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dev

001-92808

ENG

DEU

ADMISSIBILITY

ERNEWEIN AND OTHERS v. GERMANY

Inadmissible

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

The applicants are sixty-four natural persons who are all French citizens (see list appended) and an association, the “Orphelins de pères malgré-nous d’Alsace-Moselle” (OPMNAN). They were represented before the Court by Mr A. Friederich, a lawyer practising in Strasbourg. , may be summarised as follows. The applicants are orphans whose fathers died while serving in the German armed forces during the Second World War as “malgré nous”. The term “malgré nous” describes the 130,000 or so male adults from Alsace and Lorraine who were forcibly conscripted into the German armed forces from 1942 onwards; some 40,000 of them died. To prevent these conscripts from deserting, members of their extended family were occasionally taken hostage. Some members of the families of “malgré nous” who had deserted the German armed forces were subjected to forced labour or sent to concentration camps as reprisals. The Federal Republic of Germany as successor to the German Reich and the French Republic agreed on substantial compensation payments. On 15 July 1960 the Federal Republic of Germany paid 400 million German marks to the French Republic to indemnify French nationals who had been direct victims of Nazi persecution. On the basis of the Franco-German treaty of 31 March 1981, the Federal Republic of Germany made available 250 million marks to the “Fondation Entente Franco-Allemande”, a foundation established under French law, which is responsible, inter alia, for distributing compensation payments to those who were forcibly conscripted; the Federal Republic of Germany and the French Republic agreed that with these payments the “malgré nous” had been compensated. Orphans of deceased “malgré nous” were not eligible for compensation. One applicant lodged a petition with the German Bundestag. On 20 September 2007 the Bundestag decided to discontinue the examination of the petition on the grounds that the German and French governments had agreed that the payments in 1960 and 1981 had been the final gesture (abschließende Geste) towards the former French soldiers who had been forcibly conscripted into the German armed forces.

dev

001-81608

ENG

DEU

CHAMBER

CASE OF JORGIC v. GERMANY

Remainder inadmissible;No violation of Art. 6-1 or 5-1;No violation of Art. 7

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

6. The applicant was born in 1946. When he lodged his application, he was detained in Bochum, Germany. 7. In 1969 the applicant, a national of Bosnia and Herzegovina of Serb origin, entered Germany, where he legally resided until the beginning of 1992. He then returned to Kostajnica, which forms part of the city of Doboj in Bosnia, where he was born. 8. On 16 December 1995 the applicant was arrested when entering Germany and placed in pre-trial detention on the ground that he was strongly suspected of having committed acts of genocide. 9. On 28 February 1997 the applicant’s trial, on the charge of having committed genocide in the Doboj region between May and September 1992, started before the Düsseldorf Court of Appeal (Oberlandesgericht) acting as a court of first instance. 10. In the course of the proceedings the Court of Appeal heard evidence from six witnesses called by the prosecution, who had to be summoned abroad. 11. On 18 June 1997 the applicant requested the Court of Appeal to call and hear evidence from eight witnesses from Kostajnica for the purpose of proving the fact that he had been placed in pre-trial detention in Doboj between 14 May and 15 August 1992 and could not therefore have committed the crimes he was accused of. On 10 July 1997 the applicant sought leave to summon another seventeen witnesses from Kostajnica to prove his allegation. 12. On 18 August 1997 the Court of Appeal dismissed the applicant’s requests to summon these witnesses. Relying on Article 244 § 5, second sentence, of the Code of Criminal Procedure (see paragraph 39 below), it considered the testimony of these witnesses to be of little evidential value. Seven of these witnesses had made written statements which had already been read out in court. Only one of them had actually claimed to have visited the applicant in prison. Having regard to the evidence already taken, the court could exclude the possibility that the testimony of the witnesses named by the applicant, if heard in person, might influence the court’s assessment of the evidence. It pointed out that more than twenty witnesses who had already been heard in court, including two journalists who had not been victims of the crimes the applicant was accused of, had seen the applicant in different places outside prison during the time he claimed to have been detained. The documents submitted by the applicant in relation to the beginning and end of his detention in Doboj did not warrant a different conclusion, as they had obviously been signed by a person whom the applicant knew well. 13. On 8 September 1997 the applicant requested the court to call three witnesses from Doboj in order to prove that he had been detained between 14 May and 15 August 1992. He also requested an inspection of the scene of the crime (Augenscheinseinnahme) in Grabska or, alternatively, that a topographical map be drawn up in order to prove that the witnesses’ statements concerning his purported acts in Grabska were untrustworthy. 14. On 12 September 1997 the Court of Appeal rejected the applicant’s requests. As regards the refusal to summon the three witnesses named, the court, again relying on Article 244 § 5 of the Code of Criminal Procedure, found that the testimony of these witnesses would be of little evidential value. Having heard the evidence given by other witnesses, it was satisfied that the applicant had not been detained at the material time. It further considered an inspection of the scene of the crime or the drawing-up of a topographical map thereof to be unobtainable evidence (unerreichbare Beweismittel) within the meaning of Article 244 § 3 of the Code of Criminal Procedure (see paragraph 38 below), which it therefore did not have to accept. 15. In its judgment of 26 September 1997, the Düsseldorf Court of Appeal convicted the applicant on eleven counts of genocide (Article 220a nos. 1 and 3 of the Criminal Code – see paragraph 34 below) and for the murder of twenty-two people in one case, seven people in another case, and one person in a third case. In the remaining cases, he was convicted on several counts of dangerous assault and deprivation of liberty. It sentenced the applicant to life imprisonment and stated that his guilt was of a particular gravity (see paragraph 37 below). 16. The court found that the applicant had set up a paramilitary group, with whom he had participated in the ethnic cleansing ordered by the Bosnian Serb political leaders and the Serb military in the Doboj region. He had in particular participated in the arrest, detention, assault and ill-treatment of male Muslims of three villages in Bosnia at the beginning of May and June 1992. He had killed several inhabitants of these villages. He had in particular shot twenty-two inhabitants of the village of Grabska – women and disabled and elderly people – in June 1992. Subsequently, the applicant, together with the paramilitary group he had led, had chased some forty men from their home village and had ordered them to be ill-treated and six of them to be shot. A seventh injured person had died from being burnt with the corpses of the six people shot. In September 1992 the applicant had killed a prisoner, who was being ill-treated by soldiers in the Doboj prison, with a wooden truncheon in order to demonstrate a new method of ill-treatment and killing. 17. The court stated that it had jurisdiction over the case pursuant to Article 6 no. 1 of the Criminal Code (see paragraph 34 below). There was a legitimate link for criminal prosecution in Germany, as this was in accordance with Germany’s military and humanitarian missions in Bosnia and Herzegovina and the applicant had resided in Germany for more than twenty years and had been arrested there. Furthermore, agreeing with the findings of an expert in public international law, the court found that the German courts were not debarred under public international law from trying the case. In particular, neither Article VI of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), nor Article 9 of the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute) (see paragraphs 48-49 below) excluded the jurisdiction of German courts over acts of genocide committed outside Germany by a foreigner against foreigners. The court considered that this view was confirmed by the fact that the International Criminal Tribunal for the former Yugoslavia (ICTY) had stated that it was not willing to take over the applicant’s prosecution. 18. Furthermore, the court found that the applicant had acted with intent to commit genocide within the meaning of Article 220a of the Criminal Code. Referring to the views expressed by several legal writers, it stated that the “destruction of a group” within the meaning of Article 220a of the Criminal Code meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together (“Zerstörung der Gruppe als sozialer Einheit in ihrer Besonderheit und Eigenart und ihrem Zusammengehörigkeitsgefühl”); a biological-physical destruction was not necessary. It concluded that the applicant had therefore acted with intent to destroy the group of Muslims in the north of Bosnia, or at least in the Doboj region. 19. On 30 April 1999 the Federal Court of Justice, following an appeal by the applicant on points of law and after a hearing, convicted the applicant on one count of genocide and thirty counts of murder. It sentenced him to life imprisonment and stated that his guilt was of a particular gravity. 20. Endorsing the reasons given by the Court of Appeal, it found that German criminal law was applicable to the case and that the German courts consequently had jurisdiction over it by virtue of Article 6 no. 1 of the Criminal Code. It found, in particular, that no rule of public international law prohibited the applicant’s conviction by the German criminal courts in accordance with the principle of universal jurisdiction (Universalitäts/Weltrechtsprinzip) enshrined in that Article. It conceded that the said principle had not been expressly laid down in Article VI of the Genocide Convention, despite earlier drafts of the Genocide Convention in which it had been proposed to do so. However, the said Article did not prohibit persons charged with genocide from being tried by national courts other than the tribunals of the State in the territory of which the act was committed. Any other interpretation would not be reconcilable with the erga omnes obligation undertaken by the Contracting States in Article I of the Genocide Convention to prevent and punish genocide (see paragraph 48 below). The aforesaid interpretation of the Genocide Convention was also confirmed by Article 9 § 1 of the ICTY Statute, which provided for concurrent jurisdiction of the ICTY and all other national courts. 21. Moreover, the Federal Court of Justice found that the German courts also had jurisdiction pursuant to Article 7 § 2 no. 2 of the Criminal Code (see paragraph 34 below). 22. The Federal Court of Justice did not expressly deal with the applicant’s complaint that the Court of Appeal, in its decision of 18 August 1997, had refused to summon abroad any of the defence witnesses he had named on the basis of Article 244 § 5 of the Code of Criminal Procedure. However, it referred in general to the submissions of the Federal Public Prosecutor (Generalbundesanwalt), who had argued that the applicant’s appeal was inadmissible in this respect, as he had failed to set out the relevant facts in sufficient detail. As regards the applicant’s complaint that the Court of Appeal, in its decision of 12 September 1997, had refused to summon three further defence witnesses abroad, the Federal Court of Justice considered his complaint to be inadmissible, as he had not sufficiently set out the relevant facts and had not provided sufficient reasons in his appeal. The court further referred to the Federal Public Prosecutor’s submissions regarding the applicant’s complaint that the Court of Appeal had refused to have a topographical map drawn up. According to the Federal Public Prosecutor, the applicant’s complaint was ill-founded in this respect, especially as the Court of Appeal already had a video of the relevant locality. 23. The Federal Court of Justice upheld the Court of Appeal’s finding that the applicant had intended to commit genocide within the meaning of Article 220a of the Criminal Code, but found that his actions as a whole had to be considered as only one count of genocide. It referred to the wording of Article 220a § 1 no. 4 (imposition of measures which are intended to prevent births within the group) and no. 5 (forcible transfer of children of the group into another group) in support of its view that genocide did not necessitate an intent to destroy a group physically, but that it was sufficient to intend its destruction as a social unit. 24. On 12 December 2000 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint. 25. According to the Constitutional Court, the criminal courts had not violated any provision of the Basic Law by establishing their jurisdiction pursuant to Article 6 no. 1 of the Criminal Code taken in conjunction with Article VI of the Genocide Convention. The principle of universal jurisdiction afforded a reasonable link to deal with subject matter arising outside the territory of Germany, while observing the duty of non-intervention (Interventionsverbot) under public international law. The competent courts’ reasoning, namely, that Article 6 no. 1 of the Criminal Code taken in conjunction with Article VI of the Genocide Convention entitled them to examine the applicant’s case, was not arbitrary. It could properly be reasoned that the Genocide Convention, while not expressly regulating the principle of universal jurisdiction, provided that the Contracting Parties were not obliged to prosecute perpetrators of genocide, but had jurisdiction to do so. In fact, genocide was the classic subject matter to which the principle of universal jurisdiction applied. The criminal courts’ reasoning did not interfere with Bosnia and Herzegovina’s personal or territorial sovereignty, as that State had expressly refrained from requesting the applicant’s extradition. 26. Pointing out that in the case of an admissible constitutional complaint it was entitled to examine the act complained of under all constitutional angles, the Federal Constitutional Court further found that the applicant’s right to a fair trial as guaranteed by the Basic Law had not been violated. There was no doubt that Article 244 §§ 3 and 5 of the Code of Criminal Procedure were constitutional. The legislature was not obliged to set up specific rules of procedure for certain criminal offences. The right to a fair trial did not grant the applicant a right to have certain evidence taken, such as calling witnesses who had to be summoned abroad. 27. In respect of the interpretation of Article 220a of the Criminal Code, the Federal Constitutional Court found that there had been no violation of the principle that criminal law was not to be applied retroactively as guaranteed by Article 103 § 2 of the Basic Law. It stated that the way in which the Court of Appeal and the Federal Court of Justice had construed the notion of “intent to destroy” in the said Article was foreseeable. Moreover, the interpretation conformed to that of the prohibition of genocide in public international law – in the light of which Article 220a of the Criminal Code had to be construed – by the competent tribunals, several scholars and as reflected in the practice of the United Nations, as expressed, inter alia, in Resolution 47/121 of the General Assembly (see paragraph 41 below). 28. On 3 July 2002 the Düsseldorf Court of Appeal declared inadmissible a request by the applicant to reopen the proceedings. The fact that one of the witnesses who had been examined by the Court of Appeal, and who was the only person claiming to have been an eyewitness to the applicant murdering twenty-two people in Grabska, was suspected of perjury did not warrant a reopening. Even assuming that the said witness had invented the allegations against the applicant, the latter would still have to be sentenced to life imprisonment for genocide and on eight counts of murder. 29. On 20 December 2002 (decision served on 28 January 2003) the Federal Court of Justice decided that the applicant’s request to reopen the proceedings was admissible in so far as it concerned the murder of twenty-two people in Grabska. It pointed out, however, that, even assuming that the applicant’s conviction on twenty-two counts of murder was not upheld, his conviction for genocide and on eight counts of murder, and therefore his life sentence, including the finding that his guilt was of a particular gravity, would prevail. 30. In a constitutional complaint of 28 February 2003, the applicant claimed that the decisions of the Düsseldorf Court of Appeal and the Federal Court of Justice concerning the reopening of the proceedings violated his right to liberty as guaranteed by the Basic Law. He argued that they had erred in their finding that, in the proceedings to have the case reopened, the question whether the applicant’s guilt was of a particular gravity did not have to be assessed anew. 31. On 22 April 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. 32. On 21 June 2004 the Düsseldorf Court of Appeal decided to reopen the proceedings in respect of the applicant’s conviction for shooting twenty-two people in Grabska. It found that the only person claiming to have been an eyewitness to these murders was guilty of perjury at least in respect of some other statements. Therefore, it could not rule out the possibility that the judges then adjudicating the case would have acquitted the applicant on that charge if they had known that some statements by this witness had been false. 33. In so far as the applicant’s request to reopen the proceedings was granted, the Court of Appeal discontinued the proceedings. It argued that the sentence to be expected by the applicant, if he was again found guilty of having murdered twenty-two people in Grabska, was not significantly greater than the sentence which had already been imposed upon him with binding effect for genocide. Consequently, the judgment of the Düsseldorf Court of Appeal of 26 September 1997 remained final regarding the applicant’s conviction for genocide and on eight counts of murder, including the court’s finding that his guilt was of a particular gravity. 34. The relevant provisions of the Criminal Code, in their versions in force at the material time, on the jurisdiction of German courts, the crime of genocide and the gravity of a defendant’s guilt provided as follows: “German criminal law shall further apply, regardless of the law applicable at the place of their commission, to the following acts committed abroad: 1. genocide (Article 220a); ...” “1. ... 2. German criminal law shall apply to other offences committed abroad if the act is punishable at the place of its commission or if the place of its commission is not subject to enforcement of criminal law and if the perpetrator ... (2) was a foreigner at the time of the act, was found to be in Germany and, although the law on extradition would permit extradition for such an act, is not extradited because a request for extradition is not made, is rejected or the extradition is not enforceable.” “1. Whoever, acting with the intent to destroy, in whole or in part, a national, racial, religious or ethnical group as such, (1) kills members of the group, (2) causes serious bodily or mental harm ... to members of the group, (3) places the group in living conditions capable of bringing about their physical destruction in whole or in part, (4) imposes measures which are intended to prevent births within the group, (5) forcibly transfers children of the group into another group, shall be punished with life imprisonment. ...” 35. Article 220a of the Criminal Code was inserted into the German Criminal Code by the Act of 9 August 1954 on Germany’s accession to the Genocide Convention and came into force in 1955. Article 6 no. 1 and Article 220a of the Criminal Code ceased to be effective on 30 June 2002 when the Code on Crimes against International Law (Völkerstrafgesetzbuch) came into force. Pursuant to Article 1 of the new Code, it applies to criminal offences against international law such as genocide (see Article 6 of the new Code) even when the offence was committed abroad and bears no relation to Germany. 36. The applicant is the first person to be convicted of genocide by German courts under Article 220a since the incorporation of that Article into the Criminal Code. At the time the applicant committed his acts in 1992, a majority of scholars took the view that genocidal “intent to destroy a group” under Article 220a of the Criminal Code had to be aimed at the physical-biological destruction of the protected group (see, for example, A. Eser in Schönke/Schröder, Strafgesetzbuch – Kommentar, 24th edition, Munich 1991, Article 220a, §§ 4-5 with further references). However, a considerable number of scholars were of the opinion that the notion of destruction of a group as such, in its literal meaning, was wider than a physical-biological extermination and also encompassed the destruction of a group as a social unit (see, in particular, H.-H. Jescheck, Die internationale Genocidium-Konvention vom 9. Dezember 1948 und die Lehre vom Völkerstrafrecht, ZStW 66 (1954), p. 213, and B. Jähnke in Leipziger Kommentar, Strafgesetzbuch, 10th edition, Berlin, New York 1989, Article 220a, §§ 4, 8 and 13). 37. Under Article 57a § 1 of the Criminal Code, a sentence to life imprisonment may only be suspended on probation if, in particular, fifteen years of the sentence have been served and the particular gravity of the defendant’s guilt (besondere Schwere der Schuld) does not warrant the continued execution of the sentence. 38. Pursuant to Article 244 § 3 of the Code of Criminal Procedure, an application to adduce evidence may be rejected only under the conditions set out in that Article. It may be dismissed, inter alia, if the evidence is unobtainable (unerreichbar). 39. Article 244 § 5, second sentence, of the Code of Criminal Procedure lays down special conditions for rejecting an application to examine a witness who would have to be summoned abroad. These conditions are less strict than those for rejecting an application to hear evidence from a witness who can be summoned in Germany. It is sufficient that the court, in the proper exercise of its discretion, deems the examination of the witness not to be necessary for establishing the truth. 40. The relevant provision of the Genocide Convention, which came into force for Germany on 22 February 1955, provides: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” 41. In its Resolution 47/121 (no. A/RES/47/121) of 18 December 1992 concerning the situation in Bosnia and Herzegovina in 1992, the United Nations General Assembly stated: “Gravely concerned about the deterioration of the situation in the Republic of Bosnia and Herzegovina owing to intensified aggressive acts by the Serbian and Montenegrin forces to acquire more territories by force, characterized by a consistent pattern of gross and systematic violations of human rights, a burgeoning refugee population resulting from mass expulsions of defenceless civilians from their homes and the existence in Serbian and Montenegrin controlled areas of concentration camps and detention centres, in pursuit of the abhorrent policy of “ethnic cleansing”, which is a form of genocide, ...” 42. In the case of Prosecutor v. Krstić, IT-98-33-T, judgment of 2 August 2001, §§ 577-80, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), expressly diverging from the wider interpretation of the notion of “intent to destroy” by the United Nations General Assembly and the Federal Constitutional Court in its judgment of 12 December 2000 in the present case, found as follows with regard to the Genocide Convention: “577. Several recent declarations and decisions, however, have interpreted the intent to destroy ... so as to encompass evidence relating to acts that involved cultural and other non-physical forms of group destruction. 578. In 1992, the United Nations General Assembly labelled ethnic cleansing as a form of genocide. ... 579. The Federal Constitutional Court of Germany said in December 2000 that the statutory definition of genocide defends a supra-individual object of legal protection, i.e. the social existence of the group ... the intent to destroy the group ... extends beyond physical and biological extermination ... The text of the law does not therefore compel the interpretation that the culprit’s intent must be to exterminate physically at least a substantial number of the members of the group. ... 580. The Trial Chamber is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege. It therefore recognises that, despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide. The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.” 43. The Trial Chamber’s judgment was upheld in this respect by the judgment of 19 April 2004 rendered by the Appeals Chamber of the ICTY, IT-98-33-A, which found: “25. The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. ... The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. ...” 33. ... The fact that the forcible transfer does not constitute in and of itself a genocidal act does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff. The genocidal intent may be inferred, among other facts, from evidence of ‘other culpable acts systematically directed against the same group’.” 44. Similarly, in the case of Prosecutor v. Kupreškić and Others (IT9516-T, judgment of 14 January 2000, § 751), which concerned the killing of some 116 Muslims in order to expel the Muslim population from a village, the ICTY found: “Persecution is only one step away from genocide – the most abhorrent crime against humanity – for in genocide, the persecutory intent is pushed to its utmost limits through the pursuit of the physical annihilation of the group or of members of the group. In the crime of genocide the criminal intent is to destroy the group or its members; in the crime of persecution the criminal intent is instead to forcibly discriminate against a group or members thereof by grossly and systematically violating their fundamental human rights. In the present case, according to the Prosecution – and this is a point on which the Trial Chamber agrees – the killing of Muslim civilians was primarily aimed at expelling the group from the village, not at destroying the Muslim group as such. This is therefore a case of persecution, not of genocide.” 45. In its judgment of 26 February 2007 in the case of Bosnia and Herzegovina v. Serbia and Montenegro (“Case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide”), the International Court of Justice (ICJ) found under the heading of “intent and ‘ethnic cleansing’” (at § 190): “The term ‘ethnic cleansing’ has frequently been employed to refer to the events in Bosnia and Herzegovina which are the subject of this case ... General Assembly resolution 47/121 referred in its Preamble to ‘the abhorrent policy of “ethnic cleansing”, which is a form of genocide’, as being carried on in Bosnia and Herzegovina. ... It [i.e., ethnic cleansing] can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as ‘ethnic cleansing’ may never constitute genocide, if they are such as to be characterized as, for example, ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while ‘there are obvious similarities between a genocidal policy and the policy commonly known as “ethnic cleansing”‘ (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet ‘[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.’ ...” 46. According to the material available to the Court, there have been only very few cases of national prosecution of genocide in other Convention States. There are no reported cases in which the courts of these States have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide, that is, whether the notion of “intent to destroy” covers only physical or biological destruction or whether it also comprises destruction of a group as a social unit. 47. Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide (see, amongst many others, William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge 2000, pp. 199 et seq.). However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide (see, inter alia, M. Lippman, Genocide: The Crime of the Century, HOUJIL 23 (2001), p. 526, and J. Hübner, Das Verbrechen des Völkermordes im internationalen und nationalen Recht, Frankfurt am Main 2004, pp. 208-17; G. Werle, differentiating in Völkerstrafrecht, 1st edition, Tübingen 2003, pp. 205, 218 et seq.). 48. The relevant provisions of the Genocide Convention read: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” “Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” 49. The relevant provision of the ICTY Statute provides: “1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.” 50. The Appeals Chamber of the ICTY, in its decision of 2 October 1995 on the defence motion for interlocutory appeal on jurisdiction in the case of Prosecutor v. Tadić (no. IT-94-1), stated that “universal jurisdiction [is] nowadays acknowledged in the case of international crimes” (§ 62). 51. Likewise, the Trial Chamber of the ICTY, in its judgment of 10 December 1998 in Prosecutor v. Furundžija (no. IT9517/1T), found that [it] has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, “it is the universal character of the crimes in question ... which vests in every State the authority to try and punish those who participated in their commission” (§ 156). 52. According to the information and material before the Court, including material submitted by the Government which has not been contested by the applicant, the statutory provisions of numerous other Convention States authorise the prosecution of genocide in circumstances comparable to those in issue in the present case. 53. In many Contracting States of the Convention, the prosecution of genocide is subject to the principle of universal jurisdiction, that is, jurisdiction for crimes committed outside the State’s territory by non-nationals against non-nationals of that State and which are not directed against the State’s own national interests, at least if the defendant was found to be present on its territory (for example Spain, France, Belgium (at least until 2003), Finland, Italy, Latvia, Luxembourg, the Netherlands (since 2003), Russia, Slovakia, the Czech Republic and Hungary). At the time of the applicant’s trial, numerous other States had authorised the prosecution of genocide committed abroad by foreign nationals against foreigners in accordance with provisions similar to the representation principle (stellvertretende Strafrechtspflege – compare Article 7 § 2 no. 2 of the German Criminal Code, paragraph 34 above), for example Austria, Denmark, Estonia, Poland, Portugal, Romania, Sweden and Switzerland (since 2000). Convention States which do not provide for universal jurisdiction for genocide include, notably, the United Kingdom. 54. Apart from the Austrian, Belgian and French courts, it is in particular the Spanish courts that have already adjudicated on charges of genocide, relying on the principle of universal jurisdiction. The Spanish Audiencia Nacional, in its judgment of 5 November 1998 in the Augusto Pinochet case, held that the Spanish courts had jurisdiction over the case. On the subject of the scope of the Genocide Convention it stated: “Article 6 of the Convention does not preclude the existence of judicial bodies with jurisdiction apart from those in the territory where the crime was committed or international tribunals. ... it would be contrary to the spirit of the Convention ..., in order to avoid the commission with impunity of such a serious crime, to consider that this Article of the Convention limits the exercise of jurisdiction, excluding any jurisdiction other than those envisaged by the provision in question. The fact that the Contracting Parties have not agreed on universal jurisdiction over the crime for their respective national jurisdictions does not preclude the establishment, by a State which is a party to the Convention, of such jurisdiction over a crime which involves the whole world and affects the international community and indeed all of humanity directly, as stated in the Convention itself. ... Neither do the terms of Article 6 of the Convention of 1948 constitute an authorisation to exclude jurisdiction for the punishment of genocide in a State Party such as Spain, whose law establishes extraterritoriality with regard to prosecution for such crimes ...” (International Law Reports, vol. 119, pp. 331 et seq., at pp. 335-36)

dev

001-60723

ENG

NLD

CHAMBER

CASE OF YOUSEF v. THE NETHERLANDS

No violation of Art. 8

Gaukur Jörundsson

9. The applicant, born in 1959, was an Egyptian national at the time of the events complained of. He has since obtained Netherlands nationality and, as far as the Court is aware, is at present living in the Netherlands. 10. The applicant first arrived in the Netherlands in 1985. That year he met Ms R., a Netherlands national. On 16 January 1987 a daughter, S., was born to the couple, who were not married and were not living together. By a decision of 12 February 1987, the Deventer District Court judge (kantonrechter) appointed the applicant as the auxiliary guardian (toeziend voogd) of S., Ms R. as her mother ipso jure being her guardian (voogdes). 11. At some time in or around August 1987, the applicant moved in with Ms R. and their daughter in the house of Ms R.’s mother. They lived together for about a year. 12. The applicant went to the Middle East in July 1988 and stayed there for some two and a half years. During this time, contact between the applicant on the one hand and Ms R. and S. on the other was limited to the exchange of some letters. 13. The applicant returned to the Netherlands in early 1991. The applicant states that he saw S. every two weeks until 1993. Despite the applicant’s repeated requests, Ms R. refused to give him permission to recognise (erkennen) S. 14. Ms R. contracted a terminal illness. On 9 June 1993 she made a will in which she expressed the wish that, after her death, her brother Mr H.R. should have guardianship of her daughter, S. In January 1994 the applicant instigated summary injunction proceedings (kort geding) before the President of the Zwolle Regional Court (arrondissementsrechtbank), seeking an order for Ms R. to give him permission to recognise S. On 25 January 1994 the President gave a judgment refusing to grant the injunction sought. The President considered that Ms R. had not abused her power to withhold permission to the applicant’s recognition of S., since the change of surname which such recognition would entail for S. could not be deemed to be in her best interests. However, the President added by way of obiter dictum that it was important for both the applicant and his daughter that contacts between them be continued. The President therefore thought it desirable that S. spend every other weekend with her father. 15. In a further, supplementary will dated 7 February 1994 Ms R. stated that she had agreed with another of her brothers, Mr J.R., that after her death S. would be placed with his family. Ms R. further stated that it was her express wish that the applicant should not visit her daughter as this would seriously disrupt the life of the family in which S. was to be raised. Ms R. also expressed the opinion that it would be contrary to the best interests of her daughter if the applicant were to obtain access to S. According to Ms R., the applicant had no fixed abode, no residence permit, no employment and no financial means; he would only use the care for his daughter as a pretext for obtaining a residence permit in the Netherlands and thus be entitled to social-security benefits. Prior to her illness, the applicant had not shown much interest in S., nor had he contributed financially to S.’s upbringing. 16. Ms R. died on 15 February 1994. In conformity with her wishes, her brother, Mr H.R., was granted guardianship of S. and she was placed in Mr J.R.’s family. The applicant saw S. once every three weeks under an arrangement with the R. family. 17. Following Ms R.’s death, the applicant requested the Deventer Registrar of Births, Deaths and Marriages (ambtenaar van de burgerlijke stand – “the Deventer Registrar”) to draw up a deed of recognition and to enter this into the register of births. By a letter of 18 February 1994, the Deventer Registrar notified the applicant of his refusal to do so, being of the opinion that Egyptian law, which did not provide for the recognition of children, applied. 18. On 28 February 1994 the applicant lodged a request pursuant to Article 1:29 of the Civil Code (Burgerlijk Wetboek) with the Zwolle Regional Court asking that the Deventer Registrar be ordered to draw up the deed of recognition and enter it in the appropriate registers. Although the Regional Court agreed with the applicant that Netherlands law applied, it nevertheless refused to grant the request on 19 October 1994. It considered that, when alive, Ms R. had always withheld her permission for the applicant’s recognition of S.; it had not been established that there was family life within the meaning of Article 8 of the Convention; following Ms R.’s death somebody other than the applicant had been granted the guardianship of S.; and S. was, moreover, not living with the applicant. 19. Meanwhile, in June 1994, the applicant requested the Maastricht Regional Court to grant him access to S. every other weekend, as had been recommended by the President of the Zwolle Regional Court. He submitted that Mr H.R. was frustrating his right to regular and undisturbed access to his daughter. At the hearing in those proceedings on 3 October 1994, Mr H.R. and Mr J.R. stated that there was not and never had been family life between the applicant and S.; that the applicant only wanted regular access to S. in order to obtain a residence permit; that S. was settling into her new family; that S. called Mr J.R. “Daddy”; that S. did not enjoy the applicant’s visits; and that she did not trust him. In reply, the applicant stated that S. was very important to him; that the late Ms R. had been heavily influenced by her overbearing mother; that unbeknownst to Ms R.’s mother the applicant had continued the relationship with Ms R. after they had stopped living together; and that it was Ms R.’s mother who had told S. not to call the applicant “Daddy”. 20. At the conclusion of the hearing the Regional Court, being of the opinion that there was “family life” between the applicant and S., decided provisionally that the contacts between the applicant and S. were to continue at the offices of the Child Welfare Board (Raad voor de Kinder-bescherming), and that it would take a decision based on a report to be drawn up by that organisation. 21. The applicant lodged an appeal with the Court of Appeal (gerechtshof) of Arnhem against the decision of the Zwolle Regional Court not to order the Deventer Registrar to draw up a deed of recognition. He argued that Ms R.’s refusal to consent to his recognition of S. no longer had any effect after her death. That being so, there was no call for the courts to go into the question whether or not there existed family life between the applicant and S. Should the Court of Appeal nevertheless be of the opinion that it ought to examine this question and that a balancing exercise as required by Article 8 of the Convention was called for, the applicant submitted that he was the natural father of S.; that not only had there been a meaningful relationship between Ms R. and himself, they had also lived together as a family for some time and they had contributed equally to the care and upbringing of S. The applicant also referred to his request lodged with the Maastricht Regional Court to have his rights of access to S. increased. While he conceded that during the mother’s lifetime an unwanted recognition might have constituted a disproportionate interference with her private and family life, after her death only the interests of the applicant and the child remained to be balanced against each other, and there were no weighty interests on the side of the child which militated against recognition. 22. The applicant lastly submitted that it had been his desire from the outset to obtain guardianship (voogdij) of S. after her mother’s death and that S. should live with him. In order for a request for a change of guardianship to stand any chance of success, the applicant ought first to have recognised his daughter. The applicant urged the Court of Appeal to deal with his request speedily as he was being threatened with expulsion, the Deputy Minister of Justice (Staatssecretaris van Justitie) not accepting that there was family life between the applicant and S. Recognition would serve to confirm officially the natural ties between father and daughter. 23. At the hearing before the Court of Appeal on 8 December 1994, the applicant submitted, inter alia, that he had always done everything possible to ensure S.’s happiness but that Ms R.’s family had never accepted him. However, the relationship between S. and him was very strong. 24. In a decision of 17 January 1995 the Court of Appeal dismissed the applicant’s appeal. It held that the explicit refusal of Ms R. to consent to the applicant’s recognition of S. had not ceased to have effect after her death, as she had stated in her will that she maintained the refusal which she had considered to be in the best interests of S. 25. The Court of Appeal further found that, even assuming that family life had at one time existed between the applicant and S., that tie had been broken by subsequent events. The contacts which had taken place between the applicant on the one hand and Ms R. and S. on the other had been so sparse and irregular, and so devoid of mutual commitment, that they could no longer be regarded as constituting family life. The Court of Appeal went on to hold, however, that even if it had to be assumed that family life still existed, the interests of the child should be its foremost consideration. These interests would be best served by allowing S. to grow up in the family where she had been placed after the death of her mother and in accordance with her mother’s explicit last wishes, and where she received the care she needed. The recognition intended by the applicant was aimed at bringing about a change in this situation and, for that reason, could not be held to be in the best interests of S. The Court of Appeal found that this was all the less so as the applicant had never had the care of S., had not previously indicated that he actually wished to care for her and, in addition, had not substantiated his claim that he would be able to discharge his duty of care in a responsible manner. Moreover, recognition would mean that S. would automatically take the applicant’s surname, whereas she now had the same surname as the other members of the family in which she was growing up. 26. The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad), arguing, inter alia, that the Court of Appeal had been wrong to hold that the refusal of Ms R. to consent to the applicant’s recognition of S. could still have effect after her death. Moreover, the relevant legal provisions did not require that, in order for the natural father to recognise a child following the death of the mother, there should be family life between them. In any event, contrary to what the Court of Appeal had found, there was family life between the applicant and S., so that the Court of Appeal’s finding on this point was incomprehensible. 27. According to the applicant, the Court of Appeal had also been wrong to hold that it would be in the best interests of S. to be raised in Mr J.R.’s family. The legislature had, on the contrary, deemed that recognition by the natural father would serve a child’s interests in a case such as the present where the mother had died. Moreover, recognition as such would not entail any changes in the child’s living arrangements. Such changes could only be brought about if the applicant were to file a request for a change in the guardianship arrangements, in which event the interests of the child could be assessed at that time. Finally, the applicant submitted that the Court of Appeal could not have properly assessed what was in the best interests of S. without having sought the opinion of the Child Welfare Board. 28. By a decision of 8 December 1995, the Supreme Court dismissed the appeal on points of law. It agreed with the applicant that Ms R.’s refusal to consent to his recognition of S. – to which she had been entitled, such a right having been provided by law in order to protect the interests of mothers in her position – was no longer valid after her death. The Court of Appeal had given additional reasons for its decision not to order the Deventer Registrar to draw up a deed of recognition, even assuming that family life did exist. This reasoning, in the view of the Supreme Court, was sufficient in itself to support the Court of Appeal’s decision. In this regard the Supreme Court pointed out that, as a result of a valid recognition, legally recognised family ties (familierechtelijke betrekkingen) would be created between the child and the person who had recognised the child. This far-reaching consequence meant that recognition could affect interests of the child which were protected by Article 8 of the Convention. Although recognition could serve these interests, it could similarly harm them. Article 8 had thus required the Court of Appeal to balance the applicant’s interest in having the relationship between himself and S. confirmed as a legally recognised family tie, assuming that this relationship constituted family life, against the interest of the child in continuing to live with the legal family in which she had lived ever since her mother had died, and to keep that family’s surname. The Supreme Court found that the Court of Appeal had adequately acquitted itself of this task. 29. Given that the applicant had never made a secret of the fact that he intended to obtain guardianship of S. and to have her live with him, the Court of Appeal had been correct to take into account S.’s interest in not having her residence with Mr J.R.’s family threatened by the outcome of further legal proceedings. Finally, the legal provisions in force had not required the Court of Appeal to seek advice from the Child Welfare Board, and it had been up to the Court of Appeal itself to determine whether or not it needed such advice. 30. During and following the proceedings before the Supreme Court, a change in S.’s living arrangements occurred; the Supreme Court was unable to take these new circumstances into account as, pursuant to Article 419 § 2 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), it was bound by the facts as established by the Court of Appeal and contained in the case file. 31. In September 1995 S. returned to live with her maternal grandmother. According to the Child Welfare Board, one of the reasons for this was the distress caused to the family of her uncle, Mr J.R., by the applicant’s seeking access to S. On 31 January 1996 the Child Welfare Board requested the juvenile judge (kinderrechter) of the Amsterdam Regional Court to issue a supervision order (ondertoezichtstelling) in respect of S. During a hearing on 21 February 1996, the juvenile judge stated that for the time being it would be best if S. stayed with her grandmother, but that there should be contact between the applicant and S. and that the applicant’s future role in the life of S. should be further examined. On 6 March 1996 the juvenile judge issued a supervision order and appointed a family guardian (gezinsvoogd). 32. On 6 November 1996 the Deventer Registrar refused to comply with a new request from the applicant to draw up a deed of recognition and enter it in the register of births. The applicant again turned to the Zwolle Regional Court, submitting that the circumstances leading to the rejection of his first request had changed as S. was no longer living with her uncle. He further stated that he was concerned about his daughter’s well-being in view of the advanced age of the grandmother and the latter’s overbearing character. Moreover, the applicant submitted that he was capable of looking after S. himself. 33. The Regional Court rejected the applicant’s request on 26 May 1997. It considered that the change in S.’s living arrangements had been brought about by the juvenile judge and could not be held to be to the detriment of S. Moreover, the persons responsible for the care and upbringing of S. were in receipt of assistance as a result of the supervision order. The change in the living arrangements could therefore not, as such, alter the result in the balancing exercise that had been carried out by the Arnhem Court of Appeal. Noting that the applicant was still attempting to obtain guardianship of S., the Regional Court finally considered that the recognition of S. by the applicant would not be in her best interests. 34. The applicant did not file an appeal against the Regional Court’s decision of 26 May 1997. 35. Following the entry into force of the Law of 6 April 1995, which abolished the institution of auxiliary guardianship, the applicant is no longer S.’s auxiliary guardian. 36. The applicant, who since the events complained of has taken Netherlands nationality, has married another woman by whom he has a son. 37. A child born out of wedlock had the status of the natural child of its mother. It became the natural child of its father after having been recognised by the latter – the “father”, for the purposes of this provision, being the man who recognised the child, whether or not he was the biological father (Article 1:221 of the Civil Code). 38. A child born out of wedlock automatically had legally recognised family ties with its mother and her relatives. Recognition by the father entailed the creation of a legally recognised family tie between him and the child, as well as between the child and the father’s relatives (Article 1:222 of the Civil Code). At the relevant time the surname of such a child was the surname of its father if the latter had recognised the child, and the mother’s surname if not (Article 1:5 § 2 of the Civil Code). 39. Recognition of a child could be effected on the birth certificate itself or by a separate deed of recognition drawn up for that purpose by the Registrar of Births, Deaths and Marriages or a notary (Article 1:223 of the Civil Code). A deed of recognition drawn up by the registrar was entered in the register of births (Article 1:21 § 3 of the Civil Code). At the request of an interested party, the regional court could order that a deed be entered in the appropriate registers (Article 1:29 § 1 of the Civil Code). 40. A recognition was invalid if it was done during the mother’s lifetime without her prior consent in writing (Article 1:224 § 1 (d) of the Civil Code). However, in view of the right of the father and the child to respect for their “family life”, as guaranteed by Article 8 of the Convention, the Supreme Court construed this provision in such a way that the effective right of veto which the provision gave the mother could be overridden if she abused it (see, inter alia, the Supreme Court’s decision of 8 April 1988, Nederlandse Jurisprudentie 1989, no. 170). 41. The man who had recognised the child could apply to the district court for guardianship of the child. If a person other than the mother had guardianship, such an application could only be refused if there was reason to fear that the child’s interests would be neglected. However, if the mother had guardianship, the application would only be allowed if the district court considered that the child’s interests would thus be best served (Article 1:288 of the Civil Code). 42. In proceedings concerning, inter alia, parental authority, guardianship and access, the competent court could obtain advice from the Child Welfare Board if it felt that it needed such advice in order to make a proper assessment of the best interests of the child (Article 902a Code of Civil Procedure). 43. On 1 April 1998 a new Article 1:204 of the Civil Code came into force. It is still provided that, for a man to recognise a child who is not yet 16 years old as his, the prior written permission of the mother is required (Article 1:204 § 1 (c)). If the mother’s permission is lacking, it may be replaced by the permission of the regional court (Article 1:204 § 3). However, the man who seeks such permission must be the child’s biological father; in addition, recognition must not be detrimental to the mother’s relationship with the child or to the child’s own interests (ibid.). The explanatory memorandum on the bill which eventually led to the enactment of this provision makes it clear that the permission of the regional court is required in all situations where the mother’s permission cannot be obtained, including in the event of her death (Kamerstukken (Parliamentary Documents) II, 1995/96 session, 24,649 no. 3, p. 10). In addition, the child’s written permission is required if he or she has reached the age of 12 (Article 1:204 § 1 (d)). 44. At the same time Article 1:207 was introduced into the Civil Code, pursuant to which a child may request the regional court to issue a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap) in order to have a legal tie established between him or her and the biological father. No time-limit applies for lodging such a request. 45. The status of the Convention in Netherlands domestic law is regulated by the following provisions of the Netherlands Constitution: “Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.” “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions.” 46. An example of a decision of the Supreme Court in which a provision of domestic law was considered to be incompatible with a provision of the Convention, and for that reason held to be overridden by the latter, is that of 8 April 1988, cited in paragraph 40 above.

dev

001-22321

ENG

DEU

ADMISSIBILITY

WINGERTER v. GERMANY

Inadmissible

Ireneu Cabral Barreto

The applicant, Norbert Wingerter, is a German national, who was born in 1938 and lives in Heilbronn. The respondent Government were represented by Mr Klaus Stoltenberg, Ministerialdirigent. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 September 1996 the Stuttgart District Disciplinary Court for Lawyers (Anwaltsgericht) issued a reprimand (Warnung) against the applicant for having violated professional rules (anwaltliche Pflichtverletzung). In its reasoning, the Disciplinary Court noted that in 1994 the applicant had assisted Mr K., a foreigner, who had been accused in criminal proceedings in Mannheim, of having acted as an accessory to forgery, and that this trial had resulted in an acquittal for lack of jurisdiction of the German courts. In October 1994 the applicant had appealed against the bill of costs (Kostenfestsetzungbeschluss) as far as the fixing of his fees, to be borne by the Treasury, was concerned. In his appeal, the applicant, objecting to a refusal to reimburse his travelling expenses from Heilbronn to Mannheim, had argued that the intervention of a lawyer outside of Mannheim had been necessary. According to him, “the Mannheim judiciary had not been able to cope with the difficulty of the case. From the very beginning, it had been obvious that the accused had to be acquitted. Nevertheless, the public prosecutor had applied for a penal order and the court had issued one. The quality of the Mannheim lawyers is not superior to the quality of the judges and public prosecutors. ... It had been necessary to appoint a non-Mannheim lawyer to have justice done. Had the accused been assisted by a Mannheim lawyer, the penal order would have been undoubtedly been confirmed at the trial.” In March 1995, in the course of investigations brought against him, the applicant had submitted that this reasoning had been necessary to argue his appeal. He had added that his opinion on the quality of Mannheim judges, public prosecutors and lawyers was correct, as any first-semester law student would have known that the charge against his client was unfounded. Moreover, he had evoked the past of a Mannheim judge and two Mannheim lawyers under the Nazi regime. In particular, regarding judge W., he had referred to judgments rendered in 1944, convicting persons for having criticised the treatment of Jews or for failure to differentiate, in their charitable work, between their own people and Jews. Regarding lawyer B., he had mentioned a statement, to be found in Mr. B’s doctoral thesis, according to which a medical practitioner keeping friendship with a Jew violated the honour of the profession. According to him, their merits under the Nazi regime had contributed to their professional success after 1945. The Disciplinary Court considered that the applicant had thereby violated his professional duties within the meaning of section 43 a (3) of the Federal Regulations for Lawyers (Bundesrechtsanwaltsordnung). The Disciplinary Court examined the applicant’s above-mentioned statements in the light of these principles and found that the course of the criminal proceedings against Mr. K. had not been correct and could have justified even harsh criticism of the officials concerned. However, the applicant’s general attack charging the Mannheim judiciary of complete incompetence was unjustified and amounted to a deliberate disparagement of all members of the Mannheim judiciary on criminal matters. These considerations applied even more to his subsequent statements that in Mannheim anti-Semitic and Nazi judges had made a career because of their work or their attitude under the Nazi regime. Such statements had been all the more disproportionate as the claim for reimbursement had amounted to a mere 203 German marks (DEM). On 15 March 1997 the Baden-Württemberg Disciplinary Court of Appeal (Anwaltsgerichtshof), following a hearing, dismissed the applicant’s appeal and the Court ordered that the case should not be subject to an appeal on points of law. In its decision, the Disciplinary Court of Appeal considered that the applicant had been entitled to argue that his assistance in the criminal proceedings at issue had been necessary and that his qualifications were superior to those of Mannheim lawyers. Moreover, the allegation that ‘the quality of Mannheim lawyers was not superior to the quality of Mannheim judges and public prosecutors’ could have been read as applying only to those judges and prosecutors specifically involved in the procedure against Mr. K. The context in which the applicant made his statements shows, however, that that allegation was intended to characterise all Mannheim judges, public prosecutors and lawyers as incapable of recognising or remedying obvious legal errors. This assessment was confirmed in the applicant’s further submissions of March 1995. According to the Disciplinary Court of Appeal, the wholesale allegation that the Mannheim judges, public prosecutor’s and lawyers were incompetent in legal matters was disparaging and made without good cause. The applicant had no reason or justification to disparage the legal skills of all Mannheim judges, public prosecutors and lawyers. Even the obvious legal errors committed in the criminal proceedings against Mr K. could not justify disparaging whole groups of professionals. The insulting remarks made by the applicant had not been necessary to justify the need for having recourse to a non-local lawyer. The applicant’s submissions of March 1995 did not, in the Disciplinary Court of Appeal’s view, constitute a further breach of professional duties. Rather, the applicant had acted for the protection of his interests in the disciplinary proceedings against him. Moreover, to the extent that he had referred to the Nazi past of certain Mannheim lawyers and of a judge, he had not, in the Court of Appeal’s view, made a general statement. On 26 January 1998 the Lawyers’ Senate (Senat für Anwaltssachen) at the Federal Court of Justice dismissed the applicant’s request for leave to appeal on points of law. On 11 March 1998 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. According to section 43 of the Federal Regulations for Lawyers, a lawyer has to practise his profession conscientiously, and, whether in pursuit of his profession or otherwise, has to prove himself worthy of the respect and trust which his position requires. As one of the basic duties, section 43a(3) provides that in his professional conduct, a lawyer has to respect the duty of objectivity (Sachlichkeit). Such conduct lacks objectivity if it involves a deliberate dissemination of untrue or otherwise disparaging statements which find no ground in the behaviour of other persons involved in the proceedings or in the course of the proceedings. Section 113(1) of the Federal Regulations provides that disciplinary measures shall be taken against a lawyer who is liable of a breach of duties as defined by the Regulations or the rules on professional conduct (Berufsordnung). According to section 114(1), the possible disciplinary measures are: (1) a warning; (2) a reprimand; (3) a fine not exceeding DEM 50,000; (4) a temporary prohibition on practising as counsel in certain legal fields; or (5) a permanent exclusion from the Bar. The disciplinary measures of reprimand and fine may be imposed simultaneously (section 114(2)).

dev

001-86742

ENG

DEU

ADMISSIBILITY

FREIFRAU VON REHLINGEN AND OTHERS v. GERMANY

Inadmissible

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

The four applicants are Mrs Alexandra Freifrau von Rehlingen, Mr Matthias Prinz and their two children: Antonia Luisa Alexandrine, and Fidelius Friedrich Günter. They are all German nationals who were born in 1955, 1956, 1990 and 1992 respectively and live in Hamburg. The applicants were all represented before the Court by the second applicant, Mr M. Prinz, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. According to the initial regulation of Article 1616 of the German Civil Code (Bürgerliches Gesetzbuch) of 18 August 1896, a child born in wedlock would obtain the surname of the father, which would also be the common family name. With the introduction of the Act on the Reform of the Marital and Family Law (Erstes Gesetz zur Reform des Ehe- und Familienrechts) of 14 June 1976, a married couple could choose either of the spouses’ surnames as the family name. Their children would then obtain the same family name. If the parents were unable to choose a family name, the husband’s surname would automatically become the family name according to the then applicable version of Article 1355 § 2 of the German Civil Code. That provision was held to be unconstitutional and incompatible with the prohibition of discrimination against women (Article 3 § 2 of the Basic Law) by the Federal Constitutional Court on 5 March 1991. The Federal Constitutional Court ordered that, until the legislator had found a new regulation, couples who married after the day of the publication of the judgment and who were unable to agree on the choice of a common family name would provisionally keep their surnames. In such an instance, their children were provisionally able to obtain a compound name composed of both surnames of the parents, in order to leave to the legislator the option to introduce the possibility to obtain such names. On 1 April 1994, the Act on the Regulation of the Law of Family Names (Gesetz zur Neuordnung des Familiennamensrechts) came into force which corrected the above constitutional flaws. Article 1355 of the Civil Code was amended by giving both spouses the possibility to keep their surnames. According to the henceforth relevant Article 1616 § 2 (replaced in 1997 by Article 1617 § 1 of the Civil Code), a child would either obtain the surname of the father or the mother. Currently, if the parents cannot agree, the competent family court will refer the right to determination to one parent. A compound name for the child was not provided for by the new Act. The first two applicants married in 1990 and decided to keep their birth names. After the birth of their children, they applied to the Hamburg Registry Office (Standesamt) in order to obtain for their children the surnames “Freiherr von Rehlingen-Prinz” and “Freiin von Rehlingen-Prinz”. Their applications were to no avail. On 23 March 1994, they applied again to the Hamburg Registry Office in order to be considered for the period indicated by the Federal Constitutional Court in its judgment of 1991 during which compound names were provisionally permitted. Moreover, they argued that the current law as provided for by the Act on the Regulation of the Law of Family Names was unconstitutional in as far as it precluded compound names for children. Their application was dismissed by the Hamburg Registry Office which found that both children had obtained the last name “Prinz” in accordance with the then applicable Article 1355 § 2 of the German Civil Code. On 28 June 1994, the Hamburg District Court dismissed the first two applicants’ claim to order the Hamburg Registry Office to register their children with compound names. It held that, both under the present law and under the law that had been in force before the judgment of the Federal Constitutional Court in 1991, their children were not entitled to obtain compound names. The District Court did not find any reasons for the unconstitutionality of the present law, nor had any concerns been raised by academics and legal scholars in that connection. In its judgment of 1991, the Federal Constitutional Court had indicated a provisional period in which compound names could be obtained only with respect to those marriages that were concluded after the date of the publication of the judgment. The District Court found that that judgment was plain and unambiguous in this respect, and the applicants were clearly not concerned by the provisional period as they had married the year before the judgment was published. On 21 September 1994, the Hamburg Regional Court dismissed the first two applicants’ appeal against the decision of the District Court of 28 June 1994. The first two applicants’ further appeal was dismissed by the Hanseatic Court of Appeal on 18 September 1995. The court found that Article 1616 § 2 of the Civil Code was constitutional and neither violated the right to a family (Article 6 § 1 of the Basic Law) nor the right to educate one’s own children (Article 6 § 2 of the Basic Law). A positive obligation on the legislator to provide the possibility for children to obtain a compound name could not be derived from the Federal Constitutional Court’s judgment of 1991. On the contrary, the Federal Constitutional Court had granted the legislator a wide margin of appreciation when setting the law on family names, and the provisional period in which compound names could be obtained had only been introduced in order to allow the legislator the choice of all existing options within that margin. The first applicant lodged a constitutional complaint against the Act on the Regulation of the Law of Family Names in 1995. On 1 August 2000, the Federal Constitutional Court refused to admit that complaint. On 7 February 2002, the Federal Constitutional Court refused to admit the constitutional complaint (1 BvR 2300/95) of all four applicants lodged in 1995 against the above decisions by referring to a leading judgment of 30 January 2002 (see “Relevant domestic law and practice” below) in which the constitutionality of Article 1617 of the Civil Code had been confirmed. The applicant children’s younger siblings bear a compound name, but are neither born, nor registered in the birth register, in Germany. “§ 1 Spouses should designate a common family name (marital name). The spouses shall use the marital name which they have designated. If the spouses do not designate a family name, they will continue to bear those surnames after the marriage which they bore at the time when entering into the marriage. § 2 By declaration to the registrar, the spouses may designate, as their marital name, the birth name of the husband or the wife or the name he or she has at the time of the designation of the marital name. (...) § 4 A spouse whose name does not become the marital name may, by declaration to the registrar, attach, before or after the marital name, his or her birth name or the name he or she has at the time of the declaration on the designation of the marital name. This shall not apply if the marital name consists of more than one name. If the name of one of the spouses consists of more than one name, only one of these names may be attached. (...)” “§ 1 If the parents do not have a marital name but if they have joint parental responsibility, they shall, by declaration to the registrar, designate the surname that the father or the mother has at the time of the declaration as the birth name of the child. (...) § 2 If parents make no designation within one month of the birth of the child, the family court shall transfer the right of designation to one of the parents. Subsection (1) applies mutatis mutandis. The court may impose a time-limit on the parent for the exercise of the right of designation. If, after the time-limit has expired, the right of designation had not been exercised, the child shall be given the name of the parent to whom the right of designation was transferred.” Under German law, authentic compound names are permitted only in very specific circumstances. For example, compound names may be retained if they were used prior to state regulation of the law governing names. Moreover, pursuant to the Act on Change of Family Names and Forenames, compound names may come into being when persons with surnames which are highly common in Germany such as “Schmidt” or “Müller” (so-called Sammelnamen) add another name to render their family name easier to distinguish. Compound names created in this way may be passed on to children. In a leading judgment of 30 January 2002, the Federal Constitutional Court held, by six votes to two, the former version of Article 1616 § 2 of the German Civil Code (which is identical to Article 1617 § 1 of the current version of the Civil Code) to be constitutional. In particular, the Federal Constitutional Court found that the provision neither constituted a violation of the right to a family (Article 6 § 1 of the Basic Law), the right to educate one’s own children (Article 6 § 2 of the Basic Law) nor the children’s right to protection of their personality rights as guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law. The Federal Constitutional Court considered that, once children would be allowed to obtain compound names, the number of surnames could exponentiate with each future generation. The next generation would already be able to obtain a surname comprised of four names. Such growing “chains of surnames” would not only be impracticable, they would also be to the detriment of future generations whose surnames would be at risk of losing their function as a means of identification. The Basic Law would not prohibit the legislator from reducing the number of possible surnames to avoid such “name chains” in order to secure the function of the surnames of future generations. The Federal Constitutional Court considered that a different way of avoiding “name chains” would have been to allow compound names, but to restrict the number of surnames to two. This method, however, would prevent parents who already bear a compound name to give their children a compound name comprised of both parents’ surnames, or obtain such a surname themselves. A person with a compound name could no longer keep his or her surname after marriage and add the surname of his or her partner, as currently provided for by Article 1355 of the Civil Code. Therefore, the introduction of an option to let children obtain compound names would at the same time reduce the choice of surnames for those who already bear a compound name. Such a situation, in which one fundamental right restricts another, would consequently require a balancing of interests, which the legislator had done when introducing the former version of Article 1616 § 2 of the German Civil Code (now Article 1617 § 1). The Federal Constitutional Court stated that the legislator had had several options to balance the above interests. The option which the legislator chose was thereby neither required nor prohibited by the Basic Law. Lastly, the Federal Constitutional Court found that the former version of Article 1616 § 2 of the German Civil Code did not violate the prohibition of discrimination on grounds of sex as guaranteed in Article 3 § 2 of the Basic Law. If each spouse kept his or her surname after marriage, married couples could choose one of their surnames as the surname for their children. Article 1616 § 2 of the German Civil Code reduced the possible options to give their children a surname, but this concerned spouses of both sexes alike. The fact that married couples with different surnames were in practice more likely to choose the husband’s surname for their children was not considered to suggest a different finding. Even though this could possibly indicate a widespread affirmation of traditional marriage patterns, Article 3 § 2 of the Basic Law could not be interpreted as containing a positive obligation on the State to introduce a parents’ right to choose a compound name for their children. In any case, such a regulation had only minor effects on the State’s positive obligation to secure equality of the sexes as contained in the second sentence of Article 3 § 2 of the Basic Law. That children could still obtain a compound name under certain circumstances, particularly in cases in which one parent already bore a compound name was not regarded as a violation of the prohibition of discrimination against those children who could not obtain a compound name. In both instances, children were only allowed to obtain either the surname of the mother or the father.

dev

001-69505

ENG

POL

ADMISSIBILITY

KORAL v. POLAND

Inadmissible

Nicolas Bratza

The applicant, Mr Janusz Koral, is a Polish national who was born in 1953 and lives in Opinogόra, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date in 1989 criminal proceedings were instituted against J.K., the applicant's neighbour who assaulted and seriously injured him. The applicant joined the proceedings before the Ciechanów District Court (Sąd Rejonowy) as a civil party and lodged a claim for compensation against the defendant (powództwo adhezyjne). He also participated in them as the so-called “auxiliary prosecutor” (oskarżyciel posiłkowy). The proceedings were terminated on 25 June 2002. On 12 February 1999, the date on which the application was lodged with the Court, they were pending before the Warsaw Regional Court (Sąd Okręgowy). On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

dev

001-69543

ENG

GBR

ADMISSIBILITY

MCCALLA v. THE UNITED KINGDOM

Inadmissible

Josep Casadevall;Nicolas Bratza

The applicant, Royland McCalla, is a Jamaican national who was born in 1972 and lives in Nottingham. He is represented before the Court by Mr F.Vaz, a lawyer practising in Edgware. The applicant arrived in the United Kingdom in December 1999 and was granted leave to enter as a visitor until 17 January 2000. He applied for an extension which was granted until 20 June 2000. On 5 June 2000, he applied for a further extension as the husband of S., a British citizen whom he had married on 12 May 2000. Leave was granted for twelve months, expiring on 6 December 2001. S. had a daughter J. (born in 1998), by a previous relationship, who had regular contact with her natural father. Meanwhile in March 2001, the applicant was arrested for drugs offences. Following a plea of guilty to four counts of supplying crack cocaine and two counts of offering to supply, the applicant was sentenced on 4 June 2001 to five years' imprisonment. The judge did not make any recommendation for deportation. On 16 December 2001, S. gave birth to the applicant's son, R. On completion of one half of his sentence, the applicant was released on parole. On 10 July 2003, the Home Secretary gave notice of his decision to make a deportation order against the applicant, referring to his conviction in view of which he deemed it conducive to the public good to make such an order. The same day, the applicant appealed. Following a hearing, by a decision of 16 January 2004, the Adjudicator rejected his appeal. He gave weight to the applicant's good record in prison and his family circumstances. He noted that S. had relatives, including her parents, in Jamaica and had visited there on holiday, although she had lived all her life in the United Kingdom. Having regard however to the fact that the wife had a house and job in Nottingham, that R. had uncertain medical problems and J. had regular access with her natural father, he did not consider that it would be reasonable to expect the wife to emigrate to Jamaica, in particular as it would severe J.'s links with her natural father. Nonetheless, weighing these factors together with the seriousness of his offences, the short period in which the applicant had lived in the United Kingdom and the fact that the applicant and S. had married knowing that he was not a British citizen and did not have indefinite leave to remain, he found that the measure was not unjustified. On 15 April 2004, the Immigration Appeal Tribunal refused permission to appeal, finding no error in the Adjudicator's balancing of the relative factors. On 24 May 2004, the High Court refused an application for statutory review.

dev

001-75223

ENG

TUR

ADMISSIBILITY

CELIK AND OTHERS v. TURKEY

Inadmissible

The applicants whose names appear in the appendix are Turkish nationals. They are represented before the Court by Mr Mahmut Vefa, a lawyer practising in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. Until 1994 the applicants all lived in Akçabudak village, in the district of Lice in the Diyarbakır province, where they own property. In May 1994 security forces forcibly evacuated Akçabudak on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır where they currently live. On 26 October 1995 the mayor filed a petition with the office of the Diyarbakır Governor and asked the latter either to allow the residents to return to their village or to provide them with alternative residences. On 18 April 1996 the mayor filed a petition with the office of the Lice District Governor and asked the latter to provide financial aid and alternative residence for the residents. On 24 July 1996 the mayor filed a petition, on behalf of the residents, with the office of the Prime Minister requesting permission to return to their village. On 12 August 1996 the office of the Prime Minister sent the following reply to him: “Your petition containing a request of permission to return to your village has been transmitted to the Governor’s office in Diyarbakır for examination.” On 18 September 1996 the mayor filed a petition with the office of the Diyarbakır Governor and asked the latter to provide any type of aid for the residents. On 25 June 1998 the mayor filed a petition with the offices of the Diyarbakır Governor of the state-of-emergency region, the Diyarbakır Governor and the Deputy Prime Minister and asked the latter to provide any type of aid for the residents. On an unspecified date, the mayor filed a petition, on behalf of the residents, with the office of the Diyarbakır Governor and requested financial aid and compensation for the damages they had suffered. On 20 July 1998 the office of the Diyarbakır Governor of the state-of-emergency region sent the following reply to him: “...The office of the Diyarbakır Governor of the state-of-emergency region had constructed five hundred houses in Çölgüzeli village and they were allocated to the citizens by lots. Your requests will be taken in to consideration if such a construction project were to be implemented in the future.” On 17 January 2001 the mayor filed a petition, on behalf of the residents, with the office of the Diyarbakır Governor requesting permission to return to their village and financial aid. On 18 and 31 July 2001 five of the applicants lodged petitions with the Public Prosecutor’s office in Lice complaining about the burning down of their houses by security forces. However, the Public Prosecutor did not commence an investigation into the applicants’ allegations. On 16 August 2001 one of the applicants, Ahmet Öztek, filed a petition with the office of the Lice District Governor requesting permission to return to his village. On 4 September 2001 the Lice District Governor sent the following reply to the applicant: “...The Akçabudak village has been abandoned for a long time. Therefore, there are deficiencies in the infrastructure of the village. Consequently, if you return to your village, you will experience serious difficulties as regards the roads, water, electricity, telephone, etc. ...” On 9 September 2001 the Commander of District Gendarmerie Headquarters in Lice sent letters to the mayors of the villages in the Lice District and informed them that access to some villages of Lice District would only be possible during daytime in summer. The Commander further stated that the villagers would be allowed to work in their farms but would not be allowed to spend the nights in their village. It was noted that permission for access to village should be sought from local gendarmerie stations. Akçabudak was not listed among the villages to which access would be allowed under the aforementioned conditions. On 11 September 2001, the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorists would continue to be carried out in the district. The commander requested the District Governor’s office to warn the inhabitants in the region that the security forces would not be responsible for any casualties that might occur in the course the operations. On 9 October 2001 the office of the Gendarmerie General Command attached to the Ministry of the Interior sent a letter to the mayor informing him that by reason of the military operations, which were to be conducted on 10, 11 and 12 October 2001, access to villages of Saydamlı, Yalımlı, Akçabudak and Bayırlı would not be permitted until further notice. On 25 December 2001 the applicants’ representative, Mr Mahmut Vefa, filed a petition, on behalf of the applicants, with the office of the Gendarmerie General Command attached to the Ministry of the Interior requesting pecuniary and non-pecuniary compensation for the damage they had suffered. On an unspecified date, Mr M.Vefa brought an action, on behalf of fortythree applicants, with the Diyarbakır Administrative Court requesting pecuniary and non-pecuniary compensation for the damage the applicants had suffered. On 17 June 2002 the Diyarbakır Administrative Court dismissed the action on the basis of Article 5 of the Law No. 2577. On 24 July 2002 the representative appealed against the decision of the Diyarbakır Administrative Court. On 2 August 2002 the office of the Gendarmerie General Command sent the following reply to the complainants’representative: “...No military operations were conducted during April 1994 in Lice. ... In order to receive compensation, a copy of the civil or administrative courts’ judgments on the payment of compensation should also be submitted. Furthermore, if you did not file a petition with a court, for compensation within the statutory time limit, prescribed by Law No. 2577, your future petitions would be rejected. ...” The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).

