (Germany). He was represented before the Court by Mrs Kleine-Cosack, of the Freiburg Bar. summarised as follows. From 1972 to 1990 the applicant was a judge in the former GDR (German Democratic Republic) and, in particular, President of the Criminal Division of the District Court (Vorsitzender des Strafsenats des Bezirksgerichts) of Magdeburg from 1986 to 1989. In a decision of 4 April 1990 the Ministry of Justice of the former GDR allowed him to be admitted as a member of the Bar from 1 May 1990 onwards. In a decision of 20 July 1995 the Land of Saxony-Anhalt’s Ministry of Justice disbarred him under section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge (Gesetz zur Prüfung von Rechtsanwaltszulassungen, Notarbestellungen and Berufungen ehrenamtlicher Richter — “the RNPG” — see “Relevant domestic law” below) on the ground that he had violated the principles of humanity and the rule of law (da er gegen Grundsätze der Menschlichkeit und Rechtsstaatlichkeit verstossen hat). The Ministry accused him, in particular, of having in fifteen cases sentenced to approximately three years’ imprisonment persons accused of having merely expressed the wish to leave the former GDR to institutions and organisations of the FRG (Federal Republic of Germany), such as the FRG’s Ministry of Inter-German Relations, the Frankfurt International Human Rights Society and a German second channel (ZDF) television programme. The Ministry also accused him of having imposed a sentence of six years and six months’ imprisonment for aiding illegal border-crossing (Grenzschleusung) and one of two years and ten months for incitement to subversion (staatsfeindliche Hetze). In a judgment of 9 May 1995 the Magdeburg Regional Court (Landgericht) acquitted the applicant of the charge of administering justice perversely (Rechtsbeugung). In a decision of 14 March 1996 the Land of Saxony-Anhalt Court’s Special Section for Matters relating to Lawyers (Senat des Anwaltsgerichtshofs) upheld the applicant’s disbarment. In a decision of 4 February 1997 the Federal Court of Justice’s Special Section for Matters relating to Lawyers (Senat für Anwaltsachen des Bundesgerichtshofs) dismissed an appeal by the applicant. In the opinion of the Federal Court, there was a serious violation (beachtlicher Verstoss) of section 1(2) of the Act mentioned above where a lawyer, in his previous duties as a judge, had adopted an extreme construction (bei exzessiver Auslegung und Interpretation) of the relevant provisions of the former GDR’s criminal code or the code of criminal procedure to the disadvantage of an accused or had started a prosecution showing contempt for human beings (menschenverachtende Verfolg) even though in the eyes of the law his conduct had not been so culpable as to constitute perverse administration of justice (Rechtsbeugung). The Federal Court held that in the present case the applicant, while in the high-ranking position of president of a criminal division, had for years voluntarily taken part in decisions, which, at least as a whole (in der Gesamtschau), had shown contempt for human beings and had been contrary to justice. The applicant had applied laws which had been contrary to the rule of law, to the former GDR’s Constitution and to the international conventions to which the former GDR had been a party. In all cases, hearings had been held in camera in a kind of secret trial and heavy prison sentences had been imposed on citizens who merely wished to leave the former GDR, which often meant the destruction of their personal and social lives. In the opinion of the Federal Court, those criticisms were still valid because the applicant had flagrantly violated human rights by taking part in politically-motivated criminal justice (politische Strafjustiz) for years, thus assisting the apparatus of State repression. Failure to penalise that would have met with the incomprehension, not only of the victims but also of the population in general and would have undermined the confidence of the public, especially people from the former GDR (for whom politically-motivated criminal justice still remained a painful memory), in the integrity of the legal profession. The Federal Court held that even though the applicant had practised the profession of lawyer for six years without fault, that had been too short a period to allow the applicant’s interest in practising his profession to override the public interest in confidence in the integrity of the legal profession. In a decision of 28 May 1997 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three members, declined to accept the applicant’s constitutional appeal for adjudication. In the opinion of the Constitutional Court the appeal was not of fundamental constitutional importance, since it had already decided the issue of the constitutionality of section 1(2) of the 1992 Act on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge. The disbarment of lawyers who, because of their participation in acts manifestly contrary to justice committed under the regime of the German Unified Socialist Party (Beteiligung an eklatanten Unrechtshandlungen des SED-Regimes), were not worthy of confidence and were a burden for the administration of justice, was in accordance with the Basic Law (Grundgesetz). The Constitutional Court added that both the interpretation of that section by the Federal Court of Justice — which had looked beyond the simple fact of the former judge’s involvement in politically-motivated criminal justice (Befassung mit politischem Strafrecht) in that it had also examined the actual application of the law and had held that for the offence to be made out the judge must have adopted an extreme construction and application of the relevant provisions at the material time, to the detriment of the accused — and its application of the section in the present case had also been in accordance with the Basic Law. As to the applicant’s submissions that the courts had not sufficiently taken into account the conditions under which the former-GDR’s court system had been functioning and that it had been impossible for him to act differently at the time, the Constitutional Court held that the applicant should have raised and supported those arguments in the ordinary courts, which he had failed to do. In that connection, he should, in particular, have pleaded in the relevant courts the actual circumstances which had led him to take part in politically-motivated trials, and explained whether and under what conditions he could have withdrawn and what would have been the consequences for him had he departed from the habitual practice in criminal cases and had acted in favour of the accused. B. Relevant domestic law Article 19 of the German Unification Treaty (Einigungsvertrag) of 31 August 1990 provided that the former GDR’s administrative decisions remained in effect but could be set aside if they were incompatible with the principles of the rule of law (mit rechtstaatlichen Grundsätzen unvereinbar). German reunification itself took effect on 3 October 1990. Section 1(2) of the Act of 24 July 1992 on the verification of admissions as a member of the Bar and appointments as a notary or a lay judge provides: “Permission to become a member of the Bar granted by the Ministry of Justice of the former GDR or by admission to the College before 15 September 1990 shall be struck down where before his admission as a member of the Bar the lawyer concerned behaved in a way that made him unworthy to practise the profession of lawyer, having violated the principles of humanity or the rule of law, particularly as a member of or unofficial collaborator with the State security services.” (“Vor dem 15. September 1990 durch Aufnahme in das Kollegium oder durch den Minister der Justiz der Deutschen Demokratischen Republik ausgesprochene Zulassungen zur Rechtsanwaltschaft werden mit Wirkung für die Zukunft zurückgenommen, wenn sich der Rechtsanwalt vor seiner Zulassung eines Verhaltens schuldig gemacht hat, das ihn unwürdig erscheinen läßt, den Beruf des Rechtsanwalts auszuüben, weil er gegen Grundsätze der Menschlichkeit oder der Rechtsstaatlichkeit insbesondere im Zusammenhang mit einer Tätigkeit als hauptamtlicher oder inoffizieller Mitarbeiter des Staatssicherheitsdienstes verstoßen hat.”)

train

001-58068

ENG

FRA

GRANDCHAMBER

CASE OF CANTONI v. FRANCE

No violation of Art. 7

John Freeland

7. Mr Michel Cantoni, a French national who was born in 1947, is the manager of a supermarket owned by the Euromarché chain at Sens (Yonne). 8. In 1988 criminal proceedings were brought, at the instigation of the Yonne Pharmacists’ Association and several individual pharmacists, against the applicant and other managers of supermarkets in the region for unlawfully selling pharmaceutical products. He had sold in his shop aqueous eosin at 1% strength, 70% strength modified alcohol, 10-volume hydrogen peroxide, vitamin C (tablets of 500mg and sachets of powder of 1000mg), inhalations made out of plant essences, pocket inhalers, antiseptic sprays and mineral supplements. In their defence the applicant and his fellow accused maintained that the products in question were not medicinal products within the meaning of Article L. 511 of the Public Health Code (see paragraph 18 below) and were accordingly not covered by the pharmacists’ monopoly. 9. On 30 September 1988 the Sens Criminal Court found the applicant guilty as charged, fined him 10,000 francs and ordered him to pay damages of 1 franc to each of the civil parties. After considering the products in question individually, it took the view that they were medicinal products, in some cases on account of their function and in others on account of their presentation (see paragraph 19 below). 10. On 18 May 1989 the Paris Court of Appeal upheld the first-instance judgment, on the following grounds: "It is necessary to examine each of the products marketed listed above in order to determine whether or not they are medicinal products ...: (1) BIO-OLIGO with trace elements At the bottom of the cardboard packaging for the 36-capsule bottles is to be found the indication ‘Yeast enriched with minerals’, ‘dietary supplement’. The back of the cardboard packaging carries the following text: ‘Introduction: Recent research shows that the earth is losing minerals, while our bodies’ need for these ‘new vitamins’ of the twentieth century is greater than before. [C.] Laboratories produce a range of products specially enriched with minerals to make up for these deficiencies in our diet.’ The analysis in grammes for every 100g states: Protein 50 Fat 6 Carbohydrate 36 Vitamin B1 30 Vitamin B6 4 Energy value 398Kcal/1667KJ The analysis also indicates, as applicable, the levels of copper, zinc or calcium to be the following: On the bottle of zinc capsules, ‘Zinc 3000’. On the bottle of copper capsules, ‘Copper 4’. On the bottle of calcium capsules, ‘Calcium 50’. Furthermore, there is a precise indication of how each of these elements is supposed to help the human body: (a) zinc aids reproduction and sexual development; ‘it helps the body to fight infection more effectively’; (b) copper ‘activates our systems of defence against infection - helps combat inflammation’; and (c) calcium is ‘essential for strong bones - it also improves the circulatory nervous system’. The dosage, which depends on whether the capsules contain zinc, copper or calcium is then given, under the heading: ‘Directions for use’. The back of the cardboard packaging carries the mention, at the bottom, ‘[C.] Laboratories PARIS’, after specifying that this laboratory has ‘been advised by Dr P. W.’, an oligotherapist (sic). Therefore, these products, which contain an amalgam of various different substances, are presented as capable of contributing to the prevention or cure of human diseases. They are medicinal products within the meaning of the above-mentioned legislation. (2) 70% STRENGTH MODIFIED ALCOHOL 120 ML is sold in 120ml bottles. The label bears the above words and, in the bottom left-hand corner, on a blue and green background, four small white squares in the shape of a cross, irresistibly evoking the image of a pharmacist’s sign. To the right of this, in large white letters on the same blue and green background, the name ‘[V.] Laboratories, PARIS’ appears with, in smaller letters, its address. The product in question smells strongly of camphor. Thus the way in which this product is presented - the bottle, and the cross alongside the name ‘[V.] Laboratories’ - suggests that it is in fact the pharmaceutical product well known by that name and which is used as an antiseptic, particularly in surgery. Therefore, by virtue of its presentation, this is also a medicinal product and not simply a hygiene or beauty product. (3) 120ml BOTTLE OF 10-VOLUME HYDROGEN PEROXIDE. This bears the words ‘do not swallow’ and ‘in the event of contact with the eyes, rinse immediately’. It has the same white cross and words ‘[V.] Laboratories PARIS’ as the modified alcohol mentioned above, on a pale blue and darker blue background. For the same reasons, it evokes the medicinal product known by that name. This is another medicinal product by virtue of its presentation, which distinguishes it from a mere hygiene or beauty product. (4) ‘VITAMIN (500)’ is sold in cardboard packets of 24 chewable tablets, on which is printed: (a) the white cross described above and the name ‘[V.] Laboratories PARIS’, on a yellow and orange background; (b) the recommended dosage, specifying that vitamin C should not be taken at the end of the day; and (c) the composition of each tablet, namely: coated ascorbic acid and sodium ascorbate (with an indication of the quantities); and the excipient, a compound of several substances. This is also a medicinal product, at least by virtue of its presentation, since there is nothing to distinguish it from a genuine pharmaceutical product which has had to meet the required standards in terms of dosage, quality control and production. It is of little importance whether the medicinal product really has the effect claimed or not; on the other hand, there are known contra-indications to the excessive use of vitamin C." 11. Mr Cantoni appealed to the Court of Cassation on points of law. He complained in particular that there had been a violation of Article 7 para. 1 of the Convention (art. 7-1) and of Articles L. 511, L. 512 and L. 517 of the Public Health Code (see paragraph 18 below). He contended that, especially when applied to parapharmaceutical products, the notion of medicinal product, as defined in the provisions on which his conviction had been based, was not sufficiently clear to enable him to determine with accuracy what acts would incur criminal liability. On 29 May 1990 the Criminal Division of the Court of Cassation dismissed the appeal in the following terms: "... the appellate court held, referring to the wording on the cardboard packaging and bottles containing the above-mentioned products, that these products were presented as being capable of contributing to the prevention and cure of human diseases and that, therefore, they constitute medicinal products within the meaning of Article L. 511 of the Public Health Code. The Court of Appeal thus gave a proper legal basis for its decision without laying itself open to the complaints put forward ... The provisions of Article L. 511 of the Public Health Code ... are not contrary to the principle that only the law can define a criminal offence and prescribe a penalty; nor are they incompatible with the instruments referred to in the grounds of appeal ..." 12. According to Article 1 of the Community Directive of 26 January 1965 (Directive EEC 65/65, OJ no. L. 369 of 9 February 1965), as amended on several occasions: "... the following shall have the meanings hereby assigned to them ... 2. Medicinal product: Any substance or combination of substances presented for treating or preventing disease in human beings or animals. Any substance or combination of substances which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring, correcting or modifying physiological functions in human beings or in animals is likewise considered a medicinal product." 13. The Court of Justice of the European Communities has received several references for preliminary rulings concerning the interpretation of that definition. In its Van Bennekom judgment of 30 November 1983 (case 227/82 [1983] ECR 4 3883), it held as follows in respect of vitamin preparations: "It is ... necessary to take the view that a product is ‘presented for treating or preventing disease’ within the meaning of Directive 65/65 not only when it is expressly ‘indicated’ or ‘recommended’ as such, possibly by means of labels, leaflets or oral representation, but also whenever any averagely well-informed consumer gains the impression, which, provided it is definite, may even result from implication, that the product in question should, regard being had to its presentation, have an effect such as is described in the first part of the Community definition. In particular the external form given to the product in question - such as that of a tablet, pill or capsule - may in this connection serve as strong evidence of the seller’s or manufacturer’s intention to market that product as a medicinal product. Such evidence cannot, however, be the sole or conclusive evidence, since otherwise certain food products which are traditionally presented in a similar form to pharmaceutical products would also be covered. ... substances such as the vitamin preparations in issue, which are not ‘indicated or recommended’ expressly as being suitable for curing, treating or preventing an infection, may nonetheless constitute substances ‘presented for treating or preventing disease’ within the meaning of the Community definition of ‘medicinal products’ contained in Directive 65/65. ... It is ... apparent from the file and from the observations submitted to the Court, taken as a whole, that it is impossible in the present state of scientific knowledge to state whether the criterion of concentration alone is always sufficient in order to be able to determine whether a vitamin preparation constitutes a medicinal product; still less therefore is it possible to specify the level of concentration above which such a vitamin preparation would fall within the Community definition of a medicinal product. The answer to be given to the national court should therefore be that the classification of a vitamin as a medicinal product within the meaning of the second part of the definition in Directive 65/65 must be carried out case by case, having regard to the pharmacological properties of each such vitamin to the extent to which they have been established in the present state of scientific knowledge." (paragraphs 18-20 and 28-29) 14. The Court of Justice has confirmed this approach on several occasions, clarifying certain points. Thus in its Delattre judgment of 21 March 1991 (C-369/88 [1991] ECR 1487), concerning eleven different products, including slimming products and preparations to combat tiredness, it stated: "... a product may be regarded as a medicinal product by virtue of its presentation if its form and the manner in which it is packaged render it sufficiently similar to a medicinal product and, in particular, if on its packing and the information provided with it reference is made to research by pharmaceutical laboratories or to methods or substances developed by medical practitioners or even to testimonials from medical practitioners commending the qualities of the product in question. A statement that a product is not a medicinal product is persuasive evidence which the national court may take into consideration, but it is not in itself conclusive." (paragraph 41) 15. In the Monteil and Samanni judgment of 21 March 1991 (60/89, [1991] ECR 1 1547), concerning 2% strength eosin and 70% strength modified alcohol, the Court of Justice held: "... the concept of ‘presentation’ of a product must be broadly construed and a product is ‘presented for treating or preventing disease’ within the meaning of Directive 65/65 not only when it is expressly ‘indicated’ or ‘recommended’ as such, possibly by means of labels, leaflets or oral representation, but also whenever any averagely well-informed consumer gains the impression, which, provided it is definite, may even result from implication, that the product in question should, having regard to its presentation, have the properties in question. ... the external form given to the product in question may serve as strong evidence, but is not the sole or conclusive evidence; it must be stated that the ‘form’ must be taken to mean not only the form of the product itself but also that of its packaging, which may, for reasons of marketing policy, tend to make it resemble a medicinal product, and account must also be taken of the attitude of an averagely well-informed consumer, in whom the form given to a product may inspire particular confidence similar to that normally inspired in him by proprietary medicinal products, having regard to the safeguards normally associated with the manufacture and marketing of the latter type of product. ... ... it is for the national authorities to determine, subject to review by the courts, whether the eosin of a strength of 2% and modified alcohol of a strength of 70% constitute medicinal products by virtue of their function within the meaning of the second sub-paragraph of Article 1 (2) of Directive 65/65. In that regard, account must be taken of the adjuvants also entering into the composition of the product, the manner in which it is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail. ... ... although in principle the member States may reserve to pharmacists the right to make retail sales of products that fall within the Community definition of medicinal products and although, in those circumstances, their monopoly over those products may be presumed to constitute an appropriate way of protecting public health, evidence to the contrary may be produced with respect to certain products whose use would not involve any serious danger to public health and whose inclusion within the pharmacists’ monopoly would seem manifestly disproportionate, that is to say contrary to the principles laid down by the Court for the interpretation of Articles 30 and 36 of the Treaty. If pharmacists are granted a monopoly of other products, such as ‘parapharmaceutical products’, which may be of widely varying kinds, the need for such monopoly in order to protect public health or the health of consumers must, regardless of how the products concerned are classified under national law, be established in each individual case, and those two aims must not be obtainable by measures less restrictive of intra-Community trade. It is for the national court to decide, having regard to those criteria, whether the action before it is well-founded." (paragraphs 23-24, 29 and 43-45) 16. In the Upjohn judgment of 16 April 1991 (C-112/89 [1991] 1 ECR 1703), the Court of Justice recalled that: "It is for the national court to determine on a case-by-case basis the classification of each product having regard to its pharmacological properties as they may be ascertained in the current state of scientific knowledge, to the way in which it is used, to the extent to which it is sold and to consumers’ familiarity with it." (paragraph 23) 17. Finally in the Ter Voort judgment of 28 October 1992 (C-219/91 [1992] ECR 5485), the Court of Justice held: "... a product recommended or indicated as having prophylactic or therapeutic properties is a medicinal product within the meaning of the provisions of the first subparagraph of Article 1 (2) of Directive 65/65, even if it is generally regarded as a foodstuff and even if in the current state of scientific knowledge it has no known therapeutic effect. ... The conduct, action and approaches of the manufacturer or the seller which disclose his intention to make the product he markets appear to be a medicinal product in the eyes of the averagely well-informed consumer may therefore be conclusive for the purposes of deciding whether a product should be regarded as a medicinal product by virtue of its presentation." (paragraphs 21 and 26) 18. At the material time, the relevant provisions of the Public Health Code were as follows: "‘Medicinal product’ shall mean any substance or combination of substances presented for treating or preventing disease in human beings or animals and also any product which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring, correcting or modifying their physiological functions. In particular, the following shall be considered as medicinal products: products referred to in Article L. 658-1 of this Code: which contain any substance having a therapeutic effect as defined in paragraph 1 above; or containing a greater dosage or concentration of poisonous substances than that laid down in the list referred to in Article L. 658-5 of this Code, or containing poisonous substances which do not appear on that list; dietary products containing chemical or biological substances which are not themselves foodstuffs but which are added to dietary products, either to give them special properties which are sought after for the purposes of dietary therapy or to make them suitable for use in medical tests. ..." "Only pharmacists may ...: (1) prepare medicinal products for use in the treatment of human beings; ... (3) sell, whether wholesale or retail, or otherwise supply the public with such products or articles; ..." "Any person who knowingly carries out acts whose performance is restricted exclusively to pharmacists, without being qualified to act as a pharmacist shall be sentenced to a fine of between FRF 2,400 and FRF 12,000 and, if the offence is repeated, to a fine of between FRF 4,800 and FRF 24,000 and to a term of imprisonment of between six days and six months, or to either of these penalties." 19. On the basis of the above provisions the courts have classified products as medicinal products by virtue of their function, by virtue of their presentation or by virtue of their composition. 20. According to the information provided to the Court, the courts sitting as tribunals of fact are divided on the question whether the products for whose sale the applicant was convicted are medicinal products within the meaning of Article L. 511 of the Public Health Code. Thus vitamin C was classified as a medicinal product by the Courts of Appeal of Douai (9 April 1987), Poitiers (17 December 1987), Angers (5 May 1988) and Versailles (22 January 1996 in plenary session). However, decisions taking a contrary view were given by the Courts of Appeal of Douai (20 February 1988, 28 October 1988 and 23 March 1989), Angers (30 January 1989), Colmar (23 March 1988), Dijon (15 December 1988) and Paris (23 May 1995). 70% strength alcohol was designated as a medicinal product by the Courts of Appeal of Poitiers (4 December 1986 and 28 January 1987), Aix-en-Provence (17 November 1987) and Colmar (23 March 1988), but not by the Courts of Appeal of Dijon (18 May 1988 - four judgments - and 15 December 1988), Limoges (18 November 1988), Paris (14 December 1988 and 21 February 1995) and Douai (23 March 1989). Mineral supplements (oligo-éléments) have been regarded as medicinal products by the Courts of Appeal of Poitiers (17 December 1987) and Angers (5 May 1988), but not by those of Colmar (23 March 1988), Dijon (18 May and 15 December 1988), Angers (30 January 1989) and Douai (23 March 1989). As regards 10-volume hydrogen peroxide and 1% or 2% strength eosin, the majority of the courts sitting as tribunals of fact consider that these products are mere hygiene products, for example, in respect of hydrogen peroxide, the Courts of Appeal of Colmar (23 March and 18 May 1988), Douai (28 October 1988) and Paris (14 December 1988); and, in respect of eosin, the Courts of Appeal of Dijon (18 May 1988) and Paris (14 December 1988 and 21 February 1995). 21. To date the Court of Cassation has always either upheld decisions classifying a parapharmaceutical-type product as a medicinal product (judgments of 4 April 1957, 19 February 1959, 24 July 1967, 23 November 1967, 28 May 1968, 13 April 1976, 5 May 1981, 6 December 1988 - two judgments -, 29 May 1990 - see paragraph 11 above - and 25 May 1994), or quashed decisions refusing to accord this designation to such products (judgments of 19 December 1989 - three judgments -, 8 March 1990, 6 March 1992 - plenary court -, 25 May 1994 - two judgments).

train

001-24032

ENG

SWE

ADMISSIBILITY

SALKIC and OTHERS v. SWEDEN

Inadmissible

Nicolas Bratza

The applicants, Mr Senad Salkic, Mrs Nermina Salkic and their two children, Emir and Selma, are nationals of Bosnia and Herzegovina and were born in 1964, 1968, 1990 and 1996 respectively. They are currently residing in Tuzla in Bosnia and Herzegovina. They are represented before the Court by Mr P. Berkhuizen, a lawyer practising in Landskrona. The applicants are a Muslim family who originate from Ugljevik in Republika Srpska. They fled to Germany in 1992, allegedly after the family had been subjected to harassment and discrimination, such as the dismissal of Mr Salkic from his job. They remained in Germany until August 1998 when they were expelled to Bosnia and Herzegovina, where they were given temporary residence in Tuzla by the Refugee Authority of that city. According to the applicants, they were subsequently the victims of harassment and assaults, including rape committed against Mrs Salkic. Due to the difficult situation and marital problems between Mr and Mrs Salkic, the latter travelled with the children to Sweden, where they arrived on 14 August 2000, and applied for asylum on the grounds that they were living as refugees in Tuzla without the means to support themselves. On 29 November 2000 the Migration Authority (Migrationsverket) rejected the request for asylum on the ground that Mrs Salkic and her children were able to return to Bosnia and Herzegovina without risking persecution due to their ethnicity or other reasons. It further observed that a clear process of “normalisation” was on-going in Tuzla. The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden -hereinafter “the Board”), claiming that the situation in Tuzla was not such that they could return. On 19 March 2001 the Board upheld the Migration Authority’s decision in full and, on 9 May 2001, it rejected a new application lodged by the applicants as no new circumstances had been presented. On 21 May 2001 Mrs Salkic was taken into emergency psychiatric care because her mental health had deteriorated after the Board’s rejections and she was found to be suicidal. A new application was lodged with the Board based on Mrs Salkic’s state of health. However, on 12 June 2001, the Board rejected the application as it found that the circumstances were not so grave that the expulsion of the applicants would constitute a violation of humanitarian standards as laid down in the Aliens Act (Utlänningslagen, 1989:529). Subsequently, Mrs Salkic and her children lodged, one after another, three new applications with the Board in which they submitted medical certificates indicating that the mental health of all three family members was deteriorating gradually. On 11 September and 22 October 2001, respectively, the Board, on the same grounds as above, refused the first two applications. The third application was refused on 25 February 2002 with, inter alia, the following reasoning: “No circumstances have emerged which give reasons to assume that [Mrs] Salkic and her children are in need of protection. As concerns [Mrs Salkic’s] state of health, it is possible only in exceptional circumstances to grant a residence permit on this ground. It must then concern a life threatening illness for which care cannot be given in the home country or a handicap of a particularly serious kind. The investigation [in the present case] does not show that her state of health is such that it meets these strict requirements. Neither is a generally difficult situation in the home country such a circumstance which can lead to a residence permit [being granted]. Since the case concerns children under the age of 18, special regard must be had to their health and development and to the children’s best interest in general. When it concerns children who remain in Sweden, after a decision to expel them has gained legal force, the requirements for the grant of a residence permit based on a new application are that the risk of self-destructive actions of an extraordinarily serious nature by the child is considered particularly high, or that the children would be seriously harmed in their psycho-social development if they were to be expelled by force to their home country. However, all the circumstances of the particular case must be taken into account and a balance must be struck between the different interests (...). According to the Board’s assessment, nothing has emerged which shows that it would seriously harm the children in their psycho-social development if they return with their mother to their home country.” On 17 February 2002 Mr Salkic joined his family in Sweden and applied for asylum and a residence permit, claiming that on two occasions he had been severely beaten by unknown persons due to his father’s political activities and that the police had refused to file his complaints because he was a Muslim. He further stated that he could not return to his home town, Ugljevik, since currently only Serbs lived there. Furthermore, in Tuzla he would not be able to find a job to support his family. On 8 November 2002 the Migration Authority refused his request for asylum and a residence permit as it considered that he did not risk persecution if returned to Bosnia and Herzegovina. It further noted that he suffered from Post-Traumatic Stress Disorder (PTSD), for which he received medication, but that it was not so severe as to motivate granting a residence permit on humanitarian grounds. Mr Salkic appealed to the Board which, on 22 May 2003, upheld the Migration Authority’s decision, concurring with its reasoning. On 23 June 2003 the family was placed by the social authorities, in co-operation with the Migration Authority, in a family home to undergo family- and individual treatment and be under constant surveillance due to their very weak and volatile mental health which, among other things, had rendered the parents incapable of caring for their children. Furthermore, it was considered that there was a risk that Mrs Salkic and Emir would attempt to commit suicide. The aim of the treatment was to support the parents in assuming their parental roles, keep the family united, improve their mental health and help prepare the family mentally for their return to Bosnia and Herzegovina. The treatment appears to have ended on 27 November 2003 because the family went into hiding following yet another rejection by the Board (see below). During the autumn of 2003, the family as a whole lodged two more applications with the Board, invoking the continued deterioration of the mental health of all members of the family and the fact that they were undergoing treatment at the family home. The requests were rejected on 30 October and 26 November 2003, respectively, on the grounds that the documentary evidence submitted did not show that the state of health of any of the four family members was so serious that it could be described as a life-threatening illness or a particularly serious handicap, which was the requirement according to the Board’s established case-law. Having regard to the fact that the case involved two children, the Board nonetheless considered that there was nothing which, convincingly, showed that the children would be seriously damaged in their psycho-social development if they were returned to their home country together with their parents. As mentioned above, following the Board’s rejection on 27 November 2003, Mr and Mrs Salkic and Selma went into hiding to avoid expulsion. They left Emir with an uncle who resided in Sweden. The family was, however, apprehended by the police on 23 February 2004 and Mrs Salkic was taken into custody while Mr Salkic and Selma were placed in an apartment where Emir joined them. Also, on 23 February 2004, the Board refused yet another application by the family, basing its decision on the same grounds as its previous decisions. On 2 March 2004 the Board refused to suspend the expulsion pending the decision on yet another application lodged by the applicants. On the same date the applicants’ representative requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court to suspend the applicants’ expulsion. On 2 March 2004, the same date that the request was received by the Court, the President of the Section to which the case had been assigned decided to apply Rule 39 until the next Chamber meeting on 9 March 2004. He considered that it was necessary to obtain information from the Government as to whether someone would meet the family in Sarajevo to provide them with the necessary support there. On the same date the Migration Authority accordingly suspended the expulsion of the applicants until further notice. In reply to the Court’s query, the Government stated that no arrangements had been made for assistance to the applicants upon their arrival in Sarajevo. However, the Migration Authority had scheduled a meeting with them on 12 March 2004 where the issues would be discussed and similar meetings had taken place on earlier occasions. On a general note, the Government informed the Court that Sweden did not have any particular agreement with the Bosnian authorities, aid organisations or other concerning assistance to returning Bosnians. On 9 March 2004 the Chamber reconsidered the application in the light of the information provided by the Swedish Government and decided not to prolong the interim measure previously indicated under Rule 39. On 12 March 2003 the applicants informed the Court that the meeting with the Migration Authority had been cancelled, and disputed that any such meetings had been held on earlier occasions. On 19 March 2004 the Board rejected the family’s new application and lifted the suspension of the expulsion. The Board noted, inter alia, that the family, like many of their countrymen, had been through traumatic experiences and felt stress and despair at having to return to their home country. However, it maintained its reasoning from its earlier decisions. On 25 March 2004 the applicants were expelled to Bosnia and Herzegovina. The following description of the applicants’ health is based on medical and psychiatric certificates issued, between June 2001 and February 2004, by doctors, psychologists, child psychologists and a specialist in psychiatry, all of whom examined the applicants, once or over a longer period of time, while they were in Sweden. When Mr Salkic arrived in Sweden in February 2002, he was diagnosed as suffering from PTSD. According to a certificate by a specialist in psychiatry who met him for consultation on five occasions between October 2002 and February 2003, he was in need of continued psychiatric treatment. The specialist further noted that the applicant’s illness prevented him from assuming his parental responsibilities. In a certificate, dated 26 August 2003, another psychologist who had treated the family since June 2003 stated that Mr Salkic was depressed and unable to care for himself or his family. After having been apprehended by the police in February 2004, he was diagnosed at the psychiatric emergency unit at the hospital in Malmö as having a serious crisis reaction and profound anxiety and feelings of illness. Mrs Salkic was taken into emergency psychiatric care in May 2001 following a rejection by the Board which caused her to become depressed and express suicidal thoughts. After this, her mental status slowly deteriorated over time even though she was treated by various psychologists and doctors. She was given anti-depressant medication which, apparently, was not of much help. Several of the doctors she was in contact with seemed to agree that her very fragile mental health was due to the uncertainty of her and her family’s life situation during the last 10 years and anxiety about the future. In June 2003 a psychologist diagnosed her as suffering from PTSD. After having been apprehended by police in February 2004, she was diagnosed at the emergency psychiatric unit as having neither a clear depression nor suicidal thoughts, but as being very anxious and showing a severe stress reaction to the situation. On 12 April 2004 Mr and Mrs Salkic were examined at a health care centre, at the unit for mental rehabilitation, in Tuzla. The doctor found that they were both easily irritated, had a lot of headaches, dizziness, difficulties sleeping and that they were depressive. Moreover, Mrs Salkic was very anxious and tense while Mr Salkic was emotionally unstable. However, both were considered to be lucid and communicative and they were told to return for a psychiatric control within three weeks. Emir is almost 14 years old and, it appears, the one who has been suffering the most. He has traumas from earlier experiences in life and already in early 2001 the doctors noted that he was very quiet, anxious and withdrawn. He showed a deep mistrust of and fear towards both adults and other children. While in Sweden he was in continuous contact with a Child and Youth Psychiatric Clinic and a child psychologist. During 2002 he developed depression, largely it seems due to his parent’s incapacity to provide him with security, attention and care. In June 2003 he was taken into an emergency unit for child psychiatric care as he was in a deep depression and had expressed clear suicidal thoughts, a state which appears to have remained more or less unchanged since. In a medical certificate, dated 24 February 2004, the psychologist who had had the longest contact with Emir stated that he was in need of serious and long term treatment and that, if he were to be expelled to Bosnia and Herzegovina, he would be at grave risk of permanent psychiatric damage “if he survives at all”. The girl is now eight years old. According to the child psychologist, who was in continuous contact with the family while they were in Sweden, she has developed an aggressive, troublemaking, conduct to attract attention and appears to have used this as a “survival strategy”. She has shown signs of depression, inter alia, by refusing to eat. The same child psychologist stated that Selma was in need of continuous treatment over a long period to deal with her traumas. On 6 May 2004 a child psychologist in Tuzla examined Emir and Selma and noted that they showed antipathy towards their surroundings. Emir was found to be in a deep depression which could be interpreted as PTSD. Selma was found to be afraid of forming attachments as she did not want to live there. It was noted that this was typical “Bosnian syndrome” among children who had, previously, only lived briefly in Bosnia and Herzegovina. The doctor further stated, on a more general note, that there were no possibilities to give the children the treatment and help that they were in need of in Bosnia and Herzegovina and requested that the Swedish authorities assist, or else it might lead to fatal consequences for the children. Already in August 1996, the World Bank, together with the Project of Rehabilitation of War Victims (PIU), stressed the importance of the need for physical and psychosocial rehabilitation. One of the components of this project was the establishment of 38 Community Mental Health Centres in Bosnia and Herzegovina. In addition to the purchase of equipment and necessary medication, training and technical aid for physical and occupational therapy, one of the objectives of the Centres was to provide clinical services for persons with mental health problems, and psychosocial rehabilitation of war traumatised persons. Most Centres were established either within or as extensions of existing health-care centres, each planned to cover an area with a population of up to 60 000 inhabitants. In Tuzla canton there were two Centres and in Sarajevo canton there were three. Both cities also had day hospitals and university psychiatric hospitals. Simultaneously with the establishment of the Centres, several other post-war initiatives were started, creating room for global development of community-based mental health-care. Many of these initiatives were supported by the International Community. Given the huge costs caused by the war devastation (e.g. refugees/displaced persons, wounded, handicapped and killed persons) additional support was provided for mental and psychosocial rehabilitation with a special emphasis on trauma. An increasing number of clients visit the Centres which function although there are problems with lack of funding, lack of professionals and the non-existence of an integrated health insurance funding system [See, www.cmhr-bosnia.org The information appearing on the site is from March 2000]. In 2002 a Stability Pact for South-Eastern Europe was created which established a mental health project with immediate support of, inter alia, WHO, the Council of Europe and the Government of Sweden. The Ministry of Health of Bosnia and Herzegovina agreed to coordinate the initiative which focused on developing new and reinforcing existing community mental health services. The object was to provide more affordable and efficient paths to mental health care and rehabilitation. The European Union and the International Red Cross have also been involved in projects to build up and improve the health care system in Bosnia-Herzegovina.

train

001-4692

ENG

GRC

ADMISSIBILITY

DEMIR v. GREECE

Inadmissible

The applicant is a Turkish national, born in 1960 and living in Langenthal, Switzerland. He is represented before the Court by Mr B. Habegger, a lawyer practising in Langenthal, Switzerland. A. The applicant arrived in Greece in 1985 where he remained in a camp for refugees until 1987. Then he was transferred with the aid of the UNHCR to Switzerland, where he was granted asylum. On 6 July 1997 the applicant was arrested in Greece for a series of larceny allegedly committed in that country in 1993. He was detained on remand until 28 July 1997, when he was released on bail by the indictment chamber of the Court of Appeal (simvulio Efeton) of Athens, which was competent to hear the case at first instance because of the nature of the offences. However, the court ordered that the applicant should remain in Greece until his trial. On 24 October 1997 the indictment chamber of the Court of Appeal considered that there could be no serious suspicion that the applicant had committed the offences he had been charged with because at the relevant time he was in Switzerland, as it transpired from a series of official documents produced by him. It authorised the applicant to leave Greece. On 3 December 1997 the applicant was acquitted by the Court of Appeal (Efetio) of Athens. B. Relevant domestic law The Code of Criminal Procedure provides as follows: Article 533 § 2 “Persons who have been detained on remand and subsequently acquitted ... shall be entitled to request compensation ... if it has been established in the proceedings that they did not commit the criminal offence for which they were detained.” Article 535 § 1 “The State shall have no obligation to compensate a person who ... has been detained on remand if, whether intentionally or by gross negligence, he was responsible for his own detention.” Article 536 “1. Upon an oral application by a person who has been acquitted, the court which heard the case shall rule on the State's obligation to pay compensation in a separate decision delivered at the same time as the verdict. However, the court may also make such a ruling proprio motu. ... 2. The ruling on the State's obligation to pay compensation cannot be challenged separately; it shall, however, be quashed if the decision on the principal issue of the criminal trial is reversed.” Article 540 § 1 “Persons who have been unfairly ... detained on remand must be compensated for any pecuniary loss they have suffered as a result of their ... detention. They must also be compensated for non-pecuniary loss...”

train

001-57855

ENG

FRA

CHAMBER

CASE OF MIAILHE v. FRANCE (No. 1) (ARTICLE 50)

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

C. Russo;N. Valticos

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 13 December 1991, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 12661/87) against the French Republic lodged with the Commission under Article 25 (art. 25) by three French nationals, Mr William Miailhe, who also has Philippine nationality, his mother Victoria, née Desbarats, and his wife Brigitte, née Damade, on 11 December 1986. 2. In a judgment of 25 February 1993 ("the principal judgment") the Court found that there had been a breach of Article 8 (art. 8) of the Convention, as house searches and seizures by the customs had infringed the applicants’ right to respect for their private life and their correspondence (Series A no. 256-C, pp. 87-91, paras. 28-40 and point 2 of the operative provisions). Only the question of the application of Article 50 (art. 50) in the case remains to be determined. For the facts of the case, reference should be made to paragraphs 6-15 of the principal judgment (ibid., pp. 78-83). 3. As the question of awarding just satisfaction was not ready for decision, although the criminal proceedings against Mr and Mrs Miailhe had already ended, it was reserved in whole in the principal judgment. The Court invited the Government and the applicants to submit in writing, within three months, their observations on the matter and, in particular, to notify it of any agreement they might reach (ibid., p. 91, para. 44 and point 4 of the operative provisions). 4. The Registrar received the applicants’ memorial on 25 May 1993, the Government’s memorial on 14 September and the observations of the Delegate of the Commission on 21 October. 5. At the deliberations on 25 November 1993 Mrs E. Palm, substitute judge, replaced Mr L. Wildhaber, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1 of the Rules of Court).

train

001-96039

ENG

SVK

CHAMBER

CASE OF ROSKOVA v. SLOVAKIA

Violation of Article 6 - Right to a fair trial

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

4. The applicant was born in 1959 and lives in Trebišov. 5. On 27 August 1991 the applicant filed an action for distribution of matrimonial property with the Spišská Nová Ves District Court. 6. Following the Constitutional Court's finding (see below) the District Court held seven hearings, obtained further evidence and an expert opinion. 7. On 29 November 2006 the District Court delivered a judgment which became final on 30 January 2007. 8. On 13 January 2005 the Constitutional Court found that the District Court had violated the applicant's right under 48 § 2 of the Constitution to a hearing without unjustified delay. The overall length of the proceedings (more than 14 years at a single instance) was clearly inappropriate. The applicant had contributed to the length of the proceedings to a certain extent in that she had failed to appear at hearings on six occasions. 9. The Constitutional Court awarded the equivalent of 1,810 euros (EUR) at that time to the applicant as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant's legal costs.

train

001-101327

ENG

UKR

CHAMBER

CASE OF MOLODORYCH v. UKRAINE

Violation of Art. 5-3;Violation of Art. 5-4;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

4. The applicant was born in 1982. He is currently serving a prison sentence at Cherkasy Correctional Colony (Prison) (Черкаська Виправна Колонія № 62) (“the Colony”). 5. On 12 September 2001 the applicant was arrested by the police on suspicion of causing grievous bodily harm to D. According to the police, on 11 September 2001 the applicant broke into D.'s house and attacked him with a knife as he was sleeping. D. received wounds to the left side of the chest, the left forearm and the left knee. As D. resisted the attack, the applicant pulled back. The applicant stayed at the scene of the crime and called the police and an ambulance. 6. On 12 September 2001 the applicant was questioned by the police concerning the incident. The applicant was not assisted by a lawyer during his questioning. 7. On 21 September 2001 the applicant was officially charged with aggravated hooliganism (Article 296 § 4 of the Criminal Code). 8. For an unspecified period before the end of 2001 the applicant was assisted by a lawyer of his own choosing, Mr N. 9. On 25 December 2001 the investigations were completed and the case was referred to Tarasha Court (Таращанський районний суд Київської області) for trial. 10. At a preliminary hearing on 18 January 2002 the court decided to remit the case for additional investigation. 11. On 23 April 2002 the additional investigation was completed and the case was sent to the same court. 12. On 12 August 2002 Tarasha Court granted the applicant leave to be defended in the proceedings by his mother, who was not a lawyer. 13. Between May 2002 and March 2003 the court held several hearings on the merits of the case and ordered a psychiatric examination of the applicant, which was completed by March 2003. In the course of the court proceedings during the aforementioned period and during the ensuing investigations the applicant was assisted by a lawyer of his own choosing, Mr M. 14. On an unspecified date the prosecutor taking part in the proceedings requested the court to remit the case for additional investigation, stating that there was evidence that the applicant had committed a more serious crime than the one with which he had been charged. 15. On 12 March 2003 the court found that the criminal qualification of the applicant's actions was incorrect and remitted the case to the prosecutors for additional investigation. On 28 May 2003 the Kyiv Regional Court of Appeal (Апеляційний суд Київської області) dismissed an appeal by the applicant's lawyer against that decision, holding that the reasons for the remittal were based on the case materials and the prosecutor's request. The decision of the Court of Appeal did not suggest that it was subject to a further appeal. 16. On 17 July 2003 the prosecutors brought new charges against the applicant, accusing him of attempted murder for hooligan motives and of unlawful entry into a private residence (Articles 15 § 2, 115 § 2 (7), and 162 § 1 of the Criminal Code). One of the possible sanctions under Article 115 § 2 of the Criminal Code was life imprisonment. 17. On 25 July 2003 the case was referred to the Court of Appeal for trial. 18. On an unspecified date a new lawyer, Mr T., appointed by the applicant, joined the proceedings before that court. 19. On 15 October 2003 the court found the applicant guilty of unlawful entry into a private residence and aggravated hooliganism and sentenced him to six years' imprisonment. 20. On 25 March 2004 the Supreme Court quashed the judgment of 15 October 2003, holding that the Court of Appeal had wrongly assessed evidence and misapplied substantive law in the case. It decided to remit the case to the same court for fresh consideration. 21. In May-June 2004 the applicant appointed a new lawyer to assist him, Mr V., the other lawyers, Mr M. and Mr T., having ceased to represent the applicant for unspecified reasons. 22. On 4 June 2004 the Court of Appeal remitted the case for additional investigation, finding that the prosecutors had failed to establish the motive for the applicant's actions on 11 September 2001. 23. On 29 July 2004 the Supreme Court upheld the ruling of 4 June 2004. In the proceedings before the Supreme Court the applicant was represented by his mother. 24. On 8 June and 1 September 2004, respectively, the applicant was allowed to familiarise himself with the decisions of 4 June and 29 July 2004. No copies of those decisions were given to him. 25. According to the Government, on 27 September 2004 the case was received by the prosecutors, who started additional investigations. The applicant submitted that the case had been received by the prosecutors on 1 September 2004. 26. In the course of the additional investigations the prosecutors questioned several witnesses and ordered an expert examination of the knife with which the applicant had attacked the victim. The examination was completed on 18 October 2004. 27. On 21 October 2004 a lawyer, Mr L., was appointed by the prosecutors to assist the applicant in the proceedings. According to the applicant, Mr L. did not assist him at all. 28. On the same day the applicant was questioned by the prosecutors concerning the issues raised before the expert examining the knife. It is unclear whether the lawyer L. was present during the applicant's questioning. 29. On 23 October 2004 the investigators brought new charges against the applicant, following a requalification of his actions on 11 September 2001. The applicant was accused of attempted murder for mercenary motives and robbery accompanied by infliction of grievous bodily harm (Articles 15 § 3, 115 § 2 (6), and 187 § 3 of the Criminal Code). 30. On 24 October 2004 the additional investigations were completed and on 12 November 2004 the case was sent to the Court of Appeal for trial. 31. On 2 December 2004 the court held a preliminary hearing in the case, which the applicant's lawyer failed to attend. 32. On 24 December 2004 the Court of Appeal found the applicant guilty of attempted murder for mercenary motives and of robbery accompanied by infliction of grievous bodily harm. The applicant was sentenced to ten years' imprisonment, which was to be calculated from 12 September 2001, with confiscation of all his property. He was also ordered to pay 10,711.90 Ukrainian hryvnias (UAH) to D. in compensation and UAH 984.90 to a hospital in which D. had been treated. 33. The court based its judgment partially on the statements of the applicant made before it and his statements obtained during the pre-trial investigations, the statements of the victim, an eyewitness and three other witnesses heard by the court, and reports from seven experts. 34. The court noted that the applicant did not deny that he was involved in the incident, though his submissions concerning it during various stages of the proceedings differed substantially. 35. By a separate ruling of 24 December 2004, the Court of Appeal found that the persons responsible for the pre-trial investigations had not complied with the requirements of promptness, objectivity and completeness, because of which the case had been remitted for additional investigation on three occasions. It ordered the prosecutors to adopt relevant measures in respect of those irregularities. 36. The applicant's mother, acting on his behalf, and the applicant himself, lodged separate appeals in cassation with the Supreme Court. They alleged that the Court of Appeal had erred in its assessment of the evidence and had wrongly applied the law in the case, that the pre-trial investigations had not been completed in due time, that the applicant had not been given accurate information concerning the charges against him, that his right to defence had been violated as no lawyer had been appointed to assist him from the beginning of the additional investigations in September 2004, and that because of this the applicant had not had sufficient time to prepare his defence. 37. According to the applicant, the lawyer appointed for him by the authorities did not assist him in the preparation of his appeal in cassation. 38. On 17 March 2005 the Supreme Court upheld the judgment of 24 December 2004, finding, inter alia, that the applicant's right to defence had not been violated. 39. Following his arrest on 12 September 2001, the applicant was placed in Tarasha Police Preliminary Detention Centre (Ізолятор тимчасового тримання Таращанського РВ ГУ МВС України в Київській області) (“the ITT”). 40. On 14 September 2001 Tarasha Court remanded the applicant in custody in view of the pending criminal investigations against him and ordered his placement in Kyiv Pre-Trial Detention Centre (Слідчий ізолятор № 13 Управління Державного Департаменту України з питань виконання покарань в м. Києві та Київській області) (“the SIZO”). The court found that the applicant was accused of a particularly serious crime (aggravated hooliganism) punishable by the deprivation of liberty for a term of over ten years and that if the applicant remained at liberty he might seek to evade investigation and trial and obstruct the establishment of the truth in the case. 41. By a decision of 12 November 2001, the maximum period of the applicant's detention was extended for four months. Tarasha Court put forward similar reasons for the applicant's continued detention as were contained in its decision of 14 September 2001. 42. Subsequently, the applicant's continued pre-trial detention was ordered by Tarasha Court decisions of 18 January, 22 May and 22 August 2002 and 12 March 2003, and of the Court of Appeal of 4 June and 2 December 2004, according to which that there were no grounds for changing the preventive measure applied in respect of the applicant. 43. For the same reasons, the applicant's requests of 12 August 2002, 11 March 2003 and 27 May 2004 for release from detention raised at court hearings in his case were rejected by Tarasha Court on 12 August 2002 and 11 March 2003 and by the Court of Appeal on 27 May 2004 respectively. On 21 March 2003 the Court of Appeal refused to consider the applicant's appeal against the decision of 11 March 2003, holding that procedural decisions adopted in the course of a trial, including decisions concerning preventive measures, were not subject to appeal. 44. The applicant's request for release, which he had lodged with the Tarasha Court on 22 January 2002, was not considered on the merits, the applicant having been informed by a letter from that court that the matter had already been determined in its decision of 18 January 2002. 45. The applicant's requests for release were mainly based on the following arguments: after the incident on 12 September 2001 the applicant had not tried to run away and had made no attempts to obstruct the collection of evidence or to destroy it; the charges against him were groundless; he was detained for a long period of time after his arrest in September 2001; and he had health problems for which he could not receive adequate treatment while in detention. In his submissions before the courts, the applicant suggested that he could be released on an undertaking not to abscond. 46. Relying on the same arguments, the applicant appealed against the decision of 12 March 2003 (see paragraph 42 above). In its decision of 28 May 2003 the Court of Appeal acknowledged the applicant's appeal, though it did not elaborate on the matter. 47. According to the applicant, on 24 November 2003 he lodged with the Court of Appeal an appeal in cassation against the decisions of 12 March and 28 May 2003, though this was not considered by the courts. The applicant did not provide a copy of his appeal in cassation. The Government submitted that the applicant had not appealed in cassation against the decisions of 12 March and 28 May 2003. 48. The applicant was detained in the ITT until 11 September 2002, when he was placed in the SIZO. On 7 June 2005 he was transferred to the Colony. 49. According to the applicant, on 20 January 2001 he became ill and was seen by an ambulance paramedic, who was not competent to establish a diagnosis or prescribe treatment. The applicant raised this matter before Tarasha Court in one of his requests for release, but to no avail. The applicant provided no further details of the incident on 20 January 2001. 50. During his detention in the SIZO and the Colony the applicant underwent medical checks, including X-ray examinations and blood tests, on 12 September 2001, 11 September 2002, 18 April and 24 October 2003, 17 May, 7 June and 20 August 2005, and 26 June 2006. There were no serious health issues noted by the doctors examining the applicant. 51. The applicant requested medical assistance on three occasions, namely on 14 September and 28 October 2005 and 27 April 2006. He was diagnosed with bronchitis and periodontitis, for which he was treated by doctors. 52. On 27 June 2006 the applicant was examined by a medical panel composed of a prison doctor, a general practitioner, a dentist and a psychiatrist. They concluded that the applicant was “practically healthy” and that his state of health had not deteriorated since his arrival at the Colony. An additional medical examination of the applicant on 12 December 2006 confirmed those conclusions. 53. According to the applicant, in the Colony he was at risk of contracting tuberculosis, as prisoners suffering from that condition were detained in the same building as the applicant, though on another floor. He also stated that between September and October 2005 the building had not been sufficiently heated and he had had no warm clothes. The applicant alleged that the light in the Colony was inadequate, but provided no further details. 54. The relevant provisions of the Constitution read as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in detention other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law ...” 55. The relevant extracts from Chapter 3 (Persons participating in the proceedings, their rights and obligations) read as follows: “Participation of a defence lawyer in the inquiry, pre-trial investigations and trial by the first-instance court is compulsory: ... (4) from the moment of the person's arrest or when he or she is [officially] charged with a criminal offence carrying a penalty of life imprisonment...” 56. The relevant extracts from Chapter 10 (Inquiry), as worded at the material time, read as follows: “A body of inquiry shall be entitled to arrest a person suspected of having committed a crime for which imprisonment may be imposed, subject to the existence of one of the following grounds: 1) that the person was discovered whilst committing the crime or immediately after committing it; 2) that eyewitnesses, including victims, directly identify that person as the one who committed the crime; 3) that clear traces of the crime are found on the body of the suspect, or on his clothes, or in his home. If there are other data constituting grounds for suspecting a person of having committed a crime, he may be detained only if he has attempted to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established. ... Within seventy-two hours of the arrest the body of inquiry shall: 1) release the arrested person if the suspicion that he has committed the crime has not been confirmed, or the [maximum] term of detention following arrest has expired, or if the arrest was carried out in violation of the requirements provided for in parts 1 and 2 of this Article; 2) release the arrested person and select a non-custodial preventive measure; 3) bring the arrested person before a judge with a request for his placement in custody... The suspect's detention following arrest shall not last more than seventy-two hours...” “The procedure for short-term detention of persons suspected of committing a crime shall be determined by the [relevant] regulations...” “... If the suspect has been arrested or placed in custody ... he shall be questioned immediately, or, if an immediate questioning is not possible, within twenty-four hours of his arrest ...” “An investigator may arrest and question a person suspected of having committed a crime according to the procedure provided for in Articles 106, 106-1, and 107 of the Code...” 57. The relevant extracts from Chapter 13 (Preventive measures) read, as worded at the material time, as follows: “Preventive measures shall be applied in respect of a suspect, accused, defendant or convict with the aim of preventing attempts to abscond from the investigation or trial, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be applied if there are sufficient grounds to consider that the suspect, accused, defendant or convict will try to abscond from the investigation or trial, or evade complying with procedural decisions, or obstruct the establishment of the truth in a criminal case, or pursue criminal activities. If there are not sufficient grounds to apply a preventive measure, the suspect, accused, defendant or convict shall be required to give a written undertaking to appear when summoned by the person conducting the inquiry, the investigator, prosecutor, or the court, and to inform them of any change of his place of residence. In the case of the application of a preventive measure in respect of a suspect, he shall be [officially] charged within ten days of the date the preventive measure was applied. If no charges are brought [against him] within that period, the preventive measure shall be lifted.” “The preventive measures shall be as follows: 1) a written undertaking not to abscond; 2) a personal surety; 3) the surety of a non-governmental organisation or labour collective; 3-1) bail; 4) placement in custody; 5) supervision by the command of a military unit. The arrest of a suspect is a temporary preventive measure applied on the grounds and according to the procedure provided for in Articles 106, 115, and 165-2 of the Code.” “In deciding on the application of a preventive measure, in addition to the circumstances specified in Article 148 of the Code, such circumstances as the gravity of the crime of which the person is suspected or with which he is charged, his age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person shall be taken into consideration.” “Placement in custody, as a preventive measure, shall be applied in cases concerning criminal offences carrying a penalty of more than three years' imprisonment. In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law provides for a punishment of up to three years' imprisonment...” “Detention during a pre-trial investigation shall not last more than two months. When it is impossible to complete the investigation within the period provided for in part 1 of this Article and there are no grounds for discontinuing the preventive measure or replacing it with a less restrictive measure, [the term of pre-trial detention] may be extended: (1) for up to four months – upon a request approved by the prosecutor supervising the compliance with the laws of the bodies of inquiry and investigation, or at the same prosecutor's [request], by a judge of the court which ordered the application of the preventive measure; (2) for up to nine months – upon a request approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of the Crimea, regional prosecutors, Kyiv and Sevastopol prosecutors, and prosecutors of equal rank, or on the same prosecutor's [request] in cases concerning serious and particularly serious crimes, by a judge of the court of appeal; (3) for up to eighteen months - upon a request approved by the Prosecutor General of Ukraine and his Deputy, or at the same prosecutor's [request] in particularly complex cases concerning particularly serious crimes, by a judge of the Supreme Court of Ukraine; In each case, when it is impossible to complete the investigation within the periods specified in parts 1 or 2 of this Article and there are no grounds for changing the preventive measure, the prosecutor supervising compliance with the law in the course of the investigation in the case shall have the right to approve the referral of the case to the court in the part relating to proven charges. In such an event, the part of the case relating to criminal offences or episodes of criminal activity the investigation of which has not been completed shall be disjoined from the proceedings pursuant to the requirements of Article 26 of the Code and completed in accordance with the general rules. The term of pre-trial detention shall be calculated from the moment when the person was placed in custody, or, if his placement in custody was preceded by his arrest [within the meaning of Article 115 of the Code], from the time of the arrest. The term of pre-trial detention shall include time during which the person has undergone inpatient expert examination in a psychiatric medical institution of any type. If the person is repeatedly placed in custody within the framework of the same proceedings ... or if new charges are brought against him, the time the person has spent in detention before this shall be taken into account when calculating the term of pre-trial detention. The term of pre-trial detention shall end on the day the court receives the case file. If the case is withdrawn from the court by the prosecutor pursuant to Article 232 of the Code, the running of the time shall resume on the day on which the prosecutor receives the case. The materials of the criminal case in which the investigation has been completed shall be given to the detainee and his defence no later than a month before the expiry of the maximum term of detention set by part 2 of this Article. If the time-limit for providing the accused and his defence with the case materials is not complied with ... the accused shall be released immediately after the expiry of the maximum term of detention set by part 2 of this Article. In such a case, the accused and his defence shall continue to be entitled to familiarise themselves with the case materials. If the time-limit for providing the accused and his defence with the case materials is complied with ... but the time allowed for the accused and his defence to familiarise themselves with the case materials appears to be insufficient, the maximum term of detention set by part 2 of the Article may be extended by a judge of the court of appeal at the investigator's request approved by the Prosecutor General of Ukraine or his Deputy, or upon the same prosecutor's or his deputy's request. If there are several accused held in detention and the period provided for in part 6 of this Article appears to be insufficient for at least one of them to familiarise himself with the case materials, such a request may be submitted in respect of an accused who has already familiarised himself with the case materials, provided it remains necessary to keep that person or persons in detention and there are no grounds for the application of another preventive measure. If the case is returned by the court to the prosecutor for additional investigation, the term of pre-trial detention shall be calculated from the time the case is received by the prosecutor and shall not exceed two months. Further extension of that term shall be ordered in accordance with the procedure and within the limits provided for in part 2 of this Article, and the time the accused was held in detention before the referral of the case to the court shall be taken into account. If the term of pre-trial detention ... provided for in parts 1 and 2 of this Article has ended and if this term was not extended in accordance with the procedure laid down in the Code, the body of inquiry, investigator or prosecutor shall immediately release the person from detention. Governors of pre-trial detention centres shall immediately release from detention accused persons in respect of whom no court resolution extending the term of pre-trial detention has been received on the day of expiry of the term of pre-trial detention provided for in parts 1, 2, and 6 of this Article. They shall accordingly notify the person or authority before whom the case is pending and the prosecutor supervising the investigation.” “Placement in custody, as a preventive measure, shall be applied only pursuant to a reasoned resolution of a judge or ruling of a court... A preventive measure may be replaced by another preventive measure or lifted by the body of inquiry, investigator, prosecutor, judge or a court in accordance with part 1 of the Article. A preventive measure may be changed or lifted if there is no need for it to be applied ...” “A judge shall issue a resolution and a court shall issue a ruling on the application, discontinuation or change of a preventive measure... In the resolution (ruling) on the application or change of a preventive measure ... reasons for its application or change shall be mentioned... In the resolution (ruling) discontinuing the application of a preventive measure reasons shall be mentioned... The person concerned shall be immediately notified of the resolution (ruling)... At the same time the person shall be informed about the procedure and time-limits for challenging the resolution or ruling.” “At the stage of pre-trial investigation a non-custodial preventive measure shall be selected by a body of inquiry, investigator [or] prosecutor. If a body of inquiry [or] investigator considers that there are grounds for ... placement in custody [it or] he shall, with the prosecutor's consent, submit a request to the court. The prosecutor is entitled to submit a similar request. When considering the matter the prosecutor shall familiarise himself with all the material containing grounds for placement in custody, check whether the evidence was lawfully obtained and whether it is sufficient to bring charges [against the suspect]. The request shall be considered within seventy-two hours of the arrest of the suspect or accused. If the request concerns placement in custody of [a suspect or accused] who is at liberty, the judge shall have the power ... to issue a warrant for [his] arrest and escort to the court. In such case, the detention shall not exceed seventy-two hours, or, if the person concerned is outside the locality in which the court operates, [the detention] shall not exceed forty-eight hours from the time the arrested person was brought to the locality. Upon receipt of the request, the judge shall study the material in the criminal case file submitted by the body of inquiry, investigator [or] prosecutor, question the suspect or accused, and, if necessary, obtain explanations from the person dealing with the case, hear the prosecutor, [and] the defence lawyer if [the latter] has appeared before the court, and deliver a resolution: 1) refusing the preventive measure, if there are no grounds for its application; 2) ordering placement in custody... Having refused ... to place the suspect [or] accused in custody, the court shall have the power to apply a non-custodial preventive measure to him or her. The judge's resolution may be appealed against to the court of appeal by the prosecutor, suspect, accused, his defence or representative within three days of its delivery. The introduction of an appeal shall not suspend the execution of the judge's resolution. If it is necessary to study further the personal circumstances of the arrested person or to establish other circumstances relevant for the question of the application of a preventive measure ... the judge shall have the power to extend the applicant's detention for up to ten or, at the request of the suspect or accused, fifteen days...” “When there are no grounds for changing the preventive measure or if it is impossible to complete the investigation of the case in the part relating to proven charges, an investigator, upon the relevant prosecutor's approval, or the same prosecutor, shall apply to the court with a request for an extension of the term of pretrial detention. The request shall contain reasons, in connection with which it is necessary to extend the term, circumstances which must be examined, evidence that the detainee committed the crime [of which he or she is accused], and grounds for the necessity to maintain the preventive measure. The request for extension of the term of the person's pre-trial detention shall be submitted to the court: (1) in the event of an extension of the term of pre-trial detention for up to four months not later than five days before the expiry of the term of the person's detention; (2) in the event of an extension of the term of pre-trial detention for up to nine months not later than fifteen days before the expiry of the term of the person's detention; (3) in the event of an extension of the term of pre-trial detention for up to eighteen months not later than twenty days before the expiry of the term of the person's detention; (4) in the event of an extension of the term of pre-trial detention for the accused and his defence to familiarise themselves with the case materials not later than five days before the expiry of the maximum term of pre-trial detention; Having received the request, the judge shall examine the materials of the criminal case; if necessary, [the judge shall] question the accused, the investigator, hear the prosecutor, the defence if [the latter] has appeared [before the judge], following which [the judge] shall issue a resolution extending the term of pre-trial detention, if there are grounds for this, safe in the case envisaged in paragraph 7 of Article 156 of the Code, or [the judge] shall refuse its extension. The prosecutor, suspected, accused or his defence or legal representative may lodge an appeal against the resolution of the judge within three days of its delivery. Such an appeal shall not suspend the execution of the judge's resolution. The resolutions issued by judges of a court of appeal and of the Supreme Court shall not be subject to an appeal...” 58. The relevant extracts from Chapter 23 (Preliminary consideration of the case by the judge) read as follows: “The judge shall examine ... the following matters: ... (4) whether there are grounds for changing, discontinuing or applying a preventive measure; ...” “Preliminary consideration of a case shall be performed by a single judge with the compulsory participation of a prosecutor. Other persons taking part in the proceedings shall also be informed about the day of the preliminary hearing, though their failure to appear shall not prevent [the judge] from considering the case...” “In the course of preliminary consideration of a case the judge ... shall issue a resolution remitting the case for additional investigation if there were [procedural shortcomings] ... in the course of institution of the proceedings, inquiry or pre-trial investigation, without rectification of which the case may not be admitted for trial. ...The judge may also remit a case for additional investigation if there are grounds for charging the accused with a more serious crime ... or with a crime with which he or she was not charged earlier... In the resolution the judge shall state reasons for remitting the case for additional investigation... In the same resolution [the judge] shall decide on the preventive measure in respect of the accused. ... The parties may lodge an appeal with a court of appeal, or if the case has already been considered by a court of appeal acting as a first-instance court, [the parties may lodge] an appeal in cassation with the court of cassation against the resolution within seven days of its delivery.” “Having decided to commit [an accused] for trial, the judge shall resolve the following issues: (1) concerning the appointment of a defence lawyer, if his or her participation in the case is compulsory; (2) concerning the change, discontinuation or application of a preventive measure; ...” 59. The relevant extracts from Chapter 24 (General provisions on judicial consideration (trial)) read as follows: “In the course of consideration of a case the court may issue a ruling changing, discontinuing or selecting a preventive measure in respect of a defendant, if there are grounds for this. The procedure for selecting detention as a preventive measure shall be governed by the relevant provisions of Chapter 13 of the Code.” “A case may be remitted for additional investigation on the ground of incompleteness or wrongfulness of the pre-trial investigations only if such incompleteness or wrongfulness cannot be remedied [in the trial]. The question concerning the remittal of a case for additional investigation shall be determined by a reasoned ruling of the court or a resolution by the judge... The parties may lodge an appeal with a court of appeal, or if the case has already been considered by a court of appeal acting as a first-instance court, [the parties may lodge] an appeal in cassation with the court of cassation against the resolution within seven days of its delivery.” 60. The relevant extracts from Chapter 30 (Consideration of the case on appeal), as worded at the material time, read as follows: “An appeal may be lodged against: (1) judgments adopted by local courts which have not entered into force; (2) resolutions adopted by local courts concerning the application or nonapplication of forced measures of an educational or medical nature; An appeal may also be lodged against: (1) rulings (resolutions) adopted by a local court discontinuing the proceedings in a case or remitting a case for additional investigation; (2) separate rulings (resolutions) adopted by a local court; (3) other resolutions of local courts in cases envisaged by the Code.” “The following persons are entitled to lodge an appeal: (1) a convict, his legal representative and defence concerning the part of the case relating to the interests of the convict; ... (6) an accused whose case has been remitted for additional investigation, his legal representative and defence, concerning the reasons and grounds for the remittal of the case for additional investigation; ... (12) other persons in cases envisaged by the Code.” “A court of appeal shall consider the case on the day determined by the firstinstance court...” “... Having considered appeals against the decisions envisaged in part 2 of Article 347 of the code, a court of appeal [has the power to]: (1) adopt a ruling leaving the ruling or resolution without any changes and dismissing appeals, quashing the ruling or resolution and remitting it to the court of first instance for fresh consideration ... changing the ruling or resolution; (2) dopt a ruling while quashing the first-instance court's ruling or resolution in full or in part.” “Judicial decisions listed in part 2 of Article 347 of the Code shall be reviewed on appeal in accordance with the requirements of this Chapter... Appeals lodged against resolutions of a judge delivered pursuant to Articles 52-5, 165-2, 165-3, 177, [and] 205 of the Code shall be considered not later than three days of its arrival at the court of appeal. [Case] material pertinent to the consideration of such appeals shall be obtained promptly on demand. ...” 61. The relevant extracts from Chapter 31 (Cassation proceedings), as worded at the material time, read as follows: “The [following decisions] may be reviewed in cassation: (1) judgments, rulings and resolutions of a court of appeal which it has adopted acting as a court of first instance; (2) udgments and resolutions of a court of appeal adopted on appeal. Judgments and resolutions of [local] ... courts and rulings of a court of appeal concerning those judgments and resolutions may also be reviewed in cassation.” “The persons listed in Article 348 of the Code may lodge an appeal in cassation against the judicial decisions envisaged in part 1 of Article 383 of the Code. [The following persons] are entitled to lodge appeals in cassation against the judicial decisions envisaged in part 2 of Article 383 of the Code: (1) a convict, his legal representative and defence concerning the part of the case relating to the interests of the convict; ...” “An appeal in cassation ... against the judicial decisions envisaged in part 1 of Article 383 of the Code shall be scheduled for a hearing in cassation within two months of its submission to the court of cassation, an appeal in cassation ... against the judicial decisions envisaged in part 2 of Article 383 of the Code – within two months of the delivery of a ruling admitting the case for consideration in cassation.” “Having considered a case in cassation, the court of cassation shall adopt one of the following decisions: (1) a decision leaving the judgment, resolution or ruling unchanged and dismissing appeals in cassation; (2) a decision quashing the judgment, resolution or ruling and remitting the case for additional investigation or fresh trial or consideration on appeal; (3) a decision quashing the judgment, resolution or ruling and discontinuing the proceedings; (4) a decision changing the judgment, resolution or ruling. ...” 62. The relevant extracts from Section 9 of the Act, as worded at the material time, read as follows: “Detainees have the right to: defence in accordance with the legislation on criminal procedure; ...” 63. The above provisions were amended on 12 January 2005 and read as follows: “Detainees have the right to: defend their rights and interests in person or through the assistance of a defence lawyer from the moment of the arrest or placement in custody, as well as to be informed during the placement in custody of the reasons and causes for that placement in custody, to challenge [the reasons and causes] before the court, to receive in writing an explanation of the provisions of Articles 28, 29, 55, 56, 59, 62, and 63 of the Constitution of Ukraine, of this section and of other rights of detainees established by law, including the right to defend their rights and interests in person or through the assistance of a defence lawyer from the moment of the arrest (placement in custody), the right to refuse to testify before a defence lawyer arrives; ...” 64. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “14. ... Resolutions of local courts remitting cases for additional investigation and rulings [adopted by] courts of appeal [concerning such resolutions], as well as rulings of courts of appeal quashing judgments of local courts and remitting cases for fresh investigation or trial shall not be reviewed in cassation (according to the procedure envisaged by Articles 383 § 2 and 386 § 2 of the Code of Criminal Procedure), as they do not, as such, hinder further proceedings in cases.”