dev

001-110895

ENG

UKR

CHAMBER

CASE OF KAVERZIN v. UKRAINE

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

4. The applicant was born in 1973. He is currently serving a prison sentence in Vinnytsya. 5. On 12 January 2001 the applicant was arrested on suspicion of several counts of aggravated murder and robbery. In the course of his arrest force was used against the applicant. 6. Subsequently, the applicant was taken to a police station, where he was allegedly tortured by unspecified police officers with the aim of extracting a confession of his having committed the crimes of which he was suspected. According to the applicant, during such ill-treatment, which continued for several days thereafter, he received an eye injury which eventually resulted in him suffering a complete loss of eyesight. 7. Later on the same day he was taken to a temporary detention centre (ізолятор тимчасового тримання – “the ITT”) in Kharkiv. 8. The next day the applicant was taken to the Kharkiv Emergency Hospital, where he was examined by a trauma specialist, a surgeon and a neurosurgeon. The applicant’s skull was x-rayed and samples of his blood and urine were taken. He was diagnosed with bruising to the chest, lumbar area, kidneys, and soft tissues on the face and the back of his head. The doctors prescribed a further examination of the applicant by an urologist and outpatient supervision by a neurologist. 9. On 15 January 2001 a prosecutor from the Kharkiv Regional Prosecutor’s Office questioned the applicant, in the presence of a lawyer appointed to assist him by the authorities, with a view to taking a decision concerning the applicant’s continued detention. The prosecutor noted a haematoma on the applicant’s face next to his right eye. According to the prosecutor’s report to his superior of the same date, the applicant explained that he had received the injury during his arrest, that he had not been illtreated by the police after his arrest and that he had voluntarily given his confession. 10. On 16 January 2001 the prosecutor was instructed by his superior to carry out an inquiry in order to take a decision in accordance with Article 97 of the Code of Criminal Procedure (see paragraph 45 below). 11. On the same date several police officers gave written explanations concerning the applicant’s arrest, in which they stated that the applicant had resisted arrest by “applying unarmed combat techniques and trying to escape”. According to them, “measures of physical restraint and special means [of restraint], namely handcuffs” had been used against the applicant and he had been taken to the police station. 12. On 19 January 2001 the applicant was taken by the police to see a medical expert. The expert examined the applicant and noted that he displayed bleeding into the eyeball, haematomas and abrasions on the left side of his chest, arms and legs, some of which were three to four days old and others were nine to eleven days old. The expert noted that many of the injuries, including the bleeding into the applicant’s eyeball, had been caused by blunt solid objects. According to the expert’s notes, during the examination the applicant stated that some of his injuries had been caused by him falling down the stairs, that his vision had been deteriorating since he was young, and that he had no complaints about the authorities’ actions. The expert concluded that the injuries were of a minor character and that they had not lead to a deterioration of the applicant’s health. 13. The applicant remained in police custody until 23 January 2001. On that date he was placed in an investigative detention unit (слідчий ізолятор – “SIZO”) in Kharkiv. Upon his arrival at Kharkiv SIZO, the applicant was examined by a paramedic, who noted several bruises on the left shoulder, chest, arm and knee. The applicant did not receive any treatment for his injuries in Kharkiv SIZO. 14. According to the applicant, on 26 January 2001 he complained to the same prosecutor from the Kharkiv Regional Prosecutor’s Office that had previously questioned him that he had been tortured by the police after his arrest. 15. On the same date the prosecutor issued a decision rejecting the applicant’s complaints and informed the applicant of it. The relevant parts of the decision read as follows: “...On 15 January 2001 A. V. Kaverzin was questioned at the regional prosecutor’s office in the course of consideration of the question of ... his placement in Kharkiv [SIZO] No. 27. During his questioning with the participation of [his] defence lawyer, A. V. Kaverzin explained that he had sustained the injuries in the course of his arrest, that he did not have any complaints against the police, [and] that he had made his first statements freely, without psychological or physical pressure on the part of the police officers. The [police] officers ... who had taken part in the arrest of A. V. Kaverzin [were questioned and] explained that they had been aware that A. V. Kaverzin had used firearms during his attempted arrest by the police in the Khmelnytsk Region, as a result of which two police officers had died. Because of that [fact] they had been particularly cautious and when A. V. Kaverzin had attempted to resist [arrest] ... there had been measures of physical restraint and special means [of restraint], namely handcuffs, applied to him. According to the records of the forensic examination ... dated 19 January 2001, [the following injuries on the body and face of A. V. Kaverzin] had been discovered: bleeding into the eyeball; a haematoma on the left side of the chest; numerous abrasions on the lower limbs that had been caused by blunt solid objects; abrasions and scratches on the wrists that had been caused by blunt solid objects, which could have been the handcuffs; numerous indurations of various parts of the skin with small wounds caused by insects ... the injuries could have been caused to A. V. Kaverzin in the circumstances described by [both] the police officers and A. V. Kaverzin himself. Therefore, there are no elements of a crime in the actions of the police officers. On the basis of the foregoing, pursuant to paragraph 2 of Article 6 of [the Code of Criminal Procedure] of Ukraine [the prosecutor]. Decided: 1. To refuse the opening of a criminal case against [the police] officers who took part in the arrest of ... A. V. Kaverzin on the ground there were no elements of a crime in their actions...” 16. According to the applicant, he was not given a copy of that decision and its details were not explained to him. 17. The decision was not challenged before the courts under the procedure envisaged by Article 236-1 of the Code of Criminal Procedure. 18. On 25 February 2001 the applicant was transferred to Khmelnytsk SIZO. On that date he was examined by a doctor, who noted that the applicant suffered from loss of eyesight as a result of a head injury in January 2001 and had several bruises on his body. 19. On 24 April 2001 the applicant was examined by a medical expert, who noted that the applicant had suffered a head injury and was completely blind. 20. During his detention in Khmelnytsk SIZO the applicant was examined by doctors and received specialist ophthalmological treatment in September and October 2001 and in August, September and November 2002. On several occasions he was taken to public hospitals for medical examination. The doctors concluded that the applicant did not require eye surgery and could receive the necessary medical treatment in the SIZO. 21. On 23 September 2002, on the order of the trial court, a medical panel established that the applicant had become completely blind and, accordingly, suffered from the highest officially recognised degree of disability. The applicant was diagnosed with corneal cicatrix and leucoma, a cataract of the right eye resulting from a penetrating wound, and uveitis in the left eye. The doctors concluded that the applicant was in need of outside assistance to manage aspects of daily life. 22. On 12 August 2003 the applicant was placed in Dnipropetrovsk Colony to serve his sentence. 23. During his detention in Dnipropetrovsk Colony the applicant was examined by doctors, including an ophthalmologist, at least once every year. In 2004 he was prescribed eye surgery at a specialised hospital. According to the Government, the applicant did not avail himself of the possibility to undergo the surgery pursuant to paragraph 5 Article 116 of the Code on the Execution of Sentences (see paragraph 48 below). 24. Subsequently, the applicant was prescribed anti-relapse treatment in view of his blindness, which mainly included administering medication. On several occasions the applicant refused to be examined by doctors and in January and February 2006 he refused to be transferred to a hospital within Vinnytsya Colony to receive specialised ophthalmological treatment. 25. In February 2004 the administration of Dnipropetrovsk Colony did not allow the applicant’s mother to supply him with unspecified medication which he allegedly needed. The authorities explained that the applicant would be given the necessary medication if his doctors so decided. In March 2004 the authorities informed the applicant’s mother that her request for the applicant’s transfer to a specialised prison for persons suffering from the highest degree of disability could not be met as no such a prison existed. The applicant did not provide further details in that respect. 26. The applicant alleged that in spite of his blindness he had been handcuffed when leaving his cell, including during daily walks and family visits, and had been followed by several wardens with a dog. 27. He also stated that in Dnipropetrovsk Colony he had been unlawfully refused two-hour daily walks to which he had allegedly been entitled in view of his disability; that his cell had lacked ventilation; and that he had not been allowed to make phone calls. He provided no further details in this respect. 28. According to the applicant, in April 2004 the prison authorities delayed, for about a month, the dispatch of one of his letters. 29. By a letter of 16 December 2004 addressed to the applicant’s mother, the Head of the Dnipropetrovsk Penitentiary Service informed her that: “... During [daily] walks [the applicant] has been handcuffed with his hands behind his back, as are all other life-sentenced prisoners, in accordance with paragraph 25 of the Internal Regulations of the Penitentiary Institutions. ... Once the area for [daily] walks is adapted to the requirements of the Internal Regulations ... as amended on 9 November 2004, life-sentenced prisoners will be allowed to stay there without handcuffs. In accordance with Article 151 of the Code on Execution of Sentences and section 23 of the Internal Regulations of the Penitentiary Institutions, prisoners sentenced for life are entitled to one-hour daily walks. Prisoners suffering from tuberculosis ... are entitled to two-hour daily walks. [Mr Kaverzin] does not suffer from tuberculosis, he is being detained under the ordinary regulations, and he is being [taken for] one-hour daily walks. All [of Mr Kaverzin’s] correspondence is dispatched in accordance with Article 113 of the Code on the Execution of Sentences; it has not been hindered.” 30. By a letter of 2 March 2005, the Governor of Dnipropetrovsk Colony informed the applicant’s mother that in 2005 one of the dogs accompanying the prison guards had bit the applicant because of his own recklessness. It was also stated that handcuffs were not being applied during daily walks. 31. The two above-mentioned letters contained a statement that the actions of the penitentiary authorities could be challenged before a prosecutor. 32. On 3 December 2008 the applicant was moved to Vinnytsya Colony, where he is currently serving his sentence. The applicant has not provided information concerning the medical assistance provided to him in that colony. 33. In May 2001 the applicant’s mother was informed that the applicant’s complaint of torture had been rejected as unsubstantiated, though no details of the decision were given to her. In November 2003 she requested a copy of the decision, which was sent to her in February 2004. 34. Subsequently, the applicant’s mother complained to a Member of Parliament of the applicant’s torture by the police and the authorities’ failure to investigate the matter. Upon a request by the Member of Parliament, in 2005 the materials of the previous inquiry were checked by the prosecutor’s superior, who eventually confirmed the accuracy of the decision issued on 26 January 2001. In particular, the supervising prosecutor studied the materials of the 2001 inquiry. 35. In March 2005 the applicant lodged a compensation claim with the Shevchenkivskyi District Court of Kyiv against the State Department for the Execution of Sentences and the Ministry of Interior, alleging that his disability had been caused by the unlawful actions of the police and the failure of the penitentiary authorities to provide him with adequate medical assistance. The courts at two levels of jurisdiction refused to examine the applicant’s claim for failure to meet the relevant procedural requirements. The applicant challenged the refusal in cassation, the outcome of which is unknown. 36. The criminal investigation in the applicant’s case was completed in November 2001. Subsequently, the criminal case was referred to the Khmelnytsk Court of Appeal for trial. 37. In the course of the investigation and trial, the applicant was assisted by a lawyer appointed for him by the authorities. That lawyer took part in the first stages of the proceedings before the first-instance court and was later replaced by another lawyer for unknown reasons. The new lawyer continued defending the applicant until those proceedings were completed. 38. In the course of the trial the applicant contested the charges against him and alleged that his confession to some of the crimes of which he had been accused had been obtained under physical and psychological pressure from the police. 39. On 13 November 2002 the court found the applicant guilty of thirteen counts of aggravated murder, infliction of grievous bodily injuries, illegal possession of firearms, banditry, and robbery. In particular, the applicant was held to be responsible for the murder of seven people, including three police officers who had attempted to stop him from committing crimes. He was found to be exceptionally dangerous to society and was sentenced to life imprisonment, together with the confiscation of all his property. 40. The court mainly based its judgment on the statements of about thirty witnesses and victims of the crimes, the testimony given by the applicant at the trial, and on the conclusions of several forensic, ballistic and other expert examinations. The findings of the court concerning one of the counts of murder were partly based on the confessions obtained from the applicant during his time in police custody. 41. In the same judgment the court, relying on the decision of the prosecutor of 26 January 2001, dismissed the applicant’s complaints of torture by the police and found that there was no evidence that his confession had been obtained under duress. 42. On 17 December 2002 the applicant lodged an appeal in cassation, contesting the first-instance court’s factual findings and legal conclusions. He further argued that, in determining his sentence, the court had not taken into account his poor state of health. The applicant also maintained his allegation of torture by the police. 43. On 13 May 2003 the Supreme Court partly varied the judgment of 13 November 2002, while confirming the first-instance court’s findings concerning the applicant’s guilt and upholding his sentence. The Supreme Court also rejected the applicant’s allegation of torture on the same grounds as the first-instance court. 44. The relevant provisions of the Constitution read as follows: “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity...” “The Prosecution Service of Ukraine constitutes a unified system that is entrusted with: (1) prosecuting [crimes] in court on behalf of the State; (2) representing the interests of a citizen or of the State in court in cases determined by law; (3) supervising compliance with the law by the bodies that conduct detection and search activities, inquiries and pre-trial investigations; (4) supervising observance of the law in the execution of judicial decisions in criminal cases, and also in the application of other coercive measures aimed at the restraint of citizens’ personal liberty.” 45. The relevant provisions of the Code of Criminal Procedure, as in force at the material time, provided: “A court, prosecutor, investigator or body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the circumstances surrounding the crime, identify those guilty of the crime and punish them.” “Criminal proceedings shall be instituted on the basis of: (1) applications or communications from enterprises, institutions, organisations, officials, representatives of official bodies, the public and individuals; (2) communications from representatives of the authorities, the public or individual citizens who have apprehended a suspect in the place where the crime was committed or caught him red-handed; (3) [the suspect’s] appearance with an acknowledgement of guilt; (4) information published in the media; (5) direct detection of signs of a crime by a body of inquiry, investigator, prosecutor or court. [Criminal] proceedings may be instituted only where there is sufficient information that a crime has been committed.” “Applications or communications ... about a crime may be made in writing or orally...” “A prosecutor, investigator, body of inquiry or judge shall accept applications or communications about crimes [which have been] committed or [are] being prepared, including in cases that are outside their jurisdiction. Upon an application or communication about a crime, the prosecutor, investigator, body of inquiry or judge shall adopt, within three days, one of the following decisions: (1) to institute criminal proceedings; (2) to refuse to institute criminal proceedings; (3) to remit the application or communication for examination in accordance with [the rules of] jurisdiction. Simultaneously, all possible measures shall be applied to prevent the further commission of the crime or to put an end to it... Before instituting criminal proceedings, the prosecutor, investigator or body of inquiry shall conduct an inquiry, if it is necessary to verify [information contained in] an application or communication about a crime. [Such inquiry] shall be completed within ten days by means of collecting explanations from individual citizens or officials or by means of obtaining necessary documents. [Information contained in] an application or communication about a crime may be verified before instituting criminal proceedings through detection and search activities...” “A decision by an investigator or body of inquiry refusing to institute criminal proceedings may be appealed against to the relevant prosecutor. If that decision was taken by a prosecutor, it may be appealed to a higher prosecutor. An appeal shall be lodged by a person whose interests are concerned or by his/her representative within seven days from the date of receipt of a copy of the decision. If the prosecutor refuses to annul the decision ... a person whose interests are concerned or his/her representative may lodge an appeal against it with a court under the procedure prescribed by Article 236-1 of this Code. ...” “An appeal against a decision by a body of inquiry, investigator or prosecutor ... refusing to institute criminal proceedings shall be lodged with [the relevant] court by a person whose interests are concerned or his/her representative within seven days of notification of the decision by the prosecutor...” “An appeal against a decision by a body of inquiry, investigator or prosecutor ... refusing to institute criminal proceedings shall be examined [by the relevant court] in a single-judge bench within ten days of its receipt. The judge shall obtain the materials on the basis of which the decision ... was taken, examine them, and inform the prosecutor and the appellant of the date on which the hearing on the appeal is scheduled. If necessary, the judge may hear the appellant in person. Having examined the appeal, the judge ... shall take one of the following decisions, depending on whether the requirements of Article 99 of this Code were observed: (1) to set aside the decision not to institute criminal proceedings and remit the materials for additional inquiry or open a criminal case; (2) to reject the appeal. The judge’s order may not be appealed against...” 46. Article 18 of the Code provides that male detainees sentenced to life imprisonment are to serve their sentences in correctional colonies of the highest level of security. They are placed in cells for two people. Under Article 140, they are allowed to have a one-hour daily walk. 47. Article 106 prohibits the use of special instruments of restraint, including handcuffs, to prisoners with (amongst other things) “apparent signs of disability”, provided they do not commit gang violence or violent assault endangering the life or health of others and do not offer armed resistance. 48. Pursuant to paragraph 5 of Article 116, prisoners may seek, at their own or at their relatives’ expense, medical assistance, including treatment, from civilian medical institutions. In such cases, medical assistance is to be provided at the medical unit of the colony in which the prisoner is serving his/her sentence, under the supervision of the colony’s medical staff. 49. According to Section 6 of the Prosecution Service Act, the prosecution service constitutes an integrated centralised system headed by the General Prosecutor of Ukraine and based on the principle of hierarchical subordination. 50. The Detection and Search Act provides a legal basis for various measures which may be used by the police, secret service and several other law-enforcement bodies in order to collect and record information about unlawful activities. These measures include questioning individuals upon their consent, secretly collecting data concerning crimes, using undercover agents, personal surveillance and so forth. Law-enforcement authorities entrusted with detection and search functions are required to follow prosecutors’ instructions. 51. The rules governing the detention of prisoners sentenced to life imprisonment subject them to special restrictions as regards the material conditions of their detention, activities and opportunities for human contact, which include permanent separation from the rest of the prison population, limited visiting entitlements, a prohibition on communication with other prisoners, and being escorted by three wardens with a guard dog and handcuffed with their arms behind their back whenever they are taken out of their cell (regulations 23-25). On 9 November 2004 regulation 8 has been amended to include the requirement that doors to walking areas in the sectors for prisoners sentenced to life imprisonment should be equipped with special windows allowing putting on and off handcuffs on prisoners. 52. Pursuant to regulation 94, prisoners sentenced to life imprisonment receive medical aid, as a rule, in their cells in the presence of at least three guards. Such prisoners are to be transferred to a medical institution run by the State Department for the Execution of Sentences, or to a regular medical centre, if they need urgent medical aid. 53. Annex 9 to the Regulations states that people detained in penitentiary institutions are not allowed to keep in their possession any medicines or medical items. 54. The instruction is a classified (non-public) document. An extract from it (paragraph 30.9) submitted by the Government provides as follows: “When prisoners sentenced to life imprisonment are taken out of their cells, the junior warden shall open the first door from the corridor side of the [door] and order the prisoners to come up to the door and turn round, facing toward the opposite wall and holding their hands behind their backs, and then, through the opening, handcuff the prisoners. Having handcuffed all the prisoners and having made sure that they have stepped back [against] the opposite wall, the warden shall [then] open the internal door. After the prisoners have been taken out from their cells, they shall undergo a partial search with the use, if necessary, of technical means of detection and control. The aforementioned category of prisoners are [to be] taken from their cells one after another, escorted by two officers from the administration and a junior warden with a guard dog. When escorting a prisoner sentenced to life imprisonment, one junior warden shall walk ahead of him, surveying the route. The prisoner shall follow two to three metres behind. The rest of the escorting junior wardens shall follow the prisoner one metre behind. The movement of life-term prisoners is organised under the personal control of the on-duty assistant to the prison governor, or his deputy, who, in all instances, shall follow in the rear.” 55. In the 2000-2001 report the Ombudsman described the problem of ill-treatment in the course of pre-trial investigations as a systemic one. In particular, she noted that: “...[P]eople [arrested by the police] are being beaten, humiliated, [and] tortured during the first hours following arrest in order to extract confessions or statements incriminating others. Torture and cruel and degrading treatment of citizens in the premises of the police at pre-trial stages of criminal proceedings are widespread and systemic. [This] gives evidence of brutal violations of human rights and abuse of power.” 56. According to the Ombudsman, the fact that police officers were required to increase the percentage of solved crimes, while investigators were required to increase the number of cases referred to the courts for trial, contributed to the use of torture. As she put it in the report, “the lack of investigators’ qualification in the situation when courts often accept a suspect’s confession as sufficient proof [of his guilt] [gave motivation] for law-enforcement officers to rapidly [extract confessions]...” 57. The Ombudsman also noted the lack of adequate action on the part of prosecutors as regards allegations of torture by the police, the prosecutors’ inquiries often being perfunctory and seriously protracted. She further observed that, when such cases reached the courts, the latter were in general hesitant to apply adequate sanctions against police officers responsible for torture and other forms of ill-treatment. According to the Ombudsman, in 2000 out of 55 police officers found guilty of such crimes only 22 were sentenced to imprisonment. 58. In her subsequent yearly reports concerning the human-rights situation in Ukraine, the Ombudsman made similar observations regarding the problem of ill-treatment by the police. For instance, in the 2010 report she noted that (extracts from paragraph 2.3 of the report): “...[L]aw-enforcement authorities beat individuals in order to extract confessions, to improve solved crimes’ rates, to extort bribes, or to steal [individuals’ property]. The majority of such incidents take place in the premises [of law-enforcement authorities]. Unfortunately, torture takes place in all regions of Ukraine, which is evidenced by the results of [the Ombudsman’s] work, information from prosecutors, human rights defenders, the Ministry of Interior, and court verdicts. [Such incidents] happen in different places, with different individuals, and in different circumstances. However, it is perhaps commonplace [...] that an individual in [Ukraine] may not feel free [and] protected from the criminal acts of State agents. ... Unfortunately, ill-treatment by law-enforcement authorities has taken on very brutal forms and has increasingly resulted in detainees’ deaths. In 2008 police officers tortured four people to death, in 2009 three, and in 2010 eight!” 59. In the 2011 report the Ombudsman named the problem of illtreatment as one of the top priorities in her work, noting that a third of about 5,000 complaints, which were being lodged with her office against police officers every year, concerned that problem. The Ombudsman considered that, in order to eradicate torture in police custody, it was necessary “to liquidate corruption in that body, to change the evaluation of police officers’ work [currently] based on the number of solved crimes, to put an end to [the practice of] abusing arrests and administrative detention, to provide arrested people with the possibility of obtaining assistance of a lawyer, to keep record and statistics of incidents of application of physical violence, to create an appropriate mechanism of investigation of complaints of torture, and [to establish] the national mechanism of prevention of torture” (section 3.4 of the report). 60. The report is based upon a detailed analysis of information concerning the human rights’ observance by the Ukrainian police in 2011, which includes official statistics, normative acts, observations by nongovernmental organisations, individual complaints and mass media publications. According to the report, in 2011 alone about 980,200 persons were ill-treated by the police, of which 35 persons died. There were about 1,300 official complaints of ill-treatment by the police lodged with the authorities during that year and only about 5% of them were found substantiated. Prosecutors opened 5 criminal cases against police officers on charges of torture and 15 cases on charges of infliction of bodily injuries and murder by agents of the police. The report also contains the following extract from an unpublished letter of the Ministry of Interior dated 24 January 2011: “...Numerous complaints against police officers provide evidence that the aims, methods and practice of law enforcement authorities have not changed. Repression, disrespect of citizens’ rights, freedoms and interests prevail in particular through [resort to] torture, inhuman or degrading treatment, physical and psychological pressure on suspects. Besides, because of the low level of professionalism of a large number of police officers and [their] lack of skills [to employ detention and search techniques] as envisaged by law, they use prohibited methods of [police] inquiry...” 61. The Government submitted copies of decisions concerning complaints of police ill-treatment made by two private individuals, V. P. and I. P., who had been arrested by the police on 2 April 2009 and released on the same day. The police had allegedly tried to coerce the complainants to confess to certain criminal acts. As established by medical examinations upon their release from police custody, the complainants had been injured either on that date or several days before. 62. The copies included two prosecutors’ decisions rejecting the complaints, which were subsequently quashed by higher prosecutors and a court. The court found that the prosecutors’ inquiry had not been full and objective and that they should have questioned several more people, including one of the complainants, and should have examined certain medical documents. The third decision issued by the prosecutors contained reference to the medical documents indicated by the court and to statements obtained from one of the people mentioned in the court’s decision. It was concluded that the allegations were unfounded and that the complainants had been injured before their arrest. It is unknown if the latter finding was challenged before the courts. 63. On 1 December 2004 the CPT published a report on its visit to Ukraine from 24 November to 6 December 2002. The relevant parts of the 2004 report read as follows: “... 2. Torture and other forms of ill-treatment 17. The treatment of persons deprived of their liberty by members of the operational services of [the police] remains a source of grave concern for the CPT, four years after its first visit to Ukraine. Once again, widespread allegations of physical ill-treatment have been received, at the time of apprehension and in particular during questioning. ... 18. There is no need here to set out the alleged forms of physical ill-treatment, as they are similar to those described in paragraph 18 of the report on the 2000 visit. As in the past, in many cases, the severity of the ill-treatment alleged was such that it could be considered as amounting to torture. ... 20. In the light of the information at its disposal, the CPT can only reach the same conclusion as it had in 1998 and 2000, namely that persons deprived of their liberty by [the police] run a significant risk of being physically ill-treated at the time of their apprehension and/or while in the custody of [the police] (particularly when being questioned), and that on occasion resort may be had to severe ill-treatment/torture. The 2002 visit showed that progress in implementing the recommendations made by the CPT in its previous report, aimed at introducing a strategy to prevent ill-treatment, has been slow... 22. It is axiomatic that one of the most effective means of preventing ill-treatment of persons deprived of their liberty lies in the diligent examination by the relevant authorities of all complaints of such treatment brought before them and, where appropriate, the imposition of a suitable penalty. This will have a very strong deterrent effect. Conversely, if the relevant authorities do not take effective action upon complaints referred to them, those minded to ill-treat persons deprived of their liberty will quickly come to believe that they can act with impunity. 23. In this respect, it must unfortunately be pointed out that, once again, the CPT’s delegation heard allegations to the effect that prosecutors and judges paid little attention to complaints of ill-treatment - even when the person concerned displayed visible injuries. In this context, the figures transmitted by the Ukrainian Prosecutor General’s Office speak volumes. It seems that over the first 10 months of 2002, the Ukrainian prosecutors did not initiate any criminal proceedings against law enforcement officials under Articles 126 (assault and battery) and 127 (torture) of the Criminal Code.” 64. The CPT made similar findings regarding allegations of ill-treatment by the police and lack of effective investigation in the reports on its visits to Ukraine from 9 to 21 October 2005 (paragraphs 15-38 of the 2005 report) and from 9 to 21 September 2009 (paragraphs 12-25 of the 2009 report). In the preliminary observations concerning its visit to Ukraine from 29 November to 6 December 2011, published on 12 March 2012, the CPT noted that “the phenomenon of police ill-treatment [remained] widespread and that persons [ran] a significant risk of being subjected to ill-treatment while in the hands of the police (in particular, when they [did] not rapidly confess to the criminal offence(s) of which they [were] suspected)”. 65. During the 2005 visit the CPT delegation also inspected Temnivka Colony No. 100 for men, including the unit for men sentenced to life imprisonment, and the temporary unit for women sentenced to life imprisonment at Kharkiv Colony No. 54. The CPT made the following findings concerning certain aspects of the conditions of detention of prisoners sentenced to life imprisonment (paragraph 113 of the 2005 report): “...[W]hereas the unacceptable practice of systematic handcuffing whenever a prisoner was taken out of a cell has at last been abolished for women, the Ukrainian authorities have still not ceased this practice for men. More generally, the attitude towards this category of prisoners at Colony No. 100 was extremely security-oriented, with staff constantly stressing their ‘dangerousness’. In addition, the delegation noticed a wire cage in the staff office, in which the prisoners said they were systematically locked when interviewed by members of staff...” 66. The CPT called upon the Ukrainian authorities to abolish “the practice of systematically handcuffing men whenever they are taken out of their cell ... with immediate effect”. 67. On 26 September 2007 the Commissioner for Human Rights published a report on his visit to Ukraine from 10 to 17 December 2006, in which he inter alia noted that “practically all [his] interlocutors, including heads of parliamentary political groups, representatives of law enforcement and civil society confirmed that torture was widespread in Ukraine” (paragraph 44 of the report of 26 September 2007). During his visit to Ukraine in November 2011, the Commissioner for Human Rights made the following observations in that context (paragraph 93 of the report published on 23 February 2012): “Ill-treatment by police in custody is a persistent problem in Ukraine, which has been raised in a number of reports of the Council of Europe Committee for the Prevention of Torture. Reports by international non-governmental organisations suggest that the phenomenon is fed by a culture of police impunity. Complainants who make well-founded allegations of serious abuses often receive the standard response that “there is no evidence of a crime”. The vast majority of cases, however, both grave and minor, are not reported to the authorities at all because the victims fear retaliation by the police, or have no faith that any action will be taken.” 68. The relevant extracts from the Appendix to the Recommendation, adopted at the 952nd meeting of the Committee of Ministers, read as follows: “... Instruments of restraint 68.1 The use of chains and irons shall be prohibited. 68.2 Handcuffs, restraint jackets and other body restraints shall not be used except: a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; or b. by order of the director, if other methods of control fail, in order to protect a prisoner from selfinjury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority. 68.3 Instruments of restraint shall not be applied for any longer time than is strictly necessary. 68.4 The manner of use of instruments of restraint shall be specified in national law...” 69. At a number of its meetings the Committee of Ministers has considered, pursuant to Article 46 § 2 of the Convention, the measures adopted by the Government of Ukraine with a view to complying with the Court’s judgments concerning the issues of inhuman and degrading treatment of applicants and/or the absence of an effective remedy whereby complaint might be made and a lack of procedural safeguards in police custody. 70. For instance, during the 1100th meeting on 1-2 December 2010 eight such judgments were put on the Committee’s agenda, namely Afanasyev v. Ukraine (no. 38722/02, 5 April 2005), Kozinets v. Ukraine (no. 75520/01, 6 December 2007), Kobets v. Ukraine (no. 16437/04, 14 February 2008), Ismailov v. Ukraine (no. 17323/04, 27 November 2008), Spinov v. Ukraine (no. 34331/03, 27 November 2008), Suptel v. Ukraine (no. 39188/04, 19 February 2009), Vergelskyy v. Ukraine (no. 19312/06, 12 March 2009) and Drozd v. Ukraine (no. 12174/03, 30 July 2009). 71. According to the material of the meeting (see document CM/Del/OJ/DH(2010)1100), the Ministers’ Deputies noted that since the events described in the judgments the Ukrainian authorities had adopted a number of measures to prevent new, similar violations. However, in spite of those measures, “the infliction of deliberate physical ill-treatment of detainees by police officers on duty, remains widespread in Ukraine”. The Deputies further noted that a comprehensive “action plan/action report” was awaited from Ukraine, which should contain details of the measures envisaged or taken to combat abuse in police custody and the evaluation of how these measures addressed the violations found by the Court. 72. Therefore, the consideration of the matter was postponed pending the submission of the “action plan/action report” by the Ukrainian Government. 73. At its 1110th meeting on 30 March 2011 the Committee of Ministers adopted the guidelines setting out concrete measures which the member states should adopt to ensure that those responsible for acts amounting to serious human rights violations (including violations of Articles 2, 3, 4 and 5 of the Convention) were held to account for their actions and that victims of human rights violations had the right to an effective remedy. 74. Concern about the “persistence of widespread use of torture” was expressed by the UN Human Rights Committee in its concluding observations concerning Ukraine published in November 2001. 75. At its thirty-eighth session (30 April – 18 May 2007) the UN Committee against Torture considered the fifth periodic report concerning Ukraine. The relevant extracts from its conclusions provide as follows: “... 9. The Committee is deeply concerned at allegations of torture and ill-treatment of suspects during detention, as well as reported abuses during the period between apprehension and the formal presentation of a detainee to a judge, thus providing insufficient legal safeguards to detainees... 10. The Committee is concerned by the failure to initiate and conduct prompt, impartial and effective investigations into complaints of torture and ill-treatment, in particular due to the problems posed by the dual nature and responsibilities of the General Prosecutor’s office, (a) for prosecution and (b) for oversight of the proper conduct of investigations. The Committee notes the conflict of interest between these two responsibilities, resulting in a lack of independent oversight of cases where the General Prosecutor’s office fails to initiate an investigation. Furthermore, there is an absence of data on the work of the General Prosecutor’s office, such as statistics on crime investigations, prosecutions and convictions, and the apparent absence of a mechanism for data collection... 11. The Committee is concerned at the current investigation system in which confessions are used as a principal form of evidence for prosecution, thus creating conditions that may encourage the use of torture and ill-treatment of suspects. The Committee regrets that the State party did not sufficiently clarify the legal provisions ensuring that any statements which have been made under torture shall not be invoked as evidence in any proceedings, as stipulated in the Convention...” 76. In its 2002 report on human rights violations, the International Helsinki Federation for Human Rights made the following observations in respect of Ukraine: “...[T]he pattern of torture and ill-treatment by law enforcement officials continued to persist from previous years, with the perpetrators rarely being brought to justice. Police officers reportedly punched, hit and kicked detainees and used various torture techniques on them, including suffocation. Once initiated, investigations into cases of alleged abuse by police officers were slow and inconclusive. According to the Government, about 185 cases of abuse by law enforcement officials were reported, while about 200 police members were charged with such crimes in 2000. During 2001 the Parliamentary Committee on Human Rights reportedly received more than 300 complaints concerning human rights abuses by law enforcement officials, and 50 of them dealt with physical and psychological violence. ...” 77. Amnesty International’s 2001 report referred to “widespread and persistent allegations of torture and ill-treatment of detainees by law enforcement”. Subsequent reports contained similar observations. 78. In a recent publication concerning the issue, Blunt Force: Torture and Police Impunity in Ukraine (12 October 2011), Amnesty International noted that: “... According to some estimates, hundreds of thousands of people in Ukraine may be victims of police abuses each year. Violations range from minor infringements of the criminal procedural code, to racial abuse, extortion, torture and other ill-treatment, and deaths in custody. These abuses are encouraged by a culture of impunity for the police in Ukraine. Complainants who make well-founded allegations of serious human rights abuses all too often receive the standard response “there is no evidence of a crime”. The vast majority of cases, however, both grave and minor, are not reported to the authorities at all because victims fear retaliation by the police, or have no faith that any action will be taken. ...” 79. It was concluded that “three key problems must be addressed [by the Ukrainian Government] as a priority – the lack of regular detention monitoring, the lack of independent investigations, and a reluctance to prosecute police officers”.

dev

001-57606

ENG

BEL

CHAMBER

CASES OF DE WILDE, OOMS AND VERSYP ("VAGRANCY") v. BELGIUM

Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 4;No violation of Art. 3;No violation of Art. 8;No violation of Art. 13;Just satisfaction reserved

13. The purpose of the Government’s application is to submit the De Wilde, Ooms and Versyp cases for judgment by the Court. On several points the Government therein expresses its disagreement with the opinion stated by the Commission in its report. 14. The facts of the three cases, as they appear from the said report, the memorials of the Government and of the Commission, the other documents produced and the addresses of the representatives appearing before the Court, may be summarised as follows: 15. Jacques De Wilde, a Belgian citizen, born on 11th December 1928 at Charleroi, spent a large part of his childhood in orphanages. On coming of age, he enlisted in the French army (Foreign Legion) in which he served for seven and a half years. As a holder of books for a fifty per cent war disablement pension and a military retirement pension, he draws from the French authorities a sum which in 1966 amounted to 3,217 BF every quarter. He has work, from time to time at any rate, as an agricultural labourer. 16. The applicant reported on 18th April 1966 at 11.00 a.m. to the police station at Charleroi and declared that he had unsuccessfully looked for work and that he had neither a roof over his head nor money as the French Consulate at Charleroi had refused him an advance on the next instalment of his pension due on 6th May. He also stated that he had "never" up to then "been dealt with as a vagrant". On the same day at 12 noon, Mr. Meyskens, deputy superintendent of police, considered that De Wilde was in a state of vagrancy and put him at the disposal of the public prosecutor at Charleroi; at the same time, he asked the competent authorities to supply him with information about De Wilde. A few hours later, after being deprived of his liberty since 11.45 a.m., De Wilde attempted to escape. He was immediately caught by a policeman and he disputed the right of the police to "keep him under arrest for twenty four hours". He threatened to commit suicide. The information note, dated 19th April 1966, showed that between 17th April 1951 and 19th November 1965 the applicant had had thirteen convictions by courts of summary jurisdiction or police courts and that, contrary to his allegations, he had been placed at the Government’s disposal five times as a vagrant. 17. On April 19th, at about 10 a.m., the police court at Charleroi, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of De Wilde, decided, at a public hearing and after giving him an opportunity to reply, that the circumstances which caused De Wilde to be brought before the court had been established. In pursuance of Section 13 of the Act of 27th November 1891 "for the suppression of vagrancy and begging" ("the 1891 Act") the court placed the applicant "at the disposal of the Government to be detained in a vagrancy centre for two years" and directed "the public prosecution to execute the order". 18. After being first detained at the institution at Wortel and then from 22nd April 1966 at that of Merksplas, De Wilde was sent on 17th May 1966 to the medico-surgical centre at St. Gilles-Brussels from where he was returned to Merksplas on 9th June 1966. On 28th June 1966, he was transferred to the disciplinary prison at Turnhout for refusal to work (Section 7, sub-section 2, of the 1891 Act), and on 2nd August 1966 to that of Huy to appear before the criminal court which, on 19th August, sentenced him to three months’ imprisonment for theft from a dwelling house. He was returned to Turnhout shortly afterwards. 19. On 31st May and 6th June 1966, that is, about a month and a half after his arrest and four weeks after sending his first letter to the Commission (3rd May 1966), the applicant wrote to the Minister of Justice invoking Articles 3 and 4 (art. 3, art. 4) of the Convention. He underlined the fact that on 6th May he had received 3,217 BF in respect of his pension and showed surprise that he had not yet been released. He also complained of being forced to work for the hourly wage of 1.75 BF. He added that he had refused to work in protest against the behaviour of the head of the block at Merksplas who had wrongfully claimed to be entitled to "take" from him 5% of his pension. Finally, he complained of the disciplinary measures taken on such refusal - punishment in a cell and confinement without privileges - and of hindrance to correspondence. On 7th June 1966, the Ministry of Justice requested the governor of the prison at St. Gilles to inform De Wilde "that his request for release" of 31st May would "be examined in due course". The applicant took up his complaints again on 13th June and later on 12th July 1966. In this last letter, he enquired of the Minister why he had been transferred to the prison at Turnhout. He also pointed out that there was no work available at this institution which would enable him to earn his "release savings". On 15th July, the Ministry had him notified that his release before the prescribed period had expired could "be considered" "provided that his conduct at work (was) satisfactory" and "adequate arrangements for rehabilitation (had) been made". De Wilde wrote again to the Minister on 8th August 1966. Due to his pension, he argued, he had "sufficient money"; in any case, "the results of (his) work" already amounted to more than 4,000 BF. As regards his rehabilitation, he stated that his detention made it "impossible"; it prevented him from corresponding freely with employers and the welfare officer had failed to help him. Nevertheless, on 12th August 1966, the Ministry considered that his application "(could) not at present be granted". On 13th August 1966, the applicant wrote once again to the Minister claiming he could find board and lodging and work on a farm. 20. On 25th and 26th October 1966, the Ministry of Justice decided that, at the expiry of the sentence he had received on 19th August, the applicant could be released once his rehabilitation seemed ensured by the Social Rehabilitation Office of Charleroi (Section 15 of the 1891 Act). De Wilde regained his freedom at Charleroi on 16th November 1966. His detention had lasted a little less than seven months, of which three months were spent serving the prison sentence. 21. According to a report of the Prisons’ Administration, the applicant received only one disciplinary punishment between the beginning of his detention (19th April 1966) and the date of his application to the Commission (17th June 1966): for refusal to work at Merksplas, he was not permitted to go to the cinema or receive visits in the general visiting room until his transfer to Turnhout. 22. In his application lodged with the Commission on 17th June 1966 (No. 2832/66) De Wilde invoked Articles 3 and 4 (art. 3, art. 4) of the Convention. He complained in the first place of his "arbitrary detention" ordered in the absence of any offence on his part, without a conviction and in spite of his having financial resources. He also protested against the "slavery" and "servitude" which, in his view, resulted from being obliged to work in return for an absurdly low wage and under pain of disciplinary sanctions. The Commission declared the application admissible on 7th April 1967; prior to this, the Commission had ordered the joinder of the case with the applications of Franz Ooms and Edgard Versyp. 23. On 21st December 1965 at 6.15 a.m., Franz Ooms, a Belgian citizen born on 12th April 1934 at Gilly, reported to Mr. Renier, deputy superintendent of police at Namur, in order "to be treated as a vagrant unless one of the social services (could find him) employment where (he could) be provided with board and lodging while waiting for regular work". He explained that of late he had been living with his mother at Jumet but that she could no longer provide for his upkeep; that he had lost a job as a scaffolding fitter at Marcinelle and, in spite of his efforts, had failed to find another job for over a month; that he no longer had any means of subsistence and that he had been "convicted" in 1959 for vagrancy by the police court at Jumet. 24. On the same day at about 10 a.m., the police court at Namur, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of Franz Ooms, considered at a public hearing and after giving him an opportunity to reply that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 16 of the 1891 Act, the court placed him "at the disposal of the Government to be detained in an assistance home" and directed "the public prosecution to execute this order". 25. Ooms was detained partly at Wortel and partly at Merksplas. He also spent some weeks at the prison medico-surgical centre at St. Gilles-Brussels (June 1966). 26. On 12th April 1966, that is less than four months after his arrest and about five weeks before applying to the Commission (20th May 1966), the applicant petitioned the Minister of Justice for his release. He alleged he was suffering from tuberculosis and that his family had agreed to take him back with them and place him in a sanatorium. On 5th May, the Ministry, after receiving the unfavourable opinion of the doctor and of the director of the institution at Merksplas, considered the request to be premature. Franz Ooms again made a petition for release on 6th June, this time to the Prime Minister. He pleaded that as "he had been ill since his detention" he had been unable to earn by his own work the 2,000 BF needed to make up his release savings, and repeated that his mother was willing to have him with her and to take care of him. The Ministry of Justice, to whom the Prime Minister’s office had transmitted the request, also considered it to be premature; on 14th June, it requested the governor of St. Gilles prison to inform the applicant accordingly. On 25th June 1966, the welfare department of the Salvation Army at Brussels certified that Franz Ooms would "be given work and lodging in (their) establishments immediately on his release". The applicant sent this declaration to the director of the welfare settlement at Wortel on 1st July, but without result. His mother, Mme. Ooms, confirmed her son’s declarations by letter of 15th July 1966 to the same director. In his reply of 22nd July, the director asked her to produce a certificate of employment, pointing out that "at the time of his possible discharge", the applicant had to have, besides a resting place, "a definite job by which he (could) ensure his upkeep". Mme. Ooms also wrote to the Minister of Justice on 16th July, asking for a "pardon for (her) son". On 3rd August 1966, the Ministry informed her that he would be freed when "he (had) earned, by his prison work, the sum of money prescribed in the regulations as the release savings of vagrants interned for an indefinite period at the disposal of the Government". In a report of 31st August 1966 drawn up for the Ministry of Justice, the director of the Wortel settlement pointed out that Franz Ooms had already received several criminal convictions, that this was his fourth detention for vagrancy, that his conduct could not be described as exemplary, and that his earnings amounted to only 400 BF. According to a medical certificate appended to the report, physical examinations of the applicant had revealed nothing wrong. As a result, on 6th September 1966, the Ministry instructed the director to inform the detainee "that his complaints had been found groundless". On 26th September 1966, Ooms again petitioned the Prime Minister. To justify this step, he cited the negative attitude of the Department of Justice. He stated that he was the victim of "monstrous injustices" which he attributed to his being a Walloon. He alleged, in particular, that on 23rd March 1966, at Merksplas, he had been punished with three days in the cells and a month’s confinement without privileges for refusing to sleep in a foul-smelling dormitory where the light was kept on all night, that he had been locked up naked and later "lightly clad" in a freezing cell which had brought on an attack of pneumonia and of tuberculosis for which he had had to spend three months in the sanatorium at the Merksplas institution. He also protested against the dismissal of the many petitions for release presented both by himself and by his mother. He finally declared his agreement to the opening of an enquiry for the purpose of verifying the truth of his allegations and he stated that he was ready to take action, if necessary, before a "national authority" within the meaning of Article 13 (art. 13) of the Convention. Two days later, the Prime Minister’s office informed the applicant that his letter had been transmitted to the Department of Justice. Ooms was released ex officio at Charleroi on 21st December 1966, one year to the day after being put at the disposal of the Government (Section 18, first sentence, of the 1891 Act). 27. In his application lodged with the Commission on 20th May 1966 (No. 2835/66), the applicant mentioned that he was in the sanatorium of the Merksplas institution but that his mother had agreed to have him hospitalised in a "civil" clinic. He added that his illness completely prevented him from working and thereby earning the 2,000 BF for his release savings; in any case, he would need at least a year to earn such a sum, at the rate of 1.75 BF per hour. He was therefore surprised that the Ministry of Justice had considered his request for release to be premature. Ooms, who had meanwhile been transferred to the prison at St. Gilles-Brussels, supplemented his original application on 15th June 1966. He declared that he had for the moment been cured of his pulmonary disease caused by ill-treatment and undernourishment, but his illness had left "traces" which made it impossible for him to perform "any heavy work". He also stressed that his mother, who was in receipt of a pension, wanted him home with her. In these circumstances he considered he was entitled to be released, and he complained of the Belgian authorities’ refusal to recognise this right. Invoking Article 6, paragraph (3) (b) and (c) (art. 6-3-b, art. 6-3-c), of the Convention he further maintained that on his arrest he had asked in vain for free legal aid; this fact was contested before the Court by the Government’s Agent. That part of the application where Franz Ooms complained – apparently in subsequent letters - of ill-treatment and of a violation of his liberty of conscience and religion (Articles 3 and 9 of the Convention) (art. 3, art. 9) was declared inadmissible on 11th February 1967 as manifestly ill-founded (Appendix II to the Commission’s report). On 7th April 1967, the Commission declared the remaining part of his application admissible, after having ordered its joinder with the applications of Jacques De Wilde and Edgard Versyp. 28. Edgard Versyp, a Belgian citizen born in Bruges on 26th April 1911, works, at least from time to time, as a draughtsman; he seems to have had his residence at Schaarbeek. On 3rd November 1965, at 9 p.m., he appeared before Mr. Meura, deputy superintendent of police at Brussels; he carried a letter from the Social Rehabilitation Office requesting that he be given a night’s shelter. He stated he had no fixed abode, no work or resources, and "(begged) to be sent to a welfare settlement"; he pointed out that he had "previously (been) in Merksplas" and did not wish for "any other solution". After spending the night in the municipal lock-up, where he had already been the night before, he was taken in charge by the Social Rehabilitation Office on 4th November at 9 a.m. On the same day, this office certified that so far as its services were concerned there was no objection to Versyp "being but in the charge of the prosecuting officer with a view to his possible placement in a state welfare settlement": he was "well-known to both (the) after-prison care and vagrancy sections" at the office and attempts so far to rehabilitate him had failed due to "his apathy, idleness and weakness for drink"; in any case, he refused "any other welfare action", except his detention. As a result, Versyp was immediately put at the disposal of the public prosecutor’s office. 29. A few hours later, the police court in Brussels, having satisfied itself as to "the identity, age, physical and mental state and manner of life" of the applicant, considered, at a public hearing and after giving Edgard Versyp an opportunity to reply, that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 13 of the 1891 Act, the court placed him "at the disposal of the Government to be detained in a vagrancy centre for two years". It entrusted the execution of this order to the public prosecutor, who on that same day, 4th November 1965, required the director of the vagrancy centre of Merksplas to receive Versyp into his institution. 30. Versyp was detained at different times at Wortel, Merksplas and Turnhout. 31. On 7th February 1966, that is more than three months after his arrest and more than six months before applying to the Commission (16th August 1966), he wrote from Wortel to the Minister of Justice requesting his transfer to the solitary confinement division in Merksplas. His request was not transmitted to Brussels due to the imminent visit of the inspector-general who granted his request the next day. On 10th May 1966, the applicant requested his transfer form Merksplas to the prison at St. Gilles-Brussels where, he thought, the Head of the Social Rehabilitation Service could succeed in getting him "work outside" to allow him "to live as an honest citizen". He stated that living "with other vagrants in Wortel and Merksplas" had "shattered" his morale and that he had neglected his work as he had had to receive treatment in hospital twice; he promised, however, to attend to "(his) business outside more efficiently in order to avoid a similar situation recurring". In a report of 16th May, the director of the Merksplas institution pointed out that Versyp, who had nine criminal convictions and had been detained four times for vagrancy, had spent the greater part of his detention in solitary confinement and could not adapt himself to communal life; the director therefore suggested his transfer to a solitary confinement prison (op zijn vraag naar een celgevangenis), in accordance with his request. As a result, he was sent on 23rd May to Turnhout Prison and not to that of St. Gilles; on 6th June, he complained of this to the Ministry of Justice, which ordered his return to Wortel. On 22nd August 1966, Versyp begged the Ministry to grant him the opportunity of rehabilitating himself "in society according to (his) aptitudes through the good offices of the Brussels’ Social Service". On 6th September, the authorities of the Wortel settlement informed him, on the instructions of the Ministry, that his case would be examined when the amount of his release savings showed that he was capable of doing a suitable job of work. On 26th September, the applicant protested to the Ministry against this reply. According to him, he had been prevented "by devious means" from earning anything both at Wortel and Turnhout in order "that (he) could then be held for an even longer period". Thus, at Wortel they wanted to make him do work for which he was not fit - potato picking - and refused to give him other work which he was able to do. Furthermore, they had purported to forbid him to correspond with the Commission but without success as he had invoked the regulations and informed the public prosecutor’s office. In short, he felt himself exposed to hostility which made him want to leave Wortel for Merksplas, or better still, for St. Gilles prison where, he claimed, the Social Rehabilitation Service would find him a suitable job and accommodation "in a hostel in Brussels". The Ministry of Justice filed this letter without further action; on 28th September 1966, the director of the state welfare settlement at Wortel was requested so to inform the applicant. Versyp was released on 10th August 1967, by virtue of a ministerial decision of 3rd August (Section 15 of the 1891 Act) and after one year, nine months and six days of detention. On 1st August the authorities of the Wortel settlement had given a favourable opinion on the new request for release which he had made some time before; they noted, amongst other things, that he would more easily find a job at that time than at the expiry of the term fixed in 1965 by the Brussels magistrate, that is in the month of November. 32. In the application which he lodged with the Commission on 16th August 1966 (No. 2899/66) and supplemented on 6th September 1966, the applicant invoked Articles 4, 5 and 6 (3) (c) (art. 4, art. 5, art. 6-3-c) of the Convention. He complained in the first place of his detention: he emphasised that he had a fixed abode at Brussels-Schaarbeek and had never begged and so he was surprised at having been placed in a vagrancy centre. He further alleged that he had had no opportunity of defending himself before the Brussels police court on 4th November 1965 as the hearing had lasted "scarcely two minutes" and he had not been granted free legal aid. He also complained of various features of the regime to which he was subjected. In order to prevent him accumulating the 2,000 BF required to constitute release savings, he had been left, he alleged, for several months without sufficient work. In a general way, he added, the directors of the various institutions acted in concert in order to prolong the detention of vagrants as much as possible; the Government, for its part, "encouraged" vagrancy which gave it a labour force almost without cost (1.75 BF per hour at manual work) and huge profits. Finally, Versyp maintained that his numerous letters addressed to the competent authorities, such as, for example, the inspector of prisons, the public prosecutor’s office (July 1966) and the Minister of Justice (June and August 1966), invariably returned "to the director" who filed them without further action; these letters were not the object of any decision or, like his request for a transfer to Brussels, met with a refusal. One of them, that addressed on 7th February 1966 to the Minister of Justice by registered post, had even been opened by the director of the Wortel settlement who had not sent it. On 7th April 1967, the Commission declared the application admissible; it had previously ordered its joinder with the applications of Jacques De Wilde and Franz Ooms. 33. According to Article 347 of the Belgian Criminal Code of 1867 "vagrants are persons who have no fixed abode, no means of subsistence and no regular trade or profession". These three conditions are cumulative: they must be fulfilled at the same time with regard to the same person. 34. Vagrancy was formerly a misdemeanour (Criminal Code of 1810) or a petty offence (Act of 6th March 1866), but no longer of itself constitutes a criminal offence since the entry into force of the 1891 Act: only "aggravated" vagrancy as defined in Articles 342 to 345 of the present Criminal Code is a criminal offence and these articles were not applied in respect of any of the three applicants. "Simple" vagrancy is dealt with under the 1891 Act. 35. According to Section 8 of the said Act "every person picked up as a vagrant shall be arrested and brought before the police court" - composed of one judge, a magistrate. The public prosecutor or the court may nonetheless decide that he be provisionally released (Section 11). "The person arrested shall be brought before the magistrate within twenty-four hours and in his ordinary court, or at a hearing applied for by the public prosecutor for the following day". If that person so requests "he (shall be) granted a three days’ adjournment in order to prepare his defence" (Section 3 of the Act of 1st May 1849); neither De Wilde, nor Ooms nor Versyp made use of this right. 36. Where, after having ascertained "the identity, age, physical and mental state and manner of life" of the person brought before him (Section 12), the magistrate considers that such person is a vagrant, Section 13 or Section 16 of the 1891 Act becomes applicable. Section 13 deals with "able-bodied persons who, instead of working for their livelihood, exploit charity as professional beggars", and with "persons who through idleness, drunkenness or immorality live in a state of vagrancy"; Section 16 with "persons found begging or picked up as vagrants when none of the circumstances specified in Section 13 ... apply". In the first case the court shall place the vagrant "at the disposal of the Government to be detained in a vagrancy centre, for not less than two and not more than seven years"; in the second case, the court may "place (him) at the disposal of the Government to be detained in an assistance home" for an indeterminate period which in no case can exceed a year (see paragraph 40 below). Section 13 was applied to Jacques De Wilde and Edgard Versyp and Section 16 to Franz Ooms. The distinction between the "reformatory institutions" referred to as "vagrancy centres" and "assistance homes" or "welfare settlements" (Sections 1 and 2 of the Act) has become a purely theoretical one; it has been replaced by a system of individual treatment of the persons detained. Detention in a vagrancy centre is entered on a person’s criminal record; furthermore, vagrants "placed at the disposal of the Government" suffer certain electoral incapacities (Articles 7 and 9 of the Electoral Code). 37. Magistrates form part of the judiciary and have the status of an officer vested with judicial power, with the guarantees of independence which this status implies (Articles 99 and 100 of the Constitution). The Court of Cassation, however, considers that the decisions given by them in accordance with Sections 13 and 16 of the 1891 Act are administrative acts and not judgments within the meaning of Section 15, sub-section 1, of the Act of 4th August 1832. They are not therefore subject to challenge or to appeal nor - except when they are ultra vires (see paragraph 159 of the Commission’s report) – to cassation proceedings. The decisions of the highest court in Belgium are uniform on this point. As to the Conseil d’État, it has so far had to deal with only two appeals for the annulment of detention orders for vagrancy. In a judgment of 21st December 1951 in the Vleminckx case, the Conseil d’État did not find it necessary to examine whether the Brussels police court’s decision taken on 14th July 1950 in pursuance of Section 13 of the 1891 Act emanated from an authority which was "acting as an administrative authority within the meaning of Section 9 of the Act of 23rd December 1946"; the appeal lodged by Mr. Vleminckx on 31st July 1950 had been dismissed because: "the decision appealed against (was) a preliminary decision which (had been) followed by the Government’s decision to detain the appellant in a vagrancy centre ...; the appellant (could) not establish that he (had) any interest in the annulment of a decision which merely (allowed) the Government to detain him, while the actual decision by which he was interned (had not) been appealed against". As against this, on 7th June 1967, that is two months after the Commission had declared admissible the applications of Jacques De Wilde, Franz Ooms and Edgard Versyp, the Conseil d’État gave a judgment annulling the decision by which on 16th February 1965 the Ghent police court had placed a Mr. Du Bois at the disposal of the Government in pursuance of Section 16 of the 1891 Act. Before examining the merits, the Conseil d’État examined the admissibility - contested by the Minister of Justice - of the appeal lodged by Mr. Du Bois on 14th April 1965. In the light of the legislative texts in force, of the preparatory work thereto and of "the consistent case-law of the ordinary courts", the Conseil d’État considered that the placing of a vagrant at the disposal of the Government does not result from "the finding of a criminal offence" but amounts to "an administrative security measure" and that the decision ordering it is therefore "of a purely administrative nature" "so that no form of appeal is open to the person concerned ... before the ordinary courts". It added that "such an administrative decision by the magistrate" could not be considered as "a preliminary measure enabling the Government to take the effective decision on the matter of detention but is itself the effective decision placing the person concerned in a different legal position and is therefore of itself capable of constituting a grievance"; in any event, "the person concerned is immediately deprived of his liberty without any further decision by the Government". Section 20, sub-section 2, of the Act of 23rd December 1946 constituting the Conseil d’État provides that where both this body and "an ordinary court rule that they are either competent or incompetent to entertain the same proceedings, the conflict of jurisdiction is settled, on the motion of the most diligent party, by the Court of Cassation" in plenary session. No such conflict appears to have come before the highest court of Belgium in vagrancy matters up to the present time. The Belgian Government has had the reform of the 1891 Act under consideration for some time. According to the information given to the Court on 17th November 1970, the Bill which it is preparing to submit to Parliament provides in particular that an appeal against the magistrates’ decisions may be made to the court of first instance. 38. "Able-bodied persons detained in a vagrancy centre or assistance home" are "required to perform the work prescribed in the institution" (Section 6 of the 1891 Act). Persons who, like Jacques De Wilde, and Edgard Versyp, refuse to comply with this requirement without good reason, in the opinion of the authorities, are liable to disciplinary measures. "Infirmity, illness or punishment may lead to a suspension, termination or stopping of work" (Articles 64 and 95, read in conjunction, of the Royal Decree of 21st May 1965 laying down general prison regulations). "Unless stopped for disciplinary reasons", detained vagrants are entitled to "a daily wage" known as "allowances". Sums are retained "for administrative expenses" - "for the benefit of the State" – and "to form the release savings" which shall be "granted ... partly in cash and partly in clothing and tools". The Minister of Justice fixes the amount of the said release savings and, having regard to the various categories of detained persons and of work, the wages and the sums to be retained (Sections 6 and 17 of the 1891 Act; Articles 66 and 95, read in conjunction, of the Royal Decree of 21st May 1965). At the time of the detention of the three applicants, the amount of the release savings which had to be thus accumulated - sums of money which a vagrant may receive from other sources not being taken into account - was fixed at 2,000 BF, at least for the "inmates" of welfare settlements (ministerial circular of 24th April 1964). The minimum hourly allowance "actually paid" to detainees - save any deductions made for "wastage and poor work" - was 1,75 BF up to 1st November 1966, on which date it was increased by 25 centimes (ministerial circulars of 17th March 1964 and 10th October 1966). The allowance was not capable of assignment or liable to seizure in execution and was divided into two equal parts: "the reserved portion" which was credited to the person concerned and enabled him to form his release savings and the free portion which he received immediately (Articles 67 and 95, read in conjunction, of the Royal Decree of 21st May 1965). 39. According to Articles 20 to 24 and 95 of the Royal Decree of 21st May 1965, the correspondence of detained vagrants - who, in this as well as in other respects, are assimilated to convicted persons - may be subjected to censorship except any correspondence with the counsel of their own choice, the director of the institution, the inspector-general and the director-general of the prison administration, the secretary-general of the Ministry of Justice, the judicial authorities, the ministers, the chairmen of the legislative Chambers, the King, etc. Their correspondence with the Commission is not mentioned in this Decree but the Minister of Justice informed the governors of prisons and Social Protection Institutions, including those at Merksplas and Wortel, that "a letter addressed to this organ by a detainee is not to be censored but should be forwarded, duly stamped for abroad by the sender ..., to the Legal Department ... which shall undertake to transmit it to its destination" (circular of 7th September 1957 as it was in force at the time of the detention of the applicants; see also paragraph 31 above). 40. "Persons detained in an assistance home" - as Franz Ooms - may not "in any case be kept against their will for more than one year" (Section 18, first sentence, of the 1891 Act). They regain their freedom, as of right, before the expiry of this period "when their release savings (have reached) the amount ... fixed by the Minister of Justice", who shall, moreover, release them if he considers their detention "to be no longer necessary" (Sections 17 and 18, second sentence, of the 1891 Act). As regards vagrants detained in a vagrancy centre - such as Jacques De Wilde and Edgard Versyp - they leave the centre either at the expiry of the period varying from two to seven years "fixed by the court" or at an earlier date if the Minister of Justice considers "that there is no reason to continue their detention" (Section 15 of the 1891 Act); the accumulation of the release savings and any other means which the detainee might have do not suffice for this purpose. It seems that no detained vagrant has to date lodged an appeal with the Conseil d’État, under Article 9 of the Act of 23rd December 1946, for the annulment of a ministerial decision which had rejected his application for release. 41. Before the Commission and Sub-Commission, the three applicants invoked Articles 4, 5 (1), 5 (3), 5 (4), 6 (1), 6 (3) (b) and (c), 7, 8 and 13 (art. 4, art. 5-1, art. 5-3, art. 5-4, art. 6-1, art. 6-3-b, art. 6-3-c, art. 7, art. 8, art. 13) of the Convention. Two of them, De Wilde and Versyp, also alleged that Article 3 (art. 3) had not been observed. 42. In its report of 19th July 1969, the Commission expressed the opinion: - that there was a violation of Articles 4 (art. 4) (nine votes to two), 5 (4) (art. 5-4) (nine votes to two) and 8 (art. 8) (ten votes to one); - that there was no violation of Articles 3 (art. 3) (unanimous) and 5 (1) (art. 5-1) (ten votes to one); - that Articles 5 (3) (art. 5-3) (unanimous), 6 (1) (art. 6-1) (ten votes to one), 6 (3) (art. 6-3) (ten votes to one) and 7 (art. 7) (unanimous) were inapplicable. The Commission was further of the opinion that "it (was) no longer necessary to consider Article 13 (art. 13)" (unanimous). The report contains several individual opinions, some concurring, others dissenting. 43. After the cases were brought before the Court the applicants repeated, and sometimes developed, in a memorandum which the Commission appended to its memorial, the greater part of their earlier arguments. They indicated their agreement or otherwise, according to the case, with the opinion of the Commission, to which De Wilde and Versyp "bowed" as regards Article 3 (art. 3) of the Convention.

dev

001-84670

ENG

RUS

CHAMBER

CASE OF MASLOVA AND NALBANDOV v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

6. The applicants were born in 1980 and 1982 respectively and live in the town of Nizhniy Novgorod. 7. Between 4 and 24 November 1999 the first applicant had the status of witness in a murder case conducted jointly by the police and the prosecution. 8. It appears that these authorities repeatedly summoned her to give evidence to the Nizhegorodskiy District Department of Internal Affairs (Нижегородское районное управление внутренних дел – “the police station”). 9. It also appears that at some point during the investigation suspect B. stated that the first applicant had been in receipt of the murdered person's belongings. 10. According to the first applicant, investigator Zh. summoned her to appear on 25 November 1999 at 12.30 p.m. The Government submitted that the first applicant was summoned by policeman K. and not by investigator Zh. 11. The applicants submitted the following account of events. The Government did not make any specific comments in this respect. 12. The first applicant arrived at the police station on time and was questioned. The interrogation was initially conducted by policemen Kh. and K. and took place at office no. 63 of the police station. 13. The policemen requested the first applicant to acknowledge that she had received property belonging to the murdered person. When the first applicant refused to do so, they started shouting and threatened to bring criminal proceedings against her. They took her soccer scarf and administered several blows with the scarf to her face. 14. Then K. left the office and Kh. stayed there with the first applicant in private. He locked the door from the inside and went on with physical and psychological coercion. Kh. fettered the first applicant's hands with thumbcuffs and administered blows to her head and cheeks. He raped her using a condom and then forced her to perform oral sex with him. 15. Kh. was interrupted by noise in the corridor and knocking on the door. The first applicant was allowed to go to the lavatory and tidy herself up. 16. At around 2 p.m. the first applicant was confronted with suspect B. In his presence, she yet again denied her involvement in the murder. 17. Thereafter Kh. and K. fettered the first applicant's thumbs and repeatedly hit her in the stomach. They put a gas mask over the first applicant's face and made her suffocate by shutting off access to air. Kh. and K. also ran electricity through wires connected to the first applicant's earrings. The above actions were coupled with attempts to obtain a confession. 18. It appears that eventually the first applicant admitted having received the property in question and agreed to write her confession down on paper. Since the first applicant was in an agitated state and failed to write properly, she had to try twice. The confession was addressed to a local district prosecutor. 19. Kh. and K. then suggested that the first applicant's mother should bring the notebook containing the phone numbers and addresses of the applicant's friends and acquaintances. 20. The first applicant called her mother and at 4.40 p.m. the latter and the second applicant came to the police station and brought the required notebook. The first applicant's mother and the second applicant stayed in a lobby near office no. 63. 21. At 5 p.m. S., an investigator from a local prosecutor's office, came to office no. 63. He learned from the first applicant that she was a CSKA Moscow soccer fan and started to insult her and administer blows to her head with the second applicant's own scarf, requiring her to curse this club. 22. Some time later Kh. brought the first applicant to office no. 3 of the prosecutor's office for the Nizhegorodskiy District of the city of Nizhniy Novgorod (Прокуратура Нижегородского района г. Нижний Новгород – “the local prosecutor's office”) which was situated in the same building as the police station. 23. Zh., an investigator of the local prosecutor's office, interrogated the first applicant in connection with her confession. 24. In order to put additional pressure on her the investigators simultaneously arrested and detained her mother. It appears that the first applicant's mother spent two hours in detention. 25. According to the second applicant, around 6.30 p.m. investigator S. was in the lobby and saw the second applicant. S. rudely demanded the second applicant to leave the building, kicked him on the hip, pushed him towards the exit, then caught up with him and forced him into office no. 54 in which there were two unidentified policemen. 26. Then S. locked the door from the inside, hit the second applicant in his trunk several times and dealt a few blows to the second applicant's head and trunk with his own CSKA Moscow soccer scarf. 27. S. brought the second applicant to office no. 7 and, in presence of Kh. and investigator M., went on beating the second applicant, requiring him to curse the CSKA Moscow soccer club. When the second applicant refused, S. put the scarf around his neck and started to suffocate the applicant, simultaneously hitting him on the trunk. The second applicant eventually capitulated. 28. Thereafter M., Zh. and Kh. sent the second applicant to a nearby shop to buy alcohol, cigarettes and food and upon his return he was expelled from the building. 29. Around 7 p.m., S. and M. came to office no. 3 in which investigator Zh. was finalising the interrogation of the first applicant. They did not let the first applicant out after the questioning was over and started to drink alcohol. According to the first applicant, her requests to leave were denied. 30. Upon her request, the first applicant was escorted to the lavatory on the third floor of the building where she unsuccessfully tried to cut the veins of her left wrist. 31. She returned to office no. 3 and for the next two hours she was raped by Zh., S. and M. It appears that they used condoms and that following the rape they cleaned the place with wipes. It appears that Kh. had left the office upon the first applicant's return from the lavatory and had not taken part in the rape. 32. At 9 p.m. S. left and during the next hour Zh. and M. went on raping the first applicant. Around 10 p.m. they released her. 33. At 10.30 p.m. the first applicant reached the place of her acquaintance RB. Shortly later she was joined by IA and EA. After a talk, EA called the first applicant's parents and told them that RB and IA would follow the first applicant to a hospital. 34. At 1.20 a.m. on the next day they arrived at hospital no. 21 and the first applicant told an assistant nurse that she had been raped in the police station. The nurse and the doctor did not examine the applicant and advised her to address herself to a bureau of forensic examination. The applicant refused because the bureau was located too close to the police station. She was then advised to go to a bureau in a different district. It does not appear that the first applicant did so. 35. It appears that on 26 November 1999 the first applicant applied to the prosecutor's office alleging that she had been tortured and raped. The Nizhniy Novgorod City prosecutor's office (прокуратура г. Нижний Новгород) opened a criminal case in this connection and carried out an investigation. The second applicant had the status of crime victim in this case. 36. On 25 April 2000 Kh., Zh., S. and M. were charged with commission of crimes punishable under Articles 131, 132 and 286 of the Criminal Code. 37. On 5 July 2000 the bill of indictment was signed and the case against Kh., Zh., S. and M. was transferred to the Nizhegorodskiy District Court of the city of Nizhniy Novgorod (Нижегородский районный суд г. Нижний Новгород – “the District Court”) for trial. 38. The bill of indictment stated that Kh. was accused of having tortured and raped the first applicant, ill-treated the second applicant, abused the office and discredited the authority (see the episodes described in paragraphs 12-15, 16-21, 25-28 and 29-32 above). Zh. was charged with having raped and sexually abused the first applicant, abused the office and discredited the authority (see paragraphs 22-24 and 29-32). As to S., he was accused of having ill-treated the first and second applicant and abused and discredited the authority (see paragraphs 16-21 and 25-28), raped and sexually abused the first applicant and abused and discredited the authority (see paragraphs 29-32). M. was charged with having raped and sexually abused the first applicant and abused and discredited the authority (see paragraphs 29-32). The alleged criminal acts of the accused were characterised under Articles 131-1, 2 (b), 132-1, 2 (b) and 286-3 (a, b), respectively, of the Criminal Code. 39. It appears that the accused denied their involvement in the crimes in question, kept silent and refused to give urine or sperm for examination. 40. The findings in the bill of indictment were principally made on the basis of evidence given by the first and second applicants, who had identified the alleged offenders and gave a very detailed account of events. 41. The bill also referred to the statements of witness B., who heard the screams of Kh. and moans of the first applicant and then saw that the first applicant was tear-stained and demoralised. B. also cited the statement of Kh. who had allegedly said that the first applicant had “cracked” and admitted everything. 42. There were also statements of witnesses RB, EA and IA, the assistance nurse and the doctor, the parents of the first applicant, the mother of the second applicant and an employee of the shop who had sold the food and alcohol to the second applicant (see paragraph 28 above). 43. The other evidence also included the items obtained through searches carried out on the premises of the police station and the prosecutor's office, the first applicant's handwritten statement of a self-incriminating character which had been described by an expert as having been written by “a shaking hand” (see paragraph 18), the medical confirmation of the first applicant's attempts to cut her veins (see paragraph 30), the report of the forensic examinations and other evidence. It appears that several other people who had previously been prosecuted and whose criminal cases had been dealt with by the accused gave evidence confirming that the accused had used torturing devices, such as a gas mask, electric wires and a fettering device. 44. According to forensic examination no. 650 of 31 December 1999, the clothes that Kh. had worn on 25 November 1999 bore traces of cells of vaginal epithelium of the same antigen group as the first applicant's. The investigation also established that Kh. and his spouse had a different antigen group. 45. During the search carried out at the premises on 27 November 1999 the investigative authority discovered two used condoms, one in the yard of the police station and the other on the cornice under the window of office no. 3 of the prosecutor's office. 46. It appears that only one of the discovered condoms was suitable for forensic examination. The genomic examination revealed the presence of vaginal cells belonging, with a probability of 99.9999%, to the first applicant and spermatozoids and cells of male urethra. 47. The same search also led to the discovery of two wipes in the yard of the police station bearing traces of sperm. 48. Furthermore, the forensic examination established that the first applicant's clothes which she had allegedly worn on that day bore traces of sperm. 49. During a preliminary examination of the case on 16 August 2000 counsel for the accused pointed to various procedural defects in the investigation and applied to have the case remitted for additional investigation. 50. On the same day the District Court granted the application and remitted the case for additional investigation. 51. The court ruled that the investigative authorities had committed serious breaches of domestic procedure during the investigation which had infringed the rights of the accused and rendered most of the evidence in the case inadmissible. 52. In particular, the decision noted numerous inaccuracies and deficiencies in the handling of the case, including disregard of a special procedure for opening an investigation in respect of prosecution officers and the fact that Kh., Zh., S. and M. had not enjoyed the procedural status of accused persons until 24 April 2000, which meant that almost all investigative actions (searches, interrogations, identification parades, expert examinations, etc.) prior to that date had been carried out in breach of their defence rights and rendered the respective evidence inadmissible. 53. The decision of the District Court of 16 August 2000 was upheld on the prosecutor's appeal by the Nizhniy Novgorod Regional Court (Нижегородский Областной Суд – “the Regional Court”) on 13 October 2000. 54. On an unspecified date in September 2001 the first applicant's counsel brought an appeal against the decisions of 16 August and 13 October 2000 to the Presidium of the Regional Court, requesting that they be re-examined by way of supervisory review. 55. On 1 October 2001 counsel lodged a similar appeal with the Supreme Court of the Russian Federation (Верховный Суд РФ – “the Supreme Court”). 56. Having examined the case file, on 6 June 2002 the Presidium of the Regional Court declined the applicants' request for re-examination of the decisions by way of supervisory review. 57. It appears that a similar decision was taken by the Supreme Court on 21 June 2002. 58. On 12 January 2001 the Regional Prosecutor's Office (Нижегородская областная прокуратура) examined the case, found that the charges were essentially based on the first applicant's incoherent and inconclusive submissions, that the evidence in the case taken as a whole was inconsistent, and concluded that no strong evidence against the accused had been collected during the investigation. 59. It also had regard to the conclusions in the court decisions of 16 August and 13 October 2000 and noted that “the repetitive breaches of law and, in particular, the failure to respect the procedures and rules governing the institution of criminal cases in respect of special subjects – investigators of the prosecutor's office – created no judicial perspective [for the case] since it appeared impossible to remedy the breaches committed during the investigation”. For these reasons it was decided to discontinue the criminal proceedings. The decision stated that the first applicant and the accused were to be notified and that the decision could be appealed against to a higher prosecutor's office. 60. By a letter of 19 June 2001 (No. 15/1-1018-99) the Regional Prosecutor's office responded to the first applicant's appeal against the decision of 12 January 2001 fully deferring to its reasons and conclusions. The letter did not mention the possibility of appeal against the decision in a court. 61. According to the Government, the investigation in this case was repeatedly resumed and discontinued. 62. On 30 August 2002 the Regional Prosecutor's Office annulled its decision of 12 January 2001 to discontinue the criminal proceedings and submitted the case for additional investigation. It mentioned the lack of legal characterisation of the acts committed in respect of the second applicant as a drawback of that decision. 63. On 16 October 2002 the local prosecution office terminated the investigation in the criminal case, referring to the lack of evidence of any crime and the failure to prove the involvement of the police and prosecution officials. 64. It appears that this decision was subsequently annulled, but on 24 February 2002 the local prosecutor's office again terminated the proceedings on the ground of lack of evidence of a crime. 65. On 19 September 2004 the first applicant's counsel challenged the decision of 24 February 2002 before the District Court. In a judgment of 28 September 2004 the District Court upheld the decision, fully deferring to its reasons. The judgment was upheld on appeal on 29 October 2004 by the Regional Court. 66. On 29 April 2005 the Regional Prosecutor's office yet again decided to resume the proceedings in the case. 67. According to the applicant, on 28 June 2005 the proceedings were yet again closed. 68. The Government submitted that on 22 August 2005 the proceedings in the case had been resumed. This decision was appealed against by the accused. On 22 November 2005 the District Court quashed the decision to resume the proceedings as unlawful. The Regional Court upheld the District Court's decision on 30 December 2005. Thereafter the Deputy Prosecutor General lodged a supervisory review request in respect of the decisions of 22 November and 30 December 2005. 69. On 1 February 2007 the Regional Court, sitting as a supervisory review instance, examined and rejected the prosecutor's request, but noted that the decision of 30 December 2005 had been adopted by an unlawful composition of judges and remitted the case to the Regional Court for a fresh examination on appeal. 70. The outcome of these proceedings remains unclear, but no further steps appear to have been taken in respect of the criminal case against the policemen and investigators. 71. Article 131 §§ 1 and 2 (b) of the Criminal Code of the Russian Federation punishes the offence of rape committed by a group, whether or not organised and with or without prior conspiracy, with imprisonment up to fifteen years. 72. Article 132 §§ 1 and 2 (b) punishes forced sexual acts committed by a group, whether or not organised and with or without prior conspiracy, with up to fifteen years of imprisonment. 73. Article 286 § 3 (a, b) punishes abuse of office committed with use of force or threat to use force, with or without the use of arms or other special devices with imprisonment up to three years. “A witness shall be called for interrogation by a written notice served on him personally or, in his absence, on an adult member of his family... The notice shall contain the name of the person called as a witness, indicating where, before whom, on what date and at what time he is required to appear and the consequences of failure to appear. A witness may also be called by means of telephone or cable.” “The interrogation of a witness shall be conducted at the place of the investigation. An investigator may decide to interrogate a witness at the location of that witness.” 74. Under Articles 108 and 125 of the Code of Criminal Procedure, a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities' own motion. Article 53 of the Code stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party. During the investigation the victim could submit evidence and lodge applications, and once the investigation was complete the victim had full access to the case file. 75. Under Articles 210 and 211 of the Code, a prosecutor was responsible for overall supervision of the investigation. In particular, the prosecutor could order a specific investigative measure to be carried out, the transfer of the case from one investigator to another, or the reopening of the proceedings. 76. Under Article 209 of the Code, the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime. Such a decision was subject to appeal to the senior prosecutors or the court. The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete. 77. Article 210 of the Code provided that the case could be reopened by the prosecutor “if there were grounds” to do so. The only exception to this rule was for cases where the time-limit for prosecuting crimes of that kind had expired. 78. Article 161 of the Code provided that, as a general rule, the information obtained in the course of the investigation was not public. The disclosure of that information might be authorised by the prosecuting authorities if disclosure did not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings. The information concerning the private life of the parties to the proceedings could not be made public without their consent. 79. Section 42 of the Law on Prosecution Authorities and Decree No. 44 of the Prosecutor General of 26 June 1998 sets out a special procedure for bringing administrative and criminal proceedings against officials of the prosecution authorities. In particular, the officials who have the right to initiate such proceedings are exhaustively listed. 80. The Civil Code of the Russian Federation, which entered into force on 1 March 1996, provides for compensation for damage caused by an act or failure to act on the part of the State (Article 1069). Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated for irrespective of any award for pecuniary damage.

dev

001-101952

ENG

POL

CHAMBER

CASE OF GRZEGORZ JOŃCZYK v. POLAND

No violation of Art. 5-1

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

5. The applicant was born in 1976 and is currently detained in Kassel, Germany. 6. On 7 December 2007 the applicant was arrested on suspicion of uttering threats and domestic violence. On 8 December 2007 the Żary District Court ordered his detention on remand. 7. On 22 December 2007 he was admitted to a psychiatric hospital and diagnosed with paranoid schizophrenia. He was discharged from the hospital on 2 January 2008. 8. On 9 April 2008 the Żary District Court gave a decision and discontinued the proceedings against the applicant. The court found it established that the applicant had committed the offences with which he had been charged. However, he could not have been held criminally responsible as he had been suffering from paranoid schizophrenia. It further referred to the experts' opinion and ordered that the applicant be placed in a psychiatric hospital. 9. On the same date the court also refused the applicant's motion for release. The court considered that there was a reasonable suspicion that the applicant might commit another crime. 10. On 23 April 2008 the Żary District Court extended the applicant's detention until 22 September 2008. The court referred to the reasons given previously. In addition, it relied on the risk that the applicant might commit yet another offence. It stressed that it was necessary to keep the applicant in detention until his admission to a psychiatric hospital. 11. The applicant was transferred between different detention centres. After 28 March 2008 he was detained in the Nowa Sól Detention Centre. 12. On 21 May 2008 the Żary District Court was informed that the applicant had appealed against the decision of 9 April 2008. However he had filed his appeal with the Supreme Court instead of with the Regional Court. Therefore, the Supreme Court asked the lower court to examine whether the applicant's motion could be regarded as an appeal against the decision of 9 April 2008. 13. On 2 July 2008 the Zielona Góra Regional Court dismissed the applicant's appeal and upheld the decision of 9 April 2008. The court held that all the conditions for imposing the preventive measure on the applicant had been met. 14. On 7 July 2008 the Żary District Court gave a decision and ordered that the applicant be placed in the Lubiąż Psychiatric Hospital. It was also established that the applicant could be admitted to this facility on 8 August 2008. However, the applicant subsequently appealed against this decision in so far as it related to the choice of hospital and the case file was transferred to the Zielona Góra Regional Court. On 29 August 2008 the Zielona Góra Regional Court upheld the decision of 7 July 2008. 15. The applicant was admitted to the hospital on 15 September 2008. 16. It appears that he left the hospital on a later unknown date before February 2009. 17. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines pre-trial detention as one of the so-called “preventive measures” (środki zapobiegawcze). 18. A more detailed rendition of the relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other preventive measures can be found in the Court's judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 2733, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 2223, 4 August 2006). 19. Article 264 § 3 of the Code of Criminal Procedure provides: “If the proceedings are discontinued by reason of insanity of the accused, preliminary detention may be maintained pending the application of a preventive measure.”

dev

001-22360

ENG

GBR

ADMISSIBILITY

DOUBTFIRE v. THE UNITED KINGDOM

Inadmissible

Gaukur Jörundsson;Nicolas Bratza

The applicant, Robert Doubtfire, is a United Kingdom national, who was born in 1961. He was represented before the Court by Ms Cunneen, a solicitor of Liberty, an organisation based in London. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 May 1993 the applicant was arrested in a depot after he had unloaded a tanker lorry in which ecstasy tablets and amphetamine sulphate had been imported into the United Kingdom. In January 1994 the applicant appeared before the Maidstone Crown Court to be tried on charges of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of drugs. The applicant accepted that he had unloaded the lorry. However, it was the applicant’s case that he had no knowledge of the nature of the consignment and that he had been set up by someone called “W.S.” as a “cut-out”, i.e. a person put in place by someone in charge of an illegal operation to insulate himself from detection and arrest. As it transpired from the record of all the calls made from the applicant’s mobile telephone, the applicant, while unloading the lorry and at other critical times, had repeatedly called W.S.’s telephone number. During the trial the prosecution made an ex parte application to the trial judge to withhold evidence. The judge looked at the material and endorsed the prosecution’s view that the material was covered by public interest immunity. The defence were not told the category of the material which was the subject of the application and did not have the opportunity of making representations to the judge. On 2 February 1994, the applicant’s counsel made ex parte submissions to the judge concerning the relevance of material relating to W.S. to the defence’s case. However, the judge did not accede to the defence’s request for the disclosure of the material which had been withheld, nor to the disclosure of the category of the material, and further declined to make a ruling in open court as to why the applicant was not entitled to material relating to W.S. All the judge could tell the defence was that in cross-examination he would not allow them to ask questions relating to investigations concerning W.S. On 16 February 1994 the applicant was found guilty and given two sentences of 25 and 12 years’ imprisonment to run concurrently. The applicant appealed relying, inter alia, on the non-disclosure of material concerning W.S. The applicant also submitted that the prosecution might have also withheld evidence concerning another witness, “H”. A single judge gave the applicant leave to appeal against sentence and referred to the Court of Appeal his application for leave to appeal against conviction. Two days before examining the applicant’s appeal, the Court of Appeal examined ex parte all the material that was before the trial judge. It decided not to order any further disclosure. The Court of Appeal’s first judgment was delivered on 30 November 1995. It found that the applicant had been able to run his defence as he wished and had, in particular, been able to put before the jury the fact that W.S. had a criminal record and that the prosecution had suspicions about him. This, together with the applicant’s own testimony, had enabled the jury to assess the extent, if any, of W.S.’s involvement in the case. For these reasons, the Court of Appeal rejected the applicant’s ground of appeal concerning disclosure. The court did not find any merit in the applicant’s other grounds of appeal and upheld his conviction. However, it reduced the first concurrent sentence from 25 to 20 years’ imprisonment. On 6 July 2000 the Criminal Cases Review Commission (“CCRC”) referred the applicant’s case back to the Court of Appeal on the ground that: “As a result of the [CCRC’s] enquires, the CCRC has concluded that there was a failure by the prosecution in respect of its disclosure obligations in the context of submissions made by the [prosecution] to the trial judge in the context of submissions made by the [prosecution] to the trial judge in the course of ex parte hearings. The [CCRC] considers that this failure was material to [the applicant’s] defence and to his mitigation. ...” The precise nature of the failure of disclosure was expanded upon in a confidential annex to the CCRC’s report. On 19 December 2000 the Court of Appeal quashed the applicant’s conviction on both counts and quashed the order for prosecution costs. The court examined the confidential annex to the CCRC’s report in private. It held that: “... the [applicant’s] trial was materially unfair in the way the [CCRC] describes. That is sufficient for our conclusion that this appeal should be allowed and the conviction quashed.” The Court of Appeal continued: “We have considered whether it is right that the Court should elaborate on that conclusion by giving detailed reasons, by reference to the confidential material which has been put before the Court, to explain why we have reached that conclusion. We are persuaded that the balance of competing public interest in this case falls on the side of not making the material public, and not making public the detailed reason’s for the [CCRC’s] conclusion. We have found that particular point a difficult one, and we have sought ... whether there is a halfway house in this case. We have, with some regret, reached the conclusion that there is not, and in reaching that conclusion we are acutely aware of the clear fact that justice is required to be conducted openly and in public, and that exceptions to this should only occur in cases in which there is indeed an overriding public interest which so requires it.” As a result of the Court of Appeal’s judgment, the applicant may now apply for compensation for his conviction and imprisonment under section 133 of the Criminal Justice Act 1988.

dev

001-77551

ENG

TUR

ADMISSIBILITY

DIREKCI v. TURKEY

Inadmissible

The applicant, Mr Erol Direkçi, is a Turkish national who was born in 1950 and lives in Ankara. He was represented before the Court by Mr L. Kanat, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court. On 15 October 1995 the applicant’s son, Erkut Direkçi, participated in a demonstration organised by a trade union in Ankara. On the same day he was taken into custody. On 27 October 1995 he was brought before the Ankara State Security Court which ordered his detention on remand. On an unspecified date the Public Prosecutor at the Ankara State Security Court filed a bill of indictment, charging Erkut Direkçi under Article 168 § 2 of the Criminal Code with membership of an illegal organisation, namely the MLKP (the Marxist-Leninist Communist Party). On 10 September 1996 Erkut Direkçi’s lawyer submitted a petition to the Ankara State Security Court for the establishment by the Ankara Numune Hospital of a medical report on his client’s state of health. Between 10 and 16 September 1996 Erkut Direkçi was examined at the Ankara Numune Hospital and diagnosed with liver cancer. The medical reports submitted by the applicant confirm the diagnosis. The applicant also submitted two medical reports recommending one or two months’ rest for his son. On 17 September 1996 Erkut Direkçi’s lawyer requested the Ankara State Security Court to release his client on account of his serious illness. On the same day the Ankara State Security Court ordered Erkut Direkçi’s release pending trial. On 4 February 1997 the Ankara State Security Court convicted Erkut Direkçi of membership of the MLKP under Article 168 § 2 of the Criminal Code and sentenced him to 12 years and 6 months’ imprisonment. The Court also ordered his detention in his absence. On 5 February 1997 Erkut Direkçi’s lawyer lodged an appeal against the decision regarding his client’s detention. On the same day the Ankara State Security Court dismissed the appeal, taking into account the serious nature of the offence. In August 1997 Erkut Direkçi left for Germany in order to obtain medical treatment. On 24 September 1997 his lawyer requested the Court of Cassation to quash the judgment and the detention order of the Ankara State Security Court. On 6 November 1997 the Court of Cassation upheld the judgment of the Ankara State Security Court. Erkut Direkçi died in Germany on 12 December 1997.