train

001-22474

ENG

FIN;SWE

ADMISSIBILITY

G. and A. v. FINLAND and SWEDEN

Inadmissible

Nicolas Bratza

The first applicant is a Swedish and the second applicant a Finnish national. They were born in 1943 and 1950 respectively and are currently living in Åkersberga, Sweden. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants and their son I. (born in 1988) first lived in Sweden until 1993, when they moved to his grandmother in Luopioinen (Finland) after a public care order had been issued in Sweden. In both countries I. underwent intelligence and other tests on account of certain behavioural problems (indications of slight retardation and autism, increasing isolation and aggression). The Finnish authorities considered his symptoms to be of a psychological nature. The applicants considered them neurological but this contention could not be supported by any of the expert findings. Nonetheless, the applicants did not accept that I. be admitted for further examinations at a child psychiatric clinic. In early November 1995 the applicant father was detained for a few days with a view to assessing whether he was in need of compulsory mental care on account of possible paranoia. On 7 November 1995, after the municipality had excluded I. from his regular school class due to his behavioural disturbances, the family returned to Sweden. On 8 December 1995 the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Luopioinen placed I. in public care under the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). According to the applicants, they were not heard prior to the making of the order. Their appeal was dismissed by the County Administrative Court (lääninoikeus, länsrätten) of Häme. On 29 November 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) dismissed their further appeal. They had contended, inter alia, that the reports given by the authorities had contained incorrect information and that I.’s referral to the child psychiatric clinic, which had been signed by the doctor of the health care centre, had not been made available to them. Having considered the evidence adduced, the court found no indication that the information given by the authorities had been incorrect. The court concluded, in light of the evidence adduced, that the referral report had not been at the disposal of the Social Welfare Board either. In May 1997, when consulting the case-file at the Supreme Administrative Court, the applicants allegedly discovered a number of false and misleading documents which had not been communicated to them in the proceedings concerning the initial care order. Their request to have the proceedings re-opened on this ground was dismissed by the Supreme Administrative Court on 16 October 1997. The court found no procedural error which could have had a significant effect on its earlier decision. On 20 January 1997 Swedish police fetched I. and transferred him to the Finnish authorities pursuant to a Nordic treaty on the enforcement of care orders. His public care was initially implemented in a clinic for severely physically and mentally retarded children at Ylinen, where he underwent various intelligence and other ability tests. The conditions were allegedly harsh. On 12 June 1997 the Social Welfare Board maintained I.’s public care, dismissing the applicants’ request to the contrary. Their appeal was dismissed on 4 December 1997 after an oral hearing before the County Administrative Court. Meanwhile, in August 1997 I. had been admitted to a child psychiatric clinic for further examinations. In February 1998 he was placed in a foster family at Rautajärvi, where the applicants allegedly had difficulties in gaining access to him. On 2 November 1999 the Supreme Administrative Court declined to examine their appeal in so far as concerning I.’s placement at Rautajärvi, that having been a temporary placement against which no appeal avenue had been open. The court likewise declined to examine their appeal against the access restriction as under domestic law this had been finally determined by the County Administrative Court. The court dismissed the other aspects of their appeal. Meanwhile, on 11 June 1998 the Social Welfare Board decided to place I. in a children’s home in Lahti. In August 1998 he was placed in another foster family in Lahti in order to attend another school. The Board granted the applicants’ request to fly I. to the USA to be examined by specialists. The applicants’ appeals in the other respects were dismissed by the County Administrative Court on 3 March 1999. On 7 February 2001 the Supreme Administrative Court dismissed their further appeals concerning I.’s transfer to the children’s home and declined to examine the other aspects. For financial reasons, the applicants had to postpone their trip with I. to the USA until 1999. On 10 June 1999, however, the Social Welfare Board withdrew its permission for I. to go on the trip after experts had considered that a trip at that moment would not be in his best interests. On 13 April 2000 the Board restricted the meetings between I. and the applicants to one per month and dismissed their new request to take I. on a trip to the USA. Their appeal was dismissed on 27 September 2000. On 7 February 2001 the Supreme Administrative Court declined to examine their further appeal, as no right to a further appeal existed. A restriction on visits has allegedly been in force throughout I.’s public care, and was prolonged by the Social Welfare Board, most recently, in February 2001. Currently one monthly visit is allowed in the children’s home. In May 2001 the Social Welfare Board again refused the applicants permission to take I. on a trip to the USA. The applicants’ appeal against the recent access restriction and the refusal to allow I. to travel to the USA was dismissed by the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) on 1 March 2002. According to the Government, the facts of the case are as follows. By a letter of 29 November 1995, the Social Welfare Board of Luopionen had informed the applicants that, on 8 December 1995, it was going to consider a proposal to place I. in public care. The Board had recalled, inter alia: “The problems relating to the growth and development of your son [...] have been discussed at several meetings which you have also attended. However, because you have not consented to the examinations and rehabilitation needed for the purpose of helping your son, public care [has been] found appropriate.” In the same letter the Board had invited the applicants to comment on the proposed care order, either orally in the social welfare office on 8 December or in writing by 7 December 1995. Furthermore, they had been told that they would be able to consult the Board’s case-file during their possible visit on 8 December 1995. Receipt of the letter had been acknowledged by the applicants on 2 December 1995 in Sweden, where they had lived since 7 November. The applicants had not taken any contact with the Social Welfare Board which had issued the proposed care order and referred the matter for approval by the County Administrative Court. After the applicants had appealed the court had invited them to comment on the Social Welfare Board’s rejoinder with annexes (i.e. a decision of the County Administrative Court (kammarrätten) of Stockholm of 8 April 1993 and a summary of the measures taken by the Finnish authorities from 1993 onwards). The applicants had submitted their comments on 20 February 1996 and in subsequent letters. After the applicants had appealed against the County Administrative Court’s decision of 13 May 1996 the Supreme Administrative Court had afforded them an opportunity to comment in writing on the Social Welfare Board’s rejoinder. The Board had noted, inter alia, that its decision had been based on several reports and opinions, beginning with the documents relating to the public care order issued in Sweden in 1993. The court’s letter had been received by the applicants on 31 August 1996 and the second applicant had submitted written comments. In their comments in reply to the factual information provided by the Government the applicants contend that four specific reports considered by the Social Welfare Board on 8 December 1995 (and listed in its decision) had not been made available to them until May 1997, i.e. after the initial care proceedings had ended. The further report of the Finnish social welfare authorities dated 12 February 1996 had been made available to them only in the Convention proceedings. In that document the official had recounted the Finnish social authorities’ suspicion in 1994 that I. had been sexually abused in the family, which the applicants deny. The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], no. 25702/94, §§ 94-136, ECHR 2001).

train

001-22644

ENG

FRA

ADMISSIBILITY

PICHON and SAJOUS v. FRANCE

Inadmissible

The applicants [Mr Bruno Pichon and Mrs Marie-Line Sajous] are French nationals, who were born in 1955 and 1949 respectively and live in Salleboeuf (Gironde). They were represented before the Court by Mr Tremolet de Villers, of the Paris Bar. The applicants are the joint owners of a pharmacy in Salleboeuf. On 9 June 1995 three women arrived at the same time at the applicants’ pharmacy to be told in turn that they could not be supplied with the contraceptives prescribed to each of them by their doctors in prescriptions whose validity has never been called into question. On the same day the three women in question filed a complaint against the applicants for refusing to sell contraceptives on a doctor’s prescription, an offence provided for and punished by Article 33, paragraph 1 of Decree no. 86-1309 of 29 December 1986 and Article L 122-1 of the Consumer Code. They lodged a civil-party claim in which they were joined by an association. The applicants argued before the Bordeaux Police Court that the refusal to sell of which they were accused was justified on the legitimate ground that no statutory provision required pharmacists to supply contraceptives or abortifacients. They relied on Article L 645 of the Public Health Code, under which pharmacists were not required to supply single or compound preparations based on oestrogens. In a judgment of 16 November 1995 the Bordeaux Police Court found the applicants guilty of the offences of which they had been accused. The Police Court noted the following: “Article L 645, on which the defendants rely, does not in any way concern contraceptive medicines but only abortifacients”; the products that the applicants had refused to supply were contraceptive medicines “which [could] not be regarded as the equivalents of abortifacients”. The Police Court added: “Ethical or religious principles are not legitimate grounds to refuse to sell a contraceptive. There is no legislation which authorises pharmacists to refuse to supply contraceptives, unlike the provisions relating to doctors, midwives and nurses as regards the termination of pregnancy (Article L 602-8 of the Public Health Code)”. In conclusion the Police Court held as follows: “Consequently, as long as the pharmacist is not expected to play an active part in manufacturing the product, moral grounds cannot absolve anyone from the obligation to sell imposed on all traders by the law (Article L 122-1 of the Consumer Code)”. The applicants were sentenced to a fine of 5,000 French francs (FRF) each and ordered to pay, jointly and severally, FRF 1,000 in damages to the three complainants. The applicants appealed against that judgment. In a decision of 14 January 1997, the Bordeaux Court of Appeal upheld the Police Court’s judgment. It noted that the applicants had never disputed that they had committed the acts of which they were accused and that they had stated that their conduct was dictated by religious reasons. It further observed: “The offences of refusing to sell for which the defendants stood trial did not stem in any way from a practical impossibility to satisfy their customers but were committed in the name of religious convictions which cannot be interpreted as a legitimate reason within the meaning of Article L 122-1 of the Consumer Code. Thus the failure to stock this type of product in their dispensary was not the cause but indeed the consequence of this refusal on principle”. The Court of Appeal also noted that the defendants’ pharmacy was the only one in Salleboeuf. It upheld the Police Court’s finding that the products which the applicants had refused to sell were not covered by Article L 645 of the Public Health Code. The applicants lodged an appeal on points of law against that judgment. They relied in particular on Article 9 of the Convention, asserting that the freedom to manifest one’s religion implied that a pharmacist was entitled not to stock contraceptives whose use amounted to an interference with their religious beliefs. In a judgment of 21 October 1998 the Court of Cassation dismissed that appeal. It agreed with the Court of Appeal’s finding that “personal convictions ... [could] not constitute for pharmacists, who have the exclusive right to sell medicines, a legitimate reason within the meaning of Article L 122-1”. The Court of Cassation’s decision was served on the applicants by a letter from the prosecuting authorities of the Bordeaux Court of Appeal dated 4 December 1998 and posted on 7 December 1998. “It is prohibited to refuse to sell a product or provide a service to a customer for no legitimate reason, to make the sale of a product conditional on the purchase of a compulsory quantity or the concomitant purchase of another product or payment for another service or to make the provision of a service conditional on the provision of another service or the purchase of a product. This provision shall apply to all the activities contemplated in the last paragraph of Article L 113-2.” “The rules relating to the scope of Ordinance no. 86-1243 of 1 December 1986 cited above are laid down by Article 53 of that Ordinance, which provides as follows: “Article 53: The rules laid down in the present ordinance apply to all production, distribution, and service activities, including those that are carried out by public bodies, particularly under agreements on the delegation of public service activities.” NB: Article 53 of Ordinance no. 86-1243 of 1 December 1986 as set out above was repealed by Ordinance no. 2000-912 of 18 September 2000.” “The offer for sale of products or provision of services in breach of the provisions of Article 37 of Ordinance no. 86-1243 of 1 December 1986 shall be punishable by the fines applicable to minor offences (contraventions) of the fifth class. If the offence is repeated, the fines imposed for repeated minor offences of the fifth class shall be applicable.” (Transferred into R113-1 and R121-13 of the Consumer Code). “It is prohibited for any person in any way whatsoever to display, offer, cause to be offered, sell, put on sale, distribute or cause to be distributed the medicines or substances, intra-uterine probes or other similar objects capable of causing or facilitating abortion listed in a decree issued after consultation of the Conseil d’Etat. Pharmacists may, however, sell the medicines, substances and objects specified above but only on a medical prescription which must be transcribed into a numbered register initialled by the mayor or the police superintendent. ...”

train

001-91003

ENG

RUS

CHAMBER

CASE OF POLYAKOV v. RUSSIA

Remainder inadmissible;Violation of Art. 6-3-d;Non-pecuniary damage - award

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

4. The applicant was born in 1979 and is serving a sentence of imprisonment in the Tver Region. 5. On 21 October 1999 the applicant was apprehended by police officers N and O. According to him, they beat him up and some bystanders, who did not realise that he was being beaten up by police officers, called the police. According to a letter dated 23 May 2000, produced by the Government, the Moscow Department of the Interior informed the applicant’s representative that on 21 October 1999 there had been no call for police assistance in the area where the applicant had been apprehended. 6. After his arrest the applicant was taken to hospital where a doctor diagnosed him with “an injury; a bruise on the left shin; an injury on the left shoulder.” The applicant was then brought to a police station and stayed there for three days on suspicion of drug trafficking. 7. The applicant complained to the prosecutor about the police brutality. As follows from a copy of the decision dated 17 March 2000, submitted by the Government, the Cheremushkinskiy Prosecutor’s Office of Moscow refused to initiate criminal proceedings against officers N and O. It found that the applicant had resisted lawful arrest by swinging his hands and otherwise trying to escape. Thus, the officers had had to handcuff him. The investigator in charge of the applicant’s criminal case at the material time affirmed that the applicant had not alerted her to any unjustified recourse to force against him. Apparently, the applicant was not apprised of the decision of 17 March 2000. According to the Government, that decision was quashed in October 2005 and a further inquiry was ordered. The outcome of that inquiry remains unclear. 8. The applicant also raised the ill-treatment matter at the trial (see paragraphs 11 and 15 below). 9. The applicant was charged with drug trafficking. The prosecution case was that the applicant had committed the following offences: - on an unspecified date he had bought a large quantity of heroin and on 19 October 1999 sold it to Ms U; - on an unspecified date he had bought a large quantity of heroin and on 21 October 1999 he attempted to sell it to Ms U, but the police stopped him. 10. On 22 and 23 October 1999 the applicant was questioned in relation to the charges against him. He was not provided with a lawyer because he had previously refused legal assistance. On 24 October 1999 the applicant was released on a written undertaking not to leave the town. On an unspecified date he retained a lawyer and several lay representatives. 11. At the trial the applicant pleaded that he had spent the whole day on 19 October 1999 at home. On 20 October Ms U had called him, but being short of time he had arranged to meet her the next day. It appears that the police monitored that conversation on the second handset. According to the applicant, on 21 October 1999 in the course of his meeting with Ms U, he was approached by police officers who forcibly pinned him to the ground, handcuffed him and beat him up. 12. On 12 October 2000 the applicant asked the trial court to call Ms B, Mr S and Mr R, who could, he alleged, confirm that “he had been at home all day on 19 October 1999 and that he had not met Ms U on that day”. The court rejected that application as premature. The applicant reiterated the request at a hearing on 25 October 2000 and also asked to call Mrs T, his aunt, who had allegedly been at home with him on 19 October 1999. The court rejected both applications as “premature and unfounded”. At the hearing on 16 November 2000 the applicant’s lay representative again requested to call Ms B, Mr S and another unspecified person (apparently Mr R), and a Ms P. As can be seen from the hearing record, the court decided that “it was unnecessary to examine those persons”. Thereafter, the applicant unsuccessfully asked to have included in the file written statements made by Ms B, Mr S and a Ms Y confirming the applicant’s alibi for 19 October 1999. The prosecution did not object to the above applications made by the defence. 13. The applicant also asked to have examined Ms Ta., who had been present during the arrest of Ms U and who could have testified that Ms U had never claimed that the applicant had sold her drugs. The request was dismissed by the trial court. According to the Government, Ms Ta. was mentioned in the list of persons to be called to testify at the trial but she did not appear at the trial. 14. By a judgment of 20 November 2000, the Cheremushkinskiy District Court of Moscow found the applicant guilty of unlawfully procuring and being in possession of drugs with the intention of selling them and of selling a large supply of drugs. The trial court sentenced him to nine years’ imprisonment. It based its judgment on the following evidence: i) the statements by the officers who arrested the applicant on 21 October 1999. They stated that on 19 October 1999 they had arrested Ms U, performed a search on her person and seized a large quantity of drugs. Ms U claimed that she had just bought the drugs from the applicant and offered to assist the officers in the applicant’s arrest. She called the applicant on the telephone and asked for drugs. The applicant agreed and fixed a meeting for 21 October 1999. The police arrested the applicant at that meeting, performed a search on his person and seized a large quantity of drugs; ii) the deposition by Ms U made during the pre-trial investigation in which she confirmed the statements made by the officers. In her oral testimony at the trial Ms U retracted her earlier deposition; iii) the statements by eyewitnesses who were present during the applicant’s arrest and search on 21 October 1999 and who testified that a large quantity of drugs had been seized from the applicant; iv) the depositions by an attesting witness, Ms S, who was present at the arrest of Ms U on 19 October 1999. In her depositions made during the pre-trial investigation Ms S confirmed the statements by the police officers. However, at the trial she partly retracted them, claiming that she had not heard Ms U mention the applicant’s name and that she had signed a blank sheet of paper which was later filled in by the police; v) the reports on the applicant’s and Ms U’s arrest and search; vi) the expert reports confirming that the substances seized from the applicant and Ms U were heroin; vii) the report on the medical examination of the applicant, according to which the applicant was in a state of drug intoxication. 15. The trial court rejected the applicant’s allegation of ill-treatment with reference to the statements by the police officers and the prosecutor’s decision not to open a criminal case against them. 16. The applicant appealed against the trial judgment arguing inter alia in his additional statement of appeal as follows: “[T]he court arbitrarily refused the defence’s application to examine as witnesses Ms Y, Ms R, Ms B and three other persons who could confirm [the applicant’s] alibi, namely the fact of his presence at home between noon and 3 p.m. on 19 October 1999. That refutes his involvement in the offences of which he has been charged by the prosecution on the basis of Ms U’s pre-trial statement made under duress...No other evidence of the applicant’s guilt has been adduced...” On 21 February 2001 the Moscow City Court upheld the trial judgment. It did not address the trial court’s refusal to hear witnesses on the applicant’s behalf. 17. On 6 February 2003 the Presidium of the City Court, sitting as a supervisory-review court, reduced the applicant’s sentence to seven years’ imprisonment. On 22 April 2004 the Supreme Court of the Russian Federation examined an application by the applicant for supervisory review. It found that no conclusive evidence had been adduced confirming that the applicant had intended to sell heroin to Ms U on 21 October 1999. The Supreme Court upheld the applicant’s conviction for procurement and possession of heroin on 21 October 1999 and his conviction in relation to the episode on 19 October 1999. The Supreme Court reduced the applicant’s prison sentence to four years and six months. 18. According to the RSFSR Code of Criminal Procedure (CCrP), in force at the material time, the bill of indictment should be accompanied by a list of persons who should, in the prosecutor’s opinion, be called at the trial (Article 206). 19. When deciding to schedule a court hearing a judge shall examine all applications and decide, inter alia, who shall be called as witnesses (Articles 223 and 228 CCrP). If refused, such applications may be renewed at the hearing; applications to call additional witnesses or adduce evidence shall be granted in all cases (Article 223). At the hearing, the judge shall ask the parties whether they want to call further witnesses or adduce further evidence (Article 276). A party making such an application shall specify the circumstances they intend to determine on the basis of such further evidence; having considered the application, the judge shall either grant it or issue a reasoned decision refusing it (ibid.). 20. A court of appeal is competent to review the lawfulness and reasonableness of the judgment made by the court below on the basis of the case file and any additional materials available to it (Article 332 CCrP). Such review can extend beyond the issues raised by the prosecution or defence in their points of appeal (ibid.). The latter may be supported by additional materials adduced either before or during the appeal hearing, but prior to the prosecution’s statement (Article 337). 21. The Code of Criminal Procedure, in force since 2002, provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights (Article 413).

train

001-61077

ENG

NLD

GRANDCHAMBER

CASE OF KLEYN AND OTHERS v. THE NETHERLANDS

No violation of Art. 6-1

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

12. Mr A.A. Kleyn was born in 1941 and lives in Asperen. He is a managing director of the limited liability company (besloten vennootschap met beperkte aansprakelijkheid) Kleijn Financierings- en Leasemaatschappij B.V. and of the limited liability company Exploitatiemaatschappij De Zeiving B.V. He is also part-owner of the restaurant “De Goudreinet”. 13. Mettler Toledo B.V. is a limited liability company. Its premises are located in Tiel. Van Helden Reclame-Artikelen B.V. is a limited liability company. Its premises are located in Tiel. Its managing directors, Mr A. van Helden and Mrs C.H. van Helden-Schimmel, who were both born in 1946, live next to the company’s business premises. Grasshopper Reclame is a registered partnership (vennootschap onder firma) established under Netherlands law. Its premises are located in Tiel. Its managing directors, Mr A. Hougee and Mrs O.L. Hougee-van Frankfoort, who were born in 1947 and 1948 respectively, live above the company’s business premises. M.C. Gerritse B.V. is a limited liability company. Its premises are located in Tiel. Texshop B.V. is a limited liability company. Its premises are located in Tiel. Restaurant De Betuwe B.V. is a limited liability company. It operates a restaurant in Tiel. Maasglas B.V. is a limited liability company. Its premises are located in Tiel. Mr C.M. van Burk, who was born in 1953, operates a petrol station on the A15 motorway, near Meteren. Kuwait Petroleum (Nederland) B.V. is a limited liability company established in Rotterdam. It owns the petrol station operated by Mr van Burk. Sterk Technisch Adviesbureau B.V. is a limited liability company. Its premises are located in Spijk. Kleijn Financierings- en Leasemaatschappij B.V. and Exploitatiemaatschappij De Zeiving B.V. are both limited liability companies and – together with Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn, who were born in 1936, 1970 and 1978 respectively – are joint owners of a number of plots of land along the A15 motorway and part- owners of the restaurant “De Goudreinet” that is located on one of the plots. 14. Mr M.A.J.E. Raymakers and Mrs P.W.N. Raymakers-Spreeuwenberg, who were born in 1956 and 1959 respectively, live in Kerk-Avezaath. 15. Mr A.J.Th. Berndsen and Mrs B.A.G. Berndsen-Wezendonk were born in 1950 and 1952 respectively and live in Groessen. Mr P. Bunschoten was born in 1955 and lives in Herveld. Mr W.F. van Duyn was born in 1962 and lives in IJzendoorn. Mr C.J. Hanhart was born in 1938 and lives in Tiel. Mr J.H. Kardol was born in 1938 and lives in Meteren. Mr C. de Kreij was born in 1948 and lives in Giessenburg. Mr G.J. van Lent was born in 1944 and lives in Ochten. Mrs G. van Lent-de Kroon was born in 1910 and lives in Echteld. Mr S.J.B.A. Pompen was born in 1963 and lives in Tiel. Takel- en Bergingsbedrijf Hanhart is a partnership (maatschap) of which Mr C.J. Hanhart and Mr S.J.B.A. Pompen are the partners. Its premises are located in Tiel. Ms C.M.M. Wennekes was born in 1949 and lives in Herveld. Mr M. Witvliet was born in 1944 and lives in Kesteren. 16. The territory of the Netherlands includes the estuaries of the Rhine, Maas and Schelde, all of which flow into the North Sea at or near the town of Rotterdam. These rivers have long been used for the transport of merchandise to and from a large part of the north-western and central European hinterland, and in particular the vast industrial area situated along the River Ruhr in Germany. Over the centuries this geographical situation has allowed the Netherlands to become one of Europe’s major transport hubs, with Rotterdam harbour and Schiphol Airport, near Amsterdam, developing into important transit points for goods. 17. In recent years worldwide economic growth, the opening of the borders between the European Union countries and the opening up to foreign trade of central and east European countries have led to an increase in the quantity of merchandise transported through the Netherlands and, consequently, in the volume of traffic. 18. Since the 1980s the volume of transport by inland waterways, rail and pipelines has largely remained stable. It is essentially road transport which has absorbed the increase. This is due to various factors, such as the greater availability and convenience of roads as compared to railways and waterways and the increased tendency of industry to have raw and unfinished materials delivered as and when needed instead of keeping stocks. 19. In the early 1990s the government decided on a policy of maintaining and further improving the competitiveness of Rotterdam harbour as Europe’s main entry and exit port, as compared to its major rivals, Hamburg, Antwerp, Le Havre, Marseilles and London. At the same time it was considered important to prevent, and if possible reduce, congestion of the roads and damage to the environment. 20. On 1 July 1991, in accordance with section 15 of the Council of State Act (Wet op de Raad van State) and upon a proposal of the Minister for Transport and Communications (Verkeer en Waterstaat) and the Minister for Housing, Planning and Environment Management (Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer), the Queen transmitted the Transport Infrastructure Planning Bill (Tracéwet) to the Council of State for an advisory opinion. 21. The Transport Infrastructure Planning Bill was intended to provide a legislative framework for the supra-regional planning of new major transport infrastructure (roads, railways, canals) and major modifications to existing transport infrastructure with a view to simplifying procedures for securing the cooperation of the provincial, regional and local authorities whose territories might be affected. An additional effect was intended to be the concentration of legal remedies in such a way that only one single appeal could be lodged with the Council of State against a decision of central government and all related decisions of subordinate authorities, obviating the need for a plurality of appeals before both the ordinary courts and the Council of State against decisions and plans of local authorities. 22. The Council of State transmitted its advisory opinion to the government on 9 December 1991. Its opening paragraph reads: “The Council of State fully acknowledges the problems that the signatories to the Transport Infrastructure Planning Bill wish to resolve. It often concerns large, technically complex and expensive infrastructure projects. These must not only be balanced against diverse and weighty interests relating to traffic and transport, road safety, town and country planning and the environment, but in addition it is desirable to have the widest possible public support for these projects. The current decision-making procedure – entailing a non-statutory routing determination following which final decisions are only made in accordance with the town and country planning procedure, against which an appeal may be lodged with a judge – can take much time. Furthermore, where a number of provincial and municipal bodies are involved, the decision-making process is diffused over several regional and local zoning plans. The Council of State therefore shares the government’s concern about the outlined problems. It will examine hereafter whether, in its opinion, the proposals made will in practice sufficiently resolve the problems and whether the concomitant disadvantages are acceptable.” 23. In its opinion the Council of State noted, among other things, the absence of any binding time-limits for the administrative authorities. It expressed doubts as to whether the procedure under the new bill, if enacted, would be any shorter than the aggregate of separate procedures necessary hitherto. It also considered that the new bill created uncertainty at the lower levels of government (the provinces, the regional surface waterboards (waterschappen) and the municipalities) by bypassing the planning structures of those lower bodies; in addition, insufficient weight was given to the justifiable interests of individuals. It found that the considerable limitation of legal protection constituted an important objection to the new bill. 24. Point 8 of the advisory opinion reads: “Having reached the end of the examination of the legal protection in the framework of this bill, from which it can be seen that the Council of State has serious objections to the removal of a routing determination [tracévaststelling] from general town and country planning considerations, it nevertheless wishes to point out that, when the Council of State leaves aside here the problem dealt with under point 2 (length of the decision-making process under the bill), those serious objections would be less weighty if the bill only related to routing determinations of such exceptional (supra)national importance that it must be clear to anyone that in the case in question the provincial, regional and local interests should yield to them. In that case, the routing plans [tracés] referred to in section 24b should be explicitly mentioned in the bill. It would be preferable to reconsider the bill in this sense.” 25. The Council of State made a number of suggestions for improving the drafting of the bill before it was transmitted to Parliament. Its final conclusion reads: “The Council of State advises you not to send this bill to the Lower House of the States General until the above observations have been taken into account.” 26. In their reply of 28 January 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management noted – as regards the doubts expressed by the Council of State as to whether the new procedure would be appreciably shorter than the former one – among other things that it might take a very long time to obtain the cooperation of the local authorities. It was also stated that the local authorities were involved in all stages of the procedure, being informed and consulted as the need arose; if it was necessary to compel their cooperation, this was done at the final stage, that of the routing decision. Legal protection of the justified interests of individuals was sufficiently guaranteed in the form of a single appeal, on legal grounds, against a routing decision. 27. As to the remarks made under point 8 of the advisory opinion of the Council of State, the ministerial response reads as follows: “With the approval of the Council of Ministers (decision of 24 January 1992), we decided to include in the bill a separate regulation for large projects of national importance. In line with this, the transitory arrangement referred to in section 24b will be concentrated on the high-speed railway and the ‘Betuweroute’ [railway]. The original section 24b was included exclusively in view of these projects and can now be dropped, as a provision will be devoted to these projects. Since, with the inclusion of the special procedure for large projects and the above-indicated transitional arrangement, the bill will be further amended, we find it desirable to consult the Council of State on this. The amendments to the bill will therefore be submitted for advice to the Council of State in the form of a ministerial memorandum of amendments.” 28. The Minister for Transport and Communications made a number of changes to the bill in the light of the Council of State’s criticism. The amendments were submitted to the Council of State for advice on 6 February 1992. 29. In its advisory opinion of 8 May 1992, the Council of State considered, inter alia: “... it desirable to indicate in section 24g that the notions ‘high-speed railway’ and ‘Betuweroute’ railway relate to specific [railway] connections between specifically named places.” 30. The ministerial reply of 19 May 1992 to this recommendation states: “This advice has been followed. It is now indicated in section 24g that the high-speed railway relates to the Amsterdam-Rotterdam-Belgian border route, and the ‘Betuweroute’ [railway] to the Rotterdam-Zevenaar route.” 31. The government then submitted the bill to the Lower House (Tweede Kamer) of Parliament, together with the Council of State’s advisory opinion and the ministers’ comments. The Transport Infrastructure Planning Act eventually entered into force on 1 January 1994. It contains no specific mention of the high-speed railway or the Betuweroute railway, but does provide for a special procedure for projects of national importance. 32. An existing railway through the Betuwe region (the area circumscribed by the rivers Rhine, Lek and Waal) – known as the “Betuwe line” (Betuwelijn) – links the city of Rotterdam to the town of Elst. It was, and still is, mainly used for passenger traffic and is operated at a loss. As early as 1985 a government committee suggested converting it for use solely for the transport of goods, extending it as far as the town of Zevenaar and connecting it to the German railway system. A study commissioned by the Netherlands Railways (Nederlandse Spoorwegen – “the NS”) and published in 1991 concluded that the environmental impact would be unacceptable and that the capacity of such a railway line would be insufficient. 33. This led the government to reject that idea. Instead, the government decided to investigate the possibility of building a new railway through the Betuwe, to be known as the “Betuweroute”, along the A15 motorway. The NS was required to prepare an environmental impact report (milieu-effectrapportage). 34. On 16 April 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management together presented the first draft of the outline planning decision (Planologische Kernbeslissing) within the meaning of section 2a of the Town and Country Planning Act (Wet op de Ruimtelijke Ordening), which later became known as “Outline Planning Decision – Part 1”. The environmental impact report prepared by the NS was appended to this document. Pursuant to the then applicable section 2a of the Town and Country Planning Act, it was laid open for public inspection, notice of its publication being given through the Netherlands Government Gazette (Staatscourant) and the media. Anyone interested could then make his or her views known. The time-limit for doing so was 27 July 1992. More than 1,800 reactions were received. 35. On 31 August 1992 the Netherlands Minister for Transport and Communications signed an agreement with his German counterpart, the Federal Minister for Transport, for increased cooperation in the matter of cross-border railway communication. The agreement provided – subject to the conclusion of procedures prescribed by national law – for, inter alia, the building of a new railway from Rotterdam to the German border via Zevenaar. There were to be two border crossings, one at Oldenzaal/Bad Bentheim and the other at Venlo/Kaldenkirchen. The agreement also provided for corresponding measures to be taken on the German side and for a time frame. 36. On 18 April 1993 the government published a document entitled “Reacties op de Ontwerp Planologische Kernbeslissing Betuweroute” (Reactions to the Betuweroute Outline Planning Decision). It contained an overview of the reactions to Outline Planning Decision – Part 1 sent in by individuals and the results of further consultations and discussions with local government bodies, that is provinces, municipalities and regional surface waterboards. Advice obtained from the Netherlands-German Planning Board (Nederlands-Duitse Commissie voor de Ruimtelijke Ordening), the Environmental Impact Reports Board (Commissie milieu-effectrapportage), the Planning Advisory Board (Raad van Advies voor de Ruimtelijke Ordening) and the Traffic Infrastructure Consultation Body (Overlegorgaan Verkeersinfrastructuur) was also included in this document, which became known as Outline Planning Decision – Part 2. 37. On 18 May 1993 the government published their views on the Betuweroute project and transmitted it to the Lower House of Parliament for approval. This document became known as Outline Planning Decision – Part 3. After deliberations, the Lower House of Parliament sent Outline Planning Decision – Part 3 back to the government with its comments. 38. The government made certain modifications. The resulting document, which became known as Outline Planning Decision – Part 3A, was submitted to the Lower House of Parliament on 14 December 1993 for approval. 39. Outline Planning Decision – Part 3A was approved by the Lower House of Parliament on 22 December 1993 and, on 12 April 1994, by the Upper House (Eerste Kamer) of Parliament. It became known thereafter as Outline Planning Decision – Part 4 and came into force after its publication in the Netherlands Government Gazette on 27 May 1994. 40. Outline Planning Decision – Part 4 contained an explanatory memorandum setting out the need for the Betuweroute, as perceived by the government, and giving reasons for the choices made. It was stated that Rotterdam, the Netherlands’ main port, and Schiphol Airport, now served most of the European continent and that the increase in the volume of transport could not be absorbed by inland waterway traffic alone. Moreover, much of the European hinterland could not be reached by water. Road traffic could not be the only alternative, as it was relatively expensive, uneconomical over long distances and environmentally unfriendly. Furthermore, in much of eastern Europe the railway infrastructure was better developed and in a better state of repair than the roads. 41. Other European countries, including Germany, France and the Alpine countries, were investing heavily in railways in order to relieve the roads. Germany had undertaken to connect its railway system to the Betuweroute, and would give effect to this undertaking as soon as the decision to build the Betuweroute was taken. The transport policies developed by the European Economic Community also provided for the development of new railways. 42. The explanatory memorandum contained summaries of studies – additional to that undertaken by the NS in 1991 – that had been commissioned by the government, namely a study on the macro-economic and social effects by Knight Wendling and a micro-economic analysis by McKinsey. Both studies concluded that the Betuweroute would be profitable. They were scrutinised by the Central Planning Office (Centraal Planbureau). The results of this appraisal were also rendered in summary form. The government considered that although the conclusions of the Central Planning Office were rather more guarded, they too indicated that the project was viable. 43. Other alternatives were taken into consideration. These included increasing the capacity of an existing railway running from Rotterdam through the southern province of North Brabant to Venlo and from there into Germany (the “Brabantroute”), used mainly for passenger traffic, and making it more suitable for the transport of goods. This alternative was rejected on the ground that it would require building two extra tracks. Moreover, the urban density along the Brabant route being three to four times as high as that along the projected Betuweroute, this would cause severe and unacceptable problems. 44. Alternatives not involving railways, which had been suggested after Outline Planning Decision – Part 1 had been laid open for public inspection, were discarded in view of the need to connect to the existing railway infrastructure in the rest of Europe. The importance of inland navigation was nonetheless recognised, and it was stated that in both the Netherlands and Germany inland port facilities were undergoing further development. 45. Alternative methods of constructing the railway had been suggested in the wake of Outline Planning Decision – Part 1. Many of those who had stated their views on the matter had expressed a preference for an underground tunnel or for open tracks sunk below ground level. These were considered, but rejected as the cost would be prohibitive. A traditional construction was chosen consisting of rail tracks resting on a sand base and located mostly at ground level, a raised or lowered track being envisaged only for locations where such was called for by considerations of safety or environmental impact. Similarly, conventional rather than innovative technology was chosen. 46. Outline Planning Decision – Part 4 provided for a twin-track railway. Its location was fixed as far as possible within a horizontal band of 100 m. Within this band limited adjustment to local conditions would be possible, it being understood that any additional features such as drainage ditches or other traffic infrastructure might have to be located outside it. The actual route was set out in sketch plans, with reasons being given for the choices made and for the rejection of alternatives. 47. Consideration was given to possible harmful effects. Thus, although under the legislation in force (Article 7 of the Railway Noise Ordinance – Besluit geluidhinder spoorwegen) the maximum permissible noise level was 60 decibel ampere (dBA) on the outside walls of residential buildings, a “preferential noise level” of 57 dBA would be applied in anticipation of stricter standards which were expected to come into force in 2000. Where it appeared in practice that this could not be achieved, noise levels would be reduced by means of screens. Exceptionally, noise levels of up to 70 dBA might be tolerated at specific locations, but even there they were not to exceed 37 dBA inside residential buildings with the windows closed and ventilation apertures open. Although there might be an accumulation of noise from the A15 motorway and the Betuweroute railway, it was considered that the railway would contribute less noise than the louder motorway traffic, so that it would be possible, by screening and other measures, to reduce the combined noise levels to 60 dBA. 48. Some 150 residential buildings were found to be located within 50 m of the projected railway track. It was estimated that approximately one quarter of these were so close to the projected track that noise levels would compel the termination of their residential function. Studies had also been conducted regarding the vibration likely to be caused and the standards to be applied on this point. Further studies would be undertaken with a view to taking constructive measures aimed at reducing vibration levels. 49. The danger that might be result from the operation of the Betuweroute railway was also considered, although not in detail. It was intended to build the railway so that the “individual risk” would be no greater than 10-6 near residential areas. The “group risks” would be kept “as low as reasonably achievable”. Specific measures would be set out in the routing decision. 50. There had been an audit of the costs of the project as proposed by the government, which, as was estimated at 1993 cost levels, would amount to a total of 7,138,000,000 Netherlands guilders (NLG). Of this sum a portion of NLG 1,975,000,000 would be paid out of the State budget. The remaining NLG 5,163,000,000 would be raised from other sources, such as the financial markets, windfall profits from the sale of natural gas and funds supplied by the EEC. The total figure included a sum of NLG 750,000,000 occasioned by changes imposed by the Lower House of Parliament and NLG 375,000,000 required to meet objections and special requests made by individuals and local authorities. 51. A new government took office on 22 August 1994, which in pursuance of agreements reached between the coalition parties reconsidered the Betuweroute plan in its entirety. After obtaining the views of a parliamentary committee (the “Hermans Committee”), the new government decided that the plan should go ahead. Its views were made public in a letter sent by the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management to the Lower House of Parliament on 21 April 1995. On 29 June 1995 the Lower House of Parliament endorsed the government’s views. 52. In accordance with the procedure for projects of national importance under the Transport Infrastructure Planning Act which had come into force on 1 January 1994, a preliminary draft of the routing decision – containing the determination of the exact routing of the planned railway – was laid open for public inspection in June 1994, together with an addition to the environmental impact report and a survey of expected noise levels. Some 5,500 reactions were received from individuals, nongovernmental organisations and local-government bodies. These led to modifications, which were incorporated into the draft routing decision. 53. The draft routing decision was published on 4 March 1996 and laid open for public inspection until 29 April 1996. More than 600 reactions were received from individuals and local-government bodies. Changes were considered, and eventually incorporated into the final routing decision, in so far as they did not affect the projected route, did not require additional expenditure and did not affect the interests of other parties. Changes made included, for certain locations, noise-reduction measures in addition to those foreseen in Outline Planning Decision – Part 4. 54. The routing decision was finalised on 26 November 1996 by the Minister for Transport and Communications in agreement with the Minister for Housing, Planning and Environment Management. It covered most of the projected track of the new Betuweroute railway, with the exception of a number of locations – not concerned by the present case – for which further planning was required. 55. The routing decision comprises twenty-four Articles, creating a legal framework for the measures required, and a set of detailed maps with explanations. In its published form it is accompanied by an extensive explanatory part setting out the outline of the choices made. 56. A series of tests had been carried out from which it appeared that goods trains made rather more noise than had initially been estimated. It was stated that a reduction of noise levels was expected from modifications to the rolling stock (reduction at source). However, in case these should not be sufficient, screens would be erected where necessary regardless of the expected reductions at source. Further reductions were expected from the use of modern concrete sleepers instead of the conventional wooden ones on which the initial noise level assessments had been based. Finally, if the noise levels still turned out to be too high in practice, other measures would be considered, such as further modifications to rolling stock, avoiding operations at night and lowering maximum speeds. The standards to be applied, including those with regard to the accumulation of noise caused by the new railway and the A15 motorway, were those set out in Outline Planning Decision – Part 4. Stricter standards would be applied in the vicinity of sensitive locations such as hospitals and schools and certain designated rural areas (stiltegebieden – “silent areas”). The residential function of buildings where the noise levels would be excessive would have to be terminated. A detailed report setting out the noise levels for each municipality was appended to the routing decision. 57. Compensating measures for the preservation of the environment and the existing landscape were to include, among other things, the provision of culverts (to enable wildlife and cattle to cross underneath the railway) and of appropriate vegetation. Special measures were also envisaged for the protection of any known archaeological sites. 58. Consideration was also given to special measures required by the nature of the subsoil, which provided less support in the western part of the country than in the east; hence the need for additional supporting shoulders in certain areas. The need, at some locations, for cleaning polluted soil was noted. 59. Indications were given of how noise reduction screens, bridges and viaducts were to be built, and of how the railway would be sunk below ground level where this was unavoidable, an important objective being to limit the railway’s visual and environmental impact while maintaining its visual unity and continuity. Where the Betuweroute crossed existing traffic infrastructure – roads, existing railways, cycle paths – safety was the main consideration. Changes to existing ditches and waterways were unavoidable. Construction details of the electrical installations would, however, depend on the final decision on the electrical system to be used, which would be taken at a later date. 60. A total of 173 appeals against Outline Planning Decision – Part 3A were lodged with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, many jointly by a plurality of appellants. With the exception of the applicants Mr and Mrs Raymakers (no. 43147/98), who only raised objections of a general nature to Outline Planning Decision – Part 3A, all applicants in the present case submitted specific complaints about the proposed route of the railway in so far as their respective interests would be affected. 61. The bench of the Administrative Jurisdiction Division dealing with the appeals was composed of three ordinary councillors (Staatsraden) of the Council of State, namely Mr J. de Vries (President), Mr R. Cleton and Mr R.H. Lauwaars (members). Mr de Vries had been appointed Ordinary Councillor in 1982. Mr Cleton and Mr Lauwaars had been appointed ordinary councillors in 1992 and 1994 respectively. 62. On 31 January 1997, after sixteen hearings held between July and September 1996, the Administrative Jurisdiction Division delivered its decision. It rejected all the complaints of a general nature. 63. As to the specific complaints, it noted that Outline Planning Decision – Part 3A was not yet final as regards the definitive route of the railway. It therefore limited the scope of its review, for each separate location, to the question whether the government could reasonably have set the band as it had and, if so, whether it could reasonably have considered that an acceptable route was possible within the band specified or that, in view of possible measures to be taken, the interests of the affected appellants had been adequately taken into account. It reserved its opinion on the definitive location of the railway, which was to be the subject of the routing decision. 64. One group of general complaints addressed, inter alia, the assessment made by the government of the need for a new railway. These were rejected with reference to government policy aimed at maintaining and strengthening the position of the Netherlands as a European hub for transport and distribution. The Administrative Jurisdiction Division concluded that the government’s assessment of the need to construct the railway did not appear incorrect or unreasonable. 65. Another group of general complaints challenged the government’s estimates of the railway’s macro-economic effects and its profitability and the financial calculations underlying the government’s plans. These were rejected on the ground that the said estimates did not appear incorrect or unreasonable in view of the expert reports which the government had commissioned. 66. A further group of general complaints challenged the government’s failure to choose the most environmentally friendly alternative. The Administrative Jurisdiction Division held that the government could reasonably have come to the decision – having weighed alternatives and decided to give priority to human interests – to choose the most cost-effective solution and to use only proven technology. Where specific problems were alleged to arise, these would be dealt with separately. General complaints concerning expected noise and vibration levels, risk assessments, deprivation of property and the likelihood of damage were rejected as being either unfounded on the facts or premature given that these problems would be addressed for specific locations in the routing decision. 67. Specific complaints of twenty-two appellants were accepted as being well-founded, which led to parts of Outline Planning Decision – Part 3A (and therefore Outline Planning Decision – Part 4) being annulled. None of those twenty-two appellants are applicants in the present case. 68. As regards the specific complaints which were rejected, the Administrative Jurisdiction Division held either that it could not be established in advance of the routing decision that the railway could not be located within the band in such a way as to meet the objections, or that the appellants’ objections could not be met in another way, for instance by relocating business premises or offering financial compensation. 69. The decision ran to 292 pages, to which maps were appended indicating locations in respect of which parts of Outline Planning Decision – Part 3A were annulled. 70. In total 147 appeals were lodged with the Administrative Jurisdiction Division against the Betuweroute Routing Decision. Many of these appeals were introduced by a plurality of appellants, including the applicants in the present case. As was the case in the appeals against Outline Planning Decision – Part 3A, a large number of appellants made complaints of a general nature dealing with such matters as the procedure followed. Some challenged the government’s refusal to consider modifications of the routing decision unless the objections put forward were of a very serious nature. Others questioned the need or desirability for building the railway at all or objected to the procedure for assessing expected noise levels. 71. The composition of the bench of the Administrative Jurisdiction Division dealing with the appeals against the routing decision was the same as the bench that had determined the appeals against Outline Planning Decision – Part 3A (see paragraph 61 above). It commenced its examination of the appeals on 18 November 1997. 72. In the course of a public hearing held on 2 December 1997, Mr and Mrs Raymakers challenged the entire membership of the Administrative Jurisdiction Division and, in the alternative, all the councillors of that Division with the exception of the extraordinary councillors (Staatsraden in buitengewone dienst), and in the further alternative, the councillors sitting on the case, on the ground of lack of impartiality. They argued that, since the Plenary Council of State (Volle Raad) was involved in advising the government on proposed legislation, it was inconsistent with Article 6 of the Convention that members of that body should subsequently decide in a judicial capacity on the application of legislation once it had been adopted. 73. A hearing on this challenge was held on 9 December 1997 before a special Chamber of three members of the Administrative Jurisdiction Division who were not involved in hearing the appeal, that is Mr E. Korthals Altes (President), Mr A.G. van Galen and Mr C. de Gooyer (members), all of whom were extraordinary councillors of the Council of State. 74. Mr and Mrs Raymakers cited the European Court’s judgment of 28 September 1995 in Procola v. Luxembourg (Series A no. 326). They noted similarities between the organisation and functioning of the Netherlands Council of State and the Luxembourg Conseil d’Etat and quoted several comments published in the legal press by learned authors. 75. Given that the Council of State’s advice on the introduction of the Transport Infrastructure Planning Act had been worded “in generally positive terms” and therefore conflicted with these applicants’ own interest in maintaining the status quo, they considered that that advice had been contrary to their own position in their appeal. The Administrative Jurisdiction Division was therefore not an “impartial tribunal”. These applicants therefore asked the special Chamber to rule that the Administrative Jurisdiction Division should decline to make any decision in the case. 76. On 10 December 1997 the special Chamber of the Administrative Jurisdiction Division gave its decision. It held that, under section 8(15) of the General Administrative Law Act (Algemene Wet Bestuursrecht), a challenge could only be directed against judges who were dealing with the case of the party concerned. As to the challenge of the entire membership of the Administrative Jurisdiction Division, it was pointed out that if the Administrative Law Act had provided otherwise, no member of such a tribunal would in fact be in a position to entertain the challenge. Consequently, in so far as the applicants’ challenge was directed against members of the Administrative Jurisdiction Division who were not involved in hearing the applicants’ appeal, it was inadmissible. The challenge directed against the members who were so involved was rejected in the following terms: “The Division considers that under section 8(15) of the General Administrative Law Act each of the members who decide a case can be removed from it [gewraakt] on the application of a party on the grounds of facts or circumstances by which judicial impartiality might be impaired. The Division deduces therefrom that only a lack of impartiality on the part of a judge can lead to his removal from a case. Neither the wording nor the drafting history of that provision offers support for the contention that a lack of independence of the tribunal to which a judge belongs can constitute grounds for that judge’s removal from a case. For this reason alone the appellants’ submissions at the hearing cannot lead to their application being granted. As to the appellants’ reliance on Procola, the Division considers that the appeal lodged by the appellants with the Division does not raise questions on which the Council of State has, in advisory opinions on the legislation that is at issue in this appeal, expressed itself in a way contrary to the position taken by the appellants in their appeal. There is therefore no reason to fear that the members of the Council of State who are charged with deciding the appeal will consider themselves bound by any position adopted by the Council of State in the relevant advisory opinions.” 77. The hearing on the merits was resumed on 25 February 1998 and, on 28 May 1998, the Administrative Jurisdiction Division delivered its decision, which ran to 354 pages. 78. General complaints relating to the refusal of the government to consider modifications to the routing decision unless the objections put forward were of a very serious nature were dismissed on the ground that this was not unreasonable per se; it was more appropriate to consider the objections in question individually. General complaints relating to the necessity or desirability of building the railway at all – including complaints about the environmental impact report – were also dismissed. These had already been considered as part of the appeals against Outline Planning Decision – Part 3A. The question was no longer whether the building of the Betuweroute was acceptable, but only whether, in coming to the routing decision, the government could reasonably have decided as it had. 79. The complaint made by several appellants that the routing decision was taken before the appeals against the outline planning decision had been determined was rejected by the Administrative Jurisdiction Division. It held that, under section 24(5) of the Transport Infrastructure Planning Act, the period for lodging an appeal against decisions taken in an outline planning decision and against the routing decision based thereon started to run simultaneously and that, therefore, it was normal that a routing decision was already taken before the outline planning decision had become final. It further considered that it did not follow from the Transport Infrastructure Planning Act that where, like in the present case, a separate appeal lay against an outline planning decision, no routing decision could be taken before the outline planning decision had become final. The mere fact that the time-limits for appealing started to run independently did not, according to the Administrative Jurisdiction Division, alter the tenor of section 24(5) of the Transport Infrastructure Planning Act that no final outline planning decision was required for a routing decision to be taken on the basis of that decision. 80. As to noise levels, the various complaints were to be considered individually. General complaints concerning the determination of acceptable noise levels could not be entertained. Reasonable standards had been set by law, and actual noise would be monitored once the railway was in use. The safety studies were not held to have been insufficient. It was noted that there had been an additional study made in respect of areas where the concentration of the population, and therefore the group risk, was greatest. Moreover, the government had specified additional safety measures for these areas in its statement of defence, as well as specific ways of operating the railway so as to minimise the dangers attending the transport of dangerous goods. As to the individual risk, the routing decision provided that new development which would increase it within 30 m from the centre line of the track would be prevented; this made it unlikely that the individual risk would be increased further away from the track. Other objections relating to safety considerations would be dealt with on an individual basis. 81. As to vibration levels, the Administrative Jurisdiction Division held that the government could not be found to have acted unreasonably by basing its assessments on an industrial standard (DIN 4150) rather than a different standard suggested by certain appellants. Nor was the assessment of the likely nuisance caused by vibration unreasonable per se. Moreover, the government had undertaken to provide active monitoring (that is, to measure vibration levels of its own motion) in all residential buildings located within 50 m of the railway once it was in use, and passive monitoring (that is, to measure vibration levels after complaints were received) in residential buildings located 50 to 100 m from the railway. The government would then deal with unacceptable nuisance on a case-by-case basis. Specific problems raised by appellants would be dealt with individually. 82. With regard to general complaints about the arrangements for compensating damage, the Administrative Jurisdiction Division referred generally to the relevant provisions of the routing decision. It further noted that legal remedies were available against any specific decisions taken in this regard. It could therefore not yet be assumed at this stage that acceptable arrangements in respect of damage were not possible. 83. As to the appeal lodged by Mettler Toledo B.V. (no. 39651/98), whose extremely accurate device for calibrating scales was stated to be particularly sensitive to vibration, the Administrative Jurisdiction Division noted that studies were still ongoing as to whether the vibration likely to be caused by the railway would unduly interfere with that company’s business. That being so, Mettler Toledo B.V.’s claims could not be dismissed as unfounded; to that extent, the appeal was allowed. 84. Sterk Technisch Adviesbureau B.V. (no. 39651/98), whose premises would have to be relocated, complained that no sufficient clarity had been provided as to whether a new location of equivalent quality would be made available. The Administrative Jurisdiction Division held this complaint to be well-founded. This made it unnecessary to go into other specific complaints made by this applicant. 85. With regard to a complaint submitted jointly by Mr A.A. Kleyn (no. 39343/98) and Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn (no. 39651/98) in respect of the restaurant “De Goudreinet” which they owned and the flat inhabited by Mr A.A. Kleyn, the Administrative Jurisdiction Division found that no investigation had been undertaken as to whether it would be possible for these to continue in use. To that extent the complaint was therefore well-founded. The remainder of their appeal was dismissed. 86. As regards the appeal lodged by Mr M. Witvliet (no. 46664/99), the Administrative Jurisdiction Division rejected the objections to a possible expropriation, holding that such objections could be raised in the specific procedure set out in the Expropriation Act (Onteigeningswet). As to his complaint about nuisance from noise in a particular area, it was held that this element had been insufficiently examined. To that extent, his appeal was well-founded. The remainder was rejected. 87. The Administrative Jurisdiction Division rejected the appeals lodged by the other individual applicants and applicant companies. 88. In so far as the appeals were considered well-founded, the Administrative Jurisdiction Division annulled the routing decision and made an award in respect of costs. 89. In a letter to the Lower House of Parliament of 13 July 1998 the Minister for Transport and Communications, writing also on behalf of the Minister for Housing, Planning and Environment Management, observed that the decision of the Administrative Jurisdiction Division left 95% of the routing decision intact. It was therefore not necessary either to undertake a radical review of the project or to interrupt the building work. It was expected that the Betuweroute railway would be operational by 2005. 90. In so far as minor parts of the routing decision had been annulled, the reason therefor had merely been that insufficient information had been obtained as to whether the interests of the appellants could be safeguarded. In so far as relevant to the present case, the minister expected that in all but one or two cases changes to the original routing decision would prove unnecessary. 91. New partial routing decisions were taken in the course of 1998. An appeal lodged by Mettler Toledo B.V. was declared inadmissible by the Administrative Jurisdiction Division on 16 April 1999. The appeal lodged by Sterk Technisch Adviesbureau B.V. was dismissed by the Administrative Jurisdiction Division on 25 October 1999. The appeals lodged by Kleijn Financierings- en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn, Ms C.J. Kleijn and Mr A.A. Kleyn were dismissed by the Administrative Jurisdiction Division on 25 July 2000. Mr Witvliet apparently did not lodge an appeal against any of the 1998 routing decisions. 92. In response to suggestions made in the media to reconsider the Betuweroute project, the Minister for Transport and Communications sent a note (Notitie Betuweroute) to the Lower House of Parliament on 6 November 1998. In this note the minister restated the considerations which had led to the decision of 1995 to allow the project to go ahead. She also expressed the view that no new information had become available since the reconsideration of 1995 which would tend to undermine earlier assumptions as to the viability and desirability of the project. On the contrary, developments had been such as to endorse these. 93. On 13 April 1999 the Stichting Duurzame Mobiliteit (Durable Mobility Foundation) – one of the appellants against the routing decision but not one of the applicants in the present case – lodged a request for revision (herziening) of the decisions of 31 January 1997 and 28 May 1998 with the Administrative Jurisdiction Division. This appellant argued that the government had either been insufficiently aware of certain relevant factual information at the time when it finalised Outline Planning Decision – Part 3A or had failed to consider this information. 94. In a decision of 9 March 2000 the Administrative Jurisdiction Division refused to revise its decisions. It found that the information in question was not of such a nature as to justify reopening the proceedings. 95. From August 1999 until February 2000 the Chamber of Audit (Algemene Rekenkamer) undertook a study of the Betuweroute decision-making process. It published its report on 22 June 2000 under the title “Beleidsinformatie Betuweroute” (Betuweroute Policy Information). 96. The purpose of the report was to provide guidance for the quality and use of information relied on by the government to ground future policy decisions relating to large infrastructure projects. The central questions were whether the quality of the information relied on in taking Betuweroute policy decisions was assured and whether this information had been used in a responsible way in the preparation of the decision-making process. Developments subsequent to the reconsideration of 1995 were taken into account. 97. The Chamber of Audit found that in the initial stages an adequate analysis of the problems to be solved had not been made. The decision-making process had related one-sidedly to the solution chosen, namely the construction of the Betuweroute railway, it having been decided at the outset that that was beneficial for the national economy and the environment; an expert analysis of the information on which the outline planning decision was based had not been sought. 98. Predictions concerning the expected volume of transport through the Netherlands were considered imprecise and unreliable. The predictions eventually relied on appeared overly optimistic; also, in some cases, it was not clear on what considerations the preference for particular predictions over others was based. Uncertainty remained, inter alia, as to the capacity of the German railway system to absorb the increased volume of goods traffic. The increasing competitiveness of inland navigation had not been considered, nor had the slow progress in some European countries (for example, Belgium and France) of the liberalisation of rail transport. Nor had account been taken of the possible effects of levies on road transport as against the passing on of the costs of railway infrastructure to shippers, the latter possibility being envisaged in a policy proposal of the European Commission. 99. Alternatives to the Betuweroute had not been sufficiently explored. The Chamber of Audit criticised the way in which the use of the existing railway infrastructure in the Netherlands and waterborne inland and coastal transport had been considered in isolation rather than in combination. A thorough analysis of the possibilities of optimising existing east-west transport, including existing railway infrastructure, was lacking. Possible future developments in inland waterway traffic, which already accounted for a greater volume of transport than Netherlands railways, had not been looked into. 100. The assumed environmental benefit had also been misstated. The information concerning the environmental impact of alternatives to the Betuweroute railway had been inadequate and had been used in a selective way. Attention had been focused on the immediate reduction of energy use and noxious emissions without taking into account technical developments such as the increased use of cleaner and more economical engines in alternative transport; insufficient information had been provided concerning such matters as nuisance levels, external safety or soil and groundwater pollution attending alternative choices. 101. A positive feature of the process, given especially the public discussion which had arisen, was that the project had been reconsidered in its entirety in 1995 and that the arguments in favour had been presented anew in 1998 (the Betuweroute Note – see paragraph 92 above). However, the information available at those times and the way in which it had been used was open to criticism. 102. The draft of the report was transmitted in its entirety to the government. The Minister for Transport and Communications, in a reaction submitted also on behalf of the Minister for Housing, Planning and Environment Management, expressed broad agreement with the report although some of the individual findings were contested. The conclusions of the Chamber of Audit were accepted for future reference. 103. Parts of the draft report were transmitted to the NS Railway Infrastructure Division and to Railned, the Netherlands government entity which operated the railway system. The Railway Infrastructure Division disagreed with certain findings of the Chamber of Audit with regard to environmental impact estimates. Railned called into question some of the findings of the Chamber of Audit with regard to the predicted increase in the volume of rail transport. 104. The full report, including the reactions, was transmitted to the Lower House of Parliament (parliamentary year 1999-2000, 27 195, nos. 12). 105. Section 2a of the Town and Country Planning Act empowers the Minister for Housing, Planning and Environment Management together with the other ministers concerned in each case to prepare plans, known as outline planning decisions, for particular aspects of national planning policy (section 2a(1)). At the relevant time (that is before 1 January 1994) the draft for such a plan was required to be laid open for public inspection for a period of between one and three months, an announcement being made beforehand in the Netherlands Government Gazette and the local media. Anyone minded to do so could submit their views for a period of one month after the end of the inspection period (section 2a(2)). The draft was transmitted to the Lower House of Parliament for information at the time of its being laid open for public inspection (section 2a(5)). 106. The ministers were required to consult the authorities of the provinces, regional surface waterboards, municipalities and any other public-law entities, as appropriate, about the draft (section 2a(3)). The advice of the Planning Advisory Board had to be sought (section 2a(4)). 107. The ministers were then required to transmit the outline planning decision – which by this time no longer had the status of a draft – to the Lower House for approval. The plan had to be accompanied by a general statement setting out the way in which any views submitted by interested parties, the results of consultations with lower government bodies and the advice of the Planning Advisory Board had been taken into account (section 2a(6)). 108. The Lower House was entitled to send the outline planning decision back to the ministers concerned for modification before deciding whether or not to approve it. Thereafter it could withhold its approval of all or part of the plan (section 2a(7)). 109. The Lower House then transmitted the outline planning decision, as approved by it, to the Upper House of Parliament. The latter House could decide to approve it or not, but could not amend it (section 2a(8)). If approved by the Upper House, the outline planning decision came into force (section 2a(7)). Once it was in force, the outline planning decision was published in the Official Bulletin and the local media (section 2a(9)). 110. Although there is no specific provision for any appeal to an administrative tribunal against an outline planning decision, the Administrative Jurisdiction Division of the Council of State held in its decision of 31 January 1997 – that is the decision on the appeals against the outline planning decision in the present case (see paragraphs 62-69 above) – that the decisive moment for lodging an appeal was when the ministers resubmitted the outline planning decision to the Lower House of Parliament after the latter had given them the opportunity to modify it (that is, for the purposes of the present case, Outline Planning Decision – Part 3A). 111. Since 1 January 1994 it is provided that, in so far as an outline planning decision contains policy decisions about major projects of national importance, all further planning relating to such projects is subject to the limitations set out in these policy decisions (section 39). 112. The Transport Infrastructure Planning Act, as in force since 1 January 1994, requires the Minister for Transport and Communications to consult the local and regional authorities whose territories may be affected and, in the case of a railway project, the prospective exploiter of the railway before drawing up a draft routing decision (section 6). This draft is then transmitted to them, after which they have the opportunity to comment (sections 11(1), 12(1) and (2), and section 13). 113. The minister then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans (section 15(1)-(3)). The routing decision is transmitted to Parliament with an explanatory statement (section 16(1)). Non-binding time-limits are set for the various stages of the procedure. 114. Anyone with an interest may lodge an appeal against the routing decision with the Administrative Jurisdiction Division of the Council of State (section 15(4)). 115. Chapter V of the Transport Infrastructure Planning Act contains special provisions governing the procedure relating to major projects of national importance. This procedure is to be followed if an outline planning decision is in force (section 21). In such cases the outline planning decision is to form the basis of, and be transformed into, a draft routing decision (section 22). If changes to the draft routing decision appear necessary in view of observations received from interested parties or local-government bodies, then these changes are to remain within the limits drawn by the outline planning decision (section 23(1)). 116. The Minister for Transport and Communications, together with the Minister for Housing, Planning and Environment Management, then draws up a final routing decision and may, if necessary, require the local and regional authorities to modify their own local and zoning plans (section 24(1)-(3)). 117. Anyone with an interest may appeal against the final routing decision to the Administrative Jurisdiction Division of the Council of State (section 24(4)). No separate appeal lies against the outline planning decision if it is followed within one year from its entry into force by a final routing decision (section 24(5)). 118. The Council of State was established by Emperor Charles V in 1531 in order to assist and advise his sister, Mary of Hungary, whom he had appointed regent (landvoogdes) of the Low Countries to rule on his behalf. 119. Following the Low Countries’ secession from Spain in 1581 and in the course of the subsequent establishment of the independent Republic of the Seven United Netherlands Provinces, which was formalised in 1648 by the Treaty of Westphalia, the Council of State developed into a body that, together with the Stadtholder (Stadhouder), was charged with daily government. The control over their governance was exercised by the representatives of the United Provinces sitting in the States General (Staten-Generaal). 120. The Council of State was abolished in 1795, when France occupied the Republic. Napoleon transformed the Republic into the Kingdom of Holland in 1806 and, in 1810, incorporated it into the French Empire. In 1805 the Council of State had been reinstated as an advisory body to the Grand Pensionary (Raadpensionaris), who was appointed by the legislative body to head the then executive. The Council of State exercised this function until 1810. The Kingdom of the Netherlands regained independence in 1813. According to the 1815 Netherlands Constitution (Grondwet), the monarch had an obligation to consult the Council of State before legislative acts and measures of internal administration were enacted. The monarch was further free to consult the Council of State on other matters. 121. A further function of the Council of State was introduced in 1861, namely that of hearing administrative disputes in which an appeal had been lodged with the Crown (Kroonberoep) and advising the Crown, consisting of the inviolable monarch and the responsible minister or ministers, on the ruling to be given by the Crown on the appeal. The Crown was free to depart from this advice. For the exercise of this function, the Administrative Litigation Division of the Council of State (Afdeling voor Geschillen van Bestuur van de Raad van State) was created. 122. On 1 July 1976 the Act on Administrative Jurisdiction as to Decisions of the Administration (Wet administrative rechtspraak overheidsbeschikkingen – “the AROB Act”) came into force, which provided for an administrative appeal procedure in statutorily defined categories of administrative disputes not eligible for an appeal to the Crown. The final decision on such disputes was to be taken by a newly established Division of the Council of State, that is the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State). 123. In order to give effect to the Court’s judgment of 23 October 1985 in Benthem v. the Netherlands (Series A no. 97), in which it was found that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention, the Interim Act on Crown Appeals (Tijdelijke Wet Kroongeschillen) was passed on 18 June 1987. It entered into force on 1 January 1988 and was to remain in force for five years. Under the provisions of this Act, the Administrative Litigation Division of the Council of State was to determine all disputes which formerly were to be decided by the Crown. The function of the Judicial Division of the Council of State was not affected by this Act. 124. On 1 January 1994 the General Administrative Law Act (Algemene Wet Bestuursrecht), laying down new uniform rules of administrative procedure, entered into force. On the same date the Interim Act on Crown Appeals and the AROB Act were repealed. The functions of both the Administrative Litigation Division and the Judicial Division, which thereby became defunct, were vested in a new division of the Council of State, the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak). 125. The Council of State is presided over by the monarch and consists of a vice-president and up to 28 ordinary councillors (Staatsraden) (section 1 of the Council of State Act (Wet op de Raad van State)) and 55 extraordinary councillors (Staatsraden in buitengewone dienst) (section 4, as worded since 1 April 2001; prior to this date the maximum number of extraordinary councillors was 25). At present, the Council of State is composed of 27 ordinary councillors and 27 extraordinary councillors. 126. All councillors are appointed by royal decree (Koninklijk Besluit) following nomination by the Minister of the Interior and Kingdom Relations in agreement with the Minister for Justice. Appointments are for life, the age of retirement being 70 (sections 3 and 4). Extraordinary councillors submit proposals for the number of hours they wish to work, and their number is subsequently determined for five-year periods by royal decree. 127. Any candidate for membership of the Council of State is required to be a Netherlands national and to be at least 35 years old (section 5). In the appointment of ordinary councillors, care is taken to ensure that the composition of the Plenary Council of State (Volle Raad), which solely consists of ordinary councillors, reflects political and social opinion in the proportions represented in the Houses of Parliament (Staten-Generaal). However, membership of a political party is not a formal or material criterion. 128. Ordinary councillors are appointed primarily on the basis of their knowledge and experience, whether in a specific field or in relation to public administration and administrative law in general. They are mainly selected from the circle of politicians, governors, high-level civil servants, judges and academics. Extraordinary councillors are mainly selected from the judiciary on the strength of their specific judicial knowledge and experience. 129. Section 7(1) of the Council of State Act sets out the posts, offices and professional activities that are incompatible with being vice-president of the Council of State and with being an ordinary councillor. These categories are extended in section 7(2) of this Act with regard to the extraordinary councillors. This provision reads: “The vice-president, ordinary councillors and extraordinary councillors shall not hold any post the exercise of which is undesirable with a view to the proper discharge of their office, the preservation of their impartiality and independence, or the confidence therein.” 130. Pursuant to section 7(3), the vice-president renders public any other positions held by members of the Council of State. This information is published in the Netherlands Government Gazette and posted on the Council of State’s official website. 131. As required by Article 73 of the Constitution, before the government submits to Parliament a bill for adoption, draft delegated legislation or a proposal to approve or denounce a treaty, it must seek the advisory opinion of the Council of State (section 15 of the Council of State Act). 132. In cases where proposed legislation does not originate from the government but from one or more members of the Lower House of Parliament, the Lower House will seek the advisory opinion of the Council of State (Article 15a). 133. For the purposes of delivering advisory opinions, the ordinary councillors are divided into five Sections, grouped by ministries. A bill is first scrutinised by officials, who set out their findings in a memorandum. The bill and this memorandum are subsequently transmitted to a rapporteur, who prepares a draft advisory opinion. This draft is then discussed in the Section concerned. It will subsequently be submitted to the Plenary Council of State for examination and adoption. 134. The Council of State examines draft legislation and explanatory memoranda in the light of a large number of criteria bearing on policy, points of law and technical legislative requirements. These criteria include compatibility with human rights conventions, European law, the Constitution, the Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk der Nederlanden), general legislation and unwritten legal principles, as well as existing law and general regulations on the structure, formulation and presentation of bills and explanatory memoranda. It further examines the anticipated effectiveness, efficiency, feasibility and enforceability of the proposed regulations, the degree of compliance to be expected, as well as the internal consistency of the legislation, the legal certainty it provides and the quality of legal protection. 135. The Plenary Council of State, which is composed solely of the ordinary councillors, adopts the advisory opinions of the Council of State. The extraordinary councillors are not involved in the advisory function of the Council of State. It is further standing practice that the meetings of the Plenary Council of State are not attended by the extraordinary councillors. 136. The Administrative Jurisdiction Division of the Council of State is entrusted with adjudicating administrative disputes, including applications for provisional relief, where the law so provides (section 26 of the Council of State Act). Its cases are heard in accordance with the provisions of the General Administrative Law Act and the relevant provisions of the Council of State Act. 137. The Administrative Jurisdiction Division consists of all the ordinary councillors of the Council of State (not its vice-president) and all the extraordinary councillors. They all hold this position for life until their retirement at the age of 70. Among them a president of the Division is appointed by royal decree, also for life. 138. The president manages the work of the Administrative Jurisdiction Division and decides on the composition of its four Chambers. The first Chamber deals with cases involving town and country planning, the second Chamber with environment cases, the third Chamber with general appeals and the fourth Chamber with appeals in cases concerning aliens. The first two Chambers administer justice at first and sole instance, whereas the third and fourth Chambers hear appeals against judgments given by lower administrative courts. Cases before the Administrative Jurisdiction Division are dealt with by either a three-judge bench or a single judge. 139. With a view to guaranteeing the impartial administration of justice, the Administrative Jurisdiction Division has adopted certain principles, namely that a member who has been involved in an application for provisional relief will not be involved in hearing the proceedings on the merits; if an appeal is dealt with in simplified proceedings (that is without an oral hearing), any objection (verzet) will not be heard by the member who gave the original judgment, and every member must be alert to any conflict of interest and, in case of any reasonable doubts, either withdraw from a case or acquiesce in a challenge to his or her impartiality. 140. Partly to facilitate this, and well in advance of hearings, members of the Administrative Jurisdiction Division assigned to a particular case are sent copies of the principal documents in the case, together with a list of parties involved and their legal counsel. In this way, each member can verify whether there are reasons for withdrawing from the case on grounds of, for instance, a previous position, kinship or any other relation between a member of the Administrative Jurisdiction Division and a party or legal representative. 141. From the above description it follows that some members of the Administrative Jurisdiction Division combine the judicial function with the advisory function, namely the ordinary councillors of the Council of State, while the extraordinary councillors perform only a judicial function within the Council of State. 142. In a memorandum appended to a letter dated 12 February 1998 to the Chairman of the Lower House, the Minister for Justice and the Minister of the Interior informed the Lower House that, in view of Procola (Series A no. 326) and given the fact that there was not yet communis opinio about its precise scope and its possible consequences for the Netherlands, the Council of State had adopted a provisional practice in anticipation of further clarification by the European Court of Human Rights in its future case-law (Lower House parliamentary documents 1997-98, 25 425, no. 3). 143. The dual function of the Council of State was subsequently debated at length in Parliament, which accepted the position taken by the government. 144. In parliamentary budget discussions held in 2000, the government confirmed its above position. In reply to a question put in the Lower House on the advisory and judicial functions of the Council of State in relation to the independence of the administration of justice, the government stated that, after Procola, the Council of State had adapted its internal working methods and that, referring to the contents of the Minister for Justice’s letter of 12 February 1998, these adaptations were of such a nature that so-called “Procola risks” were as good as excluded and that in this light the independent administration of justice was guaranteed (Lower House parliamentary documents 2000-01, 27 400 II, no. 3). 145. The practice adopted by the Council of State was further set out in the Annual Report 2000 of the Council of State. The relevant section reads as follows: “Since it is as yet unclear how the European Court of Human Rights will decide on the combination of functions within the Netherlands Council of State and the effect thereof on objective independence and impartiality, or what criteria the European Court of Human Rights will apply in this respect and what boundaries will be drawn, the Administrative Jurisdiction Division has for the time being chosen criteria and determined boundaries itself. Also, the Council of State and its Administrative Jurisdiction Division consider it important that justice is also seen to be done. The procedure opted for in this connection, and about which the Ministers for Justice and of the Interior have already made announcements to the Lower House (Lower House parliamentary documents 1997-98, 25 425, no. 3), amounts to the following: If in an appeal which has been lodged in time with the Administrative Jurisdiction Division, the lawfulness is disputed of a legal provision which has previously been applied in the case or of another regulation concerning an aspect – for example incompatibility with European law – in respect of which the Council of State has in the past explicitly expressed an opinion in its advice on the proposed provision, and if a party has voiced doubts as to the independence and impartiality of the bench dealing with the appeal, the composition of this bench will be changed so as to ensure that only members who have not participated in the advice sit on this bench. For this are in any event eligible the extraordinary councillors, who are not involved in the advisory function, and those ordinary councillors appointed after the giving of the advice and those ordinary councillors in respect of whom it is objectively certain that they have not participated in the adoption of the advice in the Plenary Council of State. In such a situation, this will – thanks to this way of proceeding in the Division – therefore prevent appellants as far as possible from relying on Procola in a challenge or otherwise.” 146. Members of the Administrative Jurisdiction Division to whom a case has been assigned may be challenged by any of the parties on the grounds of facts or circumstances which may affect their judicial impartiality (section 8(15) of the General Administrative Law Act taken together with section 36 of the Council of State Act). 147. The challenge will be examined as soon as possible by a Chamber composed of three members of the Council of State, which shall not include the councillor(s) challenged. The challenging party and the councillor(s) challenged are offered the opportunity to be heard. A reasoned decision shall be given as soon as possible, against which no appeal lies (section 8(18) of the General Administrative Law Act taken together with section 36 of the Council of State Act). 148. In the case-law developed by the Administrative Jurisdiction Division in relation to challenges based on the Council of State’s combined advisory and judicial functions in the light of Article 6 of the Convention, decisive importance is attached to the question whether or not the challenged councillor was involved in advising on the disputed legislation and whether the substance of the appeal concerns a point that was explicitly addressed in the advisory opinion given by the Council of State. 149. The Administrative Jurisdiction Division initially took as one of its criteria the degree to which members of the bench hearing the appeal had contributed to the advisory opinion. This criterion was dropped in later caselaw, as this information is not accessible to the general public and therefore the parties. The key questions remain whether the challenged member of the bench belonged to the Plenary Council of State at the time when the advisory opinion was given and whether any position was adopted in the advisory opinion that is opposed by the party that has lodged the challenge. Only in cases where these questions can be answered in the affirmative is it accepted that a party has justified grounds to fear that the councillor concerned is biased in respect of the subject of the dispute (see Administrative Jurisdiction Division, case no. E10.95.0026/W, judgment of 9 October 1997, and case no. EO1.96.0532/W, judgment of 10 December 1997, Jurisprudentie Bestuursrecht 1998/28). 150. The rejection of a challenge does not however preclude the possibility that members of the bench concerned subsequently decide to withdraw from the case in view of the substance of the appeal (see Administrative Jurisdiction Division, case no. E03.96.0765/1, Jurisprudentie Bestuursrecht 2001/72). 151. Since Procola was published, it has been relied on in ten challenges lodged before the Administrative Jurisdiction Division. All of these challenges have been rejected, either because members assigned to the appeal were not involved in the previous advisory opinions on the statutory provisions concerned, or because the points of law put to the Administrative Jurisdiction Division by the party having lodged the challenge were so remote from the previous advisory opinion that the fear of bias was found to be unjustified. 152. In an appeal in cassation lodged with the Supreme Court (Hoge Raad) against a judgment of 29 March 1999 of the Arnhem Regional Court (Arrondissementsrechtbank) in expropriation proceedings in connection with the construction of the Betuweroute railway, the appellant argued that the Regional Court, by confining itself to referring to the administrative procedures already pursued before the Administrative Jurisdiction Division, had neglected to rule on the legality and necessity of the expropriation and, in particular, that the Regional Court had failed to investigate technical alternatives such as tunnelling, which would make expropriation unnecessary. In this connection, referring to the Court’s judgment in Procola (cited above), he argued that the Council of State’s “structural impartiality” was in doubt and that it followed from this that he was entitled to have these issues reviewed by the ordinary courts. 153. In its judgment of 16 February 2000, the Supreme Court rejected these arguments. It agreed with the Regional Court that issues such as the necessity of building the railway at all and the choice of technical and routing alternatives were matters to be dealt with in administrative proceedings under the Town and Country Planning Act and the Transport Infrastructure Planning Act and not in expropriation proceedings. As to the appellant’s point concerning the impartiality of the Council of State, the Supreme Court held as follows: “3.2. [The appellant] has submitted before the Regional Court – in so far as still relevant – in objection to the expropriation: ... (b) As the Council of State (as a whole, therefore including the Administrative Jurisdiction Division) has been involved in the enactment of the Transport Infrastructure Planning Act and in this respect, as an advisory organ, has issued a generally positive advice, the Council of State cannot be regarded as a structurally impartial tribunal within the meaning of Article 6 of the Convention; ... 3.4.5.1. In Part Ib of the cassation plea, which concerns the objection set out in 3.2 under (b) and with reference to the judgment of the European Court ... in Procola v. Luxembourg, the argument is repeated that was unsuccessfully raised before the Regional Court, namely that the royal decree must be reviewed in its entirety as doubts may arise as to the structural impartiality of the Council of State as a judicial body where members of the Council of State have subsequently advised about the Transport Infrastructure Planning Act and administer justice on a decision that has been taken on the basis of this Act. 3.4.5.2. However, the argument overlooks the point that the mere fact that advice was heard from the Council of State, in accordance with the statutory provisions concerned, about the bill that eventually led to the Transport Infrastructure Planning Act does not warrant the conclusion that fears as to the impartiality of the Administrative Jurisdiction Division of the Council of State, which had to judicially determine objections against the routing decision, are objectively justified. Part Ib of the cassation plea must therefore be dismissed.”

train

001-59609

ENG

ITA

CHAMBER

CASE OF PERNA v. ITALY

Violation of Art. 10;No violation of Art. 6-3-d+6-1;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

Christos Rozakis

6. On 21 November 1993 the applicant, who is a journalist, published in the Italian daily newspaper Il Giornale, in the “Lion’s mouth” column (La bocca del leone), an article about Mr G. Caselli, who was at that time the Public Prosecutor in Palermo. The article purported to be a “portrait” of Mr Caselli. It was entitled “Caselli, the judge with the white tuft” and bore the sub-title “Catholic schooling, communist militancy – like his friend Violante...”. 7. In the article the applicant, after referring to the proceedings instituted by Mr Caselli against Mr G. Andreotti, a very well known Italian statesman accused of aiding and abetting a mafia-type organisation (appoggio esterno alla mafia), who had in the meantime been acquitted at first instance, expressed himself as follows: “... At university, [Caselli] moved towards the PCI [the Italian Communist Party], the party which exalts the frustrated. When he entered the State Legal Service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure [formerly the headquarters of the PCI, now those of the PDS – the Democratic Party of the Left]. And [Caselli] became the judge he has remained for the last thirty years – pious, stern and partisan. But he cannot really be understood without a mention here of his alter ego Violante, his twin brother. Both from Turin; the same age – fifty-two; both raised by the Catholic teaching orders; both Communist militants; both judicial officers; and a deep understanding between them: when Violante, the head, calls, Caselli, the arm, responds. Luciano [Violante] has always been one step ahead of Giancarlo [Caselli]. In the mid-1970s he indicted for an attempted coup d’état Edgardo Sogno, a former member of the Resistance, but also an anticommunist. It was a typical political trial which led nowhere. Instead of facing a judicial inquiry, Violante found that his career began to take off. In 1979 he was elected as a Communist MP. And ever since then he has been the via Botteghe Oscure’s shadow Minister of Justice... ... [Caselli] is a judge in the public eye. He is in the first line of the fight against terrorism. It was he who obtained the confession of Patrizio Peci, whose evidence as a witness for the prosecution was a disaster for the BR [the red Brigades]. In the meantime, the PCI set in motion its strategy for gaining control of the public prosecutors’ offices in various cities. That campaign is still going on, as the PDS has picked up the baton. ... The first idea was that if the Communists did not manage to gain power through the ballot box, they could do so by forcing the lock in the courts. There was no shortage of material. The Christian Democrats and the Socialists were nothing but thieves and it would be easy to catch them out. The second idea was more brilliant than the first: the opening of a judicial investigation was sufficient to shatter people’s careers; there was no need to go to the trouble of a trial, it was sufficient to put someone in the pillory. And to do that it was necessary to control all the public prosecutors’ offices. And that was the start of Tangentopoli. The Craxis, De Lorenzos and others were immediately caught with their hands in the till and destroyed. But Andreoti was needed to complete the picture... It was at that precise moment that Giancarlo [Caselli] was getting ready to leave the rain of Turin for the sun of Palermo... Once in Palermo his fate and Andreotti’s became intertwined, whereas the two men had remained apart for years. Less than two years later the senator for life was suddenly accused of belonging to the mafia. The file was an implausible rag-bag... In April Caselli flew off to the United States, where he met Buscetta. He offered the informer eleven million lire a month to continue to co-operate. [Buscetta] could still be useful to him during the investigation, even if the outcome was no longer of much importance. The result sought had already been achieved. What will happen next is already predictable. In six to eight months’ time the investigation will be closed. But Andreotti will not be able to resurrect his political career. What a stroke of luck. Caselli, on the other hand, will be portrayed as an objective judge. ...” 8. On 10 March 1994, acting on a complaint by Mr Caselli, the judge responsible for preliminary investigations committed the applicant and the manager of Il Giornale for trial in the Monza District Court. The applicant was accused of defamation through the medium of the press (diffamazione a mezzo stampa), aggravated by the fact that the offence had been committed in respect of a civil servant in the performance of his official duties. 9. During the first-instance proceedings the defence asked to take evidence from Mr Caselli as the complainant and civil party. It also asked for two press articles concerning the professional relations between Caselli and the criminal-turned-informer (pentito) Buscetta to be added to the file. The District Court refused both the above applications on the grounds that there was no point taking evidence from Caselli in view of the content of the article written by the applicant and that the documents in question would not have had any influence over the decision. 10. On 10 January 1996 the District Court found the accused guilty of defamation within the meaning of Articles 595 §§ 1 and 2 and 61 § 10 of the Criminal Code and section 13 of the Press Act (Law no. 47 of 8 February 1948). It sentenced the applicant to a fine of 1,500,000 Italian lire (ITL), payment of damages and costs in the sum of ITL 60,000,000 and publication of the judgment in Il Giornale. It held that the defamatory nature of the article was evidenced by the fact that it denied that Caselli performed his duties conscientiously, attributing to him a lack of impartiality, independence and objectivity which had allegedly led him to use his judicial activity for political ends. The applicant was not entitled to assert the right to report current events (diritto di cronaca) and comment on them (diritto di critica) as he had not adduced any evidence in corroboration of such serious accusations. 11. The applicant appealed. Relying on the freedom of the press and in particular the right to comment on current events, he submitted, among other arguments, that the reference to Caselli’s political tendencies reflected the truth and that the District Court could have tested whether this was so by agreeing to take evidence from the complainant himself, that Caselli and Violante actually were friends and that in the proceedings against Andreotti Caselli actually had made use of the assistance of the pentito Buscetta and had paid him sums of money as the representative of the State, since all the pentiti were in receipt of money from the Italian State. He further described himself as a commentator (opinionista), arguing that his intention had not been to present a biography of Caselli but to express his critical opinions, in a figurative and effective way, on the basis of true and uncontested facts. Lastly, he insisted that the complainant, together with journalists and other well-known personalities on the Italian political stage who, like Caselli, had been militant Communists, should be required to give evidence. In particular, he asked for evidence to be taken from Mr S. Vertone and Mr G. Ferrara, both political comrades of the complainant during the 1970s in Turin and demanded that the Court of Appeal add to the file press articles relating interviews in which they had confirmed the complainant’s active political militancy. In particular, in an interview published in the daily newpaper Corriere della Sera on 11 December 1994, extracts from which were quoted in the applicant’s appeal, Mr Vertone had declared, among other statements, that the complainant was a courageous man of great integrity but that he was influenced by the Communist cultural and political model, that his links with the former Communist Party were very close and that Caselli had subsequently become all but a member of it. In an interview published by another daily newspaper, La Stampa, on 9 December 1994, also quoted in extract form in the applicant’s appeal, Mr Ferrara had stated that in the 1970s he had participated in dozens of political meetings attended by Caselli and Violante, among others, held by the Turin federation of the former Communist Party. He had gone on to say that although Caselli, a man of integrity, had done good work in fighting terrorism and as a judicial officer, he was highly politicised and should therefore avoid making speeches like a tribune. 12. In a judgment of 28 October 1997 the Milan Court of Appeal gave judgment against the applicant. It held that he had attributed acts and conduct to Caselli in a clearly defamatory way. 13. The Court of Appeal gave separate rulings on the various key parts of the article. 14. It first examined the phrase concerning the “oath of obedience” (giuramento di obbedienza): “When he entered the State Legal Service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure [formerly the headquarters of the PCI, now those of the PDS – the Democratic Party of the Left]. And [Caselli] became the judge he has remained for the last thirty years – pious, stern and partisan. 15. The Court of Appeal held that this sentence was defamatory because, while it had a symbolic value, it indicated dependence on the instructions of a political party, which was inconceivable for persons who, on being admitted to judicial office, had to swear an oath of obedience (not a symbolic one but a real one) to the law and nothing but the law. 16. The Court of Appeal next examined the remainder of the article, particularly the allegations that - Caselli, with the support of Violante, also a judicial officer (the relations between the two being described as relations between “the arm and the head”), had played a crucial role in the former Italian Communist Party’s plan to gain control of the public prosecutors’ offices in each Italian city in order to annihilate their political opponents; - Caselli had accused Andreotti and used the pentito Buscetta in the full knowledge that he would eventually have to discontinue the proceedings for lack of evidence, which confirmed that the sole purpose of his actions had been to destroy Andreotti’s political career. 17. The Court of Appeal ruled that these allegations were very serious and highly defamatory in that they were not backed up by any evidence. 18. As to the request for cross-examination of the complainant and other notable figures of Italian political life and for certain articles to be added to the file, the Court of Appeal held that this was unnecessary since the applicant’s remarks about Caselli’s political leanings, the friendship between Caselli and Violante and the use of Buscetta, a pentito paid by the State, in the proceedings against Andreotti, were not defamatory and therefore did not have to be proved. 19. In a judgment of 9 October 1998, deposited with the registry on 3 December 1998, the Court of Cassation upheld the Court of Appeal’s decision. It held that it was a correct decision both in procedural terms and as regards the merits of the case. On the merits, it held that the offensive nature of the article for Caselli, both as an individual and as a judicial officer, could not be doubted, as the applicant had accused him of deeds which implied a lack of personality, dignity, autonomy of thought, coherence and moral integrity.

train

001-23066

ENG

GRC

ADMISSIBILITY

TOUTZIAR v. GREECE

Inadmissible

Françoise Tulkens

The applicant, Mr Ismet Toutziar, is a Greek national, who was born in 1961 and lives in Xanthi. The Government are represented by Mr V. Kyriazopoulos and Mr D. Kalogiros of the Legal Council of the State, Acting Agents. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were not different from those of other civil servants. On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which would be delivered to the directors of the schools between 2 and 5 February 1993. A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi. On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace. On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduated of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish and who wanted to learn or teach the Turkish language would take part in the boycott. On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish not to go to the presentation of the books on 1 February 1993. On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993. On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights. On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993. On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him. On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties. On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following: – First, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attending the meeting would have disrupted his relationship with his pupils and his parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in a strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code). – Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code). – Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code). The Board was fully satisfied that the applicant “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant. On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers. On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Council of State. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty. On 22 June 1995 the Council of State rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994. The Council considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The Council also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Council of State remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The Council considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in a strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The Council found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The Council referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The Council considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace. Finally, the Council considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993 (decision no. 3595/1995). On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3595/1995 of the Council of State, ordered the applicant’s dismissal as from the same date. On 4 April 1996 the Council of State struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect. By decision of 2 December1997, notified to the applicant on 9 January 1998, the Prefect ordered for the third time the applicant’s dismissal. In the meantime, the applicant had instituted several proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant claims that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further claims that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred. On 4 March 1998 the applicant appealed against the Prefect’s decision of 2 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1. On 22 March 2000 the Administrative Court of Appeal rejected the appeal (decision no. 80/2000). The court held that, by definition, the Prefect has a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated the religious freedom. Moreover, the court held that the Prefect’s decision aimed at complying with the relevant decisions of the Council of State; therefore, the previous hearing of the applicant was not required. The applicant did not appeal against this decision to the Council of State. The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred. On 28 December 2001 the First Instance Administrative Court of Komotini awarded the applicant EUR 3,965 for pecuniary damage (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings.

train

001-68084

ENG

TUR

CHAMBER

CASE OF KARADEMİRCİ AND OTHERS v. TURKEY

Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

Nicolas Bratza

11. The applicants were born in 1961, 1964, 1966, 1966, 1961 and 1972 respectively and live in İzmir. 12. On 30 June 1995 twenty-five people, including the applicants, gathered outside the Yenişehir Meslek Lisesi secondary school. The first applicant, İsmail Karademirci, who was the president of the Health Workers' Union (Tüm Sağlık Sen), read out a statement signed by the İzmir branches of that union and of the Education Union (Eğitim Sen) denouncing the ill-treatment of pupils from the İzmir Atatürk Sağlık Meslek Lisesi secondary school. The group remained outside the school for twenty-five minutes before dispersing. 13. The statement reads as follows: “To the press and the general public The pressure put on pupils by the authorities at the İzmir Atatürk Sağlık Lisesi secondary school has resulted in Vesile Bayram receiving a beating. The pupils reacted by protesting against the school authorities because of the pressure they were under. In an initial attempt to calm down the pupils, whose reaction was justified, the authorities held a meeting with them. However, they reneged on a promise to open an inquiry into the actions of one of the teachers, E.S., who, moreover, was provided with a forensic report. The pressure continues in the form of a lengthy (one year) suspension of nine pupils, and the deduction of eight marks from their marks for behaviour. Although officially pupils in the school are not subjected to beatings or academic pressure, the administrators are despots. We strongly condemn the administrators and teachers, who are responsible for such pressure. We call for the withdrawal of the penalties imposed on the nine pupils. We call for an investigation into the conduct of the teacher who administered the beating. We will not be intimidated by pressure. We reject reactionary and oppressive education. The pupils are not alone. Society should not remain silent.” 14. By an indictment submitted on 23 October 1995, the public prosecutor instituted criminal proceedings against twenty-five leaders and members of the Health Workers' Union and the Education Union for making a “statement to the press” (basın açıklaması) without complying with the statutory requirement to obtain a receipt from the public prosecutor's office confirming that they had filed a copy of the statement with it. The public prosecutor relied in particular on sections 44 and 82 of the Associations Act (Law no. 2908 of 6 October 1983). 15. In a judgment of 13 February 1996, the İzmir Criminal Court found the applicants and nine other co-defendants guilty as charged and sentenced them to three months' imprisonment under the provisions relied on by the public prosecutor. The prison sentence was commuted to a suspended fine of 450,000 Turkish liras (7 United States dollars). 16. The Criminal Court held that the constitutive elements of the offence had been made out in that, firstly, the trade unions had not passed a resolution authorising a statement to be made to the press and, secondly, the accused were present when the statement was read out in public. The other co-defendants were acquitted on the ground that they were not present when the statement was read out. 17. The applicants appealed to the Court of Cassation against that judgment. In their written submissions, they alleged that their convictions violated their right to freedom of expression and, in particular, that “a statement to the press” could not be classified as a “leaflet” or “written statement” within the meaning of section 44 of the Associations Act. 18. In a judgment of 11 October 1996, the Court of Cassation upheld the judgment at first instance, holding that it complied with the law and the rules of procedure. The applicants did not receive a full copy of the judgment. 19. On 12 November 1996 the judgment of 11 October 1996 was placed in the file of the İzmir Criminal Court. The sixth applicant, Ms S.T., obtained a copy of it on 25 December 1996. 20. The relevant provisions of the Associations Act, which was published in the Official Gazette on 7 October 1983, are as follows: “(1) Associations shall not publish or distribute leaflets [bildiri], written statements [beyanname] or similar publications [benzeri yayın] without a prior resolution by their executive board. The leaflets, written statements and similar publications shall contain the forenames, surnames and signatures of the president and members of the executive board which passed the resolution. (2) A copy of the resolution by the association's executive board to publish and of the leaflet, written statement or similar publication shall be filed for information purposes with the head of the local authority and the public prosecutor's office for the area. The latter shall deliver, in exchange, a receipt recording the time and date the documents were filed. No leaflet, written statement or similar publication may be distributed or communicated to the press until twenty-four hours after it has been filed.” “Anyone failing to comply with the procedure set out in section 44(1) and (2) shall be liable on conviction to between three and six months' imprisonment.” 21. At the material time trade unions representing public servants were formed without any specific statutory basis. Associations and trade unions were governed by two pieces of legislation: the Associations Act and the Trade Unions Act (Law no. 2821 of 5 May 1983). Although there are no restrictions in the Trade Unions Act on written statements by trade unions, section 63 refers to the Associations Act and lays down that the provisions of that Act shall apply where the Trade Unions Act is silent. 22. The first five applicants produced various judgments that had been delivered by the İzmir Criminal Court in cases concerning the activities of public-sector trade unions. These included a judgment of 1 July 1996 (no. 1996/669), from which it emerged that the first five applicants had ultimately been acquitted in another case in which they had been charged with an offence under sections 44 and 82 of the Associations Act after reading out a statement to the press and distributing it to members of the press. In that case, the Criminal Court had followed a judgment of the Court of Cassation (without giving the reference) in finding that a statement read out to the press drafted by the Health Workers' Union could not be classified as a “written statement” or “similar publication” within the meaning of section 44 of the Associations Act. 23. On 2 May 2000 and 4 June 2002 the Court of Cassation, sitting as a full court, delivered two judgments in which it clarified the issue of whether it was foreseeable that section 44(1) and (2) of the Associations Act applied to written statements read out to the press by members of an association's executive board. In its view, those subsections applied to texts which had previously been adopted and prepared for publication and dissemination. However, a statement read out to the press by an association on a particular subject was not a text that was drafted with a view to publication and dissemination, but a series of verbal comments. “Dissemination”, “publication” and similar terms could not possibly cover the situation in which the content of a speech due to be made orally was distributed among members of the press as an aid to understanding. The effect of holding otherwise – by a broad interpretation of the law, one which, in other words, included oral statements within the scope of section 44 – would be that members of an association's executive board would be liable to penalties for any replies or explanations given in response to questions from journalists; such a state of affairs would introduce an unlawful restriction on freedoms. In addition, the legislature had unambiguously laid down in that section that a text drafted with a view to publication could be published only once the executive board of the association had so resolved and the relevant documents had been filed with the competent authority. 24. Law no. 5231, which Parliament passed on 17 July 2004, amends the Associations Act, repealing sections 44 and 82. On 2 August 2004 the President of the Republic returned the legislation to Parliament for a fresh debate on sections 10 and 21, which relate to the financing of associations.