dev

001-57595

ENG

DEU

CHAMBER

CASE OF WEMHOFF v. GERMANY

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

1. The object of the Commission’s request is to submit the case of Karl-Heinz Wemhoff to the Court so that the Court may decide whether or not the facts reveal any violation by the Federal Republic of Germany of its obligations under Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) of the Convention. 2. The facts of the case, as they appear from the Commission’s Report, the memorials, documents and evidence submitted to the Court and the oral statements made by the Commission and the Government, are essentially as follows: 3. K. H. Wemhoff, a German national born at Berlin in 1927, is habitually resident there. At the time of his arrest he was a broker by profession. 4. Being under suspicion of being involved in offences of breach of trust, the Applicant was arrested on 9 November 1961. A warrant of arrest (Haftbefehl) issued the next day by the District Court (Amtsgericht) of Berlin-Tiergarten ordered his detention on remand. The warrant stated that Wemhoff was under grave suspicion of having incited breach of trust (Anstiftung zur Untreue) contrary to Sections 266 and 48 of the German Criminal Code: as a customer of the August-Thyssen Bank in Berlin he was said to have incited certain of the Bank’s officials to misappropriate very large sums of money. It was also stated in the warrant that it was to be feared that, if left at liberty, the Applicant would abscond and attempt to suppress evidence (Section 112 of the German Code of Criminal Procedure), for: - he was likely to receive a considerable sentence; - persons implicated in the offences but not yet known to the authorities might receive warning; and - there was a danger that the Applicant would destroy those business documents that it had not yet been possible to seize. During the investigation the warrant was superseded successively by two detention orders dated 28 December 1961 and 8 January 1962, both issued by the District Court. These stated that Wemhoff was under grave suspicion of continuing acts of fraud (fortgesetzter Betrug) contrary to Section 263 of the Criminal Code, of prolonged abetment to fraud (fortgesetzte Beihilfe zum Betrug) contrary to Sections 263 and 49 of the Code and of prolonged abetment to breach of trust (fortgesetzte Beihilfe zur Untreue) contrary to Sections 266 and 49 of the Code. 5. In the course of 1961 and 1962 the Applicant asked at several times to be released but all his requests were rejected by the Berlin courts which referred to the reasons given in the warrants of arrest mentioned above. In particular, in May 1962, he made an unspecified offer of bail, which was rejected by the Court of Appeal (Kammergericht) on 25 June 1962, on the grounds of a danger of suppression of evidence (Verdunkelungsgefahr) and moreover because bail could not dispel or diminish the danger of flight in the present case. On 8 August 1962, he offered bail of 200,000 DM, but he withdrew the offer two days later. 6. On the occasion of an ex-officio examination of the lawfulness of the detention by the District Court, Wemhoff’s lawyer asked on 20 March 1963 for conditional release of the Applicant, offering in particular the deposit of identity papers. On the same day, however, the court ordered the further detention of the Applicant on the grounds given in the warrant of arrest. The Applicant contested this decision on 16 April 1963, when he invoked the provisions of the Convention for the first time. Asking for release on any condition which might be thought to be necessary, he held in particular that there was neither a danger of suppression of evidence nor a danger of flight, for he had done all he could do to clear up the transactions involved. He added that all his roots were in West Berlin where he lived with his wife and child and where his family had for one hundred and twenty years owned a jeweller’s shop, and which his father intended to convey to him very soon. He further stressed that he had brought civil actions against his debtors and therefore had to appear as plaintiff before several District Courts at least five times a week. On the other hand, he pointed out that it was not possible for him to flee from West Berlin: by reason of his numerous previous journeys he was so well known at the Berlin airport that he could not take an aeroplane there; having been detained for several years in the Soviet Occupied Zone he could enter neither this territory nor East Berlin. Finally the fact that he stayed at Berlin after the discovery of his transactions by the Thyssen Bank on 27 October 1961 showed clearly that he never had any intention of fleeing. This appeal was rejected by the Regional Court (Landgericht) of Berlin on 3 May 1963, on the following grounds: - the Applicant was under suspicion of having committed the alleged offences; - the facts had not been fully investigated and were particularly involved; - he appeared to have played a particularly significant part in all the transactions under consideration so that he was likely to receive a particularly severe sentence and might therefore be suspected of intending to flee; - he had important connections abroad and it was impossible, at the present stage of the preliminary investigation, to deny the possibility that he had assets there; - the threat of his financial collapse increased the danger of flight which was not diminished by the existence of his family links in Berlin; - while it was doubtful whether the danger of suppression of evidence was sufficient to justify continued detention, certain reasons still suggested that there was still such danger. In a second appeal (weitere Beschwerde) of 16 May 1963, the Applicant specified that he had been sentenced in 1953 by a tribunal in East Germany to ten years penal servitude and had been released in November 1957. Adding that he had declared his opposition to communism on many occasions, the Applicant declared that it was also impossible for him to flee by passing through the Soviet Occupied Zone by train or by road. From the judgment of the Regional Court of 7 April 1965 (paragraph 12, infra), it appears that the conviction mentioned by the Applicant had been in respect of the illegal transport of goods belonging to refugees and of timber to West Berlin; this conviction was dated 7 March 1953. The Appeal of 16 May 1963 was rejected by the Court of Appeal on 5 August 1963. While admitting that at this stage there might be some doubt as to whether there was still a danger of suppression of evidence, the Court, taking up the grounds of the decision against which the appeal was lodged, pointed out that there was still a danger that the Applicant would abscond; and that his continued detention did not conflict with the requirements of Article 5 (3) (art. 5-3) of the Convention. The Court added that it was to be feared that Wemhoff would refuse to comply with the summons to appear before the judicial authorities on account of his character on which a medical expert had given an unfavourable opinion, which had been confirmed by his conduct while in detention pending trial. 7. Several applications for conditional release filed by the Applicant in 1963 and 1964 were also rejected by the Berlin courts on grounds similar to those stated by the Court of Appeal on 5 August 1963. In particular, this court found, in a decision of 22 June 1964, that the risk that the Applicant would abscond was even greater than in August 1963. As a matter of fact, he was likely to receive an appreciably higher sentence than had formerly been thought, as in the meantime the Public Prosecution had extended the accusation against the Applicant to certain offences under the Bankruptcy Code some of which he was said to have committed while in detention. On the other hand, the court considered that it was not yet possible to forecast whether the Applicant, in the event of a conviction, would be conditionally released in accordance with Section 26 of the Criminal Code after serving two-thirds of his detention and whether, in the event of such conviction, the time he had spent in detention pending trial would be counted as part of the sentence. Between 13 November 1961 and 3 November 1964 the Applicant submitted 41 petitions concerning the conditions of his detention on remand, 16 of which were accepted by the responsible authorities while the other 25 were refused. During his detention, he was subjected to disciplinary punishment five times. 8. The investigation concerned 13 persons. It was conducted by a member of the Berlin Public Prosecutor’s Office and lasted from 9 November 1961 to 24 February 1964 without any important interruptions. In particular, Wemhoff was interrogated on about 40 occasions. One of the subjects of the investigation was extremely complex cheque manipulations of which the defendants were suspected (paragraph 57 of the Commission’s Report). It involved the examination of 169 accounts at 13 banks in Berlin, 35 banks in West Germany and 8 banks in Switzerland; the transactions checked totalled 776 million DM. In the case of the Applicant alone, transactions amounting to 284.2 million DM were involved between 1 August 1960 and 27 October 1961, affecting 53 accounts at 26 banks. Several dozen witnesses were questioned, both in the Federal Republic and abroad. In addition some 15 expert opinions were obtained from a number of auditing firms and accountants and from a retired President of the Deutsche Bundesbank. The number of workdays amounted to 6,000. The reports of the financial experts alone comprised 1,500 pages. By the time the charge was preferred the court’s records comprised 45 volumes containing some 10,000 pages. 9. On 23 April 1964, the investigation having been completed, the indictment - a document of 855 pages - was filed with the Regional Court of Berlin; it was notified to the Applicant on 2 May 1964. It shows that the Applicant was accused of: - two cases of prolonged incitement to breach of trust; - prolonged fraud in one of these two cases; - one case of prolonged abetment to breach of trust; and - seven offences under Sections 239 (1) (i) and 241 of the Bankruptcy Act (Konkursordnung). The cases of incitement to breach of trust, fraud and abetment to breach of trust were considered particularly grave ones within the meaning of Sections 266 (2) and 263 (4) of the German Criminal Code. 10. On the basis of the indictment, the Regional Criminal Court, on 7 July 1964, replaced the existing detention order by a new one which stated that Wemhoff was under grave suspicion of having committed the same acts of incitement to breach of trust and complicity in breach of trust as well as fraud and two of the seven offences against the Bankruptcy Act mentioned above. In connection with the last-named offences the detention order stated that there were grounds for thinking that in the autumn of 1961 Wemhoff had withdrawn 100,000 DM from an account in his wife’s name at the Banque Commerciale SA, Geneva, and secreted this amount somewhere. It added that the same was true, at least in part, of a sum of 140,000 DM paid in by Wemhoff in the spring of 1962 to an account kept by his agent with the "Papenberg-Bank", Berlin. According to the detention order, there was still a danger that the applicant would abscond, because of the likely sentence. 11. By an order (Eröffnungsbeschluss) of the Regional Court dated 17 July 1964, the Applicant and eight other accused were committed to the trial court; the order severed the proceedings against a further four accused persons from the main proceedings. The Regional Court found there was reason to think that Wemhoff had committed the offences described in the detention order of 7 July 1964. Proceedings on five of the seven acts of bankruptcy of which the applicant was suspected were severed from the main proceedings; they were later discontinued (Einstellung) under Section 154 of the German Code of Criminal Procedure. 12. The Applicant’s trial opened on 9 November 1964. In the course of it he lodged 117 applications for the hearing of witnesses, covering 230 points. He challenged three judges and four financial experts on the grounds of partiality. The Regional Court heard 97 witnesses, three medical experts and four financial experts. The minutes of the hearing totalled nearly 1,000 pages, apart from the appendices, which comprised about 600 pages. On 15 February 1965, the Regional Court, acting under Section 154 of the German Code of Criminal Procedure, discontinued (eingestellt) the proceedings in those cases of fraud with which the Applicant was charged that occurred before the beginning of June 1961. On 22 February 1965, it severed from the principal proceedings the two offences under Section 239 (1) (i) of the Bankruptcy Act for which the Applicant was still being prosecuted. Some months later the proceedings relating to these were also discontinued (Section 154 of the Code of Criminal Procedure). On 7 April 1965, the Regional Court found Wemhoff guilty of a particularly serious case of prolonged abetment to breach of trust (fortgesetzte Beihilfe zur Untreue, Sections 266 and 49 of the Criminal Code) and sentenced him to six years and six months penal servitude (Zuchthaus) and a fine of 500 DM, the period of detention on remand being counted as part of the sentence. The court ordered that the Applicant should be kept in detention on remand for the reasons stated in the detention order of 7 July 1964. Judgment was passed on the Applicant at the same time as on six other accused. The judgment comprised 292 pages. 13. After conviction, Wemhoff again applied for provisional release in April 1965, but the Regional Court rejected his application on 30 April 1965. His appeal against this decision was rejected by the Court of Appeal on 17 May 1965. That court found that it was very probable that he had secreted large sums of money and that he was greatly in debt and insolvent, so that there was a danger that he would yield to the temptation to evade prosecution. 14. On 16 August 1965, the Applicant requested provisional release against security of 50,000 DM (20,000 DM in cash and 30,000 DM in the form of a bank guarantee to be put up by his father). After discussing the matter at the Public Prosecutor’s Office, Wemhoff amended his request two days later, offering security of 100,000 DM. This offer was accepted by the Regional Court on 19 August 1965. The Applicant, however, did not deposit this security but on 30 August 1965, offered a bank guarantee of 25,000 or 50,000 DM which was to be provided by his father. The Regional Court rejected this offer on 6 September 1965. The Applicant contested this decision and offered security of 25,000 DM, but the Court of Appeal dismissed his appeal on 29 October 1965 on the ground that a security of this sum was not sufficient to dispel the danger of flight which was still present. On 19 October 1965, while these proceedings were still in progress, Wemhoff again asked the Regional Court to order his release if necessary against security of 10,000 DM. The court rejected the application on 1 December 1965. It found that the temptation for Wemhoff to abscond was still very great, for: - the sentence remaining to be served was considerable; - the Applicant was insolvent and deeply in debt, which he would probably never be able to settle; and - the suspicion that he had secreted away 200,000 DM, as stated in the detention order of 7 July 1964, had grown stronger during the trial. 15. On 17 December 1965 the Federal Court (Bundesgerichtshof) rejected an appeal (Revision) filed by the Applicant in July 1965 against his conviction by the Regional Court. The time he had spent in detention since the judgment of 7 April, in so far as it exceeded three months, was to be counted as part of the sentence. 16. On 8 November 1966, after serving two-thirds of his sentence, Wemhoff was conditionally released (in accordance with Section 26 of the Criminal Code) under an Order of the Regional Court dated 20 October 1966. 17. In his original Application lodged with the Commission on 9 January 1964, the Applicant alleged that the length of his detention on remand violated his right under Article 5 (3) (art. 5-3) of the Convention to be brought to trial within a reasonable time or released pending trial. He complained of the fact that the decisions of the District Court dated 20 March 1963, of the Regional Court dated 3 May 1963 and of the Court of Appeal dated 5 August 1963 had not put an end to the detention. He claimed compensation for the damage suffered and reserved the right to specify later the exact amount of his claim. On 2 July 1964 the Commission declared the Application admissible in respect of Article 5 (3) (art. 5-3), and also, ex officio, with reference to Article 6 (1) (art. 6-1). Subsequent to his Application, Wemhoff made three other complaints. On 28 September 1964 the Commission declared one of them inadmissible as being manifestly ill-founded; the other two were not upheld by the Applicant. 18. Following the decision declaring admissible the original Application, a Sub-Commission ascertained the facts and unsuccessfully sought a friendly settlement (Articles 28 and 29 of the Convention) (art. 28, art. 29). 19. Before the Commission and the Sub-Commission, the Applicant maintained that the purpose of Article 5 (3) (art. 5-3) was to avoid an excessively long deprivation of liberty because of the extent and length of the investigation. He stated that detention on remand was a "special sacrifice" imposed upon persons, whether guilty or not, for the maintenance of an effective administration of justice. As, according to the Applicant, this involves a derogation from the principle of the presumption of innocence enshrined in Article 6 (2) (art. 6-2), the State has not the right to continue such detention until the social position, the livelihood, the health, the professional and family life of the individual concerned were destroyed, consequences which his detention had brought about. Pointing out that a remand prisoner’s uncertainty as to his fate is a mental strain that becomes heavier with the passage of time, the Applicant also mentioned Article 3 (art. 3) of the Convention. Wemhoff also submitted that it would have been possible to deal with his case more speedily, in particular, by dividing it, by employing several public prosecutors and by accelerating the work of the experts. He added that he himself had not caused any substantial delay in the proceedings but, on the contrary, assisted the Public Prosecutor’s Office in unravelling the transactions in issue. Furthermore, the Applicant submitted that neither the length of his anticipated sentence nor his civil liability for the loss suffered by the Thyssen Bank constituted sufficient grounds for suspecting him of intending to escape. His offers of bail and the fact that after the discovery of the Thyssen affair on 17 October 1961, he remained with his family in Berlin until his arrest on 9 November proved that he had no intention of resorting to flight. Lastly Wemhoff claimed that he was a victim of a violation of Article 5 (3) (art. 5-3) notwithstanding the final result of his trial, since, in his opinion, the decision whether or not the length of detention pending trial is reasonable cannot depend upon any subsequent occurrence. The Applicant added that, if the conditions of detention on remand are less harsh than those of penal servitude, the uncertainty of the remand prisoner as to his future constitutes a special burden which does not exist in the case of a convicted prisoner. 20. After the failure of the attempt to arrange a friendly settlement made by the Sub-Commission, the plenary Commission drew up a Report as required under Article 31 (art. 31) of the Convention. The Report was adopted on 1 April 1966 and transmitted to the Committee of Ministers of the Council of Europe on 17 August 1966. The Commission expressed therein the following opinion, which it later confirmed before the Court: (a) by seven votes to three, that the Applicant had not been brought to trial "within a reasonable time" or released pending trial, and that, consequently, Article 5 (3) (art. 5-3) of the Convention had been violated in the present case; (b) by nine votes to one, that that conclusion could not be affected by the fact that the judgment of 7 April 1965 required the period of detention on remand to be counted as part of the sentence; (c) unanimously, that the Applicant’s continued detention on remand, ordered by the competent courts on the grounds of danger of flight and suppression of evidence, was a "lawful detention" within the meaning of Article 5 (1) (c) (art. 5-1-c); (d) unanimously, that it could not consider the Applicant’s claim for compensation under Article 5 (5) (art. 5-5), before: (i) the competent organ, namely, the Court or the Committee of Ministers, had given a decision on the question whether Article 5 (3) (art. 5-3) had been violated; and (ii) the Applicant had had an opportunity, with respect to his claim for compensation, to exhaust, in accordance with Article 26 (art. 26) of the Convention, the domestic remedies available to him under German law; (e) unanimously, that even if the period from 9 November 1961 to 17 December 1965 was considered, Article 6 (1) (art. 6-1) had not been violated in the criminal proceedings against the Applicant. In brief, of the ten members of the Commission who were present when the Report was adopted, three found no breach by the Federal Republic of Germany of its obligations under the Convention while the majority considered that there had been a breach on one count, but none on the others. The Report sets out four individual opinions – one concurring, and the other three dissenting. Arguments of the Commission and the Government 1. In the Commission’s view Article 5 (3) (art. 5-3) of the Convention lays down the right of a person detained in accordance with Article 5 (1) (c) (art. 5-1-c) either to be released pending trial or to be brought to trial within a reasonable time. If the person is being held in detention on remand it must not exceed a reasonable period. The most important problem, therefore, is to determine the exact meaning of the words "reasonable time". The Commission finds this expression vague and lacking in precision, with the result that it is not possible to determine abstractly its exact meaning, which can be evaluated solely in the light of the particular circumstances of each case. 2. In order to facilitate such evaluation the Commission believes that it is in general necessary to examine an individual case according to the seven following "criteria" or "elements": (i) The actual length of detention. In this respect, the Commission does not indicate in its Report when it considers the "reasonable time" mentioned in Article 5 (3) (art. 5-3) to begin and to end in abstracto. During the oral proceedings before the Court, however, the Principal Delegate of the Commission stated the problems which the Commission thinks arise in this matter. Whereas the English version ("entitled to trial within a reasonable time or to be released pending trial") would permit the interpretation that the period referred to ends with the opening of the case before the trial court, the French version ("être jugée dans un délai raisonnable, ou libérée pendant la procédure") would cover a longer period, ending at the date on which judgment is pronounced. The Commission has not stated any definite opinion on this question, but at the hearing its Principal Delegate expressed a clear preference in favour of the interpretation based on the French text, the meaning of which is, unlike the English version, clear and unequivocal and also more favourable to the individual. In particular, the delegate of the Commission rejected the argument of the German Government that the English version should be accepted for the simple reason that it limits the sovereignty of States to a lesser degree. The Commission emphasised the importance which it attaches to the Court’s settling this question of interpretation. (ii) The length of detention on remand in relation to the nature of the offence, the penalty prescribed and to be expected in the case of conviction and any legal provisions making allowance for such a period of detention in the execution of the penalty which may be imposed. On this point the Commission remarked that the length of detention on remand may vary according to the nature of the offence concerned and the penalty prescribed and to be expected. However, in determining the relation between the penalty and the length of detention, it is necessary to take into account the presumption of innocence as guaranteed by Article 6 (2) (art. 6-2) of the Convention. If the length of detention should approach too closely the length of the sentence to be expected in case of conviction, the principle of presumption of innocence would not be fully observed; (iii) material, moral or other effects on the detained person. (iv) the conduct of the accused: (a) Did he contribute to the delay or expedition of the investigation or trial? (b) Was the procedure delayed as a result of applications for release pending trial, appeals or other remedies resorted to by him? (c) Did he request release on bail or offer other guarantees to appear for trial? (v) difficulties in the investigation of the case (its complexity in respect of facts or number of witnesses or co-accused, need to obtain evidence abroad, etc.). (vi) the manner in which the investigation was conducted: (a) the system of investigation applicable; (b) the conduct by the authorities of the investigation (the diligence shown by them in dealing with the case and the manner in which they organised the investigation). (vii) the conduct of the judicial authorities concerned: (a) in dealing with the applications for release pending trial; (b) in completing the trial. 3. The Commission argues that a rational scheme of this kind makes possible in each case a "coherent interpretation without any appearance of arbitrariness". The Commission remarks, however, that the conclusion in any particular case will be the outcome of an overall evaluation of all the elements. Even if examination of some of the criteria leads to the conclusion that the length of detention is reasonable, the application of other criteria may lead to a contrary conclusion. The final and determining conclusion will therefore depend on the relative weight and importance of the criteria, but this in no way precludes one single criterion from having decisive importance in some cases. The Commission adds that it has endeavoured to cover, through the aforementioned criteria, all the situations of fact which it is usually possible to find in cases of detention on remand, but that the list should not be considered exhaustive, there being exceptional situations, other than those submitted to the Court for decision in the case in question, which might justify the examination of other criteria. 4. In this case the Commission ascertained the facts in the light of the said criteria and proceeded to their legal evaluation by the same method of interpretation. Certain of the facts established by the Commission seemed to it important in the light of several criteria. There will be found below a summary of the Commission’s opinion on these various points. 5. With regard to application of the first criterion, that is to say the length of Wemhoff’s detention on remand, the Commission takes into account the period from 9 November 1961 (the date of his arrest) to 9 November 1964 (the date of the opening of the trial before the Regional Court). According to the Commission the actual length of this detention (three years) seems to warrant the conclusion that it exceeded a "reasonable" period. 6. As regards the second criterion mentioned above, the Commission is of the opinion that its application in the present case seems to justify the same conclusion. It remarks that here it has taken into consideration both the possibility of the Applicant’s provisional release under Section 26 of the Criminal Code, and the fact that the length of detention has been counted as part of the sentence imposed. The Commission accepts that this last measure constitutes an element comparable to an "extenuating circumstance", but states that it in no way changes the distinctive nature of detention on remand which, not being in accordance with Article 5 (3) (art. 5-3), remains a violation of the Convention, even if in the execution of the sentence finally imposed, account has been taken of the period of detention. 7. Application of the third criterion, in the opinion of the Commission, likewise leads to the conclusion that the length of detention was excessive, in view of the prejudicial effects of the detention on the Applicant’s family life; his long detention is said to have destroyed his marriage and injured his close relations with his parents. 8. The Commission does not think, as regards the fourth criterion, that the Applicant’s conduct contributed substantially to the length of his detention. 9. In evaluating the fifth criterion the Commission considers that the case in question was of very great complexity, not only on account of the nature and number of the financial transactions involved but also because of the number of accused and witnesses who had to be heard and the ramifications of the case both in Germany and abroad. According to the Commission these circumstances support and conclusion that the length of detention was reasonable. 10. The examination of the sixth and seventh criteria does not, in the opinion of the Commission, lead to the conclusion that the criminal proceedings against the Applicant were substantially prolonged through any fault of the authorities. 11. In the light of the overall evaluation of these various criteria, Commission attaches particular importance to the actual length of detention and concludes that the Applicant was not brought to trial within a "reasonable" time or released pending trial, and that consequently he has been a victim of a violation of Article 5 (3) (art. 5-3). 12. It should be added that in the Commission’s view the continued detention on remand of the Applicant, ordered by the competent courts because of the danger of flight and suppression of evidence, was lawful within the meaning of Article 5 (1) (c) (art. 5-1-c). 13. The Commission maintains that Article 6 (1) (art. 6-1) poses questions of interpretation similar to those raised by Article 5 (3) (art. 5-3), in particular as regards the "time" mentioned in Article 6 (1) (art. 6-1). However, in the opinion of the Commission, the question whether the time was "reasonable" for the purposes of Article 5 (3) (art. 5-3) or of Article 6 (1) (art. 6-1) must be judged differently in the two cases; the former, being intended to safeguard the physical freedom of the individual, requires stricter application than the latter, the object of which is to protect the individual against abnormally long judicial proceedings, irrespective of the question of the actual detention. In the present case, the criminal procedure related to extremely complex facts; it was not unduly prolonged by the German judicial authorities. Therefore, the Commission arrives at the conclusion that even if the period concerned were considered to run from 9 November 1961 until 17 December 1965, Article 6 (1) (art. 6-1) has not been violated in the criminal proceedings against the Applicant. 14. At the hearing of 9 January 1968, the Commission made the the following submissions: "May it please the Court to decide: (1) whether or not Article 5 (3) (art. 5-3) of the Convention has been violated by the detention of Wemhoff from 9 November 1961 to 9 November 1964 or any later date; (2) whether or not Article 6 (1) (art. 6-1) of the Convention has been violated by the duration of the criminal proceedings against Wemhoff between his arrest on 9 November 1961 or any later date and the judgment of the Regional Court of Berlin on 7 April 1965 or any other date." 15. The German Government, for its part, remarks that it shares the Commission’s opinion as to the absence of any violation of Article 6 (1) (art. 6-1) of the Convention. 16. With regard to the interpretation of Article 5 (3) (art. 5-3) of the Convention and its application to the present case, the Government believes that the period to be considered is that which the Commission takes into account in its Report, from arrest (9 November 1961) to the opening of the case before the trial court, the Regional Court of Berlin (9 November 1964). According to the Government it is essential, at least in the present case, not to rely on the French text ("le droit d’être jugée dans un délai raisonnable ou libérée pendant la procédure"), which could signify a longer period (up to the date of the judgment) than one terminating on the date of the opening of the trial, as suggested by the English version ("entitled to trial within a reasonable time or to release pending trial"). It could therefore lead to a further limitation of the sovereignty of the Contracting States. Moreover, application of Article 5 (3) (art. 5-3) in the French version would allow the accused to prolong the protection accorded by that provision by making excessive use of procedural devices. The result would be an undue prolongation of proceedings, with the danger that by the time release was possible, the period would no longer be "reasonable". 17. In general terms the Government expresses considerable reservations as to the method adopted by the Commission - that of laying down seven "criteria" - while admitting that the answer depends In its opinion, the Commission was not objective, on its strict allocation of the facts to the same criteria, as indeed some of the facts mentioned in relation to one of the criteria would be equally relevant to others. 18. The Government also sets against the Commission’s reasoning the following considerations which, in its opinion, demonstrate the absence of any violation of Article 5 (3) (art. 5-3) in the case of the Applicant. 19. To the first criterion advanced by the Commission, namely, the actual length of detention, the Government raises objections of principle. In its opinion, the adjective "reasonable", qualifying the noun "time", introduces a relative element; the absolute factor which the actual length of detention represents cannot therefore serve as a criterion for determining whether such a length of time is "reasonable". Furthermore, the Government remarks that, in the Commission’s view, the Applicant’s detention was "lawful" for the whole of its length within the meaning of Article 5 (1) (c) (art. 5-1-c) of the Convention; it adds that the Commission, in evaluating the fifth criterion, admits that the complexity of the investigation tends to justify the length of detention. The Government therefore does not see how it is possible to consider as "unreasonable" the length of the detention on remand in toto. Moreover, the Commission has not indicated at what moment the detention ceased, in its opinion, to be "reasonable". 20. Neither does the Government share the evaluation of the Commission with respect to the second criterion. It emphasises that the opinion of the Commission is based primarily on the possibility, provided in Section 26 of the Criminal Code, of the conditional release of a detained person. However, according to the Government, that Section, whose application depends on the Court’s discretion, can operate only when the sentence has become final and, more precisely, from the moment when the convicted person has already served two-thirds of his sentence; it cannot therefore justify the conclusion that the length of detention on remand has been "unreasonable". Moreover, the German judicial authorities granted the Applicant conditional freedom when he had served two-thirds of his sentence. This decision, which dates from 20 October 1966, was able to be taken so early because the length of detention on remand had been counted as part of the sentence. With regard to the Commission’s argument that detention on remand represents a distinct situation even where it has been counted in part or in whole against the sentence, the Government stresses the advantages - which are not disputed - of such detention compared with a sentence of imprisonment. It is inferred from this that the length of the detention operated in favour of the Applicant: had it been shorter, Wemhoff would have had to spend longer in penal servitude, which would have made the conditions of his detention appreciably worse. 21. In evaluating the third criterion, the Commission has omitted, in the Government’s view, to verify the existence of a causal relation between Wemhoff’s detention and the deterioration of his family life. The Government maintains that if Wemhoff had been convicted earlier and thus subjected to a longer period of imprisonment, the effects would have been equally prejudicial - indeed, even graver - for his financial and family position than would those of detention on remand. It is deduced from this that the evaluation of the third criterion by the Commission is not convincing. 22. In the opinion of the Government, the statements of fact arrived at by the Commission in the light of the fourth criterion contain certain lacunae. Certainly, it may be acknowledged that the numerous requests, appeals and other approaches, set out in detail in Appendices VIII and IX of the Commission’s Report, do not allow it to be affirmed that Wemhoff generally intended to slow down the course of the proceedings. According to the Government, there can, however, be no doubt that the examination of the case was thereby prolonged. On this point, the Government likewise remarks that the Regional Court of Berlin decided on 19 August 1965, i.e. after conviction, to suspend the detention order subject to the deposit of bail of 100,000 DM. The Court had, in the light of the documents in its possession, discovered that the Applicant had deposited the sum of 100,000 DM in an account opened in the name of his wife in a Swiss bank, and that he had withdrawn this sum when his offences came to light. In the course of the proceedings, the Applicant had given highly contradictory explanations of this transaction; the judicial authorities have not been in a position to discover what Wemhoff had done with the sum of money in question. Whatever the position may be, the Applicant did not take up the offer of bail of the Court. According to the Government, it should be concluded that the application of the fourth criterion does not authorise the Commission to consider as unreasonable the length of detention on remand. 23. As regards the application of the fifth, sixth and seventh criteria, the Government states that it shares the opinion expressed by the Commission. 24. In dealing with a criminal case as enormous and as complex, both as to the facts and to the law, as is the Wemhoff case, the Government considers that the Commission’s method of evaluation does not allow objective determination of whether the length of detention on remand was reasonable or not within the meaning of Article 5 (3) (art. 5-3) of the Convention or of where in time the line should be drawn between what is "reasonable" and what is "unreasonable". In particular, the Government expresses its regret that in following the system of "criteria" the Commission has lost sight of the reasons which, in the view of the judicial authorities, made continued detention necessary. The danger that the Applicant would abscond is said to have been a real one throughout his detention, by reason not only of the gravity of the likely sentence and its effect on his civil responsibility but also of his financial malpractices and particularly the unexplained withdrawal of 100,000 DM from an account in his wife’s name with a Swiss bank. 25. At the hearing of 9 January 1968, the Government made the following submission: "We ask this Court to find: that the decisions and measures taken by German authorities and courts in the Wemhoff case are compatible with the commitments entered into by the Federal Republic under Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) of the Convention".

dev

001-75257

ENG

TUR

ADMISSIBILITY

DEMIR v. TURKEY

Inadmissible

The applicants, Süleyman Demir, İsmail Aktaş, Metin Kahramanoğlu, Ali Gündoğan and Bekir Demir, are Turkish nationals. They are represented before the Court by Mr A. C. Zülfikar and Mr M. Gündoğdu, lawyers practising in Elazığ. The facts of the case, as submitted by the parties, may be summarised as follows. Until October 1994 the applicant lived in Yukarıpeyde, a hamlet of the Ulukele village, in the Çemişgezek district of Tunceli, where he owns property. In October 1994 security forces evacuated Yukarıpeyde within the context of military operations in the region. They also destroyed the applicant’s property. The applicant and his family then moved to the Tekeli village of Çemişgezek, where they currently live. In 1995 and 2001 the applicant filed petitions with the District Governor’s office in Çemişgezek, Governor’s office in Tunceli, the State of Emergency Regional Governor’s Office and the Prime Minister’s office requesting compensation and permission to return to his village. It is to be noted that the applicant did not submit any document attesting his petitions to these offices. On an unknown date the District Governor’s office in Çemişgezek sent a letter to the applicant stating that he would be given a compensation of 200,000,000 Turkish liras for his damages. When the applicant applied to the District Governor’s office to receive the compensation in question, the authorities refused his request on account of lack of resources. It is to be noted that the applicant did not submit any document in relation to his request of compensation and the authorities’ reply thereto. On 17 September 2001 the applicant filed further petitions with the Prime Minister’s office and the District Governor’s office in Çemişgezek requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village. He further reiterated his request for compensation for the damages he suffered. On 28 September 2001 he received a letter from the Prime Minister’s office informing him that his petition had been referred to the Ministry of the Interior. On 10 October 2001 the District Governor’s office in Çemişgezek sent the following reply to the applicant: “... It was established that you voluntarily left your village following the burning down of your house. Besides, on 15 November 1995 you received 11,500,000 Turkish liras accommodation aid from the Social Aid and Solidarity Foundation. ...” Until October 1994 the applicant lived in Çambulak, a village of the Ovacık district in Tunceli, where he owns property. In October 1994 security forces evacuated Çambulak, holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant’s property. The applicant then moved to Elazığ, where he currently lives. In 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by the security forces. It is to be noted that the applicant did not submit any document attesting his petition with the Public Prosecutor’s office in Ovacık. On unspecified dates the applicant filed several petitions with the District Governor’s office in Ovacık, Governor’s office in Tunceli and the State of Emergency Regional Governor’s Office requesting compensation and permission to return to his village. It is to be noted that the applicant did not submit to the Court a copy of these decisions. On 31 October 2001 the District Governor’s office in Ovacık sent the following letter to the applicant in reply to his last petition: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to the Village and Rehabilitation Project’.” Until October 1994 the applicant lived in Kıra, a hamlet of the Kozluca village, in the Hozat district of Tunceli, where he owns property. In October 1994 security forces evacuated Kıra within the context of military operations in the region. They also destroyed the applicant’s property. Following the destruction of his property, the applicant moved to Hozat. He then moved to Elazığ, where he currently lives. On 14 October 1994 the applicant filed petitions with the Prime Minister’s office, the State of Emergency Regional Governor’s Office and the Governor’s office in Tunceli requesting compensation for pecuniary and non-pecuniary damages he suffered. On 26 January 1995 the District Governor’s office in Hozat rejected the applicant’s request, stating that he did not fulfil the conditions required by the Housing Law, no. 2510. On an unknown date the applicant filed a further petition with the District Governor’s office in Hozat requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village. He further reiterated his request for compensation for the damages he suffered. On 13 September 2001 he received the following reply from the District Governor’s office in Hozat: “...The Project ‘Return to the Village and Rehabilitation in Eastern and South-eastern Anatolia’ was developed by the South-eastern Anatolia Project Regional Development Directorate (GAP Bölge Kalkındırma İdaresi Başkanlığı). It aims to provide the re-settlement of any inhabitants who unwillingly left their land due to various reasons, particularly terrorist incidents and who now intend to return to secure collective settlement units, since the number of the terrorist incidents have relatively decreased in the region. The Project also aims to create sustainable living standards in the re-settlement areas. It was established that you had not filed a complaint against the perpetrators of the alleged incident. ... An investigation will be initiated should you request and inform the District Governor’s office about the identities of the perpetrators who are responsible for your eviction from your village.” Until October 1994 the applicant lived in Şahverdi, a village of the Ovacık district, in Tunceli. It is to be noted that the documents attesting the ownership of the property that the applicant used in Şahverdi bear the applicant’s father’s name. In October 1994 security forces evacuated Şahverdi, holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant’s property. Following the destruction of his property, the applicant moved to Ovacık. He then moved to Elazığ in 1996, where he currently lives. On 29 January 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting information about the proceedings concerning the burning down of his house in 1994 and permission to return to his village. On 1 February 2001 the District Governor’s office in Ovacık sent a letter to the applicant stating that there would not be an investigation into his allegations as it was established that the offence in question had been committed by members of the PKK. He was also informed that his petition would be considered under the ‘Return to the Village and Rehabilitation Project’. On an unknown date the applicant filed a further petition with the District Governor’s office in Ovacık reiterating his request of permission to return to his village. On 26 January 2002 the State of Emergency Unit of the District Governor’s office in Ovacık sent the following letter in reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to the Village and Rehabilitation Project’.” Until October 1994 the applicant lived in Çambulak, a village of the Ovacık district in Tunceli, where he owns property. In October 1994 security forces evacuated Çambulak holding the inhabitants of the village responsible for the disturbances in the region. They also destroyed the applicant’s property. The applicant then moved to Elazığ, where he currently lives. On 16 August 1996 the village mayor (muhtar) of Çambulak, Baki Keser petitioned the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the State of Emergency Regional Governor’s Office, the Refah Party Presidency, the Prime Minister’s office and the Presidency of the Parliament, on behalf of the villagers. He requested compensation for their losses. On 2 February 1999 Mr Keser lodged further petitions with various government offices, namely the Governor’s office in Tunceli, the Presidency of the Parliament, the Prime Minister’s office and the office of the President of the Republic, requesting permission on behalf of the villagers to return to their villages. On an unknown date the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 31 October 2001 the State of Emergency of Unit of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to the Village and Rehabilitation Project’.” On 20 February 2002 the applicant lodged a further petition with the District Governor’s office in Ovacık, requesting compensation for the damages he suffered and permission to return to his village. The applicant received no response to his last petition. The investigation carried out by the authorities indicated that the applicants had left their villages on their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).

dev

001-5716

ENG

TUR

ADMISSIBILITY

GÖZTOK v. TURKEY

Inadmissible

Elisabeth Palm;Gaukur Jörundsson

The applicant is a Turkish national, born in 1944 and living in Istanbul. He is represented before the Court by Mrs İmmihan Yaşar, Mr Talat Tepe, Mr Ahmet Akkuş and Mrs Naciye Kaplan, lawyers practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. Until 1995 the applicant lived in the Kalkanlı village attached to the Yayladere district in the province of Bingöl. The applicant owns a piece of land and he had a house in the village. In 1994 and 1995 the applicant, along with other villagers, was continually intimidated by the members of the security forces called “special team”. The villagers were subjected to food rationing imposed by the military commander of the district. The village was under military control and access to the village was subject to prior permission from the special teams. Subsequently, the majority of the villagers abandoned their village due to the pressure by the security forces. In 1995 the applicant gave the keys of his house to the commander in the village before he went to Istanbul in order to spend the winter there. The applicant said to the commander that in case the security forces wanted to conduct a search in his house they could go in. He further said to the commander not to break the windows or the door of the house had they conduct a search. While in Istanbul the applicant learnt from his neighbours that on 24 March 1995 his house had been burnt down by the security forces. The applicant returned back to his village and saw that his house and all its contents had been burnt. The applicant was told by a commander called Ali that his house had been burnt down by the terrorists. A villager, G.A., who had witnessed the burning of the houses in the village, told the applicant that his house, along with the other houses in the village, had been burnt with explosives installed by the security forces. The other villagers also told the applicant that only the houses of those who refused to abandon the village had been burnt down. The villagers further told the applicant that a commander called Alpay had been conducting the burning of the houses. On 3 April 1995 the applicant filed petitions with the offices of the Kığı public prosecutor, the Yayladere District Governor, and the Governor for the state of emergency region. He stated that his house had been burnt down on 24 March 1995. He requested that an investigation be initiated about the burning of his house and asked for compensation for his losses. On 24 April 1995 the applicant filed petitions with the offices of the Prime Minister, the Minister of Interior and the Minister of State in charge of human rights. He requested that an investigation be initiated and that the perpetrators be identified about the burning of his house. He further requested compensation for his losses. The applicant received no replies to these applications. In a letter dated 5 May 1995 to the Yayladere Heska Villages Solidarity and Culture Association (Yayaladere Heska Köyleri Dayanışma, Yardımlaşma ve Kültür Derneği) from the office of the Bingöl Governor it was stated that the villagers form the Haktanır, Yolgüden, Sürmelikoç, Kalkanlı and Aydınlar villages attached to Yayladere district had complained that in March 1995 they had been given twenty four hours by the security forces to abandon their villages. These villagers had further complained that their houses had been burnt by the security forces and requested that an investigation be initiated into their allegations. However, some of these houses had been destroyed by the winter weather and some of them had been intentionally burnt down by the villagers in order to obtain compensation from the authorities. The houses in the Kalkanlı village had been burnt down in the clashes with the PKK. The authorities were not responsible for the damages occurred. On 16 May 1995 the office of the Yayladere District Governor sent a letter in reply to the applicant stating that the authorities were not responsible for the burning of the houses. The applicant’s house had been burnt in the clashes between the security forces and the terrorists on 24 March 1995. The applicant had alleged that he had left the keys of his house to the commander before he went to Istanbul. However, this allegation had been unsubstantiated. On 21 August 1995 the public prosecutor at the Diyarbakır State Security Court decided to join the two applications that were previously registered with the office of the Kığı public prosecutor and that were transferred to his office. In his decision the prosecutor noted that the Kığı public prosecutor had issued a decision of lack of jurisdiction (görevsizlik kararı) on 2 May 1995 (decision no. 1995/25-9) concerning the clashes took place at the Kalkanlı station between the security forces and the terrorists on 24 March 1995. The prosecutor decided to register the investigation file related to this event at his office. The prosecutor further noted that the Kığı public prosecutor had issued a decision of lack of jurisdiction (görevsizlik kararı) on 8 August 1995 (decision no. 1995/24-23) concerning the burning of the applicant’s house. The prosecutor finally decided to register the two investigation files at his office under investigation file number 1995/2006. On 18 July 1996 the applicant filed another petition with the office of the Yayladere District Governor. In this petition the applicant stated that he left his village in 1994 and that his house had been burnt on 5 May 1995. He also asked compensation for his losses. On 25 July 1996 the applicant filed a petition with the office of the Prime Minister. In this petition the applicant stated that his house had been burnt in the clashes in April 1995. He asked compensation for the losses he had sustained due to the destruction of his properties. 1. Administrative liability Article 125 of the Turkish Constitution provides as follows: “All acts or decisions of the administration are subject to judicial review... The administration shall be liable to indemnify any damage caused by its own acts and measures.” The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides: “... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.” 2. Criminal responsibility The Turkish Criminal Code makes it a criminal offence: (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants), (b) to oblige an individual through force or threats to commit or not to commit an act (Article 188), (c) to issue threats (Article 191), (d) to make an unlawful search of an individual’s home (Articles 193 and 194), (e) to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382), (f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or (g) to damage another’s property intentionally (Articles 516). For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the Public Prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind. 3. Provisions on compensation Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.

dev

001-120503

ENG

UKR

ADMISSIBILITY

LIMAN v. UKRAINE

Inadmissible

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

1. The applicant, Mr Oleg Nikolayevich Liman, is a Ukrainian national, who was born in 1973. Before being imprisoned the applicant lived in Slovyansk, Donetsk Region. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 16 August 2002 the applicant and two accomplices attacked and robbed Mr K.S., Ms K.N. and Mr K.Yu. in their home. 5. On 27 August 2002 the applicant was arrested by police officers after being identified by Ms K.N. 6. On 30 May 2003 the Slovyansk Town Court (“the Town Court”) found the applicant guilty of robbery and sentenced him to ten years and six months’ imprisonment, with confiscation of his property. The applicant was represented by three lawyers in those proceedings. 7. On 26 August 2003 and 17 June 2004 the Donetsk Court of Appeal (“the Court of Appeal”) and the Supreme Court, respectively, upheld the judgment of 30 May 2003. 8. On 2 July 2004 the Town Court, in the course of civil proceedings, ordered the applicant to pay 84,837.10 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 20,000 in respect of non-pecuniary damage in favour of Mr K.S. and Ms K.N in compensation for the crime he had committed against them. 9. On 21 July 2004 the applicant appealed against that judgment. The appeal was handwritten. 10. On 17 September 2004 the Court of Appeal remitted the appeal to the Town Court for a decision on whether it had been prepared in accordance with the procedural requirements. 11. On 29 September 2004 the Town Court found that the applicant’s appeal had not been properly submitted. The court noted, in particular, that the appeal had not been typewritten; it did not contain the necessary information about the other parties to the proceedings; it was not sufficiently reasoned; no copies thereof had been enclosed for the other parties; and the court fee for lodging an appeal had not been paid. The court therefore invited the applicant to rectify those shortcomings by 18 October 2004. 12. On 18 October 2004 the Town Court found that the applicant had not rectified the shortcomings in his appeal and returned it to him unexamined. 13. On 17 November 2004 the applicant submitted a new appeal against the judgment of 2 July 2004. The appeal was again handwritten. No evidence was enclosed suggesting that the applicant had paid a court fee, and the applicant did not request exemption from payment of the court fee. 14. On 29 November 2004 the Court of Appeal returned the appeal to the Town Court and suggested that it consider whether any steps should be taken to provide the applicant with the requisite facilities to prepare his appeal in accordance with the procedural formalities. 15. On 20 March 2005 the applicant signed an agreement with lawyer G. according to which that lawyer was to assist him in his criminal case. 16. On 21 March 2005 the Town Court extended the time-limit for appealing against the judgment of 2 July 2004 and accepted the applicant’s appeal. That hearing was attended by lawyer G. 17. On an unspecified date the case was sent to the Court of Appeal. 18. On 11 May 2005 the Court of Appeal found that the applicant’s appeal was again not typewritten. It therefore refused to open appeal proceedings and returned the case file to the Town Court. 19. The relevant provisions of the Code of Civil Procedure of 18 July 1963 (effective until 1 September 2005, the date when the Code of Civil Procedure of 18 March 2004 came into force) can be found in the judgment of Volovik v. Ukraine (no. 15123/03, §§ 24-31, 6 December 2007).

dev

001-85927

ENG

RUS

ADMISSIBILITY

DAVIDCHUK v. RUSSIA

Inadmissible

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

The applicant, Mr Viktor Anatolyevich Davidchuk, is a Russian national who was born in 1960 and lives in the Bryansk Region. The Russian Government were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was questioned by the police in the absence of his lawyer and confessed to the murder of his wife. Before the questioning he had made a handwritten statement that he did not need legal assistance. On 29 May 1998 the Klintsovskiy District Court of the Bryansk Region convicted the applicant of murder and sentenced him to fourteen years’ imprisonment. The applicant was assisted by legal-aid counsel. The applicant appealed. In his grounds of appeal he advanced the defence of irresistible impulse and asked for a more lenient sentence. He also applied for free legal representation because he did not have sufficient means to retain counsel. He relied on Article 50 of the Code of Criminal Procedure (see below). By letter of 23 April 2003, a deputy President of the Bryansk Regional Court rejected the applicant’s request for free legal assistance because “there were no right to free legal representation before appeal courts”. On 25 April 2003 the Bryansk Regional Court upheld the conviction on appeal but reduced the sentence to twelve years’ imprisonment. The applicant was not assisted by counsel. On 9 March 2006 a deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Bryansk Regional Court. He submitted that the Bryansk Regional Court had infringed the applicant’s right to free legal representation. On 26 April 2006 the Presidium of the Bryansk Regional Court granted the prosecutor’s application, finding that the refusal to provide the applicant with free legal representation at the appeal hearing had violated the rights of the defence. It quashed the appeal judgment of 25 April 2003 and remitted the case for a fresh examination before the Bryansk Regional Court. On 7 July 2006 the Bryansk Regional Court held a new appeal hearing. It upheld the applicant’s conviction but reduced the sentence to eleven years’ imprisonment. On 29 December 2006 the applicant was released on parole. Article 50 of the Code of Criminal Procedure (in force from 1 July 2002) establishes that the investigator, the prosecutor or the court provide the suspect or the accused with legal aid counsel upon his/her request.

dev

001-22017

ENG

AUT

ADMISSIBILITY

H.P. AND OTHERS v. AUSTRIA

Inadmissible

Nicolas Bratza

The applicants, H.P., born in 1941, E.M., born in 1932, R.B., born in 1936, G.P., born in 1945, and M.G., born in 1943, are all Austrian nationals. They are living in Spittal/Drau, Gladbach and Möllbrücke respectively. They are represented before the Court by Mr H. Walther, a lawyer practising in Klagenfurt. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants and their brother are all children of a Carinthian farmer who died on 3 September 1993 without having left a will. After the death of the applicants’ father, inheritance proceedings commenced on 10 December 1993 when their conditional declaration accepting the inheritance (bedingte Erbserklärung) was registered by the Spittal/Drau District Court. On 30 December 1993, 17 May, 27 June, 18 October 1994, and 20 March 1995, inheritance negotiation hearings were held by the court commissioner in the competent notary’s office. As the applicants and their brother were unable to reach an agreement, on 13 July 1995 the proceedings were transferred to the District Court which held hearings on 18 September, 23 October, 20 November 1995 and 15 January 1996. On the latter date the court ruled that the applicants and their brother had already, on 30 December 1993, entered into a valid agreement concerning the estate and appointed the applicants’ brother as the principal heir (Anerbe). The latter appealed against this decision arguing that no agreement had been reached. On 14 February 1996 the Klagenfurt Regional Court granted his appeal and referred the case back to the District Court. The District Court continued the proceedings and took several expert opinions on the question whether the applicants’ brother was able to be the principal heir. Upon the applicants’ requests, experts were appointed on 12 July, 9 September, 21 October 1996 and 28 May 1997. On 17 June 1997 the District Court determined that the applicants’ brother was the principal heir. On 24 July 1997 the Klagenfurt Regional Court granted the applicants’ appeal and referred the case back to the District Court. On 6 August 1997 the District Court requested an expert opinion of the Carinthian Chamber of Agriculture and Forestry (Kammer für Land- und Forstwirtschaft) on the question whether the estate fulfilled the conditions of a hereditary farm (Erbhof) within the meaning of the Carinthian Hereditary Farms Act (Kärntner Erbhöfegesetz). On 18 August 1997 the District Court found that it was a hereditary farm. Further hearings were held on 30 September and 5 November 1997. On the latter date the applicants and their brother agreed on a settlement regulating the inheritance (Erbübereinkommen). The file was transferred to the notary and, at the hearing of 14 April 1998, the applicants and their brother agreed on a family arrangement regulating the division of the whole estate (Erbteilungsübereinkommen). On 6 May 1998 the District Court issued the certificate putting the statutory heir in possession of the estate (Einantwortungsurkunde). Thereupon, on 25 October 1999, the inheritance settlement was entered in the land register (Grundbuch). Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows. "(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith. (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request. (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."

dev

001-81807

ENG

CYP

CHAMBER

CASE OF ARESTI CHARALAMBOUS v. CYPRUS

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

Christos Rozakis

4. The applicant was born in 1972 and lives in Nicosia. 5. The facts of the case, as submitted by the parties and as derived from the minutes of the proceedings, may be summarised as follows. 6. On 14 August 1997 the applicant married a Romanian citizen. On 28 September 1998 he filed a petition for divorce (no. 382/98) with the Family Court of Nicosia. 7. On 16 October 1998 the applicant filed an ex parte application for leave to publish the divorce petition in an English daily newspaper. Leave was granted by the court on 19 October 1998. 8. On 24 November 1998 the court fixed the case for mention for 21 December 1998 and instructed the counsel of the applicant's former wife (hereinafter “the respondent”) to file her defence by that date. This was filed on 2 March 1999. 9. On 15 December 1999 the respondent filed an application raising certain preliminary points of law to be tried before the main petition. The application was set for 21 December 1999 and then for 31 January 2000. In the meantime, on 27 January 2000, the applicant filed an objection to the application. 10. From 31 January 2000 until 23 October 2000 both the main divorce and interim proceedings were adjourned eight times. Two of these adjournments were by the court itself: from 15 May 2000 until 22 May 2000 and from 23 September 2000 until 23 October 2000. It appears that the remaining adjournments were by the parties' mutual agreement. 11. During the above period, on 21 July 2000, a deportation order was issued against the respondent by the immigration authorities. On 4 September 2000 the respondent filed an administrative recourse before the Supreme Court (first instance administrative jurisdiction) challenging the order, requesting an interim application for the suspension of the deportation order in order to be able to attend the divorce proceedings and testify before the Family Court and a declaration recognising her right to have her residence permit renewed. 12. On 23 October 2000 the respondent withdrew her application of 15 December 1999 and upon agreement by both parties the hearing of the divorce petition was adjourned until 19 December 2000. 13. The hearing of the petition commenced on 19 December 2000 and was completed on 13 March 2001. Three hearing sessions were held with one adjournment at the request of the respondent's lawyer. 14. In the meantime, on 5 March 2001, the Supreme Court delivered an interlocutory judgment and rejected the respondent's recourse. The Supreme Court noted that the respondent's residence permit had expired on 7 September 1998 and that since then she had been staying in Cyprus without a permit. Nonetheless, she had not been deported pending the proceedings in another recourse she had filed against the administrative authorities' decision not to grant her another permit. This recourse had been rejected by the Supreme Court on 5 July 2000 and this was the reason that the deportation order of 21 July 2000 had been issued. Furthermore, the Supreme Court observed that to grant the respondent her application for an interim order for the suspension of the deportation order would in essence result in the grant of permission to stay, which was outside the competence of the Court. The right of any person, whether Cypriot or alien, to be present at proceedings before a court, was not related to the question of permission to stay. The applicant, in her recourse, had linked the two, but the need for her to be present at the trial before the Family Court would be regulated by the requirements of the trial and not according to a general obligation of the Republic to grant her permission to stay in the Republic for the duration of the trial, as she asserted. 15. The respondent was deported on 7 March 2001. 16. On 13 March 2001 the Nicosia Family Court issued an ex-tempore decision granting the applicant's divorce petition. 17. On 23 April 2001, the applicant's former wife who had been deported (hereinafter “the appellant”), filed an appeal (no. 137/01) before the Supreme Court (Family Court Appeal Jurisdiction). The minutes of the first instance proceedings were received by the Supreme Court on 23 July 2001. 18. On 3 October 2001 the applicant filed an application for security of costs. The court fixed this application for hearing for 9 November 2001. On the latter date, the court fixed the application for further directions for 5 December 2001 and instructed the appellant to file her written objection by the above date. This was filed on 4 December 2001. 19. On 5 December 2001 the application was fixed for hearing for 11 January 2002. 20. In the meantime, on 23 December 2001, the appellant filed the outline of her address. 21. On 11 January 2002 the court heard the appellant's objection to the security of costs application and it reserved its decision on the matter. It also fixed the appeal proceedings for pre-trial for 8 November 2002. 22. In the meantime, on 27 June 2002, the court delivered its decision concerning the application for security of costs. 23. On 5 November 2002 the appellant filed her application for leave to amend her grounds of appeal. This was granted by the court on 8 November 2002. On the latter date, the parties were also directed to file their amended notices of appeal and the outlines of their addresses. 24. The appellant filed her amended grounds of appeal on 18 November 2002 and the applicant filed his written address outline on 6 February 2003. 25. On 27 May 2003 the Supreme Court fixed the appeal case for hearing for 29 May 2003. On the latter date the appellant's counsel made an oral request for the exclusion of one of the judges from the composition of the court. The specific judge had rejected her administrative recourse against the deportation order (see paragraph 14 above). Consequently, the hearing was adjourned until 8 July 2003 at the appellant's request. 26. On 7 July 2003 the appellant's counsel requested a fifteen-day adjournment because of health problems. On 9 July 2003 the Supreme Court granted the adjournment until 11 September 2003. 27. On 18 September 2003 the Supreme Court rejected the appellant's request of 29 May 2003. 28. The appeal was heard on 2 October 2003. 29. On 4 December 2003 the court delivered its judgment. It upheld the appeal and set aside the first instance judgment. It found that the appellant's right to a fair trial had been violated. This was due to the fact that the immigration authorities had not allowed her to remain in Cyprus for the purposes of the trial whilst the Nicosia Family Court had continued with the case despite having being informed of the respondent's deportation. The Supreme Court noted that the Family Court should have adjourned the case and indicated to the immigration authorities to allow the respondent to return for a few days to Cyprus in order to enable her to be present at the proceedings and to defend her case. The Supreme Court ordered a retrial by a different composition of the Family Court. 30. On 23 December 2003 the applicant's counsel applied for a retrial of the divorce petition. 31. On 27 January 2004 the hearing of the divorce petition was set for directions for 10 February 2004. 32. In the meantime, on 4 February 2004, the respondent filed an application for leave to amend her defence. 33. On 10 February 2004 the court fixed the interim application and the divorce petition for directions for 17 February 2004. 34. In the meantime, on 13 February 2004, the respondent filed a second application for leave to amend her defence. On 17 February 2004 she withdrew her application of 4 February 2004 and the court granted her application of 13 February 2004. Subsequently, the court fixed the main divorce proceedings for hearing for 16 March 2004. 35. The amended defence and counter-claim were filed on 1 March 2004. 36. From 16 March 2004 until 18 May 2004 the proceedings were adjourned twice consecutively. Both adjournments were at the request of the respondent's lawyer because his client could not appear before the court as the immigration authorities had not made the necessary arrangements for her to come to Cyprus. 37. A hearing was held on 18 May 2004 and the court granted the divorce petition on the same day.

dev

001-108009

ENG

SVN

CHAMBER

CASE OF BEGUS v. SLOVENIA

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

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

5. The applicant was born in 1953 and lives in Ljubljana. 6. The applicant is the director and sole owner of the limited liability company Energohit d.o.o., which provides consultancy, engineering and representation services. 7. On 25 October 1996 the applicant, representing his company Energohit, instituted enforcement proceedings against another company, L., for the payment of a bill for 887,250 Slovenian tolars (SIT). On 5 November 1996 the Ljubljana Local Court, relying on a valid purchase order submitted by the applicant’s company, upheld his request. The operative part of the court’s decision stated that company L. should pay the debt to the applicant’s company and that, if not paid, this claim should be enforced. 8. Company L. lodged an objection. It argued that the purchase order to which the applicant’s company referred had not been signed by it but by another company. Following the objection, the Ljubljana Local Court, on 9 December 1996, set aside its enforcement decision and the case was transferred to the Ljubljana District Court to decide on the dispute. 9. Further to the Ljubljana Local Court’s decision of 9 December 1996, the proceedings, which were governed by legislation concerning commercial disputes, were conducted before the Ljubljana District Court. The latter held three hearings, the first one on 16 February 2000. On 20 April 2000 the court upheld the applicant’s company’s claim for SIT 523,250 and rejected the remainder finding that it had already been paid. The judgment was served on the applicant’s company on 29 August 2000. 10. Following an appeal by company L., the judgment was quashed on 19 September 2002. Subsequently, the Ljubljana District Court re-examined the case, and, after holding two hearings, rejected the applicant’s company’s claim on 28 March 2003. The judgment was served on the applicant’s company on 8 July 2003. 11. Further to the applicant’s company’s appeal, the second judgment was also quashed (on 20 May 2004) and the case was re-examined at a new hearing held by the Ljubljana District Court on 22 October 2004. On that date the court upheld the claim for the sum of SIT 523,250 in a judgment, which was served on the applicant’s company on 28 January 2005. Company L.’s appeal was rejected by the Ljubljana Higher Court on 16 June 2005. On that date the judgment of 22 October 2004 became final and enforceable. The Ljubljana Higher Court’s judgment was served on the applicant’s company on 9 July 2005. 12. On 5 October 2005 the applicant’s company lodged a request for execution of the above judgment against company L.’s monetary assets, movable and immovable property. The applicant was twice asked to supplement the request with the necessary documents. On 20 December 2005 the Ljubljana Local Court gave a decision allowing the enforcement. 13. On 23 February 2006 the court appointed an enforcement officer. 14. On 12 May 2006 the applicant’s company asked the court to order company L. to supply a list of its assets. On 22 May 2006 the court issued an order in line with the applicant’s company’s request. On 21 June 2006 company L. supplied the list. 15. On 5 January 2007 the court decided that the seizure of company L.’s immovable property should be considered in separate proceedings, which were discontinued, presumably without success, on 11 June 2008. Subsequently, the applicant’s company was requested to specify which further assets could be subject to the enforcement. 16. Further to receiving a letter from company L.’s bank noting that there were no monetary assets and no transactions on its bank account, the court, on 25 March 2009, discontinued this aspect of the enforcement. The applicant’s company lodged an appeal, which was rejected on 17 June 2009 by the Ljubljana Higher Court. 17. On 25 September 2009 the enforcement officer informed the court that company L. had moved from its address, which was brought to the applicant’s company’s attention. On 15 February 2010 the applicant’s company informed the court of the new address. 18. In the course of the proceedings the applicant’s company twice requested a review of alleged irregularities in the process of execution; however, no decision appears to have been issued in reply to these requests. 19. On 13 July 2010 company L. was removed from the register of companies following a request by the tax authorities to that effect. As a result, the enforcement proceedings were discontinued on 21 December 2010. The applicant’s company did not request that the enforcement be continued against potential active shareholders in accordance with the relevant provisions of the Financial Operations, Insolvency Proceedings and Compulsory Dissolution Act. 20. The Protection of the Right to Trial without Undue Delay Act (Official Gazette nos. 49/2006 and 58/2009 – “the 2006 Act”) entered into force on 17 May 2006. On 1 January 2007 it became operational and has been implemented since that date. It applies to parties to court proceedings, participants in proceedings conducted under the statute regulating non-contentious procedure, and injured parties in criminal proceedings. 21. According to the 2006 Act, a claimant may use a supervisory appeal and a motion for deadline in order to expedite the proceedings. In addition to these acceleratory remedies, the 2006 Act also provides for the opportunity to obtain redress by means of a compensatory remedy, namely by bringing a claim for compensation. With regard to a compensatory remedy, the 2006 Act provides that two cumulative conditions must be satisfied in order for a party to be able to lodge a claim for compensation. Firstly, during the proceedings the applicant must have successfully availed himself of the supervisory appeal or have lodged a motion for a deadline, regardless of the outcome. Secondly, the proceedings must have been terminated.

dev

001-108610

ENG

GBR

CHAMBER

CASE OF VINTER AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)