train

001-23756

ENG

DNK

ADMISSIBILITY

MURATOVIC v. DENMARK

Inadmissible

Christos Rozakis

The first applicant, Aslan Muratovic, and the second applicant, Atifa Muratovic, are ethnic Bosnians who were born in 1953 and 1952, respectively, and live in Randers, Denmark. They are represented before the Court by Mr Lars Thousig Jensen, a lawyer practising in Viborg. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants and their three children entered Denmark on 20 November 2000 without any travel/identification papers and requested asylum in that while they were living in the village Vitomirica in Kosovo in June 1999 Albanian men subjected them to a violent assault which included rape of the women. The applicants succeeded in fleeing to Montenegro and thereon to Denmark. On 4 February 2002 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicants asylum, a decision which was upheld on appeal by the Refugee Board (Flygtningenævnet) on 19 August 2002. Both instances found it established that the applicants and their children had been subjected to serious violence in June 1999, but found that the assault should be seen, not so much as a result of the applicants being Bosnians, but in connection with the situation at the relevant time in Kosovo. In this respect it was recalled that under the mandate of the United Nations, the NATO-led international Kosovo Force, KFOR, being responsible for establishing and maintaining security in Kosovo, on 12 June 1999 intervened in the conflict between Serbian and Kosovar Albanian forces, and that subsequent thereto, for a short while, Albanian armed groups took over specific areas. The Refugee Board stated in addition, that presently the general security situation as to Bosnians in Kosovo had improved according to inter alia UNHCR’s position paper of April 2002, background no. 309, and UNHCR’s and OSCE’s report on ethnic minorities, background no. 313. Finally, although finding it established that the applicants were affected by their experiences to the detriment of their mental health, the Board did not find that a concrete danger existed that they would be subjected to assaults if returned. They were ordered to leave the country immediately. On 5 September 2002 the applicants applied the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration) for a residence permit either on humanitarian grounds pursuant to section 9 b of the Aliens Act (Udlændingeloven) or in the alternative due to extraordinary circumstances pursuant to section 9 c of the Aliens Act. In support of their application they submitted statements by doctors from which it appeared inter alia that the first applicant had been ill for many years, notably suffering from chronic headache; that he was suffering from Post Traumatic Stress Disorder (PTSD); that he had received treatment by a psychiatrist and a psychologist, and that he was taking antidepressive medication. Moreover, according to a statement of 9 October 2002 by a psychologist, the first applicant had expressed thoughts of suicide in case he would be returned to Kosovo. With regard to the second applicant it appeared inter alia that she had received treatment by a psychologist and that she was taking tranquillizers. By decision of 14 April 2003 the Ministry of Refugee, Immigration and Integration Affairs refused to grant the applicants a residence permit pursuant to section 9 b of the Aliens Act since they did not suffer from a very serious physical or mental illness, which could justify the granting of a residence permit on humanitarian grounds. Moreover, the Ministry noted that in general the fact that a person had expressed contemplation of suicide was insufficient to fulfil the criteria under section 9 b of the Aliens Act. In addition, it had not been established that the first applicant was suffering from a mental illness, which according to a concrete medical assessment entailed a significant risk that he would commit suicide. The applicants were ordered to leave the country without delay. By decision of 4 June 2003 the Aliens Authorities refused to grant the applicants a residence permit pursuant to section 9 c of the Aliens Act finding that no extraordinary circumstances existed. The applicants did not appeal against the decision to the Ministry of Refugee, Immigration and Integration Affairs. The Aliens Act and Kosovars in Denmark. According to information provided by the Government, in the summer of 1999 Denmark evacuated a total of 2,855 Kosovars, which were selected together with UNHCR. The applicants in the present case were not among those evacuees. They entered Denmark themselves in November 2000. A “Kosovo Emergency Act” of April 1999 created the legal basis at domestic level for receiving displaced persons from Kosovo with a need for temporary protection. The Act was repealed in 2000. At the same time a provision was inserted in the Aliens Act introducing the possibility of granting a residence permit to distressed persons from the Kosovo Province assumed to need temporary protection (now section 9 e (1)). A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in Denmark and formerly held a residence permit pursuant to the “Kosovo Emergency Act” or has been registered as an asylum-seeker before 30 April 1999. The assessment whether applicants are eligible for a residence permit under section 9 e (1) of the Aliens Act is made on the basis of UNHCR recommendations. Thus, in accordance with the UNHCR recommendations it is possible to issue residence permits under section 9 e (1) to persons - who formerly held a residence permit under the Kosovo Emergency Act or who applied for asylum before 30 April 1999 – and who can be referred to one of the categories of “chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Severely handicapped persons (including their caregivers) whose wellbeing depends on a specialised support system not yet available in Kosovo”; “Unaccompanied elderly persons who have no relatives or any other form of societal support in Kosovo”; and “ Separated children without relatives or caregivers in Kosovo, and for whom it is found not to be in the best interest to return to Kosovo”. App1ications for a residence permit under section 9 e (1) of the Aliens Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs. The applicants in the present case are not covered by section 9 1 (e) of the Aliens Act because they never held a residence permit under the “Kosovo Emergency Act” and they entered Denmark after 30 April 1999. However - like asylum-seekers from other countries – they had the possibility of applying for asylum pursuant to section 7 of the Aliens Act, for a residence permit on humanitarian grounds pursuant to section 9 b of the Act, or for a residence permit due to extraordinary circumstances pursuant to section 9 c of the Act. Asylum is granted to aliens, who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is an independent quasi-judicial body that is not subject to any instructions from the Danish Government. Thus, the Ministry of Refugee, Immigration and Integration Affairs has no authority to decide applications for asylum. UNHCR Recommendations are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases. The granting of a residence permit on humanitarian grounds pursuant to section 9 b of the Act is a discretionary decision, which according to practice may be granted to persons who do not satisfy the conditions of the Geneva Convention, but who is suffering from very severe physical or mental illness (unless the possibility of receiving the requisite medical assistance exists in the applicant’s country of origin). Applications for a residence permit on humanitarian grounds cf. section 9 b (1) are determined by the Ministry of Refugee, Immigration and Integration Affairs. A residence permit may be granted pursuant to section 9 c of the Aliens Act on a discretionary basis, if due to extraordinary circumstances, there are strong grounds for granting such. App1ications for a residence permit under this section of the Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs. According to the Aliens Act an alien whose application for a residence permit for Denmark has been refused must leave the country. Furthermore, under the Act it is possible to provide financial assistance if the person in question returns without undue delay voluntary. In connection with the forced return of aliens from the Kosovo Province, UNMIK (United Nations Interim Administration Mission in Kosovo) is the relevant partner. In every case there is a close dialogue between the Danish National Commissioner of Police and UNMIK. Firstly the Danish National Commissioner of Police notifies UNMIK about the return to Kosovo of Kosovars whose applications for a residence permit in Denmark have been refused. Such notifications state the time of the individual’s departure from Kosovo and entry into Denmark and inform of decisions made by the Danish authorities and the individual’s personal situation, including his or her home town in Kosovo, the languages mastered by the individual and where his or her family members are staying. It also appears from the notification if the individual has been expelled due to crime. The notifications also state particulars on the individual’s health status. This notification procedure was first established at a meeting held in Kosovo from 24 to 26 July 2000 between officials of the Danish National Commissioner of Police, the Aliens Authorities and UNMIK. The notification procedure was confirmed and expanded at a meeting in Kosovo on 22 January 2003 between a delegation of high officials from the immigration authorities and UNMIK, who agreed that UNMIK will be provided with extended information, especially concerning the mental status of Kosovars who are non-voluntarily sent back to Kosovo in order to support UNMIK in its efforts to solve its task. Such information will be available to UNMIK by offering the Kosovars in question a voluntary medical status report prior to the return to Kosovo. The Danish National Commissioner of Police has presented to UNMIK a number of Kosovars whose applications for a residence permit in Denmark have been refused for which reason they have had to leave Denmark. In some cases UNMIK objected to the return of the persons in question. In such situations the Danish National Commissioner of Police has suspended the return until further notice. In the present case, the Danish National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicants has not been planned yet. Normally a forced return takes quite some time, not less than two or three months. Relevant international materials With regard to the current security situation in Kosovo, the following statements/ findings are of particular relevance: The Secretary General on the United Nations Interim Administration Mission in Kosovo stated in his report of 14 April 2003 covering the activities of UNMIK and the developments in Kosovo, Serbia, and Montenegro among other things that given the continued violence, harassment and discrimination faced by minorities, achieving sustainable minority returns to Kosovo was difficult, time-consuming and resource-intensive; In his report of 26 June 2003 he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within Kosovo; In his report of 15 October 2003 he stated inter alia that despite setbacks resulting from recent violent incidents involving Kosovo Serb victims, the overall rate of returns continued to accelerate during the reporting period. Over 2,200 displaced persons had returned so far that year to areas where they were a minority (including 1,016 Kosovo Serb, 693 Roma/Ashkaelia/Egyptians, 242 Bosnians, 74 Gorani and 239 Kosovo Albanians). Funding expected from several major donors had been provided in Kosovo and work on a number of returns projects had begun in earnest, including the return of Kosovo Serbs to Podgorce (Gnjilane region) and Zhupa Valley (Prizren region), and Roma/Ashkaelia/Egyptian returns to Magura (Pristinia region) and Pristina town. The heightened level of security within the Kosovo Serb and other minority communities had not resulted in the cancelling of any returns project, but it had led to numerous postponements of returns activities, at a stage in the season where such delays may mean that returns are not possible until next spring. It was also considered likely to have a dampening effect on individuals’ return. The Tenth Assessment of the Situation of Ethnic Minorities in Kosovo of March 2003, conducted jointly by OSCE and the UNHCR, stated that minorities continue to face varying degrees of harassment, intimidation and provocation, as well as limited freedom of movement, and that considering the overall situation described in the report, the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future, underscoring the continuing need for international protection for members of ethnic communities, in particular Kosovo Serbs, Roma, Ashkaelia and Egyptians; The UNHCR Position Paper on the continued Protection Needs of individuals from Kosovo of January 2003 stated that especially Kosovo Serbs and Roma, but also Ashkaelia and Egyptians should continue to benefit from international protection in countries of asylum. UNHCR stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions. Any such voluntary return movements should be properly coordinated, and re-integration should be supported through assistance to ensure sustainability. Kosovo Serb, Roma, Ashkaelia and Egyptian individuals or families should not be forced or induced to return to Kosovo. The First Vice-President of the Advisory Committee on the Framework Convention for the Protection of National Minorities, recommended in his mission report of March 2003 “Roma Returns to Serbia and Montenegro” for the Council of Europe, inter alia that Roma asylum seeker/returnees (from Western Europe), who fled Kosovo, should not be returned to Kosovo unless they wish to return and they are advised by UNMIK and UNCHR that it is safe for them personally to return to their homes, and In its report of 29 April 2003 - Serbia and Montenegro (Kosovo) “Prisoners in our own homes”: Amnesty International’s concerns for the human rights of minorities in Kosovo - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from Kosovo and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “voluntarily return”. Amnesty International considered that the forcible return of members of minority groups to Kosovo would be a violation of the principle of non-refoulement and place minority individuals at risk. It follows from a “Memorandum of Understanding” between the Federal Minister of the Interior of Germany and the Special Representative of the Secretary-General of the United Nations for Kosovo of 31 March 2003 that approximately 33,000 members of ethnic minorities from Kosovo are required to leave Germany. It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to Kosovo, as from April 2003. In the first year Germany would return up to 1000 persons. This figure would include members of the Turkish, Bosnian, Gorani and Torbesh minority communities, as well as Ashkaelia and Egyptian minorities. As to the latter two groups of minorities, they would be returned depending on the results of an individualised screening process performed by UNMIK. Members of the Serb and Roma communities would not be returned in 2003.

train

001-23859

ENG

ITA

ADMISSIBILITY

NOBILI MASSUERO v. ITALY

Inadmissible

Christos Rozakis

The applicant, Mr Ferdinando Nobili Massuero, is an Italian national who lives in Rome. He was represented before the Court by Mr F. Spagnolo, a lawyer practising in Rome. The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's father was the owner of a flat in Rome, which he had let to A.G. In a registered letter of 5 June 1984, the applicant's father informed the tenant that he intended to terminate the lease on expiry of the term on 31 July 1987. In a writ served on the tenant on 4 July 1986, the applicant's father reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. By a decision of 12 February 1987, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 3 July 1988. On 4 July 1988, the applicant's father served notice on the tenant requiring him to vacate the premises. On an unspecified date the applicant's father informed the tenant that the order for possession would be enforced by a bailiff on 16 September 1988. Between 16 September 1988 and 7 October 1999, the bailiff made fifty attempts to recover possession. Each attempt proved unsuccessful, as the applicant's father was not entitled to police assistance in enforcing the order for possession. In the meanwhile, on 9 July 1998, the applicant's father died and the applicant inherited the flat. On 3 November 1999, the applicant appointed a lawyer in order to be represented in the procedure with the aim of repossessing the flat. On the same day, the applicant recovered possession of the flat outside the framework of the eviction proceedings in a meeting held between him, his lawyer and the tenant's representative.

train

001-83462

ENG

GBR

CHAMBER

CASE OF REAVEY v. THE UNITED KINGDOM

Violation of Art. 2 (lack of independence of the investigating body during the initial stages of the investigation);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Josep Casadevall;Nicolas Bratza

6. The applicant was born in 1923 and lives in Whitecross, County Armagh. She was the mother of John Reavey, Brian Reavey and Anthony Reavey. 7. On the evening of 4 January 1976, John Reavey, Brian Reavey and Anthony Reavey, sons of the applicant, were at home watching television. Between 6.05-6.10 p.m., three gunmen entered the house and shot all three brothers. Brian was shot three times in the back and once in the legs; John was hit by 14-16 9mm bullets in the neck and body: the autopsy report concluded that death would have been rapid in both cases. Anthony was hit six times in the legs. When the gunmen had gone, Anthony made his way to a neighbour's house to give the alarm. He later died of a brain haemorrhage in hospital on 30 January 1976, the autopsy report concluding that the wounds that he had received had played no part in his death. 8. On the same night, three other Catholics, Barry O'Dowd, Declan O'Dowd and Joseph O'Dowd were shot and killed in County Down, about twenty minutes after the attack on the Reaveys (see application no. 34622/04). 9. Shortly after the events, police arrived at the scene and secured it. An ambulance removed the bodies. 10. Detectives arrived at the scene at 7.25 pm. 11. At 7.40 pm officers went to a vehicle on fire and on its being extinguished took the remains to a garage for inspection. Scene of crime officers examined the scene, recovering a number of spent cartridge cases and bullet heads and one live round, which were sent for examination. 12. Forensic examination established that four weapons had been used in the attack, three of which had been used in previous incidents. Police believed the murders were carried out by the Ulster Volunteer Force (“UVF”), a proscribed loyalist paramilitary organisation. 13. House to house inquiries were carried out in the area and along the suspected escape route, and liaison made with officers involved in other killings of Catholics in the area. Nothing of evidential value was obtained. A number of known loyalist activists were arrested and interviewed about the murders but no admissions were made. The police sent a report to the DPP on 4 March 1976. As no person had been identified as a perpetrator no-one was charged. 14. Inquests were held on 28 January 1977. Open verdicts were returned. 15. The investigation did not close and became active again in 1978, when a Catholic priest Father Hugh Murphy was abducted by loyalist paramilitaries intending to use him as a hostage vis-à-vis the IRA. The police arrested a reserve police constable, William McCaughey, who, in the course of questioning, revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incidents. McCaughey made allegations that a police officer was involved in the Reavey murders. This officer was arrested and questioned. He was charged with serious offences, resigned from the police and was subsequently convicted. 16. McCaughey's revelations gave rise to investigations in eleven specific cases, some of which were linked in terms of the identities of those involved, the modus operandi or by virtue of the ballistic examinations of weapons used. Nine suspects were arrested in total, including five police officers and all were eventually charged with offences. 17. One of those implicated was a police officer John Weir who was named as having been involved in the murder of a shopkeeper called Strathearn in Ahoghill in April 1977: he was convicted for that murder in June 1980 and sentenced to life imprisonment. The Government stated that both McCaughey and Weir refused to name the two loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution. The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with Weir and McCaughey. While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries, each again refused to do so unless there was something in it for themselves. The Government stated that during the period in which Weir was detained he was interviewed on a large number of occasions. At no time did he implicate himself or others in any offence other than the Strathearn murder. 18. Apparently around this time, the applicant stated that Chief Superintendent Gerry McCann of the Royal Ulster Constabulary ("RUC") initiated a meeting with a member of the Reavey family and told him that he believed that two McClures (one of whom was Laurence McClure, a former Reserve Constable in the RUC) and James Mitchell, also a former Reserve Constable, were involved in the attacks on the Reaveys as well as the attacks on Donnelly's Bar (19 December 1975- see Brecknell v. the United Kingdom, no. 32457/04 ) and the Rock Bar (5 June 1976: see McGrath v. the United Kingdom, no. 34651/04). He also named Robert McConnell (a former part time member of the Ulster Defence Regiment, the “UDR”) as the gunman who entered the house first. He said that one of the men was going to turn Queen's evidence if convicted of the Rock Bar attack, an apparent reference to Laurence McClure. 19. On 1 February 1993 John Weir was released from prison on licence. In January 1999, he made a statement to a journalist alleging RUC and UDR collusion with loyalist paramilitaries from the Portadown area in the mid-1970s. This statement was published in the Sunday Times newspaper in March 1999. It was obtained by the Patrick Finucane Centre, a human rights non-governmental organisation in Derry (“the Centre”). 20. John Weir's statement made detailed allegations about security force collusion with loyalist paramilitaries in a series of incidents. He alleged inter alia that RUC Reserve Constable Laurence McClure had told him that the murder of the Reavey family members was carried out by Robert McConnell, a member of the UDR, Laurence McClure, Johnny Mitchell, another Reserve Constable in the RUC and McClure's brother who was not a member of the security forces. The statement also made links between this incident and other attacks allegedly carried out by members of the security forces, both RUC and UDR, and loyalist paramilitaries. This group used the farmhouse in Glennane owned by James Mitchell, a RUC reservist, as a base from which to carry out attacks on Catholics and nationalists. Other attacks allegedly included the murder of Colm McCartney and Sean Farmer at a bogus vehicle checkpoint in August 1975 (see application no. 34575/04); the attack on Donnelly's Bar in which Trevor Brecknell, Michael Donnelly and Patrick Donnelly were killed (see application no. 32457/04); the murder of Joseph, Barry and Declan O'Dowd and wounding of Barney O'Dowd (see application no. 34622/04); and the attack on the Rock Bar in which Michael McGrath was seriously injured (see application no. 34651/04). Weir also linked these attacks to the Dublin and Monaghan bombings in which 33 people were killed in the Republic of Ireland. 21. On or about 10 June 1999, RTE, an Irish television channel, broadcast a television programme that contained allegations of security force involvement in a number of deaths, including that of Trevor Brecknell. Weir made allegations on that programme that members of the RUC and UDR were directly involved in the attack on Donnelly's Bar. A BBC Spotlight programme produced a similar documentary dealing with these allegations. 22. These allegations attracted considerable attention on both sides of the Irish border and became the subject of police investigation in both jurisdictions. The Government stated that the police investigation in Northern Ireland was focussed on determining whether Weir's allegations should be assessed as sufficiently credible to require a full investigation. They obtained from the journalist an edited transcript of the interview with Weir. While his whereabouts were unknown to the RUC, Weir met with senior Irish police officers at the Irish Embassy on 15 April 1999. A copy of his statement was provided by the Garda to the RUC, along with a further statement made by Weir to another journalist dated 3 February 1999. The police analysed the available materials and sought to identify the personalities to be interviewed. It became apparent that some had died and that others, living abroad, could not be traced. A series of seven interviews were conducted, under cautions, between July and December 2001, of those individuals central to Weir's account who could be traced. No charges were preferred. The interviews followed the format of Weir's allegations being put to the interviewee for his or her response. The predominant response was denial of any involvement and claims that Weir had been untruthful. No admissions were made by any interviewee. Interviews were also conducted with less central personalities and with police officers involved in interviewing Weir in 1978. The latter stated that Weir had not mentioned the matters now being alleged. Amongst those interviewed by the police in the course of the preliminary investigation of Weir's allegations, one person was questioned about the Reavey murders. He denied any involvement and made no admissions. 23. Meetings were held regularly with RUC counterparts in the Republic of Ireland. The RUC co-operated also with the judicial inquiry established in the Republic of Ireland into the Dublin and Monaghan bombings (see the description of the inquiry in the Brecknell case referred to above). Amongst matters about which the RUC team provided information to the inquiry was ballistics information which linked some of the weapons used to more than one incident. In February 2000 a substantial report was compiled by the RUC for the Garda dealing with Weir's allegations. It profiled Weir and dealt inter alia with a description of the 1978 investigation into McCaughey, Weir and others. It concluded that the investigation would continue but that his credibility was in doubt. According to the Government, despite inquiries being conducted, Weir's whereabouts could not be traced. This report was not disclosed as the investigation was continuing. An internal RUC report dated 27 February 2001 concluded that it would be necessary to interview Weir before any view could be finalised in respect of the credibility of his allegations: such interview was not possible as his whereabouts were not known. The report noted the absence of any previous mention of the allegations before 1999 and that much of what he said was hearsay and speculation. Enquiries made of the British Embassy in Nigeria (where he had a known address) and the criminal intelligence service and others failed to locate Weir. Contact was made with the Garda and the secretariat of the Inquiry into the Dublin and Monaghan bombings without positive result. 24. The Serious Crime Review Team ("SCRT") was established in March 2004, with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities. A preliminary case assessment was carried out by a detective chief inspector, who audited all known information and documentation. 25. In light of the preliminary assessment, the case was referred to the Historical Enquiry Team (“HET”). On 28 April 2006, a Senior Investigating Officer reported on the further review; a number of potential lines of inquiry were identified and recommendations made, including that the HET should extensively interview Weir. This recommendation was approved. The HET director of Investigations, Detective Chief Superintendent James of the London Metropolitan Police Force, took over personal supervision of the investigation which has progressed through the first three of five stages of the HET process (collection of all relevant material; assessment of the investigations to date; review of evidence, with intelligence and open and non-police sources, together with a meeting with the families of the victims of the attack). As a number of investigative opportunities were identified and to be followed up, the case was to continue to be processed by HET, which had been put in touch with Weir by the Centre. The Government submitted that if any evidence of police involvement in the murders was found, the Office of the Police Ombudsman for Northern Ireland would then become involved. The Government have provided recent information that Weir finally agreed to meet with the HET in Dublin; he refused, however, to make a written statement or to give evidence in court. 26. There has been contact between the police and family members, their solicitors or the Centre. In particular, there were meetings on 21 January 2000 with Chief Superintendent McCann; on 19 December 2001 with Detective Inspector Aiken and in November 2002 with Detective Inspector Williamson; and in June and August 2004 with the Chief Constable; members of HET met with families or their representatives on 5 April and 3 May 2006; and there has also been extensive correspondence with the families or their representatives. See Brecknell, cited above (§§ 39-41). See Brecknell, cited above (§§ 42-49).

train

001-66588

ENG

GBR

ADMISSIBILITY

F. v. THE UNITED KINGDOM

Inadmissible

Matti Pellonpää;Nicolas Bratza

The applicant, F, is a Libyan national, who was born in 1950 and is currently in prison in HMP Elmley. He is represented before the Court by Mr J. Luqmani, a solicitor practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. In April 1977 the applicant arrived in the United Kingdom (“UK”) with a short-term visitor’s visa issued by the British Embassy in Libya. He did not claim asylum and was given leave to enter for one month, stating that he was looking at colleges with a view to studying English. In May 1977 he was charged and convicted of theft and sentenced to 14 days’ imprisonment. In mid-1978 he was convicted of dishonest handling. Since he did not pay the fine, in April 1979 he was again arrested and committed to prison until June 1979. In 1978 the applicant began a relationship with Ms R, a British citizen. She had a baby in April 1979. In October 1979 a deportation order was served at the applicant’s last-known address. He had made no application to extend his leave to remain and was liable to deportation for overstaying. A further deportation order was signed in February 1980 and served on the applicant in May 1980, when he was arrested. Ms R was now pregnant with their second child. On 27 May 1980 the Joint Council for the Welfare of Immigrants made detailed submissions to the Home Office on the applicant’s behalf, requesting that he be granted leave to remain on the basis of his relationship with Ms R. The applicant was interviewed by an immigration official on 10 June 1980. He claimed that his older brother had been executed and that he had been arrested in consequence and had fled to the UK in fear of further ill-persecution. He appeared, however, unsure whether his brother had been a student or what he had studied. He claimed that his younger brother had avoided military service by jumping from a building and injuring himself. He also stated that he had no political affiliations at all in Libya and that, far from disagreeing with the regime in Libya, he had no quarrel with the Gaddafi regime. The Home Office official found the applicant’s account of his relationship with Ms R to be “fraught with discrepancies”. In the course of a further interview on 17 July 1980 the applicant alleged that, while the Gaddafi regime had confiscated some of his father’s property and the applicant disliked it, he had never been involved in politics in Libya, belonged to any anti-government group or taken part in any demonstration. He again referred to his younger brother’s avoidance of military service, his older brother’s execution for anti-government activities, his own subsequent arrest and ill-treatment, and his release and flight from Libya. He had lied on entry to the UK, saying he was married, whereas he had divorced in 1977. He confirmed at the end of the interview that he had never received threats from the Libyan authorities. The report of the interview states that the applicant could offer no convincing reason why, if fear was the reason he left Libya, he had not applied for asylum in the UK earlier. However, the applicant added that his long absence from the country and avoidance of military service would increase the risk of his having a “bad time” if returned. Ms R was also interviewed in June 1980. On 22 October 1980 the deportation order was revoked. The Home Office indicated in its letter of that date that the applicant “did not appear to be more exposed to risk than any other Libyan national as he appears to lack either the motivation or capacity to represent opposition to the regime.” However, given his long standing relationship with Ms R, he was given exceptional leave to remain until 28 October 1981, when his position would be reconsidered. On 3 November 1980 Ms R had their second child. Both children were placed for adoption on 3 March 1981. On 7 March 1981 the applicant and Ms R married. No further request for an extension of leave to remain was received at the Home Office, although the applicant claims that Ms R had said that she would post his request. In January 1983 a full adoption order was granted in respect of the two children. In February 1983 the police attempted to find the applicant. In August 1983 police enquiries revealed that Ms R and he were separated. In October 1983 the applicant was arrested on grounds of overstaying. In February 1984 he was convicted of overstaying and fined. The Crown Court upheld his conviction but the applicant was not recommended for deportation. In May 1984 his solicitors made a late application for indefinite leave to remain on the basis of his marriage. While he and his wife were requested to attend on 20 November 1984 for interview with immigration officials, the applicant attended (with representation) but Ms R did not attend. The applicant explained that they were living separately and that Ms R had serious alcohol problems but that he was hopeful of a reconciliation. On 7 February 1985 the Secretary of State refused the application, as there was no evidence that the marriage subsisted, and issued a deportation order. The applicant had overstayed and had not made any application for an extension. He had been in the United Kingdom for almost eight years, most of the time without any legal authority. His alleged fears of returning to Libya had already been examined and dismissed and there were no compassionate reasons militating against deportation. The applicant appealed against this decision, arguing that he merited asylum. He was interviewed by an immigration officer on 7 May 1985 and made general submissions which were largely the same as those made on 17 July 1980. He confirmed that he had never been politically active, but stated that a magazine published in 1982 in the Middle East had indicated that he was wanted by the Libyan authorities. He implied that his younger brother’s injuries were not self-inflicted (as previously maintained) but had been inflicted by the Libyan authorities. He still hoped to reconcile with his wife, although they were not in regular contact. On 16 October 1985 the Secretary of State rejected the appeal: it was considered that the applicant had not demonstrated a well-founded fear of persecution and that there were no compassionate grounds warranting the grant of leave to remain. The applicant appealed to the Special Adjudicator (“SA”). He gave evidence about his older brother’s execution, the loss of his father’s wealth to Gaddafi, and his own departure from Libya in fear. He said that he had not contacted the Home Office when he arrived as he had not known about political asylum. He also referred to the magazine where his name allegedly appeared as someone wanted by the Gaddafi regime. Although the hearing was adjourned for three months to allow the magazine to be produced, the applicant could not produce it. On 24 June 1987 the SA dismissed his appeal. He found that the 1980 deportation order had not been revoked because of the grant of asylum (as the applicant had claimed) but instead because of the applicant’s relationship with Ms R. He considered the various different versions of events presented by the applicant over the years and found him generally to be lacking in credibility. Moreover, apart from his unproven and tenuous connection with his brother’s political activities, the Libyan authorities would have no reason to target the applicant. It could not be accepted that all Libyans outside Libya would be pursued by the regime on their return. No compassionate circumstances appeared to exist. On 13 October 1987 leave to appeal to the Immigration Appeal Tribunal (“IAT”) was granted. The applicant has not submitted the IAT decision, although later correspondence from the Secretary of State indicates that the IAT refused his appeal on 7 March 1988. However, the Secretary of State re-considered following further representations on the applicant’s behalf, and on 3 March 1989 exercised his discretion to grant indefinite leave to remain on the basis of the applicant’s marriage. On 27 April 1992 the applicant was convicted of rape and assault occasioning actual bodily harm on an elderly neighbour. In finding that there were grave and aggravating features to the case, the trial judge sentenced him to 15 years’ imprisonment. No deportation order was made. His sentence was reduced to 13 years on appeal. On 5 March 1993 the Secretary of State, finding that the applicant’s continued presence in the UK was not conducive to the public good, decided to deport him and to issue removal directions. The applicant appealed against the deportation order to the IAT on the basis of his good character (he stated that “since my arrival I have been of good character and adhered to the laws of the land”), his responsibility to his children, his professional affairs in the UK, the previous grant of leave to remain and his pending appeal against sentence. He challenged the removal directions on the basis that he had a fear of persecution: he had fled from Libya as he had been politically involved, he had been allowed to enter the UK to seek asylum, he was still campaigning for asylum, he was still regarded as a subversive in Libya and his time in Europe would be badly regarded. On 3 September 1993 his appeal to the IAT was rejected. He was found to be “totally lacking in credibility” and it was not believed that he had “the slightest interest in politics in Libya or here”. It was found that the two brothers with whom the applicant remained in contact worked for the Libyan Government and that his older brother had been executed for fraud rather than any political activity. It was further noted that the applicant had a large family in Libya and that he had been convicted of a horrific offence in the UK for which he had not shown the slightest remorse. It was true that the Libyan regime was unpredictable and that any Libyan having spent a long period in Europe was likely to come under some scrutiny. However, on balance, deportation was the right course. A deportation order was made on 7 March 1994. At the expiry of the applicant’s prison sentence, fresh removal directions were set by the Secretary of State. The applicant’s representatives appealed, invoking Articles 3, 5 and 6 of the Convention. On 26 September 2000 the Secretary of State rejected the application. He considered the applicant’s record in the UK to have been “quite appalling, showing complete contempt for both immigration and criminal law”. The applicant had formed remarkably few ties with the UK and his claim to asylum had been considered and rejected on a number of occasions by the Secretary of State, the SA and the IAT. There were no substantial grounds to believe that the applicant would be ill-treated contrary to Article 3 of the Convention. On 11 January 2001 the Secretary of State confirmed his decision to deport. The applicant appealed to the SA on 7 February 2001. Following a hearing on 27 March 2001, by a decision dated 22 May 2001, the SA rejected the appeal. The applicant’s credibility had previously been found lacking, a finding confirmed by his answers to questions before the SA. In particular, the SA found it significant that the applicant relied before him on the suggestion that, if returned to Libya, he would tell the Libyan authorities that he had left because he was an opponent of the regime - the SA observed that “this suggestion beggars belief in view of the previous evidence”. There was no evidence to suggest that the Libyan authorities were aware or would become aware of the applicant’s criminal record or that he would be at risk of double jeopardy, other sanctions or treatment in breach of Article 3. There was no evidence that he would be prejudiced if the authorities discovered that he was a failed asylum seeker and there was no evidence that ill-treatment would result from any discovery that he had failed to complete his military service. Even if Articles 5 and 6 had extra-territorial effect, his brief detention on return would not breach Article 5 and there was no evidence to suggest that he faced criminal, political or other sanctions in Libya. The applicant applied for leave to appeal solely on the basis of the Bulletin of the Home Office Country and Policy Unit (“CIPU”) dated 11 May 2001 (see the “Domestic Law and Practice” section below). Leave to appeal was granted on 19 June 2001. The IAT also had before it two letters from the Foreign and Commonwealth Office (Near East and North Africa department) dated 18 January and 15 April 2002, which provided an update on the position concerning the return of failed asylum seekers to Libya (see below). On 10 May 2002 the IAT dismissed the appeal. Although the history of the matter was “a truly shocking one, as much for the sloth and lack of resolution displayed by the Home Office in the past as for [the applicant’s] own downright wickedness”, the IAT noted that it had to decide whether the applicant’s return to Libya brought with it a real risk. The IAT found as follows: “We have to say that there is nothing whatsoever in this case, apart from the existence of the [CIPU bulletin], to suggest that [the applicant] would face any real risk of persecution or ill-treatment on return. The policy itself is not a blanket one, and allows for consideration of individual cases by a senior caseworker, which has been done here, resulting in the unusually coherent refusal letters of 26 September 2000 and 11 January 2001. There is nothing to suggest that, if the loathsome crime the [applicant] committed here became known to the Libyan authorities, he would face any form of double jeopardy for it there. Nor is there anything to suggest he would be regarded by them as any kind of political opponent: if he declared himself as such, as he had threatened, there is nothing to show that he would face any real risk of being taken seriously. The adjudicator was clearly entitled to reach the view he did, and we should have done the same ourselves.” On 1 July 2002 the IAT refused leave to appeal to the Court of Appeal. His renewed leave application (under Article 3 and in relation to the CIPU Bulletin only) to a single judge of that Court was rejected on 19 August 2002. His application to the full Court of Appeal was dismissed after a hearing on 2 October 2002, the Court of Appeal finding as follows: “What [the applicant’s representative] says about the present applicant is that if the applicant is interrogated by the [Libyan] security authorities, as the CIPU bulletin says he will be, there is, if not a likelihood, at least a risk that they will elicit from him the fact that many years ago he sought and was refused asylum in this country. This seems to me to be a possibility so remote as not to constitute an appreciable risk at all. The history of the applicant in this country is littered with good reasons for his removal, any one of which will intelligibly explain his enforced reappearance in Libya 25 years after his first arrival in this country. The immediate cause of his removal, and indeed the only active cause of his removal because of the extraordinary good fortune which he has previously enjoyed, is his deportation for the commission of a crime for which he has served a long punitive term. There is no reason why any other documentation should accompany him and every reason why the notice of deportation can accompany him and provide a perfectly intelligible explanation of his removal. If he wishes he can also draw attention to the fact that, but for the commission of that crime, he would have continued to be the beneficiary of indefinite leave to remain, of which there is also, no doubt, documentary evidence in his or his lawyer’s hands. In those circumstances, there is nothing in the documentation to suggest that as a deported criminal the applicant faces any special risk of maltreatment. ...” This document was entitled “Enforced Removal of Failed Asylum Seekers” and, in so far as relevant, read as follows: “Summary 1. In April 2000 Amnesty International made representations to us in the specific case of a failed Libyan asylum seeker where we had enforced his removal to Libya. It was said that this individual was arrested and imprisoned on return to Libya. A temporary hold was placed on further removals whilst we made further enquiries. Amnesty International Canada also produced a report last year in which they said that, in addition to being detained, several returned asylum seekers have been subjected to serious human rights violations, including torture. 2. On the basis of the information from Amnesty International, UNHCR urged caution in returning failed asylum seekers to Libya. They also point to an incident in March last year concerning seven Libyan nationals, who were extradited from Jordan to Libya, at least 3 of whom were killed on arrival at Tripoli airport. 3. The Foreign and Commonwealth Office advised that: any Libyans returning to that country after an absence of six months or more are subject to an interrogation by the Libyan security authorities. Failed asylum seekers are routinely imprisoned by administrative (as opposed to judicial) order for ‘having shown disloyalty to the state’. 4. In the light of this information we do not believe that we can at present safely enforce removals of failed asylum seekers to Libya. Any representation made under Article 3 of the Human Rights Act against the removal to Libya of a refused asylum applicant, and based on information currently available in the public domain is likely to succeed. The Foreign and Commonwealth Office has said that they do not expect a significant change in the human rights situation in Libya within the next twelve months. New Policy 5. As a consequence of the above it has been decided that a limited exceptional leave policy for failed asylum seekers from Libya will be introduced as follows: a. refused Libyan asylum seekers to be granted 6 months [exceptional leave to remain]. b. senior case workers to submit, to the Minister, advice on individual cases involving applicants who have been convicted of a serious crime and those subject to a recommendation to deport by the courts. c. there will also be close, ongoing monitoring of the situation, to facilitate a review of this policy in twelve months or sooner if new information becomes available on the safety of return.” This document, in so far as relevant, provides as follows: “1. Scope of Document 1.1. This bulletin provides caseworkers with guidance on dealing with Libyan asylum claims in the light of the announcement made by the Home Secretary on 7 October 2002 regarding, inter alia, the use of Exceptional Leave to Remain in connection with unsuccessful asylum applications. This bulletin is publicly disclosable. 2. Change in ELR [Exceptional Leave to Remain] policy 2.1. In the past country specific ELR policies have been introduced where the general humanitarian situation would normally preclude removal. What this has meant in practice is that where asylum is refused, ELR has been granted routinely (subject to security/criminal considerations) without the particular circumstances of the individual’s case being examined. The Home Secretary has announced an end to these country specific ELR policies and that in future all cases will be decided on an entirely individual basis. 2.2. Libya has been the subject of a country specific ELR policy that was introduced in April 2001 based on concerns about the safety of returning failed asylum seekers. In the light of the Home Secretary’s announcement, that policy has now ended. 2.4. If the circumstances of an individual case justify it, exceptional leave to remain should be granted. In cases where asylum has been refused, and exceptional leave has not been granted, appropriate enforcement action will be considered. 2.5. The latest available country of origin information on Libya is contained in Libya Bulletin 1/2001 issued on 11 May 2001. CIPU are in the process of preparing updated country of origin information and this will be issued shortly. In the meantime caseworkers and presenting officers will wish to have the two documents attached to this Bulletin: Annex A: a letter from FCO dated 15 April 2002 which addresses the issue of the treatment of returnees to Libya Annex B: a report of a Swedish Migration Board fact-finding mission to Libya conducted in May/June 2002.” This further bulletin indicated its purpose to be as follows: “This Bulletin should be read in conjunction with the CIPU Bulletin of 7 October 2002, which provides caseworkers with guidance on dealing with Libyan asylum claims. The guidance below updates the current casework directions on the return of failed asylum seekers to Libya. It replaces the previous directions set out in the CIPU Bulletin of 1 May 2001, which is now superseded by this bulletin and by the CIPU Bulletin of 7 October 2002. It explained the background to the CIPU Bulletin of May 2001: “In April 2000 Amnesty International made representations to us in the case of a failed Libyan asylum seeker where we had enforced his removal to Libya. It was said that this individual was arrested and imprisoned on return to Libya. A temporary hold was placed on further removals whilst we made further enquiries. Amnesty International Canada also produced a report last year in which they said that, in addition to being detained, several returned asylum seekers have been subjected to serious human rights violations, including torture. The Foreign and Commonwealth office advised at that time that any Libyans returning to that country after an absence of six months or more are subject to an interrogation by the Libyan authorities. On the basis of the information from Amnesty International, UNHCR urged caution in returning failed asylum seekers to Libya. They also pointed to an incident in March 2000 concerning 7 Libyan nationals, who were extradited from Jordan to Libya, at least 3 of whom were killed on arrival at Tripoli airport. In the light of this information we took the view that we could not safely enforce removals of failed asylum seekers to Libya. A limited exceptional leave [to remain] policy was instigated at that time. That has been superseded by the instructions in the CIPU Bulletin of 7 October 2002” The bulletin went on to outline the current position to be as follows: “The suspension of removals of failed asylum seekers to Libya is still in force. However it appears from the most recent advice from the Foreign and Commonwealth Office and the Country Report issued by the Swedish Immigration authorities (both attached to the CIPU Bulletin of 7 October 2002) that the situation has moved on. We are trying to obtain further views and information and will issue these as soon as possible.” The summary of this bulletin, headed “Country Report by the Dutch Immigration Authorities”, provided as follows: “This bulletin circulates a country report on Libya by the Dutch immigration authorities. The attached report at Annex (Home Office translation) has been prepared by the Dutch Immigration Service and published on the website of the Ministry of Foreign Affairs of the Netherlands. The following is a summary of the report: Libyan law prohibits opposition to the present regime. The human rights situation leaves much to be desired. The Libyan authorities ban international and local human rights organisations. The UNHCR office in Tripoli does not carry out any duties in respect of returning Libyan asylum seekers. The Libyan authorities have a co-operative attitude towards UNHCR. Amnesty International has raised a number of human rights concerns about the treatment of Libyans, including returned rejected asylum seekers. Internal opposition to the present regime has often been religiously inspired and has occurred above all in Cyrenaica (north-east Libya) Opposition groups abroad (mostly located in Egypt and the UK) do not seem to form a united front. In the past opponents of the regime have been executed, including by public hanging. There is no recent information about the enforcement of the death penalty. The last officially known execution took place in 1997. Two leaders of the banned Muslim Brotherhood arrested in 1998 were sentenced to death in February 2002, but the sentences were not carried out. Following the lifting of sanctions against Libya in June 1999 and the resumption of air flights the return of rejected asylum seekers is more practically possible. In 2000 a number of incidents occurred where rejected asylum seekers returned from various countries received adverse treatment from the authorities. In March 2000 3 members of a group of 7 deported from Jordan were killed on arrival at Tripoli airport. There are strict controls on people leaving Libya. Libyans who have been abroad for longer periods (not specified) are liable to be questioned by the Libyan authorities on return. This applies to all Libyans, not just rejected asylum seekers. Rejected asylum seekers are likely to be held for a few days on return. Rejected asylum seekers who are returned under escort are certain of arrest, temporary detention and interview. It may also happen that rejected asylum seekers are just interviewed briefly. As far as is known this practice has no repercussions. Cases are known of removed rejected asylum seekers who since their forced return have resumed living in Libya unhindered. There is an essential difference between the treatment of people suspected of opposition activities in or outside Libya and people who are not suspected of these. Suspicion of opposition activities is enough for longer detention and sentencing. Association with an opponent of the government is sufficient excuse to detain and interview. If a rejected asylum seeker is detained on return to Libya maltreatment or torture cannot be ruled out. Other countries policies The UK (140), Germany (116) and Switzerland (about 100) had most asylum applications in 2001. Nine rejected asylum seekers were removed from Germany in 2000, five in 2001 and two in the first half of 2002. The German authorities examine each case carefully and do not return people originating from eastern Libya. Over 2001 and 2002 two rejected asylum seekers were removed from Switzerland. Subject to credibility most applications in Switzerland are approved. Of the other countries surveyed none had specific policies on Libya. The numbers of cases were very small. In 2001 the Netherlands expelled 38 Libyans, 16 of whom were rejected asylum seekers and 22 non-asylum. UNHCR In October 2000 UNHCR took the attitude that care should be used in returning rejected asylum seekers to Libya. Asked about its present standpoint, UNHCR said it was engaged in working out its stance.” This bulletin, headed “Removal of Failed Asylum Seekers to Libya”, stated as follows: “This bulletin sets out the revised policy about return of rejected asylum seekers to Libya. CHANGE OF POLICY ON RETURN OF REJECTED ASYLUM SEEKERS In the light of advice from the Foreign and Commonwealth Office, and information from other European countries who have produced country reports and carried out some enforced returns to Libya in recent months returns, it is believed that there is no longer a justification for the country policy first issued in the (now defunct) CIPU Bulletin of 11 May 2001. Asylum applications from Libyan nationals should be carefully considered in the light of the country information recently issued to caseworkers. This includes standard reference, human rights and other relevant reports. The following documents should be particularly noted: CIPU Bulletin dated 7 October 2002. This bulletin notified the decision to end the country specific Exceptional Leave policy in respect of unsuccessful Libyan asylum seekers. It also circulated advice from the Foreign and Commonwealth office (Letter dated 15 April 2002) and a report of a Swedish Migration Board fact-finding mission to Libya conducted in May/June 2002. CIPU Bulletin dated 25 March 2003 circulating a country report of 20 November 2002 by the Netherlands Department of Asylum and Migration Affairs - General official report on Libya / return Other previous CIPU Bulletins including those of 6 December 2002 and 11 May 2001 are superseded by this Bulletin.” Early in 2004 the CIPU issued a further bulletin on Libya, which was confined to listing source material (and providing electronic links to such material) for caseworkers to consult when considering asylum applications. There was no accompanying Country Report offering commentary on the source material, opinion or policy, since Country Reports are currently compiled only for the top 35 asylum-producing countries, of which Libya is not one. This letter was from the Near East and North Africa Department (“NENAD”) of the FCO to the CIPU and read as follows: “1. You requested an assessment of the current situation in Libya and the authorities’ likely attitude towards Libyan nationals deported from the United Kingdom. I received a preliminary reply to this question in November, the burden of which was that the people concerned would not face serious difficulties in Libya, provided they had not been involved in anti-regime activities. This reply was by no means definitive. 2. [The United Kingdom Ambassador] had the opportunity to raise this issue with a senior member of the Libyan Government. He read to him the standard list of assurances that the Home Office seeks in such cases from the receiving country. He also explained two cases in outline. The Libyan official said that the two names were not ones he recognised as having any political significance. He said that they seemed to be economic migrants who had committed crimes, and not people of any significance to the Libyan security authorities. On that basis, they would not face difficulties; indeed, they might not even be questioned. 3. These comments are consistent with the information Tripoli has obtained from their Legal Adviser. It is impossible to be one hundred per cent confident of the assurances we need, given the presence in Libya of numerous security agencies. Once a Libyan is returned following deportation, we lose any ability to protect them. Travel documents might well highlight them for special attention by the Internal Security Authorities. Moreover, there may be something in their record that turns up when they research the names of deportees. 4. That apart, [the United Kingdom Ambassador in] Tripoli has confidence in his contact’s judgement. On balance, therefore, he believes it should be possible to recommend to Home Office Ministers that serious ill-treatment is unlikely and that the men, in these cases, could be returned without a breach of the European Convention.” One of the individuals referred to in the second paragraph of that letter was the applicant in the case of A v. the Secretary of State for the Home Department (cited below). The NENAD of the FCO provided, by way of this letter to the CIPU, a further assessment of the position of returnees. The letter is almost identical to that of 18 January 2002 except that it added a preliminary sentence to the second paragraph which reads: “The Libyan authorities appear to take a slightly more relaxed view than they have done previously.” It also excluded the reference to the two specific cases to which the letter of January had referred and its last sentence was more general than that of the 18 January 2002: “On balance, therefore, he believes it should be possible to return certain categories of migrant without a breach of the European Convention.” This letter was written by the FCO in response to queries from the solicitors for a Libyan asylum seeker (the applicant in the case of A v. the Secretary of State for the Home Department, see below), referred to the sources of the information in the FCO’s letter of 18 January 2002. A general enquiry had been made by the FCO to the Deputy Head of Mission in Tripoli who replied, having consulted the Honorary Legal Advisor to the Embassy in Tripoli, that deportees would be questioned on return to ascertain whether: “(i) they had acted against the Libyan Government while overseas by being a member of an opposition grouping or other such political activity and (ii) as to why they were arrested in the UK. On the whole this would just be routine questioning and if there were no political context they would be quickly released. It was the [Honorary Legal Adviser’s] considered opinion that a deportee would not face problems on their [sic] return if they had not been involved in political activities– even if they had claimed political asylum, as long as the individual were able to explain the reason behind any claim was based on economic or other [ie. non-political] grounds. The [Deputy Head of Mission] added that the embassy was aware of Libyan asylum seekers who were at large in Libya.” A second but more specific enquiry had also been made of the Ambassador in Tripoli. The person to whom the Ambassador had spoken was described as a “very senior member” of the Libyan Government, but it was said that it would be contrary to the public interest and diplomatic relations to identify that person in the relevant Immigration Appeal Tribunal (“IAT”) proceedings. The discussion had taken place in Tripoli. The reason for the Ambassador’s confidence in that Libyan official was that the Ambassador, a highly experienced diplomat, had had numerous dealings with him and trusted his judgment. Both of the individuals whose circumstances were outlined to this official had served prison sentences and had been recommended for deportation. The list of assurances which had been sought by the Ambassador included assurances that no-one should be detained unless there was due cause, or harassed or subjected to ill-treatment by the authorities or ill-treated in detention. If detained, they should have a hearing which would be fair and public, before independent and impartial judiciary in a civilian court. Arrangements would be made for access by the British Government and independent medical personnel during any term of imprisonment. Prompted by a sharp increase in Libyan nationals seeking asylum in Sweden, the Swedish Migration Board conducted a fact-finding trip to Libya between 31 May and 11 June 2002. Its findings were contained in its report dated 10 July 2002. As to the Libyan intelligence services, the report noted: “To ensure both the country’s and Gaddafi’s security, Libya has a highly active intelligence service that operates both in and outside the country. Libya’s intelligence service comprises several individually independent agencies, which also monitor each other. It is claimed that many Libyans constantly feel that they may be under surveillance, which causes a certain amount of fear and caution. The intelligence services’ procedures are not known, but probably take a wide variety of forms, e.g. physical surveillance, compulsory reporting for the various officials, monitoring through communication technology, mass media monitoring etc. It is well known that civil servants are constantly shifted within the administrations and executive departments where they work, to prevent strong, opposing alliances from forming that could threaten the regime. According to experts, this reshuffling of staff strongly contributes to bureaucracy and administrative inefficiency. Evidence strongly suggests a recent restructuring of the intelligence services’ methods. They now seem to be less generalised, instead focusing more directly on clearly defined opposition groups and individuals. This change may be a result of the regime wishing to project a more open and less repressive image, or possibly feeling less under threat at present.” As to controls on those arriving in Libya: “Fairly strict checks are also performed on individual travellers arriving in Libya. The control routines do not appear to be related to the duration and purpose of the visit abroad (at least not at present). We were told that a blacklist is kept. Although it is difficult for outsiders to judge whether this is true, the possibility cannot be ruled out.” As to the deportation of Libyans and their return: “The Libyan authorities can issue documents to facilitate onward travel or return to Libya. For instance, it is known that Libyan authorities on Malta provide Libyans with at least provisional travel documents to facilitate their journey. It is not known whether the Libyan authorities have special criteria for travel documents in order for Libyans to be allowed to enter or return to their native country. It is less likely that the possibility of deportation depends on the possession of certain documents. If a Libyan returns without any documents whatsoever, it is natural that the Libyan authorities should want to question him to find out the reason for this, and especially to ascertain whether he is actually a Libyan citizen. ... When return or deportation is necessary in a particular case, the Libyan should preferably be given the opportunity to contact the Libyan authorities to gain the necessary documents for re-entry to Libya. Failing this, deportation without documents should also be an option. There is strong evidence that almost all Libyans have passports and other documents, and voluntarily show them ‘in a tight position’ (this has been noted both by the Swedish Migration Board and in certain other countries in several cases where deportation was necessary). In the case of deportation, escorting deportees all the way to Libyan territory should be avoided as far as possible, and the Libyan should thus normally make the final part of the journey alone.” In its conclusions, the report noted: “There has been a noticeable liberalisation and softening of Libyan society in the last three to four years, and this trend is still in progress. Possible contributing factors include Libya’s strong desire to resolve the Lockerbie issue and the related sanction policies, and the events of September 11 in the United States. It has become significantly easier for Libyans to travel abroad. It is now much easier to obtain passports, and exit permits are no longer required. Many EU countries appear to have very generous visa policies with regard to Libyans. The Libyan authorities’ attitude and procedures do not appear to be linked to the duration or purpose of the stay abroad. The control procedures on entry/ exit for individual travellers remain strict. An application for asylum abroad will not, in itself, put a Libyan at risk on returning to Libya. Libya has a sophisticated and active intelligence service, both inside and outside the country. The government is vigilant towards opposition against the regime, and particularly towards Muslim fundamentalism. The intelligence services are increasingly favouring an individual rather than a general approach to political security issues. Political opposition and Islamic fundamentalism appear not to exist in Libya, or are at least marginalised. There are several minor opposition groups outside Libya, particularly in the UK and Egypt. However, this opposition is divided, and does not currently appear to pose a threat to the regime. ...” As to the forced repatriation of Libyans and their treatment on return, the report stated as follows: “At least 31 Libyan nationals - men, women and children - who had been detained in Saudi Arabia without charge or trial for more than two years following the November 1995 bombing of the Saudi Arabian National Guard training centre in Riyadh were forcibly returned to Libya in April or May (see Saudi Arabia entry). They were arrested following their arrival in Libya and their whereabouts at the end of the year were not known. ... A Libyan family ... were forcibly returned to Libya by Saudi Arabia in May or June allegedly because of ... opposition activities ... . The family had been granted refugee status in the UK in November 1997 and travelled to Saudi Arabia in January for the pilgrimage. [Some members] were released in Libya but [one family member] continued to be held, reportedly without charge or trial, at the end of the year.” As to the forced return of Libyan nationals to Libya, the report noted: “Forcible return of refugees Following the suspension of sanctions against Libya in April 1999, refugees and asylum-seekers were at increasing risk of being forcibly returned to Libya. Some of those forcibly returned were detained and there were reports that some had been the victims of serious human rights violations, including torture. In February, eight Libyan nationals suspected of being Islamic sympathisers were forcibly returned to Libya by the Jordanian authorities. In July, four Libyans suspected of being Islamic sympathisers were forcibly returned from Pakistan. [Two of their] applications for asylum were still under consideration when they were deported, while the other two men were reportedly residing and working legally in Pakistan. Their whereabouts following their return to Libya were unknown.” There was no specific mention of forced returns of Libyan nationals or of the treatment on return of failed asylum seekers. In response to the present applicant’s solicitor’s query, Amnesty International stated: “Thank you for your query about Amnesty International’s current position on the return of failed asylum seekers to Libya. Amnesty International continues to be extremely concerned about the fate of rejected asylum seekers who have been returned to Libya following the establishment of air links. Amnesty International has followed up cases of forcible return to Libya since the mid-90s. In all cases followed by Amnesty International we either learned that the returned asylum seeker had been detained upon return and remains in detention or we were not able to receive any information. In several cases Amnesty International has received confirmed information that the forcibly returned persons were subjected to serious human rights violations including torture. In March 2000, Amnesty International expressed its concern about the decision by the Jordanian authorities to return eight Libyan nationals to Libya. The people concerned had been detained in Jordan on suspicion of being sympathisers of Islamist groups. In April 2000 it was widely reported that three of the men had been killed after their return. Amnesty I requested information from the Libyan authorities concerning the alleged killings and detention, but received no response. In the case of the asylum seeker Mustfa Khalifa Abdulrazzaq, who was rejected in the UK and forcibly returned in April 2000, Amnesty International has obtained information that he was detained following his return to Libya. Amnesty International has expressed concern about his safety in communications to [UNHCR] (in Geneva) and to the British authorities – and has requested to be informed about any findings concerning his whereabouts. We have, to date, received no such information. It continues to be true that follow up of the situation of forcibly returned persons in Libya is very difficult. There are no independent human rights organisations existent in Libya, who could monitor cases of returnees. A climate of fear in Libya continues to prevent victims of human rights violations or their relatives from communicating information to the outside world, as they would be at risk of retaliation by the authorities. In 2002 approximately 65 political prisoners, including five prisoners of conscience detained since 1973, were released. What can be considered as a positive step needs to be considered with caution: their release was long overdue, and the general situation remains dramatic. According to Amnesty International’s information, hundreds of other political prisoners reportedly remain in prison. In recent years, families of dozens of prisoners were informed by the authorities that their relatives died in prison, but were not told the date or cause of death. Several cases of ‘disappearance’ have still not been clarified. In 2002, two possible prisoners of conscience were sentenced to death. Reports of torture continued to be received: no investigations are known to have been carried out. Legislation remains in force criminalising non-violent political activities and providing for unfair trials. Amnesty International is concern that information about the history of cases of asylum seekers and overstayers in the UK is readily available to the Libyan authorities. In the eyes of the Libyan Government, making a refugee claim is an act of opposition, and any government opponent is at risk of being brutally punished.” The most recent State Department Report on human rights’ practices in Libya was published on 25 February 2004. The report observes, in the introductory paragraphs, that: “The country maintained an extensive security apparatus, consisting of several elite military units, including Qadhafi’s personal bodyguards, local Revolutionary Committees, People’s Committees, and ‘Purification’ Committees. The result was a multilayered, pervasive surveillance system that monitored and controlled the activities of individuals. The various security forces committed numerous serious human rights abuses. ... The Government’s human rights record remained poor, and it continued to commit numerous, serious abuses. Citizens did not have the right to change their government. Qadhafi used summary judicial proceedings to suppress domestic opposition. Security forces tortured prisoners during interrogations and as punishment. Prison conditions were poor. Security forces arbitrarily arrested and detained persons, and many prisoners were held incommunicado. Many political detainees were held for years without charge or trial. The Government controlled the judiciary, and citizens did not have the right to a fair public trial or to be represented by legal counsel. The Government infringed on citizens’ privacy rights, and citizens did not have the right to be secure in their homes or persons, or to own private property. The Government restricted freedom of speech, press, assembly, association, and religion. The Government imposed some limits on freedom of movement. The Government prohibited the establishment of independent human rights organizations and of free trade unions. ...” Under the heading “Exile” the report stated: “The Government did not impose forced exile as a form of punishment, and it continued to encourage citizen dissidents abroad to return, promising to ensure their safety. It was unclear whether such promises were honored. During the year, the Government continued to repatriate family members of suspected citizens who were members of the terrorist group al-Qa’ida. Students studying abroad have been interrogated upon their return”. The case concerned the proposed deportation to Libya of a Libyan national and alleged supporter of the Islamic movement Al-Jama’a al’Islamiya Al’Libya from Eastern Libya following the refusal of F.F.Z.’s asylum application by the Danish authorities. The Committee concluded: “The State Party has pointed out that none of the three arrests to which the complainant was subjected, were related to his political activities. It also submits that the complainant would not have been able to have his passport stamped on his departure from Libya if he had been exposed to persecution at that time and that the Amnesty International medical report provides no objective indication that he was subjected to gross outrages. Furthermore, the events that motivated the author’s departure date far back in time and his family has not been sought or harassed on account of the complainant since his brother’s release in 1996. The Committee considers, on the basis of the information provided, that the political activities that the complainant claims to have carried out, are not of such a nature as to conclude that he runs a real risk of being tortured upon his return. Indeed, he does not seem to be particularly exposed to persecution by the Libyan authorities. The Danish Ministry of Foreign Affairs has stated that Libyan citizens who return to Libya more than a year after their legal or illegal departure are frequently detained and questioned, but then released after some hours. On the basis of the above considerations, the Committee considers that the complainant has not proved his claim that there are substantial grounds to support his claim that he would risk torture if returned to Libya.” The applicant in that case was a Libyan national convicted of a serious sexual offence in the United Kingdom. He was granted asylum in 1994 but was subsequently convicted of another serious sexual offence, following which he was served with a deportation order. The Secretary of State had formed the view that the conditions prevailing at the time in Libya allowed his removal. The IAT rejected A’s appeal, finding that although asylum had been granted because it was feared that the Libyan authorities would impute opposition to the regime from the appellant’s failure to return earlier: “However, there is no reason to suppose now that that is how the Libyan authorities would see him. He would return as someone deported for having committed a serious crime, which would account for the fact of his return. He would have a ready and truthful account of why he had stayed in the United Kingdom – he was married on two occasions to British citizens, the first marriage being in 1983 before the call to return; he had had two children; he had also served a substantial period in custody. This would put him in a better position vis-à-vis the Libyan authorities than those who simply returned as failed asylum seekers because it would provide truthful reasons for his absence and his return.” Moreover, it was correct to give “very substantial weight” to the assurances made in the above-mentioned FCO letter, given the high level of the Ambassador’s contact and the Ambassador’s judgement and experience in dealing with him. The IAT’s decision continued: “We also concluded that the background evidence permitted and supported the conclusion that, in this particular instance, [A] could be safely returned. The FCO Tripoli letter of 18 June 2000 referred to people seeking visas who had not returned immediately in 1984, most of whom did not appear to have had long term problems; although this was his experience, there had been no monitoring and no numbers were provided. The US State Department refers to students generally being interrogated on return, but takes it no further than that and recognises the limitations on its sources. Returning failed asylum seekers became in effect refugees because they were interrogated, and imprisoned for showing disloyalty as shown by the May [2001] CIPU Bulletin and [another domestic case]. That general proposition is not removed by the two Bulletins of 2002. There is some but unspecific evidence to the contrary from the Swedish mission. But there is another factor of importance. As we have said, [A] would not return as a failed, or indeed, successful asylum seeker; he would return with a truthful story as to his marriages and imprisonment. Further, there is more specific guidance as to how failed asylum seekers or deportees might be treated in the letter of 21 November 2002 from the FCO ...: a claim of asylum would not lead to problems if it could be explained as being based for economic or other non-political reasons. If the Libyans discovered or assumed that such a claim had been made, in the absence of actions against the Libyan Government, detention for any length of time was unlikely. Asylum seekers at large in Libya were known to the British Embassy. All this has to be set in the context of background evidence showing the continued detention of prisoners of conscience and the killing of some returned Islamist asylum seekers. But the general picture is of a softening of political and social conditions, a notable drop in the number of political prisoners and an increased focus by the security agencies on specific opposition groups. [A] is not a member of any Islamist group, which groups appear to be particularly targeted, nor is he a member of any opposition group. This is not to say that there is no risk; it is rather that the specific assessment made for this Appellant is supported and not contradicted by the changing tone of the more recent background evidence.” It is not known if A requested leave to apply for judicial review of this decision.

train

001-57958

ENG

AUT

CHAMBER

CASE OF GRADINGER v. AUSTRIA

Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Preliminary objection rejected (reservation);Preliminary objection rejected (ratione temporis);Violation of P7-4;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland

6. Mr Gradinger is an Austrian citizen who lives at St Pölten (Lower Austria). 7. On 1 January 1987 at about 4 a.m., while driving his car, he caused an accident which led to the death of a cyclist. At the hospital where he was taken for treatment a specimen of his blood was taken. This showed that he then had a blood alcohol level of 0.8 grams per litre. 8. On 15 May 1987 the St Pölten Regional Court (Landesgericht) convicted him of causing death by negligence (fahrlässige Tötung) and sentenced him to 200 day-fines of 160 Austrian schillings (ATS) with 100 days' imprisonment in default of payment (Article 80 of the Criminal Code (Strafgesetzbuch) - see paragraph 13 below). According to the applicant, an expert, Dr Psick, had stated at his trial that in view of the shortness of the interval between the last drink the applicant had had and the collision, he could not have absorbed an amount of alcohol exceeding the prescribed limit. In the judgment, as set out in the court record (Protokolls- und Urteilsvermerk), it was held that the applicant had indeed been drinking before the accident but not to such an extent as to be caught by Article 81 para. 2 of the Criminal Code, which prescribed a heavier penalty for causing death by negligence while under the influence of drink (see paragraph 14 below). 9. On 16 July 1987 the St Pölten district authority (Bezirkshauptmannschaft) issued a "sentence order" (Straferkenntnis) imposing on Mr Gradinger a fine of ATS 12,000, with two weeks' imprisonment in default, for driving under the influence of drink. It made this order pursuant to sections 5(1) and 99(1)(a) of the Road Traffic Act 1960 (Straßenverkehrsordnung - see paragraphs 15 and 16 below) and on the basis of a different medical report, of 5 February 1987, according to which, in view of the time that had elapsed between the collision and the taking of the blood specimen, Mr Gradinger's blood alcohol level when the accident had occurred must have been at least 0.95 grams per litre. 10. The applicant appealed to the Lower Austria regional government (Amt der Landesregierung), which dismissed his appeal on 27 July 1988 on the basis of a further expert opinion, of 16 June 1988, to the effect that the blood alcohol level had been 0.9 grams per litre. 11. On 11 October 1988 the Constitutional Court (Verfassungsgerichtshof) declined to accept for adjudication an appeal by the applicant, on the ground that it did not have sufficient prospects of success. 12. A further appeal, to the Administrative Court, was dismissed as ill-founded on 29 March 1989. It was held that the regional authorities had not in any way misconstrued the law in finding that at the material time Mr Gradinger had been under the influence of drink for the purposes of section 5(1) of the Road Traffic Act. That finding had been based on an expert opinion of 16 June 1988 in which it had been assumed that all the alcohol consumed by the applicant had passed into his bloodstream by the time of the accident, a point which Mr Gradinger had not contested. He was therefore wrong in asserting that the expert report had not analysed the effects of the last drink he had had before the accident. Furthermore, the authorities had acted in accordance with the law in appointing an official expert (Amtssachverständiger) rather than a sworn court expert (gerichtlich beeideter Sachverständiger) to report on Mr Gradinger's blood alcohol level. In the case under consideration there had been no special factor to justify their doing otherwise. Nor, contrary to the applicant's assertions, had they appointed as expert the person already called upon at first instance by the district authority (see paragraph 9 above). As for Article 14 para. 7 of the International Covenant on Civil and Political Rights, embodying the "non bis in idem" principle, this was not directly applicable in the Austrian legal system. Accordingly, the authorities had not misconstrued the law by punishing the applicant after a criminal court had acquitted him (see paragraph 8 above). 13. By Article 80 of the Criminal Code (Strafgesetzbuch): "It shall be an offence, punishable with up to one year's imprisonment, for any person to cause the death of another by negligence." 14. Article 81 para. 2 of the Criminal Code provides: "It shall be an offence, punishable with up to three years' imprisonment, for any person to cause the death of another by negligence 1. ... 2. after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state." Under an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be "intoxicated" for the purposes of Article 81 para. 2 of the Criminal Code (Foregger/Serini, Kurzkommentar zum Strafgesetzbuch, 4th edition, 1988, p. 217). 15. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests. 16. Since 1 May 1986 section 99(1)(a) of the Act has provided: "It shall be an administrative offence (Verwaltungsübertretung), punishable with a fine of not less than 8,000 and not more than 50,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person: (a) to drive ... a vehicle when under the influence of drink ..." 17. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 28 below), section 7 of the Traffic Police Act 1947 (Straßenpolizeigesetz) provided: "Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic." 18. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides: "Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law." 19. By Article 144 para. 1 of the Federal Constitution the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law. Article 144 para. 2 provides: "Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133." 20. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. 21. Section 35(1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides: "Applications from whose content it is apparent that the contravention of the law alleged by the applicant has not occurred shall be dismissed, at a private sitting, without further formality." 22. Section 39(1) provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect. Section 39(2) reads as follows: "Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where 1. the proceedings must be stayed (section 33) or the application dismissed (section 34); 2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2)); 3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3)); 4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court; 5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed; 6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further." Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982. 23. Section 41(1) of the Administrative Court Act provides: "In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42 (2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary." 24. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision. By section 42(2), "The Administrative Court shall quash the impugned decision if it is unlawful 1. by reason of its content, [or] 2. because the respondent authority lacked jurisdiction, [or] 3. on account of a breach of procedural rules, in that (a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or (b) the facts require further investigation on an important point, or (c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority." 25. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)). 26. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held: "From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation." 27. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen). 28. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows: "The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution." 29. The instrument of ratification of Protocol No. 7 (P7) deposited by the Austrian Government on 14 May 1986 contains, inter alia, the following declaration: "Articles 3 and 4 (P7-3, P7-4) exclusively relate to criminal proceedings in the sense of the Austrian Code of Criminal Procedure."

train

001-109219

ENG

FRA

CHAMBER

CASE OF G. v. FRANCE

Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence;Article 6-3-c - Defence in person);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

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

5. The applicant was born in 1974. He is at present being held at the Edouard Toulouse Hospital in Marseilles. 6. The applicant suffers from behavioural disorders and was alternately kept in prison and hospital psychiatric wards between 1996 and 2004. He suffers from chronic schizophrenic psychosis, with hallucinations, delusions and aggressive and addictive behaviour. 7. On 21 May 2005 the applicant was sent to Toulon-La Farlède prison after causing damage in Chalucet psychiatric hospital, where he had asked to be admitted. As a result, on 30 June 2005 he was sentenced to twelve months' imprisonment, of which ten months were suspended. On his arrival at the prison he allegedly set fire to his mattress. He was placed under psychiatric observation, then made to share a cell with another detainee, who was known to have psychiatric problems. 8. On 16 August 2005 a fire broke out in the applicant's cell. Both detainees suffered serious injuries. With burns on 65% of his body, the applicant's cell mate died from his injuries on 6 December the same year. 9. At a hearing on 9 September 2005 the applicant stated that he “could not remember exactly how his mattress caught fire”, and that he “suffered from schizophrenia, heard voices and saw strange things”, but that “everything was better at the moment”; he added “I feel freer since the fire in my cell... everything has become clearer in my head. I can say that everything is calm now”. 10. On 17 October 2005 the applicant was placed under judicial investigation for arson resulting in total unfitness for work for more than eight days, and placed in detention pending trial. He denied the charge, claiming that he had no recollection of the events leading up to the fire because he had been on medication at the time. On 7 December 2005 the public prosecutor's office made an application for the additional charge of arson aggravated by constructive manslaughter to be preferred against the applicant. 11. On 30 January 2006, in execution of an order of the investigating judge of 28 December 2005, Dr F., an expert at the Aix-en-Provence Court of Appeal, carried out a psychological examination of the applicant in the psychiatric unit at Les Baumettes prison in Marseilles, where he had been held since December 2005. The relevant passages from the report submitted on 1 March 2006 read as follows: “The onset of the disorder at the age of about 22 ... heralded in a process of gradual marginalisation for this young adult during which he alternated periods of hospital treatment, voluntary or otherwise, incarceration, training courses and homelessness. He has lived in this way for the last ten years, caught up in his illness, with no place in society ... From the legal standpoint, his convictions bear witness to bouts of violence and excessive drinking, which he says had stopped prior to his incarceration ... During the examination, Mr G. came across as a man with a schizoid personality, an introvert with no interest in the outside world, save for a few recurring scenes in which he sees himself as a victim. Be that as it may, and whatever part he may have played in the case, Mr G. needs regular, long-term psychiatric support. While he is in prison, therefore, it is preferable that he be held in a medical unit, as he was when we met him.” 12. Two subsequent psychiatric examinations carried out respectively on 21 February by Professor A. and on 6 June 2006 by Dr G. confirmed the existence of chronic hebephrenic schizophrenia manifested in behavioural disorders and aggressive and addictive conduct. The first expert concluded that the offences in issue were related to the psychiatric disorders and that the applicant's judgment had been disturbed at the time, and that “the subject appears difficult to cure or rehabilitate, and requires neuroleptic treatment in strong doses combined with regular supervision or even placement in a UMD” (a difficult patients' unit: UMDs are psychiatric hospital wards specialised in the treatment of dangerous mental disorders, including patients committed under Article D. 398 of the Code of Criminal Procedure, or “CCrP”, see paragraph 35 below). The second expert found that it was not possible to say for sure that the applicant's behaviour was the result of his mental illness, and that there was no way of telling whether, at the material time, he had been suffering from a psychological or neuropsychological disorder which destroyed, affected, or diminished his discernment or his ability to control his actions within the meaning of Article 122-1 of the Criminal Code, and that he would require specialised care even after his release. 13. On 14 June 2006 the applicant's lawyer wrote to the investigating judge requesting his client's release. He argued that the applicant was known to suffer from psychiatric disorders, even prior to his incarceration, and could not be held criminally responsible. He went on to say “it is therefore difficult to see what purpose his incarceration might serve in that regard, especially as the offence with which he is charged occurred in prison. It appears, therefore, that prison is not the right place for my client. His place is clearly in a hospital environment. I believe it is the duty of the prosecuting authorities and possibly the prefecture to assume their responsibilities in this regard in the event of his release ...”. 14. By an order of 27 June 2006, the request for the applicant's release was rejected because according to Dr G.'s report a criminal penalty would not be inappropriate in the applicant's case, and pre-trial detention was the only means of preventing pressure being put on the witnesses, ensuring that the accused remained at the disposal of the judicial authorities and putting an end to the disturbance to public order. 15. On 7 August 2006 Dr G. examined the applicant again, “to determine whether his alleged losses of memory were real or invented and, if they were real, to determine the possible cause or causes (regard being had to the treatment he was following, for example). He submitted his report on 25 August 2006. In it he concluded that it was not possible to say for certain whether the alleged memory losses were real or invented, but they were definitely not caused by the mental disorder he had long been suffering from; they might, on the other hand, be related to (sedative) side effects of the psychotropic drugs used to treat him. 16. The applicant's lawyer asked for a second opinion, but his request was rejected by an order of 17 October 2006. 17. On 19 February 2007 an order was issued for the applicant's indictment and committal for trial before the Assize Court. On 1 March 2007 he appealed. His lawyer argued that at the time of the events that had led to his incarceration the applicant had been confined to a psychiatric institution; on arriving there he had tried to commit suicide by fire, and yet the prison authorities had taken no steps to ensure his safety and that of his fellow detainees. He maintained that his client was not criminally responsible and requested his release, whereupon the prosecuting authorities would be able to request his administrative detention. On 19 March 2007 the principal public prosecutor at the Aix-en-Provence Court of Appeal requested confirmation of the applicant's indictment and committal for trial before the Assize Court. 18. The applicant was placed in the regional psychiatric unit (RPU) at Les Baumettes prison from 30 April to 12 June 2007, from 15 June to 10 August 2007, from 31 August to 15 November 2007, and from 26 November 2007 to 14 March 2008. From 10 au 31 August 2007, when going through a period of anxiety scarcely compatible with detention in the RPU, the applicant was once again placed by the authorities in a specialised hospital under Article D. 398 of the CCrP. 19. In the interim, on 12 October 2007 an expert report by Dr G. found that the applicant had indeed been suffering from psychological or neuropsychological disorders at the material time, although it was not certain whether this had “destroyed, affected, or diminished his discernment or his ability to control his actions within the meaning of Article 122-1 of the Criminal Code”. 20. By a judgment of 17 December 2007 the Aix-en-Provence Court of Appeal gave a prison warder a two-month' suspended prison sentence for having inflicted violence on the applicant that resulted in one day's total unfitness for work. The warder had slapped him for refusing to be placed in a cell in which a detainee had started a fire and which he would have to share with a detainee with suicidal tendencies. 21. By a judgment of 22 January 2008 the investigation chamber of the Aix-en-Provence Court of Appeal upheld the order for the applicant's indictment and committal for trial before the Assize Court. 22. The applicant was compulsorily admitted to hospital from 14 to 31 March 2008, from 8 to 28 July 2008 and from 27 August to 28 October 2008. He was placed in the regional psychiatric unit at Marseilles-Baumettes prison from 31 March to 8 July 2008, from 28 July to 27 August 2008 and from 28 October to 31 December 2008. ... 23. By a judgment of 13 November 2008 the Var Assize Court sentenced the applicant to ten years' imprisonment and declared him civilly liable for the prejudice suffered by the civil parties. The applicant and the prosecution appealed against that judgment, on 21 and 24 November 2008 respectively. After the sentence was pronounced the applicant was taken back to the RPU at Les Baumettes prison. 24. On 31 December 2008 the prefect ordered the applicant's compulsory hospitalisation in Edouard Toulouse Hospital. On 28 January 2009 his detention there was extended for three months, until 30 April 2009, for the raisons stated in a medical certificate of 27 January 2009 mentioning that the applicant “has displayed increased anxiety in the last few days, and his old delusions (of grandeur and of being a father) have resurfaced”. It appears from the file that the applicant was again placed in the prison psychiatric unit from 17 to 27 March 2009 and from 1 April to 15 May 2009. 25. On 25 March 2009, while in the prison hospital, the applicant applied to be released, relying on Article 3 of the Convention. He argued that his constant moves back and forth between prison and hospital amounted to inhuman and degrading treatment. He explained that when his condition deteriorated to the point where it was no longer compatible with detention, he was placed in hospital, and when he recovered his “stability” he was sent back to prison until his condition deteriorated again. He considered that his return to prison constituted a form of torture. Lastly, he argued that the decision to put him back in normal detention at Les Baumettes was absurd considering his extreme vulnerability vis-à-vis the other detainees and the danger to his safety. By a judgment of 14 May 2009 the investigation chamber of the Aix-en-Provence Court of Appeal rejected his request: “There is no medical evidence that G.'s state of health is currently incompatible with detention, considering that his compulsory hospitalisation in an approved establishment on several occasions since he was placed in detention, followed by his return to prison, were strictly based on his health needs, in conformity with the provisions of Article D 398 of the Code of Criminal Procedure, and did therefore not amount to inhuman or degrading treatment, and certainly not to torture as alleged; It should also be noted that the charges against G. concern criminal acts that caused an exceptional, persistent disturbance to public order that his release would be likely to rekindle, namely the destruction by fire of a prison cell resulting in the death of a fellow prisoner; Regard being had to the length of the sentence incurred, the guarantees that the accused will appear in court are uncertain in so far as he has no fixed abode and no job and is a repeat offender, having already been convicted of arson; In addition, his release would probably disrupt the normal course of the proceedings and the establishment of the truth, bearing in mind the oral nature of the proceedings, and the execution of the sentence in the event of a conviction; Detention is therefore necessary before the hearing as a precaution, the obligations under judicial supervision, however strict they may be, being insufficient with regard to the aims pursued.” 26. From 15 to 29 May 2009 the applicant was again committed to hospital under Article D. 398 of the CCrP. ... 27. By a judgment of 22 September 2009 the Bouches-du-Rhône Assize Court ruled, on appeal, that the applicant lacked criminal responsibility: “It has been found by a majority of at least ten votes that [the applicant] ... intentionally destroyed a prison cell ... and in so doing caused the death of a fellow prisoner; It has further been found by a majority of votes that [the applicant's] criminal responsibility at the time was diminished within the meaning of Article L 122-1 of the Criminal Code.” The Assize Court ordered the applicant's compulsory admission to hospital under Article 706-135 of the CCrP (see paragraph 34 below), as he “suffer[ed] from a psychiatric disorder that require[d] treatment and [could] jeopardise the safety of others, in particular on account of the unpredictability of his actions linked to his serious mental illness”. 28. Article 122-1 of the Criminal Code reads as follows: “A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions. A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime.” 29. The relevant provisions of the Code of Criminal Procedure subsequent to the Law of 25 February 2008 on preventive detention and diminished responsibility because of mental illness read as follows: ... “Without prejudice to the application of Articles L. 3213-1 and L. 3213-7 of the Public Health Code, when an investigating chamber or a trial court pronounces a judgment or a declaration of diminished responsibility because of mental illness, it may, by a reasoned decision, order the person's compulsory admission to an establishment mentioned in Article L. 3222-1 of that Code if it has been established, by an expert psychiatric report included in the file of the proceedings, that the person's mental problems require treatment and jeopardise the safety of others or present a serious threat to public order. The representative of the State in the “Département”, or the Police Commissioner in Paris, shall immediately be informed of such decision. The hospitalisation regime in such cases shall be that for hospitalisations ordered pursuant to Article L. 3213-1 of the same Code, the second paragraph of which shall be applicable. Article L. 3213-8 of the same Code shall also be applicable.” ... “Detainees suffering from mental illnesses listed in Article L. 342 of the Public Health Code shall not be held in a prison establishment. Regard being had to a detailed medical certificate and in keeping with the legislation in force, the prefectural authority shall secure their compulsory admission, as soon as possible, to a certified health care establishment under Article L. 331 of the Public Health Code. The rule laid down in the second paragraph of Article D. 394 concerning police surveillance during their hospitalisation shall not apply to them.” 30. In its Opinion no. 94 on “Health and Medicine in Prison” (2006) the National Ethics Advisory Committee on Life and Health Sciences stated: “... Prisons are increasingly faced with mental illnesses. Prisons are increasingly being used to confine psychiatric patients: the percentage of psychiatric pathologies is 20 times higher in prison than in the general population. In 2004 an epidemiological survey commissioned by the Health Department and the Prison Service revealed that 14% of detainees (over 8,000) suffered from psychosis and half of those (over 4,000) suffered from schizophrenia. The tendency is away from psychiatric hospitals towards prisons. The incarceration of people suffering from serious mental disorders can only lead to a loss of bearings and of meaning: the loss of the very meaning of punishment and imprisonment, and in particular of the notion of criminal responsibility; the loss of the very meaning of treatment and the role of the carer; and the same loss of the meaning of the role of the prison warder. A source of suffering for the sick person (“prison in itself has an aggravating effect on mental disorders”, according to a report of the IGAS and the IGSJ in 2001), mental illnesses are also a source of suffering and confusion for the other prisoners, faced on a daily basis with insufferable, contagious madness. ... The incarceration of people suffering from serious mental disorders: “madness” in prison. This situation, mentioned above, is one of the major ethical problems concerning, on the one hand, the increasing confusion between the respective meanings of punishment and treatment, and on the other, the right to the protection of health and access to treatment. These serious ethical problems of health protection and access to treatment concern both the right of the mentally ill to the best possible medical and psychiatric treatment of their disorders in conditions respectful of their dignity, and the right of their fellow prisoners to the protection of their mental health in the face of permanent exposure to “madness”. ... Recommendations Look for solutions outside prisons so that the very elderly, people with severe disabilities and those suffering from serious psychiatric disorders are taken out of the prison system for ever.” ... 31. In a report of 5 May 2010 on “handling offenders suffering from mental disorders” the French Senate stressed the shortcomings of medical treatment at the RPUs and reiterated the warning of the National Ethics Advisory Committee concerning health and medicine in prison (cited in paragraph 36 above) that incarceration can aggravate the mental condition of certain detainees. The relevant parts of the report read as follows: “(a) Shortcomings in medical treatment While there has been considerable progress in medical treatment in the RPUs, there are certain limits that are difficult to overcome: - there are still not enough medical staff in spite of the significant progress made in recent years ... - treatment at the RPUs is mainly day care, generally because of the lack of medical staff and the fact that detainees cannot be admitted without their consent. Furthermore, as the above-mentioned study shows, “conditions in the RPUs are not really comparable to conditions in hospitals; the rooms are no different from the cells at seventeen RPUs. This is often a problem in terms of the treatment available, particularly the existence of first-level intensive-care facilities, the risks linked to metal beds when patients suffer attacks, or the presence of alarm systems. The most objectionable aspect of the treatment of detainees with mental disorders, however, is no doubt the way they are treated in psychiatric hospitals when they need hospital treatment. They are generally admitted without their consent, and often – for security reasons – placed in solitary confinement cells, where they may sometimes be restrained, without any real medical justification. The duration of the treatment in these conditions is particularly brief, often no more than two or three days, which is scarcely enough to secure the patient's stabilisation. ... b) The deterioration of certain pathologies and the risk of suicide. As stated in 2006 in the opinion of the National Ethics Advisory Committee concerning health and medicine in prison, incarceration can aggravate the mental condition of certain detainees as a result of the combined effects of the aforementioned shortcomings in the treatment dispensed and the living conditions in prisons (overcrowding, difficulty sleeping ...). This state of affairs puts the people concerned in danger, as they may harm themselves (self-mutilation, suicide) or the prison staff or other detainees...” 32. In its report on the organisation of psychiatric treatment (“the effects of the 2005-2010 psychiatry and mental health plan”) published in December 2011, in a chapter entitled “The health-justice programme: unfinished progress”, the Audit Court, stated that the premises of some RPUs were still antiquated, and mentioned the disgraceful state of the RPU at Les Baumettes prison: ... 33. The report by the OIP (International Observatory of Prisons) on “Conditions of detention in France” (Ed. La Découverte, 2012) stated in a chapter on “Psychiatry” that over 20% of detainees suffered from some form of psychosis, and 7.3% of detainees suffered from schizophrenia. It stressed the confusion between punishment and treatment, which is all the more problematic if one considers, “like a Senate information report in 2010, that prison is no place for treatment”. As the Inspector General of prisons observed, “that we actually contemplate treating mental illnesses in prison is in itself disturbing” ... Hence the finding – difficult for the authorities to accept – of the Senate's rapporteur on the draft Prisons Act in 2009 that “for many people suffering from mental disorders prison makes no sense – they waste away in the prison environment, complicating the lives of the other prisoners and the prison staff without receiving proper care”. The report shows the limits of treatment in prison (lack of staff, conditions in the RPUs). Concerning the RPU in Marseilles, it notes that “the general state of the RPU premises is run-down, dilapidated, deplorable (mouldy)”. It quotes a psychiatrist as explaining that “RPUs are not strictly speaking places where people should be hospitalised for treatment; they are places where people are taken care of, generally on a part-time basis, in a prison, subject to the imperatives of prison life ... They are not equipped for intensive care ... They are insanitary places where it is difficult to imagine that certain cells are supposed to offer appeasement, protection and hope” when in fact they are “quite frightening in terms of their appearance and the conditions of hygiene and comfort they offer.” The report also addresses the question of compulsory hospitalisation: “In fact, the time prisoners spend in compulsory treatment does not always allow the requisite treatment to be dispensed. Often reduced to a matter of days, at best it only serves to treat a phase of acute decompensation, but never properly to treat the pathology”. Lastly, the creation of specially equipped hospital units (Unités hospitalières spécialement aménagées – UHSAs) is mentioned. Initially nine UHSAs were to open between 2008 and 2011. Another eight were to be created from 2011 onwards. Because of delays, however, only one unit had opened to date. ...

train

001-61846

ENG

HRV

CHAMBER

CASE OF FREIMANN v. CROATIA

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

Christos Rozakis

5. The applicant was born in 1941 and lives in Berlin, Germany. 6. On 7 August 1992 her house in Slavonski Brod, Croatia, was blown up by unknown perpetrators. 7. On 4 October 1995 she instituted civil proceedings before the Slavonski Brod Municipal Court (Općinski sud u Slavonskom Brodu) seeking damages from the Republic of Croatia for her damaged property. 8. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Slavonski Brod Municipal Court stayed the proceedings on 28 September 2000. 9. Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija), the proceedings resumed on 4 December 2003. 10. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows: “Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 11. The relevant parts of the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette of the Republic of Croatia no. 7/1996, hereinafter “the 1996 Act”) read as follows: “Section 180 of the Civil Obligations Act ... shall be repealed.” “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed. The proceedings referred to in sub-section 1 of this section shall be continued after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.” 12. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides: “Proceedings shall be stayed: ... (6) where another statute so prescribes.” 13. The Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003, hereinafter “the 2003 Act”) provides, inter alia, that the Republic of Croatia is to provide compensation in relation to damage resulting from bodily injury, impairment of health or a death. All compensation for damage to property is to be sought under the Reconstruction Act. 14. The relevant parts of the Reconstruction Act (Zakon o obnovi, Official Gazette of the Republic of Croatia nos. 24/1996, 54/1996, 87/1996 and 57/2000) provide, inter alia, that the means for reconstruction are to be granted to persons whose property was destroyed in the war, under certain conditions. The request is to be submitted to the Ministry for Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo).

train

001-58238

ENG

TUR

CHAMBER

CASE OF YAŞA v. TURKEY

Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 2;Violation of Art. 2 (effective investigation);Violation of Art. 13;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

R. Pekkanen

6. Mr Eşref Yaşa, a Turkish citizen, was born in 1962 and currently lives in Diyarbakır. His uncle, Mr Haşim Yaşa, was born in 1956 and also lived in Diyarbakır. He was killed on 14 June 1993. 7. The applicant lodged an application with the Commission “on his own behalf and on behalf of his deceased uncle” (see paragraph 56 below), in which he complained that they had been victims of armed attacks because they sold the newspaper Özgür Gündem. The attacks were part of a campaign orchestrated against that and other pro-Kurdish newspapers with the connivance or even the direct participation of State agents. Some of the events that led to the application being made are disputed. 8. At the material time the applicant rented a newspaper kiosk, known as the Bulvar Buffet, in the town of Diyarbakır. In October 1992 he began to receive death threats from the police because he sold certain newspapers, in particular the pro-Kurdish paper Özgür Gündem. 9. In the early hours of 15 November 1992 the applicant’s kiosk was set on fire and destroyed. The applicant estimated the damage at 70,000,000 Turkish liras. 10. About a week before that incident, the applicant had been visited by two police officers, one of whom was Superintendent Kemal Fidan of the Diyarbakır Security Branch. The applicant did not know the other officer’s name. They had threatened to burn down his kiosk because of the newspapers he sold. 11. After the applicant’s kiosk had been burnt down, other newsagents had decided to stage a one-day protest strike and refused to sell anything. 12. At 7.15 a.m. on 15 January 1993 shots had been fired at the applicant while he was in Turistik Street in the Mardinkapı district of Diyarbakır. He had been riding his bicycle from home to the kiosk with his son Diren on the back, when he noticed two suspicious-looking men, one tall and the other of average height, aged about 20–25. Fearing their intentions were hostile, the applicant had attempted to steer his bicycle away but had been struck by a taxi. He and his son had fallen to the ground. At that moment one of the two men had started to shoot at him. In self-defence, the applicant had drawn a pistol from his waist and fired six shots back, none of which had hit the two men. The applicant, however, had been hit by eight bullets fired by the assailant. Three had grazed his back and one his right leg. One had entered his right arm and one his left wrist. One bullet had lodged between the forefinger and middle finger of his left hand and one had gone through his right buttock into his abdomen. 13. The applicant was taken by taxi to Diyarbakır Hospital. He had asked the driver to deliver his pistol to one of his relatives. The driver had given it instead to another taxi driver who knew the applicant’s kiosk. He had put the pistol in a scrap-box tin under the counter of the kiosk. 14. The operation to remove the bullets from the applicant’s body, which was performed in the intensive care unit of Diyarbakır Hospital, was held up for two hours by the police. His relatives were later subjected to insults and received death threats at the hospital. 15. The applicant spent eleven days in hospital. He still had health problems as a result of the attack. He suffered pain in his left arm and several fingers of his left hand and there was continuing discomfort from the scars. In addition, he had stomach pains caused by an infection contracted following the operation. 16. While in hospital the applicant had made a statement to the police in which he claimed that his assailants were police officers. At no stage had the public prosecutor’s office asked him to make a statement about the attack. 17. After coming out of hospital he was prosecuted for carrying an unlicensed firearm. On 24 May 1993 he was convicted and sentenced to one year’s imprisonment, later converted by the court to a fine of 1,633,333 Turkish liras, to be paid in instalments over four months. His appeal against the conviction and sentence was dismissed. 18. At about 7.30 a.m. on 14 June 1993 the applicant’s uncle, Haşim Yaşa, who had been running the applicant’s kiosk since March 1993, was shot in the head and killed by an unknown assailant while walking along Sunay Avenue in Diyarbakır. Haşim Yaşa’s seven-year old son, Aziz, was the only witness to the shooting. On the same day, the applicant was arrested, assaulted and threatened with death by the police, who told him that they had carried out the shooting and that he had been the intended target. 19. On 10 October 1993 the applicant’s younger brother, Yalçın Yaşa, aged 13, who had been looking after the kiosk following the attacks on the applicant and his uncle, was killed by an unknown assailant near his home. Another of the applicant’s brothers, Yahya Yaşa, aged 16, was seriously injured during the attack. 20. Following that attack the applicant was forced to sell his business because there was no one left in his family to manage the kiosk. 21. The applicant alleged that he and his uncle had been shot because of their involvement in the distribution of the newspaper Özgür Gündem. The incidents had been part of a campaign of persecution and attacks against people engaged in the publication and distribution of that and other pro-Kurdish newspapers. To support that claim, the applicant referred to the following incidents. 22. Publication of the Özgür Gündem had ceased in April 1994 as a result of a wave of prosecutions brought against it by the State. Since first appearing in May 1992, the newspaper had been the subject of several prosecutions, confiscation orders and temporary closure orders. While the newspaper had never been officially banned from sale, there had been periods when confiscation and closure orders had affected its publication and distribution. The Özgür Ülke, the successor to the Özgür Gündem, was forced to close in February 1995 and the Yeni Politika, which replaced it, ceased publication in August 1995. 23. The applicant has supplied lists detailing cases of attacks on, illtreatment or detention of and threats against staff and distributors of the Özgür Gündem and similar newspapers in 1992, 1993 and early 1994. He maintained that those incidents clearly established that there was a pattern of targeting persons working for the Özgür Gündem. 24. The applicant stated that at least seven journalists, including Musa Anter, working for the Özgür Gündem had been killed, while others had been injured in attacks. Numerous other journalists had been detained and, in some instances, subjected to ill-treatment. 25. There had been numerous prosecutions of the owners, editors and journalists of the Özgür Gündem on the basis, inter alia, of the provision under the Prevention of Terrorism Act prohibiting propaganda against the indivisible unity of the State. In addition, Behçet Cantürk, one of the principal financiers of the Özgür Gündem, was murdered (see paragraph 46 below). 26. The applicant stated that several newspaper kiosks were attacked for selling the Özgür Gündem. In addition, on 3 December 1994 the headquarters of the Özgür Gündem in Istanbul and its office in Ankara were bombed. One person was killed and eighteen injured. 27. There had also been numerous incidents in which persons and vehicles involved in the distribution of the Özgür Gündem had been attacked. The applicant stated that at least eleven vendors or distributors have been killed, including Yalçın Yaşa (see paragraph 19 above) and Haşim Yaşa (see paragraph 18 above). Several others had been beaten or severely injured, while many more had been threatened with violence if they did not stop selling or distributing the newspaper. 28. To support his assertions the applicant referred to various publications containing information and expressing concerns about infringements of freedom of expression in Turkey, including, “What happened to the press in 1993”, published by the Özgür Gündem, extracts from 1993 Info-Türk (E.208-7, E.209-6, E.212-8/9), the United States’ State Department Report for Turkey 1994 and “L’intimidation – rapport sur les meurtres de journalistes et les pressions sur la presse turque” by Reporters sans frontières (January 1993). 29. The Government confirmed that the applicant had been shot and his uncle killed on 15 January 1993 and 14 June 1993 respectively. In their memorial they referred to the investigations of the public prosecutors, which commenced on the same day as the attacks (see paragraphs 35 and 41 below). Those investigations, which were being conducted in accordance with the applicable provisions of the Turkish Code of Criminal Procedure (see paragraph 48 below), were still pending. 30. The Government maintained that there was no evidence to support the applicant’s contention that members of the security forces were responsible for the attacks on the applicant and his uncle. In addition, they denied all allegations of ill-treatment by the State authorities. They said that the applicant had never officially complained to the relevant authorities that his attackers were agents of the State. Moreover, there was no evidence to support the applicant’s allegation that a police officer had told him that it was in fact he who had been the target of his uncle’s killers. 31. The Government refuted any allegation that there had been official intimidation of persons in any way connected with the sale of newspapers. They said that such newspapers were sold in hundreds of kiosks and were freely available throughout Turkey. The Government acknowledged that on certain occasions particular editions of those newspapers had been confiscated (see paragraph 22 above). However, the measures, which were neither arbitrary nor repressive, were always made on the basis of judicial decisions. 32. Noting that the allegations were of a width and character that would not be easily amenable to clarification from oral testimony, the Commission decided, after consulting the parties, to examine the allegations on the basis of the written materials submitted by the parties. The findings of the Commission can be summarised as follows. 33. The Commission observed that the facts at the heart of the application were not disputed. The applicant was shot at and seriously injured in an attack by two men on 15 January 1993. His uncle, Haşim Yaşa, was shot and killed by a gunman on 14 June 1993. 34. The Commission found that there was no evidence before it that proved beyond reasonable doubt that agents of the security forces or police were involved in the shooting of either the applicant or his uncle. It also found that the applicant’s complaints concerning police obstruction at the hospital and ill-treatment in custody following his uncle’s funeral had not been substantiated. However, having regard to “appeals made for protection and protests made by Mr Yaşar Kaya, [a] journalist and [the] owner of the Özgür Gündem, at ministerial level and to the considerable number of attacks on persons connected with that newspaper”, the Commission found that the Government had or ought to have been aware that those involved in its publication and distribution feared that they were falling victim to a concerted campaign tolerated, if not approved, by State agents (see paragraph 104 of the Commission’s report) . 35. According to a police report dated 15 January 1993 the shooting took place at about 7.15 a.m. in Turistik Street. Fifteen empty cartridges and two bullet shells were taken for forensic examination, and a plan of the scene was drawn up. On the day of the shooting the police recovered the applicant’s pistol from his kiosk. They arrested Ş. Altunhan at the kiosk and two taxi drivers, one being the driver to whom the applicant had entrusted the pistol and the other being the driver who had taken it to the kiosk (see paragraph 13 above). The police had then taken detailed statements from them. 36. In response to an enquiry of 15 January 1993 from the security police, the hospital doctor recorded the following injuries to the applicant: one bullet entry to the left gluteal region, one bullet entry and exit to the middle left forearm, one bullet scratch to the left index finger, one bullet entry and exit on the middle front upper right arm between the elbow and axillary region and a bullet track slightly below the skin tissue, surfacing under the arm. 37. On 17 January 1993, in the presence of his lawyer, the applicant had given a statement to the police in which he had described the attack. He stated that the assailants had intended to murder him because he ran a newspaper kiosk that mainly sold left-wing newspapers. He explained that, as there had been previous attacks on newsagents selling such papers, he had bought the pistol and had been carrying it with him for three or four days before the attack (see paragraph 16 above). 38. A summary incident report dated 17 January 1993 on the shooting, entitled “crime record no. 1993/C-14”, referred to the applicant as an injured suspect and stated that the other (unidentified) suspects were at large. 39. On 20 January and 14 April 1993 the Diyarbakır public prosecutor had requested the relevant security branch to investigate the attack on the applicant and to apprehend the suspects. On the latter date the public prosecutor had also requested that the Principal Public Prosecutor’s Office be kept informed of the progress of the inquiries every three months until the end of the statutory prescription period, namely 15 January 1998. 40. An expert ballistics report from the Diyarbakır regional criminal police laboratory dated 11 February 1993 indicated that the cartridges found by the police at the scene of the shooting showed traces and marks identical to those in the shooting of two other people in Diyarbakır on 3 November 1992 and 11 February 1993 respectively. 41. A preliminary investigation file no. 1993/2248 had been opened into the killing of Haşim Yaşa. According to an autopsy report dated 14 June 1993, four bullet entry wounds had been found on Haşim Yaşa’s body, two of which were fatal. 42. Following the shooting, the police had prepared a sketch of the scene of the incident and had taken statements on 14 June 1993 from two witnesses. According to V. Şimşek, after hearing the shots, he had seen someone, whom he was unable to identify, running behind the people gathering in the street. R. Orhan, who ran a stall in the street, had heard but not seen the shooting. On reaching the scene, he had helped Haşim Yaşa, who was lying on the ground, get into a taxi so that he could be taken to hospital. 43. The record made by the police on questioning Haşim Yaşa’s son had indicated that although the boy had seen the assailant he had not recognised him. He said that the assailant – aged 20 to 25 and approximately 1.70 m tall – had continued to fire at his father even though the latter had fallen to the ground after the first shot. The attacker had then made his escape. 44. An expert ballistics report dated 21 June 1993 indicated that the bullet shells retrieved from the scene were too deformed for useful examination. 45. No other information concerning any investigative measures taken in relation to those incidents was included with the documents from the investigation file provided to the Commission. However, appended to the Government’s written observations before the Commission was a letter which the public prosecutor attached to the Diyarbakır National Security Court had sent on 2 November 1995 to the Minister of Justice in which he said: “[The] allegation ... is wholly untrue. There are no gunmen working for the State in south-east Anatolia. In [that] region there are armed conflicts between armed organisations and conflicts arising out of the settling of scores within such organisations. The allegation that these incidents are attributable to the State and gunmen acting on its behalf is outrageous...” 46. Before the Court, the applicant has produced a copy of a recent report by the Board of Inspectors within the Prime Minister’s office. That confidential report (“the Susurluk report”) was initially intended to be only for the Prime Minister, who had commissioned it on 13 August 1997. After receiving the report in January 1998, it would appear that the Prime Minister then made it available to the public, although eleven pages from the body of the report and its appendices were withheld. The report continued to be the centre of attention in Turkey while the Court was considering the case. The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events that had occurred mainly in south-east Turkey which tended to confirm the existence of a tripartite relation involving unlawful dealings between political figures, government institutions and clandestine groups. The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that had been formed as a result, particularly in the drug-trafficking sphere. The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below. “... In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir (page 35) would say from time to time that he had planned and procured the murder of Behçet Cantürk and other partisans from the mafia and the PKK who had been killed in the same way... The murder of ... Musa Anter had also been planned and carried out by A. Demir (page 37). ... Summary information on the antecedents of Behçet Cantürk, who was of Armenian origin, are set out below (page 72). ... As of 1992 he was one of the financiers of the newspaper Özgür Gündem. ... Although it was obvious who Cantürk was and what he did, the State was unable to cope with him. Because legal remedies were inadequate the Özgür Gündem was blown up with plastic explosives and when Cantürk started to set up a new undertaking, when he was expected to submit to the State, the Turkish Security Organisation decided that he should be killed and that decision was carried out (page 73). ... All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. ... The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9). Other journalists have also been murdered (page 74).” 47. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 48. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or members of the security forces as well as to the public prosecutors’ offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). 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 course of his duty shall be liable to imprisonment. 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 in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 49. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local Administrative Council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 50. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of the state of emergency region, the 1914 Law (see paragraph 49 above) also applies to members of the security forces who come under the governor’s authority. 51. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9–14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 48 above) or with the offender’s superior. 52. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 53. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities shall be subject to judicial review… ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 54. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 53 above), provides: “No criminal, financial or legal liability may be asserted against … the governor of the state of emergency region or provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this Legislative-Decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 55. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41–46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).

train

001-108588

ENG

HUN

CHAMBER

CASE OF SZERDAHELYI v. HUNGARY

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque

7. The applicant was born in 1943 and lived in Budapest. 8. On 24 November 2006 the applicant announced, as required by the Assembly Act 1989, to the Budapest Police Department his intention to organise a demonstration on 9 December 2006 on Kossuth Square in Budapest, in front of Parliament. 9. On 26 November 2006 the Budapest Police Department refused to deal with the application. It observed that on 23 October 2006 the area in question had been declared, by the Police Department itself and for an indefinite period of time, a “security operational zone” (biztonsági műveleti terület), in view of the tumultuous events in Budapest in September 2006. It was as such outside the Police Department’s jurisdiction as regards the prohibition of, or acquiescence in, a demonstration. On 6 December 2006 the Budapest Regional Court dismissed the applicant’s request for judicial review, observing in essence that no decision on the merits of the case had ever been adopted by the administrative authorities – which excluded such a review. 10. On 11 December 2006 the Deputy Head of the National Police Department dismissed the applicant’s further complaint. On 19 December 2006 the applicant filed an action with the Budapest Regional Court, challenging the decisions of both 23 October and 11 December 2006. 11. On 11 January 2007 the Head of Budapest Police dismissed the applicant’s renewed complaint. On 12 February 2007 the Deputy Head of the National Police Department partly reversed this decision and instructed the Budapest Police Department to substitute the indefinite measure in question with one of definite duration. On 5 March 2007 the Regional Court dismissed the applicant’s ensuing action, essentially endorsing the police authorities’ earlier reasoning. It pointed out that the proceedings only concerned the police’s decision on non-competence and did not constitute review of the police’s original decision declaring Kossuth Square a “security operational zone”. 12. Upon a further complaint, on 18 March 2008 the Regional Court quashed the decisions of 11 January and 12 February 2007 and remitted the case to the National Police Department. In reaction to the applicant’s petition for review, on 29 April 2009 the Supreme Court quashed the decision of 18 March 2008 and remitted the case to the Regional Court. The latter’s procedure was then interrupted on 1 October 2009 on account of the applicant’s death. The applicant’s son and heir joined the proceedings as successor on 25 August 2011. 13. The Government submitted that the subject matter of the litigation pending before the Regional Court was the police’s original decision declaring Kossuth Square a “security operational zone”. 14. In another case concerning the same area, on 29 January 2007 a Mr K. challenged the police’s very decision to declare Kossuth Square a “security operational zone”. On 14 March 2007 the Budapest Police Commander rejected his complaint, but this decision was quashed by the National Commander on 16 April 2007. In the resumed administrative proceedings, on 22 June 2007 the Budapest Commander again rejected the complaint. On 19 July 2007 the National Commander upheld this decision. Mr K. challenged this ruling in court. 15. Mr K.’s action was dismissed by the Budapest Regional Court. However, on appeal the Supreme Court quashed this decision, together with the one of 19 July 2007. 16. In the resumed second-instance administrative proceedings, on 23 December 2009 the National Commander again upheld the Budapest Commander’s decision. Mr K. requested judicial review. 17. On 11 November 2010 the Regional Court quashed, in judgment no. 27.K.31.354/2010/9., both the first- and the second-instance administrative decisions and remitted the case to the Budapest Commander. The court pointed out that the impugned decisions did not contain any concrete elements establishing the necessity and proportionality of maintaining the “security operational zone” after the prolongation of 22 November 2006. Nor did they address the plaintiff’s suggestion that the mere fencing-off of Parliament’s immediate vicinity – rather than the global ban on Kossuth Square – would have been sufficient in the circumstances. 18. In the resumed first-instance administrative proceedings, on 4 April 2011 the Budapest Commander partly sustained Mr K.’s complaint, noting that, in the absence of evidence to the contrary, the proportionality of the impugned measure had successfully been challenged.

train

001-80520

ENG

AUT

CHAMBER

CASE OF EMMER-REISSIG v. AUSTRIA

Violation of Art. 6-1 (lack of an oral hearing);Not necessary to examine the further complaint under Art. 6-1

Christos Rozakis

5. The applicant was born in 1921 and lives in Klosterneuburg. 6. He is a lawyer practising in Klosterneuburg and the owner of a parcel of land in the municipality of Königstetten, which is designated as “forest” land in the zoning plan. On parts of this parcel – approximately 1,500 square meters – he runs an organic farm on a part-time basis, breeding sheep and goats. Besides that, he keeps bees and grows herbs. 7. On 18 August 1998 the applicant applied to the mayor of Königstetten for a building permit for a shed, to be used as a shelter for sheep and goats in summer and beehives in winter. It is also designed as a refuge for farm workers. He therefore submitted construction plans for the planned shed and a map of the land in question. 8. The mayor rejected the applicant's request on 16 February 2000. Relying on a report by an agricultural expert at the Lower Austria Regional Government, he stated that, in view of its shape, size and design, it would not qualify as a farm building and that even if it was an agricultural construction, it could not be erected on the land in question, as the latter had been designated as forest and grassland. 9. The applicant lodged an appeal with the municipality of Königstetten on 10 April 2000. On 3 July 2000 the municipality dismissed his appeal on the same grounds. 10. Subsequently, on 13 September 2000, the applicant filed an objection (Vorstellung) with the Lower Austria Regional Government and requested it to hear representatives of the District Farmer's Association (DFA, Bezirksbauernkammer) and the Austrian beekeeper association (ABA, Österreichischer Imkerbund) as experts who would prove that the building he intended to erect was necessary for the intended agricultural enterprise. 11. The Regional Government quashed the municipality's decision on 10 January 2001 and referred the case back to the municipal council. It stated that the municipality had failed to address all the points of appeal. 12. The applicant lodged further grounds in support of his appeal on 19 March, 4 and 24 April 2001. In addition to his comments on the decision of 3 July 2000, he filed requests for the taking of evidence. He also submitted a statement by the Tulln Administrative District Authority and a document he referred to as a business plan. 13. On 23 November 2001 the Königstetten Municipality requested the applicant to comment on an expert opinion it had obtained from the Planning Office at the Lower Austria Regional Government (Gebiets-bauamt) on 31 October 2001. It stated that by far the largest part of the land was covered by forest, which would impede serious agricultural activities. With reference to the earlier decisions, it repeated that, judging by its design and shape, the building at issue would be untypical of an agricultural shed and that the applicant could be assumed never to have intended to carry on agricultural activities, but rather to use it for different purposes. 14. The applicant commented on the expert opinion on 10 December 2001. Claiming that the authorities had incorrectly established the relevant facts, he contended that the expert opinion was in breach of Austrian law and European Community law. Besides that, the applicant repeated his request to obtain opinions from the DFA, the ABA and a certain organic farming association (Biobauernverband Ernte) in order to prove the feasibility of the business plan and its compliance with the relevant legal criteria. He also filed an application for an on-site inspection of the land at issue. 15. On 29 January 2002 the municipal council also rejected the applicant's appeal. It held that the planned construction would conflict with the zoning plan and that the building would not resemble a shed for agricultural use. 16. The applicant filed an objection (Vorstellung) with the Lower Austria Regional Government again on 11 February 2002, submitting that the municipality had relied solely on an incorrect expert opinion without carrying out investigations of its own. In addition, he claimed that the decision was in breach of European Community law. 17. Subsequently, on 12 March 2002, the applicant lodged a complaint with the Administrative Court and requested an oral hearing. 18. On 30 July 2002, without holding an oral hearing, the Administrative Court rejected the complaint as inadmissible for non-exhaustion of administrative remedies, as the applicant had failed to file an objection against the decision of 29 January 2002. 19. The applicant's objection of 12 March 2002 was dismissed by the Lower Austria Regional Government on 22 July 2002. 20. The applicant lodged a further complaint with the Administrative Court on 22 August 2002 and repeated his request for an oral hearing. 21. On 16 September 2003 the Administrative Court dismissed the applicant's complaint and rejected his request for an oral hearing. It found that, despite its request for a detailed business plan, the applicant had failed to provide one. Accordingly, the alleged need for a shed for the so-called agricultural enterprise had not been made out.

train

001-79267

ENG

POL

CHAMBER

CASE OF RYCKIE v. POLAND

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

Nicolas Bratza

4. The applicant was born in 1972 and lives in Gdansk. 5. On 24 May 1999 the applicant was detained on remand on suspicion of having committed numerous offences, inter alia kidnapping and aggravated robbery. 6. The court based its detention order on a reasonable suspicion that the applicant had committed the offences and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. 7. His pre-trial detention was extended by decisions of 15 July 1999, 20 October 1999, 24 January 2000, 27 June 2000, 10 November 2000, 3 January 2001, 26 March 2001, 30 April 2001, 21 November 2001, 25 April 2002, 16 July 2002, 8 July 2003, 20 January 2004, 13 July 2004, 28 July 2004, 6 August 2004, 20 August 2004, 27 August 2004, 3 September 2004, 12 October 2004, 11 January 2005, 19 July 2005 and 27 October 2005. 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 the courts also referred to the complexity of the case, the need to conduct further investigations, the probability of collusion between the applicant and the co-accused and exertion of unlawful pressure on witnesses by the applicant and the fear that the applicant would go into hiding. 9. On many occasions the applicant requested release or that a more lenient preventive measure be applied. Each time his requests were dismissed. 10. The applicant appealed against the decisions extending his detention on several occasions. Only one of his appeals was allowed to the effect that the period of extension of his detention was reduced by two months (the Gdańsk Court of Appeal decision of 17 August 2005). 11. On 24 January 2000 the prosecution service filed with the Gdańsk Regional Court a bill of indictment. The applicant was charged with twelve offences, including aggravated robbery, kidnapping and illegal possession of a weapon. 12. The first hearing planned for 10 April 2000 was adjourned. Subsequent hearings were held on 26 May 2000, 27 June 2000, 7 August 2000, 6 October 2000, 10 November 2000, 3 January 2001, 2 February 2001 and 26 March 2001. The hearing of 17 April 2001 was adjourned. As a consequence of the court’s exceeding the permissible period of the length of intervals between hearings, the proceedings had to be conducted anew. 13. Subsequent hearings were held on 6 June 2001, 8 June 2001, 13 June 2001, 3 July 2001, 18 September 2001, 24 September 2001, 10 October 2001 and 15 October 2001. The hearing of 31 October 2001 was adjourned due to a lay judge’s illness. Subsequent hearings were held on 7 November 2001, 13 November 2001, 20 November 2001, 10 December 2001, 14 December 2001 and 17 December 2001. A hearing of 21 December 2001 was adjourned due to the absence of witnesses. The next hearings took place on 27 December 2001, 7 January 2002, 14 January 2002 and 21 January 2002. 14. On 28 January 2002 the Gdańsk Regional Court convicted the applicant of nine offences, acquitted him of the remaining three and sentenced him to 15 years’ imprisonment. The applicant and other accused appealed. 15. On 9 April 2003 the Gdańsk Court of Appeal quashed the judgment and remitted the case as it found that the judges deciding on the case had not been impartial. 16. The hearings of 22 August 2003, 7 October 2003, 18 November 2003 and 19 December 2003 were adjourned since the applicant had so requested and since one of the accused had been absent. 17. A subsequent hearing was held on 24 February 2004. A hearing of 6 April 2004 was postponed due to the absence of a lawyer representing one of the accused. Hearings were held on 6 July 2004, 28 July 2004, 6 August 2004, 20 August 2004, 27 August 2004, 3 September 2004, 7 September 2004, 12 October 2004, 3 December 2004, 7 December 2004 and 14 December 2004. 18. On 28 December 2004 the Court of Appeal found that the length of proceedings had been excessive in the applicant’s case and awarded him compensation. In its reasoned grounds the court stated that as a result of the fact that the trial court had exceeded the permissible length of time between the hearings of 26 March 2001 and 6 June 2001, the proceedings had to be conducted anew. It also noted that the adjournment of the hearing of 17 April 2001 had been unjustified. 19. Subsequent hearings were held on 11 January 2005, 25 January 2005, 11 February 2005, 18 March 2005, 5 April 2005, 12 April 2005, 17 May 2005, 28 June 2005, 3 July 2005, 19 July 2005, 19 August 2005, 6 September 2005, 11 October 2005, 4 November 2005, 25 November 2005, 9 December 2005 and 20 December 2005. 20. In the course of the proceedings the applicant and other accused lodged numerous requests for exclusion of several judges from the case, hearing of additional witnesses, commissioning expert opinions, transfer of the case to a different court, rereading of the bill of indictment, drawing up a new bill of indictment, the appointment of a new legal-aid lawyer, correction of the record of a hearing, etc. 21. On 27 December 2005 the Gdansk Regional Court sentenced the applicant to 15 years’ imprisonment. The reasoned grounds for this judgment are being drawn up. The applicant expressed his intention to lodge an appeal.

train

001-81140

ENG

POL

CHAMBER

CASE OF W.S. v. POLAND

Preliminary objection dismissed (six-month period);Violation of Art. 6-1 and 6-3-d;Not necessary to examine Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