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

8. Since the abolition of the death penalty in England and Wales, the sentence for murder has been a mandatory sentence of life imprisonment. When such a sentence is imposed, it is the current practice, in the majority of cases, for the trial judge to set a minimum term of imprisonment which must be served before the prisoner is eligible for release on licence. Exceptionally, however, “a whole life order” may be imposed by the trial judge instead of a minimum term. This has the effect that the prisoner cannot be released other than at the discretion of the Secretary of State. (The power of the Secretary of State to release a prisoner is provided for in section 30(1) of the Crime (Sentences) Act 1997.) The Secretary of State will only exercise his discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated (see Prison Service Order 4700 set out at paragraph 36 below). 9. Prior to the entry into force of the 2003 Act, it was the practice for the mandatory life sentence to be passed by the trial judge but for the Secretary of State, after receiving recommendations from the trial judge and the Lord Chief Justice, to decide the minimum term of imprisonment which the prisoner would have to serve before he would be eligible for early release on licence. This was also referred to as the “tariff” part of the sentence and was taken to represent the minimum period which the prisoner was required to serve to satisfy the requirements of retribution and deterrence. It was open to the Secretary of State to impose a whole life tariff on a prisoner. In such a case, it was the practice of the Secretary of State to review a whole life tariff after twenty-five years’ imprisonment to determine whether it was still justified, particularly with reference to cases where the prisoner had made exceptional progress in prison (see Hindley at paragraph 39 below). With the entry into force of the 2003 Act (and, in particular, section 276 and schedule 22 to the Act), all prisoners whose tariffs were set by the Secretary of State have been able to apply to the High Court for review of that tariff. Upon such an application the High Court may set a minimum term of imprisonment or make a whole life order. 10. This case concerns three applicants who, having been convicted of murder in separate criminal proceedings in England and Wales, are currently serving mandatory sentences of life imprisonment. All three applicants have been given whole life orders: in the first applicant’s case this order was made by the trial judge under the current practice; in the case of the second and third applicants, who were convicted and sentenced prior to the entry into force of the 2003 Act, the orders were made by the High Court. All three applicants maintain that these whole life orders, as they apply to their cases, are incompatible inter alia with Articles 3 and 5 § 4 of the Convention. The facts of the applications, as submitted by the parties, may be summarised as follows. 11. On 20 May 1996, the first applicant was sentenced to life imprisonment for the murder of a work colleague, with a minimum term of 10 years. He was released on licence on 4 August 2005. 12. He began living with a woman who was to become the victim of his second murder offence. The couple married on 27 June 2006. On 31 December 2006 the first applicant was involved in a fight in a public house and charged with affray (using or threatening unlawful violence). His licence was revoked and he was recalled to prison. In July 2007, having pleaded guilty to the charge of affray, he was sentenced to 6 months’ imprisonment. He was released on licence again in December 2007 and returned to live with his wife and her four children. The couple became estranged and the first applicant left the marital home. 13. On 5 February 2008, the first applicant followed his wife to a public house. He had been drinking and had taken cocaine. The couple argued and the wife’s daughter, who was present, telephoned the police to alert them to the dispute. The first applicant ordered his wife to get into a car. When the daughter tried to get into the car to protect her mother, the first applicant forcibly removed her. He then drove off with his wife. When the police telephoned her to ascertain if she was safe, the first applicant forced his wife to tell them that she was fine. The first applicant also telephoned the police to tell them that his wife was safe and well. Some hours later he gave himself up to the police, telling them that he had killed her. A post-mortem examination revealed that the deceased had a broken nose, deep and extensive bruising to her neck (which was consistent with attempted strangulation), and four stab wounds to the chest. Two knives were found at the scene, one of which had a broken blade. 14. The first applicant pleaded guilty to murder and instructed his counsel not to make any submissions in mitigation lest it add to the grief of the victim’s family. The trial judge considered that the first applicant fell into that small category of people who should be deprived permanently of their liberty. He passed the mandatory life sentence and made a whole life order. 15. The Court of Appeal dismissed his appeal on 25 June 2009. It considered the general principles for determining the minimum term of a mandatory life sentence (as set out in schedule 21 to the 2003 Act: see relevant domestic law and practice below). It found that, given the circumstances of the offence, there was no reason whatever to depart from the normal principle enshrined in schedule 21 to the 2003 Act that, where murder was committed by someone who was already a convicted murderer, a whole life order was appropriate for punishment and deterrence. 16. On 7 August 1985, the second applicant’s parents, his adoptive sister and her two young children were shot and killed. The second applicant was subsequently charged and, on 28 October 1986, convicted of the murders. The prosecution’s case was that the murders were premeditated and planned and had been committed for financial gain. It was also alleged that the second applicant had arranged the crime scene so as to mislead the police by making it appear as if his adoptive sister had killed the family and then herself. 17. The trial judge recommended to the Secretary of State that the second applicant serve twenty-five years’ imprisonment “as a minimum” (his underlining). On the trial judge’s letter to the Secretary of State, the Lord Chief Justice added the comment “for my part I would never release him”. In 1988, the Secretary of State imposed a whole life tariff. The practice at the time was not to inform the prisoner of this decision. By letter dated 15 December 1994, the applicant was informed that the Secretary of State had concluded that the requirements of retribution and deterrence could only be satisfied by the second applicant remaining in prison for the whole of his life. 18. In 2008, following the entry into force of section 276 and schedule 22 to the 2003 Act, the second applicant applied to the High Court for review of the whole life tariff. Having regard to schedule 21 to the Act, the High Court concluded that, given the number of murders involved and the presence of premeditation by the second applicant, the offence plainly fell within that category of cases where the appropriate starting point was a whole life order. Having further regard to statements submitted by the victims’ next-of-kin and submissions by the second applicant, including reports as to the behaviour and progress he had made in prison, the High Court found that there was no reason to depart from the views of the Lord Chief Justice and the Secretary of State. It therefore imposed a whole life order. 19. The second applicant appealed to the Court of Appeal, which dismissed the appeal on 14 May 2009. The court found that, when the Secretary of State had set a whole life tariff in 1988, he had been provided with two different judicial recommendations: one from the trial judge recommending a minimum term of twenty-five years and one from the Lord Chief Justice recommending that the second applicant should never be released. The Secretary of State had been entitled to choose between those recommendations or to adopt neither of them. The Court of Appeal also found that the whole life order imposed by the High Court was not only correct but, for the purposes of punishment and retribution, fully justified. 20. Relying on its previous judgment in R v. Bieber (see paragraph 40 below), it found that no issue arose under Article 3 of the Convention as the whole life order was not an irreducible life sentence as that term had been used in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008... Finally, following its ruling in R v. Pitchfork (see paragraph 41 below) it found that the review procedure created by the 2003 Act was compatible with Article 7 of the Convention as, properly construed, the relevant statutory provisions meant a prisoner could not be disadvantaged by the outcome of the review: the term to be served could be reduced, or maintained, but it could not be increased or extended. 21. The second applicant applied to the Court of Appeal to certify that its judgment concerned a point of law of general public importance which ought to be considered by the House of Lords. That application was refused on 23 June 2009. 22. On 29 November 1996 the third applicant was convicted after trial in the Crown Court at Chester of four counts of murder. The victims were homosexual men and the applicant, himself a homosexual, was alleged to have committed the murders for his own sexual gratification. Each victim was stabbed many times with a large combat knife which the third applicant had bought for that purpose. The first victim was attacked in his home on 23 September 1995. Soon after, on the weekend of 7 October 1995, the third applicant met his second victim in a bar and arranged to take him home for sex; he instead took him to a forest, stabbed him to death and left the body there. The third victim was stabbed in the caravan where he lived on 30 November 1995. Finally, shortly before Christmas 1995, the third applicant went to a beach which was well-known for homosexual trysts. He met the fourth victim on the beach and stabbed him there. 23. Blood from the first and third victims was found on the third applicant’s jacket and on the knife. Property from the first, second and fourth victims was found in his possession. He made extensive admissions about all four murders to the police. The police had been unaware of the second victim until the third applicant mentioned him to them. The body was recovered from the forest with his assistance. At trial, the applicant’s defence was that the murders had been committed by someone else, though he admitted to having been present at all the murders save for that of the second victim. 24. After the third applicant was convicted, the trial judge passed the mandatory sentence of life imprisonment and recommended to the Secretary of State for the Home Department that, in his view, the applicant should never be released. Upon review, the Lord Chief Justice reported that he thought the minimum period before eligibility for release should be set at thirty years. On 27 September 2002, the Secretary of State decided to set a whole life tariff. 25. In 2008, pursuant to section 276 and schedule 22 to the Criminal Justice Act 2003, the third applicant applied to the High Court for review of the whole life tariff set by the Secretary of State. In its judgment of 12 June 2008 the High Court rejected the third applicant’s submission that it should accept the Lord Chief Justice’s recommendation of a minimum term of thirty years. It found that, while weight should be accorded to that recommendation, the Lord Chief Justice did not have regard to the principles set out in schedule 21 as the High Court was required to do. It also rejected the submission that an issue arose under Article 6 given that a whole life tariff had been set by the Secretary of State. The High Court found that the procedure for applying to the High Court under section 276 and schedule 22 of the Act provided the necessary independent review as to whether a prisoner should be released. The court also found that a whole life order would be compatible with Articles 3 and 5 of the Convention. Having regard to the general principles for determining the minimum term of a mandatory life sentence (as set out in schedule 21 to the Act), no issue of arbitrariness arose and whether such a sentence was disproportionate depended on the facts of each case. 26. The High Court found that, since the case involved the murder of two or more persons, sexual or sadistic conduct and a substantial degree of premeditation, under schedule 21 the starting point was a whole life order. There were no mitigating features and even the Lord Chief Justice, in recommending a minimum term of thirty years, had shared the trial judge’s view that it might never be safe to release the third applicant. There were no reasons, therefore, to mitigate the starting point of a whole life order. The High Court added that, even if the starting point were a minimum term of thirty years, the aggravating features of the murders were such as to make a whole life order appropriate. 27. On 26 February 2009, the Court of Appeal dismissed the third applicant’s appeal, finding that the High Court was not only entitled, but clearly right, to conclude that a whole life order was appropriate. 28. It appears that the third applicant, in order to allow him to appeal to the House of Lords, then applied to the Court of Appeal to certify that its judgment concerned a point of law of general public importance which ought to be considered by the House of Lords. On 14 August 2009, he was informed by the Court of Appeal’s Criminal Appeal Office that, because the Court of Appeal had refused his application for permission to appeal against sentence (as opposed to granting permission to appeal against sentence and then dismissing the appeal), an application to certify a point of law for the House of Lords could not be made. 29. In England and Wales, the mandatory life sentence for murder is contained in section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965. 30. The power of the Secretary of State to set tariff periods for mandatory life sentence prisoners, as contained in section 29 of the Crime Sentences Act 1997, was found by the House of Lords to be incompatible with Article 6 of the Convention in R (Anderson) v. the Secretary of State for the Home Department [2003] 1 AC 837. This led to the enactment of Chapter 7 of the Criminal Justice Act 2003 and schedules 21 and 22 to that Act. 31. Section 269 of the 2003 Act directs a trial judge, in passing a mandatory life sentence, to determine the minimum term which the prisoner must serve before he or she is eligible for early release on licence. By section 269(3), this minimum term must take into account the seriousness of the offence. Section 269(4) allows the trial judge to decide that, because of the seriousness of the offence, the prisoner should not be eligible for early release (in effect, to make a “whole life order”). Section 269(4) only applies to an offender who is 21 years of age or over when he committed the offence. Section 269(5) directs the trial judge, in considering the seriousness of the offence, to have regard inter alia to the principles set out in schedule 21 to the Act. 32. Schedule 21 provides for three different “starting points” which may be increased or decreased depending on the presence of aggravating or mitigating features in the offence: a whole life order, a minimum term of thirty years’ imprisonment and a minimum term of fifteen years’ imprisonment. 33. By paragraph 4(1) of the schedule, if the seriousness of the offence is “exceptionally high” the appropriate starting point is a whole life order. Paragraph 4(2) provides that the following cases would normally fall within this category: (a) the murder of two or more persons, where each murder involves any of the following— (i) a substantial degree of premeditation or planning, (ii) the abduction of the victim, or (iii) sexual or sadistic conduct, (b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation, (c) a murder done for the purpose of advancing a political, religious or ideological cause, or (d) a murder by an offender previously convicted of murder. By paragraph 5(1), if the seriousness of the offence does not fall within paragraph 4(1) but is “particularly high”, the appropriate starting point in determining the minimum term is thirty years’ imprisonment. Paragraph 5(2) provides that the following cases would normally fall within this category: (a) the murder of a police officer or prison officer in the course of his duty, (b) a murder involving the use of a firearm or explosive, (c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death), (d) a murder intended to obstruct or interfere with the course of justice, (e) a murder involving sexual or sadistic conduct, (f) the murder of two or more persons, (g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or (h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.” Paragraphs 6 and 7 provide that, in all other cases, the appropriate starting point in determining the minimum term is fifteen years’ imprisonment (twelve years for those less than eighteen years of age). Paragraphs 8 and 9 provide that, having chosen a starting point, the trial judge should take into account any aggravating or mitigating factors which may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order. Paragraph 10 provides that aggravating factors include: “(a) a significant degree of planning or premeditation, (b) the fact that the victim was particularly vulnerable because of age or disability, (c) mental or physical suffering inflicted on the victim before death, (d) the abuse of a position of trust, (e) the use of duress or threats against another person to facilitate the commission of the offence, (f) the fact that the victim was providing a public service or performing a public duty, and (g) concealment, destruction or dismemberment of the body.” Paragraph 11 provides that mitigating factors include: (a) an intention to cause serious bodily harm rather than to kill, (b) lack of premeditation, (c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability, (d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation, (e) the fact that the offender acted to any extent in self-defence, (f) a belief by the offender that the murder was an act of mercy, and (g) the age of the offender.” 34. Schedule 22 enacts a series of transitional measures for those prisoners who were given mandatory life sentences prior to the entry into force of section 269 of the Act and whose minimum terms of imprisonment were set by the Secretary of State. It also applies to those prisoners whom the Secretary of State directed should never be eligible for early release on licence (that is, those prisoners for whom a whole life tariff had been set). Paragraph 3 of the schedule allows both categories of prisoners to apply to the High Court. Upon such an application the High Court must, in the case of a prisoner who is subject to a minimum term of imprisonment set by the Secretary of State, make an order specifying the minimum term that prisoner must serve before he or she is eligible for early release. Under paragraph 3(1)(b), where the Secretary of State notified the prisoner that a whole life tariff had been set, the High Court may make an order that the prisoner should not be eligible for release (“a whole life order”). The minimum term set by the High Court must not be greater than that previously set by the Secretary of State (paragraph 3(1)(a)). Similar provisions apply to sentences passed after the commencement of the Act in respect of murders committed before commencement. Paragraph 10 provides that the court may not make an order which, in its opinion, is greater than that which the Secretary of State would have been likely to have made under the previous practice. 35. In determining an application under paragraph 3, the High Court must have regard inter alia to the seriousness of the offence and, in so doing, must also have regard to the general principles set out in schedule 21 and any recommendations to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence (paragraphs 4 and 5 of schedule 22). The offender may also make representations to the High Court, including representations as to his or her behaviour and progress in prison since the offence, before the High Court determines the application. Representations can also be made by the victim or victims’ families. The High Court may also hold an oral hearing in rare cases. 36. Section 30(1) of the Crime (Sentences) Act 1997 provides that the Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds. The criteria for the exercise of that discretion are set out in Prison Service Order 4700 chapter 12, which, where relevant, provides: “• the prisoner is suffering from a terminal illness and death is likely to occur very shortly (although there are no set time limits, 3 months may be considered to be an appropriate period for an application to be made to Public Protection Casework Section [PPCS]), or the ISP (Indeterminate Sentenced Prisoner) is bedridden or similarly incapacitated, for example, those paralysed or suffering from a severe stoke; and • the risk of re-offending (particularly of a sexual or violent nature) is minimal; and • further imprisonment would reduce the prisoner’s life expectancy; and • there are adequate arrangements for the prisoner’s care and treatment outside prison; and • early release will bring some significant benefit to the prisoner or his/her family.” 37. According to the Government, as of 28 April 2011, 4,900 prisoners were serving mandatory life sentences for murder in England and Wales. Forty-one prisoners were subject to whole life orders (including those held in secure hospitals). Since 1 January 2000, thirty-seven whole life orders had been imposed, eight of which were subsequently reduced by the Court of Appeal. Since 2000, no prisoner serving a whole life term had been released on compassionate grounds. In response to a freedom of information request by the first applicant, the Ministry of Justice indicated that, as of 30 November 2009, thirteen life-sentence prisoners who had not been given whole life terms had been released on compassionate grounds. 38. In R. v. Lichniak and R. v. Pyrah [2003] 1 AC 903, the House of Lords considered that, in its operation at that time, a mandatory life sentence was not incompatible with either Articles 3 or 5 of the Convention. Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at paragraph 8 of the judgment). The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention. Lord Bingham added: “If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights ... as being arbitrary and disproportionate.” 39. In R. v. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410, HL and R. v. Anderson [2003] 1 AC 837, HL, the House of Lords found that, under the tariff system then in operation, there was “no reason, in principle, why a crime or crimes, if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment” (per Lord Steyn at pp. 416H). Lord Steyn also observed: “there is nothing logically inconsistent with the concept of a tariff by saying that there are cases were the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence” (p. 417H). The House of Lords also found that the Secretary of State had not unlawfully fettered his discretion in reviewing the cases of prisoners where a whole life tariff was in place after the prisoner had served twenty-five years’ imprisonment and reducing the tariff in appropriate cases.). The judgment records the Secretary of State’s policy statement of 10 November 1997, in which the Secretary of State indicated that he was: “open to the possibility that, in exceptional circumstances, including for example, exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate.” The Secretary of State indicated that he would have this possibility in mind when reviewing at the 25 year point the cases of prisoners given a whole life tariff and in that respect would consider issues beyond the sole criteria of retribution and deterrence (p. 417A-C). 40. In R v. Bieber [2009] 1 WLR 223 the Court of Appeal considered the compatibility of the 2003 Act with Article 3 of the Convention in the light of Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008... It found that a whole life order did not contravene Article 3 of the Convention because of the possibility of compassionate release by the Secretary of State. It also found that the imposition of an irreducible life sentence would not itself constitute a violation of Article 3 but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence. The court observed: “45. While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies the minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. For the reasons that we have given, we do not consider that the Strasbourg court has ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, will result in detention that violates article 3. Nor do we consider that it will do so. 46. It may be that the approach of the Strasbourg court will change. There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact irreducible. ... Under the regime that predated the 2003 Act it was the practice of the Secretary of State to review the position of prisoners serving a whole life tariff after they had served 25 years with a view to reducing the tariff in exceptional circumstances, such as where the prisoner had made exceptional progress whilst in custody. No suggestion was then made that the imposition of a whole life tariff infringed article 3. ... Under the current regime the Secretary of State has a limited power to release a life prisoner under section 30 of the Crime (Sentences) Act 1997. ... At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner. 49. For these reasons, applying the approach of the Strasbourg court in Kafkaris v Cyprus 12 February 2008, we do not consider that a whole life term should be considered as a sentence that is irreducible. Any article 3 challenge where a whole life term has been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contends that, having regard to all the material circumstances, including the time that he has served and the progress made in prison, any further detention will constitute degrading or inhuman treatment. 50. For these reasons we reject the challenge made to the defendant’s sentence that is founded on article 3. 51 We would add, for the avoidance of doubt, that we have not been asked to consider, nor have we, whether the decision under section 30 of the 1997 Act is one that should properly be taken by a judge rather than by a minister.” 41. The transitional measures set out in schedule 22 were found by the Court of Appeal to be compatible with Articles 6 and 7 of the Convention in R v. Pitchfork [2009] EWCA Crim 963. The schedule expressly provided that the outcome of the High Court review could not be an increase in the minimum period set by the Secretary of State. It was not in breach of Article 7 to direct the High Court to consider the general principles set out in schedule 21: neither those principles nor the original recommendations by the trial judge and the Lord Chief Justice were to enjoy primacy over the other. Instead, the High Court was conducting a fresh review, taking account of both the judicial recommendations and schedule 21. 42. In R v. Neil Jones and Others [2006] 2 Cr. App. R. (S.) 19 the Court of Appeal held that protection of the public was not a relevant factor in fixing the minimum term, since it was the task of the Parole Board to ensure that the offender was not released after serving the minimum term unless this presented no danger to the public. The court also held: “A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for the final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of 30 years or more is a very severe penalty. If the case includes one or more of the factors set out in para.4(2) it is likely to be a case that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty.” 43. In Attorney-General’s Reference No 38 of 2008 (also known as R v. Wilson) [2008] EWCA Crim 2122, the offender had been convicted of murder in 1991, and was notified of the decision of the Secretary of State to set a whole life tariff in 1994. Upon an application to the High Court, the whole life tariff was substituted by a minimum term of eighteen years’ imprisonment. That decision was reviewed by the Court of Appeal, which increased the minimum term to thirty years’ imprisonment. The Court of Appeal also observed that it remained open to the High Court to consider the recommendation of the trial judge and Lord Chief Justice in their contemporaneous context but, as in any case, the findings and views of the trial judge represented a critical element in any sentencing decision. The recommendations were not subsidiary to the provisions in schedule 21 and paragraph 4(2) of schedule 22 made it clear that proper weight should be given to these recommendations in the review process. The Court of Appeal accepted that the recommendations in the case before it, and in many cases like it, would be “likely to have been made in a sentencing environment in which the term to be served would be likely to be shorter than it is now”. 44. In R v. Leigers [2005] 2 Cr. App. R. (S.) 104 the Court of Appeal stated that schedule 21 provided an even more rigorous approach to the determination of the minimum term than had applied previously and, when followed, would in some cases lead to longer minimum terms. However, in that case, which concerned a sentence passed after the commencement of the 2003 Act in respect of a murder committed before its commencement, the court went on to state that the scheme was compatible with Articles 5 and 7 of the Convention, given the transitional measures contained in paragraph 10 of schedule 22. 45. The United States requested the extradition of Ralston Wellington from the United Kingdom to stand trial in Missouri on two counts of murder in the first degree. In his appeal against extradition, Mr Wellington argued that his surrender would violate Article 3 of the Convention, on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole. 46. In giving judgment in the High Court ([2007] EWHC 1109 (Admin)), Lord Justice Laws found that there were “powerful arguments of penal philosophy” which suggested that risk of a whole-life sentence without parole intrinsically violated Article 3 of the Convention. He observed: “The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributive punishment is never enough to justify it. Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate – the very vice which is condemned on Article 3 grounds – unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.” However, and “not without misgivings”, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue. 47. On Wellington’s appeal to the House of Lords, a majority of their Lordships found that Article 3, insofar as it applied to inhuman and degrading treatment and not to torture, was applicable only in attenuated form to extradition cases. In any event, all five Law Lords found that the sentence likely to be imposed on the appellant would not be irreducible; having regard to the powers of clemency and commutation of the Governor of Missouri, it would be just as reducible as the sentence at issue in Kafkaris. 48. All five Law Lords also noted that, in Kafkaris, the Court had only said that the imposition of an irreducible life sentence may raise an issue under Article 3. They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of Article 3 per se, unless it were grossly or clearly disproportionate. Lord Brown in particular noted: “Having puzzled long over this question, I have finally concluded that the majority of the Grand Chamber [in Kafkaris] would not regard even an irreducible life sentence—by which, as explained, I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant’s case—as violating article 3 unless and until the time comes when further imprisonment would no longer be justified on any ground—whether for reasons of punishment, deterrence or public protection. It is for that reason that the majority say only that article 3 may be engaged.” 49. Moreover, Lord Hoffmann, Lord Scott, Baroness Hale and Lord Brown all doubted Lord Justice Laws’ view (endorsed by the Privy Council in de Boucherville – see section 3 below) that life imprisonment without parole was lex talionis. Lord Hoffmann, Baroness Hale and Lord Brown did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value; there were other, more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect. Lord Scott rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement; once it was accepted that a whole life sentence could be a just punishment, atonement was achieved by the prisoner serving his sentence. 50. Wellington’s application to this Court was struck out on 5 October 2010, the applicant having indicated his wish to withdraw it; Wellington v. the United Kingdom (dec.), no. 60682/08. 51. The relevant texts of the Council of Europe, the European Union and other international legal texts on the imposition and review of sentences of life imprisonment, including the obligations of Council of Europe member States when extraditing individuals to States where they may face such sentences, are set out in Kafkaris, cited above, at §§ 68-76. Additional materials before the Court in the present cases (and those materials in Kafkaris that are expressly relied on by the parties) may be summarised as follows. 52. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) prepared a report on “Actual/Real Life Sentences” dated 27 June 2007 (CPT (2007) 55). The report reviewed various Council of Europe texts on life sentences, including recommendations (2003) 22 and 23, and stated in terms that: (a) the principle of making conditional release available is relevant to all prisoners, “even to life prisoners”; and (b) that all Council of Europe member States had provision for compassionate release but that this “special form of release” was distinct from conditional release. It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The report also quoted with approval the CPT’s report on its 2007 visit to Hungary in which it stated: “[A]s regards “actual lifers”, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”. The report’s conclusion included recommendations that: no category of prisoners should be “stamped” as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of hope of release. 53. Article 77 of the Rome Statute of the International Criminal Court allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Such a sentence must be reviewed after twenty-five years to determine whether it should be reduced (Article 110). 54. Article 5(2) of Council Framework Decision of 13 June 2002 on the European arrest warrant provides: “if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure...” 55. According to a comparative study provided by the applicants (D. Van Zyl Smit, “Outlawing Irreducible Life Sentences: Europe on the Brink?”, 23: 1 Federal Sentencing Reporter Vol 23, No 1 (October 2010)) the majority of European countries do not have irreducible life sentences, and some, including Portugal, Norway and Spain, do not have life sentences at all. In Austria, Belgium, Czech Republic, Estonia, Germany, Lithuania, Luxembourg, Poland, Romania, Russia, Slovakia, Slovenia, Switzerland and Turkey, prisoners sentenced to life imprisonment have fixed periods after which release is considered. In France three such prisoners have no minimum period but it appears they can be considered for release after 30 years. In Switzerland there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous, although the provisions have not been used. The study concludes that only the Netherlands and England and Wales have irreducible life sentences. 56. Article 1 of the Basic Law of the Federal Republic of Germany provides that human dignity shall be inviolable. Article 2(2) provides: “Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.” The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by the Federal Constitutional Court in the Life Imprisonment case of 21 June 1977, 45 BVerfGE 187 (an English translation of extracts of the judgment, with commentary, can be found in D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed.), Duke University Press, Durham and London, 1997 at pp. 306-313). The court found that the State could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth. Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given “a concrete and realistically attainable chance” to regain his freedom at some later point in time. The court underlined that prisons also had a duty to strive towards the re-socialisation of prisoners, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment. It recognised, however, that, for a criminal who remained a threat to society, the goal of rehabilitation might never be fulfilled; in that case, it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself. The court also found that, subject to these conclusions, life imprisonment for murder was not a senseless or disproportionate punishment. 57. In the later War Criminal case 72 BVerfGE 105 (1986), where the petitioner was eighty-six years of age and had served twenty years of a life sentence imposed for sending fifty people to the gas chambers, the court considered that the gravity of a person’s crime could weigh upon whether he or she could be required to serve his or her life sentence. However, a judicial balancing of these factors should not place too heavy an emphasis on the gravity of the crime as opposed to the personality, state of mind, and age of the person. In that case, any subsequent review of the petitioner’s request for release would be required to weigh more heavily than before the petitioner’s personality, age and prison record. 58. In its decision of 16 January 2010, BVerfG, 2 BvR 2299/09, the Federal Constitutional Court considered an extradition case where the offender faced “aggravated life imprisonment until death” (erschwerte lebenslängliche Freiheitsstrafe bis zum Tod) in Turkey. The German government had sought assurances that he would be considered for release and had received the reply that the President of Turkey had the power to remit sentences on grounds of chronic illness, disability, or old age. The court refused to allow extradition, finding that this power of release offered only a vague hope of release and was thus insufficient. Notwithstanding the need to respect foreign legal orders, if someone had no practical prospect of release such a sentence would be cruel and degrading (grausam und erniedrigend) and would infringe the requirements of human dignity provided for in Article 1. 59. Section 1 of the Canadian Charter of Rights provides that the Charter guarantees the rights and freedoms set out in it “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 7 provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 12 provides: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” 60. In United States v. Burns [2001] S.C.R. 283, Burns and another (the respondents) were to be extradited from Canada to the State of Washington to stand trial for murders allegedly committed when they were both eighteen. Before making the extradition order the Canadian Minister of Justice had not sought assurances that the death penalty would not be imposed. The Supreme Court of Canada found that the remoteness between the extradition and the potential imposition of capital punishment meant the case was not appropriately considered under section 12 but under section 7. However, the values underlying section 12 could form part of the balancing process engaged under section 7. The extradition of the respondents would, if implemented, deprive them of their rights of liberty and security of person as guaranteed by section 7. The issue was whether such a deprivation was in accordance with the principles of fundamental justice. While extradition could only be refused if it “shocked the conscience” an extradition that violated the principles of fundamental justice would always do so. The court balanced the factors that favoured extradition against those that favoured seeking assurances that the death penalty would not be sought. The latter included the fact that a degree of leniency for youth was an accepted value in the administration of justice, even for young offenders over the age of eighteen. The court concluded that the objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances. The court held therefore that assurances were constitutionally required by section 7 in all but exceptional cases. 61. In United States of America v. Ferras; United States of America v. Latty, [2006] 2 SCR 77, the appellants were to be extradited to the United States to face charges of fraud (the Ferras case) or trafficking of cocaine (the Latty case). The appellants in the Latty case had argued that, if extradited and convicted they could receive sentences of ten years to life without parole and this would “shock the conscience”. In dismissing the appeals, the Supreme Court affirmed the balancing approach laid down in Burns to determining whether potential sentences in a requesting state would “shock the conscience”. The harsher sentences the appellants might receive if convicted in the United States were among the factors militating against their surrender but they had offered no evidence or case-law to back up their assertions that the possible sentences would shock the conscience of Canadians. The factors favouring extradition far outweighed those that did not. 62. The Supreme Court has also found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment within the meaning of section 12 of the Charter (see, inter alia, R v. Smith (Edward Dewey) [1987] 1 SCR 1045). In R v. Luxton [1990] 2 S.C.R. 711, the court considered that, for first degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for twenty-five years was not grossly disproportionate. Similarly, in R v. Latimer 2001 1 SCR 3, for second degree murder, a mandatory minimum sentence of life imprisonment without eligibility for parole for ten years was not grossly disproportionate. The court observed that gross disproportionality would only be found on “rare and unique occasions” and that test for determining this issue was “very properly stringent and demanding”. 63. In Dodo v. the State (CCT 1/01) [2001] ZACC 16, the South African Constitutional Court considered whether a statutory provision which required a life sentence for certain offences including murder, was compatible with the constitutional principle of the separation of powers, the accused’s constitutional right to a public trial and the constitutional prohibition on cruel, inhuman or degrading treatment or punishment. The court found none of these constitutionals provisions was infringed, since the statute allowed a court to pass a lesser sentence if there were substantial and compelling circumstances. The court did, however, observe that the concept of proportionality went to the heart of the inquiry as to whether punishment was cruel, inhuman or degrading. 64. In Niemand v. The State (CCT 28/00) [2001] ZACC 11, the court found an indeterminate sentence imposed pursuant to a declaration that the defendant was a “habitual criminal” to be grossly disproportionate because it could amount to life imprisonment for a non-violent offender. The court “read in” a maximum sentence of fifteen years to the relevant statute. 65. The Eighth Amendment to the United States Constitution provides, inter alia, that cruel and unusual punishments shall not be inflicted. It has been interpreted by the Supreme Court of the United States as prohibiting extreme sentences that are grossly disproportionate to the crime (Graham v. Florida 130 S. Ct. 2011, 2021 (2010)). There are two categories of cases addressing proportionality of sentences. The first category is a case-by-case approach,, the court compares the sentence in question with sentences for the same crime in the same jurisdiction and other jurisdictions. If that analysis confirms the initial inference of gross disproportionality, a violation of the Eighth Amendment is established. In the second category of cases, the Supreme Court has invoked proportionality to adopt “categorical rules” prohibiting a particular punishment from being applied to certain crimes or certain classes of offenders. 66. Under the first category, the Supreme Court has struck down as grossly disproportionate a sentence of life imprisonment without parole imposed on a defendant with previous convictions for passing a worthless cheque (Solem v. Helm 463 US 277 (1983)). It has upheld the following sentences: life with the possibility of parole for obtaining money by false pretences (Rummel v. Estelle 445 US 263 (1980)); life imprisonment without parole for possessing a large quantity of cocaine (Harmelin v. Michigan 501 US 957 (1991)); twenty-five years to life for theft under a “three strikes” recidivist sentencing law (Ewing v. California 538 US 11 (2003)); forty years’ imprisonment for distributing marijuana (Hutto v. Davis 454 US 370 (1982)). 67. Examples of cases considered under the second category include Coker v. Georgia 433 US 584 (1977) (prohibiting capital punishment for rape) and Roper v. Simmons 543 US 551 (2005) (prohibiting capital punishment for juveniles under eighteen). In Graham, cited above, the court held that the Eighth Amendment also prohibited the imposition of life imprisonment without parole on a juvenile offender who did not commit homicide. The court found that life imprisonment without parole was an especially harsh punishment for a juvenile and that the remote possibility of pardon or other executive clemency did not mitigate the harshness of the sentence. Although a State was not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime, it had to provide some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. The court also held that a sentence lacking in legitimate penological justification (such as retribution, deterrence, incapacitation and rehabilitation) was, by its nature, disproportionate. Such purposes could justify life without parole in other contexts, but not life without parole for juvenile non-homicide offenders. 68. In Reyes v. the Queen [2002] UKPC 11 the Judicial Committee of the Privy Council considered that a mandatory death penalty for murder by shooting was incompatible with section 7 of the Constitution of Belize, which prohibits torture and ill-treatment in identical terms to Article 3 of the Convention. Lord Bingham observed that to deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate was to treat him as no human being should be treated. The relevant law was not saved by the powers of pardon and commutation vested by the Constitution in the Governor-General, assisted by an Advisory Council; in Lord Bingham’s words “a non-judicial body cannot decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed”. 69. In de Boucherville v. the State of Mauritius [2008] UKPC 70 the appellant had been sentenced to death. With the abolition of the death penalty in Mauritius, his sentence was commuted to a mandatory life sentence. The Privy Council considered the Court’s judgment in Kafkaris, cited above, and found that the safeguards available in Cyprus to prevent Kafkaris from being without hope of release were not available in Mauritius. The Mauritian Supreme Court had interpreted such a sentence as condemning de Boucherville to penal servitude for the rest of his life and the provisions of the relevant legislation on parole and remission did not apply. This meant the sentence was manifestly disproportionate and arbitrary and so contrary to section 10 of the Mauritian Constitution (provisions to secure protection of law, including the right to a fair trial). It had also been argued by the appellant that the mandatory nature of the sentence violated section 7 of the Constitution (the prohibition of torture, inhuman or degrading punishment or other such treatment). In light of its conclusion on section 10, the Committee considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section 75 (the presidential prerogative of mercy). It did, however, find that the safeguards available in Cyprus (in the form of the Attorney-General’s powers to recommend release and the President’s powers to commute sentences or decree release) were not available in Mauritius. It also acknowledged the appellant’s argument that, as with the mandatory sentence of death it had considered in Reyes, a mandatory sentence of life imprisonment did not allow for consideration of the facts of the case. The Privy Council also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and, to this end, quoted with approval the dicta of Lord Bingham in Lichniak and Lord Justice Laws in Wellington (at paragraphs 46 and 38 above). 70. In State v. Philibert [2007] SCJ 274, the Supreme Court of Mauritius held that a mandatory sentence of 45 years’ imprisonment for murder amounted to inhuman or degrading treatment in violation of section 7 on the grounds that it was disproportionate. 71. In State v. Tcoeib [1997] 1 LRC 90 the Namibian Supreme Court considered the imposition of a discretionary life sentence to be compatible with section 8 of the country’s constitution (subsection (c) of which is identical to Article 3 of the Convention). Chief Justice Mahomed, for the unanimous court, found the relevant statutory release scheme to be sufficient but observed that if release depended on the “capricious exercise” of the discretion of the prison or executive authorities, the hope of release would be “too faint and much too unpredictable” for the prisoner to retain the dignity required by section 8. It was also observed that life imprisonment could amount to cruel, inhuman or degrading treatment if it was grossly disproportionate to the severity of the offence. The High Court of Namibia found mandatory minimum sentences for robbery and possession of firearms to be grossly disproportionate in State v. Vries 1997 4 LRC 1 and State v Likuwa [2000] 1 LRC 600. 72. In Lau Cheong v. Hong Kong Special Administrative Region [2002] HKCFA 18, the Hong Kong Court of Final Appeal rejected a challenge to the mandatory life sentence for murder. It found that the possibility of regular review of the sentence by an independent board meant it was neither arbitrary nor grossly disproportionate and thus it did not amount to cruel, inhuman or degrading punishment. 73. Section 9 of the New Zealand Bill of Rights Act 1990 also protects against disproportionately severe treatment or punishment.

dev

001-91187

ENG

DEU

ADMISSIBILITY

ULLMANN v. GERMANY

Inadmissible

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

The first applicant, Mrs Martha Ullmann, and the second applicant, Mr Markus Ullmann, are German nationals who were born in 1966 and 1968 respectively and live in Lappersdorf. They were represented before the Court by Ms C. Schenk and Mr F. Schwinghammer, lawyers practising in Regensburg. The applicants, a married couple, are the parents of a girl, Mi., born on 28 June 2001, and of a boy, Ma., born on 23 September 2003. Since his birth Ma. has been in hospital three times, namely from 29 October 2003 to 12 November 2003 because of pneumonia, from 20 November 2004 until 2 December 2004 due to a haemangioma in his mouth and from 12 January 2004 to 28 March 2004 due to bronchitis. Otherwise, he has been looked after only by his parents, mainly his mother. During this last stay in hospital, acute shortness of breath put his life at risk, which was saved by intubation. Several radiographies disclosed fractures of several ribs and of his right upper arm. Having consulted a radiological expert, the doctors treating him concluded that Ma.’s injuries had not been caused by illness, in particular not by a pathological structure of his bones, but by third persons. Having been confronted with the suspicion of having ill-treated their child, the applicants vigorously denied having injured Ma. On 4 February 2004 the Regensburg District Court, having regard to Ma.’s injuries and having heard the applicants, withdrew the applicants’ right to determine Mi.’s and Ma.’s whereabouts and their right to decide on their health care by way of an interim injunction. Both children were placed in foster families. The District Court subsequently excluded the parents’ access to their children for approximately one month and then allowed the parents supervised contact with both Mi. and Ma. once a week and later once every two weeks. In their report of 21 July 2004 to the District Court, the paediatricians G. and W., who had also consulted Sch., a child radiologist, concluded that the nine fractures of his ribs Ma. had suffered and the fracture of his right upper arm had not been caused by an illness, in particular not by osteogenesis imperfecta (“OI”, commonly known as brittle bone disease), or by his medication. They could thus only be explained by the use of massive force by an adult or teenager on at least two occasions. At least some of the fractures had been caused during periods of time in which Ma. had stayed only with his parents and not in hospital. In his report dated 14 September 2004, psychiatric expert Kr. concluded that, even though neither of the parents was prone to violence, it could not be excluded that one of them had ill-treated Ma. The mother did not suffer from a psychiatric illness, but could have been under strain from raising Ma. with his fragile health in addition to Mi. However, it was more likely that Ma.’s father, who suffered from a narcissistic personality disorder and was unhappy with the strain put on the rest of the family by Ma., had caused the boy’s injuries. In his report of 12 October 2004, psychological expert Ki. found that the applicants’ family did not as such pose high risks of ill-treatment. Assuming that one of the parents had ill-treated Ma., there was an enhanced risk of repeated ill-treatment, particularly for Ma., but also for Mi., as the parents denied any responsibility for Ma.’s injuries, which made it difficult to provide them with assistance. On 2 December 2004 the Regensburg District Court withdrew the applicants’ parental custody of Mi. and Ma. and appointed a guardian for the children. Relying on Articles 1666 and 1666a of the Civil Code (see Relevant domestic law below), it found that the children’s physical well-being had been endangered by the applicants’ abuse of their parental authority and that there were no less intrusive means to avert this danger. Having heard the applicants and their counsel, the first applicant’s brother, the children’s curator and curator ad litem, the Youth Office and the experts G., Kr. and Ki. in person, the District Court was convinced that Ma. had been subjected to physical ill-treatment in his parents’ home. In particular, having regard to the findings of expert G. as to the periods of time in which the fractures, which had not been caused by an illness, had probably occurred, and to the fact that Ma.’s state of health had never deteriorated in hospital, the District Court found that it could be excluded that the boy’s numerous injuries had occurred in the two different hospitals in which he had been treated since his birth. They had thus been caused at Ma.’s home either by one of the parents or by both of them. The psychological and psychiatric expert reports had disclosed that the parents, who continued to deny having injured Ma., had been partly overstrained by having to raise two young children. This finding was not put into question by the fact that four paediatricians whom Ma. had seen on several occasions due to shortness of breath had not noticed any signs of ill-treatment. As to Mi., the District Court considered that she risked becoming the victim of ill-treatment in the future as well. It was impossible to avert the danger to her in practice by less intrusive measures. On 4 May 2005 the Nuremberg Court of Appeal, having heard the applicants and their counsel, the experts G. and Sch., the applicants’ expert V., a doctor having treated Ma. in hospital, the children’s guardian and their curator ad litem in person, and having regard to the written expert reports submitted by Kr. and Ki., dismissed the applicants’ appeal concerning the withdrawal of custody of Ma. It quashed the withdrawal of custody of Mi. as of 20 May 2005 but imposed several conditions on the parents aimed at safeguarding and controlling Mi.’s welfare. In a decision running to thirty-one pages the Court of Appeal found that withdrawing the parents’ custody of Ma. was presently the only means of averting danger to the boy’s welfare. Having regard to the expert reports of G. and Sch., the Court of Appeal found that three of the boy’s ribs had been broken during a period when he was at home, another four had been broken during a period when Ma. was both in hospital and at home, and on two further occasions two and three ribs respectively had been broken in periods in which Ma. had stayed at home. The boy’s right upper arm had been broken in a period in which he had stayed both at home and in hospital. None of these injuries could have been caused by an accident. The Court of Appeal conceded that the experts G. and Sch. had partly modified their diagnosis compared to their initial report of 21 July 2004, finding that Ma. had been injured not only on at least two, but on at least five occasions, and partly modifying the periods in which the injuries had occurred. However, their new findings were based on a particularly thorough further examination of the radiographies in question and were thus convincing. Moreover, having regard to the reports of experts G. and Sch. and to the two reports dated 10 March 2005 and 20 April 2005 drafted by a laboratory for human genetics, no illness, in particular no osteogenesis imperfecta, could be diagnosed which could have caused Ma.’s bones to break. It was therefore virtually certain that Ma.’s injuries had been caused by an abuse of parental authority. It could also not be explained otherwise that several radiographies done since Ma.’s separation from his parents in January 2004 had not disclosed any further fractures which had occurred either during his stays in hospital or with his foster family. The Court of Appeal assumed that the parents had not been aware that Ma. had suffered numerous fractures before the injuries had been discovered in hospital. As it could not be determined which of the parents, who had both denied being responsible for the injuries, had caused those injuries, the boy could not currently be returned to his parents as his welfare would otherwise be at risk. In reaching that conclusion, the Court of Appeal also had regard to the submissions of a paediatric expert consulted by the applicants on their own motion, V., who had invited the court to examine more thoroughly whether Ma. was suffering from osteogenesis imperfecta. A report drawn up on 10 March 2005 by a human genetics laboratory obtained by the applicants had concluded that it could not be totally excluded that Ma. was suffering from such a condition. The Court of Appeal, on V.’s proposal, had then obtained an additional expert report dated 20 April 2005 from that laboratory, which found after another analysis that no such genetic illness could be diagnosed. It had refused to allow V. to examine Ma., arguing that it had already obtained a report from a paediatric expert. In the Court of Appeal’s view, which did not follow the additional report submitted by expert Ki. in this respect, the physical well-being of Mi., who had never been injured and had a close relationship with both parents, was no longer endangered if she was returned to her parents under conditions safeguarding her well-being. It further stated that it considered Ma.’s separation from his family not to be permanent, but that his return could be examined when he reached the age of three and went to kindergarten, provided that Mi.’s return to her family had gone well. On 8 June 2005 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They claimed that the decisions of the family courts ordering their separation from Ma. disproportionately interfered with their right to respect for their family life. It had not been proved that either or both of them had injured the boy and the courts had not sufficiently examined whether the boy suffered from a condition which made his bones particularly fragile. On 23 June 2005 the Federal Constitutional Court, without giving reasons, declined to consider the applicants’ constitutional complaint (file no. 1 BvR 1230/05). On 9 October 2007 the Nuremberg Court of Appeal, having consulted psychological expert Ki., decided to retransfer custody of Ma. to his parents as of 19 October 2007 under several conditions, including psychological assistance for the parents and regular medical examinations of the boy. It found that the applicants had sought the help of therapists and had had regular access to Ma., who was now old enough to complain to others about potential ill-treatment. Therefore, the withdrawal of the parents’ custody was no longer necessary to safeguard Ma.’s well-being. Since then Ma. has again been living with the applicants. Article 1666 § 1 of the Civil Code provides that the family courts are under an obligation to order the necessary measures if a child’s welfare is jeopardised. Pursuant to Article 1666a § 1 of the Civil Code, measures entailing a child’s separation from his or her family are permissible only if the danger to the child’s welfare cannot be averted by other means, including public assistance. Article 1666a § 2 of that Code stipulates that full parental custody may only be withdrawn if other measures have proved ineffective or have to be considered insufficient to remove the danger.

dev

001-77386

ENG

CZE

ADMISSIBILITY

KVĚTOŇOVÁ v. THE CZECH REPUBLIC

Inadmissible

Peer Lorenzen

The applicant, Ms Eva Květoňová, is a Czech national who was born in 1934 and lives in Munich. She was represented before the Court by Mr I. Chytil, a lawyer practising in Prague. The applicant’s parents owned a family house and two lands located in Trutnov. In February 1971 the applicant’s father died. The applicant and her mother became his legal successors. In 1972 the applicant and her mother were convicted in absentia of deserting the Republic. The courts imposed a term of imprisonment and ordered the confiscation of all their property. In 1973 the Trutnov State Notary (státní notářství) determined the late father’s estate, holding that the applicant and her mother inherited the whole estate but that, bearing in mind their criminal conviction, it should be forfeited for the benefit of the State. On 12 September 1974 the confiscated property was sold by the State to Mr and Ms M., with an agreement giving them the right to make personal use of the lands attached to the house. According to the applicant, the purchase contract contained a number of legal inaccuracies which made it null and void. Actually, the State was represented by the former Trutnov National District Council (okresní národní výbor) which at the material time had three quarters of the property at its disposal, the rights relating to the remaining quarter being transferred to it on 18 November 1974. Moreover, the real estate appraisal used for the purposes of the purchase was, contrary to the law, older than one year, the property at issue was not clearly specified in the purchase contract, the identity of the contractual parties was not verified and the person acting on behalf of the National District Council was not clearly indicated. In addition, the new owners’ right to make personal use of the lands attached to the house was approved by the Trutnov National Council on 22 August 1974, so before the transfer of the administration rights regarding the property. On 20 September 1977 the applicant’s mother died. The applicant became her legal successor. On 20 August and 8 October 1990 respectively, the District Court declared that, pursuant to section 2 of the Judicial Rehabilitation Act, the applicant’s and her mother’s convictions and all ancillary decisions had been automatically quashed with retrospective effect. On an unspecified date in 1995 the applicant initiated restitution proceedings against Mr and Ms M. pursuant to the Extra-Judicial Rehabilitation Act. However, the courts did not grant her restitution claims finding that the purchase contract had not been concluded in breach of the regulations then in force and that the new owners had not enjoyed an unlawful advantage. After the death of Mr and Ms M., their sons became the owners of the property. In January 2001 the applicant sought to recover the property in issue by means of a civil action brought against the Mr and Ms M.’s sons, alleging the nullity of the purchase contract. In a judgment of 13 September 2002 the Trutnov District Court dismissed the applicant’s action stating, inter alia: “In a judgment no. ÚS 4/97 of 11 March 1997 the Plenary of the Constitutional Court held that judicial decisions whereby decisions concerning the confiscation of property had been quashed [pursuant to the Judicial Rehabilitation Act] did not form a basis on which the ownership rights could be renewed. The applicant claimed the restitution ... under [the Extra-Judicial Rehabilitation Act], but was unsuccessful. Having regard to the fact that [she] based her current arguments mainly on her incorrect legal opinion concerning the effects of the nullity of the confiscation decision, her [civil] action [is] not substantiated. [I]t is not decisive whether the purchase contract ... is valid or not. ... [T]he question of [its] validity or the nullity is more specific than the criteria laid down in the Extra-Judicial Rehabilitation Act for natural persons obliged to restore immovable property to a restitution claimant .... [The court examined in the [previous] restitution proceedings whether the new owners could have acquired the property contrary to the law then in force ... or on the basis of any unlawful advantage, and found that it was not the case.] The court, therefore, did not examine in detail [the applicant’s arguments concerning] the alleged nullity of the purchase contract.” On 28 January 2003 the Hradec Králové Regional Court (krajský soud) upheld the first instance judgment. The applicant’s subsequent appeal on points of law (dovolání) was dismissed by the Supreme Court (Nejvyšší soud) on 30 October 2003, the court stating, in particular: “[N]either the appellate court nor the court of first instance erred in applying [the provisions of the Judicial Rehabilitation Act and the Extra-Judicial Rehabilitation Act]; they rightly considered their interrelationship and took account of the [previous] restitution proceedings closed upon a final and conclusive judgment. The applicant based her claims on the substantially same arguments which she had used in the previous restitution proceedings, emphasising the [alleged] nullity of the purchase contract ... [However] it is inadmissible to circumvent the restitution law by applying the general civil law, in case that the [previous] restitution action failed. ...” The Supreme Court concluded that the applicant’s appeal on points of law did not challenge a decision which would give rise to a question of crucial legal importance as provided for in section 237(1)(c) of the Code of Civil Proceedings. The applicant challenged the lower courts’ legal opinions before the Constitutional Court (Ústavní soud) maintaining that the courts had failed to examine the validity of the purchase contract. She alleged, in this respect, a violation of her right to judicial protection under Article 36 § 2 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) and her property rights guaranteed by Article 11 § 1 of the Charter. On 1 July 2004 the Constitutional Court rejected the applicant’s constitutional appeal (ústavní stížnost) finding that the procedural steps taken by the lower courts and their interpretation of the legislation did not infringe the applicant’s fundamental rights guaranteed by the constitutional law or international treaties. Article 11 § 1 provides, inter alia, that everyone has the right to own property. All owners’ property rights are equal in the eyes of the law and enjoy the same legal protection. The right to inherit is guaranteed. Under Article 36 § 2 anybody who claims that his or her rights have been violated by a decision of a public administration organ may turn to a court for a review of the legality of such decision, unless the law provides differently. However, review of decisions affecting the fundamental rights and freedoms listed in the Charter may not be excluded from the jurisdiction of courts. Section 1 states that the purpose of the Act is to provide for the quashing of convictions that are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the Constitution and guaranteed by international treaties, and to ensure the social and economic rehabilitation of persons so convicted. Section 2 provides that all convictions from 25 February 1948 to 1 January 1990 that contravened those principles and related to events occurring after 5 May 1945 are to be quashed with retrospective effect, together with any ancillary decisions. Courts are to examine of their own motion all matters relating to the rehabilitation of convicted persons. Section 23(2) provides that the implementing conditions for claims arising from quashed confiscation decisions, and also the method of redress and the scope of such claims, are to be laid down in a special law. Section 1 provides that the purpose of the Act is to mitigate the effects of certain wrongs committed between 25 February 1948 and 1 January 1990 (“the period concerned”) which were incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights. The Act also lays down the conditions for lodging claims arising from quashed confiscation decisions, and also the method of redress and the scope of such claims. Section 2 provides that infringements of property rights which occurred during the period concerned are to be redressed either by restitution of property or by pecuniary compensation. Section 4 requires the State and/or any legal entity in possession of confiscated property on the date on which the Act came into force to return the property. Paragraph 2 provides that any natural person who acquired property from the State unlawfully or by means of an unlawful advantage is likewise required to return the property. Section 19(1) provides that any person who has been rehabilitated in accordance with Law no. 119/1990 is entitled to claim restitution provided that he or she satisfies the conditions laid down in section 3(1). Section 20(1) provides that any legal entity within the meaning of section 4(1) and any natural person within the meaning of section 4(2) must return confiscated property acquired from the State where the State itself obtained it as a result of the conviction of the original owners; the central administrative authorities of the Republic are likewise required to return any confiscated property. Section 237(1)(b) provides that an appeal on points of law lay against appellate court judgments and decisions upholding first instance decisions in which the court of first instance decided differently from its previous meritorious decision, having been bound by the legal opinion of the appellate court which had quashed the previous decision at first instance. Under section 237(c) an appeal on points of law lay also against appellate court judgments and decisions upholding first instance decisions if such an appeal is not admissible under paragraph b) and if the court dealing with the appeal on points of law finds that the challenged decision gives rise to a question of crucial legal importance. In this judgment the Constitutional Court held that judicial decisions whereby decisions concerning the confiscation of property had been quashed pursuant to the Judicial Rehabilitation Act did not form a basis on which anyone thus rehabilitated was entitled to be entered in the land register as the owner. It held that such decisions did not restore previous ownership, since section 23(2) of the Judicial Rehabilitation Act provided that the conditions for implementing that Act were laid down in the Extrajudicial Rehabilitation Act. In this decision the Supreme Court held, in particular, that the provisions of the Extra-Judicial Rehabilitation Act constitute a lex specialis in relation to the general provisions of the Civil Code. In restitution cases, it is therefore not possible to seek judicial protection under the general provisions of the Civil Code (e.g. by means of an action for recovery), but only by a special way provided for in the restitution legislation. In this decision the Supreme Court admitted that the entire removal of all wrongs committed by the former communist regime was not possible. The legislator opted, therefore, for legal means aiming to mitigate “the effects of certain wrongs”. For these purposes, it determined the “restitution border” (the period between 25 February 1948 and 1 January 1990 in which the wrongs had taken place) and fixed the conditions and the way to pursue to claim restitution of property. If other parallel procedural ways were accepted to be pursued under the general legal provisions the special restitution law would lose its sense. In this decision the Supreme Court stated that the restitution legislation demonstrates the legislator’s will to contribute to the mitigation of huge wrongs which were committed in the decisive period, i.e. between 1948 and 1989. This legislation, including the Extra-Judicial Rehabilitation Act is not based on the conception of declaration of the nullity of decisions, acts and legal actions. It indicates the special way to pursue for claiming restitution. In this decision the Supreme Court recalled its legal opinion expressed in its decision no. 28 Cdo 2343/2000 of 31 January 2001 stating, moreover, that according to the established national case-law, the restitution legislation is a lex specialis in relation to the general provisions of the Civil Code. Actually, if the restitution law is applicable in a particular case, it is inadmissible to circumvent it and, in case that the restitution action failed, to base the restitution claims on the general legal provisions. This would create a situation of legal uncertainty of the parties to the legal acts which were challengeable under the restitution law.

dev

001-58233

ENG

NLD

CHAMBER

CASE OF ERKALO v. THE NETHERLANDS

Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;Not necessary to examine Art. 5-4;Not necessary to examine Art. 13+5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

R. Pekkanen

8. The applicant is an Ethiopian national born in 1970. 9. The applicant was convicted on two counts of manslaughter by the Groningen Regional Court (arrondissementsrechtbank) on 21 June 1990. He had broken into the homes of two elderly ladies whom he had strangled to death, both these incidents taking place within the space of three days. 10. The applicant was sentenced to five years’ imprisonment (with deduction of the period spent in detention on remand) and placement at the disposal of the government (terbeschikkingstelling) with committal to a psychiatric institution. Although the period of placement at such an institution does not usually begin until the date on which the person concerned is eligible for early release – which in the present case would have been 16 February 1993 – due to his disturbed mental state the authorities decided to commence the applicant’s treatment prior to this date (Article 13 of the Criminal Code – Wetboek van Strafrecht – and Article 120 of the Prisons Ordinance – Gevangenismaatregel – see paragraph 20 below). Accordingly, the applicant was placed at the disposal of the government in a psychiatric institution for a two-year period commencing 3 July 1991 (see paragraph 21 below). 11. According to Article 509o § 1 of the Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter referred to as “CCP”), a request for the extension of a placement order must be made by the public prosecutor not later than one month before the expiry of the previous period of placement (see paragraph 23 below). The last day for making such a request in the present case was therefore 3 June 1993. A letter to this effect was sent by the State Secretary of Justice to the public prosecutor on 11 May 1993, the latter having received on 4 May 1993 the recommendations of the psychiatric institution where the applicant was being treated regarding the prolongation of his period of placement (see paragraph 23 below). 12. On 17 May 1993 the public prosecutor prepared a request for a one-year extension of the applicant's placement. The applicant was informed of this fact by letter of the same day (see paragraph 23 below), which he received in person on 19 May 1993. The applicant was also informed that during the judicial examination of the request he could be represented by counsel. The request prepared by the public prosecutor, however, did not arrive at that time at the registry of the Regional Court of Groningen but was, apparently by mistake, placed in the archives of the court. 13. About three and a half months after receiving the letter of the public prosecutor, the applicant alerted the staff in the psychiatric institution to the fact that he had not received any further information regarding the extension of his placement. The request of the public prosecutor was found in the archives of the court on 7 September 1993, and was received at the court's registry on 8 September 1993. On 10 September 1993 the psychiatric institution submitted additional observations concerning its recommendation to extend the hospital order. 14. In the proceedings regarding the extension of his placement, the applicant asked the Regional Court to declare the public prosecutor's request inadmissible on the ground that both Article 509o § 1 of the CCP and Article 5 of the European Convention on Human Rights had been violated. The public prosecutor submitted an explanation in writing as to the reasons why the request had not been lodged in time arguing that the request should not be declared inadmissible. 15. The Regional Court examined the application on 15 September 1993. In its decision of 23 September 1993, the court rejected the applicant's objections and extended his placement at the government’s disposal for another year. Pursuant to Article 509v of the CCP (see paragraph 27 below) no appeal lay against this decision, as it concerned a first extension not exceeding one year. 16. In its decision the Regional Court stated as follows: “3. It appears from the contents of the relevant documents that the request for an extension of the placement at the disposal of the government should have been submitted not later than 3 June 1993. According to the stamp indicating the receipt, the request was not received and registered at the registry of this Court until 8 September 1993. 4. The Code of Criminal Procedure does not indicate any consequences of a failure to observe the time-limit contained in Article 509o § 1. However, in view of the wording of the provision and its legal history, the Court is of the opinion that failure to observe the said time-limit should in principle result in the inadmissibility of the public prosecutor's application. This conclusion can be drawn from the fact that failure to respect this procedural provision is not in conformity with the proper administration of justice. 5. However, in some cases special circumstances might exist which would justify a departure from that principle. The Court considers that such special circumstances are present in this case. 6. The provision referred to has a specific procedural significance and aims at letting the judge examine periodically whether an extension of the judicial measure is necessary. Indirectly the provision also protects the interests of the person placed at the government's disposal since it ensures that this person will know in good time whether or not there will be a request for an extension. In the present case the interests of that person were not prejudiced since the request was notified to him in person on 19 May 1993. He has therefore been able to obtain legal assistance in time and he has not been left in any doubt as to the intentions of the public prosecutor for an unnecessarily protracted period. 7. It remains to be examined whether the failure to comply with the time-limit has been prejudicial to the fairness of the proceedings. In considering this question, the Court must have regard, inter alia, to the fact that the placement at the disposal of the government remains in force as long as there is no final decision on the request. Although there has been a failure to comply with the time-limit for requesting the extension, it does not follow that the deprivation of liberty is unlawful. 8. In substance, there has not been a failure to respect the time-limit within which the request must be made. The public prosecutor prepared a request for an extension in time and he communicated it two days later to the person placed at the government's disposal. Because of circumstances, which have been further explained in the written memorial of the public prosecutor, it was not possible, however, for the Court to decide earlier on this request, which had been prepared in time. It is not possible to consider this a flagrant violation of the procedural provisions. The public prosecutor may only be reproached for the fact that the request did not arrive at the registry of this Court in time, which means that the request was only formally submitted too late. 9. Moreover an evaluation must be made of the various interests involved in the sense that the interest of the person placed at the government's disposal in having the violated legal provision respected must be weighed against the general interest which might be harmed by a decision which would lead to the termination of the placement at the disposal of the government. 10. The Court considers that, in view of the circumstances set out below, the latter interest must prevail. The measure was originally imposed because of two acts of manslaughter. The above-mentioned opinions of the institution quite clearly refer to the necessity of prolonging this coercive measure. The risk of further criminal behaviour is considered still to be present to the same degree, since the person concerned can still not appreciate the vulnerability of his personality. The supplementary opinion regarding the extension repeats this conclusion and also mentions an incident in which violence took place between the person concerned and another person held in the institution. On this occasion he lost his senses for a short while and it was necessary to isolate him for some time in his room.” 17. The Regional Court has since extended the applicant’s placement twice. 18. Article 287 of the Criminal Code makes manslaughter a crime punishable by a term of imprisonment not exceeding fifteen years or a fine not exceeding one hundred thousand Netherlands guilders (NLG). 19. A person who has been found guilty of certain serious crimes and who, at the time of committing an offence, suffered from a mental deficiency or derangement may be placed at the government’s disposal if required in the interests of the safety of others or more generally in the interests of the safety of persons or goods. Such a measure, which is not considered a punishment, may be imposed instead of or together with a prison sentence (Article 37a §§ 1 and 2 of the Criminal Code). The sentencing court may further decide that the person concerned shall receive psychiatric treatment at the government’s expense (Article 37b). 20. A person sentenced to a term of imprisonment may, by order of the Minister of Justice, be made to serve his sentence in an institution for the treatment of persons placed at the disposal of the government if such a course is indicated by his or her impaired mental development or a mental disturbance (Article 13 § 1 of the Criminal Code and Article 120 of the Prisons Ordinance). 21. According to Article 38d of the Criminal Code a person shall be placed at the disposal of the government for an initial period of two years which may be extended, at the request of the public prosecutor, for a further period of one or two years. The period of placement cannot be extended beyond a total of four years unless the crime committed by the person concerned was a crime of violence committed against, or causing danger to, one or more persons or such further extension is necessary for the protection of other persons (Article 38e). 22. The provisions relating to the extension of the placement at the disposal of the government are laid down in Articles 509o to 509x of the CCP. 23. Article 509o § 1 provides: “The public prosecutor’s office (openbaar ministerie) may submit a request (vordering) for the prolongation of the placement at the government’s disposal no sooner than two months and no later than one month before the time at which the placement order is due to expire.” The request must be accompanied by a recent recommendation prepared by the institution in which the patient is being treated (Article 509o § 2). In accordance with the provisions of Article 509o § 6, the person concerned must be given a copy of the request as soon as possible. 24. The court competent to decide on such a request is the Regional Court that tried the person concerned at first instance for the crime that gave rise to the placement (Article 509p). 25. Pursuant to Article 509q, if a request for the extension of the placement is submitted to the Regional Court, the initial placement order shall remain in force until the decision of the court is rendered. If the request is granted after the date on which the placement would have expired had no request for prolongation been submitted, the new period of placement is nonetheless considered to have commenced as from that date. 26. The Regional Court must immediately set a date for the examination of the case, and the person concerned must be informed promptly of this date (Article 509s § 1). The decision of the Regional Court must be rendered as soon as possible, but no later than two months from the date on which the request was lodged (Article 509t § 1). The court may, however, exceed this time-limit if it wishes to consider refusing the request – thus terminating the measure – and if it needs more information as to the way in which the person concerned might be released back into society. In such a case, the court has an additional three months to render its decision (Article 509t § 2). The Regional Court’s decision shall be reasoned. If it decides to prolong the placement order, the decision must be pronounced publicly (Article 509t § 3). 27. Both the public prosecutor and the person concerned may lodge an appeal with the Court of Appeal (Gerechtshof) of Arnhem within two weeks of the service of the judgment given by the Regional Court. However, this provision rules out an appeal in regard to the first decision to extend the placement for a period of one year (Article 509v). 28. There is no express provision requiring the release of the person concerned if the time-limits laid down by Articles 509o § 1 and 509t §§ 1 and 2 are not complied with, nor does the CCP impose any sanctions on exceeding these time-limits. 29. According to Netherlands case-law summary civil proceedings (kort geding) may be instituted in cases where a person placed at the disposal of the government wishes to obtain a court judgment on the lawfulness of his detention. However, in a case which was brought before the President of the Regional Court of the Hague, a request for the termination of the applicant’s placement was rejected, inter alia, in view of the fact that the court competent to decide on the extension of the placement would be dealing with the matter one week later (decision of 30 March 1990, published in Sancties 1990, pp. 352–53). 30. The date on which the registry of the Regional Court concerned receives the request for extension is considered as the date of submission (Court of Appeal of Arnhem, decision of 26 June 1989, published in Sancties 1990, pp. 294–96). 31. According to a judgment of the Supreme Court (Civil Division) of 14 June 1974 (Nederlandse Jurisprudentie (NJ) 1974, no. 436) a placement order remains lawful even if the decision to extend it exceeds the time-limit now laid down by Article 509t § 1 of the CCP. 32. In a judgment of 29 September 1989 (NJ 1990, no. 2), the Supreme Court (Civil Division) held that only in certain circumstances would the State be obliged to terminate a placement order after its statutory period had expired and no decision as to its extension had been taken. In order to determine whether such an obligation existed, the court should have regard to the extent to which the statutory time-limit had been exceeded, the reasons for which the time-limit had not been complied with and the personal and societal interests involved. 33. In a more recent case, it was also held that the time-limit referred to in Article 509o § 1 of the CCP was not of an absolute nature. On 19 February 1993, in a case where this time-limit had been exceeded, the Supreme Court (Civil Division) found that in light of Article 509q the placement order had remained lawful even though the public prosecutor had lodged the request for extension three days after the date on which it should have been submitted to the registry of the Regional Court (NJ 1993, no. 302).

dev

001-95808

ENG

POL

CHAMBER

CASE OF POLKOWSKA v. POLAND

Violation of Article 6 - Right to a fair trial

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

5. The applicant was born in 1959 and lives in Otwock. 6. On an unspecified date in January 1987 the applicant's former husband instituted civil proceedings for division of matrimonial property. 7. During the proceedings the Otwock District Court (Sąd Rejonowy) decided on several occasions, of its own motion, to stay the proceedings due to the fact that the plaintiff had not paid the relevant costs arising in the course of the proceedings. 8. On numerous occasions the applicant requested the court to resume the proceedings and to proceed speedily with the claim. 9. On 5 March 1998 the applicant complained to the President of the Warsaw Regional Court (Prezes Sądu Wojewódzkiego) about the delay in the proceedings. 10. On 8 April 2004 the proceedings were resumed. 11. On 20 October 2006 the Otwock District Court gave a decision ordering the plaintiff to pay a certain amount to the applicant. The applicant appealed. 12. On 29 October 2007 the Warsaw Regional Court (Sąd Okręgowy) partly amended the first-instance decision and dismissed the remainder of the appeal. 13. On 15 February 2005 the applicant lodged a complaint with the Warsaw Regional Court 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”). 14. The applicant sought a ruling that the length of the proceedings before the Otwock District Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN). 15. On 6 May 2005 the Warsaw Regional Court dismissed the applicant's complaint. It limited its examination of the lengthofproceedings issue to the period after the entry into force of the 2004 Act and stressed that the Act could not be applied to the protracted length of court proceedings occurring before that date. Having analysed the conduct of the District Court during the period after the entry into force of the 2004 Act (that is after 17 September 2004), the Regional Court found that there were no delays for which the District Court could be held responsible. It held that the proceedings had been conducted with due diligence and within a reasonable time. 16. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out 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 2005-VIII) and the judgment in the case of Krasuski v. Poland, (no. 61444/00, §§ 34-46, ECHR 2005-V).

dev

001-5462

ENG

TUR

ADMISSIBILITY

ÜNVER v. TURKEY

Inadmissible

Elisabeth Palm;Gaukur Jörundsson

The applicant is a Turkish national, born in 1926 and living in Antalya (Turkey) and Belvue (Switzerland). He is represented before the Court by Mr Sinan Aklar, a lawyer practising in Antalya(Turkey). A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owns a three-story house on a hill overlooking the south coast of Antalya. At the time when he had his house built, the south coast was officially designated a conservation area (doğal sit alanı). According to the local master building and settlement plan (imar planı), no building was authorised in this area. In 1993 the Antalya Municipal Board revised the master plan in order to allow homes to be built. Subsequently, property developers were given building permits (inşaat ruhsatı) and undertook major building works in the area. As a result, the natural panorama of the south coast began to change rapidly. In 1993 the applicant twice complained to the Antalya City Municipality requesting that development be halted with immediate effect. In reply, the Antalya City Municipality informed the applicant that the master plan had been revised on 4 March and 2 July 1993 and that several developers had been granted construction permits pursuant to the revision. The applicant challenged the award of the building permits before the Antalya Administrative Court (İdare Mahkemesi). He contended that the revision of the master plan did not comply with the requirements prescribed by Law no. 3194 and that the presence of the buildings would deprive him of his right to the peaceful enjoyment of the panoramic view from his house. He further contended that the preservation of the natural beauty of the site was in “the public interest” and the planned high buildings did not meet safety requirements for geographical reasons. He requested the annulment of the building permits awarded to the developers. He also requested the court to order the administration to suspend (yürütmenin durdurulması) the building permits pending the outcome of the court’s final decision on the matter. On 3 February and 22 August 1994 the court ordered the administration to stay the execution of the building permits. These decisions were served on the administration on 17 February and 5 September 1994 respectively. The court noted that any further construction carried out on the basis of the permits could give rise to irreparable harm. On 27 September 1994 and 21 February 1995 the applicant’s lawyer requested the Muratpaşa Municipality and the Antalya Metropolitan Municipality to comply with the order. The municipalities neither suspended the building permits nor prevented the holders from continuing to build. Experts appointed by the court (bilirkişi) investigated the area and submitted a report which generally bore out the applicant’s allegations. On 19 November 1994 the Antalya Administrative Court found, inter alia, that the revision of the local master construction and settlement plan was not in accordance with relevant law and was not in the public interest (kamu yararı). The court also found that building permits did not comply with the revised master plan. The court accordingly annulled the revision of the master plan as well as all building permits awarded on the basis of the revised plan. The Antalya Metropolitan Municipality and the Muratpaşa Municipality appealed (temyiz) on the ground that the judgment was contrary to substantive and procedural law. On 29 May 1995 the 6th Chamber of the Supreme Administrative Court (Danıştay) upheld the judgment of 19 November 1994 of the Antalya Administrative Court. The Antalya Metropolitan Municipality and the Muratpaşa Municipality requested the rectification of the judgment (karar düzeltme) of the 6th Chamber. The request was rejected on 18 September 1996. De facto construction continued in the area even after the annulment of the building permits had become final. The applicant, with reference to the final court judgment, requested the Muratpaşa Municipality and Antalya Metropolitan Municipality to stop the building being carried out by the holders of the annulled permits and to demolish the existing buildings in the area. The municipalities failed to comply with the request. The applicant then complained to various State institutions inter alia, the Antalya Public Prosecutor’s Office, the Antalya Governor’s Office, the Ministry of Interior, and the State Ministry responsible for urban issues. He did not receive any clear response. The impugned buildings remain to this day. B. Relevant domestic law Article 138 of the Constitution provides in its fourth paragraph (unofficial translation): “Legislative and executive organs and the administration shall comply with court decisions. These organs and the administration shall neither alter them in any respect nor delay their execution.” Article 28 of the Administrative Procedure Code states (unofficial translation): “The administration shall comply with the decisions of the Supreme Administrative Court, district administrative courts, administrative and tax courts. The administration shall ensure the execution of such decisions within thirty days from the date of their notification.”

dev

001-114480

ENG

GBR

ADMISSIBILITY

DUNN v. THE UNITED KINGDOM

Inadmissible

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

1. The applicant, Mr James Lee Dunn, is a British national, who was born in 1981 and is currently detained at HMP Wakefield. He is represented before the Court by Hadgkiss Hughes & Beale, a firm of solicitors based in Birmingham. The United Kingdom Government (“the Government”) are represented by their Agent, Ms Ahila Sornarajah, Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 20 July 2006 the applicant was convicted of murder at Birmingham Crown Court. He appealed against conviction before the Court of Appeal, claiming that the evidence of one of the principal prosecution witnesses was unreliable since that witness gave inconsistent evidence at later trials. The appeal was dismissed on 23 July 2009. The Court of Appeal relied on case-law to the effect that the fact that a prosecution witness has been shown to have lied may not be fatal to conviction. 4. The applicant sought to challenge the way in which the Court of Appeal had dealt with the issue of adducing fresh evidence by way of an appeal to the House of Lords. It was the applicant’s case that, in determining this issue, the Court of Appeal had wrongly followed the approach of a majority of the Privy Council in the case of Dial & Anor v. The State (Trinidad and Tobago) [2005] UKPC 4, rather than the approach of the House of Lords in the case of Pendleton, R. v. [2001] UKHL 66. In order for an appeal to be lodged with the House of Lords (now the Supreme Court) in criminal matters, the Court of Appeal must certify that a point of law of general public importance arises in the case (section 33(2) of the Criminal Appeal Act 1968). The Court of Appeal indicated that it would not certify that a point of law of general public importance arose in the case. 5. The applicant then applied to the Court of Appeal for a declaration that section 33(2) of the Criminal Appeals Act was incompatible with Articles 6 and 14 of the Convention. The applicant argued that the certification requirement constituted a violation of his right to an impartial tribunal and his right of access to the Supreme Court. 6. On 18 June 2010 the Court of Appeal dismissed this application, finding that the certification requirement did not violate the applicant’s rights under Article 6 of the Convention. As regards the challenge to the Court of Appeal’s impartiality, the Court of Appeal distinguished between the substantive appeal and the certification process: “Although [counsel for the applicant] does not suggest actual bias, what he is in truth submitting is that in deciding whether to certify the Court of Appeal may be influenced by an oblique motive; the wish to avoid the Supreme Court considering the case and possibly overruling the Court of Appeal’s decision. We entirely reject that. We reject too the suggestion that the fair minded and informed observer would conclude that in reaching its decision the Court of Appeal would be so influenced. As [counsel for the prosecution] submits, in deciding whether or not to certify the court is not sitting on an appeal against its own decision. It is not determining any criminal charge. It is merely assessing whether its decision contains an important point of law.” 7. The Court of Appeal also emphasised that the same court was best placed to determine the existence of a point of law of general public importance, since it had already examined all the issues in the case. 8. The Court of Appeal found that the certification requirement amounted to an interference with the applicant’s right of access to the Supreme Court, which was, however, justified in pursuit of the legitimate aim of providing a filtering mechanism to control the Supreme Court’s caseload. 9. The essence of the applicant’s right of access to the Supreme Court had not been denied since he had no right to have an uncertified point of law considered by the Supreme Court: “Moreover, we do not accept that a refusal to certify amounts to a denial of the essence of the appellant’s right of access to the Supreme Court. The appellant has the right to have his access to the second-tier appeal court decided by an independent and impartial tribunal properly applying legal principles. If such a decision goes against the appellant that has not denied him the essence of his right to access to the Supreme Court. It means that on proper application of legal principles by an independent and impartial court he is not entitled to have his case considered by the Supreme Court in circumstances where it is legitimate for there to be a filtering of the cases before that court. That is precisely what happened here.” 10. As regards Article 14 of the Convention, the Court dismissed the applicant’s claim on the ground that, in criminal cases, the Supreme Court’s jurisdiction was limited to resolving important matters of legal principle, whereas it had a broader remit in civil cases, sometimes encompassing factual issues. Appellants in criminal and civil cases were not, therefore, in comparable situations. 11. Section 33 of the Criminal Appeal Act 1968, which replaced the Administration of Justice Act 1960, provides as regards appeals in criminal proceedings: “33. - Right of appeal to [Supreme Court] (1) An appeal lies to the Supreme Court at the instance of the defendant or prosecutor from any decision of the Court of Appeal on an appeal to that court ... (2) The appeal lies only with the leave of the Court of Appeal or the [the Supreme Court]; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the [the Supreme Court] (as the case may be) that the point is one which ought to be considered by [the Supreme Court]. (3) Except as provided for by this part of this Act ... no appeal shall lie from any decision of the Criminal Division of the Court of Appeal.” 12. Following several high profile miscarriages of justice, the Royal Commission on Criminal Justice, Cm.2263 (HMSO, 1993), chaired by Lord Runciman, was tasked to consider, inter alia, whether changes were needed in the criminal appeals process. In its 1993 report, the Commission recommended the abolition of the certification requirement (at § 10.79): “[I]t is unduly restrictive to require such a certificate to be issued in addition to the necessity of obtaining leave from the Court of Appeal or the House of Lords itself. We think therefore that the requirement that the Court of Appeal certify that the case involves a matter of law of general public importance should be dropped. The need to obtain the leave of either the Court of Appeal or the House of Lords before proceeding further is by itself a sufficient filter.” 13. A review of the criminal courts carried out in 2001 by Sir Robin Auld did not address this issue, since the composition and workings of the Appellate Committee of the House of Lords did not fall within its terms of reference. 14. In Scotland the High Court of Judiciary is the highest criminal court. There is no route of criminal appeal from the High Court of Judiciary to the Supreme Court. However, there is an exception under the Scotland Act 1998 for devolution issues. Devolution issues include questions as to the compatibility with the Convention of the acts and functions of the Lord Advocate and legislation passed by the Scottish parliament. In such cases, leave to appeal is required from either the High Court of Judiciary or the Supreme Court. There is no certification requirement for criminal cases referred to the Supreme Court from the High Court of Judiciary. 15. In civil cases there is no certification requirement in respect of appeals to the Supreme Court from any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland. An application for permission to appeal must be made first to the Court of Appeal. If that Court refuses permission, an application may be made to the Supreme Court. For a "leapfrog" appeal directly from the High Court to the Supreme Court, however, the High Court judge must certify that the relevant conditions are satisfied, namely that a sufficient case has been made out to justify an application for permission to appeal to the Supreme Court and that all parties consent (section 12(1) of the Administration of Justice Act 1969). The “relevant conditions” (which are set out in section 12(3) of the Administration of Justice Act 1969) are that a point of general public importance is involved and that it either: “(a) relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or (b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the [Supreme Court] in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the [Supreme Court] (as the case may be) in those previous proceedings.”

dev

001-81232

ENG

RUS

ADMISSIBILITY

KUZNETSOVA v. RUSSIA

Inadmissible

Christos Rozakis

The applicant, Mrs Lyubov Yevgenyevna Kuznetsova, is a Russian national who was born in 1957 and lives in Volgograd. The Russian Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant purchased a flat from a private company. It subsequently transpired that the flat was under charge. On 6 October 1999 and 9 March 2000 the Commercial Court of the Volgograd Region declared the sale of the flat to the applicant void ab initio and transferred the title to it to a Mrs S. On 31 May 2000 the applicant sued the original seller, claiming recognition of her title to the flat. By judgment of 28 June 2000 the Krasnooktyabrskiy District Court of Volgograd accepted her claim. This judgment became final. On 3 October 2000 it was set aside because the judgment of 9 March 2000 had not been taken into account, and the proceedings resumed. Having re-examined the applicant’s claim against the original seller, on 26 December 2000 the District Court discontinued the proceedings for lack of jurisdiction. On 31 May 2001 the Presidium of the Volgograd Regional Court re-opened the proceedings by way of supervisory review. On 13 July 2001 the District Court issued a new decision discontinuing the proceedings, which was again quashed by way of supervisory review on 24 August 2001 for similar reasons. Between 8 October 2001 and 22 January 2002, and then between 18 February and 27 March 2002 the proceedings were either adjourned or stayed upon the applicant’s requests. On 4 April 2002 the Krasnooktyabrskiy District Court rejected the applicant’s claim for recognition as a good faith purchaser of the flat. The applicant appealed to the Volgograd Regional Court. After she had complied with the formal requirements, her appeal was scheduled for hearing. On 25 September 2002 its examination was adjourned until 9 October 2002 due to the applicant’s illness. On 9 October 2002 the Volgograd Regional Court quashed the judgment of 4 April 2002 and remitted the case for a re-examination. It found that the District Court had failed to examine some of the applicant’ In November and December 2002 and January 2003 the proceedings were stayed at the other party’ requests. The applicant did not challenge these suspensions of the proceedings. By judgment of 12 March 2003 the Krasnooktyabrskiy District Court dismissed again the applicant’s claim. On 25 March and 23 May 2003 the judgment was rectified. On 30 July 2003 the Volgograd Regional Court quashed the judgment and remitted the matter to the district court for a fresh decision. The proceedings were stayed on 30 September until 28 November 2003 due to Mrs S.’s illness. The hearings scheduled for 25 February and 3 March 2004 were adjourned because the presiding judge T. was involved in another case or had a meeting in the town hall. On 31 March 2004 the Krasnooktyabrskiy District Court stayed the proceedings at the other party’s request. On 11 August 2004 the Volgograd Regional Court quashed that decision. On 3 September 2004 the District Court rejected as unfounded the applicant’s bias complaint in respect of judge T. and adjourned the hearing at the other party’s request. By judgment of 9 September 2004 the Krasnooktyabrskiy District Court declared the sale of the flat void ab initio and ordered the respondent company to pay 405,935 Russian roubles to the applicant. The Volgograd Regional Court upheld that judgment on 3 February 2005. In a litigation between the original seller and third persons, including Mrs S., on 8 December 2000 the Krasnooktyabrskiy District Court upheld Mrs S.’s title to the flat. The court refused to process the applicant’s appeal against the judgment on the ground that she had no standing in those proceedings. Apparently, the applicant did not appeal against this refusal.

dev

001-100448

ENG

NLD

GRANDCHAMBER

CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS

Violation of Art. 10

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Zdravka Kalaydjieva

9. The applicant company is based in Hoofddorp. Its business is publishing and marketing magazines, including the weekly Autoweek, which caters for readers who are interested in motoring. 10. On 12 January 2002, an illegal street race was held in an industrial area on the outskirts of the town of Hoorn. Journalists of Autoweek attended this race at the invitation of its organisers. 11. The applicant company state that the journalists were given the opportunity to take photographs of the street race and of the participating cars and persons on condition that they guarantee that the identities of all participants would remain undisclosed. The Government, for their part, dispute the existence of any agreement involving more than a small number of organisers or participants at most. 12. The street race was ended by the police, who were present and eventually intervened. No arrests were made. 13. The applicant company intended to publish an article about illegal car races in Autoweek no. 7/2002 of 6 February 2002. This article would be accompanied by photographs of the street race held on 12 January 2002. These photographs would be edited in such a manner that the participating cars and persons were unidentifiable, thus guaranteeing the anonymity of the participants in the race. The original photographs were stored by the applicant company on a CD-ROM, which was kept in the editorial office of a different magazine published by the applicant company (not Autoweek). 14. The police and prosecuting authorities were afterwards led to suspect that one of the vehicles participating in the street race had been used as a getaway car following a ram raid on 1 February 2001 (see paragraphs 27-29 below). 15. On the morning of Friday 1 February 2002, a police officer contacted the Autoweek editorial office by telephone, summoning the editors to surrender to the police all photographic materials concerning the street race of 12 January 2002. This police officer was informed by the staff member whom she had called, namely the features chief editor (chef reportage), that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race. The features chief editor further told this police officer that he thought that the press was reasonably protected against this kind of action and advised her to contact the editorial office in writing. 16. In the afternoon of 1 February 2002, at 2.30 p.m., two police detectives visited the Autoweek editorial office and, after having unsuccessfully tried to obtain the surrender of the photographs, issued Autoweek’s editor-in-chief with a summons, within the meaning of Article 96a of the Code of Criminal Procedure (Wetboek van Strafvordering). This summons had been issued by the Amsterdam public prosecutor; it ordered the applicant company to surrender, in the context of a criminal investigation into offences defined in Articles 310-312 of the Criminal Code (Wetboek van Strafrecht) against an unspecified person, the photographs taken on 12 January 2002 during the illegal street race in Hoorn and all related materials. On behalf of the applicant company, Autoweek’s editor-in-chief Mr Broekhuijsen refused to surrender the photographs, considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity. 17. Later that day, a telephone conversation took place between, on the one side, two public prosecutors and, on the other, the lawyer of the applicant company Mr Jansen. Mr Jansen was told by the public prosecutors that “it concerned a matter of life and death”. No further explanation was given and Mr Jansen’s request for written confirmation that the matter was one of “life and death” was not entertained. 18. The police detectives and the public prosecutors threatened to detain Mr Broekhuijsen during the weekend of 2 to 3 February or even longer for having acted in violation of Article 184 of the Criminal Code, i.e. the offence of failure to comply with an official order (ambtelijk bevel), and to seal and search the whole of the applicant company’s premises, if need be for the entire weekend period and beyond, and remove all computers. The threatened search would entail financial damage for the applicant company as, during that weekend, articles were to be prepared for publication on the subject of the wedding of the Netherlands Crown Prince, due to take place on 2 February 2002. 19. At 6.01 p.m. on 1 February 2002, Mr Broekhuijsen was arrested on suspicion of having violated Article 184 of the Criminal Code. He was not taken to the police station but remained on the applicant company’s premises. After the Amsterdam public prosecutor had arrived on these premises and after he had been brought before the prosecutor, Mr Broekhuijsen was released at 10 p.m. 20. The applicant company then consulted their counsel, Mr S., and a second lawyer, Mr D., the latter being a specialist in criminal procedure. At some point the CD-ROM was transferred to the lawyers’ offices unbeknown to the public prosecutor and the police investigators. Upon this, the public prosecutor and the other persons involved went to the lawyers’ offices. 21. Mr D. spoke with the public prosecutors involved for some two hours, from 11.15 p.m. onwards. Taking the view that judicial authorisation was required, he sought and obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge (rechter-commissaris) of the Amsterdam Regional Court (rechtbank), who was then contacted by telephone. After having spoken with Mr D., and after having been briefed by one of the public prosecutors, the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege. While recognising from the outset that by law he lacked competence in the matter, he also stated that, had he had the power to do so, he would have been prepared to give an order to that effect and even to sanction a search of the offices. 22. On 2 February 2002 at 1.20 a.m., the applicant company, through Mr S. and Mr D. and under protest, surrendered the CD-ROM containing the photographs to the public prosecutor, who formally seized it. An official receipt issued by a police officer describes it as a CD-ROM in purpose-made packaging, the packaging labelled in handwriting “Photos Illegal Street Races, ANWB [Royal Netherlands Tourist Association] driving simulator, sidecar motorcycle with coffin”. The receipt stated that Mr S. had handed over the CD-ROM under protest. 23. On 15 April 2002 the applicant company lodged a complaint under Article 552a of the Code of Criminal Procedure, seeking the lifting of the seizure and restitution of the CDROM, an order to the police and prosecution department to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD-ROM. 24. On 5 September 2002 a hearing was held before the Regional Court during which the public prosecutor explained why the surrender of the photographs had been found necessary. The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of walls with the aid of a shovel loader, and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s) of those robberies. 25. In its decision of 19 September 2002 the Regional Court granted the request to lift the seizure and to return the CD-ROM to the applicant company as the interests of the investigation did not oppose this. It rejected the remainder of the applicant company’s complaint. It found the seizure lawful and, on this point, considered that a publisher/journalist could not, as such, be regarded as enjoying the privilege of non-disclosure (verschoningsrecht) under Article 96a of the Code of Criminal Procedure. Statutorily, the persons referred to in Article 218 of the Code of Criminal Procedure and acknowledged as enjoying the privilege of non-disclosure were, amongst others, public notaries, lawyers and doctors. It considered that the right to freedom of expression, as guaranteed by Article 10 of the Convention, included the right freely to gather news (recht van vrije nieuwsgaring) which, consequently, deserved protection unless outweighed by another interest warranting priority. It found that, in the instant case, the criminal investigation interest outweighed the right to free gathering of news in that, as explained by the public prosecutor during the hearing, the investigation at issue did not concern the illegal street race, in which context the undertaking of protection of sources had been given, but an investigation into other serious offences. The Regional Court was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests, the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race. It found established that the data stored on the CD-ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing. It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified. The Regional Court did not find that the seizure had been rash, although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter. 26. The applicant company lodged an appeal on points of law with the Supreme Court (Hoge Raad), which on 3 June 2003 gave a decision declaring it inadmissible. The Supreme Court held that, as the Regional Court had accepted the applicant company’s complaint in so far as it related to the request to lift the seizure and to return the CD-ROM, the applicant company no longer had an interest in its appeal against the ruling of 19 September 2002. Referring to its earlier case-law (Supreme Court, 4 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1989, no. 429, and Supreme Court, 9 January 1990, NJ 1990, no. 369), it held that this finding was not altered by the circumstance that the complaint – apart from a request to return the CD-ROM – also contained a request to order that any print-outs or copies of the CD-ROM were to be destroyed and that data collected with the aid of the CD-ROM could not be used: neither Article 552a nor any other provision of the Code of Criminal Procedure provided for the possibility of obtaining a declaratory ruling that the seizure or the use of the seized item was unlawful once the item had been returned. 27. The order issued under Article 96a of the Code of Criminal Procedure was closely related to a criminal investigation into a series of ram raids which had taken place on 20 September 2001, 6 November 2001 and 30 November 2001. In these ram raids, cash dispensers were removed from walls using a shovel loader. A group of suspects was identified, the main suspects being A and M. 28. A telephone conversation involving M, tapped in the context of the investigation into those raids on 12 January 2002, revealed that M and A had participated in an illegal street race in Hoorn with an Audi RS4 motor car earlier that day. 29. On 1 February 2002 another ram raid took place. During the incident, a bystander was threatened with a firearm. After ramming a wall, the perpetrators removed a cash dispenser and hauled it off in a lorry, which was followed closely by an Audi RS4. The police, who had already been informed of the incident, saw the lorry stop and the driver get into an Audi, which then drove away with three people inside. The police followed, but the Audi accelerated to over 200 kilometres per hour and disappeared from view. 30. Article 96a of the Code of Criminal Procedure reads as follows: “1. If it is suspected that a crime within the meaning of Article 67 § 1 has been committed, the investigating officer may order a person to surrender an object if it is reasonable to suspect that the person has an object subject to seizure in his possession. 2. The order shall not be issued to the suspect. 3. By virtue of their right to decline to give evidence, the following persons are not obliged to comply with an order of this nature: a. the persons described in Article 217; b. the persons described in Article 218, insofar as surrender for seizure would violate their duty of confidentiality; c. the persons referred to in Article 219, insofar as surrender for seizure would put them or their relatives at risk of prosecution for a criminal offence. ...” 31. Article 67 § 1 of the Code of Criminal Procedure lists the offences in respect of which detention on remand may be ordered. These include, among others, the offences defined in Articles 310-312 of the Criminal Code (theft, theft under aggravating circumstances, and robbery). 32. A failure to comply with an order under Article 96a constitutes an offence as defined in, as relevant to the case, Article 184 (failure to comply with an official order) of the Criminal Code. This is an indictable offence (misdrijf) carrying a three-month maximum prison sentence or a fine. 33. Persons who, by virtue of Articles 217-219 of the Code of Criminal Procedure, enjoy the privilege of nondisclosure include a. an accused’s relatives, (former) spouse and (former) registered partner (Article 217); b. persons who, by virtue of their position, profession or office, are bound to secrecy – albeit that their privilege of non-disclosure only covers matters the knowledge of which has been entrusted to them in that capacity (Article 218; this category is traditionally considered to include doctors, advocates, clergy and notaries); and c. persons who, by giving evidence, expose themselves, their relatives to the second or third degree, their (former) spouse or their (former) registered partner to the risk of a criminal conviction (Article 219). 34. Article 96a of the Code of Criminal Procedure entered into force on 1 February 2000. Prior to this date, only the investigating judge was competent to issue an order to surrender for the purposes of seizure (former Article 105 of the Code of Criminal Procedure). 35. Article 552a of the Code of Criminal Procedure reads as follows: “1. Interested parties may lodge a written complaint about seizure, the use of seized objects, the failure to order the return, or the examination (kennisneming) or use of information recorded by means of an automatised device and recorded during a house search, and about the examination or use of information as referred to in Articles 100,101, 114, 125i and 125j [i.e. letters and parcels sent by post, Articles 100, 101 and 114; electronic data, such as internet traffic, recorded by a third party, Articles 125i and 125j]. 2. The written complaint shall be lodged as soon as possible after the seizure of the object or the examination of the information at the registry of the trial court before which the case is being prosecuted or was last prosecuted. The written complaint shall not be admissible if it is lodged at a time when more than three months have passed since the case prosecuted has been brought to a close. ... 5. The hearing in chambers (raadkamer) to examine the written complaint shall be public. 6. If the court considers the complaint to be well-founded, it shall give the appropriate order.” 36. Until 11 November 1977, the Netherlands Supreme Court did not recognise a journalistic privilege of non-disclosure. On that date, it handed down a judgment in which it found that a journalist, when asked as a witness to disclose his source, was obliged to do so unless it could be regarded as justified,, that the interest of non-disclosure of a source outweighed the interest served by such disclosure. This principle was overturned by the Supreme Court in a landmark judgment of 10 May 1996 on the basis of the principles set out in the Court’s judgment of 27 March 1996 in the case of Goodwin v. the United Kingdom (Reports of Judgments and Decisions 1996II). In this ruling, the Supreme Court accepted that, pursuant to Article 10 of the Convention, a journalist was in principle entitled to non-disclosure of an information source unless, on the basis of arguments to be presented by the party seeking disclosure of a source, the judge was satisfied that such disclosure was necessary in a democratic society for one or more of the legitimate aims set out in Article 10 § 2 of the Convention (Nederlandse Jurisprudentie (Netherlands Law Reports, “NJ”) 1996, no. 578). 37. Guidelines on the position of the press in relation to police action (Leidraad over de positie van de pers bij politieoptreden) were issued by the Minister of Justice (Minister van Justitie) on 19 May 1988. At the time of the events complained of, they provided, in relevant part: “7. Seizure of journalistic material Journalistic material may be seized in cases described in the Code of Criminal Procedure. Journalists may be faced with seizure in two ways. A. The police may, on the instructions of a public prosecutor (officier van justitie) or an assistant public prosecutor (hulpofficier van justitie) or not as the case may be, arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot. There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed. In this situation, the journalist is arrested like any ordinary citizen. If a prosecution ensues, it will be for the independent judge eventually to decide what is to be done with any seized – and unpublished – material. B. Journalistic material may also be seized on the orders of an independent judge (the investigating judge), if such material may – in the judge’s opinion – serve to clarify the truth in a preliminary judicial investigation (gerechtelijk vooronderzoek). ...” 38. On 4 December 2000, the boards of the Netherlands Society of Editors-in-Chief (Nederlands Genootschap van Hoofdredacteuren) and the Netherlands Union of Journalists (Nederlandse Vereniging van Journalisten) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials. This commission – which was composed of a professor of criminal law, the secretary of the Netherlands Union of Journalists, a Regional Court judge and an editor of a national daily newspaper – concluded in its report of 30 October 2001, inter alia, that specific legislation was not necessary and that by way of making certain procedural changes – such as a preliminary assessment procedure, where it concerned the application of coercive measures in cases where the protection of sources was in issue – a number of problem areas could be resolved. 39. Already in 1993, Mr E. Jurgens – at the time a member of the Netherlands Lower House of Parliament (Tweede Kamer) – had submitted a private member’s bill (initiatiefwetsvoorstel) to amend the Code of Criminal Procedure and the Code of Civil Procedure in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them. On 2 March 2005, after remaining dormant, this bill was eventually withdrawn without having been taken up in parliament. 40. On 15 January 2002, in the light of the case-law developments in this area and Recommendation No. R(2000) 7 adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 (see below), the Board of Procurators General (College van procureurs-generaal) adopted an Instruction within the meaning of Article 130 § 4 of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) on the application by the Public Prosecution Department of coercive measure in respect of journalists (Aanwijzing toepassing dwangmiddelen bij journalisten; published in the Official Gazette (Staatscourant) 2002, no. 46), which entered into force on 1 April 2002 for a period of four years. This Instruction defines who is to be considered as a “journalist” and sets out the pertinent principles and guidelines as regards the application of coercive measures, such as inter alia an order under Article 96a of the CCP, in respect of a journalist. 41. In a judgment given on 2 September 2005 concerning the search of premises of a publishing company on 3 May 1996 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] LJN AS6926), the Supreme Court held inter alia: “The right of freedom of expression, as set out in Article 10 of the Convention, encompasses also the right to freely gather news (see, amongst others, Goodwin v. the United Kingdom, judgment of 27 March 1996, NJ 1996, no. 577; and Roemen and Schmit v. Luxembourg, judgment of 25 February 2003 [ECHR 2003IV]). An interference with the right to freely gather news – including the interest of protection of a journalistic source – can be justified under Article 10 § 2 in so far as the conditions set out in that provision have been complied with. That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision. Secondly, the interference must serve one of the aims mentioned in Article 10 § 2. Thirdly, the interference must be necessary in a democratic society for attaining such an aim. In this, the principles of subsidiarity and proportionality play a role. In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other, less far-reaching ways (minder bezwarende wegen) can be followed along which this interest can be served to a sufficient degree. Where it concerns a criminal investigation, it must be considered whether the interference with the right to freely gather news is proportionate to the interest served in arriving at the truth. In that last consideration, the gravity of the offences under investigation will play a role.” 42. The Court’s judgment in the Voskuil case (Voskuil v. the Netherlands, no. 64752/01, 22 November 2007) has prompted the Government to introduce new legislation. A bill now pending before Parliament proposes to add a new Article to the Code of Criminal Procedure (Article 218a) that would explicitly allow “witnesses to whom information has been entrusted within the framework of the professional dissemination of news (beroepsmatige berichtgeving) or the gathering of information for that purpose, or the dissemination of news within the framework of participation in the public debate, as the case may be” – that is, professional journalists in particular – to refuse to give evidence or identify sources of information. Such a right would be more limited than that enjoyed by the categories enumerated in Articles 217, 218 and 219 of the Code of Criminal Procedure; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest (zwaarderwegend maatschappelijk belang) would result from such refusal. However, persons covered by the proposed new Article 218a would not be among those entitled to refuse outright to surrender items eligible for seizure: the bill proposes to include them in the enumeration contained in Article 96a § 3 (paragraph 30 above). 43. Several international instruments concern the protection of journalistic sources, among others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and the Resolution on the Confidentiality of Journalists’ Sources by the European Parliament (18 January 1994, Official Journal of the European Communities No. C 44/34). 44. Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 and states, in so far as relevant: “[The Committee of Ministers] Recommends to the governments of member States: 1. to implement in their domestic law and practice the principles appended to this recommendation, 2. to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and 3. to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations. Appendix to Recommendation No. R (2000) 7 Principles concerning the right of journalists not to disclose their sources of information Definitions For the purposes of this Recommendation: a. the term ‘journalist’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication; b. the term ‘information’ means any statement of fact, opinion or idea in the form of text, sound and/or picture; c. the term ‘source’ means any person who provides information to a journalist; d. the term ‘information identifying a source’ means, as far as this is likely to lead to the identification of a source: i. the name and personal data as well as voice and image of a source, ii. the factual circumstances of acquiring information from a source by a journalist, iii. the unpublished content of the information provided by a source to a journalist, and iv. personal data of journalists and their employers related to their professional work. Principle 1 (Right of non-disclosure of journalists) Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right. Principle 2 (Right of non-disclosure of other persons) Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein. Principle 3 (Limits to the right of non-disclosure) a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10 § 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10 § 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature. b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that: i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that: - an overriding requirement of the need for disclosure is proved, - the circumstances are of a sufficiently vital and serious nature, - the necessity of the disclosure is identified as responding to a pressing social need, and - member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights. c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked. Principle 4 (Alternative evidence to journalists’ sources) In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist. Principle 5 (Conditions concerning disclosures) a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure. b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested. c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention. d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority. e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure. Principle 6 (Interception of communication, surveillance and judicial search and seizure) a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source: i. interception orders or actions concerning communication or correspondence of journalists or their employers, ii. surveillance orders or actions concerning journalists, their contacts or their employers, or iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work. b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3. Principle 7 (Protection against self-incrimination) The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.” For the precise application of the Recommendation, the explanatory notes specified the meaning of certain terms. As regards the term “sources” the following was set out: “c. Source 17. Any person who provides information to a journalist shall be considered as his or her ‘source’. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the ‘potentially chilling effect’ an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being ‘provided’ when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.” 45. Media Legal Defence Initiative, Committee to Protect Journalists, Article 19, Guardian News & Media Ltd. and Open Society Justice Initiative, who were given leave by the President to intervene in the written procedure, submitted inter alia the following comparative-law information (footnote references omitted): “Echoing the Goodwin Court’s scrutiny of review procedures and the Committee of Ministers’ recommendation that non-disclosure of sources be sanctionable only under ‘judicial authorit[y]’ (Rec. No. R(2000)7, Principle 5(c)), many national laws state that only courts may compel disclosure of information identifying confidential sources. The following can be taken as typical examples of legislation to this effect: - Law on Radio and Television Broadcasting, Art. 7 (Romania), July 11, 2002, Law No. 504 (revisions in force 3 December 2008) (Legii audiovizualului) (only law courts may compel disclosure of a journalist’s confidential sources); - Media Act (Croatia), Art. 30, 5 May 2004, Official Gazette No. 59/2004 (Zakon o medijima) (similar); - Code of Criminal Procedure, Art. 180 (Poland), 6 June 1997, Law No. 97.89.555 (Kodeks Postepowania Karnego) (right to keep sources confidential is a testimonial privilege); - Law of the Republic of Armenia on the Dissemination of Mass Information, Art. 5, 13 December 2003, (...) (disclosure may be compelled only by a ‘court decision, in the course of a criminal proceeding’ of certain serious crimes); - Radio and Television Law, Section 15 (Bulgaria), 23 November 1998, Decree No. 406 (as amended June 2009) (Закон за радиото и телевизията) (allowing for disclosure only in ‘pending court proceedings or a pending proceeding instituted on an appeal from an affected person’ where court issues appropriate order). Courts have stressed the same. The Lithuanian constitutional court, investigating the compatibility of that country’s sources laws with the standards set by the European Court of Human Rights, has held that ‘the legislator ... has a duty to establish, by law, also that in every case it is only the court that can decide whether the journalist must disclose the source of information.’ In Germany, search and seizure warrants may be issued only by a judge. Only when there is imminent risk may a prosecutor order such a search. The authorising judge or prosecutor must always consider the impact of the proposed action on press freedom; and whether a search or seizure has been ordered by a judge or by a prosecutor, ex post facto judicial review must always be available. In the United States, prior judicial review of efforts to compel information from journalists is a baseline requirement. In nearly all circumstances, law enforcement authorities must issue a subpoena to try to compel journalists to turn over information, which the journalists may then challenge in court before providing the information. In the very limited circumstances where police may proceed by search warrant (as stated above, these include probable cause to believe the possessor of the information ‘has committed or is committing the criminal offense to which the materials relate’, or that the search or seizure is ‘necessary to prevent death or serious injury’) a judge must issue the warrant.”

dev

001-105324

ENG

RUS

ADMISSIBILITY

NASIRKHAYEVA v. RUSSIA

Inadmissible

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

The applicant, Ms Aminat Nasirkhayeva, is a Russian national who lives in Grozny, Chechnya. She is represented before the Court by Mr D. Itslayev, a lawyer practising in Nazran, Ingushetia. The respondent Government are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The applicant had four children. One of them, Ms Balizha Nasirkhayeva, was born in 1992. The applicant lived in Grozny with her family. In 1999 the Russian Government launched a counter-terrorist operation in Chechnya. On 27 December 1999 the applicant’s daughter received a wound to the head as a result of an explosion. The family and the wounded child remained in the basement of their house in view of the ongoing hostilities. On 11 or 13 January 2000 when federal servicemen reached the district, they gave Balizha Nasirkhayeva first aid and delivered the applicant and her daughter to a military hospital by helicopter. From there the applicant and her daughter were taken to a hospital in Vladikavkaz where the child spent six days in an intensive care unit. On 7 April 2000 Balizha Nasirkhayeva was brought to the Clinical Hospital of Ingushetia in Nazran and diagnosed with a post-traumatic condition caused by a penetrating wound to the skull. She was operated upon and several days later she was transferred by plane to a specialised paediatric hospital, the Ninth Hospital, in Moscow. On 14 April 2000 Balizha Nasirkhayeva died at the intensive care unit of the Ninth Hospital in Moscow. On 23 September 2004 the applicant and her husband sought assistance in receiving compensation for their child’s death from the Human Rights Office of the President of the Chechen Republic (“the Human Rights Office”). On 25 July 2005 the applicant sued the Government of Chechnya, seeking compensation for her daughter’s death. On 16 May 2006 the Staropromyslovskiy District Court of Grozny awarded her 20,000 Russian roubles in a lump sum, such award being given to people whose relatives had died during the counter-terrorist operation in Chechnya. The remaining claims for non-pecuniary damage were dismissed for the absence of a causal link between the actions of the defendant and the claim. The applicant did not appeal and on 26 May 2006 the judgment became final. On 24 October 2005 the Human Rights Office requested that the prosecutor’s office of the Zavodskoy District of Grozny (“the district prosecutor’s office”) investigate Balizha Nasirkhayeva’s death. The letter indicated that information about the criminal proceedings had been sought by the Staropromyslovskiy District Court within the scope of the compensation proceedings. It is unclear if this letter reached the district prosecutor’s office. On 7 March 2006 the applicant complained about her daughter’s death to the district prosecutor’s office. On 12 March 2006, referring to a letter from the Human Rights Office of 10 March 2006, the district prosecutor’s office opened an investigation under Article 105 § 1 of the Criminal Code (murder). The case was assigned number 51040. Pursuant to the Court’s request following the communication of the present case, the Government submitted thirty-six pages of documents from the criminal investigation file. These documents can be summarised as follows. On 8 April 2006 the district prosecutor’s office granted victim status to the applicant. She was questioned and stated that her daughter had been wounded as a result of an explosion. Two neighbours stated that they had heard the explosions outside and then saw that the applicant and her daughter had been wounded. The investigator also collected medical records and attempted to obtain information about the military operations in Grozny at that time. It does not appear that they obtained any relevant information in this respect. On 12 May 2006 the investigation in case no. 51040 was suspended for its failure to identify any suspects. The applicant was informed, but did not appeal against this decision. On 9 April 2009 the applicant wrote to the Investigative Committee of the Chechnya Prosecutor’s Office and asked for an update on the investigation. Article 125 of the Code of Criminal Procedure provides as follows: “Article 125. Judicial examination of complaints 1. Decisions of an investigator or prosecutor concerning their refusal to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.... 3. The court shall examine the lawfulness and the grounds for the impugned decisions or acts ... within five days from the receipt of the complaint... 5. As a result of the examination of the complaint the court shall deliver one of the following decisions: 1) Declaring the decisions, acts or omissions of the official as unlawful or unsubstantiated and obliging the official to eliminate the defects; 2) Not allowing the applicant’s complaint...”

dev

001-120064

ENG

MNE

CHAMBER

CASE OF VUKELIĆ v. MONTENEGRO

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

9. The applicant was born in 1963 and lives in Skopje, “the former Yugoslav Republic of Macedonia”. 10. The facts of the case, as submitted by the parties, may be summarised as follows. 11. On an unspecified date the applicant, represented by a lawyer, filed a compensation claim against another private person (“the debtor”). 12. On 17 October 1996 the Real Estate Office in Bar (Služba za katastar i imovinsko-pravne poslove Bar) issued a decision to register a mortgage (založno pravo) on the debtor’s flat in favour of the applicant. 13. On 7 November 1996 the Court of First Instance (Osnovni sud) in Bar ruled in favour of the applicant, ordering the debtor to pay 36,000 German Marks, statutory interest and specified legal costs. This judgment became final on 7 January 1997. 14. On 18 March 1997 the High Court (Viši sud) in Podgorica rejected the debtor’s appeal as having been lodged out of time. 15. On 16 April 1997 the Court of First Instance issued an enforcement order (rješenje o izvršenju) ordering the sale of the debtor’s flat by means of a public auction. 16. On 5 May 2000 the same court established the value of the flat at issue. 17. The public auction, scheduled for 1 September 2000, was cancelled on account of the judge’s absence. No further auctions have been scheduled thereafter. 18. On 31 October 2006 the Court of First Instance stayed the enforcement proceedings (prekida se postupak izvršenja) due to the debtor’s death. On 8 November 2006 this decision was posted on the applicant’s door, after a prior written notice (poslije pismenog obaviještenja rješenje pribijeno na vrata). 19. On 9 September 2009 the applicant wrote to the President of the Court of First Instance, urging that the decision at issue be enforced and asking that any relevant information in that regard be sent to him at his address in Skopje, “the former Yugoslav Republic of Macedonia”. 20. On 15 September 2009 the applicant was informed that the enforcement proceedings had been stayed on 31 October 2006. 21. On 25 September 2009 the applicant wrote again to the President of the Court of First Instance seeking that the enforcement proceedings be expedited. 22. On 28 September 2009 the applicant proposed that the enforcement proceedings be continued in respect of the debtor’s heirs. 23. On 13 October 2009 the Court of First Instance in Bar invited the applicant to provide the names and the addresses of the debtor’s heirs within three days, in default of which his request would be considered withdrawn. It was further specified that no appeal was allowed against this decision. 24. On 9 December 2009 the applicant appealed. He submitted that he did not know the names and the addresses of the debtor’s heirs, and that it was impossible for him to find this out, especially within three days. He further maintained that the court should have acted pursuant to section 32 of the Enforcement Act and should have found the debtor’s heirs, or, alternatively, should have appointed a temporary representative for them without delay (see paragraph 45 below). 25. On 18 December 2009 the Court of First Instance requested the Real Estate Office in Bar (Uprava za nekretnine, područna jedinica Bar) to provide a property certificate (list nepokretnosti) for the flat at issue. 26. On 28 December 2009 the Real Estate Office provided the requested certificate, which indicated that the new owners of the flat were B.N. and A.N., the registered address of the former being in Serbia. 27. On 21 January 2010 the Court of First Instance rendered a decision to continue the enforcement proceedings, designating B.N. and A.N. as the new debtors. On 3 February 2010 this decision was served on A.N. The delivery to B.N. failed as he appeared not to live at the provided address in Serbia. 28. On 15 April 2010 the Court of First Instance requested the relevant Police Directorate in Serbia to inform it if B.N. had residence there and, if so, at which address. 29. On 16 February 2011 the Ministry of Justice of Serbia informed the Ministry of Justice of Montenegro that B.N. had a permanent residence in Serbia, but that he actually lived in Montenegro. On 8 March 2011 this information was forwarded to the court in Bar. 30. On 13 June 2012 the court in Bar invited the applicant to pay 233.88 EUR “for publishing a notice (oglas) in the media, pursuant to section 94 paragraph 6 of the Enforcement Act” (see paragraph 50 below), in default of which the enforcement would be terminated (obustaviti). 31. On 4 July 2012 the applicant’s objection against the previous decision was rejected as inadmissible. It was specified that, pursuant to section 169 of the Enforcement Act 2011, a notice on sale was to be published in the newspapers (see paragraph 51 below). At the same time, the applicant was informed that on 11 October 2011 another interim measure prohibiting the sale of the flat at issue had been deleted from the register of the Real Estate Office, thus creating the conditions for these enforcement proceedings to be concluded (see paragraph 34 below). 32. There is no information in the case file that the notice on sale was published in the newspapers or that B.N. was served with the enforcement decision of 21 January 2010. The enforcement proceedings would appear to be still pending. 33. On 26 February 2004 the debtor passed away. 34. On an unspecified date in 1997 a private person X instituted civil proceedings against the debtor and another private person. On 7 April 1998 the court in Bar issued an interim measure prohibiting the debtor from selling the flat at issue and ordered that this measure be registered by the Real Estate Office in Bar until these proceedings were concluded. On 10 September 1999 the proceedings ended. On 11 October 2011 the interim measure was deleted, following a relevant order of the court in Bar to that effect. 35. On an unspecified date in 2008 a private person Y filed a compensation claim against A.N. and three other private persons. On 11 March 2009 these proceedings were registered in respect of the flat at issue by the Real Estate Office (zabilježba spora). On 23 October 2009 these proceedings ended by a court settlement of the parties. On 12 October 2011 the court in Bar ordered that the note on the proceedings be deleted from the register of the Real Estate Office. 36. On 24 November 2010 the court in Bar requested the Central Bank to calculate the interest rate applicable to the amounts of 34,891.30 EUR and EUR 104.85 starting from 25 March 2004. On 30 November 2010 the Central Bank informed the court in Bar that the requested amounts were EUR 52,411.59 and EUR 157.49, respectively. 37. There is no information in the case file as to when the applicant’s lawyer ceased to represent him save for the letter of 9 September 2009 in which the applicant asked the courts that all the relevant information be sent to him (see paragraph 19 above). 38. Article 149 of the Constitution provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted. 39. The Constitution entered into force on 22 October 2007. 40. Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted. 41. Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision. 42. The Act entered into force in November 2008. 43. Section 4 § 1 provided that enforcement proceedings were urgent. 44. Section 14 provided that the Civil Procedure Act would apply accordingly to the enforcement proceedings unless provided otherwise by this or another federal Act. 45. Section 32 provided that in cases where the enforcement proceedings were stayed due to the death of one of the parties the relevant court would inform thereof the heirs of that party, if their names and addresses were known, as well as the opposite party. If the names or addresses of the heirs were not known the court would, without a delay, appoint a temporary representative for them. 46. Sections 134-176, inter alia, set out details as regards enforcement by means of a public auction. 47. The Enforcement Procedure Act 2004 entered into force on 13 July 2004, thereby repealing the Enforcement Procedure Act 2000. In accordance with section 286, however, all enforcement proceedings instituted prior to 13 July 2004 were to be concluded pursuant to the Enforcement Procedure Act 2000. 48. This Act entered into force on 25 September 2011 and thereby repealed the Enforcement Procedure Act 2004. Section 292 § 1, in particular, provides that all enforcements (postupci izvršenja) would be terminated in accordance with this Act. 49. Sections 6 § 1 and 14 of this Act correspond, in substance, to sections 4 § 1 and 14 of the Enforcement Procedure Act 2000. 50. Section 94 sets out details as regards the sale of the debtor’s movable property. 51. Sections 154-184 set out details as regards the sale of real estate as well as regards enforcement by means of a public auction. In particular, section 169 provides, inter alia, that a notice on sale of a real estate shall be published in the media. 52. Section 211 provides that the proceedings shall be stayed (postupak se prekida) when one of the parties passes away. 53. Section 214 provides, inter alia, that proceedings which were stayed due to the death of one of the parties shall be continued when the heirs or an administrator of the estate (staralac zaostavštine) take over the proceedings or when the court invites them to do so upon a proposal of the other party to that effect. 54. Section 133 § 1 provides, inter alia, that when a party has a representative (punomoćnika), all court documents will be served on the representative. 55. Section 136 provides, inter alia, that a decision against which a separate appeal may be filed shall be delivered in person to a party or his/her representative. If a person who is to be served does not happen to be at the place where the delivery is to be performed, the bailiff shall find out when and where that person can be found and shall leave a written notice with one of the persons mentioned in section 137, requesting that he/she be present on a certain day and hour in his flat or office. If the bailiff does not find the person to be served even after this, he/she shall proceed in accordance with the provisions of section 137 of this Act and the delivery shall thus be considered as having been carried out. 56. Section 137 provides that if the person to whom a court document is to be delivered does not happen to be at home, the delivery shall be accomplished by serving the court documents on an adult member of his/her household, who must receive them. If such persons also happen not to be at home, the court documents shall be served on a neighbour, if he/she agrees. 57. Section 138 provides that if the person to be served, an adult member of the household, an authorised person or an employee of a State body or a legal entity refuses to receive the court documents without legal reason, the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question. The bailiff shall make a note on the delivery slip concerning the day, hour and reason for refusal of reception, as well as the place where he or she left the court documents, and thus the delivery shall be considered accomplished. 58. Section 142 § 1 provides that when a party to the proceedings or his/her representative changes his/her address during the proceedings they shall immediately inform the court thereof. 59. This Act entered into force on 10 July 2004. 60. This Act provides, under certain circumstances, the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje). 61. Section 10, in particular, provides that the president of the relevant court shall decide upon the request for review, which, pursuant to section 9, is to be submitted to the court before which the case is pending and must contain the name and the address of the party, the registration number of the case or other data on the basis of which it can be established to which case it refers, the data and circumstances indicating that the court is unjustifiably prolonging the proceedings, and the signature of the party. 62. Section 17 provides that if the judge notifies the president of the court that certain procedural measures will be undertaken no later than four months after the receipt of the request for review, the president of the court shall notify the party thereof and thus finalise the procedure upon the request for review. 63. Section 23 § 1 provides that if the president of the court acted pursuant to section 17 the party cannot file another request for review in the same case before the expiry of the period specified in the notification. 64. Pursuant to section 24 § 1 if the president of the court does not deliver a notification on the request for review to the party pursuant to section 17 the party may lodge an appeal. 65. Section 44 provides that this Act shall apply also to judicial proceedings initiated before the entry into force of this Act but after 3 March 2004. In the determination of a legal remedy for violations of the right to trial within a reasonable time, the violations of the right which occurred after 3 March 2004 shall be established. When establishing the violation of this right, the Court shall also take into consideration the length of the judicial proceedings prior to 3 March 2004. 66. This Act entered into force on 21 December 2007. 67. Between 21 December 2007, which is when the Right to a Trial within a Reasonable Time Act entered into force, and 3 September 2012, the courts in Montenegro considered more than 121 requests for review. The Court of First Instance in Cetinje submitted the data only for the period between 1 May 2011 and 15 May 2012, and the Court of First Instance in Žabljak for the period between January 2011 and June 2012. Also, the Court of First Instance in Danilovgrad and the Court of First Instance in Kolašin did not provide the exact number of the requests for review that had been dealt with by these two courts. All the other courts dealt with 121 requests for review in total. 68. In forty-six cases the courts issued notifications specifying the concrete actions that would be undertaken in each case within four months with a view of expediting the proceedings (see paragraph 62 above). In thirty cases of these forty-six the relevant actions were undertaken within the set time-limit (a main hearing concluded, a decision or a judgment rendered etc.). In fourteen cases the relevant actions were undertaken within periods ranging between 4 months and 12 months. In two cases the relevant action specified in the notification would not appear to have been undertaken even after a period of 12 months. 69. In thirty-three cases the requests for review were dismissed as unfounded. In twenty-one cases of these thirty-three the relevant domestic proceedings would appear to have been pending before the first-instance courts between 5 months, and 1 year and nine months at most. In one case the relevant civil proceedings in respect of which the request for review was dismissed as unfounded had already been pending for at least 4 years and 5 months before a first-instance court. In eleven cases it is unclear how long the relevant domestic proceedings had lasted. 70. It is unclear how the additional thirty-three requests for review had been dealt with. However, it would appear that in eighteen cases out of these thirty-three the relevant domestic proceedings ended soon thereafter. The status of the remaining fifteen proceedings is not known. 71. Lastly, in five cases the appellants were informed that the relevant decisions had been rendered in the meantime and in four cases the requests for review were withdrawn.

dev

001-86508

ENG

GBR

ADMISSIBILITY

WOOD v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Robin Wood, is a British national who was born in 1948 and lives in Cheshire. He was represented before the Court by Pierce Glynn, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 19 August 1999, leaving one child born in 1970. In April or May 2000 the applicant applied for widows’ benefits. On 4 May 2000 the applicant was informed that his claim had been disallowed as he was not a woman. By a letter of 12 June 2000 the benefits’ agency confirmed their decision and the lack of his right to an appeal. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

dev

001-77502

ENG

RUS

ADMISSIBILITY

IVANOV v. RUSSIA

Inadmissible

Christos Rozakis

The applicant, Mr Igor Mikhaylovich Ivanov, is a Russian national who was born in 1938 and lives in St. Petersburg. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 March 1993 the applicant initiated proceedings before the Kolpinskiy District Court of St. Petersburg against his former employer, a private company, for reinstatement and payment of salary for the period of unemployment. By judgment of 29 April 1997 the Kolpinskiy District Court reinstated the applicant and ordered that the employer should pay him arrears. By final judgment of 7 August 1997 the St. Petersburg City Court increased the amount of arrears to be paid to the applicant and upheld the remainder of the judgment. On 17 December 1997 the Presidium of the St. Petersburg City Court, by way of supervisory review, quashed the judgments of 29 April and 7 August 1997 in the part concerning payment of arrears. This issue was accordingly to be examined anew. The District Court received the case-file in January 1998 and fixed the first hearing for 7 April 1998 during which the applicant amended his claims. The following hearing, listed for 15 July 1998, was adjourned because the parties defaulted and the following hearing was thus scheduled for 10 September 1998, taking into consideration the summer vacation period. In September 1998 the applicant again amended his claims, now also seeking compensation for non-pecuniary damage. On 30 September 1998 the Kolpinskiy District Court, upon the applicant’s request, adjourned the proceedings and ordered an expert opinion. The proceedings were resumed in December 1998. Six hearings were fixed between 1 December 1998 and 5 April 1999. Of those one hearing was adjourned because the respondent defaulted and four hearings were adjourned in order to obtain additional evidence and an expert opinion. During hearings in May and June 1999 the applicant amended his claims. By judgment of 7 June 1999 the Kolpinskiy District Court dismissed the applicant’s claims. The judgment was quashed on appeal on 27 July 1999 and the case concerning the payment of arrears and non-pecuniary damage returned to the District Court for re-examination. The first hearing was fixed for 27 September 1999. The following three hearings listed between 27 September 1999 and 4 February 2000 were adjourned, two of them due to the respondent’s absence and one because the applicant was ill. On 7 February 2000 another presiding judge was assigned to the case. The following hearing, listed for 16 May 2000, was adjourned because the new judge participated in other unrelated proceedings. In June 2000 the District Court, upon the applicant’s request, stayed the proceedings and ordered an additional expert opinion. On 4 October 2000 the expert notified the court that the opinion had not been prepared because the fees for preparing such an opinion had not been paid. The District Court informed the applicant that he should bear the expenses of the expert work. In December 2000 the expert returned the case-file to the court as the applicant had not paid the fees. In January 2001 the applicant successfully asked the District Court to resume the proceedings. A hearing was fixed for 2 March 2001. By judgment of 23 March 2001 the Kolpinskiy District Court dismissed the applicant’s claims once again. On 31 May 2001 the St. Petersburg City Court quashed that judgment in the part concerning the compensation for non-pecuniary damage, remitted this matter for a fresh examination and upheld the remainder of the judgment. In June 2001 the case-file was returned to the District Court and a new presiding judge was assigned to the case. A hearing was fixed for 14 August 2001, however, it was adjourned due to the respondent’s absence. The hearing was thereafter scheduled for 2 November 2001. By judgment of 2 November 2001 the Kolpinskiy District Court of St. Petersburg awarded the applicant 500 Russian roubles as compensation for non-pecuniary damage. That judgment was upheld on appeal on 29 January 2002.

dev

001-103944

ENG

HUN

COMMITTEE

CASE OF LASZLO MOLNAR v. HUNGARY

Violation of Art. 6-1

András Sajó;Ireneu Cabral Barreto

4. The applicant was born in 1942 and lives in Budapest. 5. On 15 September 1989 the applicant brought an action against a private individual before the Pest Central District Court, seeking to recover the possession of some specific movable property. 6. After several hearings, a judgment was delivered on 19 November 1992, which was quashed by the Budapest Regional Court on 14 September 1993. 7. In the resumed proceedings several forensic expert opinions were obtained. Two hearings had to be rescheduled as the applicant and his representative failed to appear, despite having been duly summoned. On 3 June 2004 the District Court delivered a judgment. On 11 October 2004 the Budapest Regional Court remitted the case. 8. The District Court delivered a partial judgment on 12 April 2006, which was decided on appeal by the Regional Court on 22 March 2007. 9. In respect of the respondent's counterclaim, the first-instance court delivered a judgment on 7 July 2006 which was upheld by the Regional Court on 22 March 2007.

dev

001-110200

ENG

RUS

CHAMBER

CASE OF KOCHALIDZE v. RUSSIA

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

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

6. The applicant was born in 1972 and lives in Rostov-on-Don. 7. The applicant served in the military. By a judgment of 18 October 2002 the Military Court of the Vladikavkaz Garrison declared unlawful the refusal of the commander of military unit 66156 to pay the applicant additional monthly combat allowance, obliged the head of the finance department of the North Caucasus Military Circuit to allocate funds for such payment and recovered in the applicant’s favour the allowance arrears in the amount of 58,900 Russian roubles (RUB). By another judgment of 17 December 2002 the same court delivered a similar judgment and recovered additionally RUB 121,600 in favour of the applicant. 8. On 18 August 2005 the regional office of the Federal Treasury returned the writs of execution to the applicant on the ground that the military unit did not have an account there. The writs of execution were also returned by the main office of the Federal Treasury on 28 September 2005. In their letter of the same date the Federal Treasury suggested that the applicant submit the writs of execution to the bailiff service. It is not clear from the parties’ submissions whether the applicant has done so. 9. The judgments remain unenforced to date.

dev

001-107727

ENG

RUS

COMMITTEE

CASE OF REDNIKOV v. RUSSIA

Violation of Art. 6-1

Anatoly Kovler;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

4. The applicant was born in 1938 and lives in Moscow. 5. On 1 February 2001 the applicant brought proceedings against a private company for breach of his patent rights. 6. By a judgment of 10 November 2002 the Zamoskvoretskiy District Court of Moscow (“the District Court”) dismissed his claim. 7. On 28 November 2003 the Moscow City Court (“the appeal court”) upheld the above judgment on appeal. 8. On 4 November 2000 the applicant instituted another set of proceedings against two private companies for breach of his patent rights. 9. The first hearing was scheduled by the District Court for 4 April 2001. However, the first hearing and the next four hearings did not take place because the judge was involved in different proceedings or was on vacation, or due to the respondents’ failure to appear. In the meantime the court sent inquiries to various State agencies for information about the respondents’ place of registration. 10. At the hearing of 13 December 2001 the applicant requested to change the names of the respondents, and the court repeatedly sent inquiries for information about their place of incorporation. 11. The next two hearings were cancelled due to the respondent’s default in appearance and because of the judge’s involvement in different proceedings. 12. At the hearing of 8 April 2002, following lack of information about the respondents’ exact whereabouts, the court suggested that the applicant notify them himself based on the information available to him. 13. At the hearing of 23 May 2002 the applicant relinquished his claims against one of the respondents and asked the court to invite a third party to join the proceedings. 14. On 7 August 2002 the applicant motioned to replace the initial respondents with a new set of five companies and specified his claims. On 11 September 2002 he relinquished his claims against one of the respondents. 15. The next three hearings were cancelled as the judge was involved in different proceedings. 16. The hearing of 1 November 2002 was postponed to allow a respondent to study the case. 17. The hearing of 10 November 2002 did not take place as the court did not have information about due notification of the respondents. 18. The next three hearings took place as scheduled. 19. On 9 December 2002 the court accepted the applicant’s relinquishment of his claim against two respondents and severed his claims against two other respondents into a separate case to avoid delay in the proceedings. By a judgment of the same date the District Court dismissed his claims against the remaining respondent. 20. On 16 December 2002 the applicant filed preliminary grounds of appeal and specified that he would submit reasoned grounds of appeal upon receipt of the reasoned judgment. On the same day the District Court left the appeal without consideration for failure to substantiate it and suggested that the applicant remedy this defect until 30 December 2002. 21. The applicant submitted copies of his complaints concerning failure of the District Court to produce the final text of the judgment of 9 December 2002 to the Zamoskvoretskiy District prosecutor’s office of 14 August 2003, to the appeal court of 8 September 2003 and 30 September 2004 and to the Judicial Qualifications Board of 8 April 2004. According to the applicant, in May and June he came to see the judge in his case, inquiring about the date of filing of the final text of the judgment at the registry. 22. The applicant submitted a copy of the cover of the case file with a handwritten note by a member of the court’s registry according to which he had received a copy of the judgment on 23 June 2005. 23. On 29 June 2005 the applicant submitted reasoned grounds of appeal of the judgment of 9 December 2002. The heading of the document includes a mention that the final text of the judgment had been obtained by the claimant on 23 June 2005. 24. On 30 June 2005 the District Court returned the applicant’s appeal as submitted outside the procedural time-limit. This decision was set aside by the appeal court on 27 October 2005. The court did not give any reasons for its decision. 25. On 14 March 2006 the Moscow City Court upheld the judgment of 9 December 2002 on appeal. 26. Article 199 of the Code of Civil Procedure of Russia (in force since 14 November 2002) provides that drafting of the final reasoned text of the judgment may be postponed for no longer than five days after termination of the proceedings in the case.

dev

001-61141

ENG

SVK

CHAMBER

CASE OF BENACKOVA v. SLOVAKIA

Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

Nicolas Bratza

4. The applicant was born in in 1947 and lives in Bratislava. 5. On 3 May 1991 the applicant filed an action for damages with the Bratislava I District Court. She claimed compensation for a work-related accident. 6. On 9 September 1993 the District Court dismissed the action. The applicant appealed on 1 October 1993. 7. On 31 August 1994 the Bratislava City Court quashed the first instance judgment. 8. On 31 October 1996 the applicant extended her action in that she also claimed the protection of her right to protection of her reputation. 9. On 31 July 1998 the Bratislava I District Court ordered an expert opinion to be submitted. 10. The applicant filed a petition pursuant to Article 130 (3) of the Constitution in which she complained about the length of the proceedings. On 22 September 1999 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s constitutional right to have her case examined without undue delays. 11. On 18 December 2000 the Bratislava I District Court ordered an expert opinion. Subsequently the applicant unsuccessfully challenged the District Court judge. 12. On 12 August 2002 the District Court decided on the expert’s fees. The applicant appealed against this decision. On 6 September 2002 she submitted to the court her comments on the expert’s conclusions. 13. On 4 March 2003 the District Court invited the parties to submit further information. The proceedings are pending. 14. Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 15. Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or a corporation claiming that their rights have been violated. 16. 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 a petitioner’s 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 were violated. 17. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals 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 case that it founds 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 right was 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, 22 October 2002). 18. According to an explanatory letter by the President of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. The letter further states that where the Constitutional Court earlier found a violation of Article 48 (2) of the Constitution, a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of the Constitutional Court. However, when deciding on such cases the Constitutional Court will, as a rule, take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of Article 48 (2) of the Constitution.

dev

001-69652

ENG

POL

ADMISSIBILITY

KAWALKO v. POLAND

Inadmissible

Nicolas Bratza

The applicant, Bogusław Kawałko, is a Polish national, who was born in 1950 and lives in Wilczyce, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 February 1991 the applicant filed an application for dissolution of joint property with the Legnica District Court (Sąd Rejonowy). The proceedings were terminated by the decision of the Legnica District Court of 3 February 2005, after the entry into force of the 2004 Act. On 10 December 1998, the date on which the application was lodged with the Court, they were pending before the Legnica District Court. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: “1. Parties Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

dev

001-88758

ENG

HUN

CHAMBER

CASE OF ECOPREVENT KFT. v. HUNGARY

Violation of Article 6 - Right to a fair trial

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

4. The applicant is a limited liability company, founded in 2006, with its seat in Budapest. 5. On 10 August 1992 its predecessor (see paragraph 1 above) requested the Budapest Regional Court to issue an order for payment against another company. 6. The court ordered the respondent to make a payment of 61,369 Hungarian forints (approximately 250 euros (EUR)). Since the latter contested the order, on 5 April 1993 the proceedings became litigation. 7. After having held three hearings, the Regional Court found for the plaintiff in April 1995. On appeal, the Supreme Court quashed this decision in October 1996 and remitted the case to the first-instance court. 8. Between 6 February 1998 and 13 July 2003 the proceedings were stayed, pending the plaintiff’s identifying the respondent’s legal successor. After the latter had finally entered the proceedings, a procedural dispute evolved, at the end of which, apparently in February 2006, the Regional Court noted that, since the original respondent had ceased to exist on 1 April 1993, the proceedings had been interrupted on that date. Thus, all the actions of the parties and all the decisions delivered by the courts after that date were invalid. 9. Eventually, in November 2006 the Regional Court ordered the resumption of the proceedings and transferred the case to the Pest Central District Court, which had acquired jurisdiction to hear the case due to an amendment to the Code of Civil Procedure. 10. On 20 February 2007 the District Court allowed the applicant company to replace the original plaintiff. 11. On 5 December 2007 the District Court found for the applicant company. None of the parties appealed and the decision became final on 22 January 2008.

dev

001-78726

ENG

LTU

ADMISSIBILITY

SCIUKINA v. LITHUANIA

Inadmissible

The applicant, Ms Irina Ščiukina, is a Lithuanian national who was born in 1958 and lives in Klaipėda. She was represented before the Court by Mr L. Zubanovas, a lawyer practising in Klaipėda. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. On 19 April 1999 the applicant’s dog, a pit-bull terrier, attacked an 11 year old child, severely biting and injuring him. The prosecution instituted criminal proceedings under Article 115 of the Criminal Code (causing medium bodily harm by negligence), which were subsequently discontinued, as no evidence of a crime was disclosed. Nevertheless, in its decision of 15 July 1999, the police found the applicant guilty of an administrative offence. The decision stated that the applicant’s dog had bitten the child, and thus the applicant was liable under Article 110 § 2 of the Code of Administrative Offences (a breach of the pet-keeping rules, causing an injury). She was fined LTL 300 (about EUR 90). The applicant did not dispute that decision, and paid the fine. On 15 November 2000 the prosecution re-opened the criminal proceedings against the applicant. On 22 November 2000 a fresh medical expert examination confirmed the seriousness of the injuries caused to the boy, finding that he would need plastic surgery. On 14 December 2000 the applicant was charged with causing medium bodily harm by negligence (Article 115 of the Criminal Code) and remanded on bail, with a written obligation not to leave her place of residence. The applicant did not appeal against this restriction. On 19 March 2001 the Klaipėda City District Court acquitted the applicant. It was established that the applicant was not guilty of a criminal offence but rather of an administrative violation for which she had already been punished. On 29 May 2001 the Klaipėda Regional Court reversed this judgment, finding the applicant guilty. The appellate court noted the gravity of the injuries sustained by the boy (bite wounds on his nose, forehead, cheeks, arm and leg). The court also found that the applicant’s behaviour had been negligent, in that she had walked her dog without a muzzle, although the animal was of a dangerous breed. In view of these factors, the court concluded that the applicant’s acts must attract criminal rather than administrative responsibility. The applicant was sentenced to nine months’ imprisonment, but the sentence was rescinded by virtue of an amnesty act. The applicant lodged a cassation appeal. On 13 November 2001 the Supreme Court upheld the applicant’s conviction. It established that the applicant had been criminally liable for having caused medium bodily harm by negligence. The Supreme Court noted that in cases where the same acts attracted both criminal and administrative liability, the nature of the offence was a criterion determining which procedure ought to be applied. In particular, if the nature of the act made it punishable under the criminal law, the person should be held liable under criminal law. If the nature of the offence was not such as to attract criminal liability, a person would be held liable under the administrative law. The Supreme Court went on to say: “It was established that the applicant had caused medium bodily harm by negligence, therefore, she has been rightly convicted under Article 115 of the Criminal Code. The fact that [the applicant] has been punished for the same acts by way of an administrative procedure is not a valid ground to discontinue the criminal proceedings, since such a ground is not foreseen by the Code of Criminal Procedure. However, a person cannot be punished twice for the same offence, because it is contrary to Article 31 § 5 of the Constitution and Article 3 § 4 of the Code of Criminal Procedure. Since [the applicant] has been reasonably convicted under Article 115 of the Criminal Code, the issue of the lawfulness of the administrative decision to fine [the applicant] can be reconsidered in accordance with the [Code of Administrative Offences].” Article 31 of the Constitution of the Republic of Lithuania states as follows: “...Punishment may be imposed or applied on the grounds established by law. No one may be punished for the same criminal offence twice. ...” Article 3 of the Criminal Code (as then in force) stipulated: “A person shall be held liable only when the act committed is forbidden by a criminal statute which came into force before the commission of the offence ... No one shall be punished for the same criminal act twice ...” The then Article 115 of the Criminal Code provided for criminal liability for causing serious or medium bodily harm by negligence. Article 110 of the Code of Administrative Offences (as then in force) provided: “Any person who breaches pet-keeping rules - approved by the Municipal Council - shall be punished by a warning or fine of up to 100 litai. The same act, committed repeatedly or when causing damage to the health or property of others - shall be punished by a fine between 100 to 3,000 litai.” The then Article 291 of the Code of Administrative Offences provided for a right of appeal against a decision to impose an administrative penalty. The then Article 301 of that Code stipulated: “Where a decision finding a person liable for an administrative offence has been quashed, the [fine] paid shall be reimbursed ... and other restrictions relating to the [administrative penalty] shall be repealed.”

dev

001-92855

ENG

AUT

CHAMBER

CASE OF STROBEL v. AUSTRIA

Violation of Article 6 - Right to a fair trial

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

5. The applicant is a university professor of ancient history and archeology who was appointed at Klagenfurt University in 1998. Under the terms of appointment he was entitled to reimbursement of the removal costs and to a household allowance. In April 2001 the sum of 5,699.21 euros (EUR) was paid to the applicant. 6. On 6 July 2001 the applicant claimed reimbursement of the remaining removal costs in the sum of EUR 4,684.40 and payment of the household allowance in the sum of EUR 5,443.70, plus 4.5% interest since August 1999. 7. The Dean of Klagenfurt University dismissed the applicant’s claim on 16 January 2002. 8. The applicant appealed on 29 January 2002 to the Ministry of Education, Science and Culture (“the Ministry”). 9. The Ministry did not decide within the statutory six-month time-limit laid down in section 73 § 1 of the General Administrative Proceedings Act. In August 2002 the applicant brought court proceedings relating to the claims at issue. A conditional settlement was reached but was revoked by the applicant in January 2003. The applicant’s action was dismissed in February 2003. 10. Meanwhile, on 18 November 2002, the applicant complained to the Administrative Court under Article 132 of the Federal Constitution about the administration’s failure to determine his claim. On 29 November 2002 the Administrative Court ordered the Ministry of Education to issue a decision within three months. 11. On 3 March 2003 the Ministry dismissed the applicant’s appeal. 12. The applicant lodged a complaint with the Administrative Court on 16 April 2003. The Ministry filed observations in reply on 24 June 2003. 13. On 24 February 2006 the Administrative Court quashed the Ministry’s decision as being unlawful. 14. By decision of 25 July 2006 the Ministry referred the case back to the Dean of Klagenfurt University for a new decision. Meanwhile on 8 May 2006 the applicant supplemented his claims, apparently requesting reimbursement of costs incurred for travelling between Klagenfurt and his former place of residence. 15. On 16 October 2006 the applicant was summoned to a hearing and two days later the sum of EUR 4,000 was paid to the applicant with a view to reaching a settlement. 16. The hearing took place on 20 November 2006. According to the minutes the hearing served the purpose of establishing the plausibility of the applicant’s claims as submitted on 6 July 2001 and supplemented on 8 May 2006 and to determine their amount with the participation of the applicant. It is then noted that, in the light of the explanations given, the costs and interest claimed seemed plausible. At the close of the hearing the parties concluded a friendly settlement with the following terms: “(a) Klagenfurt University thus declares its willingness to transfer, in addition to the payment already made of EUR 4,000 and the regulated transport costs in the amount of EUR 5,699.21, the lump-sum of EUR 10,000 within 14 days to the account of Professor Strobel. (b) Professor Strobel, for his part, withdraws all requests in connection with the proceedings at issue. As a result, the demands and claims asserted in the present proceedings are completely settled and complied with.”

dev

001-94562

ENG

RUS

CHAMBER

CASE OF TOPORKOV v. RUSSIA

Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

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

7. The applicant was born in 1968 and is serving a prison sentence in Sorda, in the Kirov region. 8. On 9 March 1999 senior police officer U. sent his subordinates, including officers M. and Sh., to arrest the applicant at his flat and take him to the Regional Department of the Interior (УВД Кировской области) for questioning with regard to several cases of theft. According to the applicant, the police officers put him in the back seat of the car, where they started beating him to make him confess to the thefts until he almost lost consciousness. At the police station he was handcuffed and stripped naked in the presence of the police officers and Ms B., an investigator. One of the police officers pulled a knitted hat down over his eyes. Then they pinned him to the table and threatened to rape him with a rubber truncheon. 9. In the evening of the same day the applicant was taken to the Kirov temporary detention facility (ИВС г. Кирова), where he was held for two days. 10. Following the prosecutor’s refusal to authorise the applicant’s detention pending investigation, the applicant was released on 12 March 1999 on a written undertaking that he would not leave town. 11. On 15 March 1999 the applicant was examined by a general practitioner and a surgeon at Severnaya Hospital in Kirov. The applicant complained to the doctors that he had been beaten up by police officers and was experiencing pain in the lumbar region. The excerpt from the applicant’s medical file read as follows: “15 March 1999. On 10 March 1999 [the applicant] was beaten up at the police station. Since then [he] has been bothered by pain in the right lumbar and subcostal region. No dysuria. Satisfactory general condition. Blood pressure measurement 120/80 mmHg. Clear heart beat. Vesicular breathing. Soft abdomen, moderate pain in the right subcostal region. Painful muscle palpation in the right lumbar region. Diagnosis: contusion (ушиб) in the lumbar region?” 12. On 27 April 1999 investigator B. summoned the applicant for questioning in connection with a case of robbery. The applicant denied involvement in the robbery. Despite a refusal by the prosecutor to place the applicant in custody, he was allegedly detained at the police station, where he spent the night sitting on a chair handcuffed to a radiator. 13. After the applicant had been identified by a witness as one of the alleged perpetrators, the prosecutor authorised his detention pending investigation on 28 April 1999. 14. On 29 April 1999 the applicant appointed Ms O., a lawyer, to represent him in the criminal proceedings against him. 15. On an unspecified date the applicant made complaints of ill-treatment to the Kirov Town Prosecutor’s Office. 16. On 21 June 1999 the assistant prosecutor of Kirov Town refused to institute criminal proceedings against the police officers. The assistant prosecutor based her findings on statements made by the police officers and Investigator B., who denied the applicant’s allegations, and on the applicant’s medical file. In particular, the assistant prosecutor stated as follows: “...On 10 June 1999 the Kirov Town Prosecutor’s Office received a complaint by [the applicant]...in which he alleges that officers Sh. and B. of the Internal Affairs Department used unlawful methods of investigation. In particular, they subjected him to physical and mental pressure to make him confess to the offences he was charged with... [The applicant] contests his guilt and requests to be released from custody. ...Furthermore [the applicant] indicates that on 10 March 1999 he was unlawfully detained... On the way to the [police station] he was beaten, the beatings continued upon arrival, the officers bullied and humiliated him ... Investigator B. was also present ... Officer M. submits that he participated in [the applicant’s] arrest... On the way to the [police station] there was no need for them to apply physical force. [The applicant] had voluntarily agreed to come [to the police station] with the officers. At [the police station] [M.] talked to [the applicant] briefly until Investigator B. was available [to question him]. However, [M.] did not apply physical or mental pressure [to the applicant], he did not humiliate or debase him as he was not personally or professionally interested in finding [the applicant] guilty because [M.] did not know the applicant and the cases he dealt with did not involve [him]. He was only assigned to conduct a search at [the applicant’s] flat. [Senior officer] U. confirmed that he had sent his subordinates, including M., to arrest [the applicant], but had not talked to him himself. According to Investigator B., she was in charge of the criminal case involving [the applicant] ... On 9 March 1999 she ordered his arrest ... He was brought [to the police station] by police officers ... She did not see any injuries on him. Nor did he complain to her that he had been beaten on the way to the [police station]. In her presence none of the police officers of the department had pressured [the applicant physically or mentally] ... The prosecutor refused to authorise his detention and [the applicant] was released on a written undertaking not to leave the town ... According to a report from the temporary detention unit where [the applicant] was held from 9 to 11 March 1999, he did not request medical assistance and did not have any bodily injuries ... An excerpt from the [the applicant’s] medical file states that on 15 March 1999 he consulted a general practitioner complaining that he had been beaten at [the police station] on 10 March 1999... However, it is impossible to establish beyond reasonable doubt that the applicant’s injuries were caused by the police officers. On 10 March 1999 the applicant was held at the temporary detention unit ... and did not ask for medical assistance. Furthermore, he was released from the temporary detention unit on 11 March 1999, but he did not consult [the doctors] until 15 March 1999, that is, four days later. During that period he could have been injured in different circumstances ... The applicant’s allegations are not consistent with the findings of the inquiry. This indicates that the applicant is trying to mislead the prosecutor’s office and the court with regard to his guilt.” 17. The prosecutor also dismissed as unfounded the applicant’s complaint that he was handcuffed on the night of 27 April 1999. 18. In September 1999 the Oktyabrskiy District Court in Kirov opened the trial. The applicant maintained his innocence and alleged, inter alia, that the police officers had used unlawful investigation methods to make him and other defendants confess to the crimes, which resulted in the false testimonies against him given by other defendants. 19. On 23 November 1999 the District Court found the applicant guilty of robbery and theft and sentenced him to twelve years’ imprisonment. The court dismissed the applicant’s allegations that he had been subjected to beatings and unlawful investigation methods while in police custody, stating as follows: “The court cannot accept the allegations made by defendants K., O. and [the applicant] that police officers subjected them to psychological or physical pressure during the investigation. As pointed out earlier, the prosecutor’s office conducted thorough inquiries in respect of the actions of the police officers, and the [defendants’] allegations proved to be unfounded .... Furthermore, the court questioned officers Sh., U., M. and [investigator] B., who had been involved in the criminal investigation. They testified to the court that they had not subjected the defendants to any unlawful treatment. The Court has no reason to doubt their testimonies, given that they... had been warned of their criminal liability for perjury or refusal to testify.” 20. The applicant appealed against his conviction, alleging, in particular, that the police officers had subjected him to ill-treatment. 21. On 22 February 2000 the Kirov Regional Court upheld the applicant’s conviction on appeal. The court did not make a specific ruling on the applicant’s allegations of ill-treatment. 22. On 17 August 2000 the applicant lodged a complaint about his conviction and ill-treatment with the Kirov Regional Prosecutor. On an unspecified date he forwarded a similar complaint to the General Prosecutor of the Russian Federation. 23. On 30 August 2000 the First Deputy Regional Prosecutor responded that the applicant’s conviction was in compliance with law. As regards the applicant’s complaint of the ill-treatment, the prosecutor noted as follows: “The [applicant’s] allegations that he had been subjected to physical and psychological pressure lack any substantiation. The Kirov Town Prosecutor’s Office had earlier conducted an inquiry and refused to open a criminal investigation.” 24. On 31 September 2001 the General Prosecutor’s Office informed the applicant that they did not discern any irregularities in the way the courts had determined the criminal charges against him. Nor had “any unlawful methods of investigation” been employed against the applicant. 25. A prosecutor, investigator or judge is under an obligation to accept for review any complaint concerning a criminal offence and to decide whether a criminal investigation is necessary. They may request relevant material or explanations (Article 109 of the Russian Code of Criminal Procedure in force until 1 July 2002, the “old CCrP”). 26. Where there are sufficient grounds to believe that a crime has been committed, the prosecutor, the investigator or the judge initiates a criminal investigation (Article 112 of the old CCrP). 27. The complainant may appeal against the refusal to open a criminal investigation to a prosecutor or a court (Article 113 of the old CCrP).

dev

001-98445

ENG

MDA

CHAMBER

CASE OF CIUBOTARU v. MOLDOVA

Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 8;Non-pecuniary damage - award

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

5. The applicant was born in 1952 and lives in Chişinău. He is a writer and a professor of French. 6. The applicant's parents, Dumitru Ciubotaru and the late Sofia Caraiman were born in 1927 and 1928 respectively, in Bălţi, province of Bessarabia, Romania. Their Romanian civil status documents did not contain any information concerning their ethnic identity. In their marriage certificate issued by the Soviet authorities in 1949, the entry for ethnicity was left blank. However, the applicant's birth certificate issued by the Soviet authorities in 1952 recorded his parents as ethnic Moldovans. On the applicant's mother's birth certificate issued by the Soviet authorities in 1965 the ethnicity was also left blank. Later, the applicant's parents were recorded as ethnic Moldovans on their Soviet identity cards issued in 1976 and 1979, in accordance with applications completed and signed by them in which Moldovan ethnicity was indicated. On his Soviet identity card the applicant was also indicated as an ethnic Moldovan. 7. In 2002 the applicant applied to the Moldovan authorities to have his old Soviet identity card replaced by a Moldovan identity card. On the application form he wrote “Romanian” under ethnicity. However, he was told that his application would not be accepted unless Moldovan ethnicity was indicated on it. The applicant complied. 8. Shortly thereafter the applicant wrote to the local civil registration authority and requested, inter alia, that his ethnicity entry be changed from Moldovan to Romanian. In an answer dated 11 February 2003 the applicant was informed that since his parents were not recorded as ethnic Romanians in their birth and marriage certificates, it was impossible for him to be recorded as an ethnic Romanian. 9. On an unspecified date the applicant wrote to the central civil registration authority and again requested that his ethnic identity entry be changed from Moldovan to Romanian. In an answer of 2 July 2004 he was informed that Romanian ethnicity had not been indicated in his parents' documents and that, therefore, he could not claim such an ethnic identity. He was advised to search the National Archives for traces of Romanian origin of his grandparents and other ancestors. The applicant wrote numerous complaints to the Prime Minister, the President of the country and other officials, but to no avail. 10. On 26 July 2004 the applicant initiated proceedings against the State authority responsible for civil registration and identity papers and requested, inter alia, that his ethnicity entry and that of his parents be changed to Romanian in the State Population Registry database and in his identity papers. He argued that he did not consider himself to be an ethnic Moldovan and that it was contrary to his right to freedom of conscience and to his personal dignity to be considered part of an ethnic group which he believed to be an artificial creation of the Stalinist regime. 11. On 15 November 2004 the Rascani District Court dismissed the applicant's action on the ground that he had failed to prove that his parents were of Romanian ethnic identity as no such identity had been recorded in their identity papers. The applicant appealed and relied, inter alia, on the provisions of the Law on National Minorities (see paragraph 15 below) and on Article 8 of the Convention. 12. On 15 December 2004 the Chişinău Court of Appeal dismissed the applicant's appeal on the same grounds, stating that the applicant had failed to prove that his parents were ethnic Romanians. The applicant lodged an appeal on points of law with the Supreme Court of Justice. 13. On 6 April 2005 the Supreme Court of Justice dismissed the applicant's appeal on points of law and pointed out that according to section 68 of the Law on Documents pertaining to Civil Status (see paragraph 16 below) it was impossible to change his parents' ethnic identity to Romanian because in none of their identity papers had Romanian ethnicity been indicated. 14. The relevant provision of the Constitution of the Republic of Moldova reads: “... (2) The State recognises and guarantees to all the citizens the right to preserve, develop and express their ethnic, cultural, linguistic and religious identity.” 15. Law no. 382 of 19 July 2001 on the Rights of Persons belonging to National Minorities, in so far as relevant, reads: “Within the meaning of the present law, persons belonging to national minorities shall be all persons who live on the territory of the Republic of Moldova, who are its citizens, who have ethnic, linguistic, cultural and religious particularities which make them distinguishable from the majority of the population – the Moldovans – and who consider themselves as having a different ethnic origin.” “Any person belonging to a national minority shall have the right to choose freely whether or not he or she belongs to that minority. Such a choice or the exercise of rights related thereto shall not put the person in a disadvantageous situation.” 16. Law no. 100 of 26 April 2001 on Documents pertaining to Civil Status, in so far as relevant, reads: “The following information shall be indicated in a birth certificate: (a) personal numeric code; (b) the surname, given name, date and place of birth of the child; (c) the surnames, the given names and the ethnic origin of the parents; (d) the date of issue of the birth certificate and its number; (e) the issuing authority of the birth certificate; ...” “(1) Applications for modification and rectification of documents pertaining to civil status shall be lodged with the Civil Status Office for the applicant's place of residence. (2) The Civil Status Office shall uphold an application for modification and rectification of documents pertaining to civil status if: (a) the document pertaining to civil status contains errors, blank sections, abbreviations or spelling mistakes, or if it lacks data; or (b) the rules concerning the creation of documents pertaining to civil status have been breached; or (c) the applicant possesses an official document proving a change of gender.” “It shall be impossible to rectify the ethnic identity of one's parents in their children's birth certificates, on the basis of identity papers of grandparents or other ascendants, if the parents' civil status documents do not contain information concerning the requested ethnic identity.” 17. Government Decision no. 333 of 18 March 2002 lists the information which must be included in the personal entry of each individual in the State Population Registry database. It provides, inter alia, that information such as blood group, colour of eyes, height, studies, ethnic identity and a specimen of signature have to be indicated in respect of every citizen. No information about an individual's religion is required. 18. During Romanian rule between the two World Wars no ethnic data were collected or recorded by the State and the identity papers issued by the Romanian authorities did not contain any information concerning the bearer's ethnic identity. 19. After the territory of Moldova became part of the Soviet Union, the Soviet authorities recorded and indicated in each individual's identity papers his or her ethnic identity. The ethnic identity was determined on the basis of the individual's parents' ethnic identities. If the parents had different ethnic identities, the individual had to opt for one of them when receiving his first identity card at the age of sixteen. There was no possibility of subsequently changing one's ethnic identity in identity papers or in the civil records. The ethnic identity of the representatives of the main ethnic group of the MSSR was normally registered as Moldovan. Only in very few cases was it registered as Romanian and it is not clear what criteria were adopted for such a distinction. 20. The Soviet practice of collecting and recording ethnic data was perpetuated by the Moldovan authorities after independence, with the difference that no information concerning ethnic origin was inserted in the new Moldovan identity cards. Information about ethnic identity is recorded in each individual's personal entry in the State Population Registry database (see paragraph 17 above) and does not appear on any identity papers issued to individuals or on birth, marriage, divorce or death certificates. It only appears on the birth certificates of an individual's children under “parents”. Information concerning individuals' ethnic identity also appears in criminal judgments and in various documents issued by the prosecuting authorities where the ethnic identity of the participants in criminal proceedings, such as defendants, victims and witnesses, is mentioned. It also appears in the old Soviet passports which are still valid in Moldova and which are usually used by persons with very limited financial resources. 21. As in the Soviet Union, an individual's ethnic identity is recorded by the Moldovan authorities on the basis of the ethnic identities of his or her parents or the identity of one parent if they differ. When applying for identity papers, each individual is requested to complete a form with various personal details such as height, colour of eyes, blood group, mother tongue, ethnic identity and others. In practice, applications are rejected if the ethnic identity indicated in the form by the applicant is not based on that of his or her parents. It is impossible under Moldovan law to change one's ethnic identity without changing the ethnic identity of one's parents and it is impossible to change the ethnic identity of one's parents on the basis of entries in the identity papers of one's grandparents (see paragraph 16 above). 22. The Government submitted a domestic court judgment dating from June 2006 in the case of Caragheorghi where a person had succeeded in having his ethnic identity changed from Gagauz to Greek. Neither of his parents were registered as ethnic Greeks; however, the court accepted evidence concerning one of his ancestors, born in 1822, who was a Greek from the Ottoman Empire. 23. According to a press release of the National Bureau of Statistics of the Republic of Moldova, according to the latest census conducted in 2004, the country had the following ethnic composition: 75.8% Moldovan, 8.4% Ukrainian, 5.9% Russian, 4.4% Gagauz, 2.2% Romanian, 1.9% Bulgarian and 0.1% other ethnic origins. 24. The relevant provisions of the Framework Convention for the Protection of National Minorities of 1995, which entered into force in respect of Moldova on 1 February 1998, provide as follows: “Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.” 25. The relevant part of the document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE/OSCE of 1990 reads as follows: “Persons belonging to national minorities have the right freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.”

dev

001-83783

ENG

UKR

ADMISSIBILITY

DUDNIK AND OTHERS v. UKRAINE

Inadmissible

Peer Lorenzen

The first applicant, Mr Leonid Nikolayevich Dudnik, was born in 1946. The second applicant, Mr Vladimir Rabinovich, was born in 1939. The third applicant, Mr Vladimir Dobrov, was born in 1942. All three applicants are Ukrainian nationals. The first applicant lives in Tel Aviv – Yafo, the other two live in Bat-Yam, Israel. They were represented before the Court by Mr A. L. Reyzenson, who lives in Bat Yam. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants had been receiving their old age pension at the time when they left Ukraine for permanent residence in Israel. Mr Rabinovich left on 23 September 1999, Mr Dobrov – on 24 December 2000 and Mr Dudnik – on 20 September 2001. Before their departures, they had been paid, upon their written requests, their pensions for six months in advance with consecutive termination of such payments in accordance with Article 92 of the Law on Pensions. In January and February 2005 the applicants wrote separate but similar complaints about the termination of their pension payments to the Constitutional Court of Ukraine. The latter forwarded them to the Pension Fund of Ukraine. By letter of 2 February 2005 to Mr Dudnik and by letters of 1 March 2005 to Messrs Rabinovich and Dobrov, the Pension Fund of Ukraine informed the applicants that the old age pensions could be paid to the citizens who resided permanently abroad only if there was a relevant international agreement with the particular State. In absence of such agreement with the State of Israel, the payment of pensions to the applicants could not be renewed. The Fund further informed that the Ministry of Labour of Ukraine was in process of drafting such an agreement. The relevant domestic law is summarised in the admissibility decision of Myroshnychenko v. Ukraine (no. 10205/04, 3 April 2007).

dev

001-80075

ENG

BGR

CHAMBER

CASE OF IVANOVA v. BULGARIA

Violation of Art. 9;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

Peer Lorenzen

7. In February 1994 the Persons and Family Act was amended to require the registration with the Council of Ministers of non-profit organisations which had religious or related activities. Seventy-eight requests for registration were submitted, but only twenty-three organisations were registered. Those turned down were primarily Protestant groups. 8. Denial of legal status made it impossible for those organisations to hire public lecture halls or sign contracts in the name of the organisation. The unregistered organisations were unable to open bank accounts or publish journals or newspapers in the name of the organisation and were denied certain tax advantages. 9. Among the organisations whose registration was turned down was “Word of Life”, a Christian Evangelical group that had become active in Bulgaria in the early 1990s. 10. As a result of the authorities' refusal to register Word of Life, the religious organisation began clandestine activities. Meetings were periodically thwarted by the police followed by media propaganda against the organisation and its members. 11. On 20 June 1994, acting on an order from the Sofia's Prosecutor's Office, the police closed a hall used by Word of Life in Sofia and prevented members from using it. 12. On 22 June 1994 a Swedish citizen was expelled from Bulgaria because of his participation in a Word of Life course (see Lilja v. Bulgaria (dec.), no. 41574/98, 20 November 2003). 13. On 23 June 1994 a force of around thirty policemen prevented members of Word of Life from attending a meeting at a hall, because it had purportedly been cancelled. 14. On 23 February 1995 the police raided private homes in the town of Veliko Turnovo and a conference hall in the Hotel Etur. They confiscated religious literature, audio tapes and video cassettes, which they displayed at a press conference the next day. No charges were subsequently brought against any members of Word of Life. 15. On 20 July and 27 September 1995 the police raided two gatherings of Word of Life followers in private homes. Religious literature was confiscated and the hosts were required to declare in writing that they would no longer organise religious gatherings in their homes. 16. Throughout 1994 and 1995 the local Ruse media reported regularly on “unlawful” gatherings and religious activities by Word of Life followers. The media campaign intensified, with the national press joining in, during the summer and autumn of 1995. Press coverage was focused on the River Shipbuilding and Navigation School (Техникум по речно корабостроене и корабоплаване – “the School”) in Ruse because several of the non-academic staff were allegedly followers of Word of Life. The media also waged a personal campaign against some of those individuals by naming and condemning them as followers of the religious organisation. It called for their dismissal and named the applicant as one of the individuals whose employment should be terminated (see, for example, paragraph 22 below). 17. As a direct result, the Regional Prosecutor's Office and the National Security Service initiated inquiries into the religious activities of the School's staff members. 18. On 18 September 1995 the Regional Prosecutor's Office, in summarising the findings of the National Security Service, found that there were insufficient grounds for opening a preliminary investigation. At the same time it stated that, inter alia, the activities at the School were “not free of criminal culpability”, and that they were in contravention of the Religious Denominations Act and “probably” the relevant education Acts and regulations. Moreover, the allegedly “unlawful” religious activities were considered to have been carried out with the tacit approval of its principal. 19. Soon thereafter, the Regional Governor (областният управител) and a local member of parliament (“the MP”) called for radical measures to be taken to curb the alleged religious activities at the School and to dismiss the principal. They made public threats that, if such measures were not taken, they would petition the Ministry of Education, Science and Technology (“the Ministry”) to dismiss the Chief Educational Inspector for Ruse (“the Educational Inspector”). 20. On 23 October 1995 the principal of the School was dismissed by the Ministry. The dismissal order directly referred to the negative media coverage and the findings of the Regional Prosecutor's Office and accused her of tolerating the activities of Word of Life at the School to the detriment of its staff and pupils. It also suggested that the principal should have dismissed those members of staff who were Word of Life followers. It is unclear whether the principal appealed against her dismissal. 21. A new principal was appointed soon thereafter. 22. In a broadcast on the Hristo Botev radio station, aired on 7 December 1995, the MP stressed that there were still members of Word of Life working in the School, such as the swimming pool manager (the post occupied by the applicant), and inferred from this that the Ministry had not conclusively resolved the matter with the dismissal of the former principal. 23. The applicant was a mechanical engineer and had a second university degree in pedagogical sciences. She had been involved in the religious activities of Word of Life since 1994. 24. On 14 October 1994 the applicant was appointed by the School to the post of “mechanic” at its swimming pool on a temporary employment contract until 23 February 1995. 25. On an unspecified date, the Ministry approved a new roster of posts (щатно разписание) for the School effective as of 1 January 1995, which provided for the post of “swimming pool manager” with a requirement for the holder of the post to have completed a course of secondary education. By a further amendment of 1 April 1995 the holder of the post was required to have a higher-education qualification. 26. On 6 April 1995 the applicant was promoted to the post of “swimming pool manager” and concluded a temporary employment contract with a term up to 31 August 1995. 27. On 31 August 1995 the applicant's temporary employment contract was extended until 31 August 1996. 28. On 20 September 1995 the applicant concluded an employment contract of indefinite duration, which provided for her appointment to the post of “swimming pool manager” as of 1 July 1995. Her job description indicated that her responsibilities included, inter alia, managing and supervising the staff of the swimming pool, organising their work schedules, monitoring the regular accounting of the proceeds from the swimming pool and organising the swimming lessons. The job description did not expressly refer to any education or professional qualification requirements for the post. The applicant's basic salary was set at 4,992 old Bulgarian levs (approximately 111 Deutsche marks (DEM)) with a 16% bonus for length of service. 29. On an unspecified date the Ministry approved a new roster of posts for the School effective as of 1 October 1995. It provided for the post of “swimming pool manager” with a requirement that the holder of the post have a higher-education qualification. 30. On 23 October 1995 the principal of the School was dismissed and a new one was appointed soon thereafter. 31. On 2 November 1995 the applicant was summoned to a meeting with the Educational Inspector and his deputy. Another member of staff, Mrs M., was also summoned to the meeting, which took place on the premises of the School. At the meeting, the inspectors asked for their resignations as a means of easing public tensions. The applicant contended, although this was disputed by the Government, that the inspectors had threatened them that if they did not resign of their own accord or did not renounce their faith, they would be dismissed on disciplinary grounds. The inspectors claimed that irrespective of their work performance they “could instruct the [new] principal” to dismiss them. Mrs M. denied being a member of Word of Life, while the applicant did not and also refused to resign. No assessment or mention was made during the meeting as to whether the applicant was performing her job well and whether she met the requirements for holding her post. 32. On 3 November 1995 the applicant informed the new principal of the School in writing of her meeting of the previous day with the Educational Inspector and his deputy. No action was taken in response. 33. Thereafter, the new principal alienated the applicant – her office phone was removed, the locks to the swimming pool were changed without her being provided with a set of keys and the supervision of the renovation of the swimming pool was entrusted to a subordinate even though it should allegedly have been her responsibility. The new principal also made enquiries as to the applicant's work performance. 34. On 24 November 1995 the human resources department of the School prepared a list of thirty-one employees allegedly without job descriptions. The applicant's name and post were among them. 35. On 7 December 1995 Hristo Botev radio aired the interview with the MP in which he implied that the applicant's post was one of those still being occupied by a member of Word of Life (see paragraph 22 above). 36. By an order of 28 December 1995 the applicant was dismissed, with immediate effect, on the grounds of not meeting the education and professional qualification requirements for the post of “swimming pool manager” (Article 328 § 1 (6) of the Labour Code). When she was served with the order, the applicant enquired as to which requirements she did not meet, but the new principal did not inform her. 37. On 27 May 1996 the applicant initiated proceedings before the Ruse District Court challenging the lawfulness of the dismissal. She also sought reinstatement in her previous post and compensation for loss of income. 38. The applicant maintained that her dismissal was directly related to her religious beliefs and her refusal to resign of her own accord. Such a reason for terminating her employment contract, she argued, was a violation of Article 8 § 3 of the Labour Code and Article 37 of the Bulgarian Constitution, which prohibited religious discrimination. 39. During the trial it was established that in December 1995 there had been a further amendment to the School's roster of posts, which the Ministry had approved in a letter of 30 January 1996, but with effect from 1 January 1996. The amended roster of posts no longer envisaged the post of “swimming pool manager”, but provided for the post of “sports complex organiser”. On an unspecified date a job description had also been prepared for the new post which set out the requirements for the holder of the post as follows: “university degree in sports, university degree in economics, as an exception – secondary education with specialisation in the relevant sport, qualified lifeguard, certified swimming instructor.” 40. The applicant argued before the Ruse District Court that the changes to the School's roster of posts should have taken place in accordance with standard practices and should not have been arbitrary. She claimed that the standard practice was to make changes to the roster of posts before the beginning of the academic year. The applicant also claimed that the changes were arbitrary because there had not been any objective necessity, stemming from the work being performed, to change the requirements for the post. 41. A hearing was held on 9 July 1996 at which the respondent party presented the new job description for the post of “sports complex organiser”. 42. At a hearing on 19 November 1996 several witnesses gave evidence. The Educational Inspector testified that the standard practice was to make changes to the roster of posts before the academic year unless an urgent need, usually of a financial nature, required otherwise. He confirmed that he had met with the applicant in early November 1995 in connection with the findings of the Regional Prosecutor's Office and that he had invited her to resign in view of the mounting discontent and public opinion. He stated that he had not enquired as to the activities of Word of Life at the School and that he was not familiar with the applicant's work performance. 43. Mrs M. also testified and informed the court that the new principal had threatened her with dismissal if she talked about her work at the School. She testified as to the meeting of 2 November 1995 with the Educational Inspector and stated that, faced with the claim of being a follower of Word of Life, she had denied it. She stated that she had broken down and cried during the meeting because she had two children to support and did not want to be left without a job. Mrs M. also informed the court that, as far as she was aware, the applicant had been a good and diligent employee, who had maintained good relations with the other members of staff. 44. A teacher from the School also testified at the hearing. He informed the court that since its construction in 1974 the swimming pool had always had a manager, but that there had never been a requirement of a university degree in sports for the post. The teacher also testified as to the content of the radio broadcast of 7 December 1995, in which the applicant had been singled out for dismissal by the MP. 45. On 25 November 1996 the applicant filed her written submissions with the Ruse District Court, contending that the evidence in the case supported her claim. She maintained that the School's roster of posts had been changed in the middle of the academic year with the sole aim of introducing such requirements for her post as to allow her dismissal on those grounds. 46. On 5 May 1997 the Ruse District Court dismissed the applicant's claims. In its judgment the court noted that the burden of proof as to whether the dismissal had been lawful or not lay with the School. It found, inter alia, that the School had complied with the procedure for changing the roster of posts and that the new job description for the post was in conformity with the standard job descriptions for such posts as approved by the Ministry. In addition, the court found that with the changes to the requirements for the post the School had envisaged the possibility that the person appointed to the job would not only manage and organise the activities of the swimming pool but could also act as a lifeguard or swimming instructor, a factor which the court deemed to be of “vital importance”. Based on these considerations, the court found that “there really had been preconditions [which entailed] changing the requirements for the post” and that the dismissal was therefore lawful. Separately, the Ruse District Court found that the applicant's claims that her dismissal had been motivated by her religious beliefs were not supported by the evidence in the case, that in fact the applicant had had very good relations with the other members of staff and that there were no complaints as to her work performance. The court also reasoned that the applicant's assertions in this respect were refuted by the fact that Mrs M. was still employed by the School. 47. On 27 June 1997 the applicant appealed against the judgment of the Ruse District Court. She claimed, inter alia, that its findings were not based on the evidence established in the case and were therefore unfounded. She claimed that the Ruse District Court had failed to make a proper assessment of key evidence, such as the testimonies of the Educational Inspector and Mrs M. 48. The applicant also questioned the grounds of the first-instance court for dismissing her claim and contended that they were frivolous and at odds with the substance of her complaint alleging religious discrimination. Firstly, she had never claimed that her personal relations with her colleagues had suffered as a result of her religious beliefs. Secondly, she submitted that the first-instance court's reasoning that there had been no discrimination against her, considering that Mrs M. was still employed by the School, was incorrect as there were various possible reasons for Mrs M.'s continued employment, such as the fact that the media had not singled her out for dismissal. 49. The applicant also claimed that the Ruse District Court had never analysed in substance her complaint alleging religious discrimination, but had dealt with the matter purely as an issue of unfair dismissal. 50. Finally, she maintained that the facts of the case clearly showed that following her refusal to resign on 2 November 1995 the School had simply tried to find a legal ground for dismissing her and that the chosen method was to change the requirements for the post she occupied so that she would become ineligible to hold it. 51. On 22 July 1997 the former principal of the School filed submissions with the Ruse Regional Court, attesting to a conversation she had had in June 1995 with the Educational Inspector. At the meeting he had identified four employees in respect of whom there had been “information that they were members of a sect” and whose employment he had insisted be terminated. At the time, the former principal had suggested that those employees resign of their own accord, but they had refused and no further action had been taken against them. It is unclear whether the applicant was one of those employees. 52. In a judgment of 23 July 1997 the Ruse Regional Court dismissed the applicant's appeal. The court found, inter alia, that the School had both a need and the right to change the roster of posts and the requirements for the applicant's post and to dismiss her because she did not meet those requirements. It also found that the Ruse District Court had adequately addressed the applicant's allegations of religious discrimination and found them to be “totally and irrefutably ... irrelevant” based on the fact that she had maintained good relations with her colleagues and had been a good employee. Any allegations of subjective reasons or discriminatory grounds for her dismissal were therefore considered unfounded. 53. On 18 September 1997 the applicant filed a petition for review (cassation appeal), claiming, inter alia, that the lower courts had failed to properly evaluate the evidence before them and had never addressed the substance of her complaint alleging religious discrimination. She maintained that they had failed to assess the circumstances surrounding her dismissal and especially the events leading up to it, which clearly demonstrated the real reason why this legal method had been used to terminate her employment. 54. A hearing was conducted on 16 November 1998, which the applicant and her counsel, though duly summoned, did not attend. They presented their submissions to the court in writing. 55. In a final judgment of 9 December 1998 the Supreme Court of Cassation dismissed the applicant's appeal. The court found, inter alia, that the applicant's arguments were unsubstantiated, and upheld the findings of the lower courts. It stressed that the School had the right to change the requirements for the post and that such changes were not subject to judicial review. In addition, it compared the duties and responsibilities of the posts of “swimming pool manager” and “sports complex organiser” and found them to be essentially the same. The Supreme Court of Cassation also noted that the old job description had lacked any education or professional qualification requirements for the post, while the new one had included such requirements. It reasoned, therefore, that the employer had simply filled a gap that had previously existed in that respect. 56. The court refused to address the remainder of the arguments of the applicant as it found them to be irrelevant to the proceedings and to the issue of the dismissal. 57. The relevant provisions of the 1991 Constitution read as follows: “(1) Religions shall be free. ...” “(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers. (2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.” 58. The relevant provisions of the Religious Denominations Act 1949 read as follows: “All citizens in the Republic of Bulgaria shall be afforded the freedom of conscience and religion.” “No one shall be persecuted or restricted in his civil and political rights, nor be dismissed from the performance of duties entrusted to him by law, on account of belonging to one or another religious denomination or for not associating with any one religious denomination...” 59. The Bulgarian Constitution (Article 38), the Education Act of 1991 (section 4) and the Labour Code (Article 8 § 3) provide for protection against discrimination grounded on, inter alia, religious beliefs. 60. An amendment of Article 8 § 3 of the Labour Code of 31 March 2001 widened the scope of protection against discrimination in the workplace to include “indirect discrimination”, which was defined in item 7 of § 1 of the Supplementary Provisions to the Labour Code as follows: “'Indirect' [refers to] the discrimination whereby ostensibly legal solutions are used in exercising labour rights and duties, but they are applied, in the light of the criteria under Article 8 § 3 [of the Labour Code], in a manner which in reality and in fact places some workers and employees in [a] less favourable or privileged position compared to others. Discrimination [does not exist where] the differences or the preferences [are] based on the qualification requirements for performing a specific job, or where special protection is given to certain [types of] workers and employees (juveniles, pregnant women and mothers of young children, disabled people, those with reduced working capacity and other similar groups), as established by normative acts.” 61. The above definition was repealed on 1 January 2004 with the entry into force of the Protection Against Discrimination Act, which provides a comprehensive framework for protection against discrimination. Section 4(3) of the Act introduced the following new definition of “indirect discrimination”: “Indirect discrimination is placing a person on the basis of the criteria in section 1 [sex, race, nationality, ethnicity..., religion and belief...] in a less favourable position in comparison to other persons by way of an ostensibly neutral provision, criterion or practice, unless the said provision, criterion or practice is objectively justified in view of a statutory aim and the means of attaining the said aim are appropriate and necessary.” 62. An employer may terminate a contract of employment by giving notice in writing to an employee where he or she does not have the necessary education or vocational training for performing the work assigned (Article 328 § 1 (6) of the Labour Code). 63. In reviewing such terminations the domestic courts have as their established practice that for a dismissal to be lawful (under Article 328 § 1 (6) of the Labour Code) it is sufficient for the courts to establish that there were new requirements in terms of education or vocational training for performing the assigned work which the employee no longer met, without their being required to assess the necessity for introducing such requirements (see, for example, решение на ВС № 77 от 22.ІІ.1995 г. по гр. д. № 1062 от 1994 г., ІІІ г. о.). 64. Section 5 of the Education Act (1991) proclaims the system of education to be secular. 65. The European Commission against Racism and Intolerance (“ECRI”), in its three reports on Bulgaria for the years 1997–1999, found that during the period there had been a high degree of intolerance in the media towards minority religious groups, particularly new religions. It also found the authorities to be somewhat passive in the face of acts of intolerance, which were not sufficiently combated or punished. 66. ECRI also reported that there had been religious discrimination in the field of education and that there had been cases of dismissal in the public sector for religious beliefs. 67. Human Rights Watch and the Bulgarian Helsinki Committee, in their annual reports for the years 1994–1996, noted that violations of religious freedoms in Bulgaria had significantly increased over the period, especially with regard to what had been referred to as “non-traditional” religious denominations. They observed that the authorities had sought to impose restrictions on thought and religion and to restrict religious diversity, for example by introducing a requirement that non-profit organisations which pursued religious or related activities or dispensed religious education must first obtain the approval of the Council of Ministers before they registered as such. 68. The NGOs also reported that there had been cases of dismissal in the public sector for religious beliefs and mentioned specific instances involving followers of Word of Life.