5. The applicant was born in 1966 and lives in Pabianice. 6. On 11 April 1994 the applicant's wife filed an action for divorce, dated 8 April 1994, with the Łódź Regional Court. She submitted that the parties had married in 1989, that the marriage had not been a happy one from the beginning, that the applicant was unworthy of any trust, that he had been battering her and that he was generally unable to fulfil the role of husband and father. She claimed maintenance for their daughter X. and custody of the child. 7. On 14 April 1994 she requested the Pabianice District Prosecutor to institute criminal proceedings against the applicant on charges of sexual abuse of their daughter X. The minutes of her deposition read: “We have been married since 1989. In 1990 our daughter X. was born. In April 1994, after a conversation I had with the child, I started to think that my husband could have been, for some time, sexually abusing her, of which I hereby inform the prosecuting authorities. I would like to stress that after I had acquired this information I moved out of our apartment to my sister's place ... It will be for several days only and afterwards I will move in with my parents in W. It seems to me to be a good decision as the child should be, at least for some time, separated from her father. At the same time, I realise that it would be nearly impossible to conduct any interview with my child, regard being had to her age...” 8. In an undated subsequent opinion, apparently prepared on the basis of a psychological examination of the child carried out on 14 April 1994 in the presence of her mother and maternal grandmother, E.K., a psychologist, described the child's stage of development and concluded: “On 14 April 1994 an attempt was made to obtain from X. an account of the events concerned in the case. This attempt failed insofar as it was aimed at obtaining a verbal statement. It can, however, serve as a basis for a description of the child's psychological situation. (...) I think that any further attempt to interview X. would not make any sense. Moreover, it would be detrimental to her development. A child of this age is unable to make any confabulations, without there being a concrete factual basis for what she says. (...) Information obtained from third parties and observation of the child seem to suggest that it is likely that she has been a victim of sexual abuse: - inflammation of sexual organs (medical records); - secrets shared with her father rewarded by sweets or toys in order to remain unknown to other persons and to the mother; ... - reluctance to have sexual organs washed; - pains in the legs, bruises on the legs; - bizarre play and behaviour. The fact that so many such manifestations occur makes it possible to consider that the charges may be truthful. In my view the child's father should be interviewed. It is also recommended that the child be examined once again, not before September.” 9. Later on, the child was interviewed by E.K. on 9 January 1995. Her mother was not present during the examination. X. was also requested to make drawings representing her family and to play with dolls representing herself, her father and her mother. 10. In an opinion dated 17 January 1995, E.K. explained various techniques she had used during this meeting, suited to the child's age. She stated that during the second meeting the child had evoked events which seemed to suggest that she had been sexually abused by her father; that, given her age, there was no possibility that she was talking about things which in reality had not happened; that the drawings she had made constituted a spontaneous form of communication which could not, given her age, have been suggested to her by other persons; that these drawings suggested that she had been sexually abused by her father, possibly also by anal intercourse as she had clearly referred to anal pain in connection with “playing” with her father. 11. The psychologist stressed that under no circumstances should the issue be raised with the child, who should be excluded entirely from the proceedings in order to safeguard her well-being and development. She noted that the child was more relaxed and confident than in April 1994, when she had realised that the “secrets” her father shared with her had been regarded as evil by other members of the family. 12. On 31 March 1995 a bill of indictment was laid against the applicant in the Łódź Regional Court. He was charged with having sexually abused his daughter from 1992 until April 1994. The prosecution referred to interviews conducted during the investigations with the applicant, his parents, his wife, her parents and her sister and her aunt K.M. Further, reference was made to: X.'s medical records, police information on the applicant, the opinions prepared by E.K. (referred to above), a psychiatric opinion on the applicant (prepared by N.G. and M.G.-L.), drawings made by X., an expert opinion dated 28 November 1994, prepared by J.B., a sexologist, on the applicant's sexual profile, another report about the applicant's mental health prepared by psychiatrists M.L. and D.J., dated 1 March 1996, and an opinion of a psychologist on the applicant's personality, dated 1 March 1995 and prepared by E.W. 13. On an unspecified later date the court instituted the proceedings. 14. On 9 February 1996 an expert opinion, prepared by J.K., a specialist in surgery with considerable experience of working with battered and abused children, was submitted to the court. He prepared it on the basis of his analysis of X.'s medical records, but without interviewing either X. or other persons. He concluded that the symptoms which X. had manifested could have been caused by sexual abuse, but that such symptoms could also have been caused by other physiological factors. He was of the view that, in any event, no evidence pointed with certainty to sexual abuse by her father. 15. By a decision of 25 April 1996 the court called further expert witnesses: M.K., a psychologist, and another psychologist working for a Diagnostic Centre in Łódź. 16. In its decision of 24 May 1996 the court observed that doubts had arisen, in the light of J.K.'s opinion, as to whether an expert opinion of a sexologist on the applicant's personality and which had already been prepared for the purposes of the investigation had been sufficient and clear. The court noted J.K's professional experience in an non-governmental organisation helping children, victims of cruelty and sexual abuse. It therefore ordered that another expert opinion be submitted on whether the applicant was suffering from any sexual disturbances, and if this was the case, how they might relate to the charges against him. It appointed a sexologist, Dr A.B., as an expert. 17. On 12 July 1996 A.B. examined the applicant and on an unspecified later date submitted his opinion to the court. 18. On 5 March 1997 another expert opinion was submitted to the court in which the procedure for examination as well as the adequacy and soundness of the method used by the psychologist E.K. were assessed. Its conclusion was that there were no grounds for doubting the thoroughness and soundness of the opinion. 19. On 6 November 1997 the Łódź Regional Court convicted the applicant of having sexually abused X. and sentenced him to four years' imprisonment. The court first recalled the circumstances of the applicant's marriage and the difficulties that had arisen between the spouses. It further established that the applicant's wife, having considered their situation and having discussed the issue with her sister I.K., decided, on 8 April 1994, to petition for divorce. On the same day she had sought legal advice and agreed with the lawyer that a divorce petition would be prepared. In the evening she had surprised the applicant caressing X. in a manner which shocked her as it seemed that he had been touching the child's sexual organs. She had not reacted immediately, but left the apartment with her daughter on the next day and moved in with her sister. On the same day she had talked with X. about her father's conduct and her suspicions of sexual abuse had been confirmed. On 14 April 1994 she had requested the prosecutor to institute an investigation and had been interviewed on the same day. 20. On 14 April 1994 the psychologist E.K. had met with X., but an attempt to obtain verbal confirmation of the charges of sexual abuse failed. The expert had only established that the convergence of various manifestations in the child's behaviour was sufficient to suppose that sexual abuse could have occurred. 21. As shown by the expert opinion of 17 January 1995, a further attempt by the psychologist to interview the child had been successful. The psychological tests had allowed the specialist to conclude that the girl's genitals had been touched and manipulated by her father and that this had happened on numerous occasions. The court further referred to an expert opinion of Dr J.B, who had concluded that the applicant had a normal heterosexual drive and that he had a low self-esteem. The latter factor, in the expert's view, could have explained why he might have sought sexual experience with X. instead of normal adult sex. 22. The court recalled that it had decided not to interview X., having regard to the unequivocal opinion of the psychologist that it would not serve any useful purpose and would be harmful to her, and given that other evidence at its disposal was sufficient to give a ruling in the case. 23. The court considered that the expert opinions of E.K. were of decisive importance for its judgment. In particular, her second opinion of January 1995 in which she had categorically stated that X. had been sexually abused sufficed to conclude that the applicant was guilty. In that connection, the court recalled that already X's first contact with E.K. in April 1994 had given cause to believe that this had indeed been the case, even though the child had not wanted to talk at that time. Further, the examination carried out in January 1995 had confirmed these suspicions, the more so as the child at that time had been more relaxed and confident. 24. The court also referred to an expert opinion in which the methods used by E.K. were assessed by two further specialists as methodologically sound and appropriate to the situation and to the child's age. They had not found any grounds on which to challenge its validity. The court further observed that in 1995 the girl had been treated for problems of foecal incontinence. In June 1995 a medical test had been carried out which showed that the muscular tension of her sphincter was too low for a child of her age. The court had heard the expert witness Dr A.D., who was of the view that damage to the child's sphincter might have been caused by anal penetration. The court observed that his medical findings corresponded to the conclusions made by E.K. in her opinion of January 1995 that the child could have been the victim of anal penetration. 25. The court referred to the opinion and testimony of Dr J.K. and was of the view that this opinion was merely of a theoretical character because he had not examined the child. Hence, his conclusions in which he had disagreed with the conclusions of certain other experts previously prepared in the case were not of decisive importance. 26. The court further noted that the members of the applicant's wife's family had been questioned in the proceedings, but that their testimony had been very emotional. As they had been interpreting all of the information about the applicant as pointing to his guilt, the court did not consider their testimony to be wholly credible. 27. The court concluded that in the light of the evidence seen as a whole, the applicant's guilt was not open to doubt. 28. The applicant appealed, arguing that the finding of his guilt had primarily been based on the opinions prepared by E.K. Having regard to these opinions, the court had refused's innocence and, on the whole, had failed to take evidence which would have allowed the facts of the case to be established in a full and convincing manner. It was further submitted that the applicant had been effectively deprived of his defence rights. The authorities had decided, in the child's interest, not to interview X. As a result, its role had been limited to the assessment of the opinions submitted by E.K. and of her oral testimony. This had led to a situation in which the accused had been convicted on the basis of E.K.'s reports. Neither the prosecutor nor the court had ever seen the child. The court could not, therefore, form an opinion on the veracity of the charges. 29. On 12 March 1998 the Łódź Court of Appeal dismissed the appeal and upheld the impugned judgment. It first observed that the applicant's submission that the lower instance had failed to hear further evidence was incorrect. 30. It disagreed with the applicant's submission that the refusal to interview X. had deprived him of his defence rights. The applicant, who had been represented by a lawyer, had made full use of his defence rights and had put to the court numerous arguments in his defence. 31. The appellate court recalled that the first-instance court had concluded that in the light of the evidence seen as a whole, the applicant's guilt was not open to doubt, even in the absence of any oral testimony given by X. This conclusion of the first-instance court had met with the approval of the appellate court, despite the fact that it had been motivated in a rather succinct manner. Neither the prosecution nor the applicant had made a formal request to have X. interviewed by the court, and the attempt to obtain verbal testimony from her during the investigations had failed. Hence, such testimony should be regarded as “testimony impossible to obtain” within the meaning of the Code of Criminal Procedure. 32. It was further noted that the validity and soundness of the opinions prepared by E.K. were not open to doubt. The first-instance court had taken specific steps in order to have their probative value assessed by other experts. Further, E.K.'s conclusions had also been assessed by the firstinstance court in the light of other evidence at its disposal. The appellate court referred to the evidence given by A.D., which corroborated the conclusions reached by E.K. The submissions made by A.D. had corresponded to other available evidence. The first-instance court had also taken into consideration the conclusions made by the experts who had examined the applicant. The appellate court concluded that the assessment of the evidence had been thorough and logical and that there were no grounds on which to find that the firstinstance court had reached unreasonable or arbitrary conclusions. 33. On 22 February 2001 the Supreme Court dismissed the applicant's cassation appeal as being manifestly illfounded. On 2 March 2001 this judgment was served on the applicant. 34. At the relevant time the rules governing the assessment and admissibility of evidence were contained in the Code of Criminal Procedure of 1969 (“the 1969 Code”). It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. 35. Article 4 § 1 of the 1969 Code provided: “Judges shall rule on the basis of their conviction derived from evidence obtained and founded on their free assessment of evidence [and they shall] draw on knowledge and life experience.” 36. Under Article 155 of the 1969 Code, the trial court should dismiss a motion for evidence to be taken, if the taking of such evidence was inadmissible in law; if the fact to be proved was irrelevant to the assessment of the case, and if the evidence concerned was impossible to obtain. 37. Article 402 of the Code provided that the appellate court could not, in principle, take evidence. However, it could do so exceptionally at a hearing if it was of the view that this would expedite the proceedings. If the appellate court found that the evidence examined by the firstinstance court was insufficient to give a judgment, it could also quash the judgment under appeal and remit the case to the trial court for reconsideration.

train

001-92180

ENG

FIN

ADMISSIBILITY

MBENGEH v. FINLAND

Inadmissible

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

The applicant, Mr Ousman Mbengeh, is a Gambian national who was born in 1971 and lived, at the time of lodging his application with the Court, in Helsinki. He is represented before the Court by Ms K. Heimonen, a lawyer practising in Espoo. and as they appear from the documents on the file, may be summarised as follows. The applicant arrived in Finland on an unspecified date. On 25 January 1995 he married a Finnish citizen, who gave birth to their son in 1996. The three of them lived together until the applicant’s deportation to his country of origin, Gambia, in 2006. In 1995 the applicant had obtained a temporary residence permit based on the marriage. In 1998 he was granted a permanent residence permit. On 25 April 2003 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant of an aggravated narcotics offence for having dealt in heroin during the period from May 2002 to January 2003 and sentenced him to six years’ imprisonment. The conviction was upheld by the Helsinki Court of Appeal (hovioikeus, hovrätten) on 14 January 2004 although the sentence was reduced to four years’ imprisonment. On 27 January 2006 the Supreme Court (korkein oikeus, högsta domstolen) upheld the conviction and sentence. On 10 November 2004 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) decided to deport the applicant owing to his criminal activity and issued a five-year refusal of entry to the Schengen area. It considered that, through his criminal activity, he had endangered public order and safety. The Directorate of Immigration noted that, according to practice, aggravated offences usually resulted in the issuing of a refusal of entry which would normally remain in force until further notice. However, having regard to the applicant’s family ties to Finland, it considered that a refusal of entry for five years was appropriate. On 8 August 2005 the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) quashed the decision because of the applicant’s long stay in Finland and his family ties. The Directorate of Immigration appealed. On 20 October 2006 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), finding that the grounds for deportation were weightier than the applicant’s family ties and his eleven-year stay in Finland, quashed the Administrative Court’s decision and upheld the deportation order. The case turned on the fact that the applicant had been dealing in very dangerous drugs for monetary gain and in the circumstances, the deportation and refusal of entry would not be in breach of Article 8 of the Convention or Article 3 of the United Nations Convention on the Rights of the Child (1989; yleissopimus lapsen oikeuksista, konventionen om barnens rättigheter; SopS 60/1991). On 7 December 2006 the applicant was deported to his country of origin. Section 40(1) of the then Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 378/1991) provided, inter alia, that an alien convicted of a criminal offence which carried a sentence of one year or more or an alien who repeatedly committed offences could be deported. Section 41 provided that when deciding on deportation regard must be had to all the relevant facts and the circumstances as a whole such as the duration of the stay, the relationship between a child and its parent and family and other ties to Finland. The nature of the offence within the meaning of section 40(1) was also relevant. Under section 43 a refusal of entry could be issued for a maximum period of five years or until further notice.

train

001-88535

ENG

ROU

CHAMBER

CASE OF URBANOVICI v. ROMANIA

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

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

4. The applicant was born in 1959 and lives in Oradea. 5. On 14 May 1999, the applicant lodged with the Oradea District Court an action for recovery of possession (acţiune în revendicare) of a plot of land that, although recorded in the land register (cartea funciară) as belonging to the Oradea Local Council, she claimed she had inherited it from E.S. who had received it from the State in exchange for another plot of land. The three courts that dealt with the case found in favour of the applicant. The District Court gave its decision on 4 July 2000. Upon appeals by the Local Council, the Bihor County Court upheld it on 16 February 2001 and the Oradea Court of Appeal on 21 May 2001, the latter by means of a final and irrevocable decision. 6. Before all the courts that dealt with the case, the Local Council argued that certificate no. 10524 of 14 May 1955, used by the applicant in order to prove her ownership title, was false as it contained a series of irregularities. 7. The first-instance court and the appeal court rejected the argument on the ground that the defendant had not brought evidence to prove the allegations. Moreover, the courts noted that, according to the information in their possession, no criminal proceedings had been started on the matter. 8. The court of last resort rejected the Local Council’s request that the proceedings be stayed until the courts had ruled on the nullity of the certificate (procedure described at paragraphs 10 to 12 below). On the merits, it noted as follows: “The [defendant’s] allegations about the existence of irregularities in certificate no. 10524 of 14 May 1955 ... seem well-founded. However, this certificate established a prima facie case [început de probă scrisă] which entitled the firstinstance court to examine additional evidence; witness testimonies confirmed that the property title in dispute had been transferred from the State to E.S., who exercised public and peaceful possession without causing any nuisance ... This situation is also confirmed by the evidence on the consolidations of land that had taken place. The fact that the exchange of land occurred is undoubtedly proved by letter no. 28182 of 18 October 1949, issued by the Ministry of Agriculture ..., which cannot be contested...” It also noted that the criminal investigation into the alleged forgery of the 1955 certificate had been terminated on 17 March 2001 as the time-limits for criminal responsibility had expired. However, the Court of Appeal considered that the evidence adduced, in particular the letter of 18 October 1949, rendered that investigation devoid of relevance in any case. 9. On an unspecified date the applicant’s ownership title was recorded in the land register. 10. On 19 April 2001 the Oradea Local Council lodged with the Oradea District Court an action against the applicant, seeking that the 14 May 1955 certificate above be set aside because it contained irregularities. The applicant argued that the issue was res judicata in so far as the courts ruling on the action for recovery of possession had already dealt with the matter. 11. The case was transferred to the Arad District Court which, on 28 March 2002, allowed the action, established that the document was false and set it aside. 12. Appeals by the applicant were rejected successively by the Arad County Court, on 10 July 2002, and by the Timişoara Court of Appeal, in a final decision of 3 December 2002. 13. Following the ruling of the Timişoara Court of Appeal, the Oradea Local Council sought the revision of the final decision of 21 May 2001 (cerere de revizuire). It also asked the Procurator General to lodge an application with the Supreme Court of Justice to have that decision set aside (recurs în anulare). 14. In a final decision of 19 February 2003, the Supreme Court of Justice allowed the Procurator General’s request, noted that the 1955 certificate had been declared false, quashed all the decisions rendered in the action for recovery of possession and, ruling on the merits, rejected the initial action on the ground that the applicant had failed to prove her ownership title. The Supreme Court considered as follows: “Although according to Article 129 (5) of the Civil Procedure Code the judges have an obligation to use all legal means in order to prevent any error in establishing the truth, by a correct determination of facts and application of law, the court of last resort rejected as ill-founded the request for a stay in the proceedings, although the ruling in the [parallel] action for nullity was essential for adopting a lawful decision.” 15. On 20 March 2003, at the Local Council’s request, the Oradea District Court took note of the Supreme Court’s decision and struck off the request for revision. 16. The relevant provisions of the Code of Civil Procedure read as follows: “A final decision ... shall be revised in the following cases: ... 4. ... if the decision was adopted based on an act which was declared false either during or after the proceedings.” “The Procurator General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for a final decision to be quashed on any of the following grounds: ... 2. when the decision in question has seriously infringed the law by giving a wrong solution on the merits of the case, or when the decision is manifestly illfounded; ...” 17. Article 330 has been repealed by Article I § 17 of the Government’s Emergency Ordinance no. 58 of 25 June 2003.

train

001-108222

ENG

ALB

ADMISSIBILITY

SHARRA v. ALBANIA

Inadmissible

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

1. The applicant, Mr Besnik Sharra, is a Belgian national who was born in 1959 and lives in Brussels. He was represented before the Court by Mr A. Hajdari, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Mëneri and Mrs E. Hajro. The facts of the case, as submitted by the parties, may be summarised as follows. 2. On 7 September 1995 the applicant entered into a loan contract with a private company, UCMK, through one of its shareholders, G.M. He agreed to lend the amount of 250,000 US dollars from 7 September 1995 to 7 December 1995, with an interest rate of six per cent per month. When the company defaulted, the applicant lodged an action with the Vlora District Court to recover the debt under the loan contract. 3. On 13 August 1996 the Vlora District Court (“the District Court”) ordered UCMK, which was represented by G.M. to pay back the principal amount, including the interest accrued. In the absence of an appeal, the District Court’s decision became final and enforceable. 4. A writ of execution was issued for the enforcement of the District Court decision on 3 September 1996, as a result of which UCMK’s property – a light bulb factory – was seized by the Vlore Bailiff’s Office. There is no information regarding any developments in the proceedings following the seizure. 5. On an unspecified date in the beginning of 1997 the applicant fled the country and was granted political asylum in Belgium. He did not return to Albania until 2002. 6. By a request of UCMK shareholders which had reached the registry on 29 September 1997, the District Court declared bankruptcy proceedings open in respect of UCMK on 3 March 1998. In the light of reports and inspections conducted by the general assembly of creditors, the court decided that no reorganisation plan could be considered viable as the company did not have the financial means by which to satisfy the requests of its creditors. 7. By a decision of 17 April 1998, the District Court approved the list of creditors that had been drawn up by the assembly of creditors, including the outstanding amounts due. It would appear that UCMK shareholders omitted the applicant’s name from the list of creditors that they had submitted to the District Court pursuant to section 6 of the Bankruptcy Act 1995. Consequently, the applicant’s name was not included in the list of creditors approved by the District Court. 8. The District Court further declared the company bankrupt and recognised the creditors as the shareholders of its assets. It assigned an administrator (administrator), who, together with the creditors, was to proceed with the assessment of the company’s assets. 9. In 2002 the applicant returned to Albania for a visit and enquired about the enforcement of the District Court decision. He was informed that none of UCMK’s property had been seized on his behalf and that, consequently, the 1996 decision had not been enforced. The applicant returned to Belgium on an unspecified date without taking any action. 10. In 2005 the applicant returned to Albania and on 5 September lodged a request for the enforcement of the District Court decision. 11. On 6 October 2005 the bailiff ordered the seizure of G.M.’s property without specifying it. 12. On 13 October 2005 UCMK’s property, the light bulb factory, was seized. 13. On 23 November 2005 the bailiff attempted to sell the light bulb factory at a public auction. It transpires that the bailiff’s office was not aware of the District Court’s decision of 17 April 1998 regarding the bankruptcy of the company and the appointment of an administrator. 14. A letter of 23 December 2005 was sent by a lawyer to the Vlora tax authorities enquiring about UCMK’s registration as a commercial entity. A handwritten note in the bottom right-hand corner indicated that no such company was registered with the tax authorities. 15. On an unspecified date the administrator lodged a complaint with the Vlora District Court requesting leave to appeal out of time to enable him to challenge the District Court decision of 13 August 1996. The administrator maintained that he had not been aware of that court decision or of the fact that the applicant was one of UCMK’s creditors, since the applicant’s name did not appear on the list of creditors drawn up by UCMK’s shareholders. 16. By a decision of 30 March 2006 the District Court granted the administrator’s action for leave to appeal out of time in accordance with section 16 § 2 of the 1995 Bankruptcy Act. After having initially summoned him to attend the proceedings, the District Court proceeded in the applicant’s absence pursuant to Article 192 of the Code of Civil Procedure (“CCP”) as he was not resident in Albania. The applicant became aware of the decision on an unspecified date in 2006 and alleged that all time-limits for lodging an appeal had expired by that time. 17. On 16 May 2006 the bailiff’s office decided to discontinue enforcement of the writ of execution of 3 September 1996 on the ground that the granting of leave to appeal out of time in the administrator’s favour had stripped the District Court’s 1996 decision of its res judicata effect. The bailiff’s office indicated that the District Court’s 1996 decision did not constitute an enforceable title under the CCP. 18. On 12 April 2006 the administrator lodged an appeal with the Vlora Court of Appeal (“the Court of Appeal”), claiming that there had been serious procedural irregularities in the proceedings that had led to the 1996 court decision. 19. Unable to locate the applicant in order to summon him to the hearing, on 2 March 2007 the Court of Appeal issued a public notice for the hearing of 30 March 2007 pursuant to Article 133 of the CCP. 20. On 30 March 2007 the Court of Appeal decided to quash the District Court decision of 18 March 1996 on account of serious procedural irregularities. It found that the District Court had failed to notify and summon the other two shareholders of the company. It finally remitted the case for fresh examination. The relevant parts of the decision read as follows. “By not properly determining the parties to the proceedings and by not notifying the parties of the time and date of the hearing, the examination of this case was in serious breach of procedural rules and violated the provisions of Article 467 (ç) and (d) of the CCP. The first-instance court started the examination of the case without notifying the defendant [that is, the company]. It erred in the determination of the parties to the proceedings, because it failed to obtain important evidence such as the [company’s] articles of association, its statute and the court decision, from which it could have found out who to summon to the hearing and the exact address of the company’s seat. The court only summoned G.M., who was one of the shareholders. There is no evidence in the case file that he was authorised, or had any other prerogative, to represent the company or take actions in its name.” 21. On 21 June 2007 the Court of Appeal issued a public notice stating the outcome of its decision. 22. Following three unsuccessful attempts to summon the applicant to a hearing, on 19 November 2007 the District Court issued a public notice to notify the applicant of the hearing of 3 December 2007 pursuant to Article 133 of the CCP. 23. On 3 December 2007 the District Court decided in the applicant’s absence to terminate the proceedings in accordance with Article 179 § 1 of the CCP. 24. On 9 March 2006 the administrator requested the prosecutor’s office to institute criminal proceedings against G.M. for the criminal offence of drawing up false statements, having regard to the incorrect information he had submitted in the course of the bankruptcy proceedings (see paragraph 7 above). 25. On 13 March 2006 the prosecutor’s office declined the request on the strength of the statute of limitations and the Amnesty Act 2002. 26. By note verbale of 4 March 1997, which was registered at the Secretariat General on 10 March 1997, the Albanian Ministry of Foreign Affairs, in accordance with Article 15 of the Convention, informed the Secretary General of the Council of Europe of the Government’s intention to derogate from its obligations under the Convention. The relevant parts of the note verbale read as follows (extracted from the original in English). “I. In compliance with Article 16 of Law No 7491, dated 29.04.1991, "On Principal Constitutional Provisions", on the proposal of the Government, the People’s Assembly of the Republic of Albania took the decision to declare a state of public emergency. Such a situation will be general, covering the entire territory of the Republic of Albania. It started from March 2nd, 1997, 17.35 hours, and will continue up to the moment of the full reinstatement of constitutional and public order. II. The imposition of the state of public emergency was forced because of the very extraordinary situation that was created in recent days in Albania. Some forces, making use of the protests and the despair of citizens who lost their money from the failure of financial pyramid schemes, organised groups of terrorists to perform violent actions. Without organising peaceful gatherings, these groups violated the law, the constitutional order, the life of the citizens, institutions and the territorial integrity of the country, creating thereby conditions to plunge Albania into a civil war. Being faced with these attacks of extreme violence, the police forces have preserved selfcontrol, by taking only defensive positions and making no use of firearms, which avoided the prospect of a conflict with unpredictable consequences. A few days later, the situation had become extremely complicated, and reached a climax at the moment when the imposition of the state of emergency was being discussed. Though the Government made a proposal, the People’s Assembly, after a wide and public discussion, with the intervention of the President of the Republic, refused the proclamation of a public emergency and ordered the temporary placement of some army troops to help the police forces. With a view to having a dialogue and awaiting the response of the protestors, the Government resigned. On March 1st, 1997, a communist armed rebellion broke out in Vlora and adjacent regions organised by the former Albanian communists and the former Albanian secret police, in collaboration with foreign secret services. Terrorist groups attacked the Southern cities to take power by force of arms. The target of their attacks were innocent people, municipalities, and the headquarters of the police; jails were broken and ordinary criminals and killers were armed, hundred of thousands millions of Leks were robbed from the banks; the houses of citizens and the shops of the businessmen were attacked. The clear aim was to terrorise the population, to paralyse and to take over power by force. ... IV. According to the Law No. 8194, dated 02.03.1997 ‘For the State of Public Emergency in Case of Grave Infringement of the Constitutional and Public Order’, in the event that the state of public emergency is announced, a regime of special measures is to be established. The Council of Defence lead all State activity to be aimed at dealing with the state of public emergency. Under that state of public emergency, the Republic of Albania took several measures derogating from its international obligations. Those derogations are made to the extent strictly required by the exigency of the situation, not inconsistent with our constitutional law ‘For the Principal Constitutional Provisions’, nor with international treaties to which the Albanian State is a party, in particular the ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ and the ‘International Covenant on Civil and Political Rights’. They were made only for a restricted period of time. These derogations consist of restricting some human rights and fundamental freedoms of individuals. With regard to that issue, Article 41 of Law No. 7692, dated 31.03.1993 "For the Human Rights and Fundamental Freedoms", provides that "The exercise of some specific rights may be temporarily restricted by law in a situation of national emergency or war, with the exclusion of the rights provided for in Articles 1 (right to life) ..., 3 (abolition of torture), 6 (no enforcement to confess one’s guilt), 19 (freedom of conscience and religion), 25 (equality before the law), 39 (judicial restitution of the right), and 40 (guarantee of a fair trial)". According to the Law No. 8194, dated 02.03.1997 ‘For the State of Public Emergency in Case of Grave Infringement of the Constitutional and Public Order’, as well as the Law ‘On Some Measures in the Context of the State of Emergency’, the specific restrictions on human rights and fundamental freedoms, entailed by these derogations from our international legal obligations, are as follows: 1. All armed rebels must hand over arms, munitions and explosives by March 3, 1997, 14.00 hours. After this deadline, the armed rebels in the battlefield will be shot without warning (Article 1). 2. All the gatherings in public places are forbidden (Article 6) 3. All activities of political, sport, cultural or trade union nature are forbidden (Article 6). 4. The free movement of people is forbidden during defined hours of the day (between 20.00 and 07.00 hours) (Article 7). 5. Illegal gatherings in public places shall be dispersed. In the event that it is impossible to carry out such dispersal by other means, the police units are entitled to use tear-gas, as well as firearms, to the extent indispensable to carry out their own duty according to the law (Article 6). 6. Limits are imposed on the freedom of press and information. Publication and distribution in the press and broadcasts on the radio of reports which stir up and call for violent actions against national security, the constitutional law, public security and the life of the individual are prohibited. Daily press and media are obliged to publish the full text of the official reports which are directly related to the state of emergency. Press organs are obliged to obtain an approval, prior to sale, of the material intended to be published, from the local staff responsible for execution of the state of emergency. The local staff has the right to suspend any publication which violates this provision (Article 4). ...” 27. By note verbale of 26 July 1997, which was registered at the Secretariat General on 24 October 1997, the Albanian Ministry of Foreign Affairs informed the Secretary General of the Council of Europe that the Government were withdrawing their notice of derogation under Article 15 of the Convention. The relevant parts of the note verbale read as follows. “The Ministry for Foreign Affairs of the Republic of Albania presents its compliments to the Secretary General of the Council of Europe and, referring to the content of Article 15.3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, has the honour of informing him that the People’s Assembly of the Republic of Albania, when adopting the Law No. 8225 of 24 July 1997 ‘On the lifting of the state of public emergency in the Republic of Albania’, decided to put an end to the state of public emergency in the whole territory of the country. As from that date, all the measures taken in application of the state of public emergency have ceased to have effect.” 28. The relevant parts of the Albanian Constitution read as follows. State bodies shall comply with judicial decisions.” 29. The relevant case-law of the Constitutional Court concerning the breach of an appellant’s right of access to court on account of the nonenforcement of a final court ruling has been described in detail in the case of Gjyli v. Albania, no. 32907/07, §§ 21–27, 29 September 2009. 30. The relevant parts of the CCP read as follows. “In the event that the receiver [of the summons] does not have a living abode, residence or temporary home in the Republic of Albania or has not provided an address or appointed a representative ..., he shall be notified of the [hearing] by way of posting a copy of the document at the tribunal of the location where the dispute shall be heard as well as on the notice board of the administrative entity where he used to reside and, when that is unknown, of that of his place of birth. In the event that Albania has entered into bilateral or multilateral agreements, the above-cited provision shall apply only in so far as the notification is not possible in one of the ways envisaged in those agreements.” “If the plaintiff or any of the parties do not attend either the preparatory meeting or the hearing after having been duly notified and without reasonable grounds, the court or the single judge shall decide to terminate the proceedings (vendos pushimin e gjykimit). ...” “Each party may summon to the trial of the case a person with whom he or she believes he or she has a shared interest in the case or from whom a guarantee or compensation may be requested if necessary for the completion of the case. .... A third party can be summoned when he or she has a known place of abode within the borders of the Republic of Albania and as long as the trial of the case is still pending at first instance.” “A party which has forfeited the right to appeal on reasonable grounds may submit a request to the court which adopted the decision for leave to appeal out of time. ...” The Court of Appeal may quash the decision of the first-instance court and remits the case for fresh examination in the event that: ... ç) the case was heard in the absence of parties to the proceedings, without having been informed of the date of hearing; d) the parties to the proceedings were improperly identified and determined; ...” “Execution of a decision may only be enforced on the basis of an enforceable title. Enforceable titles include ... (a) civil court’s decisions that have become final. ...” “A valid title shall be executed at the request of the creditor. A writ of execution shall be issued for this purpose. It is issued by the court which made the decision in the cases provided for in sub-sections (a) ... of the foregoing Article.” “The writ of execution shall be enforced by the bailiff at the request of the creditor ...” “A court decision or other valid title shall be enforced against the debtor’s immovable property by seizure of the property. The seizure shall be registered at the Office for Registration of Immovable Property for the area where the writ of execution was issued. The entry in the register shall indicate the type, nature and [a description of] at least three borders of the immovable property, its location and any mortgage or other property rights attached to it. A copy of the writ of execution shall be communicated to the debtor.” “Once the property has been seized, the bailiff’s office shall inform the debtor that the property will be sold [at auction], if he does not fulfil his obligation within ten days. ....” “The announcement for the sale at auction shall be posted at the bailiff’s office and at the site of the immovable property. ...” “The parties may apply to the court executing the decision in order to challenge an act or failure to act by the bailiff’s office, within five days of the said act or omission where the parties were present or summoned when the act was committed and in other cases from the date when they were notified or received knowledge of the act or refusal to act.” “The suspension of the enforcement, unless ordered by the court, as well as its discontinuation, shall be decided by the bailiff. An appeal may be lodged against such decisions to the first-instance court ...” 31. The Bankruptcy Act 1995, as in force at the material time, provided that bankruptcy proceedings were to be conducted in court (section 3). Were the proceedings to start on the strength of a legal action by the creditor, he would need to prove that the debtor had defaulted on payment. In any event, the debtor could also file a similar action (section 5). 32. During the proceedings, the court could question witnesses, summon experts and hear evidence from the debtor (sections 5 and 7), who was obliged to submit to the court, inter alia, an accurate list of all his assets and their corresponding value, a list of creditors with their names and addresses and the amount owed to each of them and a list of any debtors with the corresponding amounts they owed to him. The debtor assumed criminal responsibility for the veracity of the lists (section 6). 33. The opening of bankruptcy proceedings took place on the strength of a court decision, which would, inter alia, fix a time-limit by which all creditors could submit their claims and the respective sums in Albanian leks, state the grounds that gave rise to their participation in the bankruptcy proceedings as well as give their accord for the distribution of sums obtained from the bankruptcy proceedings (section 9). The district court would also decide to place the debtor under compulsory administration by appointing an administrator. 34. By virtue of the opening of bankruptcy proceedings, the debtor lost the right to possess and administer all his present and future property. Any civil and arbitration proceedings in which the debtor was a party were suspended on the initiation of bankruptcy proceedings. Judicial rulings given before the initiation of bankruptcy proceedings in respect of the enforcement of a court decision were no longer binding at the start of bankruptcy proceedings (section 11). 35. In the course of the discharge of his duties, the administrator acted under the supervision of the court, which was empowered to replace him, stating reasons (section 14). In accordance with section 16, the administrator could lodge a civil claim against the debtor’s legal actions in the event that the debtor had intentionally made the position of one of the creditors worse and when this was known to the third party; or if, in the year preceding the opening of the bankruptcy proceedings, the debtor had intentionally made [the creditors’] position worse in favour of other persons, in so far as this can be proved and in so far as the administrator was unaware of the disadvantage suffered. 36. The Bankruptcy Act 1995 provided for the possibility of drafting a restructuring plan (plani i riorganizimit), with a view to final liquidation of the debtor. Such a plan required the court’s approval (section 26-32). The administrator then proceeded with the liquidation of the debtor and the distribution of the sums collected to the creditors in accordance with the table of outstanding dues that had been approved by the court (section 32). 37. The Bankruptcy Act 1995 was repealed by Law no. 8901, dated 23 May 2002.

train

001-111657

ENG

AZE

CHAMBER

CASE OF ZULFALI HUSEYNOV v. AZERBAIJAN

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

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

4. The applicant was born in 1954 and lives in Baku. 5. On 22 January 1998 the applicant was issued with an occupancy voucher (yaşayış orderi) for a flat in a recently constructed residential building in Baku on the basis of the Baku City Executive Authority’s order of 19 January 1998. 6. At the same time, the applicant became aware that the flat was occupied by J. and his family, who were internally displaced persons (“IDP”) from Aghdam, a region under occupation of Armenian military forces following the Armenian-Azerbaijan conflict over Nagorno-Karabakh. 7. On an unspecified date in 1998, the applicant lodged a lawsuit with the Yasamal District Court asking the court to order the eviction of J. and his family from the flat. 8. On 7 July 1998 the Yasamal District Court granted the applicant’s request. The court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher of 22 January 1998 and, therefore, the flat was unlawfully occupied by J. and his family. No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within ten days after its delivery. 9. According to the applicant, J. and his family refused to comply with the judgment and the competent authorities did not take any measures to enforce it for many years. 10. According to the Government’s letter of 17 May 2012, the judgment in the applicant’s favour was enforced in April 2012. 11. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).

train

001-88957

ENG

LVA

CHAMBER

CASE OF BLUMBERGA v. LATVIA

Preliminary objection joined to merits and dismissed (ratione materiae);Preliminary objection joined to merits;No violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

6. On 19 April 1995 the applicant, who was born in 1939 and lives in Ventspils, was arrested by the Jelgava police and remanded in custody until 13 June 1995. During this period of time some of the applicant’s property stored in her house in Jelgava, where a café belonging to her was also located, and in her second house in Dobele, was stolen. Criminal proceedings were initiated in this connection. 7. On 23 May 1995 criminal proceedings in case no. 22546495 were initiated regarding the burglary in Jelgava. 8. On 25 May 1995 the Jelgava police decided to acknowledge the applicant as a civil claimant in criminal case no. 22546495, with a claim for 763 Latvian lati (LVL) (approximately EUR 1,090). 9. On 11 July 1995 another set of criminal proceedings, allocated case number no. 22564195, was initiated regarding the burglary in Jelgava. On the same date the Jelgava police decided to acknowledge the applicant as a civil claimant in criminal case no. 22564195, with a claim for LVL 6725.60 (approximately EUR 9,607). According to a copy of that decision, submitted by the applicant, the police investigator crossed out the above amount, putting LVL 12,103 (approximately EUR 17,290) instead. The applicant requested to be acknowledged as a civil claimant with a claim for that amount when she was questioned on 11 September 1995. 10. On 28 February 1997 the Jelgava police joined the two sets of criminal proceedings into one case, no. 22564195. 11. On 17 September 1997 a public prosecutor attached to the Zemgale District Court (“the Zemgale public prosecutor”) informed the applicant that, following her complaint to the Prosecutor General’s Office, an examination of the investigation in the criminal proceedings relating to the burglary of her property had been carried out. During the examination, serious infringements of the provisions of the Criminal Procedure Code had been detected. In that regard, according to the Zemgale public prosecutor, she had on 27 January 1997 requested the head of the Jelgava police to rectify the deficiencies indicated to him and to identify the police officers who had failed to protect the applicant’s property upon her detention, as required by Article 80 of the Criminal Procedure Code. An official investigation had been carried out into the failure to protect the applicant’s property and the criminal proceedings in respect of the burglary of the property. As a result, two police officers had been identified as responsible for the failure to protect the applicant’s property. One of them had been disciplined and the other’s professional conduct had been assessed by the professional attestation commission. 12. On 20 August 2000 the applicant wrote to the Zemgale public prosecutor, inquiring about the progress in the criminal proceedings. 13. On 26 September 2000 the Zemgale public prosecutor informed the applicant that her complaint in respect of lack of progress in the criminal proceedings was well-founded, since the Jelgava police had not carried out any investigative measures and the investigation in the criminal proceedings had been unlawfully delayed. According to the prosecutor, the head of the police at the Ministry of the Interior had been informed thereof on 25 September 2000. 14. On 20 January 2001 the applicant complained to the Prosecutor General about the inefficiency of the Zemgale public prosecutor, which had hindered the restitution of her stolen property. On 5 February 2001 the Prosecutor General informed the applicant that her complaint had been transferred to the Zemgale public prosecutor for examination. 15. On 13 February 2001, the Zemgale public prosecutor informed the applicant that the investigation in the criminal proceedings in case no. 22564195 was still in progress. She had requested the head of the Jelgava police to speed up the investigation and to carry out the instructions she had given the Jelgava police on 27 January 1997 by 25 February 2001. Thereafter, an additional examination of the conduct of the investigation was to be carried out. 16. On 12 May 2001 the applicant complained to the Prosecutor General about the lack of progress in the investigation in the criminal proceedings. 17. On 20 June 2001 the Zemgale public prosecutor confirmed that the applicant had been declared a civil claimant in the criminal proceedings in case no. 22564195, which were still ongoing. 18. On 19 July 2001 the Prosecutor General informed the applicant that her application of 12 May 2001 had been transferred for examination to the Zemgale public prosecutor on 21 May 2001. 19. On 23 July 2001 the Zemgale public prosecutor sent the applicant the decision of 20 June 2001, without answering in substance the applicant’s questions about the progress in the criminal proceedings. 20. On 24 July 2001 the Zemgale public prosecutor informed the applicant that both decisions declaring her a civil claimant had been sent to her. 21. On 11 December 2001 the Jelgava police, pursuant to Article 139 § 5 of the Criminal Code, decided to acknowledge the applicant as a civil claimant in criminal proceedings no. 22564195, with a claim for LVL 32,789.10 (approximately EUR 46,840). 22. On 5 May 2005 the applicant wrote to the Zemgale public prosecutor, inquiring about the progress in the criminal proceedings. 23. On 13 May 2005 the Zemgale public prosecutor informed the applicant that her inquiries concerning criminal proceedings no. 22564195 had been transferred to the Jelgava City public prosecutor, and those concerning criminal proceedings nos. 20517495 and 2503000802 (paragraph 33, below) to the Dobele District public prosecutor. 24. On 7 June 2005 the Jelgava City public prosecutor informed the applicant that criminal proceedings no. 22564195 were still ongoing. The Jelgava Police Department had been instructed to speed up the investigation. 25. On 30 June 2005 a police officer of the Jelgava police decided to transfer the criminal case to the public prosecutor of the City of Jelgava for prosecution. It had been established by the pre-trial investigation that between 19 April and 13 June 1995, during the applicant’s detention, R.Z., E.R., V.I. and I.B. had stolen and consumed food and alcoholic beverages, and stolen money, clothes, kitchen equipment and other items, which amounted to a total loss of LVL 32,798.10 (approximately EUR 46,841) to the applicant. R.Z., E.R., V.I. and I.B. had thus committed a crime under Article 139 § 5 of the Criminal Code. This decision was sent to the applicant on 1 July 2005. 26. On 8 July 2005 a prosecutor of the Prosecutor’s Office of the City of Jelgava brought a charge against I.B. for burglary in the amount of LVL 2,642 (approximately EUR 3,774). A preventive measure – prohibition on changing her place of residence – was imposed on her. 27. On 17 August 2005 a prosecutor of the Prosecutor’s Office of the City of Jelgava brought a charge against E.R. for burglary in the amount of LVL 2,622 (approximately EUR 3,746). 28. On 8 September 2005 a prosecutor of the Prosecutor’s Office of the City of Jelgava decided to terminate the criminal proceedings in case no. 22564195 because of a lack of sufficient evidence. It was stated, inter alia, that since during questioning the applicant had constantly increased the amount of the loss she had allegedly suffered, her statements in this respect should be treated with caution. It was established that during questioning I.B., E.R., R.Z. and V.I. had denied having burgled the applicant’s property and that it was impossible, on the basis of an assessment of the evidence, to discover what had been stolen from the applicant’s property, and in what circumstances. Besides, since the instigation of the criminal proceedings in 1995 no evidence had been obtained as to the persons responsible for the loss or theft of the applicant’s property. The prosecutor considered that the case should be terminated on the grounds that it was impossible to obtain further evidence and to prove any charges against named individuals. According to the information provided by the Government, the decision was sent to the applicant on 14 September 2005, and she was informed that it could be appealed against to the Zemgale Regional Public Prosecutor’s Office. The applicant contested that claim, stating that she had not received the decision. 29. On 28 June 1995 the Dobele police instituted criminal proceedings in case no. 20517495 in respect of the burglary of the applicant’s house in Dobele. 30. On 8 August 1995 the Dobele police acknowledged the applicant as a civil claimant for an amount of LVL 9,439 (approximately EUR 13,484). 31. On 28 February 1996 a public prosecutor of the Dobele District decided to terminate the criminal proceedings in part and to reject the applicant’s civil claim in part. It was established that the accused E.R. had confessed to having stolen a few of the items declared by the applicant as stolen and was thus liable for the amount of LVL 1,005 (approximately EUR 1,436). Taking into account that the applicant could not give details of all the stolen items and their value, the prosecutor decided that the loss suffered by her should be considered approximate and, pursuant to Article 208 § 2 of the Criminal Procedure Code, decided to terminate the criminal case against E.R. in part because of the lack of evidence and to reject the applicant’s civil claim in the amount of LVL 8,434 (approximately EUR 12,049) as unsubstantiated. 32. On 16 December 1996 a public prosecutor of the Dobele District decided to terminate the remainder of the criminal proceedings. She established that during the pre-trial investigation no evidence had been obtained to justify charging I.B. with the burglary. As to E.R., considering that he was serving a sentence imposed on him in another set of criminal proceedings on 25 November 1996, and was thus unable to commit new offences, the prosecutor decided to terminate the criminal proceedings against him in the remaining part. 33. On 10 December 2002 the head of the Zemgale Region Public Prosecutor’s Office quashed the decision of the public prosecutor of the Dobele District to reject the applicant’s civil claim in the amount of LVL 8,434 (approximately EUR 12,049) as unsubstantiated. The head prosecutor instructed that, at the pre-trial stage, it had to be checked whether the burglary could have been carried out by another person, and that the applicant herself should be questioned in detail as regards the allegedly stolen items, their description and value. The prosecutor ordered the initiation of a new criminal case, no. 2503000802, in respect of the theft of the applicant’s property in the amount of LVL 8,434 (approximately EUR 12,049). 34. On 31 May 2005 the Dobele District public prosecutor informed the applicant that criminal proceedings no. 20517495 had been terminated on 16 December 1996, pursuant to Article 208 § 4 of the Criminal Procedure Code; criminal proceedings no. 2503000802 (concerning the stolen property in the amount of LVL 8,434 (approximately EUR 12,049)) were still ongoing at the Dobele Police Department, and the perpetrator had not been identified. 35. According to a letter of the Prosecutor’s Office of the Dobele District, criminal case no. 2503000802 was transferred to the Dobele District police for pre-trial investigation on 7 January 2003. The prosecutor responsible for the supervision of the investigation examined the case on 1 July 2005. 36. According to the submissions of the Government, the investigation of the criminal case is still ongoing. 37. On 10 June 2001 the applicant filed a civil claim for damages against the State Police Authorities with the Rīga Regional Court, and asked to be exempted from court taxes because of her poor financial situation. According to the documents she submitted to the Court, she attached a copy of her pensioner’s certificate of 15 May 1996, stating that she received an old-age pension in the amount of LVL 35.91 (approximately EUR 50), and the replies of the Zemgale public prosecutor of 13 February 2001, 26 September 2000 and 17 September 1997 to her complaints. She requested the court to award her compensation in the amount of LVL 250,000 (approximately EUR 357,143) for her stolen property and for the non-pecuniary damage she had suffered because the Jelgava police had acted contrary to the requirements of Article 80 of the Criminal Procedure Code. 38. On 14 June 2001 a judge of the Civil Chamber of the Rīga Regional Court informed the applicant that she had requested exemption from paying court taxes without submitting any evidence that she was financially unable to do so. The judge further noted that she had not submitted any documents confirming the circumstances on which her claim was based. The judge set a deadline of 23 July 2001 for rectification of those deficiencies. 39. On 27 June 2001 the applicant amended her claim, stating that because the police had acted contrary to the requirements of Article 80 of the Criminal Procedure Code her rights guaranteed by Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention had been violated. She again requested exemption from court taxes, attaching a copy of her pensioner’s certificate and copies of the replies of the Zemgale public prosecutor of 26 September 2000 and 17 September 1997 to substantiate the claim. 40. On 29 June 2001 the judge of the Rīga Regional Court replied to the applicant that her amendments of 27 June 2001 were insufficient and that she should rectify the deficiencies by 23 July 2001. 41. On 15 July 2001 the applicant amended her claim by submitting a copy of the decision of the Jelgava police of 11 July 1995, which acknowledged her as a civil claimant and stated that in order to assess the value of the remainder of the stolen property she was to invite witnesses to give evidence. 42. On 13 August 2001 the judge of the Rīga Regional Court considered that the deficiencies indicated by him had not been rectified and, finding that the claim had not been properly submitted, returned it to the applicant without examination. 43. On 4 October 2001 the Civil Chamber of the Supreme Court, in response to the applicant’s ancillary complaint of 21 August 2001, upheld the decision of the Rīga Regional Court. The court considered that the applicant had failed to submit evidence as to her financial situation and to attach documents establishing the circumstances her claim was based on. The decision was final and not subject to appeal. 1. The Criminal Procedure Code (Latvijas Kriminālprocesa Kodekss), as in force until 1 October 2005 44. Article 80 stated that “if an arrested person had property or an apartment which was left unattended, the police, a public prosecutor or a court had to ensure its protection”. 45. Article 101 stipulated that a civil claim could be submitted by a person who had suffered damage as a result of a crime. The civil claim could be brought against the accused or a person who was vicariously liable for the acts of the accused (paragraph 1). The civil claim could be lodged upon initiation of a criminal case, during the pre-trial investigation, or with the court before the adjudication of the case (paragraph 2). If the court stayed the adjudication, the civil claim could also be lodged before the beginning of the adjudication at the subsequent court hearing (paragraph 3). A person had the right to lodge a civil claim by way of civil proceedings if the claim had not been brought in criminal proceedings or if the claim was not adjudicated due to the termination of the criminal case or a not guilty verdict (paragraph 7). 46. Pursuant to Article 102, a person who had suffered pecuniary damage as a result of a criminal offence could bring a civil claim against an accused or a person who was vicariously liable for the acts of the accused, which would be examined by a court in conjunction with the criminal case. Further, a person who had been acknowledged as a civil claimant by a decision of the police, a public prosecutor or a court was entitled to submit a complaint in respect of acts of the aforementioned authorities. 47. Article 140 provided that a person who had suffered damage as a result of a crime could be declared a civil party during the pre-trial investigation. 48. Pursuant to Article 208 §§ 2 and 4, a criminal case or a part of it was to be terminated if a charge had not been proved and it was impossible to obtain additional evidence, and if it had been acknowledged, because of changed circumstances during the investigation of the case, that an offence committed by a person had lost its element of public danger or that that person no longer posed a danger to the public. 49. A civil claimant could submit a complaint about acts of the police to a public prosecutor. The complaint could be submitted to the prosecutor directly or through the intermediary of the person against whom the complaint was brought. A complaint submitted to a police officer had to be forwarded together with his explanations to the prosecutor within twenty-four hours (Article 220). The prosecutor had to decide on the complaint within three days from its receipt and notify the complainant of the outcome. If the complaint was rejected, reasons therefore had to be stated. Decisions and acts of a public prosecutor could be appealed against to a higher prosecutor, who had to deal with that appeal in accordance with the aforementioned procedures (Articles 221 and 222). 50. Pursuant to Article 308, if a civil claim had been left without examination upon adjudication of a criminal case, it could be lodged de novo within civil proceedings. 51. Article 139 § 5 stated that aggravated robbery carried a sentence of imprisonment of from six to fifteen years, with confiscation of property. 52. According to Article 7 § 1, civil claims for compensation for pecuniary or non-pecuniary damage in criminal matters may be brought in accordance with the procedures prescribed by the criminal procedure law. 53. Article 96 § 3 states that a judgment in criminal proceedings is binding in civil proceedings to the extent that it concerns the determination of the offence for which a defendant has been sentenced, and the liability of the defendant. 54. The court shall stay court proceedings if adjudication of the case is not possible prior to the deciding of another matter which is required to be adjudicated in accordance with criminal procedure (the relevant part of Article 214). 55. Article 1635 stipulates that every wrongful act or failure to act per se shall give the person who has suffered damage the right to claim compensation from the wrongdoer, insofar as he or she may be held liable for such act or failure. 56. Everyone has a duty to compensate for losses he has caused through his acts or failure to act (Article 1779). A loss shall be understood to mean any deprivation which can be assessed financially (Article 1770). Losses may be either losses that have already been incurred, or losses that are expected to be incurred; they give rise to a right to compensation (Article 1771). A loss which has already been incurred may be a diminution of the value of the victim’s existing property or a decrease in his or her anticipated profits (Article 1772). 57. Every person has the right to defend his rights and lawful interests in a court and, in the event of unlawful interference with his rights, everyone has the right to adequate compensation (Article 92).