dev

001-101965

ENG

SVK

CHAMBER

CASE OF VRABEC v. SLOVAKIA

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

Ján Šikuta;Lech Garlicki

4. The applicant was born in 1949 and lives in Bratislava. 5. On 7 November 1997 enforcement proceedings were initiated against the applicant. 6. On 21 January 1999 the Bratislava IV District Court dismissed the applicant's objections against the enforcement and its costs. 7. On 31 January 2000 the district court dismissed the applicant's request for adjournment of the enforcement. On 30 June 2000 the decision was upheld by the Bratislava Regional Court. 8. On 29 January 2001 the applicant requested the district court to issue an interim measure and to discontinue the enforcement. 9. On 21 May 2001 the district court adjourned the enforcement pending its decision on the applicant's request for the enforcement to be discontinued. On 30 November 2001 the regional court quashed the above decision. 10. On 29 October 2003 the applicant again requested discontinuation of the enforcement proceedings. 11. On 25 October 2007 the district court rejected the applicant's request for interim measures. 12. On 17 March 2009 the district court dismissed the applicant's request for discontinuation of the proceedings. 13. On 28 January 2010 the regional court, on the applicant's appeal, quashed the first-instance decision and remitted the case to the district court for further examination. 14. On 20 May 2010 the district court discontinued the proceedings and held that it would deliver a decision on costs once the decision to discontinue the proceedings became final. 15. On 24 June 2010 the applicant's representative informed the Court that the decision has not yet become final. 16. On 6 October 2003 the applicant complained to the Constitutional Court about length of the proceedings before the Bratislava IV District Court and claimed the equivalent of 2,426 euros (EUR) at that time as just satisfaction for non-pecuniary damage suffered. 17. The Constitutional Court examined the period of the proceedings after 29 January 2001. 18. On 2 February 2005 it found that the district court had violated the applicant's right to a hearing without unjustified delay, ordered the latter to avoid further delays and to reimburse the applicant's legal costs. 19. It concluded that these represented a sufficient just satisfaction and did not award the applicant any award for non-pecuniary damage. It referred to the fact that the applicant was the liable party in the proceedings. It further held that the applicant had failed to specify the allegedly suffered harm.

dev

001-107136

ENG

CZE

ADMISSIBILITY

COLLOREDO MANSFELDOVÁ v. THE CZECH REPUBLIC

Inadmissible

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant, Ms Kristina Colloredo Mansfeldová, is a Czech national who was born in 1940 and lives in Opočno. She was represented before the Court by Mr P. Virag, 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. The applicant is the daughter and heir of J. Colloredo Mansfeld, a Czech nobleman who died in 1990. On 16 February 1942 during the German occupation of Czechoslovakia, the latter’s estate and castle in Opočno were confiscated by the occupying forces. After the war and after the estate had been returned to the applicant’s family, the former Prague Municipal National Council (zemský národní výbor) confiscated the estate on the ground that the applicant’s father was to be considered German, as he had stated that he was of German origin in a questionnaire during the war. On 16 December 1948 the Ministry of Agriculture, deciding upon an appeal by the applicant’s late father, quashed the confiscation decision finding that the statutory requirements necessary for the confiscation had not been met in his case. The estate remained in the possession of the State. In March 1995 the applicant filed an action with the Rychnov nad Kněžnou District Court (okresní soud), whereby she sought to order the State represented by the Pardubice Heritage Institute (památkový ústav) to conclude with her a restitution agreement with regard to the castle and other facilities under the Extra-Judicial Rehabilitation Act. On 27 September 1995 the District Court rejected her action but the Hradec Králové Regional Court (krajský soud) quashed this judgment on 17 October 1997 and sent the case back to the District Court which, in a judgment of 16 March 1999, dismissed the applicant’s action for the second time, finding that she did not meet requirements enshrined in the restitution legislation, including the requirement that the transfer or passing of the ownership of the property occurred in 1942 should have been due to racial persecution. The judgment was subsequently upheld by the Regional Court. In judgment no. 28 Cdo 1733/2000 adopted on 31 August 2000 the Supreme Court (Nejvyšší soud), deciding upon the applicant’s appeal on points of law, quashed both judgments. In its view, the confiscation by Germany had been due to the applicant’s Czech origin, as Czechs were regarded by the Nazis as an inferior race, and therefore amounted to racial persecution within the meaning of section 3(2) of the Extra-Judicial Rehabilitation Act. It noted that the estate had been taken under a confiscation measure that applied to Jews. Having regard also to the fact that the estate had been taken from the applicant’s family twice, first by the Nazis and then by the communist regime, the court found that the requirement of section 3(2) of the Act was met. It stated obiter dictum that any interpretation of the term of racial persecution, limiting the application of that notion only to Jews, would be contrary to Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and to the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). The court held in particular: “Having regard to the objectives of the restitution laws, it appears unsustainable to the Supreme Court to interpret the notion of racial persecution in a restrictive manner when the Nazi administration of ... [occupied Czechoslovakia] sanctioned the applicant’s ascendant for “efforts adverse to the Reich”. On 12 June 2002 the District Court, bound by the Supreme Court’s judgment, found in favour of the applicant and ordered the defendant to conclude a restitution agreement with her and to transfer the ownership of the estate to her. On 13 May 2003 the Regional Court upheld this judgment. On 15 and 16 July 2003 the applicant concluded with the National Heritage Institute (Národní památkový ústav), successor in title to the Pardubice Heritage Institute, the restitution agreement on the transfer of the estate to her. On 17 July 2003 she was registered as the owner of the estate with the land register and during the same year entered into possession in accordance with the restitution agreement. On 4 December 2003 the Supreme Court declared inadmissible an appeal on points of law by the Heritage Institute which, on 20 February 2004, made a constitutional appeal alleging an infringement of its property rights and the right to judicial protection under the Charter. In a judgment of 16 December 2004 the Constitutional Court quashed the lower courts’ decisions and remitted the case to the District Court. It admitted that in civil proceedings, it was incumbent upon the parties to assert their rights and to allege relevant facts, but considered that the ordinary courts were nevertheless obliged to search for and take further evidence on their own initiative. It found that, not having done so, they had breached the Code of Civil Procedure. According to the court, the conclusion of the lower courts that the applicant’s late father had met the conditions set by the Extra-Judicial Rehabilitation Act was erroneous, since he had been registered as German when filling in a questionnaire. It added that, the courts had omitted to take into consideration certain material, including an essay entitled “The Colloredo family and the Colloredo family of Opočno” of which the Constitutional Court took judicial notice, which showed that the applicant’s late father had been disloyal during the war as he had applied for German citizenship. The court also considered that the confiscation of the estate by the German occupying forces could not be regarded as constituting racial persecution of the applicant’s late father within the meaning of the Extra-Judicial Rehabilitation Act, as the Supreme Court had found on 31 August 2000. It was apparent from sections 2(1)(c) and 3(2) of this Act, from its aim and from the record on the debate preceding the adoption of Act no. 116/1994 in the lower chamber of the Parliament, that the term of “racial persecution” covered in particular Jews who were victims of the Holocaust. This was, however, not the case of the applicant’s father. The court rejected as inappropriate the Supreme Court’s obiter dictum that such a restrictive interpretation would constitute inequality among victims of the period of lack of freedom and would privilege one group of people on the ground of race contrary to Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Charter. Indeed, the principle of equality could not be interpreted as an absolute one and equality among citizens could not be construed as an abstract category, but as a relative equality within the meaning of all modern constitutions. A restrictive interpretation of the notion of racial persecution under the Extra-Judicial Rehabilitation Act was not contrary to the principle of equality. Apparently on 6 April 2005 the District Court asked the parties to the procedure whether they would propose further evidence. It also requested the applicant to specify whether she would propose further evidence in support of her assertions that the confiscation had taken place due to racial persecution and that the estate had been taken away and passed into the ownership of the Czechoslovak State in the relevant period within the meaning of the Extra-Judicial Rehabilitation Act. It also requested the defendant to indicate whether it would propose any further evidence to support its assertion that the Czechoslovak citizenship of the applicant’s late father had legally ceased to exist. Both parties submitted further documentary evidence. At the hearing of 12 July 2005 the District Court considered extensive documentary evidence, including a historical essay by Dr. Jaroslav Šůla called “The Colloredo family and the Colloredo family of Opočno” (Colloredové a opočenští Colloredové), the so-called administrative record and correspondence between the Municipal National Council and the Ministry of the Interior of 1947 and 1948 when these two authorities were searching for documents concerning the examination of the citizenship of the applicant’s late father. On 13 September 2005 the District Court, having held another hearing, dismissed the applicant’s action. It found that all the requirements for restitution had been met with the exception of loss of property due to racial persecution. The court underlined that when assessing that requirement it was bound by the ruling of the Constitutional Court of 16 December 2004. On 5 June 2006 the Regional Court upheld this judgment. On 6 November 2007 the Supreme Court rejected the applicant’s appeal on points of law, referring to the binding interpretation by the Constitutional Court of the notion of racial persecution. On 8 February 2008 the applicant appealed to the Constitutional Court, asserting an erroneous interpretation of the notion of racial persecution within the meaning of section 3(2) of the Extra-Judicial Rehabilitation Act and procedural shortcomings in consequence of which she had not put forward any evidence establishing that her father’s mother was of Jewish origin. It appears that her constitutional appeal remains undecided. On 11 February 2005 the State represented by the National Heritage Institute filed against the applicant an action for determination of ownership of the estate with the District Court. In a judgment of 23 December 2005 the court granted the State’s action and found it to be the owner of the estate and decided that the Institute was empowered to maintain the estate. On 11 September 2006 the Regional Court quashed this judgment as to the District Court’s finding that the Institute was empowered to upkeep the estate, stayed the proceedings in this respect and transferred this part of the case to the Ministry of Finance. It noted that the District Court had been bound by the judgment of the Constitutional Court of 16 December 2004. The judgment became final on 11 October 2006. On 29 January 2007 the State was registered in the land register as the owner of the estate. The act provides for mitigation of injustices caused by the Communist rule in Czechoslovakia from 25 February 1948 to 1 January 1990 (“the relevant period”). Under section 2(1) property injustices caused by, inter alia, unlawful practices carried out in the relevant period, are to be mitigated, inter alia, by the surrender of the property, provided that the injustices originated in political persecution or in a practice contravening universally accepted human rights and freedoms (section 2(1)(c)). Section 3(2) extended the application of the Act to natural persons who had lost their property due to racial persecution during the Second World War and were entitled to restitution of it after the war pursuant to Decree no. 5/1945 or Act no. 128/1946 and in respect of whom the Communist regime established on 25 February 1948 had failed to grant such claims whilst pursuing its policy of political persecution or carrying out practices contrary to universally accepted human rights and freedoms. Under section 23 if a chamber comes to a legal view differing from that expressed by the court in a previous ruling, it shall submit the issue to the Plenum for its consideration. The latter’s legal view is binding on the chamber in further proceedings. Under section 72(1)(a), a constitutional appeal may be lodged pursuant to section 87(1)(d) of the Constitution by a natural or legal person, alleging that its fundamental rights or basic freedoms guaranteed by the constitutional law have been infringed as a result of a final decision in proceedings to which it was a party, a measure, or any other infringement by a public authority. The Constitutional Court rejected a constitutional appeal lodged by a group of MPs seeking to abrogate the adjective “racial” from section 3(2) of the Extra-Judicial Rehabilitation Act. In their view, the term “racial persecution” created inequality on the ground of race among those whose property was adversely affected during the occupation. They asserted that it manifestly contravened the International Convention on the Elimination of All Forms of Racial Discrimination adopted by the UN General Assembly in 1965 and the Charter of Fundamental Rights and Freedoms. In the court’s view the impugned provision had to be interpreted in conformity with these legal instruments. It held, inter alia: “[I]t is evident that racial discrimination under the Third Reich concerned a much larger group (groups) of people than only those concerned by the Nuremberg Laws [i.e. Jews], and that the legal terms such as “national, racial and political” used in section 1(1) of Decree no. 5/1945 are largely superfluous.” The Constitutional Court rejected a constitutional appeal lodged by the Office for the Representation of the State in Property Matters. The Office had contested the legal assessment of ordinary courts as to which State body should be held liable to pay compensation to a private individual. Having noted that that issue was governed by public law, the court ruled that the Office could not be regarded as an owner disposing freely of its property, but merely as a State body acting in its public authority, which does not have a standing to appeal to the Constitutional Court.

dev

001-77747

ENG

HUN

CHAMBER

CASE OF GERGELY v. HUNGARY

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

4. The applicant was born in 1951 and lives in Budapest. 5. On 28 October 1991 the applicant brought an action in the Budapest Regional Court seeking the annulment of a contract and the ownership of a real-estate. Between 13 February 1992 and 31 May 1994 the court held eight hearings and obtained the opinion of an expert. 6. On 10 November 1994 the proceedings were interrupted on account of the death of one of the respondents. The successors were not identified until 24 February 1999. The court informed the parties of this fact on 9 November 1999, and the proceedings resumed on 4 January 2000. 7. Four further hearings took place between 30 May 2000 and 9 March 2001. 8. On 8 June 2001 the Regional Court dismissed the applicant's action. 9. On 21 June 2001 the applicant appealed. Following repeated warnings from the appellate court, his appeal was only lodged in due and proper form on 3 December 2001. 10. On 11 December 2002 the Supreme Court, sitting as a second-instance court, dismissed the applicant's appeal. 11. On 7 October 2003 the Supreme Court rejected as inadmissible the applicant's petition for review, without an examination of the merits.

dev

001-83043

ENG

MKD

CHAMBER

CASE OF STOJKOVIC v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Peer Lorenzen

4. Between 5 July and 27 December 1991 the applicant worked as a manager of a joint stock company (“the employer”). On 7 February 1992 he was dismissed by the employer’s disciplinary commission, a decision which was confirmed by the executive board on 17 March 1992. 5. On 23 March 1992 the applicant brought an action against the employer to annul his dismissal and for his reinstatement as a manager. 6. On 16 June 1992 the then Štip Municipal Court (Општински Суд Штип) dismissed his claim. 7. On 25 January 1993 the then Štip District Court (Окружен Суд Штип) upheld his appeal of 19 November 1992 and remitted the case for a re-examination. 8. Of nine hearings scheduled before the first-instance court, none was adjourned at the applicant’s request. 9. On 29 December 1993 the then Municipal Court dismissed his claim. That decision was upheld by then District Court’s decision of 30 March 1994 dismissing his appeal of 10 February 1994. 10. On 30 May 1994 the applicant lodged an appeal on points of law (ревизија) which was granted by the Supreme Court’s decision of 20 December 1995. On 22 February 1996 the then District Court again upheld the first-instance decision of 29 December 1993. 11. On 17 April 1996 the applicant submitted a fresh appeal on points of law before the Supreme Court. On 20 November 1997 the Supreme Court quashed both the first- and second-instance decisions and remitted the case for a renewed examination. It ruled that the lower courts had erroneously established that the employer’s meeting of shareholders (собрание на акционери) and the strike board (штрајкувачки одбор) had discharged the applicant as the employer’s manager prior to the disciplinary commission having given the dismissal decision (see paragraph 4 above). According to the minutes of their meeting of 27 December 1991, they had only voted against him, but had left the matter to be decided by the disciplinary commission. 12. On 29 May 1998 the applicant requested the removal of the first-instance judge for bias. On 3 June 1998 the President of the Štip Court of First Instance dismissed that request as unsubstantiated. 13. According to the information submitted by the parties, none of the six hearings fixed by the first-instance court was adjourned at the applicant’s request. 14. On 17 December 1998 the Štip Court of First Instance annulled the 1992 dismissal order finding that it was not given by an authorised body. However, it dismissed the applicant’s claim for his reinstatement to a post corresponding to his qualifications since bankruptcy proceedings had been meanwhile launched against the employer. The employer’s receiver (стечаен управник) could decide the reinstatement issue. 15. On 29 December 1999 the Court of Appeal quashed this decision as incoherent and ordered a retrial arguing that the lower court had erred in establishing the facts concerning the body competent to decide on the dismissal. 16. After three hearings being fixed, on 24 April 2001 the Štip Court of First Instance dismissed the applicant’s claims finding that: he was discharged as the employer’s manager by the executive board on 27 December 1991; under an application for disciplinary proceedings submitted by the strike board, the newly appointed manager requested the disciplinary commission to dismiss him for having committed serious work-related violations, which was actually done by the commission’s decision of 7 February 1992; and the executive board dismissed his objection by decision of 17 March 1992. The court therefore concluded that the applicant’s claims were ill-founded. This decision was given by another first-instance judge. On 29 November 2001 the Court of Appeal upheld this decision. 17. On 21 January 2002 the applicant submitted an appeal on points of law before the Supreme Court arguing that the lower courts had wrongly established and assessed the facts. 18. The applicant died on 31 October 2002. 19. On 11 September 2003 the Supreme Court finally dismissed his appeal finding that the lower courts had properly established the facts and correctly applied the national law. According to a note written on the slip receipt, on 3 December 2003 there was an unsuccessful attempt to serve this decision due to the applicant’s death. The applicant’s successors maintained that they learnt about this decision only on 29 July 2004 when they received the Government’s observations. The Government did not contest that assertion. 20. During the proceedings, the applicant applied several times to the first-instance court to expedite the proceedings. His requests for priority treatment submitted before the Supreme Court were refused. He also notified the State Judicial Council about the protracted length of the proceedings. 21. Section 10 of the then Civil Proceedings Act (Закон за парничната постапка) (“the Act”) provided that it was incumbent upon the court to undertake to conduct the proceedings without undue delay and economically, and to avoid any attempt of abuse of the rights afforded to the parties concerned. 22. Section 408 of the Act provided, inter alia, that the court should take into consideration the necessity of urgent settlement of employment disputes. 23. Section 36 of the Courts Act (Закон за судовите) of 2006 (“the 2006 Act”) provides that a party concerned can lodge with the immediate higher court (непосредно повисокиот суд) an application for the protection of the right to a hearing within a reasonable time if he/she considers that it has been violated by a court of competent jurisdiction. The immediate higher court considers the application (постапува по барањето) within six months after it has been lodged and decides whether the court below violated the right to a hearing within a reasonable time. The higher court shall award just satisfaction to the claimant if it finds a violation of the right to a hearing within a reasonable time. The just satisfaction shall be paid from the State’s budget. The 2006 Act became applicable on 1 January 2007 (section 128).

dev

001-112224

ENG

LVA

ADMISSIBILITY

LEITENDORFS v. LATVIA

Inadmissible

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

1. The applicant, Mr Ervins Leitendorfs, is a Latvian national who was born in 1976 and lives in Jelgava. He is represented before the Court by Mrs B. Didrihsone, a lawyer practising in Rīga. 2. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. 3. The facts of the case as submitted by the parties may be summarised as follows. 4. In 2002 the applicant was arrested on suspicion of having committed an offence. On 4 September 2002 the Limbaži District Court found the applicant guilty of robbery with aggravating circumstances and sentenced him to six years and one month’s imprisonment. The judgment became final in November 2003. 5. From 18 March to 2 April 2004 the applicant was in Jēkabpils Prison, and from 2 April to 20 August 2004 and 10 September 2004 to 19 March 2006 he served his sentence in Grīva Prison. He brought numerous complaints before various State authorities. In particular, he complained that from 19 to 23 March 2004 and from 1 to 4 April 2004 his anti-tuberculosis treatment had been interrupted. 6. In the same letter he also complained that he had been denied a referral for three particular medical tests, including a head computed tomography (CT) an electroencephalograph (EEG), which he had requested in June 2004 and an oscillography, which he had requested in September 2004. The applicant alleged that the tests were indispensable in order to establish his mental-health problems. 7. On 8 July 2005 the Ministry of Justice replied that the state of the applicant’s mental health had been regularly examined by a psychiatrist in prison, and that the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”) had examined the quality of the medical assistance at the place of the applicant’s detention three times without establishing any violation in this respect. The applicant was also informed that, according to information provided by the Prisons Administration and the MADEKKI, he did not have medical symptoms which would necessitate the tests he had requested. 8. In October 2004 the applicant complained to the Prosecutor’s Office about the quality of food and water and the size of bed linen in Grīva Prison. On 1 November 2004 the Prisons Administration dismissed the complaints. 9. In that letter the applicant also mentioned that in Grīva Prison prisoners suffering from tuberculosis had been subjected to solitary confinement where they could not receive bed linen or adequate clothes. The Prisons Administration informed the applicant that, in accordance with section 74(2) of the Sentence Enforcement Code, detainees were not provided with bed linen in the isolation wards and could not take exercise. 10. The Government relied on the report of 12 November 2002 which the head of Valmiera Prison had sent to the Vidzeme Regional Court stating that from July to November 2002 the applicant had had eleven consultations with the prison psychiatrist and five consultations with the prison doctor. The applicant was diagnosed as suffering from neurosis. 11. According to a report (without a date) drawn up by the head of the tuberculosis unit of the Central Prison Hospital, the applicant had begun serving his sentence in Jēkabpils Prison on 18 November 2003. On 29 November 2003 he fell ill and on 2 December 2003 he had an X-ray examination following which, on 12 December 2003, he was transferred to the tuberculosis unit of the Central Prison Hospital in Rīga for further tests and treatment. On 17 December 2003 the final diagnosis confirmed that the applicant had contracted tuberculosis, and from 18 December 2003 to 18 March 2004 he received anti-tuberculosis treatment, in accordance with the guidelines set by the World Health Organisation (“the WHO”). Afterwards he was transferred to the tuberculosis unit in Grīva Prison where he continued receiving adequate treatment until 23 June 2004. According to the results of the medical examinations of 30 June and 6 July 2004, the applicant showed no signs of tuberculosis; he nevertheless remained under the supervision of TB specialists until 24 February 2005. 12. The above report mentioned that, according to the guidelines set by the WHO, only an interruption of two months could be considered as a suspension of treatment for tuberculosis. 13. In a letter of 26 May 2006 the Ministry of Justice, at the Government Agent’s request, supplied the information that in Grīva Prison TB patients were detained separately from the others in a unit which had been refurbished in 2002 and had all the necessary facilities including showers, a gym and an area for outdoor activities, and that the applicant was provided with bed linen. The number of inmates per cell did not exceed 4 to 6. 14. The letter also stated that, on account of insufficient funds, the prison had been unable to provide detainees with the statutory hygienic products until November 2005. 15. At the Government Agent’s request, on 14 May 2007 the MADEKKI sent its conclusions on the medical assistance provided to the applicant in prisons in Latvia. It stated that during the inspections carried out in March 2005 the inspectors had discovered that the medical unit of Gīva Prison and the Central Prison Hospital had not obtained the certification envisaged by the Regulations of the Cabinet of Ministers No. 77 of 19 February 2002. It further stated that the medical unit of Grīva Prison had received the certificate in November 2005 and that in September 2005 the Inspection had noted various improvements in the functioning of the Prison hospital. 16. The MADEKKI further explained that the three head examinations requested by the applicant were not normally carried out in diagnosing mental illness or behaviour or neurotic disorders. 17. According to the extracts from the applicant’s medical history, the applicant sustained head injuries in 1982 and 1983. In 1982 and 1985 he was diagnosed as suffering from neurosis. In 1988/89 it was recommended that he study from home on account of his nervous disposition. 18. On 4 March 2003 the applicant underwent a forensic medical examination. It concluded that the applicant did not suffer from mental illness. The experts found that the applicant had organic personality and behaviour disorder and an addiction to alcohol, and that he would be able to receive adequate medical treatment in prison. 19. According to a medical report of 31 May 2004, issued by a practitioner from the applicant’s former place of residence, the applicant was diagnosed as suffering from encephalopathy of a post-traumatic or toxic kind. No recommendation as to further medical treatment had been noted. 20. On 20 August 2004, at the applicant’s request, he was transferred to the Psychiatry Unit of the Central Prison Hospital. According to the medical report of 4 July 2005, drawn up by the head of the hospital, the applicant was diagnosed as suffering from mixed-type encephalopathy; he did not have medical symptoms which would necessitate carrying out the particular examinations he had requested. 21. On 10 April 2006 an official from the State Probation Service informed the applicant that in order to determine his fitness for work he should have a consultation with a neurologist. 22. In response to a request from the applicant of 28 June 2006, in a letter of 17 July 2006 a private company offered to pay the cost of the examinations prescribed by his neurologist in the sum of LVL 90 (EUR 130). 23. On 13 November 2006 the applicant had a consultation with a neurologist in a civil hospital. He was diagnosed as suffering from post-traumatic and toxic encephalopathy. He was advised to undergo an EEG, a dopplerography and an echocardiogram and to have a consultation with a psychiatrist. The medical records show that on 8 December 2006 the applicant underwent an EEG and a dopplerography in a civil hospital. There is no information as to the results of the tests. 24. In response to the applicant’s enquiries, on 30 August 2004 the MADEKKI concluded that the quality of the anti-tuberculosis treatment which the applicant had received from 12 December 2003 until 18 March 2004 in the Central Prison Hospital had been adequate. It also stated that the applicant had received vitamins and specially enriched nutrition during the treatment and that the latest examinations showed that the applicant’s health condition had significantly improved. It also established that in April 2004 the applicant had been repeatedly examined by a prison doctor in Grīva Prison and had received appropriate medication. 25. In response to the applicant’s complaint that he had been denied specific head examinations, on 6 September 2004 the MADEKKI informed him that the medical examinations he had requested would be carried out if additional financial resources were allocated to the Central Prison Hospital and if the doctor recommended that he undergo the examinations. He was informed that, according to the Regulations of the Cabinet of Ministers (see paragraph 27 below), he could have the examinations at his own expense. 26. In response to a letter from the applicant of 27 September 2007, in which he complained about the interruption of his anti-tuberculosis treatment, the State Agency of Tuberculosis and Lung Diseases explained on 22 October 2007 that the anti-tuberculosis treatment had to be supplied regularly and that frequent interruptions might have an impact on the effects of the treatment, especially if the patient received less than 80% of the prescribed treatment. It also noted that in the applicant’s case the interruption of four days would not imperil his health. 27. Pursuant to section 2, convicted persons shall receive the minimum free State-granted health care in the amount established by the Cabinet of Ministers. In addition, the Prison Authority, within its budgetary means, shall provide convicts with the following health-care services: primary, secondary and (partial) tertiary medical assistance; urgent dental care; examinations of their health condition; preventive care; medical treatment and injections prescribed by a doctor; and medical equipment. 28. Pursuant to section 11, the medical examinations which are necessary for the Commission on Health and Working Capability to adopt an initial decision shall be financed from the State budget. 29. Section 12 provides that, upon the request of a detainee, the administration of the penitentiary institution may agree with the administration of a civil medical institution on consultation and treatment at the detainee’s expense.

dev

001-91619

ENG

GBR

ADMISSIBILITY

WOODWARD v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr James Woodward, is a British national who was born in 1946 and lives in Cheshire. He was represented before the Court by Ms K. Burton, Vale Royal Citizens Advice Bureau, Winsford. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 8 July 1994, leaving two children born in 1982 and 1984. His claim for widows’ benefits was made in February 2002 and was rejected on 9 March 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The applicant was in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

dev

001-96011

ENG

RUS

CHAMBER

CASE OF ALEKSANDR KRUTOV v. RUSSIA

Violation of Article 10 - Freedom of expression -{General}

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

5. The applicant was born in 1960 and lives in Saratov. 6. On 9 January 2003 the applicant published an article under the headline “The Political Scene in 2002: Old Faces and New Times” (Политические расклады 2002 года: старые лица и новые времена) in issue no. 1 (10) of the Nedelya Oblasti newspaper. The article examined the interplay of political groups in the Saratov Region and, in particular, the part played by the prosecutor's office of the Saratov Region and B., the Saratov Regional Prosecutor. 7. B. sued the applicant and the editorial board for defamation before the Kirovskiy District Court of Saratov. He claimed that the following extract from the article had damaged his honour, dignity and professional reputation: “Probably, only this [the political union between the town hall and the regional prosecutor's office] can account for the regional prosecutor's office's perseverance in instigating criminal proceedings against members of the regional government..., while at the same time shielding the serving officials of the town hall and the town legislature from criminal prosecution. For example, in the corruption-ridden case of the “Town Charity Fund for Health Care Support”, charges had been brought against only one member of the town legislature, Mr K[.], but shortly thereafter he was acquitted. And the mayor's close circle, headed by Mr A[.] in person, was spared responsibility. In gratitude for support the town hall started supplying the prosecutor's offices with 'gifts' in the form of foreign-made cars and furniture. As to the regional prosecutor Mr B[.], the town hall allocated to him under a 49-year lease agreement (!) a plot of land in the courtyard of the block of flats where he lives (allegedly for development).” 8. The District Court commissioned a linguistic examination of the impugned extract by four experts from Saratov State University. 9. On 12 September 2003 the panel of four experts returned their unanimous findings. In their assessment, the article did not give an appraisal of B.'s character, nor did it damage his honour or professional reputation. The publication might create the impression that the prosecutor's actions had been unseemly and cast doubt on the lawfulness of a lease agreement for such a long term and the validity of its purpose. However, these issues called for a legal rather than a linguistic examination. The experts concurred that the words “probably”, “only this can account for...” and “in gratitude for support” were expressions of the journalist's personal opinion rather than statements of fact. The author did not allege that prosecutor B. had received any benefits for his support of the town hall. The journalist merely supposed that the prosecutor had not been impartial and that criminal charges against officials had been brought selectively. 10. On 14 November 2003 the Kirovskiy District Court of Saratov gave judgment, finding against the applicant for the following reasons: 's article] the plaintiff Mr B. cannot be viewed as a private individual because in the public perception – having regard to the fact that the plaintiff is a public figure – the plaintiff is Mr B., the citizen who holds the office of the Saratov Regional Prosecutor and must observe higher standards in his personal and professional image and his daily actions. The court further considers that the term 'prosecutor's offices' employed in the article also referred to the plaintiff because, by virtue of his office, he is responsible for the operation of all the prosecutor's offices in the entire Saratov region. Having regard to the above, the court considers that the excerpt from the article at issue is nothing but statements (сведения) disseminated about the plaintiff that are damaging to his honour, dignity and professional reputation... The court does not consider proven the defendants' argument that they disseminated a journalist's opinion based on facts, because the author's opinion must not only be founded on specific statements, but must also not damage the plaintiff's reputation or honour and must not contain statements about the plaintiff's unlawful conduct. Since the purpose of expressing an opinion is to convey it to third parties, the form of its expression must exclude the possibility of misleading a reasonable third party as to whether such information is an opinion or a statement of fact. The court considers that in the present case the defendants have failed to meet these requirements and the statements contained in the article are statements of fact amenable to proof in judicial proceedings...” 11. The District Court noted that the underlying facts in the impugned excerpt were not disputed. Thus, criminal proceedings were indeed brought against certain members of the regional government, including the member of the town legislature K. Mr B. had received a plot of land under the conditions indicated by the applicant, and the Saratov town hall had put at the disposal of the prosecutor's offices, free of charge, a Hyundai car, six tables and nine filing cabinets. 12. However, in the District Court's view, the applicant had failed to show that the mayor's close circle had been “spared responsibility” and that furniture, a foreign-made car or a land plot had been offered “in gratitude for support”. 13. The District Court held that the entire extract had been defamatory, ordered the newspaper to publish a rectification, and recovered 5,000 Russian roubles each from the applicant and the newspaper. 14. On 19 December 2003 the Saratov Regional Court, on an appeal by the applicant, upheld the judgment. 15. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 16. Article 152 provides that an individual may apply to a court with a request for the rectification of “statements” (сведения) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. 17. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements (сведения) had to be untrue and contain allegations of a breach, by a person or legal entity, of laws or moral principles (commission of a dishonest act, improper behaviour in the workplace or in everyday life, etc.). Dissemination of statements was understood to mean the publication of statements or their broadcasting, inclusion in professional references, public speeches or applications to State officials, and communication in other forms, including oral, to at least one other person (section 2). 18. Section 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff had to show that the statements had indeed been disseminated by the defendant. The defendant had to prove that the disseminated statements were true and accurate.

dev

001-99313

ENG

CZE

ADMISSIBILITY

BENET CZECH, SPOL. S R.O. v. THE CZECH REPUBLIC

Inadmissible

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

The applicant, Benet Czech, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague. It was represented before the Court by Mr P. Klimeš, a lawyer practising in Prague. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In April 2001 criminal proceedings were instituted against a former manager and sole shareholder of the applicant company on the suspicion of having committed tax evasion. Subsequently, prosecuting authorities seized the applicant company's financial and business documents which were, however, mixed with documents of other companies subjected to the investigation. According to the applicant company, the documents have never been returned to it. On 13 September 2001 the prosecuting authorities seized CZK 8,861,401.13 (EUR 319,942) and USD 41,677.80 (EUR 29,769) deposited on the applicant company's bank accounts on the suspicion that these assets might have constituted a profit from criminal activities of the manager. The applicant company says that it was not involved in any business transactions investigated by the police and that its former manager is prosecuted for acts which are not in any way related to the business pursued by the applicant company. The criminal proceedings are still pending. Meanwhile, numerous tax proceedings were brought against the applicant company in regard of the suspected retrenchment. They all were later discontinued as no tax evasion by the applicant company was detected. On 14 April 2005 the applicant company requested that the seizure be lifted. Its request was dismissed by the Prague High Prosecutor (vrchní státní zástupce) on 24 June 2005. The prosecutor found irrelevant the applicant company's objection that the tax proceedings brought against it had been discontinued. On 11 August 2005 the Prague High Court (vrchní soud) dismissed the applicant company's appeal. In its constitutional appeal, the applicant company claimed that the seizure of its assets was disproportionate due to its excessive length. On 9 March 2006 the Constitutional Court (Ústavní soud) declared the appeal inadmissible, finding that a fair balance between the general interest of the society and those of the applicant company arising from its fundamental rights had been struck. The decision was served on the applicant company's lawyer on 16 March 2006. On 9 October 2006 the High Prosecutor dismissed the applicant company's new request for partial lifting of the seizure. The High Court upheld this decision on 21 November 2006, but on 30 January 2008 the Constitutional Court quashed that decision finding a violation of the applicant company's right to property. It held that the length of the seizure, over six years, was unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. On 11 March 2008 the High Prosecutor lifted fully the seizure of the applicant company's bank accounts.

dev

001-98467

ENG

HRV

ADMISSIBILITY

CULAR v. CROATIA

Inadmissible

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

The applicant, Mr Mate Čular, is a Croatian national who was born in 1952 and lives in Zagreb. He was represented before the Court by Mr T. Vukičević, an advocate practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 April 1984 the police authorities seized, from a Mr Z.K., 160,000 former Yugoslav dinars (YUD) that belonged to the applicant, under suspicion that the two of them had received it as a bribe. The applicant submits that he wanted to use the money to buy 4,870 kg of pickled (metal) sheet (dekapirani lim), which he intended to use in his recently opened locksmith's business. On 12 November 1989 the competent State Attorney indicted the applicant and Z.K. before the Zagreb Municipal Court (Općinski sud u Zagrebu), charging them with the criminal offence of accepting a bribe. On 20 February 1995 the Zagreb Municipal Court discontinued the criminal proceedings, the State Attorney having dropped the charges against the accused. However, the sum seized was not returned to the applicant. For that reason, on 28 November 1995, the applicant brought a civil action against the State in the Zagreb Municipal Court. In the period between 1984 and 1995 there were several changes to and denominations of domestic currency (see below under Relevant domestic law). So, the applicant initially sought the amount of 0.016 Croatian kunas (HRK) together with the statutory default interest accruable since 6 April 1984. During the proceedings, on 7 November 1997, a court-appointed financial expert prepared a report according to which, taking into account the inflation rate, the value of YUD 160,000 in 1984 was equal to the value of HRK 22,170.50 at the time that he had prepared his report. On the basis of that report, the applicant amended his claim and sought HRK 22,170.50 together with the statutory default interest accruable since 6 April 1984. On 15 December 1997 the Municipal Court ruled in part for the applicant. It held that, by seizing and not returning to the applicant YUD 160,000, the State had enriched itself without cause, and awarded him HRK 22,170.50 together with the statutory default interest accruable since 7 November 1997. The remainder of the applicant's claim, concerning the statutory default interest accrued between 6 April 1984 and 7 November 1997, was dismissed. Following appeals by both parties, on 15 February 2000, the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case. It held that the first-instance court had erred when it had adjusted the applicant's claim and awarded him the contemporary value of YUD 160,000, because, under the relevant legislation, he was entitled only to the nominal amount. In the resumed proceedings, on 31 May 2001, the Zagreb Municipal Court awarded the applicant HRK 0.01 (as the amount awarded – HRK 0.016 – could be expressed to only two decimal places), together with the statutory default interest accruable since 28 November 1995. The remainder of the applicant's claim was dismissed and he was ordered to pay the respondent HRK 2,900 for the costs of the proceedings. In the applicant's submission, the sum he was awarded, including the accrued statutory default interest, was HRK 0.03. On 16 December 2003 the Zagreb County Court dismissed the applicant's appeal and upheld the first-instance judgment. On 19 February 2004 the applicant lodged a constitutional complaint against the second-instance judgment alleging a violation of his constitutional right to equality before the courts. The Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's constitutional complaint on 5 June 2007 and served its decision on his representative on 9 July 2007. The Act on the Change of the Value of the Dinar (Zakon o promjeni vrijednosti dinara, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 83/89) of 21 December 1989 established the new value of the Yugoslav dinar (YUD) so that one new dinar corresponded to 10,000 old dinars. By the Decision on the Introduction of the Croatian Dinar as the Currency on the Territory of the Republic of Croatia (Odluka o uvođenju hrvatskog dinara kao sredstva plaćanja na teritoriju Republike Hrvatske, Official Gazette of the Republic of Croatia no. 71/1991), which entered into force on 23 December 1991, the Republic of Croatia introduced its own currency, Croatian dinar (HRD). The Yugoslav dinar (YUD) was replaced by the Croatian dinar at an exchange rate of YUD 1 to HRD 1. On 13 May 1994 the Decision on the Termination of the Validity of the Decision on the Introduction of the Croatian Dinar as the Currency on the Territory of the Republic of Croatia and on the Manner and Time of Calculation of Sums Expressed in Croatian Dinars into Kunas and Lipas (Odluka o prestanku važenja Odluke o uvođenju hrvatskog dinara kao sredstva plaćanja na teritoriju Republike Hrvatske, te o načinu i vremenu preračunavanja iznosa izraženih u hrvatskim dinarima u kune i lipe, Official Gazette of the Republic of Croatia no. 37/1994) entered into force, introducing the Croatian kuna (HRK) as the currency of the Republic of Croatia. It provided that the Croatian dinar should be replaced by the Croatian kuna at an exchange rate of 1,000 dinars to one kuna. The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments), which was in force at the material time, provided as follows: ENRICHMENT WITHOUT CAUSE “(1) When a part of the property of one person passes, by any means, into the property of another person, and that transfer has no basis in a legal transaction or a statute [that is, it is without cause], the beneficiary shall be bound to return that property. If restitution is not possible, he or she shall be bound to provide compensation for the value of the benefit received. (2) ... (3) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not come into existence or which subsequently ceased to exist.” “When returning what has been received without cause, the beneficiary shall also be bound to return any profit or benefit accrued, and to pay the default interest, and to do so, if he or she was in bad faith, from the day of the enrichment, or otherwise from the day the request [for the return of the property] was made.” DEFAULT INTEREST “(1) The creditor shall have a right to default interest irrespective of whether or not he sustained any damage on account of the debtor's default. (2) If the damage sustained by the creditor on account of the debtor's default is greater than the amount received as default interest, he or she shall have a right to claim damages up to the full amount of the compensation due.” MONETARY OBLIGATIONS “When an obligation has for its object a sum of money, the debtor is bound to pay the number of monetary units in which the obligation is expressed [that is, its nominal value], unless the law provides otherwise.”

dev

001-109193

ENG

UKR

CHAMBER

CASE OF KLISHYN v. UKRAINE

Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

5. The applicant was born in 1985 and lives in the town of Konotop, Ukraine. 6. On 22 November 2003, at around 10 p.m., the applicant, who was drunk, together with P. and R., had a quarrel with seven other persons (M., S., Pv., Ps., Z., Kh. and D.). According to the applicant’s own account, D. hit him in the left eye and the applicant hit D. in the jaw. Afterwards they were separated by others. However, according to the court’s findings in the criminal case against the applicant (see paragraph 40), after an attempt to have a fight with Pv., the applicant stabbed D. with a knife. D. brought this to the attention of the traffic police officers Ku. and G., who happened to be passing. 7. At about 11 p.m. on the same day, the applicant, together with P. and R., was arrested by the traffic police officers, handcuffed and taken to the traffic police station. According to the entries in the traffic police station register, the applicant remained in the traffic police station from 11.30 p.m. until 12.15 a.m. the next day. 8. According to the applicant, in the traffic police station he was beaten by two officers. One of them hit the applicant about five times on the head. Another one hit him in the face, twice or three times hit him in the chest, and with a truncheon on the left ear, the kidneys and on the legs. 9. The applicant was subsequently taken to an ambulance station to check whether he was drunk. According to a medical report, the applicant was examined by a doctor at a municipal ambulance station at 11.45 p.m. on 22 November 2003. The applicant was drunk but had no visible injuries. After that the applicant was handed over to the ordinary police. 10. The applicant was taken to the police station at about 1 a.m. on 23 November 2003. There he was examined by a police officer, Ma., in the presence of two witnesses. It was noted that the applicant had no bodily injuries and had no complaints about the police officers. A report drafted by a police officer was signed by two witnesses and by the applicant. The applicant also signed a statement that he had no complaints about his arrest and that no physical force or special restraining equipment had been used on him. 11. Later, according to the applicant, he was tortured and ill-treated and was forced to make self-incriminating statements. In particular, according to the accounts given by the applicant on an unidentified date, in the police station he had his head banged against the wall and table, and was hit in the kidneys. 12. According to the police officers, the applicant was released at about 2-3 a.m. on 23 November 2003. The applicant, however, states that he was released at 8 a.m. 13. At 9 a.m. the applicant caught a bus. According to the bus driver, Kt., the applicant had bruises on his left ear and left eye and said that he had been beaten by the police. 14. According to the testimony of the applicant’s sister and mother, given by them later during the investigation into the applicant’s complaints of ill-treatment, on 23 November 2003 the applicant was at home. An ambulance was allegedly called for him which did not come. The applicant’s mother had arrived at home late at night on 23 November 2003 and, as the applicant was feeling bad and had fallen to the floor after getting up from the bed, she called him an ambulance. The ambulance arrived at 4.58 a.m. on 24 November 2003. The applicant was diagnosed with concussion and head injury, and taken to hospital. 15. On 24 November 2003 the applicant’s mother complained to the prosecutor’s office that the applicant had been ill-treated. 16. The applicant stayed in Konotop Central District Hospital from 24 November to 8 December 2003. He was diagnosed with concussion, bruises to the neck and left ear and acute bronchitis. The applicant told doctors that he had fallen. 17. According to the conclusions of the Konotop traffic police internal investigation of 18 December 2003, two traffic police officers, Ku. and G., were approached by D., who said that he had been stabbed in a bar. Ku. and G. arrested the applicant, handcuffed him and took him to the traffic police station. Later they took the applicant to the ambulance station, where he was tested for alcohol. The test was positive and the applicant was then taken back to the traffic police station and handed over to the police. The applicant’s injuries had been inflicted during the fight in which D. was stabbed. 18. During a forensic medical examination carried out between 25 November and 24 December 2003 the applicant stated that he had been beaten by the traffic police officers after fighting with D. According to the applicant, he was punched about three times on the head and chest and hit in the ear. He also had a helmet put on his head and was hit twice with a truncheon on the head. It was revealed that the applicant had bruises on his left ear and scratches on his left arm. The scratches had been caused by handcuffs. These injuries could have occurred on 22-23 November 2003 in the circumstances described by the applicant. The expert concluded that there were no marks indicating truncheon blows. 19. According to the conclusion of a report dated 24 December 2003, signed by the head of the Konotop traffic police unit, the use of handcuffs on the applicant had been justified. When Ku. and G. had arrived at the bar, there had been around twenty-five persons there. People started to run away and a window was broken. The applicant, P., and R. were recognised by Z.; however, as they were drunk, they refused to enter the police car, and they swore and resisted. 20. On 24 December 2003, following complaints by the applicant’s mother, the Konotop Town Prosecutor’s Office refused to institute criminal proceedings. Two traffic police officers, Ts. and T., testified that they had seen the applicant upon his arrival at the traffic police station and he had had no bodily injuries. Nobody had ill-treated the applicant. This was further confirmed by four other traffic police officers, D., and the doctor who had examined the applicant. Further, the prosecutor referred to the report of the police officer Ma. It was concluded that the police officers had not ill-treated the applicant. 21. On 2 March 2004 the Sumy Regional Prosecutor’s Office quashed the decision of 24 December 2003 and remitted the case for additional investigation. It was noted that when Kt. had been driving the applicant home at 9 a.m. on 23 November 2003, the latter had said that he had been beaten by police officers. The police officers testified that the applicant had been released at 2 a.m. The prosecutor noted that these, as well as other relevant circumstances, had not been verified and the quashed decision had been based on the testimony of the persons involved. Moreover, the cause of the applicant’s injuries had not been established. 22. On 19 March 2004 the Konotop Town Prosecutor’s Office again refused to institute criminal proceedings. It was found that, on the day of the incident, two young people, one having a stab wound, had asked the traffic police officers for help. The applicant, together with two other persons, had been taken to the traffic police station. Because they resisted arrest, they had been handcuffed. The applicant did not have any bodily injuries and that had been confirmed by a medical examination. A doctor, K., had been questioned and confirmed that, during the examination in the ambulance station on the night of 22 November 2003, the applicant had had no bodily injuries. Police officers had stated that the applicant had been questioned and released at about 2 a.m. on 23 November 2003. He had not had any injuries and they had not ill-treated him. Although R., who had been arrested together with the applicant, had testified that he had seen the applicant being beaten by the traffic police officers, it was concluded that his testimony, as well as the applicant’s statements, were not confirmed by the medical conclusions, and, in particular, that there had been no marks from truncheon blows on the applicant’s body (see paragraph 18). 23. On 3 December 2004 the Konotop Local Court quashed the decision of 19 March 2004 and remitted the case for further investigation. The court held that the cause of the applicant’s injuries had not been established and the testimony of Kt. had not been verified. 24. On 24 December 2004 the Konotop Prosecutor’s Office again rejected the applicant’s request to institute criminal proceedings. It was concluded that the applicant’s version of events was not confirmed by “the medical conclusion of 24 November 2003”. Furthermore it had been impossible to establish where the applicant had been between 3 and 9 a.m. on 23 November 2003. 25. On 26 May 2005 the Konotop Local Court quashed the decision of 24 December 2004 because the prosecutor had made a reference to the wrong provision of the Code of Criminal Procedure when rejecting the applicant’s complaints. 26. On 14 June 2005 the Konotop Town Prosecutor’s Office rejected a request by the applicant for the institution of criminal proceedings. The prosecutor found that the applicant’s description of events was not confirmed by the findings of the forensic medical examination which had been completed on 24 December 2003. 27. On 20 July 2005 the Sumy Regional Prosecutor’s Office quashed the decision of 14 June 2005 and remitted the case for further investigation. It was noted that the hospital doctors who had examined the applicant on 24 November 2005 had not been questioned. An additional medical examination of the applicant needed to be carried out, taking into consideration material from the hospital medical file. Moreover, it was unclear when exactly the applicant had been released. 28. During additional investigations in 2005 the majority of the witnesses (ambulance doctors, police officers, relatives of the applicant) stated that as the events of 22-24 November 2003 had happened long ago, they did not clearly remember them. Witness Kt. was not questioned since he had moved abroad. The records of the ambulance visit to the applicant of 24 November 2003 and the police station register had already been destroyed as their keeping period (one year for the police station register) had expired. 29. On 12 December 2005 the forensic medical examination concluded that the applicant had a scar on his right wrist. According to medical documents, on 22 November 2003 the applicant had sustained light bodily injuries. Such injuries could have been inflicted in the circumstances described by the applicant. It was unlikely that they had been inflicted by the applicant’s falling down. 30. On 23 December 2005 the Konotop Town Prosecutor’s Office again refused to institute criminal proceedings into the applicant’s complaint of ill-treatment. It was found that the applicant had been hospitalised on 24 November 2003 complaining of headache, nausea and a left ear injury. The applicant had not told the doctors that he had been beaten by the police. The applicant’s sister had testified that the applicant had come home during the morning of 23 November 2003 feeling ill and had told her that he had been beaten by the police. The prosecutor, however, referred to the findings of the courts in the criminal case against the applicant and decided that there were no grounds to institute criminal proceedings against the police officers. This decision was not appealed against. 31. On 11 December 2003 criminal proceedings were instituted against the applicant for hooliganism. 32. On 28 December 2003 the applicant was charged with hooliganism and the use of an offensive weapon. He signed an undertaking not to abscond. 33. On 31 January 2004 the applicant’s representative, B., was refused permission to represent the applicant in the criminal proceedings because B. did not hold an advocate’s certificate. B.’s appeals against that decision were unsuccessful. The applicant was represented in the criminal proceedings by his mother and by the advocates T. and S. 34. Between 9 February and 17 March 2004 the criminal proceedings were stayed because the applicant was ill. 35. On 17 March 2004 the criminal proceedings were resumed and the applicant was arrested. 36. On 19 March 2004 the Konotop Town Court authorised the applicant’s pre-trial detention. In doing so the court stated that “the materials of the case presented before the court confirmed the investigating officer’s conviction that the applicant might abscond or interfere with the course of justice”. 37. On 13 April 2004 the Sumy Regional Court of Appeal quashed the decision of 19 March 2004 because, by a Decree of the President of Ukraine which had entered into force on 19 March 2004, the Konotop Town Court had been dissolved. Therefore, the decision appealed against had been adopted by a court which no longer existed in law. The case was transferred to the newly created Konotop Local Court for fresh consideration. 38. On 28 April 2004 the Konotop Local Court authorised the applicant to be placed in pre-trial detention. In particular, the court held that the applicant had been accused of committing a serious crime to which he had not confessed. The court further noted that it was “the investigating officer’s right to decide on the tactics for the investigation and it was his right to decide to change the preventive measure [from an obligation not to abscond to pre-trial detention]”. 39. The applicant appealed against that decision. According to the Government, this appeal was received by the court on 5 May 2004. 40. On 18 May 2004 the Konotop Local Court found the applicant guilty of hooliganism and sentenced him to two years’ imprisonment. In particular, the court found that the applicant, P., and R., had followed M., S., Pv., Ps., Z., Kh. and D. onto the street. The applicant had asked M. why he had not stayed in the bar. The applicant then started to swear and tried to have a fight with Pv. When M., D. and Z. had tried to calm the applicant down he had struck D. with a knife. 41. In the court hearing the applicant stated that he had had a quarrel with D. but had not struck him with a knife. The court listened to the testimony of Ps., Kh. and S. The two latter witnesses withdrew the testimony they had given at the pre-trial stage and stated that the applicant had not in any way committed an offence against them. None of the other persons present during the incident attended the hearing because they were out of town. The court took into consideration the testimony they had given during the pre-trial investigation. The court also relied on various pieces of evidence and the conclusions of the forensic examinations. 42. On 1 June 2004 the Sumy Regional Court of Appeal rejected an appeal by the applicant against the decision of 28 April 2004, because the applicant had already been sentenced to imprisonment. 43. On 3 August 2004 the Sumy Regional Court of Appeal upheld the judgment of 18 May 2004. It also rejected as unsubstantiated the applicant’s complaints that he had been ill-treated. No particular reasoning was given for this conclusion as the court referred to certain undated decisions not to institute criminal proceedings following the applicant’s complaints. 44. By a decision of 14 April 2005 the Konotop Local Court rejected a request by the applicant to have his sentence commuted. 45. On 10 May 2005 the Supreme Court of Ukraine rejected an appeal in cassation by the applicant against his conviction. 46. On 23 June 2005 the Sumy Court of Appeal quashed the decision of 14 April 2005 and remitted the case for fresh consideration. 47. On 8 July 2005, by a decision of the Konotop Local Court, the applicant was granted an amnesty. 48. The applicant’s representative, B., asked the courts and the prosecutor’s office to provide him with copies of documents necessary for lodging a complaint before this Court. All his requests were rejected, mainly on the ground that he had not presented a valid power of authority and because he had requested documents other than those required in connection with the lodging of his complaints before the Court. 49. Articles 1 and 2 (as worded before the amendments of 1 December 2005) can be found in the following judgments respectively: Kobtsev v. Ukraine, no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005). 50. Following the amendments to the Compensation Act of 1 December 2005, the range of cases where the right to compensation would arise was expanded to include those in the following category: “(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on the remittal of cases for additional investigation)”.

dev

001-57549

ENG

BEL

CHAMBER

CASE OF VAN OOSTERWIJCK v. BELGIUM

Preliminary objection allowed (non-exhaustion of domestic remedies)

7. When she lodged her application, Danielle Van Oosterwijck had been working since 1963 in the Secretariat of the Commission of the European Communities; she was at the same time studying at the Free University of Brussels and, in June 1979, obtained a degree in law (licence en droit). Subsequently, she was enrolled as a first-year pupil at the Brussels Bar; she is entered on the roll of pupils as "Van Oosterwijck D.". 8. At birth, on 23 December 1944, the applicant possessed all the physical and biological characteristics of a child of the female sex and she was entered on the birth register of the Uccle district (Brussels) as the daughter of J. Van Oosterwijck, with the forenames Danielle, Juliette, Laure, Colette. However, according to her, from the age of five she became conscious of a dual personality: although physically female she felt herself psychologically of the male sex. After going through a period of depression on this account, she attempted suicide in 1962 and had to be treated in hospital (see paragraph 12 of the Commission’s report). 9. From 1966 onwards, the applicant - who will henceforth be referred to in the masculine, the male sex being the one assumed by Danielle Van Oosterwijck for social purposes at the time the application was lodged with the Commission - sought a solution to his problem by having a "sex-change" carried out on his body. In 1969, two specialists, Doctor Slosse and Doctor Dumont, respectively a neurologist and endocrinologist, found that the symptoms shown by the applicant unquestionably indicated transsexualism. In addition to having before them the report of a Belgian psychiatrist, they had also consulted a British psychiatrist, Doctor Randell. Whilst the doctors considered the use of psychotherapy ineffective in this field, they concluded, in the light of American, English and Danish research, that surgical treatment offered excellent prospects of success. They also took note of the fact that the applicant had consistently refused to accept the first kind of treatment and they believed it probable that he would attempt to commit suicide if the second kind were not adopted. Accordingly, they decided to apply hormone therapy, followed by surgery. 10. On being advised of the purposes, methods and effects of the treatment, the applicant stated his readiness to accept the risks. He therefore underwent hormone therapy which, after a few months led to appearance of the secondary sexual characteristics of a male, such as hair growth and change of voice. In July and December 1970 in Brussels, two surgeons, Mr. Fardeau and Mr. Longrée, successfully performed on him two operations of sexual conversion (bilateral mammectomy; hysterectomy-bilateral ovariectomy). Mr. Fardeau had previously sought the consent of the Medical Association: on 8 May 1970, the Secretary of the Council of the Brabant Province Branch of the Association had sent him the following reply: "As the problem you raise is a medical one, you should act according to your conscience but we must most strongly advise you to take all possible precautions in view of the very delicate nature of this type of operation." Subsequently, the applicant received a phalloplasty carried out in ten stages, from October 1971 to October 1973, by Professor Evans, a surgeon at Queen Mary’s Hospital in London. 11. The treatment has without any doubt substituted an outwardly male physique for a female physique, but the chromosomes remain those of the female sex. Part of the cost was borne by the Medical Service of the Commission of the European Communities; the Communities’ administrative department issued the applicant with an employment card made out in the name of Mr. D. Van Oosterwijck. 12. On 18 October 1973, the applicant filed a "petition for rectification of a civil states certificate ("requête en rectification d’un acte de l’état civil"): he requested the Brussels Court of First Instance to direct that his birth certificate should henceforth read "a child of the male sex with the forenames Daniel, Julien, Laurent, born on ..., son of ...". He relied, inter alia, on a decision delivered on 20 October 1965 by the Ghent Court of First Instance, which had adopted a similar solution in another case (see paragraph 18 below). The ministère public (Attorney-General’s department) submitted on 13 November 1973 that the petition should be disallowed: it was argued that D. Van Oosterwijck had not established, as he was obliged to do under the legislation in force, that the initial record of his sex was tainted by an error, whereas the case decided in Ghent did concern such an error. The Brussels Court dismissed the petition on 30 January 1974 on the ground that the petitioner had not demonstrated that the Registrar had made a mistake when drawing up the birth certificate; indeed, the petitioner’s submissions showed just the opposite since he did not claim to have been "fundamentally" a man from the outset. 13. D. Van Oosterwijck appealed to the Brussels Court of Appeal on 14 February 1974. He contended that a transsexual has by definition the sex opposite to that which is apparent at the time of his birth and criticised the Court of First Instance for disregarding the concept of transsexualism. According to him, the rectification being claimed was therefore a pressing legal necessity. He also requested the Court of Appeal to be guided by equity, humanity and the interests both of society and of himself in arriving at its decision. He maintained that, on this basis, the Court would accept that he was a man who no longer possessed the characteristics of a woman; that it was inconceivable not to recognise the consequences of transsexualism where it had been duly established; that the decision under appeal led to results that were absurd and harmful to the social order, for example the possession of patently incorrect identity documents. The parquet (Attorney-General’s department) submitted that the appeal should be dismissed, relying on the following arguments. There was controversy in medical circles regarding the syndrome known as transsexualism. Moreover, the assertion that D. Van Oosterwijck had always belonged "fundamentally" to the male sex was not corroborated by the facts; the Registrar of Births had made no mistake in recording what outward appearances revealed. In point of fact, some lawyers questioned whether, in the absence of an error, the only conceivable legal remedy did not consist of an "action d’état préalable" (a "preliminary action pertaining to personal status"); their views probably had force, but in the present proceedings the issue had not been put in that manner. Admittedly, the appellant had an affliction which caused him considerable suffering in human and personal terms; if this were the only aspect to be considered, it might perhaps have been possible to grant his petition. From the point of view of public policy (ordre public), on the other hand, the petition prompted the most serious reservation: its acceptance might provoke numerous other petitions and it would be dangerous to encourage indirectly by this means the proliferation of treatment whose effects, being irreversible, might subsequently be regretted by the patients themselves. Finally, the perpetual calling in question of certain situations, particularly in the realm of personal status, conflicted with the requirements of a rational organisation of the community: it would tend to an increase in personal problems and engender a climate of insecurity and instability in family and social relationships. The Brussels Court of Appeal dismissed D. Van Oosterwijck’s appeal on 7 May 1974. It held that, before it could be rectified, a civil status certificate had to contain an error committed when it was drawn up and that there was no provision in the laws as they then stood that allowed "account to be taken of artificial changes to and individual’s anatomy", such as those in the present case, "even if they correspond[ed] to his deep-seated psychical tendencies". However, "neither the physical examination of the appellant ... nor the proposed scientific evidence as to the biological aetiology of transsexualism" were capable of evidencing the existence, from the very outset, of "physical characteristics of the male sex or even (of) transsexual tendencies". 14. D. Van Oosterwijck decided not to take his case to the Court of Cassation. According to Appendix II to the Commission’s report, he had previously consulted "a number of qualified persons". In addition, Mr. Ansiaux, a lawyer practising before the Court of Cassation, advised the applicant after the event, on 20 September 1976 and in 1977, that in his view such an appeal would have had no prospects of success (see the verbatim record of the hearings of 24 April 1980 before the Court and paragraph 37 below). 15. The applicant has not, until now, sought authorisation to change his forenames, authorisation which may be granted by the Government in pursuance of an Act of 2 July 1974 supplementing the Act of 11 Germinal, Year XI - 1 April 1803 (see paragraph 20 below). He has an identity card bearing his female forenames, but with a photograph corresponding to his present outward appearance. 16. In Belgium, there is no legislation dealing with transsexualism. In the only case of the kind which appears to have given rise to a criminal prosecution, the Brussels Court of First Instance held, on 27 September 1969, that sex-change treatment and operations did not of themselves constitute criminal offences. They depended on the free decision of doctors and surgeons, acting according to their conscience and with the patients’ consent. 17. The drawing up of civil status certificates, including birth certificates, is regulated by the Civil Code. Under Article 55, declarations of birth have to be made before the Registrar of Births, Marriages and Deaths for the district. The certificate is drawn up immediately in the presence of two witnesses and states, amongst other things, the child’s sex and forenames (Articles 56 and 57). Rectification of civil status certificates is governed by Articles 1383 to 1385 of the Judicial Code. The person concerned has to file a petition with the Court of First Instance (Article 1383). The President of the Chamber designated to hear the matter gives directions for the petition to be communicated to the ministère public and appoints a judge-rapporteur; the petitioner is invited to appear at a hearing in order to present his case (Article 1384). The operatives provisions of any judgment ordering rectification are transmitted to the Registrar of Births, Marriages and Deaths who will forthwith enter particulars thereof on his registers and endorse them in the margin of the certificate to be amended; thereafter, the certificate will only be issued bearing the rectifications ordered (Article 1385). The Government referred the Court to a judgment dealing with the construction of these provisions: in the case of a couple who had obtained a judicial separation but later resumed co-habitation, the Verviers Court of First Instance held on 22 September 1969 that "rectifying a civil status certificate" involves making thereto "such additions, deletions or modifications as may be necessary to cause it to be in conformity with the law and with the true state of affairs regarding the status of the person or persons it concerns", including the situation where "a certificate, though properly prepared in the first place, no longer corresponds to the true state of affairs". 18. Several Belgian courts have had the occasion to hear petitions for rectification filed by persons who had undergone sex-change treatment in circumstances varying somewhat from one case to another. The Courts of First Instance of Charleroi (8 June 1973) and Malines (17 June 1975) dismissed the actions, whereas that of Ghent (20 October 1965) upheld the petition. Another case also resulted in a favourable decision for the petitioner, although the person concerned, unlike D. Van Oosterwijck, had not received a phalloplasty (Ghent Court of First Instance, 24 April 1978). The Court of Cassation has never been called on to consider the issue. 19. According to the Government, any civil status certificate may also be modified so as to coincide with the person’s current situation by means of an action d’état (an action pertaining to personal status). This "bringing into conformity" only has effect as regards the future. Up to the present time, apparently no one has instituted such an action with a view to obtaining recognition of a new sexual identity. 20. Since 23 August 1974, the date on which the above-mentioned Act of 2 July 1974 came into force (see paragraph 15 above), any person who has grounds for changing his forenames may apply to the government authorities setting out his reasons (section 4). If the application is allowed, the government authorities grant leave for the change by Royal Decree; on request by the person concerned, the Registrar of Births, Marriage and Deaths will then enter particulars of the Royal Decree on his registers and endorse them in the margin of the birth certificate. Any short form birth certificate subsequently issued must state the new forenames and not the former ones. At the present time, at last seven transsexuals have taken advantage of this Act, implementation of which in a given case has no legal bearing on the person’s sex. 21. The short-form certificates of civil status which third parties may procure do not state the descent or sex of the persons concerned (Article 45 par. 1, first sub-paragraph, of the Civil Code), but only their place and date of birth, family name and forenames. On the other hand, certified copies of the full certificate may be obtained by the individual himself, his spouse or surviving spouse, his legal representative, his ascendants, descendants or rightful heirs, the public authorities and persons having a family, scientific or other legitimate interest (Article 45 par. 1, second sub-paragraph). Identity cards, passports and driving licences do not specify the sex of the holder.

dev

001-105114

ENG

MLT

CHAMBER

CASE OF MERCIECA AND OTHERS v. MALTA

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

David Scicluna;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

6. The applicants were born in 1952, 1954, 1961, 1960, 1964, 1963 and 1945 respectively and live in Malta. They are certified public accountants acting personally and in their capacity as partners of the partnership Deloitte & Touche Certified Public Auditors & Accountants. 7. On an unspecified date the applicants were sued, personally and in their capacity as partners of the partnership Deloitte & Touche Certified Public Auditors & Accountants, as auditors of PCO Ltd, in a civil action by a company, V. The latter claimed that the applicants’ audit firm had acted negligently and fraudulently in its drawing up of PCO Ltd’s audit report/financial statements, and was therefore liable for the losses sustained by V as a result of its reliance on those documents. 8. During the proceedings the applicants raised a preliminary plea to the effect that reliance by V. on the audit report when taking a particular credit decision, and knowledge on the part of the applicants of such reliance when taking that decision, were lacking. These requirements were fundamental to this type of action. 9. On 1 December 2003 the Civil Court dismissed this plea in a preliminary judgment. 10. On 3 December 2003 the applicants requested special leave to appeal the preliminary judgment under Article 231 (1) of the Code of Organisation and Civil Procedure (“COCP”). On 12 December 2003, the Civil Court in its ordinary jurisdiction granted leave to appeal. 11. On 29 December 2003 the applicants lodged an appeal. 12. On 8 June 2004, having heard the parties’ arguments, the Court of Appeal dismissed the appeal as out of time. It noted that while the legislator had clearly established that the time-limit for lodging an appeal against an interlocutory decree ran from the date of authorisation to appeal, in respect of an appeal against a “judgment” the legislator had made no distinction between a “judgment” and a “partial judgment” (sentenża parżjali). It followed that the twenty-day time-limit which ran from the date of delivery of a judgment according to Article 226 (1) of the COCP applied also to appeals necessitating prior leave to appeal. 13. On 17 September 2004 the applicants instituted constitutional redress proceedings before the Civil Court in its constitutional jurisdiction, claiming that such an erroneous interpretation by the Court of Appeal deprived them of access to court. 14. On 15 November 2006 the Civil Court upheld the applicants’ claims, finding that a right to appeal could not arise before leave to appeal had been given. Moreover, an appellant did not have to tolerate the delays of a court in giving leave to appeal. The Court of Appeal’s interpretation had therefore deprived the applicants of access to court in violation of Article 6 of the Convention. It declared the Court of Appeal’s judgment null and void. 15. On 2 March 2007 the Constitutional Court, on appeal by the Attorney General, acknowledged that the interpretation given to the law had been erroneous, thereby depriving the applicants of their right to appeal at an early stage. Nevertheless, it did not uphold the first-instance judgment, since a wrong interpretation did not suffice to lead to a violation of the Convention. While reiterating that an appeal could be heard before the Court of Appeal only once, it considered that the applicants had the opportunity to appeal in the civil case after the final judgment. Thus, given that a defect in first-instance proceedings could be remedied on appeal, the right to a fair hearing would similarly not be violated if a remedy which had been inappropriately denied became available at a later stage of the proceedings. 16. Article 231 (1) of the Code of Organisation and Civil Procedure (“COCP”) (Chapter 12 of the Laws of Malta), at the relevant time, read as follows: “Where several issues in an action have been determined by separate judgments, appeal from any such judgments may only be entered after the final judgment and within the prescribed time, to be reckoned from the date of such final judgment; and in such an appeal express mention of the judgment or judgments appealed from shall be made: Provided that an appeal from such separate judgments may be entered before the final judgment only by leave of court to be read out in open court; such request for leave to appeal shall be made either orally immediately after the delivery of such judgment or by application within six days from such judgment.” 17. The Article was amended in 2005, whereby the following phrase was added to the proviso: “and when such leave to appeal from such separate judgments is granted the time for the filing of the appeal in respect thereof shall commence to run from the day on which the said leave is read out in open court.” 18. Article 226 (1) of the COCP reads as follows: “An appeal is entered by means of an application to be filed with the registry of the Court of Appeal within twenty days from the date of the judgment.”

dev

001-67675

ENG

NLD

ADMISSIBILITY

AMEGNIGAN v. THE NETHERLANDS

Inadmissible

The applicant, Mr Kossi Archil Amegnigan, is a Togolese national, who was born in 1980 and lives in Klazienaveen. He is represented before the Court by Mr R. Bosma, a lawyer practising in Assen. On 18 September 2000, the applicant applied for asylum in the Netherlands under a false identity. This asylum request was rejected by decision of 19 December 2001. The applicant's subsequent appeal was dismissed on 17 June 2003 by the Regional Court (arrondissementsrechtbank) of The Hague. On 14 March 2001, the applicant filed a second request for asylum in the Netherlands, this time under this true identity. He stated that he was single, that he had no relatives living in the Netherlands and that his father had died. His family in Togo consisted of his maternal grandfather, his mother and one brother who was born in 1985. He had no other relatives. He claimed that he had been arrested in Togo on 5 November 2000 after a passenger in his taxi had been found to carry weapon parts, that he had been taken into detention, had been ill-treated during his detention and had managed to escape with the aid of a guard. He further claimed that had left Togo by boat on 22 February 2001 and that he had arrived in the Netherlands on 11 March 2001. On an unspecified date, a medical examination of the applicant disclosed that he might be infected with HIV and he was referred to the Groningen Academic Hospital in May 2001 for further medical examinations. In a letter of 4 July 2001, a specialist in internal diseases of this hospital confirmed this diagnosis and stated that the applicant found himself in the A3 clinical category of the disease, i.e. the asymptomatic stage of the disease with a CD4+ count of less than 200 cells/µL. The specialist concluded that, given the low CD4+ count, antiretroviral treatment was indicated. The applicant was in fact provided with such treatment. On 19 December 2001, the Deputy Minister of Justice (Staatsecretairs van Justitie) rejected the applicant's asylum request, finding that the applicant's asylum account lacked credibility. In so far as the applicant relied on his health problems, the Deputy Minister considered that the applicant could apply for a residence permit on medical grounds. On 14 January 2002, the applicant filed an appeal with the Regional Court of The Hague. In a letter of 24 March 2003, a specialist in internal diseases of the Groningen Academic Hospital informed the applicant's lawyer that, if the applicant were to cease taking anti-HIV medication, his prospects would become very unfavourable within a short delay. The specialist further wrote that it was not to be expected that, in Togo, medication was obtainable that the applicant needed to suppress the HIV-infection and to improve his immune system. On 17 June 2003, following a hearing held on 25 March 2003, the Regional Court of The Hague rejected the applicant's appeal of 14 January 2002. It accepted the finding of the Deputy Minister that no credence could be attached to the applicant's asylum account. In so far as the applicant relied on his health problems, the Regional Court decided not to take into account the information set out in the letter of 24 March 2003 as this information had only been submitted one day before the hearing held on 25 March 2003. It found that taking this information into consideration would be contrary to the principles of due process. It further held that it had not been established that there was a causal link between the applicant's illness and his departure from Togo and that it had not appeared that there were such compelling reasons of a humanitarian nature being connected to the applicant's reasons for leaving Togo that it should be held that, in all reasonability, it could not be expected from the applicant to return to his country of origin. No further appeal lay against this decision. On 16 October 2003, the applicant filed a third request for asylum on the basis of newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden). When, on the same date, he was interviewed by the immigration authorities on this request, the applicant stated inter alia that he was cohabiting with another asylum seeker from Togo since 2002 and that two children had been born out of this relationship in March 2002 and July 2003, respectively. He further stated that his family in Togo consisted of his mother and a younger brother. This third request was rejected on 19 October 2003 by the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), who had succeeded the Deputy Minister of Justice under the Aliens Act 2000 (Vreemdelingenwet) which, on 1 April 2001, had replaced the Aliens Act 1965. As to the applicant's argument that, given his HIVinfection, his expulsion to Togo would be in violation of his rights under Article 3 of the Convention; the Minister recalled that, according to the constant case-law, such a situation would only arise if the alien concerned found himself in an advanced and directly life-threatening stage of an incurable disease. The Minister found that there were insufficient indications in the applicant's submissions for holding that there was such a situation in his case and, on this basis, concluded that – irrespective of the possibilities of treatment in Togo and the presence a social support network there – the applicant's case did not raise an issue under Article 3 of the Convention. Moreover, as already indicated in the decision of 19 December 2001, the applicant could apply for a temporary residence permit on medical grounds. The Minister further found no indication in the applicant's case for concluding that, owing to traumatic experiences linked to the reasons for leaving the country of origin, it could not in all reasonability be expected from the applicant to return to Togo thus rendering him eligible for a residence permit on grounds of compelling reasons of a humanitarian nature. On this point, the Minister considered that the health problems relied on by the applicant were not linked to his reasons for leaving Togo. The applicant was ordered to leave the Netherlands within 24 hours. On 25 October 2003, the Minister informed the Central Agency for the Reception of Asylum Seekers (Central Orgaan opvang Asielzoekers; “COA”), since the applicant's asylum request had been rejected on 19 October 2003, the applicant's entitlement to State-sponsored reception and care facilities for asylum seekers (“opvang”) had ceased. However, the Minister was of the opinion that the applicant's expulsion should be stayed under Article 64 of the Aliens Act 2000 as, according to medical advice obtained, the applicant was unfit to travel. The Minister therefore advised the COA to prolong the provision of reception and care facilities to the applicant until 8 January 2004. On the same day, the Minister informed the applicant that the COA had been advised to prolong until 8 January 2004 the provision of facilities. The Minister further indicated that an advice of the Medical Advice Bureau (Bureau Medische Advisering) would be sought on a possible prolongation of this period. On 3 November 2003, the applicant's treating specialist doctor of the Groningen Academic Hospital informed the applicant's lawyer that, two years after having started treatment in August 2001, the applicant's condition was stable but that his immune system had apparently been so weakened when he had started treatment that it had still not been properly restored. The doctor further stated that by the suppression of the AIDS virus there was no direct danger, but that as soon as the anti-HIV therapy would be stopped, the applicant would fall back to the advanced stage of the disease which, given its incurable nature, would entail a direct threat for life. The applicant's appeal against this Minister's decision of 19 October 2003 was dismissed by the Regional Court of The Hague on 13 November 2003. By letter of 4 March 2004, the Minister for Immigration and Integration informed the applicant's lawyer that, before a decision could be taken on the question whether the applicant's expulsion should be stayed further on medical grounds, it was necessary to obtain medical information from the doctors treating the applicant for which the latter's written consent was required. The applicant's lawyer was requested to return the appended consent form within two weeks. On 25 March 2004, the Minister informed the applicant that, pending the issuance of an advisory opinion of the Medical Advice Bureau about his situation and on the basis of Article 64 of the Aliens Act 2000, his expulsion would be stayed until 8 July 2004. The applicant's appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State against the ruling given on 13 November 2003 by the Regional Court of The Hague was rejected on 5 April 2004. Although the Administrative Jurisdiction Division accepted that the letter of 24 March 2003 of the Groningen Academic Hospital constituted a relevant new fact, it found that this could not lead to quashing the impugned decision taken by the Minister on 19 October 2003. It considered that it could not be concluded from the contents of this letter that the applicant's illness had attained such an advanced and direct lifethreatening stage that it should be held that the expulsion of the applicant to Togo or any other country would be in violation of Article 3 of the Convention. It further took into consideration that – according to an additional medical statement of 3 November 2003 that had been submitted to the Regional Court – the HIV-virus would be suppressed as long the applicant would continue taking medication, so that there was no direct threat for life. It therefore accepted that there were no grounds on the basis of which the Minister should reconsider the decision of 19 December 2001. Under Article 15 § 1 of the Aliens Act 1965 (Vreemdelingenwet, hereinafter “the Act”), which was in force until 1 April 2001, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political convictions, or of belonging to a particular race or a particular social group, could be admitted as refugees. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the Geneva Convention (decision of the Judicial Division (Afdeling Rechtspraak) of Council of State of 16 October 1980, Rechtspraak Vreemdelingenrecht [Immigration Law Reports] 1981, no. 1). On 1 April 2001, the Aliens Act 2000 entered into force. On the basis of Article 29 of the new Aliens Act, an alien may be eligible for a residence permit for the purposes of asylum if, inter alia, – he or she is a refugee within the meaning of the Geneva Convention, or – he or she has established well-founded reasons to assume that he/she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) provides that an applicant must adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) if a new request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the res iudicata principle for the administrative law. Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of Article 4:6. In the case of a repeat asylum application which also invokes the risk of treatment contrary to Article 3 of the Convention, an assessment by the court outside the framework of Article 4:6 is therefore possible. The Administrative Jurisdiction Division of the Council of State has on one occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances (judgment of 24 April 2003, no. 220300506/1, Nieuwsbrief Asiel- en Vluchtelingenrecht [Newsletter on Asylum and Refugeelaw] 2003/160). It did so on the basis of the exceptional circumstance that there was no dispute between the parties, that on his return to his country of origin, the alien would run a real risk of being subjected to treatment or punishment proscribed by Article 3 of the Convention. During the initial asylum procedure, an alien is in principle entitled to reception and other facilities including health care, provided by the State. Pursuant to Article 10 of the Aliens Act 2000, an alien whose stay in the Netherlands is not lawful is not entitled to such facilities. This provision applies to asylum seekers whose applications have been unsuccessful. Also, a second or further application for asylum does not confer a new entitlement to facilities. An exception to that basic principle can nevertheless be made if, inter alia, the asylum seeker finds him or herself in extremely compelling humanitarian circumstances (zeer schrijnende humanitaire omstandigheden, Chapter C5/20.4 of the Aliens Circular 2000). The COA decides whether or not facilities will be provided. Appeal lies against a decision to refuse facilities, but also against a failure to decide (or to decide within a reasonable time) on a request for facilities. The lodging of an appeal does not suspend the denial of facilities, but a provisional measure may be requested to the effect that such facilities are made available pending the appeal proceedings. According to Article 63 of the Aliens Act 2000, the Minister can order the expulsion of an alien illegally staying in the Netherlands and who has not voluntarily left the Netherlands within the time-limit fixed for this purpose. However, pursuant to Article 64 of the Aliens Act 2000, no expulsion will take place when, in view of the health condition of the alien, travelling is contra-indicated. In a report dated September 2000 of the German Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) on HIV and AIDS in Togo, it is stated that – according to information set out in the UNAIDS/WHO Epidemiological Fact Sheet 2000 on TOGO – it was assumed that 5.98% of the adult population in Togo was HIV-positive whereas less than 5% of the total population in Togo is insured against sickness. As regards the local possibilities of treatment, the report states that – although treatment is possible in various hospitals in the capital of Togo as well as in all regional hospitals – many patients cannot afford treatment. According to a report issued on 20 August 2002 by the Swiss Federal Office for Refugees (Office federal des réfugiés), treatment is available in Togo, both in various hospitals in its capital Lomé and in four regional hospitals. It further states that, as less than 5% of the total population in Togo has a health insurance, the costs of treatment are generally borne privately and that, as the average monthly income in Togo lies between 38 and 76 euros, a person infected with HIV or suffering from AIDS who does not have health insurance will hardly be able to afford treatment if relatives are unable to provide financial support, despite the fact that negotiations between the Togolese authorities and the pharmaceutical industry have resulted in a considerable reduction of the prices of certain medications for the treatment of HIV/AIDS.

dev

001-60003

ENG

POL

CHAMBER

CASE OF GORZELIK AND OTHERS v. POLAND

No violation of Art. 11

Georg Ress

8. On an unknown date the applicants (who all describe themselves as “Silesians”), together with one hundred and ninety other persons, decided to form an association (stowarzyszenie) entitled “Union of People of Silesian Nationality” (Związek Ludności Narodowości Śląskiej). The founders subsequently adopted a memorandum of association. The applicants were elected to the provisional management committee (Komitet Założycielski) and were authorised to proceed with the registration of the association. 9. On 11 December 1996 the applicants, acting on behalf of the provisional management committee of the “Union of People of Silesian Nationality”, lodged an application for the registration of their association with the Katowice Regional Court (Sąd Wojewódzki). They relied on, inter alia, section 8(2) of the Law of 7 April 1989 on Associations (hereinafter referred to as the “Law on Associations”). They submitted the memorandum of association along with the other documents required by the Law on Associations. The relevant parts of the memorandum of association read: “1. The present association shall be called the “Union of People of Silesian Nationality” (hereinafter referred to as the “Union”). 2. The Union shall conduct its activity within the territory of the Republic of Poland; it may establish local branches. ... 6 (1). The Union may join other domestic or international organisations if the aims pursued by [the latter] correspond to the aims pursued by the Union. ... 7. The aims of the Union are: (1) to awaken and strengthen the national consciousness of Silesians; (2) to restore Silesian culture; (3) to promote knowledge of Silesia; (4) to protect the ethnic rights of persons of Silesian nationality; [and] (5) to provide social care for members of the Union. 8. The Union shall accomplish its aims by the following means: (1) organising lectures, seminars, training courses and meetings, establishing libraries and clubs, and carrying out scientific research; (2) organising cultural and educational activities for members of the Union and other persons; (3) carrying out promotional and publishing activities; (4) promoting the emblems and colours of Silesia and Upper Silesia; (5) organising demonstrations or [other] protest actions; (6) organising sporting events ... and other forms of leisure activities; (7) setting up schools and other educational establishments; (8) cooperating with other organisations; (9) conducting business activities for the purpose of financing the aims of the Union – this may include establishing commercial entities and co-operating with other [commercial] entities; (10) establishing other entities or [legal] persons with a view to achieving the aims of the Union; and (11) any other activities. 9. There shall be two categories of members of the Union, namely ordinary members and supporting members. 10. Any person of Silesian nationality may become an ordinary member of the Union. ...” Paragraph 15 read, in so far as relevant: “A person shall cease to be a member of the Union if: … 2. (a) on a reasoned motion by the board of auditors, the management board decides to deprive him of his membership; (b) the relevant motion of the board of auditors may be based on such reasons as the fact that the member in question has not fulfilled the requirements set out in the memorandum of association for becoming a member or has failed to perform the duties of members as specified in paragraph 14. ... “ Paragraph 30 provided: “The Union is an organisation of the Silesian national minority.” 10. On an unknown later date the Katowice Regional Court, pursuant to section 13 (2) of the Law on Associations, served a copy of the applicants’ application, together with copies of the relevant enclosures, on the Katowice Governor (Wojewoda). 11. On 27 January 1997 the Katowice Governor, acting through the Department of Civic Affairs (Wydział Obywatelski), submitted his comments on the application to the court. These comments contain lengthy arguments against allowing the association to be registered, the main thrust of which is as follows: “(i) It cannot be said that there is a ‘Silesian’ (Ślązak), in the sense of a representative of a distinct ‘Silesian nationality’. ‘Silesian’ is a word denoting a representative of a local ethnic group, not a nation. This is confirmed by paragraph 7 (1) of the memorandum of association, which aims merely to ‘awake and strengthen the national consciousness of Silesians’. … (ii) Social research relied on by the applicants to demonstrate the existence of a ‘Silesian nationality’ does not accord with numerous other scientific publications. Polish sociology distinguishes between two concepts of ‘homeland’, i.e. a ‘local homeland’ and a ‘ideological homeland’. In German, this distinction is expressed by the terms Heimat (local homeland) and Vaterland (ideological homeland). The research relied on by the applicants merely refers to the self-identification of the inhabitants of Silesia, indicating that their local self-identification takes precedence over their national self-identification. … (iii) Paragraph 10 of the memorandum of association states that any person of Silesian nationality may become an ordinary member of the association, but does not clearly specify the criteria for establishing whether or not a given person fulfils this requirement. This absence of unambiguous criteria is contrary to section 10 (1) and (4) of the Law on Associations. Moreover, it renders paragraph 15 (2) (b) of the memorandum unlawful, for that provision allows the board of management to deprive a person of his membership in the event of failure to satisfy the conditions set out in the memorandum of association. … (iv) Paragraph 30 of the memorandum of association, which calls the Union an “organisation of the Silesian national minority”, is misleading and does not correspond to the facts. There is no basis for regarding the Silesians as a national minority. Recognising them as such would have been in breach of Articles 67 § 2 and 81 § 1 of the [old] Constitution, which guarantee Polish citizens equal rights. In particular, under the relevant provisions of the Law of 28 May 1993 on Parliamentary Elections (hereinafter referred to as the “Law on Parliamentary Elections”) (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej), registration of the Union would give it a privileged position in respect of the distribution of seats in Parliament. The Union would obtain privileges and rights guaranteed to national minorities in respect of education in their native language and access to the media. Registration of the association would have been to the detriment of other ethnic groups in Poland, such as Cracovians (Krakowiacy), Highlanders (Górale) and Mazurians (Mazurzy); this would have amounted to a return to the tribalism (podziały plemienne) which had existed prior to the formation of the Polish State. … (v) We therefore propose that the memorandum of association should be amended so as to reflect the above observations. In particular, the misleading name of the association should be changed, the criteria for membership should be set out in an unambiguous manner and paragraph 30 should be deleted. In our opinion, these are the conditions for registration of the association.” 12. On 13 March 1997 the applicants filed a pleading in reply to those arguments. They asserted that the fact that the majority of Poles failed to recognise the existence of a Silesian nation did not mean that there was no such nation. They cited various scientific publications and went on to explain that the fact that the Silesians formed a distinct group had already been acknowledged at the end of the First World War; moreover, the Silesians had always sought to preserve their identity and had always formed a distinct group, regardless of whether Upper Silesia had belonged to Germany or to Poland. Consequently, any comparison between them and the Cracovians or Highlanders was totally unjustified because the latter groups neither regarded themselves as a national minority, nor had they ever been perceived as such in the past. Finally, the applicants cited certain letters of the Ministry of the Interior, which had been published by the press and which explained that the National and Ethnic Minorities Bill had explicitly stated that a “declaration that a person belongs to a minority shall not be questioned or verified by the public authorities”. 13. On 9 April 1997 the Katowice Governor filed a pleading with the court. He maintained his previous position. On 14 April 1997 he produced two letters from the Ministry of the Interior (dated 4 February and 10 April 1997 respectively, and addressed to the Department of Civic Affairs of the Office of the Katowice Governor). The relevant parts of the letter of 4 February 1997 read: “We share your doubts as to whether certain inhabitants of Silesia should be deemed to be a national minority. We therefore propose that you submit your observations to the court, indicating those doubts, and that you ask the court to grant you leave to join the proceedings as a party. We propose that you rely on the fact that the Framework Convention for the Protection of National Minorities has not been ratified by Poland, so that its provisions [do not apply in the domestic legal system]. ... In our view, neither historical nor ethnographical circumstances justify the opinion that the inhabitants of Silesia can be recognised as a national minority.” The relevant parts of the letter of 10 April 1997 read as follows: “... The arguments advanced by the provisional management committee of the association [in their pleading of 13 March 1997] do not contain any new elements; [in particular] ... the Framework Convention does not constitute the law applicable in Poland. Likewise, the letters of the Ministry of the Interior [on the interpretation of the National and Ethnic Minorities Bill] do not change the situation. The sense of belonging to a nation falls within the realm of personal liberties; it does not in itself entail any legal consequences. [By contrast,] the formation of an organisation of a national minority is a legal fact which entails legal consequences such as, for instance, those referred to in the Law on Parliamentary Elections. In the circumstances, the registration of the association called the “Union of People of Silesian Nationality” could be allowed provided that the existence of such a nation had been established.” 14. On 28 April 1997 the applicants submitted a further pleading to the court. They criticised the arguments of the Ministry of the Interior, pointing out that the latter had failed to indicate any legal basis for rejecting their application. In particular, the authorities had not shown that any provision of the memorandum of association was contrary to the law whereas, under section 1 (2) of the Law on Associations, “the exercise of the right to association may be subject only to such limitations as are prescribed by statute and are necessary for ensuring the interests of national security or public order and for the protection of health or morals, or for the protection of the rights and freedoms of others”. Lastly, the applicants stated that they would not to amend the memorandum of association in the manner proposed by the authorities, in particular in respect of the name of the association and the content of paragraph 30. They agreed, however, to amend paragraph 10 of the memorandum and phrased it as follows: “Everyone who is a Polish citizen and who has submitted a written declaration stating that he is of Silesian nationality may become an ordinary member [of the Union].” 15. On 23 May 1997 the Katowice Regional Court held an “explanatory session” (posiedzenie wyjaśniające) aimed at obtaining comments and clarifications from the parties and settling the matters in dispute. 16. On 27 May 1997 the applicants lodged a pleading with the court, maintaining that in the course of the above-mentioned session the authorities had “de facto acknowledged that a Silesian nation exists”, in particular by accepting the name of the association and certain provisions of the memorandum (i.e. paragraph 7 (1) and (4) and paragraph 10)”. They stressed however that the authorities’ insistence on deleting paragraph 30 was “unjustified and illogical” and, consequently, refused to alter or delete that provision. Later, on 16 June 1997, the Katowice Governor submitted his final pleading to the court, opposing the registration of the association. 17. On 24 June 1997 a single judge, sitting in camera as the Katowice Regional Court, granted the applicants’ application and registered their association under the name of the “Union of People of Silesian Nationality”. The reasons for that decision read, in so far as relevant: “... There was a dispute between [the parties] over the concepts ‘nation’ and ‘national minority’. Finally [the authorities concerned] pleaded that the application for registration of the association should be dismissed. This court has found that the application is well-founded [and as such should be granted]. In the Preamble to the Law on Associations, the legislature guarantees [everyone] a cardinal right, the right to freedom of association, which enables citizens, regardless of their convictions, to participate actively in public life and to express different opinions, and to achieve individual interests. Freedom of association is one of the natural rights of a human being. [For this reason,] section 1(1) of the Law on Associations does not establish the right to freedom of association but merely sets out the manner and limits of its exercise, thus reflecting Poland’s international obligations. Under section 1(2) of the Law on Associations, the right to form an association may be subject only to such limitations as are prescribed by statute either in the interests of national security or public safety, or in the interests of public order, or for the protection of health and morals, or for the protection of the rights and freedoms of others. No other restrictions may be placed on the exercise of the right to associate with others. As recently as 16 June 1997, in their pleading, the authorities advanced the argument that the registration of the present association would infringe the rights and freedoms of others because it would result in an unequal treatment of other local communities and would diminish their rights. This argument is unconvincing since it does not emerge from the content of the memorandum of association that the future activities of the association are aimed at [diminishing] the rights and freedoms of others. Pursuant to paragraph 7 of the memorandum of association, the aims of the association are [, for example,] to awaken and strengthen the national consciousness of Silesians, to restore Silesian culture, to promote knowledge of Silesia and to provide social care for members of the association. None whatsoever of these aims is directed against the rights and freedoms of others. The means to be used for accomplishing these aims are not directed against the rights and freedoms of others either. Those means include organising lectures and seminars, carrying out scientific research, establishing libraries, organising cultural and educational activities for members and other persons, carrying out promotional and publishing activities, promoting the emblems and colours of Silesia and Upper Silesia, organising demonstrations and protest actions, organising sporting events, setting up schools and other educational establishments, conducting business activities and co-operating with other organisations. In sum, the argument that the association would infringe the rights and freedoms of others must definitely be rejected. Moreover, it should be noted that this argument refers to [a mere possibility] because only practical action taken by the association could possibly demonstrate whether, and if so to what extent, the [future] activities of the association would necessitate the use of measures aimed at protecting the rights of others. As regards the terms ‘Silesian nationality’ or ‘Silesian national minority’, the problems involved in the determination of their proper meaning cannot be examined by this court in detail. This court must, pursuant section 13(1) of the Law on Associations, rule on the present application within a period not exceeding three months from the date on which it was lodged. It is therefore not possible [in the course of the present proceedings] to determine such complicated issues (which involve problems falling within the sphere of international relations). It is, however, possible to assume, for the purposes of making a ruling in these proceedings, that the nationality of an individual is a matter of choice for him; moreover, it is a matter of common knowledge that the original inhabitants of Silesia constitute a minority in Upper Silesia – at least for anyone who has ever spent some time in this region and has been willing to perceive this fact. After all, the authorities, although they rend their garments [sic], complaining that the applicants dared to establish an association, do not contest the fact that [the Silesians] are an ethnic minority. In view of the foregoing this court, finding that the provisional management committee complied with the requirements laid down in sections 8(4), 12 and 16, read in conjunction with section 13 (2) of the Law on Associations and Article 516 of the Code of Civil Procedure, holds as in the operative part of the decision”. 18. On 2 July 1997 the Katowice Governor lodged an appeal with the Katowice Court of Appeal (Sąd Apelacyjny), asking that the first-instance decision be quashed, that the case be remitted to the court of first instance, and that expert evidence be obtained in order to determine the meaning of the terms “nation” and “national minority”. In his appeal, he alleged that the court of first instance had violated sections 1(1) and 2 of the Law on Associations and unspecified provisions of the Code of Civil Procedure. The reasons for the appeal read, in so far as relevant: “[The court of first instance] formally recognised and legally sanctioned the existence of a distinct Silesian nation constituting a ‘Silesian national minority’. In our opinion, such an important and unprecedented ruling, which is of international significance, could not and should not be given without defining the concepts of ‘nation’ and ‘national minority’. The Regional Court, leaving this issue aside – merely because of certain statutory time-limits –simplified the proceedings in an unacceptable manner. This led, in itself, to a failure on the part of the court to establish all the circumstances relevant to the outcome of the case and, furthermore, provided a sufficient basis for this appeal. The appellant admits that Polish law does not define the terms ‘nation’ and ‘national minority’. This, however, does not justify the conclusion of the Regional Court that ‘the nationality of an individual is a matter of choice for him’. The appellant does not contest the right of a person to decide freely to belong to a national minority; however, a precondition for making such a choice is the existence of a ‘nation’ with which that person identifies himself. The decision appealed against proclaims the opinion that the subjective feelings of the person concerned suffice for the purposes of creating a ‘nation’ or a ‘nationality. Having regard to the potential social repercussions of such an approach, it is not possible to agree with it. In these circumstances, prior to making any decision on the registration of the ‘Union of People of Silesian Nationality’, it is necessary to determine whether a ‘Silesian nation’ exists – a distinct, non-Polish nation – and whether it is admissible in law to create a ‘Silesian national minority’. In the appellant’s opinion, there are no objective arguments in favour of the finding that a distinct Silesian nation exists. In case of doubt, ... this question should be resolved by obtaining evidence from experts. In the contested decision, the lower court in principle focused on determining whether the aims of the association and the means of accomplishing those aims were lawful. … The appellant does not contest the majority of these aims; it must be said that such activities as restoring Silesian culture, promoting knowledge of Silesia or providing social care for members of the association are worthy of respect and support. However, these aims can fully be accomplished without the contested provision of the memorandum of association, i.e. paragraph 30 ... . In addition, the applicants were not prevented from incorporating the above-mentioned aims into the memorandum of an existing association called the ‘Movement for the Autonomy of Silesia’ (Ruch Autonomii Śląska), the more so as the applicants belong to influential circles of the latter organisation. The fact that the applicants have failed to do so but [instead] are creating a new association, and are describing themselves as a ‘Silesian national minority’, clearly demonstrates what their real objective is. In fact, their objective is to circumvent the provisions of the Law of 28 May 1993 on Parliamentary Elections, under which parties or other organisations standing in elections must reach a threshold of 5% or 7% of the vote in order to obtain seats in the Parliament. ... Legal acts – including the act of adopting a memorandum of association – are null and void under Article 58 § 1 of the Civil Code if they aim at evading or circumventing the law. Legal theory formulates the opinion that defects in legal acts, as defined in Article 58 of the Civil Code, may constitute a basis for refusing to register an association. Sanctioning the rights of the ‘Silesian national minority’ amounts to discrimination against other regional and ethnic groups or societies. This will be the case at least as regards electoral law and will be contrary to Article 67 § 2 of the Constitution. …” 19. The Katowice Court of Appeal heard the appeal on 24 September 1997. The Katowice Prosecutor of Appeal (Prokurator Apelacyjny) appeared at the hearing and asked the court to grant him leave to join the proceedings as a party intervening on behalf of the Katowice Governor. The leave was granted. The court next heard addresses by the appellant, the prosecutor (who requested the court to set aside the first-instance decision and dismiss the applicants’ application) and the representative of the applicants. On the same day the court set aside the first-instance decision and dismissed the applicants’ application for their association to be registered. The reasons for that decision read, in so far as relevant: “... The lower court, by registering the association entitled ‘Union of People of Silesian Nationality’, approved paragraph 30 of the memorandum of association, which states that the Union is an organisation of the Silesian national minority. We therefore agree with the appellant that the Union, on the basis of the above-mentioned paragraph, would have the right to benefit from the statutory privileges laid down in section 5 of the Law on Parliamentary Elections. ... Furthermore, recognising the Silesians as a national minority may also result in further claims on their part [for privileges] granted to national minorities by other statutes. ... Contrary to the opinion expressed by the lower court, it is possible to determine whether or not the Silesians constitute a national minority in Poland; it is not necessary to obtain expert evidence in that connection. Under Article 228 § 1 of the Code of Civil Procedure, facts that are a matter of common knowledge, i.e. those which every sensible and experienced citizen should know, do not need to be proved. Common knowledge includes historical, economical, political and social phenomena and events. It is therefore clear that at present no legal definition of ‘nation’ and ‘national minority’ is commonly accepted in international relations,. ... On the other hand, an ‘ethnic group’ is understood as a group which has a distinct language, a specific culture and a sense of social ties, is aware of the fact that it differs from other groups, and has its own name. Polish ethnographic science of the 19th and 20th centuries describes ‘Silesians’ as an autochthonous population of Polish origin residing in Silesia – a geographical and historical region. At present, as a result of political and social changes, the term ‘Silesians’ refers equally to immigrant inhabitants who have been residing in this territory for several generations and who have been identifying themselves with their new region of residence. It also refers to the German-speaking population, linked with Silesia by [such factors as] birth, residence and tradition (see the Encyclopaedia published by the Polish Scientific Publishers in 1996). ... The applicants derive the rights they claim from the principles set out in the [Framework Convention for the Protection of National Minorities], stating that every person belonging to a national minority has the right freely to choose to belong or not to belong to such a minority. ... In invoking European standards, they fail, however, to remember that a national minority with which a given person identifies himself must exist. There must be a society, established on the basis of objective criteria, with which this person wishes to identify. No one can determine his national identity in isolation from a fundamental element, which is the existence of a specific nation. It emerges from the above-mentioned definition of a ‘nation’ that a nation is formed in a historical process which may last for centuries and that the crucial element which forms a nation is its self-identification, that is to say its national awareness established on the basis of the existing culture by a society residing on a specific territory. Certainly, the Silesians belong to a regional group with a very deep sense of identity, including their cultural identity; no one can deny that they are distinct. This does not, however, suffice for them to be considered as a distinct nation. They have never commonly been perceived as a distinct nation and they have never tried to determine their identity in terms of [the criteria for a ‘nation’]. On the contrary, the history of Silesia unequivocally demonstrates that autochthonous inhabitants [of this region] have preserved their distinct culture and language (the latter having Polish roots from an ethnic point of view,), even though their territories were not within the borders of the Polish State and even though they were under strong German influence. They are therefore Silesians – in the sense of [inhabitants of the] region, not in the sense of [their] nationality. Thus, Upper Silesia, in its ethnic roots [sic], remained Polish; that was, without a doubt, demonstrated by three uprisings. The role played by the Silesians in building and preserving the Polish character of Silesia, even though they remained isolated from their homeland, is unquestionable. However, a given nation exists where a group of individuals, considering themselves a ‘nation’, is in addition accepted and perceived as such by others. In the common opinion of Polish citizens, both the Silesians and other regional groups or communities [e.g. Highlanders or Mazurians] are perceived merely in terms of local communities. In the international sphere Poland and, similarly, France and Germany, are perceived as single-nation States, regardless of the fact that there exist distinct ethnic groups (e.g. the inhabitants of Alsace or Lorraine in France, or the inhabitants of Bavaria in Germany). On the whole, sociologists agree that the Silesians constitute an ethnic group and that the autochthonous inhabitants [of Silesia] do have some features of a nation but that those features are not fully developed. That ... means that the awakening of their national identity is still at a very early stage. A nation exists only when there are no doubts as to its right to exist. ... In Poland national minorities do constitute only a small part of the society, that is to say about 3-4%. They comprise – and this has never been denied – Germans, Ukrainians, Belarusians, Lithuanians, Slovaks, Czechs, Jews, Roma, Armenians and Tatars. In the Polish tradition, national minorities are perceived as groups linked to a majority outside Poland; in other words, a minority is an ethnic group which has support amongst a majority [residing] abroad. Moreover, traditionally, our society has not considered that groups which preserve a distinct culture but which do not belong to any State can be deemed to be national minorities. Accordingly, for a long time the Roma people were regarded as an ethnic, not a national group. ... The applicants’ opinion that the mere choice of the individual concerned is decisive for his nationality is reflected in paragraph 10 of the memorandum of association. Acceptance of this opinion would consequently lead to a situation in which the aims pursued by the association could be accomplished by groups of members who did not have any connection or links with Silesia and who had become members of the Union solely to gain an advantage for themselves. Undoubtedly, such groups of members cannot [be allowed] to accomplish the aims of an association of a national minority. ... The applicants have relied on the results of sociological research carried out in 1994 in Katowice Province. Indeed, the research demonstrates that 25% of persons requested to declare their ethnic and regional identity replied that they were Silesians. However, it transpires from [the material collected in the course of another piece of sociological research of 1996 which was submitted by the applicants during the appellate hearing] that two years later the number of persons considering themselves to be Silesians had decreased to 12.4% and that, moreover, the majority of inhabitants of Katowice Province considered themselves to be Poles (i.e. 81.9%, including 18.1% who stated that they were ‘Polish Silesians’; only 3.5% of inhabitants considered themselves to be Germans, including 2.4 % who stated that they were ‘German Silesians’). In the light of the above research it cannot be said that such a poorly established self-identity of a small (and decreasing) group of Silesians, as demonstrated by their refusal to declare that they belong to the [Polish] nation, provides a basis for recognising that all Silesians (who have lived in Silesia for generations and state that they belong to the Polish nation) constitute a separate nation. This would be contrary to the will of the majority, a will well known to the applicants. We therefore find that the appellant is right in submitting that granting the applicants’ application for their association to be registered is unjustified because the memorandum of association is contrary to the law, i.e. Article 5 of the Civil Code. Thus, the application is aimed at registering an organisation of a minority which cannot be regarded as a national minority and at circumventing the provisions of the Law on Parliamentary Elections and other statutes conferring particular privileges on national minorities. Granting such a request could lead to granting unwarranted rights to the association in question. This would, moreover, place their organisation at an advantage in relation to other regional or ethnic organisations. In these circumstances, under section 14 of the Law on Associations and Article 58 of the Civil Code, read in conjunction with Articles 386 § 1 and 13 of the Code of Civil Procedure and section 8 of the Law on Associations, the appeal must be allowed ... .” 20. On 3 November 1997 the applicants lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). They alleged that the Katowice Court of Appeal had wrongly interpreted the relevant provisions of the Law on Associations and that the impugned decision had contravened Article 84 of the Constitution, Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the Convention. Their arguments may be summarised as follows: “The principal issue to be determined by the Court of Appeal was whether the memorandum of the applicants’ association complied with the statutory requirements. since a refusal to register an association could be justified only if an activity specified in the memorandum of association was banned by the law. That was clearly not the case and the court’s fear that the registration of the applicants’ association would in future lead to discrimination against other national or ethnic minorities was based on mere speculation. In any event, the Law on Associations [in sections 8(2), 25 et seq.] provided for various means whereby the activity of an association could be supervised by the competent State authorities or, in the event that its activity was unlawful, the association could be dissolved. However, the Court of Appeal, instead of assessing formal requirements of the registration, firstly decided that the core issue in the proceedings was to establish whether a Silesian nation existed. It consequently went on to lay down its own arbitrary and controversial definition of ‘nation’ and ‘national minority’ and finally concluded that there was no ‘Silesian nation’. It did so without any effort to obtain expert evidence in respect of such an important matter.” 21. On 27 November 1997 the Katowice Governor filed a pleading in reply to the applicants’ cassation appeal. The relevant arguments may be summarised as follows: “The refusal to register the applicants’ association was fully justified. In the course of the proceedings at first instance, the Governor eventually proposed that the applicants amend paragraph 30 of the memorandum of association and alter the name of their association by deleting the word ‘nationality’. Those arguments were based on section 10(1)(1) of the Law of Associations, which provides that a memorandum of association should enable the association in question to be differentiated from other associations. This means that the name of an association should not be misleading. Since the requirement set out in the above-mentioned section was not complied with, the refusal to register the applicants’ association was justified under section 14(1). It must be stressed that even in the explanatory report to the Framework Convention for the Protection of National Minorities it is clearly stated that the individual’s subjective choice to belong to a national minority is inseparably linked to objective criteria relevant to the person’s identity. That means that a given nation must exist prior to the individual making a decision to belong to this nation. That being so, the applicants’ application for their association to be registered must be seen as a thoughtless and incomprehensible attempt to exploit the distinct characteristics [of the Silesians] with a view to achieving political aims.” 22. On 28 November 1997 the Katowice Prosecutor of Appeal filed a pleading in reply to the applicants’ cassation appeal. He submitted, inter alia, that it was clear that the content of the memorandum of association was contrary to the law since it explicitly stated that the Union was an association of a national minority, and thus ignored the fact that the Silesians could not be regarded as a minority of that kind. The Silesians, being merely an ethnic group, could not exercise the rights conferred on national minorities, in particular those referred to in the Law on Parliamentary Elections. 23. On 18 March 1998 a panel of three judges, sitting as the Administrative, Labour and Social Security Chamber of the Supreme Court, dismissed the applicants’ cassation appeal. The relevant parts of the reasons for this decision read as follows: “… [A] necessary prerequisite for the registration of an association is the conformity of its memorandum of association with the entire domestic legal order, including conformity with [the provisions of ] international treaties ratified by Poland. In the present case the Court of Appeal had no doubts as to the lawfulness of the aims pursued by [the applicants’] association but refused to register the association for the sole reason that [the applicants], in the memorandum of association, used such terms as ‘Silesian nation’ and ‘Silesian national minority’. We agree with the opinion [of the Court of Appeal]. ‘National minority’ is a legal term (Article 35 of the Constitution of 2 February 1997) although it is not defined either in Polish law, or in the conventions relied on in the cassation appeal. However, the explanatory report to the Framework Convention for the Protection of National Minorities states plainly that the individual’s subjective choice of a nation is inseparably linked to objective criteria relevant to his national identity. That means that a subjective declaration of belonging to a specific national group implies prior social acceptance of the existence of the national group in question. … An individual has the right to choose his nation but this, as the Court of Appeal rightly pointed out, does not in itself lead to the establishment of a new, distinct nation or national minority. There was, and still is, a common perception that an ethnic group of Silesians does exist; however, this group has never been regarded as a national group and it has not claimed to be regarded as such. … Registration of the association, which in paragraph 30 of its memorandum of association states that it is an organisation of a [specific] national minority, would be in breach of the law because it would result in a non-existent ‘national minority’ taking advantage of privileges conferred on [genuine] national minorities. This concerns, in particular, the privileges granted by the Law on Parliamentary Elections ... such as an exemption from the requirement that a party or other organisation standing in elections should receive at least 5% of the vote, which is a prerequisite for obtaining seats in Parliament ... [or] ... privileges in respect of the registration of electoral lists; thus, it suffices for an organisation of a national minority to have registered its electoral lists in at least five electoral constituencies [whereas the general requirement is to register an electoral list in at least a half of the electoral constituencies in the whole of Poland]. Pursuant to the relevant ruling of the Constitutional Court (Trybunał Konstytucyjny) on the interpretation of the Law on Parliamentary Elections, ... the privileges [referred to above] are conferred on electoral committees of registered national minorities and, in the event of any doubt [as to whether or not an electoral committee represents a national minority], the State Electoral College may request evidence. The simplest means of proving the existence of a specific national minority is to present a memorandum of association confirming that fact. It is true that under the new Constitution resolutions of the Constitutional Court on the interpretation of statutes no longer have universally binding force; however, in view of the persuasiveness of the reasons given by the Constitutional Court and the requirements of practice, [we consider that] a memorandum of association still remains basic evidence demonstrating the existence of a national minority. [Furthermore,] conferring on the Silesians, an ethnic group, the rights of a national minority would be contrary to Article 32 of the Constitution, stating that all persons are equal before the law, [because] other ethnic minorities would not enjoy the same rights. The memorandum of association is contrary to section 10(1)(4) of the Law on Associations, which stipulates that a memorandum of association must set out rules concerning acquisition and loss of membership, and the rights and duties of members. Paragraph 10 of the memorandum provides that everyone who is a Polish citizen and has submitted a written declaration stating that he is of Silesian nationality, may become a member of the Union, whereas paragraph 15 states that a person ceases to be a member of the Union if, inter alia, he has not fulfilled the membership requirements set out in the memorandum of association. Since no Silesian nation exists, no one would, lawfully, be able to become a member of the Union because his declaration of Silesian nationality would be untrue. … Furthermore, it must be pointed out that the refusal to register the association does not contravene Poland’s international obligations. Both the International Covenant on Civil and Political Rights ... and the Convention for the Protection of Human Rights and Fundamental Freedoms allow [the State] to place restrictions on the freedom of association, [in particular such as] are prescribed by law and are necessary in a democratic society in the interests of national security or public safety or for the protection of health and morals or for the protection of the rights of others. It is contrary to the public order to create a non-existent nation that would be able to benefit from the privileges conferred solely on national minorities. Such a situation would also lead to the infringement of the rights of others, not only national minorities but also all other citizens of Poland. Granting privileges to a [specific] group of citizens means that the situation of the other members of society becomes correspondingly less favourable. This is particularly so in the sphere of election law: if certain persons may become members of Parliament [because of their privileged position], it means that other candidates must obtain a higher number of votes than what would be required in the absence of privileges [in that respect]. It also has to be noted that the essential aims of the association can be accomplished without the contested provisions of the memorandum and without the [specific] name of the association. Under the provisions of the Constitution of the Republic of Poland national and ethnic minorities have equal rights as regards their freedom to preserve and develop their own language, to maintain their customs and traditions, to develop their culture, to establish educational institutions or institutions designed to protect their religious identity and to participate in the resolution of matters relating to their cultural identity (Article 35). …” 24. Article 12 of the Constitution (which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997) states: “The Republic of Poland shall ensure freedom for the creation and functioning of trade unions, socio-occupational farmers’ organisations, societies, citizens’ movements, other voluntary associations and foundations.” Article 13 of the Constitution reads: “Political parties and other organisations whose programmes are based upon totalitarian methods or the models of nazism, fascism or communism, or whose programmes or activities foster racial or national hatred, recourse to violence for the purposes of obtaining power or to influence State policy, or which provide for their structure or membership to be secret, shall be forbidden.” Article 32 of the Constitution provides: “1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.” Article 35 of the Constitution provides: “1. The Republic of Poland shall ensure that Polish citizens belonging to national or ethnic minorities have the freedom to preserve and develop their own language, to maintain customs and traditions, and to develop their own culture. 2. National or ethnic minorities shall have the right to establish educational and cultural institutions and institutions designed to protect religious identity, as well as to participate in the resolution of matters relating to their cultural identity.” Article 58 of the Constitution, proclaiming the right to freedom of association, reads: “1. The freedom of association shall be guaranteed to everyone. 2. Associations whose purposes or activities are contrary to the Constitution or statute shall be prohibited. The courts shall decide whether to register an association and/or whether to prohibit an [activity of] an association. 3. Categories of associations requiring court registration, the procedure for such registration and the manner in which activities of associations may be monitored shall be specified by statute.” 25. Chapter III of the Constitution, entitled “Sources of Law”, refers to the relationship between domestic law and international treaties. Article 87 § 1 provides: “The sources of universally binding law of the Republic of Poland shall be the Constitution, statutes, ratified international treaties and ordinances.” Article 91 states: “1. As soon as a ratified international treaty has been promulgated in the Journal of Laws of the Republic of Poland, it shall constitute a part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute. 2. An international treaty ratified after prior consent has been given in the form of a statute shall have precedence over statutes where the provisions of such a treaty cannot be reconciled with their provisions. 3. Where a treaty ratified by the Republic of Poland establishing an international organisation so provides, the rules established by it shall be applied directly and have precedence in the event of a conflict of laws.” 26. Section 1 of the Law, in the version applicable at the material time, prescribed: “1. Polish citizens shall exercise the right of association in accordance with the Constitution ... and the legal order as specified by statute. 2. The [exercise of the] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others. 3. Associations shall have the right to express their opinion on public matters.” Section 2 provides, in so far as relevant: “1. An association is a voluntary, self-governing, stable union pursuing non-profit- making aims. 2. An association shall freely determine its objectives, its programmes of activity and organisational structures, and shall adopt internal resolutions concerning its activity. ... “. Section 8, in the version applicable at the material time, stated, in so far as relevant: “1. An association shall register itself in the National Court Register …, unless statute provides otherwise. [Subsections 2-4 were repealed on 20 August 1997] 5. The activities of associations shall be supervised by [the Governor of the relevant Province], who shall be referred to hereinafter as ‘supervisory organ’. The relevant part of section 10 provides: “1. An association’s memorandum shall in particular specify: (1) the name of the association which shall differentiate it from other associations, organisations or institutions; ... (4) the conditions for the admission of members, the procedure and grounds for the loss of membership, and the rights and obligations of members.” Section 12 reads as follows: “The management committee of an association shall lodge with the competent court an application for the registration of their association together with a memorandum of association, a list of the founders containing their first names, surnames, dates and places of birth, their places of residence and signatures, a record of the election of the management committee and the address of their provisional headquarters.” Section 13 stipulates: “1. A court dealing with an application for the registration of an association shall rule on such an application promptly; a ruling should be given within three months from the date on which the application was lodged with the court. 2. The court shall serve a copy of the application for the registration, together with the accompanying documents specified in section 12 on [the relevant] supervisory organ. The supervisory organ shall have the right to comment on the application within fourteen days from the date of service and, with the court’s leave, to join the proceedings as a party.” Section 14 reads: “The court shall refuse to register an association if it has not fulfilled the conditions laid down in [this] Law.” Section 16 provides: “The court shall allow an application for registration of an association if it is satisfied that the latter’s memorandum of association is in conformity with the law and its members comply with the requirements laid down in [this] Law.” 27. Chapter 3 of the Law, entitled “Supervision of associations”, provides, in sections 25 et seq., for various means of monitoring the activities of associations and lays down the conditions for the dissolution of an association. Under section 25 the relevant supervisory organ is entitled to request the management committee of an association to submit, within a specified time-limit, copies of resolutions passed by the general meeting of the association or to ask the officers of an association to provide it with “necessary explanations”. In the event that such requests are not complied with, the court, under section 26 and a motion from the supervisory organ, may impose a fine on the association concerned. Under section 28, a supervisory organ, if it finds that activities of an association are contrary to the law or infringe the provisions of the memorandum of association in respect of matters referred to in section 10(1) and (2), may request that such breaches cease, or issue a reprimand, or request the competent court to take measures under section 29. Section 29 provides, in so far as relevant: “1. The court, at the request of a supervisory organ or a prosecutor, may: (1) reprimand the authorities of the association concerned; (2) annul [any] resolution passed by the association if such a resolution is contrary to the law or the provisions of the memorandum of association; (3) dissolve the association if its activities have demonstrated a flagrant or repeated failure to comply with the law or with the provisions of the memorandum of association and if there is no prospect of the association reforming its activities so as to comply with the law and the provisions of the memorandum of association.” 28. Section 3 of the Law (hereafter referred to as the “1993 Law on Parliamentary Elections”) provided: “1. In the distribution of seats [in the Parliament] account shall be taken only of those regional electoral lists of electoral committees which have received at least 5% of the valid votes cast in the whole [of Poland]. 2. The regional electoral lists of electoral committees referred to in section 77(2) (electoral coalitions) shall be taken into account in the distribution of seats [in Parliament], provided that they have received at least 8% of the valid votes cast in the whole [of Poland].” Section 4 prescribed: “In the distribution of seats among national electoral lists account shall be taken only of those lists of electoral committees which have received at least 7% of the valid votes cast in the whole [of Poland]. Section 5 stipulated: “1. Electoral committees of registered organisations of national minorities may be exempted from one of the conditions referred to in section 3(1) or in section 4, provided that, not later than the fifth day before the date of the election, they submit to the State Electoral College a declaration to that effect. 2. The State Electoral College shall promptly acknowledge receipt of the declaration referred to in subsection 1. This declaration shall be binding on electoral colleges.” Section 91 provided, in so far as relevant: “… 2. An electoral committee which has registered its regional electoral lists in at least half of the constituencies [in the whole of Poland] … shall be entitled to register a national electoral list. 3. Electoral committee[s] of organisations of national minorities shall be entitled to register a national electoral list, provided that [they] ha[ve] registered their regional electoral lists in at least five constituencies.” 29. Article 5 of the Civil Code states: “No one shall exercise any right of his in a manner contrary to its socio-economic purpose or to the principles of co-existence with others (zasady współżycia społecznego). No act or omission [fulfilling this description] on the part of the holder of the right shall be deemed to be the exercise of the right and shall be protected [by law].” Article 58 provides, in so far as relevant: “1. A[ny] act which is contrary to the law or aimed at evading the law shall be null and void, unless a statutory provision provides for other legal effects, such as the replacement of the void elements of such an act by elements provided for by statute. 2. Any act which is contrary to the principles of co-existence with others, shall be null and void.” 30. At the material time Poland was a signatory to the Framework Convention for the Protection of National Minorities (ETS No. 157); the date of signature was 1 February 1995. Poland ratified that Convention on 20 December 2000. It has been in force since 1 April 2001. 31. The Framework Convention contains no definition of the notion of “national minority”. Its explanatory report mentions that it was decided to adopt a pragmatic approach, based on the recognition that at that stage it was impossible to arrive at a definition capable of mustering the general support of all Council of Europe member States. 32. A number of the member States made declarations setting out definitions of “national minority” for the purposes of the Framework Convention. Poland, at the time of the deposit of the instrument of ratification, made the following declaration: “Taking into consideration the fact that the Framework Convention for the Protection of National Minorities contains no definition of the national minorities notion, the Republic of Poland declares that it understands this term as national minorities residing within the territory of the Republic of Poland at the same time whose members are Polish citizens.”

dev

001-104668

ENG

RUS

CHAMBER

CASE OF SHOKKAROV AND OTHERS v. RUSSIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Pecuniary and non-pecuniary damage - award

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

6. The applicants are: (1) Mr Vakha Shokkarov (also spelled Vakhi Shokarov), who was born in 1941, (2) Ms Amani Shokkarova (also spelled Shokarova), who was born in 1939, (3) Ms Khava Shokkarova (also spelled Shokarova), who was born in 1964, and (4) Ms Zulay Tatsegova. The first and second applicants are the parents of Mr Visadi (also known as Murad) Shokkarov (also spelled Shokarov and Shakarov), who was born in 1972, and Mr Visita (also spelled Visit) Shokkarov, who was born in 1966. Visita Shokkarov was married to the third applicant; Visadi Shokkarov was married to the fourth applicant. At the material time the Shokkarovs were residing in the Satsita camp for internally displaced persons in Ordzhenikidzovskaya, Ingushetia. At some point later they moved back to Grozny, Chechnya, where they are currently residing. 7. At about 7 a.m. on 6 January 2003 a group of policemen from the Sunzhenskiy district department of the interior (ROVD) in Ingushetia arrived at the Satsita camp in four vehicles. They arrested Visadi Shokkarov and took him away without any explanation. 8. Later that day Visadi Shokkarov’s relatives came to the ROVD; the policemen told them that Visadi was detained in the police station. 9. On 21 January 2003 Visadi Shokkarov was charged with the aggravated murder of two officials from the Nadterechniy district administration in Chechnya. 10. On 22 January 2003 the Nadterechniy District Court authorised Visadi Shokkarov’s detention on remand until 20 March 2003, stating that there was a risk of his absconding from the authorities. 11. At some point the first applicant retained a lawyer to represent his son’s interests. On 27 and 31 January, as well as on 5 February 2003, the lawyer requested that he be allowed to contact Visadi Shokkarov, but to no avail. 12. On 2 February 2003 Visadi Shokkarov and his co-accused Mr V.B. were taken for the reconstruction of events to the site of the murder in the Nadterechniy district. They were in a car driven by Mr B., an officer of the Federal Security Service (FSB). Near Bena-Yurt (also spelled Beno-Yurt) in the Nadterechniy district the car fell into a pit and exploded. Visadi Shokkarov and Mr V.B. died, whereas officer B. survived. 13. On 10 February 2003 Visadi Shokkarov’s lawyer again requested the investigators to allow him to visit Visadi Shokkarov and was informed that his client had died. 14. On 3 February 2003 the Nadterechniy district prosecutor’s office (the Nadterechniy prosecutor’s office) ordered a post-mortem examination of Visadi Shokkarov’s corpse. The applicants were not informed about this decision. 15. Between 3 February and 1 March 2003 an expert of the Mozdok forensic bureau carried out the autopsy. According to the report, Visadi Shokkarov had died from blunt complex trauma to the head and chest, which had been probably inflicted on him in the car crash. The expert also stated that the body had burned and charred after the death. 16. On 11 February 2003 Visadi Shokkarov’s lawyer informed the applicants about his client’s death. On the same date in the Mozdok town morgue the applicants collected a burnt and unidentifiable corpse without internal organs; they were told that it was Visadi Shokkarov’s body. 17. On 11 February 2003 the Mozdok forensic bureau issued a death certificate stating that Visadi Shokkarov had died on 2 February 2003 in Bena-Yurt as a result of “blunt complex trauma to the head and chest with subarachnoid haematoma, cerebral injury, cardiac rupture, incomplete separation of the lung, burning and charring of the corpse”. 18. On 16 June 2003 the Mozdok district prosecutor’s office in North Ossetia requested that the applicants collect Visadi Shokkarov’s body, which had been brought to the Mozdok morgue by Mr I., an investigator from the Nadterechniy prosecutor’s office, on 3 February 2003. On an unspecified date the applicants visited the Mozdok morgue, examined the corpse and concluded that it was not that of Visadi Shokkarov. 19. On 10 February 2003 the military prosecutor’s office of military unit no. 20111 (“the military prosecutor’s office”) instituted criminal proceedings against the FSB officer B., who had driven the exploded car, under Article 350 § 3 of the Russian Criminal Code (breach of rules on using a special vehicle causing two or more deaths). The case was assigned no. 46012. 20. On 18 February 2003 the military prosecutor’s office found that officer B. had lost control of the vehicle because Visadi Shokkarov had hit him and discontinued the proceedings against the officer for lack of corpus delicti. 21. On 10 September 2003 the applicants appealed against the decision of 18 February 2003 to the Sunzhenskiy District Court of Ingushetia, the Nadterechniy District Court in Chechnya and the Chechnya Supreme Court. They stated that Visadi Shokkarov’s self-incriminating statements and the confession to the murders had been made as a result of torture being applied to him and that the circumstances of his death in the car crash had not been effectively investigated. The applicants requested the courts to overrule the decision to terminate the investigation into the death of Visadi Shokkarov, to order the investigative authorities to carry out an effective investigation of his ill-treatment and death and to provide them and their representatives with access to the criminal case file. From the documents submitted to the Court it follows that all of the complaints were lodged by the first applicant, who provided the courts with his address at the Satsita camp in Ingushetia. 22. On 7 July 2004 the applicants’ representatives requested the Sunzhenskiy District Court of Ingushetia, the Nadterechniy District Court in Chechnya and the Chechnya Supreme Court to inform them of the outcome of the examination of the complaints they had lodged in September 2003. 23. On 4 August 2004 the Nadterechniy District Court informed the applicants’ representatives of the following: “... the Nadterechniy District Court is informing you that V.A. Shokkarov’s complaint against the law-enforcement agencies was examined and rejected on 6 October 2003. A copy of this decision was forwarded to the applicant’s address on 9 October 2003 under outgoing no. 2150.” According to the applicants, they neither participated in the examination of their complaint on 6 October 2003 nor received the copy of the court’s decision, since on an unspecified date in the autumn of 2003 they had had to leave the Satsita camp owing to the dismantling of the camp by the local authorities. Therefore, in October 2003 they had not resided at the address provided by them to the Nadterechniy District Court. The applicants did not submit to the Court any document confirming the dismantling of the camp in the autumn of 2003. 24. On 12 January 2005 the Sunzhenskiy District Court informed the applicant that “... on 23 October 2003 the District Court left V.A. Shokkarov’s complaint unexamined as the criminal case concerning [the death of] Visadi Shokkarov had been investigated by a prosecutor’s office in Chechnya. It was recommended that the applicant apply to the court where the relevant prosecutor’s office was situated.” 25. The applicants did not appeal against the decisions of the Nadterechniy and the Sunzhenskiy District Courts. 26. According to the applicants, no reply was received from the Chechnya Supreme Court to their request of 7 July 2003. The outcome of these proceedings remained unknown as the applicants did not lodge any further requests with the court. 27. On 22 January 2003 the Special Envoy of the Russian President in Chechnya for Rights and Freedoms (“the Envoy”), on behalf of the applicants, requested the Ingushetia prosecutor’s office to inform him of the whereabouts of Visadi and Visita Shokkarov and the grounds for their arrest. The letter stated that the two brothers had been detained by officers of the Sunzhenskiy ROVD on 6 January 2003, that Visadi had been arrested in the Satsita camp and that Visita had been arrested later on the same date on the premises of the ROVD. 28. On 10 February 2003 the Ingushetia prosecutor’s office replied to the Envoy as follows: “... on 6 January 2003 officers of the Sunzhenskiy ROVD, acting on instructions from the Nadterechniy district prosecutor’s office in Chechnya, arrested Mr Murad Shokarov (a.k.a. Visadi) on suspicion of murdering Mr Z. and Ms Kh. ... and took him to the Sunzhenskiy ROVD. Mr Visita Shokarov was taken to the ROVD together with Mr Shokarov. On the same day the two men were handed over to the head of the investigative unit of the Nadterechniy district prosecutor’s office Mr P. and officers of the Nadterechniy ROVD who accompanied him.” 29. Between February and June 2003 the authorities conducted a forensic examination of Visadi Shokkarov’s corpse and issued his death certificate (see paragraphs 15 and 17 above). 30. On 31 March 2003 the first applicant requested the Sunzhenskiy district prosecutor’s office (“the Sunzhenskiy prosecutor’s office”) and the Chechnya prosecutor’s office to conduct an investigation into Visadi Shokkarov’s arrest and death. 31. On 7 April 2003 the Chechnya prosecutor’s office informed the first applicant of the following: “On 20 January 2003 officers of the Nadterechniy district department of the Federal Security Service, together with officers of the Sunzhenskiy ROVD, acting on the basis of information concerning the murder of the head of the Nadterechniy district administration, arrested Mr V[isadi] Shokkarov. On 21 January 2003 he was charged [with a crime punishable] under Article 105 § 2 and Article 277 of the Russian Criminal Code; on 22 January 2003 his detention was authorised by a court.” The letter further mentioned that Visadi Shokkarov had partly confessed to the murder and described the circumstances of his death in the car crash. It also informed the applicants that the criminal proceedings against the FSB officer B. had been terminated for lack of corpus delicti. 32. On 30 April 2003 the Nadterechniy prosecutor’s office informed the applicants that Visadi Shokkarov’s death had been investigated by the military prosecutor’s office and that the applicants had already been informed of the outcome of that investigation. 33. On 7 August 2003 the Ingushetia prosecutor’s office informed the applicants’ representatives that on 6 January 2003 the ROVD police officers had arrested Visadi Shokkarov on the basis of a written instruction from the Nadterechniy prosecutor’s office. The letter further stated that Visita Shokkarov had also been arrested and that on the same date, 6 January 2003, the Shokkarov brothers had been handed over to the investigator from the Nadterechniy prosecutor’s office, Mr V.P., and the servicemen of the Nadterechniy ROVD. 34. On 15 August 2003 the Nadterechniy prosecutor’s office informed the applicants’ representatives that the military prosecutor’s office had terminated the criminal proceedings against the FSB officer B. for lack of corpus delicti. 35. On 5 September 2003 the first applicant complained to the Chechnya prosecutor’s office, the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”), the Prosecutor General’s office and the Chief Military Prosecutor’s office and requested to be provided with a copy of the decision of 18 February 2003 concerning the termination of the criminal proceedings for lack of corpus delicti. He stated that Visadi Shokkarov’s confession to the murders had been obtained under duress, that several attempts by his lawyer to meet Visadi in detention had been futile and that the circumstances of his death in the car crash had been suspicious. The applicant further requested that this decision be overruled, that the investigation of Visadi Shokkarov’s death be continued and that he and the applicants’ representatives be provided with access to the criminal case file. 36. On 10 September 2003 the applicants requested the Nadterechniy prosecutor’s office to provide them with copies of documents relating to the investigation of Visadi Shokkarov’s death. On the same date they appealed against the decision to discontinue the criminal investigation into Visadi Shokkarov’s death (see paragraph 21 above). 37. On 29 September 2003 the Nadterechniy prosecutor’s office informed the applicants’ representatives that the criminal case had been joined with another criminal case and transferred to the Chechnya Supreme Court on 7 April 2003. 38. On 18 January 2005 the Sunzhenskiy prosecutor’s office in Ingushetia informed the applicants of the following: “... based on the information received from the Sunzhenskiy ROVD and the statement obtained from one of the participants [in the arrest], it was established that on 6 January 2003, at the request of police officers from the Nadterechniy ROVD who had arrived with the investigator of the Nadterechniy district prosecutor’s office Mr V.P. and the head of the criminal search department of the Nadterechniy ROVD Mr S., the officers of Sunzhenskiy ROVD had assisted them in arresting the Shokkarov brothers, who had been suspected of killing of the head of the Nadterechniy district administration. After the arrest the Shokkarov brothers had been taken away by the officers of the Nadterechniy ROVD...” The letter further stated that the applicants could obtain additional information about the detention from the investigator Mr V.P. and the head of the criminal search department of the Nadterechniy ROVD, Mr S. 39. According to the Government, at the material time the Nadterechniy ROVD, the Nadterechniy prosecutor’s office and the Nadterechniy department of the FSB were situated next to each other in the same courtyard. 40. On 9 September 2002 the Shatoy district prosecutor’s office in Chechnya (“the Shatoy prosecutor’s office”) opened criminal case no. 65034 in connection with the murder of two officials from the Nadterechniy district administration. 41. On 20 January 2003, in the course of the investigation in criminal case no. 65034, the law-enforcement agencies arrested Visadi Shokkarov, who subsequently confessed to murdering the two officials from the Nadterechniy district administration. The Government stated that according to the detention record dated 20 January 2003, Visadi Shokkarov had been detained on 20 January, and not on 6 January 2003. 42. On 21 January 2003 Visadi Shokkarov was charged with the two murders and on 22 January 2003 the Nadterechniy District Court remanded him in custody. 43. On 2 February 2003 the FSB officers B., S. and P. were requested by the investigation to convey Visadi Shokkarov and his co-accused Mr V.B. to Bena-Yurt for the reconstruction of the crime. The reconstruction had been requested by Visadi Shokkarov and his co-accused. In the vicinity of the village Visadi Shokkarov hit the driver in the back of the neck. The latter lost control of the vehicle, and the car fell into an open pit, turned over and exploded. As a result, the servicemen managed to get out of the car, but Visadi Shokkarov and Mr V.B. remained inside and died. 44. On 28 March 2003 the Nadterechniy prosecutor’s office terminated the criminal investigation in case no. 65034 in respect of Visadi Shokkarov on account of his death. 45. On 10 February 2003 the military prosecutor’s office opened criminal case no. 34/34/0015-03D against the FSB officer B. under Article 350 § 3 of the Russian Criminal Code (breach of rules on using a special vehicle causing two or more deaths). 46. On 18 February 2003 the military prosecutor’s office discontinued the criminal proceedings against the officer for lack of corpus delicti. 47. On 18 February 2003 criminal case no. 34/34/0015-03D was transferred to the Nadterechniy prosecutor’s office, where it was assigned no. 46012. On 6 March 2003 the criminal case file was joined with criminal case no. 65034 under the joined number 65034. 48. On 23 October 2003 the Sunzhenskiy District Court of Ingushetia refused to examine the applicants’ appeal against the decision of 18 February 2003 for lack of territorial jurisdiction. The applicants failed to appeal against that decision. 49. The Government submitted that the applicants had not appealed against the decision of 18 February 2003 to any of the courts in Chechnya. 50. On 6 January 2003, while the applicants, their relatives and other residents of the Satsita camp were waiting outside the Sunzhenskiy ROVD building for news of Visadi Shokkarov following his arrest, two men in civilian clothes approached Visita Shokkarov. They asked his relatives to wait for Visita just for a few minutes and took him through the gates into the courtyard of the ROVD. The applicants have not seen him ever since. 51. On 24 March 2003 the first applicant requested the Sunzhenskiy prosecutor’s office in Ingushetia to institute an investigation into Visita Shokkarov’s disappearance. On 31 March 2003 the Sunzhenskiy prosecutor’s office forwarded the request to the Nadterechniy prosecutor’s office in Chechnya. 52. On 31 March 2003 the first applicant complained about the abduction of Visita Shokkarov and the death of Visadi Shokkarov to the Chechnya prosecutor’s office. The complaint was received by the office on 3 April 2003. 53. On 7 April 2003 the Chechnya prosecutor’s office informed the applicants that the criminal proceedings concerning the death of Visadi Shokkarov had been terminated on 18 February 2003 for lack of corpus delicti. The letter also stated that “... Visita Shokkarov, who had been detained with Visadi Shokkarov, was released by officers of the Nadterechniy FSB after a check ...” 54. On 30 April 2003 the Nadterechniy prosecutor’s office dismissed the first applicant’s complaint about the abduction of Visita Shokkarov, stating that Visita Shokkarov had been lawfully arrested in connection with criminal case no. 65034 (it appears that the investigators confused Visita Shokkarov with his brother Visadi). They also noted that “the military prosecutor’s office had opened an investigation into V.V. Shokkarov’s death” and that the applicant had been informed about its outcome. 55. On 7 August 2003 the Ingushetia prosecutor’s office informed the applicants’ representatives that on 6 January 2003 the ROVD police officers had arrested Visita Shokkarov along with his brother Visadi and that on the same date, 6 January 2003, the Shokkarov brothers had been handed over to the investigator of the Nadterechniy prosecutor’s office, Mr V.P., and the servicemen of the Nadterechniy ROVD from Chechnya, and that the subsequent whereabouts of the brothers were unknown to the Ingushetia prosecutor’s office (see paragraph 33 above). 56. On 9 August 2003 the Nadterechniy prosecutor’s office instituted an investigation into Visita Shokkarov’s disappearance under Article 126 § 1 of the Russian Criminal Code (kidnapping). The case was assigned no. 46037. The applicants were informed of the decision on 14 August 2003. 57. On 19 August 2003 the Nadterechniy prosecutor’s office granted the third applicant victim status in the criminal case. The decision stated that on 6 January 2003 Visita Shokkarov had been arrested along with his brother Visadi and taken to the Sunzhenskiy ROVD and subsequently to the village of Znamenskoye in the Nadterechniy district, and released the following day. However, Visita Shokkarov had not returned home and had gone missing. 58. On 27 September 2004 the Chechnya prosecutor’s office informed the third applicant that an investigation into Visita Shokkarov’s abduction was under way. 59. On an unspecified date the third applicant complained about the disappearance of Visita Shokkarov to the Mozdok district prosecutor’s office in North Ossetia. On 16 June 2003 the office informed her that Visita had not been detained in the Mozdok ROVD. 60. On 7 June 2003 the third applicant complained to the Envoy about the abduction of Visita Shokkarov. On 1 July 2003 this complaint was forwarded to the Chechnya prosecutor’s office and on 1 August 2003 it was received by the Nadterechniy prosecutor’s office. 61. On an unspecified date the Mozdok forensic bureau informed the investigators that on 3 February 2003 an investigator from the Nadterechniy prosecutor’s office had brought Visadi Shokkarov’s corpse to the morgue and requested the third applicant to collect it. It appears that the investigator had been confused and instead of stating that the corpse belonged to Visadi Shokkarov he had stated that it had belonged to Visita Shokkarov. 62. On 9 August 2003 the Nadterechniy prosecutor’s office opened criminal case no. 46037 (also referred to as no. 54043) under Article 126 § 1 of the Criminal Code (kidnapping) in connection with the abduction of Visita Shokkarov from Ordzhenikidzovskaya on 6 January 2003. 63. On 19 August 2003 the investigators granted the third applicant victim status in the criminal case and questioned her. The applicant stated that on 6 January 2003 her relative Visadi Shokkarov and another man had been taken from the camp in Ordzhenikidzovskaya by armed masked men to the Sunzhenskiy ROVD in Ingushetia. After that she, her husband Visita and other relatives had gone to the ROVD to find out the reasons for Visadi’s arrest. Near the ROVD her husband Visita had been approached by two men, who had come out of the ROVD building. They had taken Visita into the police station. The applicant had attempted to follow Visita, but she had been stopped at the entrance by the deputy head of the ROVD, Mr I.M., who had told her that Visita had been taken in for questioning and would be released shortly afterwards. The applicant had seen through a crack in the fence that her husband Visita and his brother Visadi had been put by police officers into a UAZ car and after that the car had driven away. After that the ROVD policemen had told her that Visita had been taken from the ROVD to Znamenskoye, in the Nadterechniy district, Chechnya, by representatives of the Chechnya FSB. On the seventh day after Visita’s abduction, the applicant and her relatives had gone to Znamenskoye, where the investigator of the Nadterechniy prosecutor’s office Mr V.P. had informed her, having been in touch with the local branch of the FSB, that on the third day after the arrest Visita Shokkarov had been released from the FSB and apparently had gone home. After that the applicant had requested information concerning Visita’s whereabouts at the Nadterechniy ROVD, where she had been informed that he had not been detained there. 64. On 21 August 2003 the investigators forwarded a number of information requests to various law-enforcement agencies in Chechnya, Ingushetia, Dagestan and the Stavropol region, asking for any information concerning Visita Shokkarov’s whereabouts. No pertinent information was received as a result. 65. On 25 August 2003 the investigators questioned the first applicant, who stated that on 6 January 2003 officers of the Sunzhenskiy ROVD had arrived in three UAZ vehicles and taken away his son Visadi Shokkarov. Immediately after that the applicant and his relatives had gone to the Sunzhenskiy ROVD, where the head of the ROVD had told him that Visadi had been suspected of murdering an official from the Nadterechniy district administration. Later that day, when the applicant had returned to the ROVD, he had seen the third applicant, who had been crying and waiting next to the police station. She had told him that the police officers had taken away her husband Visita. One of them, a certain “Magomed”, had told her that the police would soon release her husband. At about 4 p.m. on the same date, 6 January 2003, three UAZ cars had left the courtyard of the ROVD and driven away to an unknown destination. After that the head of the ROVD had told the applicant and his relatives that the Shokkarov brothers had been taken by investigator Mr V.P. from the Nadterechniy prosecutor’s office to the village of Znamenskoye in Chechnya. On 8 January 2003 the applicant had been informed by the Nadterechniy FSB that he could bring food and warm clothing for his detained sons. The applicant had brought some food and passed it on to the FSB officers. About five days later the third applicant had gone to Znamenskoye, where she had been told that Visita Shokkarov had been released three days after the arrest and that Visadi Shokkarov had continued to be detained on suspicion of killing the official. 66. On an unspecified date the Nadterechniy FSB informed the investigators that it had not arrested or detained Visita Shokkarov and that he had not been listed as a member of any illegal armed groups. 67. On 28 August 2003 the investigators questioned the investigator of the Nadterechniy prosecutor’s office Mr V.P., who stated he could not recall the relevant details of the criminal investigation owing to the passing of time, but stated that he had requested the local court to remand Visadi Shokkarov in custody and that he could not recall whether one or both brothers had been detained. 68. On 3 April 2006 (in the documents submitted the date was also indicated as 10 March 2008) the investigators questioned police officer S.G. of the Nadterechniy ROVD, who stated that Visita Shokkarov had not been brought to the ROVD and that the police had not conducted any checks in respect of him. 69. On 7 and 11 or 12 April 2006 the investigators questioned Mr V.Tch. and Mr Kh.T., both of whom had been officers of the Nadterechniy ROVD at the material time. Their statements were similar to the one given by officer S.G. 70. On 12 April 2006 (in the documents submitted the date was also indicated as 24 March 2006) the investigators examined the registration log of detainees in the Nadterechniy ROVD for the period between 31 October 2002 and 3 July 2003. As a result, it was established that during this period Visita Shokkarov had not been detained in the ROVD. 71. On 20 April 2006 the investigators suspended the investigation in the criminal case owing to the failure to identify those responsible for Visita Shokkarov’s abduction. The third applicant was informed of that decision. 72. On 27 February 2008 the decision to suspend the investigation was overruled by the supervising prosecutor and the proceedings in the criminal case were resumed. 73. On 28 March 2008 the Nadterechniy ROVD informed the investigators that they had not arrested or detained the Shokkarov brothers. 74. On 19 May 2008 the Nadterechniy department of the FSB informed the investigators that no special operations had been conducted against the Shokkarov brothers in Ingushetia. 75. Despite specific request by the Court the Government did not disclose most of the contents of the criminal case files opened in connection with the death of Visadi Shokkarov and the abduction of Visita Shokkarov. The Government provided copies of documents from the criminal case files running to 561 pages; the vast majority of the documents concerned third persons and only a few were relevant to the applicants’ complaints. The Government stated that the investigation was in progress and that disclosure of the other documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information concerning witnesses or other participants in criminal proceedings. 76. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, §§ 67-69, 10 May 2007).

dev

001-59453

ENG

GBR

CHAMBER

CASE OF KELLY AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 2;No violation of Art. 6;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Nicolas Bratza;Simon Brown