train

001-96457

ENG

FRA

CHAMBER

CASE OF GARDEL v. FRANCE

Remainder inadmissible;No violation of Art. 8

Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

5. The applicant was born in 1962 and is currently in prison in Montmédy. 6. Following a complaint lodged on 18 February 1997 by the parents of a young girl, S., the applicant was charged with the rape and sexual assault of a minor under 15 years of age by a person in a position of authority. 7. During the investigation he made several requests for additional investigative measures to be taken, which were refused by the investigating authorities. 8. On 15 April 2003 an investigating judge at the Bar-le-Duc tribunal de grande instance issued an order discontinuing the proceedings in respect of the sexual assault charges, as the limitation period had expired. The judge committed the applicant for trial on a charge of rape of a minor under the age of 15 by a person in a position of authority over the victim. 9. On 30 October 2003 the Meuse Assize Court sentenced the applicant to fifteen years’ imprisonment and stripped him of all his civil, civic and family rights for ten years. 10. The applicant did not appeal against that decision but lodged an application for a retrial, producing a number of documents which he claimed placed his guilt in doubt. 11. On 9 March 2004 Law no. 2004-204 established the national automated register of sex offenders (“the Sex Offenders Register”). 12. On 11 April 2005 the Criminal Cases Review Board rejected the applicant’s application for a retrial. 13. On 28 February 2005 the applicant applied to the Créteil Postsentencing Court to have his sentence suspended. On 17 June 2005 the application was refused on the grounds that, according to the expert medical reports, “the applicant’s survival is not in doubt, nor is his state of health incompatible in the long term with detention. Therefore, as matters stand, he does not meet the requirements of Article 720-1-1 of the Code of Criminal Procedure and is not eligible for the measure in question”. The court pointed out that the applicant’s sentence was due to run until 27 May 2019 and that his criminal record mentioned another conviction for sexual abuse of a minor under the age of 15 by a person in authority (a sentence of six years’ imprisonment and a judicial and social supervision order imposed by the Nancy Court of Appeal on 29 August 2002 for sexual assault of a minor). The court also took into consideration medical reports according to which the applicant suffered from congenital heart disease which made any physical activity impossible. The report advocated his placement under an enhanced prison regime with an individual cell, no exercise or physical activity, a salt-free diet and regular medication. The court also referred to a psychiatric expert report from November 2004 according to which the applicant’s psychological development “appears very limited in so far as he has failed to reflect on his own conduct. He has expressed no feelings of guilt or responsibility for the offences which he denies committing. A course of psychotherapy would help him develop more satisfactory relationships in the future with the people he comes into contact with”. 14. On 13 October 2005 the post-sentencing division of the Paris Court of Appeal upheld this judgment. 15. On 22 November 2005 the applicant was informed by a police officer from l’Haÿ-les-Roses police station that his name was being entered in the Sex Offenders Register on account of his conviction by the Meuse Assize Court, in accordance with the transitional provisions of the abovementioned Law of 9 March 2004. The official notification was worded as follows: “I, the undersigned, Mr Fabrice Gardel, hereby acknowledge that I have today been notified of my inclusion in the Sex Offenders Register on account of the [sentence] of imprisonment imposed on 30 October 2003 by the Meuse Assize Court, and that I am accordingly required, under Article 706-53-5 of the Code of Criminal Procedure, to: 1. provide proof of my address: ... Once a year either to the authority managing the register (the Ministry of Justice) ... or to my local police or gendarmerie station ..., during the month in which my birthday falls or during the month of January if my date of birth is not known or not established. ... I expressly acknowledge having been informed that: I have been finally convicted of an offence carrying a sentence of ten years or more. Accordingly, I am required to provide proof of my address by reporting in person every six months. ... I take note of the fact that if I leave the country my obligation to report in person will be suspended for the duration of my stay abroad but that I must continue to provide proof of my address by means of a registered letter with recorded delivery to the authority managing the Sex Offenders Register ... accompanied by documents certifying my address and signed by the local consular authority. 2. declare any change of address within fifteen days at the latest, in the same manner. I acknowledge having been informed: (i) that I must provide proof of my address for the first time within fifteen days of this notification, unless the latter is issued less than two months before the first day of the month of my birth, referred to above, or I am already required to provide proof of my address on an annual basis; (ii) that failure to comply with these obligations is punishable by a term of two years’ imprisonment and a fine of 30,000 euros; (iii) that any breach of these obligations will lead to an alert being issued to the judicial authorities and the police or gendarmerie which may result in my inclusion on the list of wanted persons and may be accompanied by a criminal prosecution; (iv) that, pursuant to Article R. 53-8-13, the proof of address and declaration of change of address provided for by Article 706-53-5 shall take the form of any document less than three months old in my name which gives proof of my home address, such as a bill or invoice; (v) that if the document produced refers to the address of another person, it must be accompanied by a statement written and signed by the latter confirming that I am staying at that address. I further acknowledge having been informed that I have the following rights: (i) under the Data Protection Act and Article 706-53-9, I may obtain a copy of all the information concerning me in the register by applying to the public prosecutor in whose district I am resident; (ii) if the decision forming the basis for my placement on the register was issued by a foreign judicial authority, I may apply to the public prosecutor at the Nantes tribunal de grande instance to have the information in the register rectified or deleted or to have the frequency of reporting reduced to once a year, in accordance with Articles R 53-8-27 et seq.” 16. The national automated register of sex offenders (“the Sex Offenders Register” – FIJAIS), which was established in 2004, is a criminal identification register similar to the national fingerprint database (FAED), the national genetic database (FNAEG) and the national criminal records (CJN), the last of which have been in existence the longest. An information paper on police registers tabled before the National Assembly on 24 March 2009 noted an upsurge in the number of such registers. The working party chaired by Mr Alain Bauer noted that there were around forty-five in 2008 compared with thirty-four in 2006, and that another dozen or so were “in the pipeline”. The Ministry of Justice is responsible for and manages the Sex Offenders Register. It is maintained by the National Criminal Records Department in Nantes, under the supervision of the judge in charge of the national criminal records. 17. The national automated register of perpetrators of sexual crimes was established by Law no. 2004-204 of 9 March 2004 on adaptation of the justice system to changing trends in criminal offending. It is aimed at preventing repeat sexual offences, making it easier to identify offenders and allowing them to be traced quickly at any time. A series of transitional measures lay down detailed arrangements for the placement on the register of persons who committed such offences prior to the entry into force of the above-mentioned Law. The provisions are applicable to persons who committed such offences before the date of promulgation of the Law but were the subject, after that date, of one of the decisions referred to in Article 706-53-2 of the Code of Criminal Procedure (see paragraph 18 below). They can also be applied to persons serving a custodial sentence before the promulgation of the Law (at the request of the public prosecutor). 18. The relevant provisions of the CCP read as follows: “The provisions of this Title shall apply to proceedings concerning the murder, whether or not premeditated, of a minor preceded or accompanied by rape, torture or acts of barbarity or for the offences of sexual assault or sexual abuse of a minor, living on the immoral earnings of a minor or paying a minor for sexual services ... These provisions shall also apply to proceedings concerning the crime of murder, whether or not premeditated, accompanied by torture or acts of barbarity, the crimes of torture or acts of barbarity and the crime of murder, whether or not premeditated, committed as a repeat offence.” “The national automated register of perpetrators of sexual or violent crimes shall constitute a database of personal information held by the Criminal Records Department under the authority of the Minister of Justice and the supervision of a judge. In order to prevent repeat offences of the kind referred to in Article 706-47 and to facilitate identification of the perpetrators of such offences, the information referred to in Article 706-53-2 shall be gathered, stored and communicated to authorised persons in accordance with the arrangements laid down in this Chapter.” “Subject to the provisions of the last paragraph of this Article, and in so far as they relate to one or more of the offences referred to in Article 706-47, details of an individual’s identity and home address or successive home addresses and, where applicable, other residences shall be entered in the register where the individual concerned has been the subject of: 1. A conviction, whether or not final, including conviction in absentia, or a declaration of guilt accompanied by an order dispensing him or her from sentence or adjourning sentence; 2. A decision, whether or not final, delivered under sections 8, 15, 15-1, 16, 16 bis and 28 of Ordinance no. 45-174 of 2 February 1945 on juvenile delinquency; 3. An agreed penalty scheme provided for by Article 41-2 of this Code, the implementation of which has been certified by the public prosecutor; 4. A decision discontinuing the proceedings or discharging or acquitting the person concerned on the basis of the first paragraph of Article 122-1 of the Criminal Code; 5. A criminal charge, accompanied by a court supervision order, where the investigating judge has ordered the entry of the decision in the register; 6. A decision of the same kind as those referred to above which was delivered by a foreign court or judicial authority and which, under the terms of an international convention or agreement, was notified to the French authorities or was enforced in France following the transfer of the convicted person. The register shall also contain information concerning the judicial decision forming the basis for placement on the register and information on the nature of the offence. The decisions referred to in points 1 and 2 shall be entered in the register on delivery. Decisions concerning the offences referred to in Article 706-47 which carry a sentence less than or equal to five years’ imprisonment shall not be entered in the register, except where expressly ordered by the court or, in the case of points 3 and 4, by the public prosecutor.” “Without prejudice to application of the provisions of Articles 706-53-9 and 7065310, the information referred to in Article 706-53-2 concerning an individual shall be deleted from the register on the death of the person concerned or on expiry of the periods laid down below, calculated from the date on which all the decisions entered in the register cease to have effect: 1. A period of thirty years in the case of a serious crime or a major offence carrying a sentence of ten years’ imprisonment; 2. A period of twenty years in all other cases. The information in question shall not be deleted as the result of an amnesty or rehabilitation, or under the rules relating to the removal of convictions from the criminal records. This information may not, by itself, be used as evidence of recidivism. Information entered in the register under points 1, 2 and 5 of Article 706-53-2 shall be deleted from the register in the event of a final decision discontinuing the proceedings, a final discharge or a final acquittal. Information entered under point 5 shall also be deleted in the event of the cessation or lifting of the court supervision order.” “All persons whose identity is recorded in the register shall be bound, as a security measure, by the obligations set forth in this Article. The person concerned shall be required, by means of a registered letter with recorded delivery addressed to the authority managing the register, or by registered letter with recorded delivery addressed to the local police or gendarmerie station, or by reporting in person, to: 1. provide proof of his or her address once a year; 2. declare any change of address within fifteen days at the latest. If the person concerned has been finally convicted of a serious crime or a major offence carrying a sentence of ten years’ imprisonment, he or she must provide proof of address every six months by reporting to the local police or gendarmerie station or the gendarmerie or police headquarters in his or her département of residence, or to any other department designated by the prefecture. Failure to comply with the obligations laid down in this Article shall be punishable by two years’ imprisonment and a fine of 30,000 euros.” “Any person whose identity has been recorded in the register shall be informed accordingly by the judicial authority, either in person or by registered letter to the last reported address. The person concerned shall be informed on that occasion of his or her obligations under Article 706-53-5 and the penalties he or she faces in the event of failure to comply. Where the person concerned is in detention, the information provided for by this Article shall be provided on his or her final release or prior to the first measure relaxing the conditions of the sentence.” “The information contained in the register shall be directly accessible, via a secure telecommunications system, to: 1. The judicial authorities; 2. The criminal investigation police, in the context of proceedings concerning the crimes of deliberately endangering human life, abduction or kidnapping or one of the offences referred to in Article 706-47, and for the purpose of taking the measures provided for in Articles 706-53-5 and 706-53-8; 3. The prefects and State administrative authorities listed in the decree provided for by Article 706-53-12, for the purposes of administrative decisions concerning recruitment, posting, authorisation, approval or permission in relation to activities or professions involving contact with minors and for the purpose of supervising the carrying-on of such activities or professions. ... The information in the register shall also be made available to mayors and presidents of the département councils and regional councils, via the prefects, for the purposes of the administrative decisions referred to in point 3 relating to activities and professions involving contact with minors and for the purpose of supervising the carrying-on of such activities or professions.” “In the manner specified in the decree provided for by Article 706-53-12, the authority managing the register shall inform the Ministry of the Interior directly of any new entry in the register or change of address, or if a person on the register has not provided proof of his or her address within the prescribed period. The Ministry shall forward the information without delay to the competent police or gendarmerie department. The police or gendarmerie may conduct all relevant checks and lodge whatever requests are necessary with the public authorities with a view to verifying or tracing the person’s address. If it transpires that the person concerned is no longer at the address indicated, the public prosecutor shall enter his or her name on the list of wanted persons.” “Persons who furnish proof of their identity shall be provided with all the information concerning them in the register, on application to the public prosecutor at the tribunal de grande instance for their place of residence.” “Persons whose identity is recorded in the register may request the public prosecutor to rectify or order the deletion of the information concerning them if the information is inaccurate or it is no longer necessary to conserve it in view of the purpose of the register, regard being had to the nature of the offence, the age of the person concerned when it was committed, the interval that has elapsed and the current personality of the person concerned. A request for information to be deleted shall be inadmissible where the information concerned (repealed by section 43 of Law no. 2007-297 of 5 March 2007, with effect from 7 March 2008) ‘remains in Bulletin no. 1 of the criminal record of the person concerned or’ concerns judicial proceedings which are still pending (section 43 of Law no. 2007-297 of 5 March 2007), ‘in so far as the person concerned has not been rehabilitated or the measure giving rise to the entry in the register has not been deleted from Bulletin no. 1’. If the public prosecutor does not order the rectification or deletion of the information, the person concerned may apply for this purpose to the liberties and detention judge. An appeal shall lie against the latter’s decision to the President of the Investigation Division. Before ruling on the request for rectification or deletion, the public prosecutor, the liberties and detention judge and the President of the Investigation Division may order whatever checks they deem necessary, including an expert medical report on the person concerned. If the information in the register concerns a serious crime or a major offence carrying a sentence of ten years’ imprisonment and committed against a minor, no decision to delete the information may be taken in the absence of such an expert report. ...” “The detailed arrangements for application of the provisions of this Chapter shall be laid down by decree of the Conseil d’Etat after consultation of the National Data Protection Commission. The decree shall specify, in particular, the circumstances in which the register shall record the enquiries relating to it and the occasions when it was consulted.” “A record shall be kept in the register for three years of information concerning entries and enquiries relating to it, specifying the status of the person or authority making the entry or enquiry. This information shall be accessible only to the judge in charge of the department maintaining the register or to persons to whom he or she gives express permission. Statistics may be compiled on the basis of this information.” 19. In its ruling no. 2004-492 DC of 2 March 2004, the Constitutional Council held as follows: “... the recording of a person’s identity in the [Sex Offenders Register] ... is designed ... to prevent repeat offences of this kind and to facilitate the identification of the perpetrators of such offences. It follows that placement on the register is not a sanction but a public-order measure.” (§ 74) The Constitutional Council further held, with regard to the entry of information in the register and its consultation and use: “... regard being had firstly to the safeguards provided by the conditions on the use and consultation of the register and the fact that the power to enter or delete personal data rested with the judicial authority, and secondly to the seriousness of the offences giving rise to the entry of personal data in the register and the rate of reoffending with this type of offence, the impugned provisions were such as to reconcile respect for private life and the protection of public order in a manner that clearly struck a fair balance.” (§ 87) Lastly, it held: “... the requirement for persons on the register to give periodic notice of their home address or the address where they are resident does not constitute a sanction, but rather a public-order measure aimed at preventing reoffending and facilitating the identification of offenders. The very purpose of the register makes it necessary to check the addresses of the persons concerned on an ongoing basis. The burden imposed on them in order to ensure that such checks are carried out does not constitute a non-essential [measure] for the purposes of Article 9 of the 1789 Declaration ...” (§ 91) 20. In a judgment of the Criminal Division of 12 March 2008, the Court of Cassation ruled on the nature of placement on the register (see also Cass. crim. 31 October 2006, Bull. crim. no. 267). It held as follows: “Whereas ... in ordering placement on the Sex Offenders Register, the Court of Appeal accurately applied section 216 of the Law of 9 March 2004, according to which the provisions concerning placement on the register apply to offences committed before the date of promulgation of the Law. This section is not in breach of the Convention provisions relied on, as placement on the Sex Offenders Register, which is merely a security measure and not a penalty, is not subject to the principle prohibiting the retrospective application of more severe provisions of substantive law. ...” The Court of Cassation has upheld the automatic nature of placement on the register in the case of offenders sentenced to more than five years’ imprisonment (Cass. crim. 16 January 2008). 21. In December 2008 this working party submitted a report to the Minister of the Interior, the Overseas Departments and Territories and the Territorial Authorities entitled: “Tightening procedures to improve the protection of freedoms”. According to the report, 20,222 names had been entered in the Sex Offenders Register when it was established in June 2005; by October 2008 the number of entries was 43,408. 22. Articles 768 to 781 of the CCP deal with the operation of the national criminal records. These record convictions imposed by the criminal courts, as well as some commercial, administrative and disciplinary convictions which entail incapacity. A person’s criminal record is divided into three headings. The information contained in the criminal record is provided in the form of bulletins. Bulletin no. 1 (Article 774 CCP) records all the files in the criminal record, in other words all the person’s convictions. It may be issued only to the judicial authorities. Bulletin no. 2 (Article 775 CCP) contains most of the convictions for criminal offences with the exception, in particular, of youth convictions, foreign rulings, convictions for minor offences and suspended sentences once the probationary period has expired. A request can be made to the judge for a conviction not to be entered in Bulletin no. 2 (although it will remain in Bulletin no. 1). This bulletin is made available only to certain administrative and military authorities (prefects, military authorities, heads of public companies, etc.) on specific grounds. Bulletin no. 3 (Article 777 CCP) records the most serious convictions for major offences, and especially custodial sentences of over two years. This bulletin is the only one of which the person concerned may obtain a copy. 23. The Criminal Code provides for a rehabilitation procedure for convicted individuals, enabling a conviction to be deleted from the criminal records before expiry of the statutory period (forty years). Article 133-1 of that Code states that rehabilitation erases the conviction. 24. Article 133-13 lays down the conditions for automatic rehabilitation: “A convicted individual who has not been the subject of a further criminal conviction within the periods set out below shall be automatically rehabilitated: ... 3. In the case of a single prison sentence not exceeding ten years or multiple prison sentences not exceeding five years in total, after a period of ten years calculated from the date on which the sentence ends or from the date of expiry of the limitation period. ...” 25. The CCP lays down the arrangements governing the judicial rehabilitation procedure: “During the lifetime of the convicted person, an application for rehabilitation may be made to the courts only by the person concerned or, if he or she is disqualified, by his or her legal representative. In the event of the person’s death and where the statutory conditions are met, the application may be pursued by his or her spouse, ascendants or descendants or may even be lodged by them, within one year of the person’s death.” “The application for rehabilitation may be made only after five years in the case of persons convicted of a serious crime ... This period shall be counted ... in the case of persons who have received a custodial sentence, from the date of their final release or, in accordance with the provisions of Article 733, third paragraph, the date of their conditional release where the latter was not revoked subsequently ...” 26. The rules governing the removal of an offence from the criminal records are as follows: “... Files concerning convictions which have been erased by an amnesty or have been overturned shall be deleted from the criminal records ... The same shall apply ... to files concerning convictions ... imposed more than forty years previously where there have been no further convictions for any category of criminal offence. The following shall also be deleted from the criminal records: ... 8. Convictions in respect of which the offender has been granted judicial rehabilitation, where the court expressly orders the removal of the conviction from the records in accordance with the second paragraph of Article 798.” 27. The 1981 Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”) defines “personal data” as any information relating to an identified or identifiable individual. The Convention provides, inter alia, as follows: “... Considering that it is desirable to extend the safeguards for everyone’s rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing flow across frontiers of personal data undergoing automatic processing; ... Personal data undergoing automatic processing shall be: ... b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c. adequate, relevant and not excessive in relation to the purposes for which they are stored; ... e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. ... Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.” 28. Recommendation No. R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector (adopted on 17 September 1987) provides, inter alia, as follows: “2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation. ... Principle 3 – Storage of data 3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law. ... Principle 7 – Length of storage and updating of data 7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.” 29. In March 2004 the Senate of the French Republic published a “Comparative law study” (no. 133) concerning the treatment of sexual offences committed against minors. The report stated that “a sex-offenders register exists only in England and Wales”. In Germany, there is no Federal register but two Länder (Bavaria and Bremen) have their own registers. The Bavarian register, known as HEADS (Haft-Entlassenen-Auskunfts-Datei-Sexualstraftäter), can be accessed only by police officers and judges. In the United Kingdom, data concerning offenders sentenced to more than thirty months’ imprisonment are kept indefinitely and there is no possibility of having the data deleted (Sexual Offences Act 2003, section 82).

train

001-103312

ENG

SVK

CHAMBER

CASE OF AYDEMIR v. SLOVAKIA

Violation of Art. 5-4 and 5-5

Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

5. The applicant was born in 1955 and lives in Sontheim an der Brenz (Germany). 6. On 25 November 2003 the applicant was charged in Slovakia with blackmail within the meaning of Article 235 of the Criminal Code (Law no. 140/1961 Coll., as applicable at the relevant time). 7. The charge was based on the suspicion that the applicant had sent a number of text messages from a German mobile telephone number to A. in Slovakia which contained serious threats that he would harm and kill her and their child. 8. On 10 March 2004 the applicant was handed over to the Slovakian authorities to be prosecuted in Slovakia. He was subsequently detained in Slovakia pending trial there (see below). 9. On 22 November 2004 the Levice District Court (Okresný súd) found the applicant guilty as charged and sentenced him to two years' imprisonment, suspended for thirty months. The applicant waived his right of appeal and, on the same day, the judgment became final and binding and the applicant was released. 10. In so far as can be established from the applicant's submissions and the content of the documents in the case file, on 11 March 2004 a single judge of the District Court gave an order (uznesenie) for the applicant to be detained pending trial. The order was upheld following an interlocutory appeal (sťažnosť) by the applicant examined by the Nitra Regional Court (Krajský súd) on 20 May 2004. The decision on the appeal was served on the applicant's lawyer on 5 August 2004. 11. On 5 October 2004 the applicant lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. The applicant relied on Article 5 of the Convention and contended that his detention was unlawful and arbitrary since there was neither any “reasonable suspicion” with a basis in admissible evidence against him nor sufficient reasons to detain him. The applicant also argued that the impugned decisions lacked adequate reasoning and that the proceedings on his interlocutory appeal had not been speedy. He sought, inter alia, that the decision of 20 May 2004 be quashed, that he be released and that the Regional Court be ordered to determine his interlocutory appeal anew. 12. On 22 June 2005 the Constitutional Court declared the complaint admissible. 13. In a written submission of 31 August 2005 the applicant, inter alia, requested for comment a copy of any observations that the District Court and the Regional Court, as the defendants in the proceedings before the Constitutional Court, might have submitted in reply to his complaint. 14. On 15 February 2006 the Constitutional Court gave a judgment (nález) in which it found that the Regional Court had violated the applicant's rights under Article 5 § 4 of the Convention in that it had failed to provide adequate reasoning for its decision of 20 May 2004 and in that the proceedings on the applicant's interlocutory appeal had not been speedy. 15. The Constitutional Court quashed the decision of 20 May 2004. It observed that the applicant had meanwhile been released. The part of his constitutional complaint, which was aimed at his release and at a fresh examination of his interlocutory appeal, had therefore become moot. Nevertheless, while accepting that the applicant had sustained non-pecuniary damage, the Constitutional Court did not award him any just satisfaction on the ground that the finding of a violation of the applicant's rights was sufficient redress for him. However, the Constitutional Court allowed a part of the applicant's claim for legal costs 16. The Constitutional Court took into account observations made in reply to the applicant's complaint by the District Court and the Regional Court but made no mention of the part of the applicant's complaint which concerned the substantive aspects of his detention. 17. The judgment of the Constitutional Court was served on the applicant through the intermediary of his lawyer on 6 July 2006. No appeal lay against it. 18. In so far as can be established from the applicant's submissions and the content of the documents in the case file, on 17 May 2004 the applicant requested release, offered a pledge, under Article 73 § 1 (b) of the Code of Criminal Procedure (Law no. 141/1961 Coll., as applicable at the relevant time) (“the CCP”), that he would live in accordance with the law and, as an alternative, applied for bail under Article 73a of the CCP. 19. By law the request fell to be determined first by the regional prosecutor, who dismissed it and on 3 June 2004 forwarded it ex officio to the District Court for judicial determination. 20. The request for release was then dismissed in turn by a three-judge bench of the District Court on 26 July 2004 and, on an interlocutory appeal by the applicant, by the Regional Court on 28 October 2004. The decision on the appeal was served on the applicant on 20 December 2004. 21. The applicant challenged the decisions and various aspects of the procedure by way of two complaints under Article 127 of the Constitution. 22. On 10 January 2006 the Constitutional Court declared inadmissible the complaint by which the applicant had mainly challenged the length of the proceedings in respect of his request for release, in so far as these proceedings had taken place before the public prosecution service and the District Court. The Constitutional Court found that any possible delays on the part of the public prosecution service had been insignificant and that, in so far as the District Court was concerned, the complaint was manifestly ill-founded on the ground that, at the time of its introduction with the Constitutional Court, the request for release was no longer pending before the District Court, which was why the applicant was no longer in need of protection by the Constitutional Court. The decision of the Constitutional Court was served on the applicant on 21 April 2006. 23. On 23 August 2006 the Constitutional Court declared inadmissible as manifestly ill-founded a part of the applicant's outstanding constitutional complaint, which concerned the fact that the decision of 26 July 2004 had wrongfully been made by a bench whereas the body authorised to make it was a single judge. The Constitutional Court declared admissible the remainder of the complaint, as specified below. The decision was served on the applicant on 30 October 2006. 24. In a judgment of 21 June 2007 the Constitutional Court found that there had been a violation of the applicant's rights under Article 5 §§ 1, 3 and 4 of the Convention, in that the Regional Court had failed to provide the applicant with a copy of the observations made by the prosecution service in reply to the applicant's request for release, combined with the fact that it had also failed to hear the applicant in person, rule on all claims in the appeal and provide adequate reasoning for its decision. Moreover, the proceedings before both the District Court and the Regional Court had not been “speedy”. In reaching this last conclusion the Constitutional Court observed that, prior to the ordinary court's involvement in deciding on the applicant's request for release, his request had been examined by the public prosecution service. The Constitutional Court found no issue in the length of the proceedings before the public prosecution service. 25. The Constitutional Court held that there was no point in quashing the decision of the Regional Court in view of the fact that the applicant had meanwhile been released. 26. The applicant was awarded 100,000 Slovakian korunas (SKK) in just satisfaction for non-pecuniary damage and the reimbursement of legal costs. The judgment was served on the applicant's lawyer on 17 August 2007. 27. Until 30 June 2004 State liability for damage caused by decisions concerning pre-trial detention was governed by Chapter (hlava) 2 of Part (časť) 1 of the Act on State Liability for Damage Caused by a State Body's Decisions or Erroneous Official Action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act 1969”). 28. Persons deprived of their liberty had a claim against the State for damages when the criminal proceedings against them were dropped or they were acquitted (section 5(1)). However, such compensation was excluded when the persons concerned were responsible for their own detention, in particular when they had tried to abscond or had otherwise given rise to the facts on which the decision concerning their detention was based. 29. Section 18(1) rendered the State liable for damage caused in the context of carrying out functions vested in public authorities resulting from wrongful official action of persons entrusted with the exercise of those functions. An award of compensation could be made when the plaintiff showed that he or she had suffered damage as a result of the wrongful official action of a public authority, quantified its amount, and showed that there was a causal link between the damage and the wrongful action in question. 30. The State Liability Act 1969 was traditionally interpreted and applied as not allowing for compensation to be awarded for non-pecuniary damage unless it was related to the deterioration of a person's health (see, for example, Pavletić v. Slovakia, no. 39359/98, § 55, 22 June 2004, and Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001). 31. By its judgment of 31 May 2007 in an appeal on points of law (no. 4Cdo 177/2005) concerning an action for damages under the State Liability Act 1969, the Supreme Court upheld the view that neither that Act nor an action for protection of personal integrity provided a legal basis for awarding compensation in respect of non-pecuniary damage caused by unlawful detention. The State Liability Act 1969 was, however, to be interpreted in line with Article 5 § 5 of the Convention which presupposed compensation for non-pecuniary damage and, pursuant to Article 154c § 1 of the Constitution, prevailed over the statutory text. This line of reasoning was followed in judgments of the Banská Bystrica Regional Court of 26 March 2009 and the Nitra Regional Court of 26 February 2010 when deciding on appeals nos. 12Co 5/2009 and 6Co 237/2009. 32. In June 2002 the Minister of Justice submitted to the Government a draft bill providing for a new legislative framework for official liability. The bill was accompanied by an introductory report (predkladacia správa) in which the Minister observed, inter alia, that the old State Liability Act had been on the statute book since 1969 and that, owing to subsequent changes to the social system and the adoption of the Convention, there was a new understanding of the concept of State liability for damage, which called for the introduction of new legislation. 33. The bill was later submitted to Parliament with an explanatory report, the relevant part of which stated that it was necessary to extend the current concept of the right to damages to incorporate just satisfaction in respect of non-pecuniary damage as well as pecuniary damage. The purpose of the proposed Act was, inter alia, to render the mechanism of compensation for damage caused by public authorities more effective and thereby reduce the number of cases in which claimants were obliged to seek redress before the European Court of Human Rights. 34. The bill was adopted with effect from 1 July 2004 (Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci) and replaced the State Liability Act 1969. 35. The right to compensation for damage caused by a decision concerning detention on remand (väzba) is vested in the person who was detained on remand provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)) or he or she has been acquitted (section 8(5)(b)) or the matter has been referred to another authority (section 8(5)(c)). 36. However, no such right arises when the person concerned himself or herself gave cause to the detention on remand (section 8(6)(a)). 37. The State is also liable for damage caused by wrongful official action which comprises, inter alia, a public authority's failure to take action within the time-limit set, inactivity or any other unlawful interference with rights and legally recognised interests of individuals and legal entities (section 9(1)). 38. The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage (section 9(2)). 39. Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, nonpecuniary damage. 40. The Act applies only to damage caused by decisions and wrongful official action occurring after it entered into force (section 27(1)). 41. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial on charges of 2005 that had ended with their acquittal with final and binding effect in 2006. On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant's appeal. 42. On 14 October 2009 the Bratislava Regional Court granted an appeal (case no. 2Co 238/2008) in an action brought by an individual against the State under the State Liability Act 2003 for damages and awarded him an amount of money in compensation for non-pecuniary damage caused by detention on remand in 2005 in the context of a criminal trial on charges of the same year that had ended with his acquittal with final and binding effect in 2006. 43. In a judgment of 17 August 2009 (in case no. 19C 47/2006) the Bratislava District Court granted an action for damages by an individual against the State under the State Liability Act 2003 and awarded the claimant an amount of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned the extension by a decision of 12 October 2004 until 28 April 2005 of the claimant's detention pending trial. The action was preceded by a judgment of the Constitutional Court of 19 October 2005 (in case no. I. ÚS 65/05) in which the Constitutional Court had found a violation of the claimant's rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court had been unable to award the claimant damages as he had made no claim to that effect.

train

001-110236

ENG

ESP

ADMISSIBILITY

GUTIERREZ DORADO AND DORADO ORTIZ v. SPAIN

Inadmissible

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

1. The applicants, Mr Antonio Gutiérrez Dorado and Ms Carmen Dorado Ortiz, are Spanish nationals who were born in 1952 and 1927 respectively and lived in Malaga. They were represented before the Court by Mr F.J. Leon Diaz, a lawyer practising in Sarajevo, and Mr P. Troop, barrister in London. 2. On 27 August 2010, the second applicant died. On 5 October 2010, the first applicant informed the Court that he wished to pursue the application both on his behalf and on behalf of his late mother, the second applicant. 4. In July 1936, Mr Dorado Luque, who was the grandfather of the first applicant and the father of the second applicant and a Member of the Spanish Parliament belonging to the socialist party (“PSOE”), was forcibly taken away by military forces in circumstances that have not yet been fully established. On 18 July 1936, he was travelling on a train from Madrid to Malaga. Armed forces took him away with two other persons (another Member of Parliament and the British consul in Malaga). They were transferred to the garrison of “San Rafael” in Cordoba. The British Consul was immediately released. Mr Dorado Luque and the other man were detained until at least 28 July 1936 because Mr Dorado Luque’s signature appears as a witness on the death certificate of another detainee who apparently died in the garrison (Joaquín Garcia-Hidalgo Villanueva, a journalist and ex-Socialist Member of Parliament). 5. The applicants have no reliable information as to their relative’s fate after 28 July 1936. 6. In early August 1936 a dead body was discovered which had documents with Mr Dorado Luque’s name in the pockets. The autopsy stated that he died “as a result of firearm injuries with serious wounds in the brain and liver”. The dead body was registered in the obituary book as Mr Dorado Luque. On 5 August 1936, the civil registry judge decided that there was insufficient evidence to conclude that the corpse was that of Mr Dorado Luque and made an entry in the civil registry of Cordoba that the body was that of an “unknown man”. 7. On 15 October 1977, after the death of Francisco Franco, an Amnesty Law was passed by the newly established Spanish Parliament which granted immunity from prosecution to everyone who had committed any offence for political reasons prior to 15 December 1976. 8. In 1979, the applicants assisted Mr Dorado Luque’s wife, Josefa Ortiz Lara (their mother and grandmother respectively) in the proceedings to obtain official confirmation of Mr Dorado Luque’s disappearance, a necessary procedural step before Mrs Josefa Ortiz Lara could obtain her widow’s pension in accordance with the applicable law. Spanish authorities dismissed her request for widow’s pension arguing that she could not be entitled to widow’s benefits as there was no evidence of her husband’s death in the civil registry books. 9. In 1981, Mrs Josefa Ortiz initiated a procedure for voluntary declaration of death before the courts of Malaga. The procedure lasted until 1993. On 10 March 1993 the first instance court no. 1 of Malaga, after confirming that Mr Dorado Luque had disappeared and that his fate and whereabouts were unknown, ordered that his death be recorded in the civil registry books. The judge established 30 July 1936 as the date of death. Mrs Josefa Ortiz was finally entitled to perceive her widow’s pension. 10. On 22 May 2006, the second applicant brought a criminal complaint before the Juzgado de Instrucción no. 2 of Cordoba (investigating Judge). She complained about the abduction and possible murder of Mr Dorado Luque in 1936 amounting to war crimes for which there were no statute of limitations. On 11 August 2006, the investigating Judge ruled against the applicant stating that the facts complained of amounted to a “hypothetical simple murder” which was subject to a statute of limitations of 20 years under the Criminal Code. As to the possibility that war crimes or crimes against humanity could not be time-barred, the Judge said that this could only apply after 2003 when the criminal code was amended in that sense and that the new rule could not be retrospectively applied to crimes which had already been time-barred by then. 11. The second applicant appealed to the Audiencia Provincial of Cordoba. On 16 October 2006, the Audiencia Provincial dismissed the appeal and confirmed the decision of the investigating Judge. The appellate court stated that the current constitutional regime prevented the prosecution of crimes committed during the Civil War since such claims would be contrary to the conciliatory nature of the Spanish constitutional framework and would only serve at “reviving old wounds or remove the embers of civil confrontation”. 12. The second applicant filed an amparo appeal against this decision before the Constitutional Court. On 14 April 2008, the Constitutional Court declared the appeal inadmissible for being devoid of constitutional content. 13. The second applicant, on 14 December 2006, together with several victims’ associations, filed a complaint before the Audiencia Nacional in Madrid. They complained that their relatives had suffered systematic enforced disappearances as well as possible systematic killings as part of a deliberate and calculated plan to eliminate a sector of the population. On 28 August 2008, the Audiencia Nacional’s Investigating Judge no. 5, in a preliminary investigation, ordered several public and private institutions to submit information on individuals disappeared after 17 July 1936 as a result of the Civil War and the subsequent Franco regime. 14. On 16 October 2008, the Investigating Judge issued a ruling accepting jurisdiction, in so far as the crimes had been committed against high-level national institutions and the form of Government (military rebellion of 1936 and the subsequent enforced disappearances). The ruling stated that all the facts complained of were not to be considered in isolation but rather within the wider context of the planned, massive repression by the Franco regime which began on 18 July 1936 against political opponents, carried out in a systematic manner which could amount to crimes against humanity as provided by the Spanish Criminal Code (Article 607 bis of the Criminal Code in force). The Investigating Judge further pointed out that the practice of enforced disappearances was used systematically to make it impossible to identify the victims and therefore prevent any judicial action against the perpetrators. He further noted that the whereabouts and fate of thousands of people that had been detained by the authorities were still unknown. These were continuous crimes because no information had been given to the families of the disappeared. The distress and anguish suffered by the relatives of the victims who still did not know the whereabouts and fate of their beloved ones amounted to a violation of Article 3 of the Convention (with reference to Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001IV). 15. The Public Prosecutor appealed against the Investigating Judge’s decision, requesting the closure of the proceedings. 16. On 7 November 2008, the plenary of the Audiencia Nacional (criminal division) ordered all proceedings related to exhumations of mass graves to be suspended until final decision. 17. On 18 November 2008, the Investigating Judge no. 5 issued a decision relinquishing jurisdiction and advising the complainants to pursue their complaints before provincial courts. After receiving evidence that all the officials suspected (including Francisco Franco) had died, he declared their criminal responsibility extinguished. Complaints for the same facts alleged against other possible suspects would fall within the jurisdiction of the territorial courts competent in respect of the different mass graves (among which the territorial courts of Cordoba). In its decision, the Investigative Judge reiterated that these crimes should be prosecuted as the continuing crime of enforced disappearance and that there could be no application of the statute of limitations. He pointed out that the lack of official ex officio investigation for many years coupled with the numerous obstacles introduced by the Public Prosecutor to the opening of an investigation was in conflict with the ECHR and the PACE resolution 1463 of 3 October 2005 on enforced disappearances. 18. On 2 December 2008, the plenary of the Audiencia Nacional (criminal division) declared its lack of jurisdiction to investigate these crimes. The Audiencia Nacional noted that the crime of military rebellion had never fallen within its jurisdiction. 19. The family of Mr Dorado Luque initiated several parallel initiatives to the judicial procedures to clarify his disappearance. On 7 June 2006, the second applicant sent a petition to the competent military tribunal requesting information about the detention and whereabouts of Mr Dorado Luque. On 4 July 2006, the military tribunal responded stating that they had no information about him. 20. On 8 August 2007, the Cordoba Municipal Council dismissed the applicants’ petition to permit the exhumation of the body of Mr Dorado Luque from a mass grave identified in a pit of the cemetery in Cordoba. The local authorities argued that there were 39 tombstones above the mass grave and they had no authorization to remove them from the next of kin of the individuals buried there. 21. On 12 September 2007, pursuant to a petition by the applicants, the prison authorities of Cordoba issued a certificate confirming that Mr Dorado Luque had been detained there from 19 to 26 July 1936. The certificate stated that the reasons for the detention were “unknown” and that he was released upon orders from the military commander of Cordoba and surrendered to the Guardia Civil on 26 July 1936. 22. On 3 October 2008, the first applicant privately hired the services of forensic experts. In accordance with the Historical Memory Law (Law enacted in 2007), the first applicant was granted public funds (EUR 19,686.40) by the Ministry of the Presidency to assist in the process of searching and recovering the remains of his grandfather. The forensic experts located a mass grave in the cemetery of “La Salud” in Cordoba where allegedly the corpse of Mr Dorado Luque might be buried according to the 1936 inscription in the cemetery obituary book. Although the Audiencia Nacional’s Investigative Judge no. 5 had issued a specific order to the courts in Cordoba stating that the forensic works regarding the exhumation of Mr Dorado Luque were authorized, the Municipal Council of Cordoba issued an order to suspend all works. The forensic works have been suspended since then. 23. On 30 November 2009, the Ministry of the Presidency issued a decision denying the granting of further funds for the exhumation of the remains of Mr Dorado Luque. 24. It is submitted by the applicants that provincial courts, including the courts in Cordoba, are dismissing complaints by individuals disregarding the arguments of the Audiencia Nacional’s Investigating Judge no. 5 in its decision on relinquishment.

train

001-85231

ENG

CZE

ADMISSIBILITY

DVORAK v. THE CZECH REPUBLIC

Inadmissible

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

The applicant, Mr Marek Dvořák, is a Czech national who was born in 1982 and lives in Ustí Nad Labem. He was represented before the Court by his mother, Ms J. Vacková. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 November 1989, the Ústí nad Labem District Court (okresní soud) ordered the applicant’s father to pay monthly alimony of CZK 400 (EUR 15.30) to his mother. On 27 November 1992 the applicant’s mother, acting on behalf of her son, requested the court to increase the monthly alimony to be paid for her son’s needs. In January 1994 the applicant’s father stopped paying the alimony. On 24 January 1996 the applicant’s mother renewed her request to increase the monthly alimony. On 16 May 2000 the applicant reached the age of majority and could, therefore, act before the court in person. On 23 July 2003 the District Court obliged the applicant’s father to pay, within three days of the coming into force of the judgment, the outstanding alimony in the amount of CZK 250,800 (EUR 9,592) which covered the period from 1 January 1994 to 31 July 2003, finding that this was necessary to ensure the upbringing of the applicant. On 29 August 2003 it rectified the amount of the outstanding alimony to CZK 157,800 (EUR 6,035). On 3 December 2003 the Ústí nad Labem Regional Court (krajský soud), upon the applicant’s appeal of 15 October 2003, amended the District Court’s judgment ordering the applicant’s father to pay, within three days of the coming into force of the judgment, CZK 179,400 (EUR 6,861), being the outstanding alimony for the period from 1 January 1994 to 30 November 2003. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).

train

001-68534

ENG

GBR

ADMISSIBILITY

HEADLEY AND OTHERS v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The first applicant, Mr Prince Charles Headley, is a Jamaican national, who was born in 1970 and is currently detained in Manchester. The second applicant, Akeem Headley, is a Jamaican citizen, born in 1991 who currently lives in Sheffield. The applicants were represented before the Court by Mr J. Dickinson, a solicitor practising in Sheffield, and Hugh Southey of Counsel. The respondent Government were represented by Ms. E Wilmott, Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant claims that he ran a successful record promoting business in Kingston, Jamaica which, he alleges, drew the attention of gangs, who demanded to become involved. When he refused to continue sharing profits with the gang, on 11 August 1993 the first applicant was shot in the face by gang members and was admitted to hospital suffering with paralysis of the left side of his face. On 12 October 1993 gang members forced their way into his home in the early morning and shot at the applicant and his girlfriend, Sandra Satchell. The first applicant was readmitted to Kingston Hospital at 7-30 a.m. with multiple gun shot wounds, to the right jaw-bone, the left forearm and right arm, to the right “axillary fold”, the tip of the right shoulder and to the right side of his chest. One of the bullets intended for him hit Ms Satchell, who was fatally injured and died, aged 25, on 13 October 1993. The first applicant alleges that he had to be kept under police protection in hospital, and that at one point gang members attempted to enter the hospital to kill him, in order to destroy evidence relating to Ms Satchell's murder. One of the gang members, a cousin of Ms Satchell, was subsequently convicted of a firearms offence and sentenced to a determinate period of imprisonment. According to the first applicant, he has now been released from prison. The first applicant did not give evidence at the trial. In January 1994 the first applicant, whose mother is a British citizen, entered the United Kingdom on a six months medical visa, to allow him to gain treatment for his gunshot injuries. This visa was subsequently extended until August 1995. In 1996 the first applicant visited Jamaica to see his grandfather, who was terminally ill. In 1997 he again travelled to Jamaica, for his grandfather's funeral. He claims that he was shot at by gang members, and had to return to the United Kingdom after a stay of only six days. He has not been back to Jamaica since. The first applicant claims he set up a business in the United Kingdom importing clothing from continental Europe. He has been married twice in the United Kingdom. On the basis of his first marriage in June 1995 he was granted, on 17 April 1996, leave to remain for twelve months. The marriage broke down – although it produced a daughter (born 9 June 1996), with whom he still has some contact – and he did not apply for indefinite leave to remain. The first applicant claims that in 1996 he started a relationship with the C. The couple had a child together, R, born on 10 December 1997. Although they were married on 24 February 2003, it does not appear that their relationship was continuous in the meantime. On 27 May 1998 the applicant was joined from Jamaica by his son Akeem, the second applicant, who was born on 2 November 1991, and is the younger son of Ms Satchell. His older brother still lives in Jamaica. Upon arriving in the United Kingdom the second applicant was given six months' extended leave to remain. The first applicant claims that the second applicant lived with him until he was imprisoned. However, it is not clear who else was living with the first applicant at the time. At the time of his arrest in January 1999 the first applicant said he was living with a girlfriend by the name of “Angela Smith”. The first applicant appears to have remained in prison from the time of this arrest in January 1999 until the time of his trial in January 2000. On 31 January 2000 the first appellant was convicted of conspiracy to import a Class A drug and sentenced to seven years' imprisonment and a GBP 9,000 confiscation order. He had made several trips to and from Amsterdam, one of them in the company of a woman who was arrested when re-entering the United Kingdom with 247 grams of cocaine hidden in her vagina. The first applicant had three previous convictions, namely two counts of assault on a police officer, for which he was sentenced in September 1997 to two months' and four months' imprisonment, and one offence of affray, for which he was sentenced in February 1998 to four months' imprisonment. It is not clear whom the second applicant lived with while the first applicant was in prison. On 22 September 1999 a person by the name of Maria Smith made an application for indefinite leave to remain on behalf of the second applicant. In that application she described herself as the second applicant's “stepmother”. On 9 June 2000, Sheffield City Council recorded in a social work assessment that the second applicant was living with a “family friend”. However, it is accepted by the Government that by the time of this application to the court, in November 2003, the second applicant was living with C and R. The trial judge did not recommend that the applicant be deported, but the Secretary of State nonetheless, because of the drugs conviction, made a deportation order against him on 13 February 2002. The first applicant appealed against this decision and claimed asylum, on the basis that he would risk violence from gang members if returned to Jamaica. On 13 December 2002 the Secretary of State decided to refuse asylum and to refuse to revoke the deportation order. On 2 June 2003 the decision was made to give directions for the first applicant's removal. The first applicant appealed against these decisions under Part 4 of the Immigration and Asylum Act 1999 (see below). His appeals were dealt with jointly and refused by an adjudicator on 25 September 2003, after a hearing at which the first applicant represented himself. The first applicant did not seek permission to appeal that decision to the Immigration Appeal Tribunal. On 2 February 2004 the Government set directions for the removal of the first applicant on 12 April 2004. The first applicant was nominally released from imprisonment on 12 February 2004 but was immediately detained by the immigration authorities pending deportation. However, the deportation was stayed pending the outcome of this application and on 11 June 2004 the first applicant was granted bail on condition that he stay with C. Around this time the first applicant discovered that C was in a relationship with another man. It was alleged that he made violent threats against this other man and on 16 June 2004 he was remanded back into custody on charges of possessing an illegal firearm and making unlawful threats. These charges were subsequently dismissed. However, C has since indicated that she no longer wishes to have contact with the first applicant. When the first applicant returned to prison, in June 2004, the second applicant moved in with C's brother, S, S's partner and their daughter. He has lived there ever since. S has indicated that the second applicant can stay there “forever – or as long as he wants”. The Government have not yet made any decision as to whether or not they intend to remove the second applicant. The applicants have submitted various reports in relation to the second applicant. A letter from the head teacher of his junior school states that he has slight learning difficulties and would find it difficult to adjust to any further changes in his life. In September 2003 the second applicant started at secondary school. A letter from his current head teacher, dated 19 February 2004, states that the second applicant has behaved aggressively at school. However, according to S's witness statement, dated 31 July 2004, the second applicant's behaviour at school “stabilised” after he moved in with S's family in June 2004. Two reports were prepared in connection with the present application by Ms Andrea Pecherek, a chartered psychologist. The first report appears to have been based on various false assumptions, such as that the second applicant lived as part of a “nuclear family” with the first applicant and C for four years (between 1996 and 2000). The second report, dated 16 October 2004, contains the following conclusions: (1) there were two consistent factors in the second applicant's life: his father and his black British identity; (2) it is in the second applicant's interests to maintain both; (3) the second applicant's sense of security and family has been maintained by living with S and his partner – “an extremely positive solution to what could have been an extremely negative situation”. Part 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”) provided that anyone who was the subject of an immigration decision, such as a decision to make or refuse a deportation order or a decision to set removal directions, should have a right of appeal to an adjudicator if they alleged that that decision was in breach of their rights under either the European Convention on Human Rights (“the Convention”) or the Geneva Convention relating to the Status of Refugees. The appeal provisions in Part 4 of the 1999 Act were later repealed by the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Sections 82 and 83 of the 2002 Act brought in new appeal provisions, which did not, however, have effect in relation to any events which took place before 1 April 2003. For all such events the appeal provisions under Part 4 of the 1999 Act continued to have effect. Section 101 (1) of the 2002 Act provides as follows: “A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.” Paragraph 1 (4A) of Schedule 2 to the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (as amended) provides as follows: “Section 101 (1) of the 2002 Act shall apply to a party to an appeal to an adjudicator under Part 4 of the 1999 Act which is determined on or after 9th June 2003, as it applies to a party to an appeal to an adjudicator under section 82 or 83.” Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must have regard to all relevant case law from this Court. In the case of R v IAT ex p AC ((2003) EWHC 389 Admin), the High Court held that, in determining appeals relating to Article 8 of the Convention, adjudicators and tribunals were obliged to consider the rights under Article 8 of the appellant's family as well as the appellant himself. Samaroo and Sezek v Secretary of State for the Home Department ([2002] INLR 55) concerned a Guyanan national, who was given permission to visit the United Kingdom for six months in June 1988. Three months later he married a British citizen and was given indefinite leave to remain. In 1991 a son was born to their marriage. In 1994 Mr Samaroo was convicted of being knowingly concerned with the importation of 4 kg of cocaine worth GBP 450,000 and was sentenced to 13 years imprisonment. While in prison he behaved as a model prisoner and it was accepted by the Secretary of State that he was unlikely to re-offend. Nonetheless the Secretary of State made an order that he be deported, relying in particular on the importance of deportation as a deterrent to actual and prospective drug traffickers. Mr Samaroo appealed against this decision. In finding against him the Court of Appeal held that the Secretary of State had been entitled to attach importance to his general policy of deporting those convicted of importation of class A drugs in order to protect those resident in the United Kingdom from the harmful effect of drugs and, by deterring others, in the interests of preventing crime and disorder.

train

001-97203

ENG

TUR

CHAMBER

CASE OF BORA v. TURKEY

Violation of P1-1

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

4. The applicant was born in 1933 and lives in İstanbul. 5. In 1970 the applicant bought a share in some land (plot no. 195) which was jointly owned by several other persons, in the Kadıköy district of İstanbul. According to the title-deed the applicant’s share corresponded to 275/21672 of the plot. The applicant submitted a copy of a map dated 17 June 1970 where he is mentioned as the owner of the part of the land designated as no. 46 in plot no. 195 (hereinafter “land no. 46”), which was around 329,50 m2 in size. 6. By decision no. 92/5 dated 12 May 1992, the Kadıköy Municipality divided the property amongst its owners and created separate titles. The applicant was allocated the part of the land designated as no. 6 in plot no. 195. It appears that the Municipality allocated parcel no. 46 to a firm. 7. On an unspecified date the applicant filed an action with the İstanbul Administrative Court against the Kadıköy Municipality, requesting the annulment of decision no. 92/5. 8. On 5 October 1994, upon the applicant’s request to prevent the transfer of the allocated plot of land to third persons, the İstanbul Administrative Court stayed the execution of the Municipality’s decision no. 92/5. The court file, the application of the Municipality’s decision no. 92/5 would engender irremediable damage. 9. On 10 April 1995 the firm sold its land to another person, Mr T.M., who in turn sold it to Mr G.Y. on 22 August 1996. 10. On 29 May 1995 the İstanbul Administrative Court annulled the part of the Municipality’s decision affecting the applicant on the ground that it was unlawful. The court, after having examined the evidence in the case file and the experts’ report, held that the value of the land allocated to the applicant by the Municipality’s decision was inferior to the value of the applicant’s parcel, and that there was a building on it which belonged to third persons. Therefore the Municipality had attributed the impugned land to the applicant without sufficient investigation and examination. 11. In the meantime, on 8 December 1994 the applicant filed an action requesting the Kadıköy Civil Court of First Instance to annul the title deed of the firm to land no. 46 and to register it under his name in the land registry. Mr T.M., the owner of the land at that time, also joined the proceedings. It appears that on 29 May 1995 the court issued a temporary injunction to prevent to transfer of the land to third parties. On 21 December 1995 the court dismissed the case. This action ended with dismissal on the ground that the applicant did not have locus standi since the administrative proceedings concerning the annulment of decision no. 92/5 were still pending before the courts. This judgment became final on 20 June 1996 when the Court of Cassation rejected the applicant’s appeal and subsequent rectification request. On 14 August 1996 the first-instance court lifted the temporary injunction. 12. On 9 April 1996 the Supreme Administrative Court upheld the judgment of the first-instance court. On 25 February 1997 it dismissed the Municipality’s request for rectification of its decision. 13. The criminal proceedings instigated, upon the applicant’s complaint, against the mayor of Kadıköy, the director and co-director of construction affairs of the Municipality and the vice chairman in charge of construction affairs were suspended, pursuant to Law no. 4616, on 24 April 2002. 14. In the meantime, the applicant applied, without success, to various authorities requesting their assistance in the enforcement of the judgment given in his favour and the re-inscription of the title deed of land no. 46 in his name. The latest such petition was dated 26 December 2001 and addressed to the Kadıköy District Governor’s Office. In this petition, the applicant referred to the Kadıköy Municipality’s response dated 2 November 2001 where he was informed that it was not possible to enforce the judgment of 29 May 1995 and that he could lodge an action against the firm and Mr T.M. 15. According to the land registry record dated 9 August 2007 the applicant remained the owner of land no. 6, which is around 232 m2 in size. 16. A description of the relevant domestic law at the material time can be found in Çiçek and Öztemel and Others v. Turkey (nos. 74069/01, 74703/01, 76380/01, 16809/02, 25710/02, 25714/02 and 30383/02, §§ 1415, 3 May 2007).

train

001-94117

ENG

TUR

CHAMBER

CASE OF SİNGAR v. TURKEY

Violation of Article 6 - Right to a fair trial

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

4. The applicant was born in 1966 and lives in Ağrı. 5. On 28 January 1995 the applicant was arrested in Istanbul on suspicion of being a member of an illegal organisation. On 15 February 1995 he was remanded in custody. 6. On 24 April 1995 the public prosecutor filed a bill of indictment against the applicant and nineteen other accused with the Istanbul State Security Court. On 2 May 1995 the trial commenced. On 10 May 2001 the applicant was released pending trial. 7. By Law no. 5190, in June 2004 State Security Courts were abolished. Subsequently, the Istanbul Assize Court acquired jurisdiction over the case. 8. On 23 October 2008 the Istanbul Assize Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time limit under Articles 102 and 104 of the Criminal Code had expired.

train

001-102443

ENG

DEU

CHAMBER

CASE OF ANAYO v. GERMANY

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

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

7. The applicant was born in 1967 and lived in Achern, Germany, before moving to Spain in 2008. 8. The applicant, who was born in Nigeria, entered Germany in 2003 and applied for asylum. His asylum request was dismissed, a decision which became final in February 2006. 9. Starting in June 2003 the applicant had a relationship with Mrs B. who was married to Mr B.; the spouses have three children born in 1996, 1998 and 2000. Although she initially considered a divorce, Mrs B., who never lived with the applicant, left the applicant in August 2005 and lived with her husband, Mr B., and the children again. 10. In December 2005 Mrs B. gave birth to twins. The applicant is the biological father of the twins. Mr and Mrs B. are bringing up the twins together. According to Article 1592 no. 1 of the Civil Code (see paragraph 28 below), Mr B. is their legal father. Mr and Mrs B. repeatedly refused requests made by the applicant, both before and after the twins’ birth, to be allowed contact with the twins. 11. On 27 September 2006 the Baden-Baden District Court, having heard the applicant and Mr and Mrs B. in three hearings, granted the applicant contact with the twins once per month for one hour, initially in the presence of a third person and of either Mr or Mrs B. if they wished to be present. 12. The District Court found that the applicant was entitled to access under Article 1685 § 2 of the Civil Code (see paragraph 27 below) as he was a person with whom the children had close ties. The fact that he had not yet borne any responsibility for the children did not hinder that entitlement, as the applicant had had no possibility to take such responsibility since the twins had been born in December 2005. Hence his access rights could not be denied. 13. The District Court further considered that contact between the applicant and the twins was in the children’s best interest. It agreed with the findings of the psychological expert it had consulted, who, having heard Mr and Mrs B. and the applicant, had concluded that contact with the applicant was beneficial for the children’s welfare. Particularly in view of their African-German origins, a relationship with the applicant, their natural father, would be essential for them to get to know their roots, to build up their identity, to understand why they were different and to develop normal self-esteem. The District Court also found that the applicant’s access rights could not be delayed any further as they were being increasingly contested by Mr and Mrs B. The applicant’s access to the twins would not adversely affect Mr and Mrs B.’s other three children because, as the psychologist had convincingly argued, dealing frankly with the realities would be in the best interest of all concerned. 14. In coming to its decision, the District Court took into consideration that when Mrs B. and the applicant had separated in August 2005, the applicant had agreed that the twins could stay with the B. family but had stated that “he wanted to have a chance in the asylum proceedings”. He had subsequently asked to be granted access to the twins after their birth, which Mr and Mrs B. had refused. He had argued that if he did not stay in Germany, it would be impossible in practice for him to have any contact with his children and build up a relationship with them. In Mr and Mrs B.’s submission, the applicant wanted access to his children only in order to obtain a residence permit in Germany. The psychological expert, for her part, stated that it appeared that Mr and Mrs B. were now interpreting the applicant’s relationship with Mrs B. – wrongly and in accordance with common prejudices – as a mere attempt to obtain a residence permit, in order to blame him for their own difficult situation. 15. On 12 December 2006 the Karlsruhe Court of Appeal allowed an appeal lodged by Mr and Mrs B., quashed the decision of the District Court and dismissed the applicant’s request for access to the twins. 16. The Court of Appeal found that the applicant was not entitled to access to the children under Article 1684 of the Civil Code (see paragraph 26 below) because the provision only referred to the entitlement of the legal father (as opposed to the biological father), who in the present case was Mr B. (Article 1592 no. 1 of the Civil Code, see paragraph 28 below). As the children were living with their legal father, the applicant was also not entitled to acknowledge paternity (Article 1594 § 2 of the Civil Code, see paragraph 29 below) nor could he contest Mr B.’s paternity (Article 1600 § 2 of the Civil Code, see paragraph 30 below). 17. The Court of Appeal further found that the applicant was not entitled to access under Article 1685 of the Civil Code. Being the biological father of the twins, he was, in principle, considered a person with whom the children had close ties (enge Bezugsperson) within the meaning of that provision. He nevertheless had not fulfilled the remaining requirements of Article 1685 of the Civil Code, as he had not borne any responsibility for the children in the past and thus had no social and family relationship with them. 18. As the applicant was therefore not entitled to claim access, it was irrelevant whether contact between him and the twins was in the children’s best interests. 19. The fundamental right to respect for one’s family life and one’s parental rights under Article 6 of the Basic Law (see paragraph 24 below) and Article 8 of the Convention did not require a different interpretation of the provisions of the Civil Code. With regard to Article 6 of the Basic Law, the Court of Appeal found that the applicant, being the biological, but not the legal father of the twins, was not a “parent” within the meaning of paragraph 2 of that provision, in particular because the coexistence of two fathers was not consistent with the notion of parental responsibility. Moreover, Article 6 § 1 of the Basic Law protected the access of the biological father to his child only where a social and family relationship between them had already existed in the past; it did not protect the wish to build up a relationship with the child in the future. The reasons why there was no relationship between the biological father and the child were irrelevant. 20. The Court of Appeal noted that the refusal to grant the applicant access to the children would mean that he would be unable to build up a relationship with them and would be expelled to Nigeria. Therefore, the children would most probably never be able to get to know their biological father. However, that was because the twins lived in a family together with their legal father who was actually assuming the father’s role. It was the legislator’s evaluation, expressed in Article 1600 § 2 of the Civil Code, that the existing relationship between legal father and child took precedence over the relationship between biological father and child. 21. With regard to Article 8 of the Convention, the Court of Appeal observed that there had never been a family bond between the applicant and the twins. It also distinguished the present case from the case of Görgülü v. Germany (no. 74969/01, 26 February 2004) inasmuch as the applicant in that case had also been the legal father of his child and had obtained the right to custody. 22. On 29 March 2007, without giving reasons, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, in which he had claimed that the refusal to grant him access to the twins had violated his right to respect for his family life (file no. 1 BvR 183/07). 23. On 15 May 2007 the Freiburg Administrative Court dismissed the applicant’s request for an interim order suspending his expulsion until the European Court of Human Rights had decided upon his application. The applicant did not appeal against that decision. The main proceedings before the Freiburg Administrative Court, in which the applicant again applied for a residence permit, are apparently still pending. The applicant moved to Spain in 2008. 24. Article 6 of the Basic Law, in so far as relevant, provides: (1) Marriage and the family shall enjoy the special protection of the state. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. 25. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code). 26. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association (Article 1684 § 4). 27. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, provides for persons with whom the child has close ties (enge Bezugspersonen) to have a right of access to the child if this serves the child’s best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis. 28. According to Article 1592 of the Civil Code, a child’s father is either the man who at the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). 29. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). 30. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if he is the child’s biological father and if there is no social and family relationship between the legal father and the child. 31. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code). 32. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law. 33. In a considerable number of States (comprising, in particular, Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by challenging, first, the paternity presumption in place, partly within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is presumed also to be the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non-custodial parent, subject to the child’s best interests. 34. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law (Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation), which has been submitted by the Government, the same applies in Greece. That report, however, interprets differently the provisions applicable in France and Spain. Research undertaken by the applicant confirms the Court’s research notably in respect of the legal situation in France and Spain. The applicant submits that a biological father may also challenge the legal father’s paternity in circumstances similar to those in the present application in several further countries, inter alia, in Norway. 35. In a considerable number of Council of Europe Member States, according to the Court’s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption either in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter respect the law in force in Belgium and Luxembourg). 36. According to the expert report drawn up by the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey. The applicant interprets differently the provisions applicable in Italy and Switzerland; the report submitted by the Government, however, confirms the Court’s findings in respect of the legal situation in these countries. 37. In those latter Member States, it is thus only open to the biological father to apply for contact as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland) the biological father does not have standing to apply for contact as a third party either as the law provides a right of contact only to legal parents and (partly) to other relatives. 38. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic. 39. In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father (Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland), different pre-conditions apply for that father to be granted contact if such contact is in the child’s best interests. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interests of the child, without additional pre-conditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child unless contacts run counter to the child’s best interests. According to Section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is to be regarded as a “close person” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden) and according to Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey). 40. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may only be granted to close relatives having close personal ties with the child concerned if the parents have no or hardly any contact with the child. That report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child’s welfare is endangered otherwise.

train

001-79545

ENG

GBR

ADMISSIBILITY

BANKS AND OTHERS v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The applicants are listed as: 1. Stephen John Banks, a British citizen born in 1965 and resident in Ware; 2. John Chalmers, a British citizen born in 1966 and serving a sentence of imprisonment in HM Prison Parkhurst; 3. Peter Croll, a British citizen born in 1966, resident in Westcliffe-on-Sea; 4. Robert Sloane Harper, born in 1966 and resident in Beith; 5. Mariusz Maczka, a Polish citizen born in 1974 and serving a sentence in HM Prison Long Lartin; 6. Leonard O’Shea, a British citizen born in 1963 and serving a prison sentence in HM Prison Albany; 7. Mohammed Soliman, a British citizen born in 1962 and resident in London; 8. Calleb Ngar, a Kenyan citizen, born in 1972 and resident in Kenya; 9. James Reilly, an Irish citizen, born in 1966, resident in Drogheda, Ireland; 10. Brendan Boyle, an Irish citizen, born in 1969, and resident in Bromley. He is brother of John Boyle who died in prison on 4 December 1994. The application was presented before the Court by Mr D. M Machover, a solicitor practising in London. They relate to assaults and ill-treatment inflicted on prisoners in HM Prison Wormwood Scrubs during the 1990s. 1. On 15 March 1998, the first applicant was taken to the segregation cell, where he was visited by three prison officers. He was removed from the cell and punched and kicked for several minutes before being returned to his cell. The officers returned a short while later. One officer made the threat of breaking his neck. He was kicked and punched again. On being returned to his cell, he was kicked with such force that his forehead, nose and mouth struck the cell wall. On being seen by the prison doctor, it was recorded that the applicant had lacerations to the forehead and nose, grazing on knee, thigh, right knuckle and wrist and tenderness to his right shoulder and the small of his back. On 14 September 2001, the three officers were convicted of assault and sentenced variously to three and a half, four and four and a half years’ imprisonment. Their appeals were rejected on 19 March 2002. The applicant brought civil claims against the Home Office. These were not defended in light of the criminal conviction. On 23 January 2003, a consent order issued by which the applicant accepted GBP 42,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance. 2. The second applicant alleged that he had suffered a series of assaults while in the segregation unit from 16 August to late September 1995. This included a welcoming committee of six officers conducting a squat search during which he was kicked in the testicles. On another occasion on or about 15 to 16 September 1995, he was dragged out of his bed by officers who threatened that they would hang him and get away with it. The applicant was so terrified that he urinated. The officers made a noose and hung it from the cell bars. He was then gagged and lifted up, with the noose round his neck. The officers desisted when another officer intervened. The applicant brought civil proceedings which the Home Office did not contest. On 7 January 2004, a consent order issued by which the applicant accepted GBP 100,500 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance. No officers were charged with criminal offences. 3. The third applicant alleged that he was assaulted on two occasions in November 1997. On the second occasion, he was kicked and kneed by prison officers until he lost consciousness. Injuries included a cut over his left eyebrow that required stitching, bruising to his face, a ruptured ear drum and numbness to his left thumb. Following a trial in the Crown Court, in March 2001, four officers were acquitted of assault charges in that respect. The applicant brought civil proceedings which the Home Office did not contest. On 13 May 2003, a consent order issued by which the applicant accepted GBP 28,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance. 4. The fourth applicant alleged that, while detained pending trial, he was assaulted by prison officers in November 1992, leaving him with visible cuts, abrasions and bruising all over his body. At the start of his trial, his counsel was concerned at the visible injuries and his trial was adjourned for medical examination and X-rays. The applicant brought civil proceedings which the Home Office did not contest. On 18 March 2003, a consent order issued by which the applicant accepted GBP 22,000 in full and final settlement of all his claims. 5. The fifth applicant alleged that on 4 June 1996 he was assaulted by prison officers, receiving bruising and injury to his little finger on his left hand the effects of which lasted for some eighteen months. The applicant brought civil proceedings which the Home Office did not contest. On 16 July 2003, a consent order issued by which the applicant accepted GBP 41,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance. 6. The sixth applicant alleged two assaults on 4 February 1998, in which he was kicked, punched, abused and threatened. When he complained to a counsellor, officers made threats implying that he would be hanged and officers later came to his cell with a knotted length of sheet which they wedged in the window. An officer told them that they should wait until the applicant’s bruises had gone down and they left. Criminal charges brought against one or more prison officers were discontinued on the first day of trial. The applicant brought civil proceedings which the Home Office did not contest. On 16 July 2003, a consent order issued by which the applicant accepted GBP 32,500 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance. 7. The seventh applicant alleged a series of assaults in early February 1994, including punching, kicking, abuse and an incident in which an officer indecently assaulted him. The applicant tried to commit suicide as he thought that the officers were going to kill him; he was removed to the hospital wing. No civil claim was pursued due to evidential difficulties. 8. The eighth applicant alleged a series of assaults over a year from October 1996 to October 1997. This included incidents of punching, kicking, threats and being locked in the shower room where he was sprayed with cold water from a high-pressure hose-pipe. Besides suffering physical injuries, the applicant also made several attempts to harm himself as a result of the assaults. Criminal charges brought against prison officers were discontinued before going to trial. The applicant brought civil proceedings which the Home Office did not contest. On 19 December 2003, a consent order issued by which the applicant accepted GBP 55,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance. 9. The ninth applicant alleged two assaults on 7 September 1997, which left him with cuts and bruising on his face and considerable grazing to his left leg. He was told that he should plead guilty to a disciplinary charge of assaulting a prison officer or he would be hanged. On 9 September 2004, a consent order issued by which the applicant accepted GBP 14,425 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance. No officers were charged with criminal offences. 10. The tenth applicant’s brother, John Boyle, was transferred to Wormwood Scrubs to use up “accumulated visits” with friends and relatives. On 3 December 1994, several visitors were told that they had to undergo a strip search. The tenth applicant refused to undergo such a search considering that it was motivated by anti-Irish prejudice. When John Boyle learned what had happened, he protested to prison staff in the visitors’ area, whereupon he was restrained and taken to the Segregation Unit for allegedly assaulting prison officers. At 5 p.m., on 4 December 1994, he was allegedly found hanging from a piece of torn sheet in his cell by officers Goodall and McIntyre. Resuscitation attempts apparently revived a heart beat and pulse. He was taken to Hammersmith Hospital where, on 7 December 1994, ventilation was discontinued due to imminent brain stem death and shortly afterwards he was pronounced dead. At an inquest held in May 1995, a jury returned an “open” verdict. On 22 May 1999, the applicant’s solicitors requested the police to open a murder inquiry. By letter of 21 May 1999, the Metropolitan Police replied that while there was no evidence known to them to raise a true suspicion that John Boyle had been murdered, a review of the initial police investigation would be carried out. By letter dated 20 July 1999, the Detective Superintendent reviewing the case stated that there was still no evidence that the death was suspicious but that as he was not satisfied that the initial investigation met the required standard he had tasked further work to be done e.g. further witness statements and consultation of a medical expert. A further letter dated 19 December 1999 stated that the persons interviewed had not witnessed any violence, or heard any shouts nor had they any knowledge of alleged hangings by prison officers and that the expert evidence to date made no reference to suspicious death or foul play. By letter dated 3 May 2001, which commented on the solicitors’ delay in putting forward their new medical opinion, the Detective Superintendent noted that this opinion added nothing new and indeed confirmed previous reports. By letter dated 11 February 2004, the applicant’s solicitors drew the attention of the police to the civil judgments obtained in other cases in which there was evidence of death threats and mock hangings. They therefore were calling for a public inquiry into the events at the prison and the systematic abuse of inmates and requested that the case be reviewed in light of the civil cases and the convictions of prison officers in 2001. On 31 January 2005, the Metropolitan Police agreed to review the matter again. The outcome of this review is expected shortly but no further steps are anticipated as likely to result. On 16 March 1998, the applicants’ solicitors presented a dossier to the Chief Inspector of Prisons detailing ill-treatment of six prisoners in Wormwood Scrubs and one prisoner at Pentonville and, inter alia, expressing their view that a statutory inquiry into the allegations be instituted. Their report led to criminal investigations and a series of inquiries. The applicants’ solicitors came to represent almost a hundred other prisoners who made allegations of assaults by prison officers during this period. Nearly sixty civil claims were later brought against the Home Office by inmates at Wormwood Scrubs. An internal prison inquiry was launched, headed by Peter Atherton, the head of the Audit Standards Unit of the Prison Service. His inquiry team consisted of 11 persons, eight of whom were permanent members of the Prison Service but independent of the operational line. None had ever served at Wormwood Scrubs. On 31 March 1998, the first part of the interim report issued. It dealt with the seven prisoners named by the solicitors in their dossier, plus the first applicant who had been added later. It recommended, inter alia, that allegations by five prisoners (including the first and eighth applicants) be referred to the police for investigation of serious criminal offences; that identified staff involved in those incidents be suspended pending the outcome of those proceedings and that any other staff identified during the investigation as being involved be suspended; that in view of the absence of any evidence that there had been internal prison investigations into specific allegations and due to the chaotic state of other investigations as well as concerns about the effectiveness of senior management supervision of the care and control unit, the Director of the Main Prison be suspended from duty while a disciplinary investigation took place. The report also mentioned that the preliminary investigation revealed that thirty other allegations had been made about ill-treatment since 1 January 1997, fourteen of those occurring in the segregation unit and that there could be no assurance that these had been properly followed up at the time. It recommended that confidence-building steps be taken immediately, including the installation of CCTV in the segregation unit and all routes to the unit, particularly those used when prisoners were subject to the use of force; daily visits to the segregation unit by a governor grade; that the unit operate on the basis of open access to other departments and the Board of Visitors; and that accurate records be kept in the segregation unit On 3 April 1998 the second part of the interim report issued. It referred ten more allegations concerning ill-treatment in the segregation unit, and ten allegations concerning other parts of the prison, to the police for investigation; and it recommended that the Director General review the case for suspension against one more prison officer; and that the prisoner grievance procedures receive an immediate and thorough overhaul. In total, five of the original cases in the solicitors’ dossier were handed over to the police for investigation and two of the cases transmitted to the police for their information. The report finally identified in general terms other aspects relating to prison administration, management and training that could be pursued further. The Metropolitan Police investigated a number of individual claims of physical violence by prison officers against inmates. They carried out two investigations called Mevagissey I and Mevagissey II. It appears that in 1999 charges were lodged against some twenty seven prison officers in connection with thirteen separate complainants, which resulted in six convictions in July 2000 and August 2001. In another eleven criminal cases, six went to full trial and resulted in acquittals for fifteen officers, in two the judge directed an acquittal of four officers and in three the prosecution offered no evidence, leading to the formal acquittal of seven officers. On 13 September 2001, the applicants’ solicitors presented a further dossier to the Home Secretary, listing the allegations of ill-treatment by over fifty inmates, including the applicants and John Boyle, and arguing for the necessity of holding a public inquiry. In April 2002, the Chief Inspector of Prisons issued a report, following an unannounced inspection of Wormwood Scrubs. “As this report shows, the failure to establish, publicly and independently, what took place at Scrubs during the 1990s has severely hampered attempts to change the culture and regime there, or to establish whether there were underlying systemic problems which may need addressing in this, and other, prisons. For that reason, many of those involved in Scrubs, from the Board of Visitors to the POA, have supported the call for a public inquiry. I would like to stress that this inspection, thorough though it is, is no substitute for that: it is a snapshot of the prison as we found it in December 2001. This Inspectorate does not of itself have the powers or the mandate to investigate past events... Prisons are closed environments and it is vital that an independent and external spotlight is directed on them when something appears to have gone seriously wrong.” The applicants’ solicitor renewed their request for an inquiry by letter of 28 April 2003 to the Home Office, pointing out that there was no risk of prejudicing the criminal investigations, which had apparently come to an end. They threatened judicial review proceedings to require him to hold a public inquiry. On 30 May 2003, the Home Office replied that the Crown Prosecution Service was still considering possible prosecutions and that it would not be right to hold an inquiry. By letter dated 9 December 2003, it was stated that the Home Secretary would review the matter whenever the civil proceedings had finished, it appearing that there would now be no further criminal proceedings. Following conclusion of the civil proceedings in which all claims were settled, the solicitors wrote to the Home Office on 6 September 2004 reiterating the need for a public inquiry. In proceedings in the House of Commons on 15 November 2004, in answer to a question about Wormwood Scrubs and a possible public inquiry, the Home Office reply referred to the visit by the Chief Inspector of Prisons in November 2003 in respect of which it had been found that “it was a greatly improved prison, gradually implementing and consolidating fundamental changes”. Most noticeable of all was the “change in attitude and approach of Prison Officers”. By letter of 14 December 2004, the Home Secretary stated that he was not convinced that a public inquiry would be in the public interest or serve any useful purpose in improving the effective operation of the Prison Service, taking into account the disciplinary actions taken, the criminal investigations which had led to prosecutions and convictions, the civil claims which had been settled and the wider actions taken in the Prison Service. While the incidents had been wholly unacceptable, he concluded that those incidents and the systems which allowed them to occur had now been properly and fully investigated, lessons had been learned and effective action taken to address those failings. In respect of the death of John Boyle, he noted that the case had been subject of a criminal investigation, an inquest and a further review by the Metropolitan police. Taking into account also the lapse of time, he considered that it would not be in the public interest to hold a public inquiry into that case. On 20 December 2004, the Treasury Solicitor provided the applicants’ solicitors with a copy of the full Atherton Report, noting that a redacted version had been available during the civil proceedings. He declined to make available any copies of other reports. The applicants state that three other internal inquiries (referred to as the Hind, Clark and Quinn inquiries) had been conducted.

train

001-70560

ENG

PRT

CHAMBER

CASE OF ANHEUSER-BUSCH INC. v. PORTUGAL

No violation of P1-1

9. The applicant is an American public company whose registered office is in Saint Louis, Missouri (United States of America). It produces and sells beer under the brand name “Budweiser” in a number of countries around the world. 10. On 19 May 1981 the applicant company applied to the National Institute for Industrial Property (NIIP) to register “Budweiser” as a trade mark on the industrial-property register. The NIIP did not grant the application immediately because it was opposed by a company incorporated in Czechoslovakia, Budejovicky Budvar, which had already registered “Budweiser Bier” as an appellation of origin. 11. According to the applicant company, negotiations then took place between it and Budejovicky Budvar concerning the use of the “Budweiser” trade mark. As the parties could not come to an agreement, the applicant company applied to the Lisbon Court of First Instance on 10 November 1989 for an order cancelling Budejovicky Budvar’s registration. In a judgment of 8 March 1995, which became final, the Lisbon Court of First Instance granted that application on the ground that the product to which the registration referred, namely the beer known as “Budweiser Bier”, did not have the requiriste characteristics to be considered an appellation of origin or indication of source. The registration was therefore cancelled. 12. In a decision of 20 June 1995, which was published on 8 November 1995, the NIIP registered the “Budweiser” trade mark in the applicant company’s name, despite a prior objection by Budejovicky Budvar. On 8 February 1996 Budejovicky Budvar appealed to the Lisbon Court of First Instance against the NIIP’s decision on the strength of an agreement between the Governments of the Portuguese Republic and the Czechoslovak Socialist Republic for the protection of indications of source, appellations of origin and other geographical and similar designations (“the 1986 Agreement”), which was signed in Lisbon on 10 January 1986 and entered into force on 7 March 1987 after publication in the Official Gazette. In accordance with the law, the applicant company was invited by the court to take part in the proceedings as an interested party. 13. In a judgment of 18 July 1998, the Lisbon Court of First Instance dismissed the application. It found that the only intellectual property eligible for protection under Portuguese law was the appellation of origin “Ceskebudejovicky Budvar”, not the trade mark “Budweiser”. In addition, it found that there was no risk of confusion between that appellation of origin and the applicant company’s trade mark, which the vast majority of consumers tended to identify as an American beer. 14. Budejovicky Budvar appealed against that decision to the Lisbon Court of Appeal. In a judgment of 21 October 1999, the Lisbon Court of Appeal overturned the impugned judgment and ordered the NIIP to refuse to register “Budweiser” as a trade mark, as it considered that such a registration would infringe the 1986 Agreement and, consequently, Article 189 § 1 (j) of the Industrial-Property Code. 15. The applicant company appealed on points of law to the Supreme Court, alleging inter alia that the impugned decision contravened the agreement of 15 April 1994 on the Trade-Related Aspects of Intellectual Property Rights (“the TRIPs Agreement”), which establishes the rule that registration confers priority, and in particular Articles 2 and 24 § 5 of that agreement. The applicant company also alleged that, in any event, the protected appellation of origin “Ceskebudejovicky Budvar” did not correspond to the German expression “Budweiser”, so that the 1986 Agreement could not be used to challenge its application for registration. Even supposing, however, that the German expression “Budweiser” were an accurate translation of the Czech appellation of origin, the applicant argued that the 1986 Agreement applied only to translations between Portuguese and Czech, not into any other languages. It submitted, lastly, that a formal defect in the 1986 Agreement made it unconstitutional, as it had been adopted by the Government, not Parliament, in breach of Articles 161 and 165 of the Constitution governing parliamentary sovereignty. 16. In a judgment of 23 January 2001, which came to the applicant company’s knowledge on 30 January 2001, the Supreme Court dismissed the appeal on points of law. With regard to the TRIPs Agreement, the Supreme Court began by noting that the provision of that agreement relied on by the applicant company required it to have acted in good faith. However, the applicant company had not indicated in its application for registration any factual element that demonstrated its good faith. In any event, the Supreme Court noted that by virtue of Article 65 of the TRIPs Agreement, it had not become binding under Portuguese law until 1 January 1996, that is to say after the 1986 Agreement had entered into force. The TRIPs Agreement could not, therefore, take precedence over the 1986 Agreement. As regards the interpretation of the 1986 Agreement, the Supreme Court considered it undeniable that the two contracting States had intended by that agreement to protect, through reciprocal arrangements, their respective national products, including in circumstances in which a translation of the names concerned was used. The appellation of origin “Ceskebudejovicky Budvar”, which translated into German as “Budweis” or “Budweiss”, indicated a product from the České Budějovice region in Bohemia. It was therefore protected by the 1986 Agreement. Lastly, the procedure whereby the Agreement had been adopted did not contravene Articles 161 and 165 of the Constitution, since it did not concern a sphere that was within the exclusive competence of Parliament. 17. The agreement was signed in Lisbon in 1986 and came into force on 7 March 1987. In a note dated 21 March 1994, the Czech Minister of Foreign Affairs indicated that the Czech Republic would be succeeding Czechoslovakia as a contracting party to the Agreement. The Portuguese Minister of Foreign Affairs agreed thereto on behalf of the Portuguese Republic in a note dated 23 May 1994. 18. Article 5 of the 1986 Agreement provides, inter alia: “1. If a name or designation protected under this Agreement is used in commercial or industrial activities in breach of the provisions of this Agreement for products ... all judicial or administrative remedies available under the legislation of the Contracting State in which protection is sought to prevent unfair competition or the use of unlawful designations shall, by virtue of the Agreement, be deployed to restrain such use. 2. The provisions of this Article shall apply even when translations of the said names or designations are used...” Appendix A to the Agreement lists the designations “Ceskobudejovické pivo” and “Ceskebudejovicky Budvarà” among the protected appellations of origin. 19. The Paris Convention of 20 March 1883 for the protection of industrial property, as subsequently revised on numerous occasions (most recently in Stockholm on 14 July 1967, [1972] 828 United Nations Treaty Series, pp. 305 et seq.), to which Portugal, the Czech Republic and the United States of America are parties, sets up a Union for the protection of industrial property, an expression understood to cover industrial designs, trade marks, appellations of origin and indications of source. The purpose of the Paris Convention is to prevent discrimination against non-nationals and it lays down a number of standards of a very general nature dealing with the procedural and substantive aspects of industrial-property law. The Convention enables owners of marks to obtain protection in various member States of the Union through a single registration. 20. The relevant parts of Article 4 of the Paris Convention provide: “A. (1) Any person who has duly filed an application for ... the registration of ... an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed. (2) Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority. (3) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application. B. Consequently, any subsequent filing in any of the other countries of the Union before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval, in particular, another filing, ... the use of the mark, and such acts cannot give rise to any third-party right or any right of personal possession. Rights acquired by third parties before the date of the first application that serves as the basis for the right of priority are reserved in accordance with the domestic legislation of each country of the Union C. (1) The periods of priority referred to above shall be ... six months for industrial designs and trademarks. ...” 21. The Madrid Agreement of 1891 Concerning the International Registration of Marks and the Madrid Protocol of 27 June 1989, establish and govern a system for the international registration of marks that is administered by the International Bureau of the World Intellectual Property Organization (WIPO) in Geneva (Switzerland). The Madrid Agreement was revised in Brussels (1900), Washington (1911), The Hague (1925), London (1934), Nice (1957) and Stockholm (1967). The 1989 Madrid Protocol established the “Madrid Union” composed of the States that were parties to the Madrid Agreement and the contracting parties to the Protocol. Portugal became a party to the Agreement on 31 October 1893. The United States of America have not ratified the Agreement. They ratified the Protocol on 2 November 2003. 22. The system set up by the Madrid Agreement is applicable to the members of the Madrid Union and affords owners of a mark a means of securing protection in various countries through a single application for registration in the national or regional registry. Under the system the registration of an international mark has the same effect in the countries concerned as an application to register the mark or registration of the mark by the owner directly in each individual country. If the trade-mark registry of a member State does not refuse protection within a set period, the mark enjoys the same protection as if it had been registered directly by that registry. 23. The Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPs Agreement”) was concluded in the Uruguay Round of the negotiations that resulted in the signature in April 1994 of the World Trade Organization Agreements in Marrakesh, which came into effect on 1 January 1995. 24. The provisions of the TRIPs Agreement of relevance to the present case are as follows: “1. In respect of Parts II [standards concerning the availability, scope and use of intellectual property rights], III [enforcement of intellectual property rights] and IV [acquisition and maintenance of intellectual property rights and related inter-partes procedures] of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967). ...” “Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either: (a) before the date of application of these provisions in that Member as defined in Part VI; or (b) before the geographical indication is protected in its country of origin; measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark ... on the basis that such a trademark is identical with, or similar to, a geographical indication.” “Subject to the provisions of paragraphs 2, 3 and 4[, which provide for longer periods], no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.” 25. In accordance with the relevant international instruments in this sphere, the legislation of most of the member States of the Council Europe regards registration as the corollary to the acquisition of the right to the mark. However, the vast majority of the States also regard the application for registration of the mark as conferring certain rights. In most cases, the date the application is filed is taken as the beginning of the period of validity of the mark once it has been registered (retrospective protection through registration). The date of filing also determines priority in the system of international marks. Lastly, in some countries, an application to register a mark may itself be the subject of provisional registration, while in others it may be the subject of an assignment, security assignment or licence and (provided the mark is subsequently registered) create an entitlement to compensation in the event of fraudulent use by a third party. 26. In most countries, registration is preceded by publication of notice of the application and a procedure whereby interested parties can oppose registration in adversarial proceedings. However, in some countries, registration is automatic if the competent authority is satisfied that the application satisfies the formal and substantive requirements. In both cases, in accordance with the applicable international rules, an action to have a mark revoked or declared invalid may be brought within a set period. Such actions may be based on grounds such as valid prior title, prior application, right to international priority, or a failure to use the mark for a certain period. 27. The substantive and procedural law of industrial property at the material time was contained in two successive Codes of Industrial Property, the first introduced by legislative-decree no. 30679 of 24 August 1940 and the second by legislative-decree no. 16/95 of 24 January 1995. It was the latter (1995) code which was applied by the domestic courts in the instant case. 28. The Code recognised a like right of priority to that set out in the Paris Convention (Article 170). Priority was determined by reference to the date the application for registration was filed (Article 11). By virtue of Articles 29 and 30, the application for registration itself could be the subject of an assignment, with or without consideration, or a licence. 29. Article 189 § 1 (j) laid down that that registration was to be refused if the mark contained “expressions” that contravened domestic legislation. Subparagraph (l) also prohibited registration of a mark that contained elements that were liable to mislead the public. 30. Third parties who claimed that they were adversely affected by the registration of a mark had a right to appeal against the NIIP’s decision within three months from the date it was published (Article 39). The appeal had to be lodged with the Lisbon Civil Court (Article 2). The Code did not state whether such appeals had suspensive effect. 31. In a judgment of 10 May 2001 (Colectânea de Jurisprudência, 2001, vol. III, p. 85), the Lisbon Court of Appeal held that the mere filing of an application for registration conferred on the applicant a “legal expectation” (expectativa jurídica) that warranted the protection of the law. Article 5 of the New Code of Industrial Property, which was introduced by legislative-decree no. 36/2003 of 5 March 2003 and came into force on 1 July 2003, provides “provisional protection” of the mark even prior to registration and the applicant is entitled to bring an action in damages on the basis of that protection.

train

001-22838

ENG

GBR

ADMISSIBILITY

DENNIS AND OTHERS v. THE UNITED KINGDOM

Inadmissible

Matti Pellonpää;Nicolas Bratza

The applicants are 1. Lizette Dennis, a British citizen born in 1943 and resident in Cologne, Germany; 2. Margaret Lockwood-Croft, a British citizen born in 1940 and resident in Aldershot, England; 3. John Clarke, an Australian citizen born in 1936 and resident in Green Valley, Australia; 4. Jean Clarke, an Australian citizen also resident in Green Valley, Australia. They are represented by Irwin Mitchell Solicitors, Sheffield. The facts of the case, as submitted by the applicants, may be summarised as follows. At about 01.46 hours on 20 August 1989, the dredger “Bowbelle” collided with the passenger launch “Marchioness” on the River Thames, London. Fifty-one people, including the first applicant’s son Howard Dennis, the second applicant’s son Shaun Lockwood-Croft and the third and fourth applicants’ son John Clarke, lost their lives. Some bodies were recovered from the wreck of the “Marchioness” while twenty-seven were recovered from the river. The last body was not found until 1 September 1989. Due to the lapse of time in recovering some of the bodies from the river, the Coroner decided that the bodies recovered on or after 22 August were to be considered, due to the degree of decomposition, as unsuitable for visual identification. He gave express authority for the removal of hands from bodies (to enable fingerprints to be taken at the police laboratory) where this was considered necessary. He did not address the question of whether the removal of hands was necessary even if dental records or other means of identification were either available or in the course of being obtained. The police were left with the impression that the Coroner required fingerprints to be taken in every case and that if it was necessary to remove the hands in order for fingerprints to be taken, this should be done. After the police fingerprinting experts advised that it was necessary to remove the hands to obtain the fingerprints, the police proceeded on 24 and 25 August to remove the hands from the victims’ bodies on a blanket basis without any consideration as to whether identification purposes required the measure in each case. This meant that hands were removed from bodies notwithstanding the fact that some had already been positively identified by dental records and dental records for others were in the process of being obtained. In respect of Howard Dennis, his body was found at about 10.45 a.m. on 23 August. A national insurance card and student card with his name were found on the body. At about 2.30 p.m., following police enquiries, his dentist provided details to the Coroner’s Office. At some time on 25 August, he was positively identified by his dental records. However the same day his hands were removed, possibly after the dental identification was made. In respect of Shaun Lockwood-Croft, his body was found early on 23 August. A signet ring bearing the initials “SLC” was on the body. The second applicant delivered his dental records to the police the same morning. At about 2.30 p.m., following police enquiries, his dentist provided dental records to the Coroner’s Office. At some time on 25 August his hands were removed. In respect of John Clarke, the family provided details of identifying tattoos and body jewellery on 20 August. His body was found early on 22 August and the tattoos noted. On the morning of 23 August, his body was positively identified. At some time on 24 August, his hands were removed. At 10 a.m. on 25 August the police were informed that his dental records had been received by the Australian High Commission. No relatives of the victims were informed that there was to be a removal of hands. Many did not become aware that the bodies had had parts removed until during the inquiry proceedings. The relatives were also denied access to the bodies to say their last farewell. A number of inquiries were held into the collision and its tragic consequences. Three reports from the Thames Safety Inquiry were published on 2 December 1999 and 19 February 2000. A report on the formal investigation issued shortly thereafter. In the Thames Safety Inquiry Final Report dated 22 December 1999 and published in Parliament on 19 February 2000, Lord Justice Clark found that the hands of 25 of the 27 victims found in the river were removed for the purposes of obtaining fingerprints and it was not until two years later that the families discovered what had happened. He made primary findings of fact that were undisputed by those participating in the inquiry, namely, that the Coroner gave authorisation for the hands to be removed from any bodies where it was not possible to take good fingerprints without doing so and that decisions were taken to remove hands on a purely technical basis without addressing the question of whether the deceased could be identified without his or her fingerprints being taken. He did not consider that any further primary facts would emerge if further evidence was called, noted that changes to and a tightening up of procedures had occurred and therefore reached the conclusion that the public interest did not require a public inquiry into this aspect. Meanwhile, on 14 February 2000, the Deputy Prime Minister nonetheless requested Lord Justice Clarke to conduct a further non-statutory inquiry concerning the identification of victims. This inquiry was conducted in November and December 2000. The report on the Public Inquiry into the Identification of Victims following Major Transport Accidents was published on 23 March 2001. The report, set out in two volumes, reached findings of fact and made recommendations as to desirable and appropriate practice. Concerning the removal of the hands, Lord Justice Clark found that at the relevant time the hands ought not to have been removed for the purposes of identification unless, having regard to the absence of other sufficient means of identification, it was necessary to do so. The Coroner had failed to give proper consideration to the question in what circumstances the hands of particular deceased should be removed and had instead authorised, and in effect instructed, the police to remove the hands if it was necessary to obtain fingerprints, though in fact it had not been necessary to obtain fingerprints. He recommended, inter alia, that the methods used for establishing the identity of a deceased should, wherever possible, avoid any unnecessary invasive procedures or disfigurement or mutilation and that body parts should not be removed for purposes of identification except where necessary as a last resort. As regarded the failure to inform the relatives of the removal of hands, he found that it was not the practice in 1989 to provide such information and he did not criticise the Coroner for failing to provide it. He observed that the current practice was different as an open and honest approach was now recognised to be right in principle and relatives were now informed as soon as possible. As regarded the alleged refusal to allow the relatives to view the bodies, he found that the Coroner had not given instructions that relatives were not to view the bodies. It was however likely that the Coroners’ officers or police liaison officers, acting from the best of motives, namely to avoid distress to relatives, sought to dissuade them from viewing the body. It was possible that some officers used language suggesting that viewing was prohibited rather than ill-advised. He did not find that it would be fair to blame the Coroner in that respect having regard to the standards of 1989. He observed however that as matters were perceived today, a coroner ought to consider how requests to view the body should be dealt with and give appropriate directions since the body was in his possession. Though there would be a need for sensitive and careful handling of the relatives’ feelings and for appropriate counselling before viewing took place, in principle the request of a relative to view the body, if maintained after appropriate counselling, should be respected. Under English law, there is no “property” in a body. Neither a corpse nor parts of a corpse are capable of being property protected by legal rights (R. v. Kelly [1999] QB 621). No cause of action lies in tort in relation to the mutilation of the body of a family member.

train

001-106651

ENG

CZE

ADMISSIBILITY

HAVELKA v. THE CZECH REPUBLIC

Inadmissible

Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant, Mr Josef Havelka, is a Czech national who was born in 1946 and lives in Rychnov u Jablonce nad Nisou. The facts of the case, as submitted by the applicant, may be summarised as follows. On 5 May 1999 the applicant instituted civil proceedings against the president of the Jablonec nad Nisou District Court alleging that he had violated his rights. At the same time he applied for the appointment of a lawyer to act on his behalf, for a waiver of court fees and for the exclusion of the District Court judges from the case due to their lack of impartiality. Due to the applicant’s modifications of his initial action the case was referred to the Ústí nad Labem Regional Court, subsequently the applicant challenged the impartiality of the Regional Court’s judges. On 11 September 2000 the Ústí nad Labem Regional Court refused the applicant’s request for the waiver of court fees and for the appointment of the lawyer. On 27 February 2001 the Prague High Court upheld this decision. In July 2001 the applicant lodged further submissions and the Regional Court discontinued proceedings as he had not paid the court fees. On 5 February 2002 the Regional Court quashed this decision as the applicant had paid the court fees in the meantime. On 1 August 2002 the Regional Court appointed a lawyer on the applicant’s behalf as his financial standing had deteriorated. On 21 July 2003 the High Court rejected the applicant’s challenge of the impartiality of the Regional Court’s judges for the most part and excluded one judge from the proceedings for different reasons than the ones raised by the applicant. On 15 July 2004 the High Court admitted the applicant’s new objection as to the impartiality of the Regional Court judges and referred the case to the Hradec Králové Regional Court which in February 2005 granted the applicant’s request to modify the action and to extend it to the Ministry of Justice. On 26 April 2005 the applicant requested the court to examine the case-files from other proceedings as supplementary evidence. The hearing was fixed for 30 January 2007, however, it was adjourned owing to the applicant’s health problems. At the same time the applicant withdrew the action as regards the Ministry and applied for the entry of the Jablonec nad Nisou District Court to the proceedings. On 23 March 2007 the Regional Court refused the entry of the District Court, which was upheld by the High Court on 29 June 2007. The applicant lodged an appeal on points of law against this decision and applied for a lawyer to act on his behalf. This request was granted, however, on 20 December 2007 the Supreme Court rejected the appeal on points of law. The applicant brought a constitutional appeal and applied for a lawyer to act on his behalf. This request was granted, however, on 13 November 2008 the Constitutional Court rejected the constitutional appeal. On 16 April 2008 the proceedings on merits were stayed due to the applicant’s health problems, this decision became final on 7 May 2008; the Court was not informed as to whether the proceedings have resumed since. Overall, throughout the whole proceedings hearings were scheduled on three occasions, however, they all had to be adjourned due to the applicant’s health problems or other proceedings initiated by him. In February 2007 the applicant claimed compensation for non-pecuniary damage arising from the excessive length of the above proceedings, under Act No. 82/1998 as amended by Act no. 160/2006. As the Ministry of Justice did not deal with the applicant’s request within the six-month statutory time-limit, he brought a civil action for damages against the Ministry on 17 January 2008. He specified the non-pecuniary damage allegedly suffered at CZK 300,000 (EUR 11,481). In a letter of 8 February 2008 the Ministry of Justice acknowledged that the proceedings were unreasonably lengthy. Taking into account the complexity of the proceedings and the applicant’s substantial contribution to the delays, the Ministry awarded the applicant CZK 22,000 (EUR 857) for non-pecuniary damage. On 30 July 2008 the Prague 2 District Court dismissed the action holding that the proceedings on merits had been carried out smoothly without delays. The court found that in the absence of any judgment, it would be difficult to assess the complexity of the proceedings. Further, it considered that the applicant had contributed to the length of the proceedings by not having paid the court fees in due time, by unclear claims and by applying for extensions of the action to other parties. Besides, the proceedings were affected by the applicant’s health and his procedural requests, which could however not be invoked to the applicant’s detriment. The applicant appealed and challenged the impartiality of judges of the Prague Municipal Court and the Prague High Court; these objections were dismissed by the directly superior courts including the Supreme Court. On 10 March 2010 (served on 10 April 2010) the Prague Municipal Court upheld the judgment, finding that the proceedings were primarily affected by the applicant’s failure to conform to the procedural rules and by his procedural requests. It considered that the State could not be held responsible for the delays caused by a party’s uncooperativeness or even deliberate misconduct. On 3 April 1995 the applicant brought proceedings against a municipality seeking compensation for the lack of diligence in maintaining the State property that he had recovered in the restitution proceedings. At the same time he applied for a waiver of court fees. Later, the proceedings were joined with similar proceedings; altogether the applicant sought payment of CZK 1,400,000 (EUR 40,936). The hearing was fixed for 2 May 1995, however, the applicant excused himself. In May and June 1995 the Jablonec nad Nisou District Court invited the applicant to provide information documenting that he had limited means to be eligible for the waiver of court fees. On 4 July 1995 the District Court refused the request for the waiver of the court fees. The applicant appealed and challenged the impartiality of the judge. On 15 February 1996 the appellate court upheld this decision. On 29 May 1996 the District Court discontinued the proceedings as the applicant had not paid the court fees despite having been invited to. On 19 September 2002 the applicant appealed this decision asserting that the requests for the payment of the courts fees had not been delivered to his new address; in October 2002 he supplemented the appeal. On 19 November 2002 the Ústí nad Labem Regional Court quashed the decision finding that the applicant had not been duly invited to pay the court fees as set by the relevant procedural rules. On 14 January 2003 the applicant applied for a waiver of the court fees. In February and April 2003 the District Court invited him to provide the necessary information justifying the request. On 22 April 2003, 8 December 2003 and 2 February 2004 the applicant challenged the impartiality of different judges. On 15 March 2004 the District Court refused not to charge the applicant the court fees. On 25 August 2004 the Regional Court changed this decision and granted the waiver up to 80 % of the court fees and dismissed the challenge of the judges’ impartiality. On 7 January 2005 the applicant challenged the impartiality of the Regional Court judges. On 11 November 2005 the District Court discontinued the proceedings as the applicant had failed to pay the court fees despite having been invited to. On 25 January 2006 the District Court rejected the applicant’s appeal as it had been filed outside the time-limit. On 6 March 2006 the District Court rejected the applicant’s appeal against this decision as filed outside the time-limit. On 13 April 2006 the District Court rejected the applicant’s appeal against this decision for the same reasons. On 14 July 2006 the High Court decided on the impartiality of the Regional Court judges. On 6 October 2006 the Regional Court upheld the District Court decision of 13 April 2006, which became final on 24 September 2008. On 27 November 2007 the applicant claimed compensation for non-pecuniary damage arising from the excessive length of the above proceedings. As the Ministry of Justice did not deal with the applicant’s request within the six-month statutory time-limit, he brought a civil action for damages against the Ministry on 10 July 2008. He specified the non-pecuniary damage allegedly suffered at CZK 600,000 (EUR 25,570). On 15 September 2008 the Ministry of Justice acknowledged that the proceedings were unreasonably lengthy and awarded the applicant CZK 56,000 (EUR 2,337) for non-pecuniary damage. On 30 January 2009 the Prague 2 District Court, referring to the case-law of the Court, dismissed the action. It reiterated that out of thirteen and half years long proceedings, the delays in years 1996 – 2002 were attributable to the first-instance court, otherwise the proceedings had been smooth. The court found that the complexity of the proceedings had been difficult to estimate as not a single hearing had been held. Further, it considered that the importance of the proceedings for the applicant had been low given that he had not attempted to accelerate them during the six years pause and that they had been discontinued eventually as he had not paid the court fees. On 21 January 2010 (served on 12 May 2010) the Prague Municipal Court upheld the judgment, considering that from the District Court’s perspective the proceedings had been finished in 1996, the applicant having not duly notified his new address and having not been interested in the proceedings for six years. Under these circumstances and with regard to the low importance of the proceedings for him, the just satisfaction awarded had been appropriate. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. the Czech Republic (no. 40552/02 (dec.), §§ 11-24, 16 October 2007).

train

001-71813

ENG

MKD

CHAMBER

CASE OF ATANASOVIC AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed

David Thór Björgvinsson

4. The applicants, Mihajlo Atanasovic, Slavko Atanasovski and Savka Milanovska, are nationals of the former Yugoslav Republic of Macedonia, who were born in 1937, 1945 and 1926 respectively, and live in Kumanovo, the former Yugoslav Republic of Macedonia. 5. By judgments of the then Kumanovo Municipal Court (Општински суд во Куманово) of 7 December 1988 and 17 May 1989, the applicants obtained parts of the movable and immovable property of Mr S.A., the father of the first and the second applicants. 6. In 1989 the applicants instituted proceedings to divide the property of Mr S.A. On 22 November 1990 the Kumanovo Municipal Court decided the applicants’ claim and divided the property at issue. Mr S.A. was also ordered to pay certain amounts to each of the applicants, in compensation for the movable property that was awarded only to him. 7. As Mr S.A. did not comply, the applicants instituted enforcement proceedings before the Kumanovo Municipal Court. 8. On 20 March 1991 the Kumanovo Municipal Court ordered public sale of certain items belonging to Mr S.A. to satisfy the applicants’ claims. 9. On 17 September 1991 the Kumanovo Municipal Court accepted Mr S.A.’s objection that the interest had been miscalculated and ordered a new calculation. 10. On 15 December 1991 Mr S.A. passed away. On 10 March 1992 the court stayed the enforcement proceedings pending the decision as to the succession to Mr S.A.’s estate. 11. By a decision of 21 May 1993, delivered in separate succession proceedings, the Kumanovo Municipal Court determined five heirs of Mr S.A.’s estate: the first and second applicants and their three brothers – Mr S.K., Mr K.I. and Mr C.I. Each of the heirs obtained equal parts of their late father’s estate. 12. On 22 December 1993 the applicants asked the Kumanovo Municipal Court to continue the enforcement proceedings against one of their brothers, Mr C.I. The applicants argued that Mr C.I. should take over his late father’s debts towards them as he had allegedly been in possession of Mr. S.A.’ s estate before his death and had benefited from it. 13. On 20 March 1994 the court granted the applicants’ request and approved the enforcement of their claims against Mr C.I. 14. On 9 May 1994 the Kumanovo Municipal Court upheld Mr C.I’s challenge and stayed the enforcement proceedings. The court decided to continue the proceedings against all five heirs for the execution of the third applicant’s claims only. The first and the second applicants were thus named debtors and the third applicant - the sole creditor. 15. On 14 December 1995 the then Skopje District Court (Окружен суд во Скопје) upheld the applicants’ and Mr C.I.’s complaints. It quashed the lower court’s decision and ordered a retrial. It, inter alia, instructed the lower court to examine the case on the basis of section 144 of the Law on inheritance whether and, if so, to what extent, Mr C.I. owed sums of money to the applicants. It also instructed the lower court to establish whether the amount of the debt was correctly calculated. 16. No further actions were taken by the Municipal Court of Kumanovo. 17. On 9 December 1998 the applicants requested the Kumanovo Municipal Court to resume the enforcement proceedings and to re-evaluate their original claims. They received no reply to their request. 18. Section 99 § 3, in so far as relevant, provides that a judge shall be discharged: with regard to a serious disciplinary offence as defined by law, making him/her unsuitable to perform the office of a judge as decided by the Republican Judicial Council; with regard to the unprofessional and unethical conduct of a judge, as described by the Republican Judicial Council in a procedure set forth by law. 19. Section 105 provides that the Republican Judicial Council proposes to the [National] Assembly the election and discharge of judges and determines proposals for the discharge of a judge in cases set forth in the Constitution; decides on the disciplinary responsibility of judges; assesses the competence and ethical behaviour of judges in the performance of their office. 20. According to Section 76 § 1, the Ministry of Justice carries out tasks related to the judiciary’s administration. 21. Section 76 § 2 provides that the Ministry of Justice communicates with the Presidents of Courts with regard to the court’s administration. 22. Section 77 provides, inter alia, that the following matters fall within the court’s administration: the examination of the petitions and complaints of citizens concerning the work of the courts in respect to postponement of the proceedings or the work of the court services; the supervision of the court’s efficiency. 23. According to Section 81 the President of the Court represents the latter, organises its work and takes measures with regard to the prompt and regular enforcement of the court’s affairs. 24. Section 32 provides, inter alia, that the Council assesses the ability and moral character of the judges when the information concerning the results achieved, the number of the cases resolved, the quality and promptness of their work indicate that the office of a judge has been performed unprofessionally, unethically and incompetently in general.

train

001-57912

ENG

FIN

CHAMBER

CASE OF STJERNA v. FINLAND

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

C. Russo;N. Valticos;R. Pekkanen

8. Mr Stjerna is a Finnish national and lives in Helsinki. 9. On 28 March 1989 he applied to the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa for permission to change his surname Stjerna (pronounced "Shaerna") to "Tawaststjerna". He maintained that his ancestors had used the proposed name and that he and other members of the Stjerna family had always felt it an injustice only to bear half of the original name. Moreover, the use of his surname gave rise to practical difficulties as it was an old Swedish form, was not well known and was difficult to pronounce. This meant that it was frequently misspelt (as "Stjärna", "Säärna", "Saarna", "Seerna", "Sierna", "Tierna" and "Stjerba"). 10. In an opinion of 19 April 1989 submitted to the County Administrative Board, the Advisory Committee on Names (nimilautakunta, nämnden för namnärenden) opposed the change. It had not been shown that the proposed name had been used by his ancestors because the ancestor in question, Mr Fredrik Stjerna, had been born out of wedlock. The ancestors cited were too far back to satisfy the requirements of section 10 (2) of the 1985 Surnames Act (sukunimilaki 694/85, släktnamnslagen 694/85, see paragraph 17 below). 11. In the course of an exchange of views with the Advisory Committee on Names, on 14 June 1989 the applicant stated that his name had given rise to a pejorative nickname "kirnu" in Finnish derived from the Swedish word "kärna" ("churn"). Moreover, in his view, the remoteness of the ancestors in question could not be a ground for refusing to authorise the name change. Referring to a genealogical report, he disputed the allegation that Mr Magnus Fredrik Tawaststjerna was not the father of Mr Fredrik Stjerna. 12. On 25 October 1989 the Advisory Committee on Names recommended that the applicant’s request be rejected; it considered the proposed name inappropriate. Although Mr Stjerna had cited a telling argument in support of his request - the obscure nature of his name - and was a descendant of a person named Tavaststjerna, his ancestor, who had died in 1773, was very far back and the suggested name would result in sources of inconvenience similar to his present name. 13. On 21 November 1989 the applicant told the Advisory Committee on Names that his mail was delayed as a result of his name being misspelt. In line with the spelling recommended by one of its members, he asked for his name to be changed to "Tavaststjerna" (as opposed to Tawaststjerna). 14. On 12 February 1990, on the basis of section 10 (2) of the Surnames Act, the County Administrative Board rejected the applicant’s request for permission to change his name. It was not satisfied that the proposed name had been used by his ancestors in such a way as to become "established", since the first one to bear his current name had been born out of wedlock. Since the proposed name had been used by ancestors who were very far back, it would not be appropriate to change his name to theirs. 15. The applicant appealed from the County Administrative Board’s decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), which, in a judgment of 14 November 1990, upheld the Board’s decision by four votes to one. It observed that it emerged from the written evidence that the applicant’s ancestor, Mr Fredrik Stjerna was born in 1764 and had been the illegitimate son of Mr Magnus Fredrik Tavaststjerna. For this reason alone the proposed name could not be considered to have been the "established" name of the applicant’s ancestors as required by section 10 (2) of the Surnames Act. In the light of this and the reasoning given by the Board there was no ground for altering the latter’s decision. In the opinion of the minority the name Tavaststjerna had been the "established" name of the applicant’s ancestors. The fact that Fredrik Stjerna, the first of his ancestors to be called Stjerna, was born out of wedlock was irrelevant. In view of the inconvenience which the present surname was causing the applicant, the County Administrative Board’s decision should be quashed and the case referred back to it. 16. According to the Government a Finnish surname guide of 1984 listed approximately 7,000 which had fallen out of use and, in addition, some 2,000 names based on common Finnish nouns and place names. 17. Section 10 of the Surnames Act provided that a surname may be changed on the condition that the person concerned could show: "(1) that the use of his current surname causes inconvenience because of its foreign origin, its meaning in common usage or its common occurrence or for any other reason; (2) that the proposed surname has previously been used by himself or in an established way (vakiintuneesti, hävdvunnen) by his ancestors and the name change may be considered appropriate; or (3) that a change of surname may be considered justified by changed circumstances or by any other special reasons." 18. Section 11 of the 1985 Act contained provisions on obstacles of a general character to authorising changes of surname. A new surname was not to be improper or otherwise one the use of which would be manifestly inconvenient. Save in particular circumstances, the new surname should not by virtue of its form or spelling be incompatible with domestic name practice (paragraph 1); or be a name very commonly used as a surname (paragraph 2); or be commonly used as a christian name (paragraph 3). A surname which was well known as the name of a particular Finnish or foreign family could not, unless there were particular reasons for doing so, be approved as a new surname (section 12 (1)). 19. Pursuant to section 13 (2) (1) (which contained provisions on "particular reasons for permitting a new surname"), a new surname falling foul of the restrictions in sections 11 (2) or 12 could nevertheless be permitted if the person requesting the name change showed that the surname in question had previously and lawfully been used by him or his ancestors. 20. If the County Administrative Board, after the Advisory Committee on Names had given its opinion, found no grounds under sections 10 to 13 for refusing to authorise an application for a change of surname, the application was published in the Official Gazette (section 18). 21. A person who claimed that the granting of an application for a change of surname would be incompatible with section 12 and would infringe his or her rights could, under section 19, file an objection with the County Administrative Board within thirty days from the date of the above-mentioned publication. An objection submitted after expiry of this time-limit could be taken into account in the examination of the application unless the matter had already been decided. 22. If the County Administrative Board rejected the application, its reasons were to be stated in the decision (section 20 (2)). A decision on an application for a change of surname was to be notified to the applicant and also to any person who has filed objections under section 19 (section 21) and could be the subject of an appeal by them (section 22) to the Supreme Administrative Court. 23. In 1991 the provisions concerning first names were included by Act 253/91 in the 1985 Surnames Act, which was then retitled the Names Act (nimilaki, namnlagen). 24. Population registration was effected at national and local level. Population registration was administered, at national level, by the Population Register Centre (chapter 3, section 8 of the 1970 Act on Population Registers - västökirjalaki 141/69, lag 141/69 om befolkningsböcker) and, at local level, by the evangelical-lutheran and orthodox parishes or, for persons who were not members of such parishes, by the local registration office (chapter 2, sections 3, 6 and 26). 25. The national register, which was updated five times a week, contained the names and personal identity numbers of the persons registered and also other information, making it possible to trace by electronic data processing a person’s name and address, even if the name or identity number did not appear on the register. Only public authorities had direct access to the register (see Le système d’information de l’état civil finlandais, Journée internationale de l’état civil, published in 1992 by the Commission internationale de l’état civil - "International Commission on Civil Status"). 26. The Centre established a personal identity number for every person registered, consisting of the person’s date of birth, an individual number, and a control number (sections 4 and 5 of the 1970 Decree on Population Registers - väestökirja- asetus 198/70, förordning 198/70 om befolkningsböcker). 27. If the County Administrative Board or, on an appeal, the Supreme Administrative Court, authorised a change of name, it had to inform the Centre of the new name (section 8 (1) of the 1991 Names Decree (nimiasetus 254/91, namnförordning 254/91)). The authority which gave permission for the name change had to be specified in the register (section 7 (4) of the 1970 Decree). 28. As from 1 November 1993, the 1970 Act and the 1970 Decree were replaced by the 1993 Act on Population Data (väestötietolaki 507/1993, befolkningsdatalag 507/1993) and the 1993 Decree on Population Data (väestötietoasetus 886/1993, befolkningsdataförordning 886/1993). 29. Under the legislation on names in the twelve member States of the International Commission on Civil Status, all members of the Council of Europe, the possibility of a person to change his or her name is subject to certain conditions. In Belgium, Portugal and Turkey, any reason may be invoked in support of a request for a change of name. In France, Germany, Luxembourg and Switzerland the reasons must be convincing ones. In some countries specific reasons are required: for instance that the current name gives rise to pronunciation and spelling difficulties (Austria) or causes legal or social difficulties (Austria and Greece) or is contrary to decency (the Netherlands and Spain), or is ridiculous (Austria, Italy and the Netherlands) or is otherwise contrary to the dignity of the person concerned (Spain) (see the International Commission’s Guide pratique international de l’état civil, Paris). Name changes are noted in population records, at the request of the interested person (Belgium and France) or of a public authority (France), or are done so automatically (the other ten members of the International Commission). 30. Under English law a person is entitled to adopt a surname of his own choosing and to use this name without any restrictions or formalities, except in connection with the practice of some professions (Halsbury’s Laws of England, 4th ed., vol. 35, paras. 1173-76). The new name is valid for purposes of legal identification, may be used in public documents and is entered on the electoral roll (Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 9, para. 16). The United Kingdom has no civil status certificates or equivalent current identity documents (ibid., para. 17). The near absence in English law of formalities governing changes of name has not resulted in a large number of changes (Margaret Killerby, ‘Précisions sur le droit anglais du nom’, pp. 183-84, in La nouvelle loi sur le nom, Paris, 1988).