11. The facts of the case, as submitted by the parties and which may be deduced from the documents, may be summarised as follows. The applicants accepted that the summaries below are an accurate reflection of the written statements made by the official personnel involved, without making any admission as to the credibility, consistency and veracity of these statements. 12. Following a briefing that there was likely to be a terrorist attack on Loughgall station of the Royal Ulster Constabulary (the RUC) in County Armagh on 8 May 1987, twenty four soldiers and three RUC officers arrived at the station in the early hours of that day. Under the command of Soldier A, the soldiers positioned themselves in six locations surrounding the RUC station. Soldiers A, B, C, D, E and F were dressed in plain clothes and remained inside the RUC station (Position 1). All the other soldiers wore military uniform. Soldiers G, H, I and J were positioned in a wooded area to the south of the Loughgall Road, near the junction with a road which is the first on the right from the police station going towards Armagh (Position 2). Soldiers K, L, M and N were positioned in a wooded area to the south of the Loughgall road, generally opposite No. 202 Loughgall Road (Position 3). Soldiers O, P, Q and R were instructed to position themselves in a wooded area to the south of the Loughgall Road, near what is known as Ballygasey Cottage (Position 4). Soldiers S, T and U were positioned in a wooded area to the rear of St Luke’s Church, on the south side of the Loughgall Road and to the east of the RUC station (Position 5). Soldiers V, W and X occupied a position in a wooded area to the north of the Loughgall Road, about 300 to 400 yards to the rear of the RUC station (Position 6). 13. Three members of the RUC, Constables A, B and C, were positioned inside the RUC station. The RUC station, which operated on a part-time basis only, was opened as normal at 9 a.m. on 8 May 1987. Police Constable A was in charge of the station, with B and C assisting him in the running of the station. The station was closed at 11 a.m., re-opened at 5 p.m. and closed again at 7 p.m. 14. At about 2.30 p.m. two hooded men hijacked a blue Toyota Hiace van from a Mr Corr, who was carrying out some work at the Snooker Club, Mountjoy Road, Dungannon, Co Tyrone. He was warned not to report the incident to the police for four hours. When the men left, Mr Corr phoned his employer, the van’s owner, and told him about the incident. The owner, Mr McGrath, waited four hours and reported the incident to Coalisland RUC at approximately 6.50 p.m. 15. At about 6 p.m., three armed men who said they were from the IRA entered the house of the Mackle family in Aghinlig Upper, Dungannon. The men said they wanted to borrow the digger and one of the sons was brought outside to fill it with diesel. At about 6.30 p.m., a vehicle pulled up outside and a fourth man arrived. It appears that a bomb containing 300 to 400 pounds of explosives was prepared in the yard of the house and placed in the bucket of the digger. At about 6.50 p.m. the digger was driven out of the yard and the other vehicle left shortly afterwards. At about 7.10 p.m. the remaining two gunmen left the house. Attempts by the family to phone the police failed as their phone and that of their neighbour were out of order. However, two of the sons eventually alerted a police patrol. 16. The soldiers reported a number of sightings of the blue Hiace van passing in front of the RUC station in both directions. Reports that the van had been hijacked, and that a digger was acting suspiciously in the area, were also received. Given this information and the knowledge that diggers had been used in previous terrorist attacks, the soldiers were on full alert when, between 7.15 and 7.30 p.m., the blue van came from the Loughgall direction and parked outside the station on the far side of the road facing Armagh. 17. A man, dressed in blue overalls and wearing a balaclava, emerged from the rear of the van and began to walk into the roadway. He raised his rifle and began to shoot at the RUC station. Soldiers A to E, who had positioned themselves at windows on the first floor of the station began to return fire without warning. Soldier F had set up the radio equipment in the rear ground floor room, and he remained there during the shooting. The driver then got out of the van and began to fire at the station. At least four more men emerged from the rear of the van and commenced firing at the station. Following continuous fire from the direction of the RUC station and from other soldiers, some of the IRA men began to take cover behind the van and others went to get into the back of the van. Soldiers A to E fired into the side of the van. Soldier B received a facial injury from flying glass after a window by which he was standing was broken by gunfire. 18. During this time, one of the IRA men drove the digger through the front gate of the station and Soldier B, having spotted this, fired a short burst at the driver. The digger stopped and shortly afterwards there was an explosion which caused masonry and dust to fly everywhere. Soldiers A to F and Constable A were unhurt by the blast, which damaged a large part of the station. Constable C was later treated for a fractured skull, damage to his left sinus, broken facial bone, a broken finger, a broken toe and bruising. Constable B also received some injuries. Constables B and C were led outside by Constable A and Soldier C, who administered first aid to them. Soldier F also left the station by the rear and did not take any part in the shooting. 19. Soldiers A, B, D and E moved towards the front of the RUC station and continued to fire at the men near the van, firing through the sides of the van when the men took cover inside, until there was no further movement from the gunmen. In his statement to the police, Soldier B stated that he approached the van to clear it of further danger to his life and those of his colleagues. As he looked into the back of the van, he saw two men and a number of weapons. One of the men made a sudden movement and Soldier B fired one round into him as it was his belief that it was the man’s intention to get one of the weapons. Soldier V stated that he approached the van with Soldier B, carrying out a visual check of the bodies. As he moved alongside the van, there was a movement in the area of a body that caught his eye. He took this as an immediate threat and fired one burst into the body. 20. Soldiers positioned in other areas also fired at the various gunmen once they had begun to shoot at the RUC station. Some of the soldiers stated that they came under fire. Shortly after the bomb exploded, Soldiers K and R observed what they thought was a gunman lying in the grass behind the police station. He failed to stand up when challenged to do so, and both soldiers fired several rounds at what turned out to be a large lump of wood. Moving down along the back of the houses towards the police station, Soldier K saw a man whom he apprehended, tied his hands and feet and handed him over to the RUC who arrested him. This man was a Mr Tennyson who was not involved in the attack. He happened on the shooting, and had left his car to seek cover when he was detained. 21. Soldier V fired at a man in a blue boiler suit crossing the road in a crouched manner. The man fell. He saw another man behind a wall and shouted to him to stand up. The man moved away quickly, then turned fully towards Soldier V who saw something in his hand which he regarded as an immediate threat and fired two bursts from his rifle until the man fell. Soldier S passing the body saw no weapon near it. 22. When the blue van and the digger arrived at the RUC station, there had been a white Citroen car right behind them. After shooting started but before the bomb went off, this car began to reverse towards the soldiers in position 5. Soldiers S, T and U opened automatic fire on the car and when they stopped firing the vehicle was about 20 metres away. The front seat passenger got out of the car despite a warning from Soldier U not to move. He was wearing blue coveralls. Almost immediately, he was hit by gunfire from Soldier U and he fell to the ground. Later realising that he was still alive, Soldiers S and U moved him onto the pavement and put two field dressings on his wounds. The driver of the car was dead at the wheel of the car. 23. Soldier W approaching the police station noticed ten feet away in the driveway a person lying on his back still moving. He saw that the man’s right hand was clenched and that something metallic was protruding. Believing the man to be a threat to himself and Soldier V, he fired two shots at him. Soldier X checking the body found that the man was holding a cigarette lighter. 24. Other vehicles near the scene of the attack included a red Sierra 15 metres from position 6, occupied by a woman and her daughter, a blue Escort about 70 metres from the scene which was empty and a white Sierra, with three female occupants. These cars, or their occupants, were directed to positions of safety by soldiers as soon as the opportunity arose. 25. When the shooting ceased the soldiers and members of the RUC were airlifted back to their barracks. 26. From 7.35 p.m., officers from the RUC Criminal Investigation Department, the Scenes of Crime Department and the Northern Ireland Forensic Laboratory began arriving to survey the crime scene and identify items of forensic interest. Photographs were taken of the scene and of the bodies. The scene can be described as follows: 27. There were two significantly bullet damaged vehicles, a blue Toyota Hiace van (with approximately 125 bullet holes in the bodywork) and a white Citroen car (with approximately 34 bullet holes in the front, rear and side of the car). In the vicinity of the junction of Clovenden Road/Ballygasey Road there were bullet damaged Vauxhall Cavalier and Ford estate cars. 28. The bodies were wearing blue boiler suits except where specified otherwise. The first body (Patrick Kelly) was found lying at the front of the van with a radio lying on the ground beside the body and a rifle lying on the body. There was debris on the rifle suggesting that this person was lying on the ground before the explosion. The pathologist noted that his right upper canine tooth had recently been torn out. The second body (Michael Gormley) was lying on the pavement at the north side of the van near the open side door with a rifle nearby. The body was lying on top of the right leg of body 3, strongly suggesting that body 3 was lying on the ground before body 2 fell. The third body (Seamus Donnelly) was lying on the pavement towards the north side of the Toyota van. There was ammunition and a cigarette lighter near the body. The pathologist observed at least twenty separate missile wounds (i.e. bullet and fragment) and found that discharge abrasion on an entry wound on the front of the neck indicated that when the gun was discharged the muzzle was within several feet of the body, probably while it was lying on the ground. The fourth body (Patrick McKearney) was lying face down along the outside panel inside the rear of the van with the head towards the rear door. There was ammunition in the pocket of the boiler suit (he was also wearing a flak jacket) and in the jeans pocket. The post mortem examination revealed at least a dozen wounds to the torso and head. The fifth body (James Lynagh) was lying diagonally across the interior of the van with the feet towards the rear door. There was ammunition in the pocket of the boiler suit and in the anorak and jeans pockets. Material on the body suggested that it was on the floor before the explosion occurred. He had received multiple bullet and fragment injuries. There were four loaded rifles and one shotgun found in the van. Three of the stocks were folded. The sixth body (Eugene Kelly), which had massive head damage and multiple injuries elsewhere, was seated in the driver seat of the van. There was a revolver lying between the driver’s seat and his door. The seventh body (Declan Arthurs) was lying in a lane-way opposite the premises of the Loughgall Football Club. This body was not wearing a boiler suit and there was a cigarette lighter close to the right hand. The eighth body (Gerald O’Callaghan) was lying on its right side on the pavement at the Loughgall side of the lane-way. Twelve wounds were noted by the pathologist. The ninth body (Antony Hughes) was seated with the seat belt on in the driver’s seat of the white Citroen car. The body was not wearing a boiler suit. The post mortem examination showed twenty-nine wounds (bullet and shrapnel). 29. At 10.35 p.m. on 8 May 1987, the police took possession of the firearms used by Soldiers A to X which were delivered the following day to the Northern Ireland Forensic Science Laboratory for examination. 30. On the morning of 9 May 1987, a scene of crimes officer and forensic experts from the Northern Ireland Forensic Science Laboratory conducted an examination of the scene and took possession of a large number of exhibits. The cars were removed for expert examination. 31. Spent cartridge cases were recovered from all over the crime scene which stretched from the junction of Cloveneden Road/Ballygasey Road to the Church/Church Hall in the vicinity of the start of Main Street, Loughgall. In total, 678 spent cartridge cases were recovered, 78 of which were from IRA weapons. 32. On 9 and 10 May 1987, two forensic doctors carried out post mortem examinations of the bodies. 33. Between 9 and 12 May 1987, police officers conducted lengthy interviews with soldiers A to X, each of whom made a written statement. On 16 March 1988, soldier L was asked by the police to clarify his statement. 34. On 21 July 1988, the RUC forwarded a report to the Director of Public Prosecutions for Northern Ireland (the DPP) on the outcome of their RUC investigation. On 22 September 1988, he concluded that the evidence did not warrant the prosecution of any person involved in the shootings. The Government stated that this decision was notified to the next-of-kin of the deceased. The applicants stated that only the family of Antony Hughes was informed. 35. On 9 May 1990, the statements taken during the RUC investigation were forwarded to the Coroner. 36. On 6 September 1990, the Coroner held a preliminary meeting attended by the lawyers representing the relatives of the deceased. At their request, he adjourned the inquest which he had intended to hold on 24 September 1990, pending the determination of the Devine case, before the Court of Appeal (and subsequently the House of Lords), which concerned the powers of Coroners and the procedure at inquests. Judgments were given by the Court of Appeal on 6 December 1990 and by the House of Lords on 6 February 1992, pursuant to which it was established that rule 17 of the Coroners’ Rules did not prevent coroners admitting written statements in evidence. 37. The inquests were further adjourned pending the outcome of proceedings relating to the inquests into the deaths of Gervaise McKerr, Eugene Toman and Sean Burns (see application no. 28883/95 brought by Jonathan McKerr). These proceedings involved decisions by the High Court on 2 June 1992 and 21 December 1992 and by the Court of Appeal on 28 May 1993, by which it was held that relatives’ counsel was entitled to see a document used by a witness to refresh his memory. There were further proceedings before the High Court on 20 April 1994, when the writs of subpoena, by which the Coroner had attempted to obtain, inter alia, copies of the Stalker and Sampson Reports, were set aside. The McKerr, Toman and Burns inquests terminated on 8 September 1994. 38. An inquest into the deaths of the men in the present case was opened on 30 May 1995 in public before a Coroner and a jury of 10 members. It lasted four days. The RUC and Ministry of Defence were represented. On the first day of the inquest, counsel representing the families of six out of the nine deceased (Patrick Kelly, Declan Arthurs, Eugene Kelly, Michael Gormley, Seamus Donnell and Gerard O’Callaghan) sought for the statements of prospective witnesses to be made available to them at the commencement of the proceedings together with the maps and photographs. The Coroner made available the maps and photographs but did not permit counsel (other than those instructed on the Coroner’s behalf) to see witness statements until the witness was giving evidence. 39. On the same day of the inquest, counsel for the six families asked for the proceedings to be adjourned to allow them to seek judicial review of the decision to refuse access to the witness statements. This adjournment was refused and, following the rejection of a second application, counsel was instructed by the six families to withdraw from the hearing to seek a remedy by way of judicial review. This step was taken on 31 May 1995 following consultation with the families and because it was felt “utterly impossible for the applicants’ interests to be fairly or adequately represented given the rulings of the Coroner”. 40. The hearing of the inquest proceeded without representation for any of the nine families. The Coroner heard 45 witnesses, including the brother of Antony Hughes who had been shot and injured, civilian and police eye-witnesses, including Constables A and B and the police officers involved in the investigation. None of the soldiers appeared but their statements were lodged. It was concluded on 2 June 1995 that all nine men had died from serious and multiple gun shot wounds. 41. The family of Declan Arthurs sought judicial review of the Coroner’s decisions not to allow the legal representatives to see witness statements before they gave evidence, not to allow additional time to their advisers to consider expert and controversial evidence, and the refusal of the application for an adjournment. Leave was granted on 1 June 1995. In his judgment of 24 May 1996, Mr Justice McCollum in the High Court refused to quash the Coroner’s decisions or the jury verdict. In doing so, the judge placed considerable emphasis on the character of an inquest as a fact finding exercise and not a method of apportioning guilt. 42. Seven of the families (the relatives of Antony Hughes, Kevin Antony McKearney, Michael Gormley, Seamus Donnelly, Declan Arthurs, Gerard O’Callaghan and Eugene Kelly) issued civil proceedings against the Ministry of Defence on 2 December 1988, 20 March 1990 and 4 May 1990 respectively. 43. On 25 April 1991, the Hughes family settled proceedings for 100,000 pounds sterling (GBP) in respect of Antony Hughes, who was a civilian unconnected with the IRA gunmen. 44. No further steps were taken to pursue the proceedings by the family of Kevin Antony McKearney. Regarding the remaining five families, who are represented by the same lawyer, statements of claim were issued in October 1993, alleging that the shooting of the deceased represented excessive force and was unnecessary and unlawful or, alternatively, that there was negligence, inter alia, in failing to give warnings or an opportunity to submit to lawful arrest and using excessive force. 45. On 13 January 1994, the five families issued notice of their intention to proceed with their claims. 46. On 3 March 1994, the Ministry of Defence served their defence, stating inter alia that the force used was necessary to prevent the deceased committing unlawful acts and to protect lives and personal safety. They also served a notice requesting further and better particulars of the statement of claim. 47. Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia: “1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.” Self-defence or the defence of others is contained within the concept of the prevention of crime (see e.g. Smith and Hogan on Criminal Law). 48. The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the Coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of the evidence of witnesses and reports, inter alia, of post mortem and forensic examinations, who the deceased was and how, when and where he died. 49. Pursuant to the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner (section 7). Every medical practitioner who performs a post mortem examination has to notify the Coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of that district are required to give notice to the Coroner (section 8). 50. Rules 12 and 13 of the Coroners Rules give power to the Coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased. 51. Where the Coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials. 52. The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules: “15. The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely: - (a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death. 16. Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing Rule.” 53. The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (e.g. bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked “conclusions of the jury/coroner as to the death” in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person was criminally liable. The jury in England and Wales may also append recommendations to their verdict. 54. However, in Northern Ireland, the Coroner is under a duty (section 6(2) of the Prosecution of Offences Order (Northern Ireland) 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed. 55. Until recently, legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges. Legislation which would have provided for legal aid at the hearing of inquests (the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, Schedule 1 paragraph 5) has not been brought into force. However, on 25 July 2000, the Lord Chancellor announced the establishment of an Extra-Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in Northern Ireland. In March 2001, he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. This included inter alia consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased. 56. The Coroner enjoys the power to summon witnesses who he thinks it necessary to attend the inquest (section 17 of the Coroners Act) and he may allow any interested person to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a witness is entitled to rely on the privilege against self-incrimination. In Northern Ireland, this privilege is reinforced by Rule 9(2) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest. 57. In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate. 58. Rules 15 and 16 (see above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners: “... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.” 59. Domestic courts have made, inter alia, the following comments: “... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how...the deceased came by his death’, a far more limited question directed to the means by which the deceased came by his death. ... [previous judgments] make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is ‘To allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v the Coroner for North Humberside and Scunthorpe ex parte Roy Jamieson, April 1994, unreported) “The cases establish that although the word ‘how’ is to be widely interpreted, it means ‘by what means’ rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and others, (1994) 158 JP 357) “... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial... It is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role - the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R v. South London Coroner ex parte Thompson (1982) 126 SJ 625) 60. There was no requirement prior to 1999 for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest. Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings, as the relevant witness came forward to give evidence. 61. Following the recommendation of the Stephen Lawrence Inquiry, Home Office Circular No. 20/99 (concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty) advised Chief Constables of police forces in England and Wales to make arrangements in such cases for the pre-inquest disclosure of documentary evidence to interested parties. This was to “help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted, and that they and their legal representatives will not be disadvantaged at the inquest”. Such disclosure was recommended to take place 28 days before the inquest. 62. Paragraph 7 of the Circular stated: “The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation. The Coroner has no power to order the pre-inquest disclosure of such material... Disclosure will therefore be on a voluntary basis..” Paragraph 9 listed some kinds of material which require particular consideration before being disclosed, for example: – where disclosure of documents might have a prejudicial effect on possible subsequent proceedings (criminal, civil or disciplinary); – where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family; and – personal information about third parties not material to the inquest. Paragraph 11 envisaged that there would be non-disclosure of the investigating officer’s report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate. 63. The police complaints procedure was governed at the relevant time by the Police (Northern Ireland) Order 1987 (the 1987 Order). This replaced the Police Complaints Board, which had been set up in 1977, by the Independent Commission for Police Complaints (the ICPC). The ICPC has been replaced from 1 October 2000 with the Police Ombudsman for Northern Ireland appointed under the Police (Northern Ireland) Act 1998. 64. The ICPC was an independent body, consisting of a chairman, two deputy chairmen and at least four other members. Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of State considered that a criminal offence might have been committed by a police officer, the case was referred to the ICPC. 65. The ICPC was required under Article 9(1)(a) of the 1987 Order to supervise the investigation of any complaint alleging that the conduct of a RUC officer had resulted in death or serious injury. Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced (Article 9(5)(b)). A report by the investigating officer was submitted to the ICPC concerning supervised investigations at the same time as to the Chief Constable. Pursuant to Article 9(8) of the 1987 Order, the ICPC issued a statement whether the investigation had been conducted to its satisfaction and, if not, specifying any respect in which it had not been so conducted. 66. The Chief Constable was required under Article 10 of the 1987 Order to determine whether the report indicated that a criminal offence had been committed by a member of the police force. If he so decided and considered that the officer ought to be charged, he was required to send a copy of the report to the DPP. If the DPP decided not to prefer criminal charges, the Chief Constable was required to send a memorandum to the ICPC indicating whether he intended to bring disciplinary proceedings against the officer (Article 10(5)) save where disciplinary proceedings had been brought and the police officer had admitted the charges (Article 11(1)). Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged or where he considered that no criminal offence had been committed, he was required to send a memorandum indicating whether he intended to bring disciplinary charges and, if not, his reasons for not proposing to do so (Article 11(6) and (7)). 67. If the ICPC considered that a police officer subject to investigation ought to be charged with a criminal offence, it could direct the Chief Constable to send the DPP a copy of the report on that investigation (Article 12(2)). It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ICPC specified (Article 13(1) and (3)). 68. The Director of Public Prosecutions (the DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) 1972 (the 1972 Order) is an independent officer with at least 10 years’ experience of the practice of law in Northern Ireland who is appointed by the Attorney General and who holds office until retirement, subject only to dismissal for misconduct. His duties under Article 5 of the 1972 Order are inter alia: “(a) to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney General or by any other authority or person; (b) to examine or cause to be examined all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated; (c) where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.” 69. Article 6 of the 1972 Order requires inter alia Coroners and the Chief Constable of the RUC to provide information to the DPP as follows: “(2) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [DPP] a written report of those circumstances. (3) It shall be the duty of the Chief Constable, from time to time, to furnish to the [DPP] facts and information with respect to – (a) indictable offences [such as murder] alleged to have been committed against the law of Northern Ireland; ... and at the request of the [DPP], to ascertain and furnish to the [DPP] information regarding any matter which may appear to the [DPP] to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the [DPP] to be necessary for the discharge of his functions under this Order.” 70. According to the Government’s observations submitted on 18 June 1998, it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms. This practice was based upon the consideration that (1) if reason were given in one or more cases, they would be required to be given in all. Otherwise, erroneous conclusions might be drawn in relation to those cases where reasons were refused, involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice; (2) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case (e.g. sudden death or flight of a witness or intimidation). To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation; (3) the publication of the reasons might cause pain or damage to persons other than the suspect (e.g. the assessment of the credibility or mental condition of the victim or other witnesses); (4) in a substantial category of cases decisions not to prosecute were based on the DPP’s assessment of the public interest. Where the sole reason not to prosecute was the age, mental or physical health of the suspect, publication would not be appropriate and could lead to unjust implications; (5) there might be considerations of national security which affected the safety of individuals (e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations, would impair the effectiveness of the counter-terrorist operations of the security forces or endanger the lives of such personnel and their families or informants). 71. Decisions of the DPP not to prosecute have been subject to applications for judicial review in the High Court. In R. v. DPP ex parte C (1995) 1 CAR, p. 141, Lord Justice Kennedy held, concerning a decision of the DPP not to prosecute in an alleged case of buggery: “From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute: (1) because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below £100); (2) because the Director of Public Prosecutions failed to act in accordance with his own settled policy as set out in the code; or (3) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.” 72. In the case of R. v. the DPP and Others ex parte Timothy Jones the Divisional Court on 22 March 2000 quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the DPP – that the evidence was not sufficient to provide a realistic prospect of satisfying a jury - required further explanation. 73. R. v. DPP ex parte Patricia Manning and Elizabeth Manning (decision of the Divisional Court of 17 May 2000) concerned the DPP’s decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner, although the inquest jury had reached a verdict of unlawful death - there was evidence that prison officers had used a neck lock which was forbidden and dangerous. The DPP reviewing the case still concluded that the Crown would be unable to establish manslaughter from gross negligence. The Lord Chief Justice noted: “Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director’s provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.” As regards whether the DPP had a duty to give reasons, the Lord Chief Justice said: “It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined cases which meet Mr Blake’s conditions set out above, we do not understand domestic law or the jurisprudence of the European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the State must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroner’s Act 1988, and if the death resulted from violence inflicted by agents of the State that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective inquiry (see McCann v. United Kingdom [1996] 21 EHRR 97, paragraphs 159 to 164). Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court’s expectation that if a prosecution is not to follow a plausible explanation will be given. We would be very surprised if such a general practice were not welcome to Members of Parliament whose constituents have died in such circumstances. We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases which meet Mr Blake’s conditions is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require.” On this basis, the court reviewed whether the reasons given by the DPP in that case were in accordance with the Code for Crown Prosecutors and capable of supporting a decision not to prosecute. It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute. The decision was quashed and the DPP was required to reconsider his decision whether or not to prosecute. 74. In the Matter of an Application by David Adams for Judicial Review, the High Court in Northern Ireland on 7 June 2000 considered the applicant’s claim that the DPP had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police. It noted that there was no statutory obligation on the DPP under the 1972 Order to give reasons and considered that not duty to give reasons could be implied. The fact that the DPP in England and Wales had in a number of cases furnished detailed reasons, whether from increasing concern for transparency or in the interests of the victim’s families, was a matter for his discretion. It concluded on the basis of authorities that only in exceptional cases such as the Manning case (paragraph 73 above) would the DPP be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice Kennedy (paragraph 71 above) were infringed. Notwithstanding the findings in the civil case, they were not persuaded that the DPP had acted in such an aberrant, inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted. 75. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. 76. Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. 77. Other relevant provisions read as follows: Paragraph 10 “... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.” Paragraph 22 “... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.” Paragraph 23 “Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.” 78. Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65, (UN Principles on Extra-Legal Executions) provides, inter alia, that: “There shall be a thorough, prompt and impartial investigation of all suspected cases of extra legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ...” 79. Paragraphs 10 to 17 of the UN Principles on Extra-Legal Executions contain a series of detailed requirements that should be observed by investigative procedures into such deaths. Paragraph 10 states, inter alia: “The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ...” Paragraph 11 specifies: “In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles.” Paragraph 16 provides, inter alia: “Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ...” Paragraph 17 provides, inter alia: “A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ...” 80. The “Minnesota Protocol” (Model Protocol for a legal investigation of extra-legal, arbitrary and summary executions, contained in the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions) provides, inter alia, in section B on the “Purposes of an inquiry”: “As set out in paragraph 9 of the Principles, the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim. To fulfil that purpose, those conducting the inquiry shall, at a minimum, seek: (a) to identify the victim; (b) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible; (c) to identify possible witnesses and obtain statements from them concerning the death; (d) to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death; (e) to distinguish between natural death, accidental death, suicide and homicide; (f) to identify and apprehend the person(s) involved in the death; (g) to bring the suspected perpetrator(s) before a competent court established by law.” In section D, it is stated that “In cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established ...” 81. In the report on its visit to the United Kingdom and the Isle of Man from 8 to 17 September 1999, published on 13 January 2000, the European Committee for the Prevention of Torture (the CPT) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill-treating persons. It commented, inter alia, on the statistically few criminal prosecutions and disciplinary proceedings which were brought, and identified certain aspects of the procedures which cast doubt on their effectiveness: The chief officers appointed officers from the same force to conduct the investigations, save in exceptional cases where they appointed an officer from another force, and the majority of investigations were unsupervised by the Police Complaints Authority. It stated at paragraph 55: “As already indicated, the CPT itself entertains reservations about whether the PCA [the Police Complaints Authority], even equipped with the enhanced powers which have been proposed, will be capable of persuading public opinion that complaints against the police are vigorously investigated. In the view of the CPT, the creation of a fully-fledged independent investigating agency would be a most welcome development. Such a body should certainly, like the PCA, have the power to direct that disciplinary proceedings be instigated against police officers. Further, in the interests of bolstering public confidence, it might also be thought appropriate that such a body be invested with the power to remit a case directly to the CPS for consideration of whether or not criminal proceedings should be brought. In any event, the CPT recommends that the role of the ‘chief officer’ within the existing system be reviewed. To take the example of one Metropolitan Police officer to whom certain of the chief officer’s functions have been delegated (the Director of the CIB [Criminal Investigations Bureau]), he is currently expected to: seek dispensations from the PCA; appoint investigating police officers and assume managerial responsibility for their work; determine whether an investigating officer’s report indicates that a criminal offence may have been committed; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer’s report, and liase with the PCA on this question; determine which disciplinary charges should be brought against an officer who is to face charges; in civil cases, negotiate settlement strategies and authorise payments into court. It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way. 57. ...Reference should also be made to the high degree of public interest in CPS [Crown Prosecution Service] decisions regarding the prosecution of police officers (especially in cases involving allegations of serious misconduct). Confidence about the manner in which such decisions are reached would certainly be strengthened were the CPS to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought. The CPT recommends that such a requirement be introduced.”

dev

001-110918

ENG

SWE

CHAMBER

CASE OF NACIC AND OTHERS v. SWEDEN

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Serbia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life)

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

7. The first applicant is Mr Sladjan Nacic born in 1969, the second applicant is Mrs Jelena Nacic born in 1971, and the third and fourth applicants are their sons, born in 1991 and 1994. They are currently in Sweden. 8. The applicants are of Roma descent and lived in the village of Kosovo Polje. Following the outbreak of war in 1999, the first applicant refused to participate in the fighting and hid from the armed forces. Due to this, the other applicants were subjected to threats and beatings by Serbian military. Finally, they were driven out of their home by Albanian militia. They fled by train to Suvi Do, another village in Kosovo. On their way, they lost a bag containing their passports and identification papers. They hid at a friend’s home, where they remained completely isolated from the world until they travelled to Sweden in 2006. They had felt harassed in Kosovo because of their being Roma, but they had not been subjected to any persecution, allegedly due to their isolation. They applied for asylum and permanent residence permits on arrival. 9. On 13 March 2008 the Migration Board (Migrationsverket) rejected their applications. First, the Board found that the applicants had not proved their identity. By submitting an UNMIK certificate on their residency in Kosovo Polje, they had made it plausible that they were from Kosovo or Serbia. However, the Board found that neither the general situation in Kosovo nor that in Serbia was such that it in itself constituted grounds for granting asylum. Also, the Board found that the applicants were not to be considered as refugees or as in need of any other specific protection. In regard to the applicants’ Roma ethnicity, the Board noted that the first applicant’s mother was Serb, that none of the family members spoke Romani or had any contact with other Roma. In Kosovo, they had lived in Serb areas and had only socialised with Serbs. In the Board’s view, it was difficult to conclude in these circumstances that the applicants would be seen as Roma upon return. Noting, furthermore, that they had not been subjected to any persecution because of their ethnicity previously, the Board concluded that they had failed to show that there was such a risk upon return. 10. The Board went on to assess whether the applicants’ personal situation could constitute a ground for granting residence permits. The first, second and third applicants submitted that they suffered from medical problems. 11. The first applicant claimed that he was hypertonic. The Board found that this was a common medical condition and that he would not be subject to any medical risk if he were to return to Kosovo or Serbia. 12. The second applicant claimed that she suffered from psychological problems and submitted a certificate issued by a nurse on 24 January 2008 and extracts from her medical records covering the period from 12 April to 17 December 2007. The Board found that the certificate had not been issued in accordance with Swedish regulations and did not contain any prognosis. Therefore, it was not able to assess fully the gravity of her condition or what type of care she needed. Nevertheless, it found that her condition was not life-threatening and thus could not constitute a ground for granting a residence permit. 13. The third applicant claimed that he also suffered from psychological problems and submitted a medical certificate issued by a senior physician on 25 January 2008. The Board found that the medical certificate did not contain any diagnosis and that it therefore could not assess whether or not the applicant could receive appropriate medical care in Kosovo or Serbia. The Board noted that treatment for depression was offered both in Kosovo and Serbia. It further noted that the applicant’s health had not improved after he had received treatment in Sweden and that his condition would probably only improve if he were in a more secure and stable environment. 14. The applicants appealed to the Migration Court (Migrationsdomstolen) in Malmö where they held to their earlier submissions and added the following. The whole family moved to a children’s home in July 2008, when the authorities decided that the parents did not have the ability to take care of their children under the existing circumstances. The applicants also submitted several medical certificates regarding the first, second and third applicants. According to the certificates regarding the first and second applicants, there was a risk that they might commit suicide if they were to be expelled from Sweden. Regarding the second applicant, it was stated that she had earlier attempted suicide and that she showed clear signs of post-traumatic stress disorder (PTSD). 15. According to the certificate regarding the third applicant, issued on 27 September 2008 by Ann-Marie Nyberg, specialist in youth psychiatry, he was in a very bad state on arrival in Sweden. He was depressed and could hardly interact with other persons. During the spring of 2007, he was in contact with the Children and Youth Psychiatric Care Unit (Barn- och ungdomspsykiatrin) in Lindesberg, which found that he suffered from depression. His condition improved when he started school and began to play football and also had a contact person assigned. However, after the Migration Board’s decision in March 2008, his depression became worse again. He isolated himself at home and became apathetic. In June 2008, he attempted suicide by overdose of anti-depressants. He was committed to hospital, but discharged after one day. When the family arrived at the children’s home in July 2008, he was in very poor condition, refused to eat solid food and stayed in bed most of the time. There would be a serious risk of another suicide attempt if he were to be expelled from Sweden. 16. On 1 December 2008 the Migration Court rejected the appeal, upholding the Board’s reasoning and conclusion, adding the following. The third applicant would soon be 18 years old. Although he suffered from severe depressive devitalisation, it could not be assumed that his psychosocial development would be damaged if he were to be expelled from Sweden. Also, psychiatric care was available in both Kosovo and Serbia, at least for those who could pay. Therefore, neither the third applicant’s health nor his personal situation were enough to justify granting him a residence permit. This reasoning also applied to the other applicants, who were all in better health. Two of the lay judges delivered a dissenting opinion finding that the third applicant’s health constituted a sufficient reason to grant him a residence permit. Applying the principle of respect for family life, they also found that the rest of the family should be granted a right to stay. 17. The applicants proceeded to the Migration Court of Appeal (Migrationsöverdomstolen) and submitted that they had been subjected to persecution in Kosovo due to their ethnicity and that this had caused their health problems. Their possibilities to receive proper care if sent back were limited, especially regarding the third applicant. Also, they would not have access to the health care system due to their ethnicity. Their health had deteriorated, as allegedly shown by several medical certificates submitted. 18. On 23 November 2009 the Migration Court of Appeal delivered its judgment. Regarding the third applicant, the court found that the medical certificates showed that he suffered from severe mental illness, that he was unlikely to get better in the foreseeable future and that the necessary treatment presupposed that he was in a safe, secure and stable environment. Furthermore, it found that health care was available in both Kosovo and Serbia, but that the applicant’s health issues had arisen due to events taking place there. Considering all this, the court quashed the lower court’s judgment and granted him a permanent residence permit. Regarding the other applicants, it upheld the lower court’s reasoning and decision. 19. Two dissenting opinions were attached to the appellate court’s judgment. In the first, one of the judges held that the third applicant had recently turned 18 years old, that he therefore should be regarded as an adult and that his circumstances should be assessed separately from the other applicants. Taking this into account, and also the fact that proper health care would be available to him in Kosovo or Serbia, the judge found that he had no right to remain in Sweden. He should therefore be expelled together with the other applicants. 20. In the second dissenting opinion, another judge held that the medical certificates clearly showed that the first, second and third applicants in particular suffered from severe mental illness. The documents available also showed that the condition for the third applicant’s well-being was a safe, secure and stable environment. Although he had turned 18, the family’s situation had to be taken as a whole. Therefore, all of the applicants should be granted permanent residence permits. 21. On 5 February 2010 the applicants lodged a new request for residence permits on the basis that there were impediments to the enforcement of their deportation order. They submitted new medical certificates and argued that their conditions had worsened. On 24 February 2010 the Migration Board rejected the request as it found that the applicants had invoked no new circumstances of importance and that there were no impediments to the enforcement of the first, second and fourth applicants’ deportation order. Moreover, as the third applicant had reached the age of majority, they could no longer be granted residence permits on account of family ties to him. 22. On 18 March 2010 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of the first, second and fourth applicants’ deportation to Kosovo or Serbia. 23. On 23 March 2010, the applicants submitted new medical certificates concerning the first, the second and the third applicants. The certificates were issued jointly by Ann-Marie Nyberg, specialist in youth psychiatry, Anna-Karin Klenell-Hjerm, psychologist and psychotherapist, and Teija Jyrinki Kärkkäinen, trained social worker and psychotherapist and were dated December 2009. The medical certificate regarding the first applicant stated that he suffered from grave depression, insomnia and eating disorders. He had suicidal tendencies, but had not made any suicide attempts out of concern for his children. The diagnosis was grave depression and complex PTSD. According to the medical certificate regarding the second applicant, her condition was serious and possibly fatal and she would not be able to cope with a separation from her son. The prognosis was that all treatment presupposed a safe, secure and stable environment. She was diagnosed with grave depression, depressive devitalisation and complex PTSD. The medical certificate regarding the third applicant stated that he was in need of professional therapy to be able to deal with his traumatic experiences. It was not possible for him to cope without the support of his family. If his parents and his brother were to be returned to Kosovo or Serbia, there was a grave risk that his depression would become worse and that his rehabilitation would be compromised. He was diagnosed with grave depression, depressive devitalisation and complex PTSD. 24. On 16 June 2011, the applicants submitted new medical certificates issued by Ann-Marie Nyberg and dated June 2011. According to these, the first applicant had been feeling slightly better since the family had moved from the children’s home to an apartment in Trollhättan in December 2010. However, he still suffered from feelings of futility and despair. The second applicant had been feeling better since the Court’s decision not to deport them until further notice. However, she had recently been feeling worse again due to her fear of a possible deportation. She still suffered from severe depression and PTSD and was worried about the third applicant’s health. The third applicant had gradually been feeling better since he had been granted a residence permit. However, his positive development had been halted by the threat of disruption of the family and he showed clear signs of falling into depression again. The fourth applicant had, due to his young age, been spared the traumatic experiences in Kosovo. However, according to the medical certificate, a disruption of the family could be expected to cause him a severe trauma. 25. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the Aliens Act”), as amended on 1 January 2010. The following refers to the Aliens Act in force at the relevant time. 26. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act). 27. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act). 28. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act). 29. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act). 30. It should also be noted that Chapter 1, Section 2 of the Aliens Act defines a child as a person under 18 years of age. 31. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the Aliens Act). 32. The U.S. Department of State 2010 Country Reports on Human Rights Practices, states, inter alia, the following regarding the situation in Kosovo: “Institutional and societal discrimination persisted against Kosovo Serb, Roma, Ashkali, and Egyptian communities in employment, education, social services, language use, freedom of movement, the right to return, and other basic rights. Members of the Kosovo Bosniak and Gorani communities also complained of discrimination, while Kosovo Croat and Kosovo Montenegrin communities were nominally acknowledged through appointment of their representatives to the Kosovo president’s Communities’ Consultative Council. Kosovo Bosniak leaders continued to complain that many of their community members continued to depart the country as a result of discrimination and, increasingly, an absence of economic opportunities. Members of the Roma, Ashkali, and Egyptian communities were subject to pervasive social and economic discrimination; often lacked access to basic hygiene, medical care, and education; and were heavily dependent on humanitarian aid for survival. Reports of violence and other crimes directed at minorities and their property persisted. There were clashes between groups of Kosovo Albanians and Kosovo Serbs during the year.” 33. The International Organisation for Migration’s report “Returning to Kosovo, country information” from 1 December 2009 provides the following: “The public health care system in Kosovo is still in a phase of post-war reconstruction. The rehabilitation of the mental health system is one of the priorities of the MoH [...]. However, the system faces many challenges. The number of mental health professionals is very limited and the present educational system for mental health is underdeveloped. Existing institutions also have limited access modern know-how in psychiatry. Nevertheless, there is a favourable environment for accelerating reforms, supported by the Mental Health Strategy 2008-2011 of the MoH. The mental health needs of the severely traumatised population are very high but there is only one psychiatrist for 90,000 inhabitants and one mental health worker for 40,000 inhabitants. There are only five clinical psychologists and a small number of social workers. The psychiatric treatment provided is biologically-oriented, using pharmaceuticals and hospitalisation as the main, if not the only, tools. This sector suffers also from the destruction of medical equipment during and since the conflict in 1999. Treatment of post-traumatic stress disorder (PTSD), which became a matter of the greatest importance after the wars in Yugoslavia and the turmoil in Kosovo in March 2004, is in desperate need of improvement. Some calculations suggest that 140,000 to 200,000 people (an estimated 7-10% of the population) are suffering from PTSD. The mental health care system in Kosovo simply does not have sufficient resources of people or facilities to respond to the need for treatment for mental health disorders. Because of the lack of clinical psychologists and psychiatrists, there is almost no time for psychotherapy. The extreme lack of beds for chronically mentally ill people, and the lack of forensic psychiatry services aggravate the problem. There is only one child psychiatrist in the public health service to provide adolescent mental health services for a population that is overall very young. Drug addiction is also a growing problem without an adequate solution because of the lack of specialised professionals and institutions. However, with international support, new facilities, called “Houses of Integration”, have been opened in Gjakovë/Djakovica, Gjilan/Gnjilane, Prizren, Mitrovicë/a and Drenas/Gllogovac. These facilities offer protected apartments for people with minor mental health problems, as well as therapeutic and psycho-social support. In 2006 the new Intensive Care Psychiatric Unit (ICPU) of the UCC in Prishtinë/Priština became operational. This facility is intended to offer psychiatric treatment to people with severe mental health problems. The Swiss Red Cross and the Psychiatric University of Basel (Switzerland) will provide training support to the ICPU. Community Mental Health Centres offer community-based outpatient mental health services and can be found in the following cities: Gjakovë/Djakovica, Mitrovicë/a, Ferizaj/Uroševac, Prizren, Pejë/ Peć, Prishtinë/Priština, Gjilan/Gnjilane There are neuropsychiatry wards at general hospitals for acute psychiatry in: Prizren, Pejë/Peć, Gjakovë/Djakovica, Mitrovicë/a, Gjilan/Gnjilane, Prishtinë/Priština In Prishtinë/Priština the neuropsychiatry ward is at the UCC. The ward in Prishtinë/Priština provides 75 acute psychiatric beds, while wards in other regions provide around 16 beds for psychiatric patients. In addition, there are special institutions (SSI) in Prishtinë/Priština and Shtime/Štimlje. These institutions come under the mandate of the Ministry of Labour and Social Welfare (MLSW). They were intended to provide services to a specific population with severe learning difficulties during the previous regime but they ended up accommodating about 70 people with psychiatric problems. The mental health services, through the programme of protected apartments, are supporting the de-institutionalisation of patients in Gjilan/Gnjilane and Gjakovë/Djakovica, which are designed for the rehabilitation of long-term psychiatric patients. The MLSW has its own programme to improve the quality of life in the institutions.” 34. The Non-Governmental Organisation Praxis report “Access to rights and integration of returnees on the basis of readmission agreements, analysis of the main problems and obstacles” provides, inter alia, the following regarding the health care for Roma in Serbia: “Health care In order for a person in the Republic of Serbia to exercise the right to health care, he/she needs to be registered in the system of mandatory health insurance and to possess a health booklet. In addition to the proof of insurance (employment contract, decision on the right to pension, etc.), one needs to present an ID card or a birth certificate (for minors) in order to register for insurance and issuance of a health booklet. The request is submitted at the branch office of the Republic Institute for Health Insurance (RIHI) as per place of permanent/temporary residence. The Law on Health Insurance identifies Roma, who do not have a registered permanent/temporary residence in Serbia, as a category of persons for whom contributions are paid from the budget of the Republic. However, the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance in effect until July 2010 stipulated that when applying for registration to health insurance, Roma must give a statement on belonging to this population, and the proof of temporary residence registration in addition to it. As the said regulation was in contravention of the Law on Health Insurance, Praxis sent a request to the Constitutional Court to assess the legality of this regulation. In July 2010, the Rulebook on Amendments to the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance stipulating that the Roma who do not have permanent/temporary residence registered on the territory of the municipality they truly live in, may register health insurance by giving only a statement about the address at which they truly live in addition to the statement on belonging to the Roma minority. The implementation of these changes in the Rulebook was not uniform. Partly due to inadequate levels of information of employees in RIHI branch offices throughout Serbia, partly due to resistance to the concrete novelties and lack of sensitivity, the branch offices in certain municipalities refused to enable Roma to exercise the right to health insurance and issue health booklets under the above stated conditions. On behalf of its clients, Praxis intervened repeatedly and pointed to the changed regulations, managing to have its clients registered. Also, as the impossibility to register permanent residence makes obtaining ID cards impossible, the RIHI branch offices request that Roma submit at least birth certificates instead of ID cards. Returnees on the basis of the readmission agreements with travel documents are allowed only access to urgent medical care for which the Republic budget funds are allocated, until regulation of the status of an insured person or until the expiry of the validity of the travel document. Returnees who fail to obtain ID cards or birth certificates for children born within the period of validity of the travel document (e.g. re-registration into registry books or registration in birth registry book abroad was not done) will remain outside the health care system. Only exceptionally will some RIHI branch offices issue health booklets to undocumented persons and establish a provisional citizen’s unique personal number.”

dev

001-87221

ENG

HUN

CHAMBER

CASE OF DAROCZY v. HUNGARY

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

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

5. The applicant, Ms Tibor Ipolyné Daróczy, is a Hungarian national who was born in 1933 and lives in Budapest. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In 1950 the applicant married Mr Tibor Ipoly Daróczy. According to birth certificate no. 1786/1927 Mr Daróczy was entitled to bear the two above-mentioned forenames from the very moment of his birth. Her husband signed the marriage certificate as “Tibor Daróczy”. The applicant chose to bear her husband’s name by putting the suffix “-né” referring to the marriage (házasságra utaló toldás) after the first given name (Tibor) of her husband. In accordance with the widespread custom in Hungary, the latter only used his first given name even in official contexts. The applicant’s married name was registered as Tiborné Daróczy on the marriage certificate. 8. The official before whom the marriage took place did not observe that the name chosen was against the law since, at the material time, a woman could only choose to bear the whole name of her husband, including all the given names. In the present case, the applicant’s correct married name should have been Tibor Ipolyné Daróczy. 9. The mistake was not revealed in 1954 when identity cards were introduced in Hungary. The applicant’s renewed identity card issued in 1974 also contained the name Tiborné Daróczy. The applicant used this name in all official and private business. In particular, her social security card and tax identification certificate were issued in the name Tiborné Daróczy. 10. In 1984 Hungary introduced electronic data recording. In the new State Registry (Állami Népességnyilvántartó) the applicant’s name was automatically entered in the manner prescribed by law, as Tibor Ipolyné Daróczy. However, she did not receive any official notification of this fact. In 1994 she and her husband were entered on the electoral register (választói névjegyzék) under the names Tibor Daróczy and Tiborné Daróczy. This database relied on the general State Registry. 11. In 1996 the applicant’s husband died. The applicant then used the name Tiborné Daróczy with the prefix “özv.” indicating that she was a widow. 12. In 2004 the applicant lost her identity card. Based on the State Registry, the Registry Office issued a new card which indicated her name as the widow of Tibor Ipoly Daróczy (özv. Tibor Ipolyné Daróczy). On 13 January 2005 the applicant obtained an official certificate containing this name. The certificate’s only function was to enable her to access her bank account since her new identity card contained a name that was different from the one she had used when opening the account. The text of the certificate expressly stated that it had been issued for one-time use. 13. The applicant lodged a complaint with the Ministry of the Interior, seeking permission to bear the name Tiborné Daróczy. In November 2004 the Ministry informed her that, since her husband’s official name was Tibor Ipoly Daróczy, she was entitled and obliged to bear that name in its entirety as a widow, and that it was not possible to change it to another form. Her name is at present registered as Tibor Ipolyné Daróczy. “(3) As a general rule, women should be entered in the registry under their family name (birth name) and forename. Exceptions, having to bear their husbands’ as well as their own family name and forename: (a) married women, widows...” “(1) After the marriage, the wife shall bear a) her whole maiden name, or b) the whole name of her husband with the suffix referring to the marriage, to which she may attach her whole maiden name, or c) her husband’s family name with the suffix referring to the marriage, to which she attaches her whole name, or d) her husband’s family name to which she attaches her first name. ...” “(6) A person bearing his/her spouse’s name cannot alter it by way of a name-change (névváltoztatás).”

dev

001-58298

ENG

TUR

GRANDCHAMBER

CASE OF SÜREK v. TURKEY (No. 4)

Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

8. The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul. 9. At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in Istanbul. 10. In issue no. 51 of the review, dated 13 March 1993, a news commentary entitled “Kawa and Dehak Once Again” was published. The article analysed possible events, which could occur during the upcoming celebrations of Newroz. 11. A translation of the relevant parts of the news commentary is as follows: “... It’s Newroz week in Kurdistan. The biggest confrontation between the demands of the Kurdish people and intolerance in the face of the expression of these demands occurs during these days. The tradition of rebellion is awakened. Dehak and Kawa are once again invested with flesh and bones. It is time to settle accounts. There is nothing vague about Kawa. All the mountains, all the cities are full of Kawa. There are millions of them. All right, who, then, is Dehak? Who is the candidate for representing Dehak in our day? Is it Demirel? Is it Güreş? The regional Governor? Or the new commander İlter? This time round, is Dehak represented by every counter-insurgency chief, indeed, every counter-insurgency operative, every special team member, every police commissioner or superintendent officer? Has Dehak become anonymous too? Be it as it may, but Dehak and Kawa will settle their accounts once again. ... Last year, a revolutionary publication described the days preceding Newroz as follows: ‘Nowadays over 200 thousand soldiers massed into Kurdistan. Tanks and weapons are sent over. Bombs are raining on Kurdish villages and mountains. The Chief of the General Staff has inspected the preparations for the offensive. Instructions are being issued to provincial and district governors, special team leaders, police chiefs and military officials. The Head of MİT intelligence agency talks of the prospect of much blood being shed. Members of Parliament are organising information-gathering trips in order to take the pulse of the people.’ ... Unlike previous years, the PKK-leaning Kurdistan National Assembly (KUM) is also expected to take on a role during Newroz this year. ... On the other hand emergency measures are being implemented in large cities outside Kurdistan where there are concentrations of Kurdish people. It is highly likely that there will be large demonstrations in the Kurdish quarters there.” 12. In the same issue and within the context of the above news commentary, an interview was also published by the Kurdish News Agency with a representative of the National Liberation Front of Kurdistan (“the ERNK”), the political wing of the Kurdistan Workers’ Party (“the PKK”). Both organisations are illegal under Turkish law. 13. A translation of the relevant part of the interview is as follows: “... We wish to emphasise this finding, indeed, we feel that it ought to be underlined. And we call on all European countries. We are open to any humanitarian, political solution, including the calls for an armistice. The PKK movement and its struggle are absolutely not terrorist movements. This misapprehension must be abandoned – it must definitely be abandoned – and a move must be made towards co-operation and support. The real terrorist is the Republic of Turkey. We believe that attitudes on this matter will be much clarified this year, that very positive dialogues will develop and that the Republic of Turkey will be gradually further isolated.” 14. On 14 March 1993 the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) ordered the seizure of all copies of issue no. 51 of the review, since it allegedly disseminated separatist propaganda. 15. In an indictment dated 22 April 1993, the Public Prosecutor at the Istanbul National Security Court, on account of the publication of the above news commentary, charged the applicant in his capacity as the owner of the review with disseminating propaganda against the indivisibility of the State. He was also charged with publishing the declaration of the ERNK (see paragraph 12 above). The charges were brought under sections 8 and 6 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”: see paragraphs 24 and 25 below), respectively. 16. In the proceedings before the Istanbul National Security Court, the applicant denied the charges. He pleaded that the incriminated news commentary did not fall within the scope of section 8 of the 1991 Act. He maintained that arguing and commenting on possible activities in which the PKK might engage during the Newroz celebrations could not be regarded as publishing a declaration of a terrorist organisation within the meaning of section 6 of the 1991 Act. As regards his freedom of expression, the applicant referred to Article 10 of the Convention and the case-law of the Commission and the Court. He stated that pluralism of opinion was essential in a democratic society including opinions which shock or offend. He argued that the provisions of sections 6 and 8 of the 1991 Act restricted freedom of expression in contravention of the Turkish Constitution and the criteria laid down in the case-law of the Commission and the Court. 17. In a judgment dated 27 September 1993, the Istanbul National Security Court found the applicant guilty of an offence under section 8 § 2 of the 1991 Act. The court first sentenced the applicant to a fine of 100,000,000 Turkish liras. However, having regard to the applicant’s good conduct during the trial, it reduced the fine to 83,333,333 Turkish liras. 18. In its reasoning, the court held that the incriminated news commentary contravened section 8 of the 1991 Act. The court concluded that it referred to a certain part of the Turkish territory as “Kurdistan” as well as a certain section of the population as “Kurds”, and amounted to propaganda against the indivisibility of the Turkish State. The court further observed that the review had also published the declaration of an illegal terrorist organisation in which the Republic of Turkey was referred to as a terrorist State. However, it considered that the declaration constituted part of the incriminated news commentary. Having regard to the provisions of Article 79 of the Turkish Criminal Code, the court found no grounds for a separate conviction under section 6 of the 1991 Act. 19. The applicant appealed against his conviction to the Court of Cassation. He relied on the defence grounds which he had invoked at his trial before the National Security Court. 20. On 8 February 1994 the Court of Cassation dismissed the applicant’s appeal, upholding the National Security Court’s reasoning and its assessment of the evidence. On 29 November 1995 the applicant paid the last instalment of the fine imposed on him. 21. Following the amendments made by Law No. 4126 of 27 October 1995 to the 1991 Act (see paragraphs 24 and 25 below), the Istanbul National Security Court ex officio re-examined the applicant’s case. On 22 April 1996 the court ruled that these amendments did not affect the applicant’s case as his sentence had already been executed. 22. The relevant provisions of the Criminal Code read as follows: “In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence…” Article 79 “A person who infringes various provisions of this Code by a single act, shall be punished under the provision which prescribes the heaviest punishment.” 23. The relevant provisions of the Press Act 1950 read as follows: “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” 24. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: “It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations. … Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.” (before amendment by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras. Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.” (as amended by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras… …” 25. The following amendments were made to the Prevention of Terrorism Act 1991 after the enactment of Law 4126 of 27 October 1995: “In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 and 6 of Law no. 647 of 13 July 1965.” 26. The Code of Criminal Procedure contains the following provisions: “An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment. Non-application or erroneous application of a legal rule shall constitute unlawfulness.” “Unlawfulness is deemed to be manifest in the following cases: 1- where the court is not established in accordance with the law; 2- where one of the judges who have taken the decision was barred by statute from participating; …” 27. The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 23 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decisions included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified. 28. Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April 1998 (no. 1998/87) and 17 June 1998 (no. 1998/133). 29. As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the scientific, historical and/or objective nature of the words used. 30. The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows: “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.” “Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…” “National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security. National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors. The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges. Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years. Appeal against decisions of National Security Courts shall lie to the Court of Cassation. ...” “Military legal proceedings “The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...” 31. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows: “In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.” “The National Security Courts shall be composed of a president, two other regular members and two substitute members.” “The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank…” “The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act. Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years… … If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.” “National Security Courts shall have jurisdiction to try persons charged with (a) the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code …, … (d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution, (e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security. …” “The Court of Cassation shall hear appeals against the judgments of the National Security Courts.” “The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession… The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.” “A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…” 32. The relevant provisions of the Military Legal Service Act are worded as follows: “The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926). (a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence. …” “Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…” “Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces… … The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…” “The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.” “The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions: A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties. … B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy. … The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…” “When military judges … sit in court they shall wear the special dress of their civilian counterparts…” 33. Article 112 of the Military Criminal Code of 22 May 1930 provides: “It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.” 34. Under section 22, the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.

dev

001-104359

ENG

MLT

CHAMBER

CASE OF GERA DE PETRI TESTAFERRATA BONICI GHAXAQ v. MALTA

Violation of Art. 6-1;Violation of P1-1;No violation of Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - award

Joseph Zammit Mckeon;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

6. The applicant was born in 1949 and lives in Balzan, Malta. 7. The applicant is the owner of a property, known as Palazzo Bonici, in Valetta. She partly owns some of the ground floor shops, and entirely owns the house, from the rest of the ground floor and the basement to the top floors. 8. The property had been damaged during the Second World War and the applicant's ancestors, from whom she inherited the property, had on 11 January 1945 applied to the War Damage Commission to obtain the necessary funding to have the property restored. At the time, the building consisted of a large eighteenth century town house including a few rooms on the ground floor which were rented out as shops. Between 1945 and 1950 the War Damage Commission had paid out a sum corresponding to EUR 1,307, for the premises excluding the shops in respect of which no amount had been paid as a consequence of undefined claims. According to the applicant the sums awarded covered expenses for required temporary works to secure the premises, as had originally been claimed, and not the entire works to repair the whole of the property. While the Government contended that, despite the payments, the building was left in a state of neglect, the domestic courts acknowledged that the applicant had attempted to reconstruct the damaged area (page 21 of the Constitutional Court judgment of 8 January 2007) 9. In 1958 the then Colonial Government issued an order taking control of the property under title of possession and use, that is, a forced temporary taking of property subject to the payment of annual compensation, known as a “recognition rent”, to the owners. 10. Despite this order, the applicant's ancestors refused to hand over the keys of the building. Thus, the property was left unused until 1972 when the building was forced open by the Government, by which time it had deteriorated considerably. 11. In 1972 the Government commenced works to repair the property with a view to using it as a cafeteria and offices in conjunction with the Manoel Theatre situated nearby. The Government evicted the tenants of the shops on the ground floor which had been leased on the basis of controlled rents, and a hall in the upper floors was converted into a performance hall for small audiences. Subsequently a theatre restaurant was housed in the basement of the building and another floor was added to house the foundation for Maltese patrimony “Fondazzjoni Patrimonju Malti”, a Government foundation promoting national heritage, which also serves as a commercial company dealing in publications. 12. On 5 August 1976 the Government issued a “notice to treat” by which the owner was informed that the compensation offered by way of recognition rent amounted to 210 Maltese Liras (MTL – approximately 490 euros (EUR)). The amount was based on the 1914 rental value (according to rent laws relating to renting of residences – not commercial premises – in force at the time) increased by 40 % to allow for inflation. By a judicial letter of 1976 the applicant's ancestors rejected the offer and in the same year the Commissioner of Lands instituted compensation proceedings before the Land Arbitration Board (“LAB”). These proceedings were suspended sine die on 10 October 1996 (see Annex A for a detailed chronological list of hearings in the proceedings). Pending these proceedings, the applicant inherited the property of which she gained possession by public deed on 26 March 1990. The applicant submitted that even if these proceedings had been concluded, the LAB would have been unable to establish a fair rent reflecting market values, since it was bound by law to assess rent on the basis of 1914 rental values. 13. After repairing the property the Government allocated it and entrusted its management to the Manoel Theatre Management Committee (“MTMC”), the organ of the Ministry of Culture and Education which administers the Manoel Theatre. It rented the property to a number of commercial entities, including offices, cafeterias, reception halls, a restaurant and a publishing house. According to the Government, the economic income received by the MTMC per year amounted to approximately EUR 13,000 and the Government had spent EUR 735,115 restoring the building and meeting its maintenance costs. 14. In 1996 the applicant instituted constitutional redress proceedings in which she brought complaints under Articles 6 and 14 of the Convention and Article 1 of Protocol No.1 to the Convention. She complained that the property, estimated at the time to be worth MTL 880,000 (approximately EUR 2,050,000), was not used for a public purpose, that she had not been offered fair compensation, that the proceedings pending before the LAB were taking an unreasonably long time to be decided and that she had been discriminated against vis-à-vis other property owners who, unlike her, had their properties expropriated by outright purchase and not subject to the less favourable forced rents. She requested the court to grant adequate redress and to award damages. 15. On 18 January 1999 the Civil Court (First Hall) found for the applicant. It declared the taking null and void, as the property was not being used for a public purpose, and therefore contrary to the Convention. It further found a violation of the applicant's right to a fair hearing within a reasonable time. It considered that the period to be taken into account started running on 25 February 1958, the date when the applicant's right to compensation arose, and had not yet ended forty years later. It noted that it had taken the Government eighteen years to issue a “notice to treat” without which compensation proceedings could not be initiated. This, together with the lack of initiative of the Commissioner of Lands to pursue those proceedings, was enough to allow it to conclude that the applicant had suffered a serious prejudice, incompatible with Article 6 of the Convention, over the forty years during which she had been left without compensation. It declared that it was not necessary to examine the Article 14 complaint. The issue of payment of damages in respect of the violation of Article 6 (which depended on the value of the property) was reserved. 16. The Government appealed against the above-mentioned judgment. 17. The applicant submitted that during the proceedings, lasting eight years, the judges were replaced several times and there had been numerous adjournments (see Annex B for a detailed chronological list of hearings in the proceedings). 18. On 8 January 2007 the Constitutional Court upheld the first-instance judgment in part. It held that there had been a violation of Article 1 of Protocol No.1 to the Convention, in that a proper balance had not been preserved between the private interest and the public need. While it was true that the commercial purposes of the taking appeared to have superseded the original purpose, it was in the light of the compensation offered to the applicant (EUR 490 yearly rent for a property valued at approximately EUR 1,863,500) and the fact that she had been deprived of her property for nearly fifty years, that she had been made to bear a disproportionate burden. The fact that the property had been refurbished by the State had little bearing on this conclusion, although it could be relevant in determining the compensation terms. It declared the Governor's declaration of 1958 null and void and ordered the Government to release the property. The Constitutional Court, however, found that there had not been a violation of Article 6 in respect of the length of the proceedings. It was true that the proceedings had been lengthy, the “notice to treat” having been issued only eighteen years after the taking of the property and the proceedings before the LAB having not yet been concluded. However, the court noted that the time to be considered started running after the Convention took effect in respect of Malta, namely on 30 April 1987 (when Malta introduced the right of individual petition) and the applicant had failed to submit evidence of what had caused the delay after 1987. As to the Article 14 complaint, the court held that it had been misconceived, since the first-instance court had not examined it. As to the adequacy of compensation, it confirmed that the release of the property was an adequate remedy for the violation of Article 1 of Protocol No.1 to the Convention, and the reservation of the issue of compensation by the first court was related to the Article 6 complaint, which had not been upheld on appeal. However, it reserved any rights the applicant might wish to assert in respect of compensation for the “possession and use” of the premises during the relevant period. 19. On an unspecified date following this judgment, the applicant obtained an eviction order against the Government. However, prior to its enforcement, on 22 January 2007, the Government issued a fresh order, this time under title of public tenure in accordance with the Land Acquisition (Public Purposes) Ordinance (“the Ordinance”). Included in the taking were a number of shops and offices adjacent to Palazzo Bonici, of which the applicant owned an undivided share together with third parties. The Government offered an annual recognition rent of MTL 21,000 (approximately EUR 49,000), basing it on section 22 (11) (c) of the Ordinance (see “Relevant Domestic Law” below), without indicating what portion of this amount was due for the applicant's house, of which she was the sole owner. According to an architect's valuation, the present day rental value of Palazzo Bonici, excluding the other adjacent property, amounts to MTL 110,000 (approximately EUR 256,000) per year. The market value in the case of sale is estimated to be MTL 2,200,000 (approximately EUR 5,125,000); the Government, however, estimate it to be only MTL 1,500,000 (approximately EUR 3,494,000). 20. On an unspecified date, the applicant lodged ordinary proceedings (327/07 - ATB 10), complaining that the new taking of the property under public tenure had been unlawful, as it was not permissible under the Land Acquisition Ordinance to take property by means of public tenure if it was not already being used by the Government. 21. At the request of the Government the eviction order was suspended pending the outcome of those proceedings. 22. On the date of introduction of this application the proceedings were still pending. The Civil Court, in its ordinary jurisdiction, gave judgment in the case on 11 November 2008. The latter held that the taking of the property by public tenure had been ultra vires and was therefore null and void. An appeal was lodged on 19 November 2008 and the case is still pending. 23. On an unspecified date the applicant lodged further constitutional redress proceedings (23/07 - ATB 10 A), claiming that the taking of the property under public tenure breached Articles 6 and 14 of the Convention and Article 1 of Protocol No.1 to the Convention. 24. She claimed that the taking had not been in the public interest as the property was mainly being used for commercial purposes in relation to the Theatre, even though the Government had at their disposal other properties in the vicinity which could have served the same purpose. She also claimed that the inadequate compensation offered by the Government was arbitrary and not in accordance with the law. Compensation for the taking of a property under public tenure had to be calculated on the basis of section 27 (13) of the Ordinance and not section 22 (11) (c), which applied where property taken under “public tenure” was converted by absolute purchase (see the Relevant Domestic Law below). Although it could be supposed that the Government's offer amounted to more than what was applicable by law, it did not reflect the real current market value, since the calculations had been based on rental values applicable in 1939. Even assuming that the offer comprised compensation for Palazzo Bonici alone and not the adjacent properties, it still represented a fifth of its real value on the market; therefore, it did not constitute adequate compensation and the applicant was being made to bear an excessive burden. She further claimed that the decision to take her property under public tenure had been arbitrary and discriminatory. At the time only four other properties had been taken under this title, as opposed to outright purchase. All the properties had already been in the possession of the Government under a different title and were all related to slum clearance and housing projects, unlike the applicant's. Finally, she complained that the taking was in breach of Article 6, in that she was not given a fair hearing within a reasonable time, as she had no real and effective possibility of having the value of her property determined by a court. Notwithstanding the Constitutional Court judgment in her favour, in these circumstances the applicant remained without an effective remedy. 25. These proceedings are still pending. 1. Compensation for damage arising from the violation of Article 1 of Protocol No. 1 26. On 15 January 2007 the applicant requested the Civil Court (First Hall) to determine the claim (537/1996) for the compensation due for the violation of Article 1 of Protocol No. 1 in accordance with Article 235 of the Code of Organisation and Civil Procedure (“COCP”). On 29 November 2007 the Civil Court (First Hall) rejected the applicant's claim. It held that the Civil Court had only reserved the matter of compensation in relation to Article 6, of which no violation had been found by the Constitutional Court, which had also found that declaring the taking null and void was a sufficient remedy for the violation of Article 1 of Protocol No. 1. Thus, the Constitutional Court's judgment of 8 January 2007 had been final, the applicant's claims having been decided in their entirety, except for the reservation in respect of payment due for the possession and use of the land for the relevant period, which was subject to ordinary civil remedies. In consequence Article 235 of the COCP did not apply to the present case. 27. That finding was confirmed on appeal by a judgment of the Constitutional Court of 29 February 2008. 2. Compensation for damage arising from the possession and use of the premises 28. On 6 December 2007 the applicant instituted proceedings against the Commissioner of Lands (1281/07) for damage arising from the loss of possession and use of the premises in the light of the Constitutional Court's judgment of 8 January 2007 finding a violation of Article 1 of Protocol No. 1 to the Convention. On 10 June 2010, the court having established that such a decision had not been taken by any other court and that the domestic courts had particularly stated that such a measure had to be sought before the ordinary domestic civil courts, took cognisance of the case and ordered the submission of the relevant evidence. 29. The proceedings are still pending. 30. Section 22 (11) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, reads as follows: “The compensation due for the acquisition by absolute purchase of any land, and the sum to be deposited in accordance with this article shall be: ... (c) in the case of conversion from public tenure into absolute purchase a sum arrived at by the capitalisation at the rate of one point four per centum of the annual recognition rent due under the provisions of this Ordinance.” Section 27 of the Ordinance relates to the assessment of compensation by the Land Arbitration Board. Subsection 13, reads as follows: “The compensation in respect of the acquisition of any land held by way of public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles (2) to (12), inclusive, of this article, increased (a) by forty per centum (40%) in the case of an old urban tenement and (b) by twenty per centum (20%) in the case of agricultural land.”

dev

001-58072

ENG

ITA

CHAMBER

CASE OF CALOGERO DIANA v. ITALY

Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 13;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

C. Russo;R. Pekkanen

7. On 11 September 1970 Mr Diana was arrested on suspicion of having taken part in the activities of the terrorist organisation known as the "Red Brigades" and immediately taken into custody. He was convicted on eleven occasions between February 1971 and January 1987, the heaviest sentences he received being those imposed in the Novara Assize Court on 5 February 1981 (twenty-seven years' imprisonment and a fine of 200,000 Italian lire) and by the Milan Assize Court of Appeal on 28 November 1985 (life imprisonment). Since 11 September 1970 the applicant, pursuant to an aggregation of sentences ordered on 17 June 1992 by the Principal Public Prosecutor of Cagliari, has been serving the sentence of life imprisonment and has at the same time been, among other things, permanently disqualified from holding public office, stripped of his civic rights for the duration of his prison sentence and removed from parental control. 8. On 28 March 1987 the judge responsible for the execution of sentences (magistrato di sorveglianza) in Reggio di Calabria decided that Mr Diana's correspondence - the applicant then being in custody in Palmi Prison - should be subject to censorship under section 18 of Law no. 354 of 26 July 1975 (see paragraph 18 below). The grounds given for the decision were: the nature of the applicant's offences; the fact that he belonged to a special category of prisoner whose attitude was one of total opposition to the institutions of the State; his conduct; and his rejection of prison and refusal of any cooperation with prison staff. 9. On an unspecified date the applicant was transferred to Ascoli Piceno Prison. 10. On 17 December 1988 the judge responsible for the execution of sentences at Macerata ordered that all the applicant's correspondence, both incoming and outgoing, should be subject to censorship for six months from 22 December 1988, the date on which the prisoner was notified of the decision. He considered that the reasons which had prompted his counterpart in Reggio di Calabria to take such a measure (see paragraph 8 above) remained valid and that there was a continuing danger that the applicant would use his correspondence to commit offences or to prejudice public order or safety. At that time Mr Diana already had two convictions, and two other sets of criminal proceedings were pending against him. The first of these, in the Cagliari Assize Court of Appeal, related to charges of kidnapping, manufacture, possessing and carrying explosives, aggravated destruction of property and resisting arrest; they ended in a judgment of 17 March 1989, which became final on 5 March 1990 and in which the applicant was convicted and sentenced to eight years and six months' imprisonment and permanently disqualified from holding public office. The second set of proceedings, which were pending before the Novara Magistrate's Court (pretore), originated in a prosecution brought following an escape by the applicant on 23 September 1986; Mr Diana had been recaptured on 5 December 1986. 11. It is not contested that the following letters were inspected: (a) a letter of 22 January 1989 from the applicant to his lawyer; (b) a registered letter of 27 January 1989 to the applicant from his lawyer; (c) a letter of 16 February 1989 from the applicant to his lawyer; (d) a letter of 18 April 1989 from the applicant to his lawyer; (e) a registered letter of 24 May 1989 to the applicant from his lawyer, enclosing a form for lodging an application with the Commission; and (f) a letter of 30 May 1989 from the applicant to his lawyer, enclosing the Commission application form signed by the applicant on the same date, each page bearing the censor's stamp. 12. Mr Diana made several applications challenging the monitoring of his correspondence. In particular, he lodged an application (richiesta di riesame) with the Macerata judge responsible for the execution of sentences to reconsider his decision of 17 December 1988 (see paragraph 10 above). The judge refused the application on 13 January 1989. On 22 January 1989 the applicant sent a copy of the judge's decisions to his lawyer. On 27 January 1989 the lawyer sought to have the censorship of his correspondence with the applicant ended and the order of 17 December 1988 (see paragraph 10 above) rescinded. Relying on Articles 6 para. 3 (b) and 8 of the Convention (art. 6-3-b, art. 8), he argued, among other things, that the censorship was a manifest violation of the rights of the defence and could not be ordered on the basis of a similar decision taken by another judge nearly two years earlier or on the basis of considerations relating to the applicant's conduct in another prison, especially as the applicant was receiving more lenient treatment in Ascoli Piceno Prison. 13. On 17 March 1989 the judge responsible for the execution of sentences held that the measure in issue was wholly justified, having regard to the arguments already set out in his decision of 17 December 1988, to disciplinary reports on Mr Diana and to the fact that while in custody in Palmi Prison the applicant had been a member of a group of prisoners all of whom belonged to extreme-left-wing subversive movements. He nevertheless decided to adjourn the lawyer's application and submit a question concerning the interpretation of the relevant law to the Prison Service (Direzione generale degli Istituti di prevenzione e pena), relating to whether the monitoring of the applicant's correspondence with his lawyer was lawful, given that two sets of criminal proceedings against the applicant were still pending at the time. The applicant's correspondence nevertheless continued to be monitored while a reply from the relevant authority was awaited. 14. On 26 May 1989 the judge, in reply to a letter sent him by the defence lawyer on 18 May, again confirmed his decision of 17 December 1988. 15. The Prison Service replied on 1 June 1989. In its opinion, censorship of a prisoner's correspondence, provided that all the legal requirements were satisfied, covered all his correspondence, including that with his lawyer, and could not be regarded as infringing the rights of the defence, which were guaranteed by Article 24 of the Constitution. The confidentiality of communications between a prisoner charged with a criminal offence and his lawyer was preserved through the possibility of communication during private conversations inside the prison. On 10 June 1989 the judge responsible for the execution of sentences refused the lawyer's application of 27 January 1989. 16. The measure in issue ended automatically on 22 June 1989, on the expiry of the period specified in the decision (see paragraph 10 above). 17. On 26 June 1992 the applicant was transferred to the special prison at Trani (Bari). Since February 1994 he has enjoyed a semi-custodial regime. 18. Section 18 of Law no. 354 of 26 July 1975 ("Law no. 354"), as amended by section 2 of Law no. 1 of 12 January 1977, provides that power in the matter of censorship of prisoners' correspondence vests in the judge dealing with the case - whether an investigating judge or a trial judge - up to the decision at first instance and in the judge responsible for the execution of sentences thereafter. The judge may order censorship of a prisoner's correspondence in a reasoned decision; this provision, however, does not specify the cases in which such a decision may be taken. 19. The censorship of which the applicant complains consists, in particular, in all mail being intercepted and read by either the judicial authority that has ordered the censorship or the prison governor or prison staff designated by him, and in the stamping of letters for the purpose of showing that they have been inspected. Censorship cannot extend to deleting words or sentences, but the judicial authority can order that one or more letters shall not be handed over; in that case, the prisoner must immediately be informed of the fact. This latter measure can also be ordered temporarily by the prison governor, who must, however, notify the judicial authority of his action. 20. Article 103 of the New Code of Criminal Procedure forbids the seizure or any form of control of the correspondence between a prisoner and his lawyer, provided that the correspondence is recognisable as such and unless the judicial authority has well-founded reasons to believe that the correspondence constitutes the substance of the offence. Similarly, by Article 35 of the transitional provisions of the same Code, the rules on the censorship of a prisoner's correspondence that are laid down in Law no. 354 and Presidential Decree no. 431 of 29 April 1976 do not apply to correspondence between the prisoner and his lawyer. It follows, among other things, that the only authority that may order censorship of that correspondence, and then solely in the case mentioned above, is the judge or court dealing with the case. 21. The Court of Cassation has held on several occasions that the monitoring of a prisoner's correspondence is an administrative act and has also stated that Italian law does not provide any remedies in respect of it; in particular, censorship cannot be the subject of an appeal on points of law, since it does not affect the prisoner's personal freedom (Court of Cassation, judgments nos. 3141 and 4687 of 14 February 1990 and 4 February 1992 respectively).

dev

001-61361

ENG

POL

CHAMBER

CASE OF GIDEL v. POLAND

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

Nicolas Bratza

4. The applicant, Mr Józef Gidel, is a Polish national, who was born in 1959 and lives in Kraków, Poland. 5. The applicant runs a car repair shop in Kraków. On 11 March 1993 he sued a certain I.K. and the State Treasury before the Kraków District Court (Sąd Rejonowy), seeking payment for the repair of I.K’s car. On 27 August 1993 the statement of claim was served on I.K who, at that time, lived in Germany. 6. The first hearing was set down for 21 December 1993 but was later adjourned because the presiding judge was ill. The court held hearings on 26 April, 26 August, 4 November 1994 and on 21 March 1995. 7. Subsequently, the defendant challenged the impartiality of all the judges of the Kraków District Court. On 8 November 1995 the Kraków Regional Court (Sąd Wojewódzki) dismissed his challenge, finding that it lacked any basis and that the relevant statutory requirements for the disqualification of the judges were not satisfied. His further appeal was dismissed by the Kraków Court of Appeal (Sąd Apelacyjny) on 30 January 1996. 8. On 23 October, 1 December 1995 and on 13 May 1996 the applicant sent letters to the court asking for a hearing date to be fixed as soon as possible. 9. On 30 August 1996 the court ordered an expert to prepare a report. However, the expert failed to comply with the court’s order. On 21 October 1996 the court ordered yet another expert to prepare a report within one month. It was submitted to the court on 17 December 1996. 10. On 28 March 1997 the applicant again asked the court to fix a date for a hearing. 11. On 12 December 1997 the court held a hearing. 12. At the hearing held on 3 April 1998 the court ordered that the claim against the State Treasury be examined separately. The next hearing, scheduled for 12 May 1998, was cancelled as there was no courtroom available. 13. On 1 April 1998 I.K. challenged the impartiality of the presiding judge. On 1 June 1998 a panel of three judges, sitting as the Kraków District Court, dismissed the defendant’s challenge, ruling that it was totally unsubstantiated. The court also imposed a fine on him, holding that the challenge had been made in bad faith. His further appeal was dismissed by the Kraków Regional Court on 10 February 1999. 14. On 26 June 1998 the Kraków District Court gave an interlocutory judgment. It dismissed the applicant’s claim against the State Treasury on the ground that its liability had not been established. 15. Meanwhile, the defendant had informed the trial court that he had moved to Poland. This resulted in Kraków-Śródmieście District Court no longer having territorial jurisdiction over the case. On an unknown date the applicant was asked to indicate in which court he wished to pursue his claim: Kraków-Podgórze District Court or Kraków-Nowa Huta District Court. The applicant failed to do so. On 12 July 2000, of the court’s own motion, the case was referred to the Kraków-Podgórze District Court. 16. On 16 October 2000 the applicant sent a letter to the President of the Kraków Regional Court. He complained about the slow conduct of the proceedings. On 17 November 2000, in reply to his complaints, the President observed that the proceedings were indeed lengthy and gave his assurance that he would supervise their conduct. 17. At the hearing held on 9 February 2001 the Kraków District Court gave judgment. On 27 April 2001 the applicant appealed. On 15 October 2001 the Kraków District Court rejected the appeal, as the applicant had failed to pay the required court fee within the statutory time-limit. On 30 January 2002 the Kraków Regional Court quashed this decision and allowed the applicant’s appeal of 27 April 2001. 18. The proceedings are pending before the Kraków Regional Court.

dev

001-88750

ENG

TUR

CHAMBER

CASE OF SAYA AND OTHERS v. TURKEY

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

4. The applicants were born in 1964, 1969, 1964, 1971, 1961, 1965, 1971, 1975, 1964, 1971 and 1965 respectively, and live in Adıyaman. 5. On 30 April 1999 the Adıyaman Governor authorised the holding of May Day celebrations in the Adıyaman Amphitheatre, located in the Hasancık District. 6. On 1 May 1999 a group of people, including the applicants, gathered in the building of the Health Workers’ Trade Union and started to walk towards the amphitheatre for the May Day celebrations. They were stopped by police officers. Stating that they had obtained prior authorisation from the Governor, the group attempted to continue its march. The police then intervened to disperse the group; the applicants were allegedly injured during this incident as a result of the force used by the police. According to the incident report, thirty-eight people, including the applicants, were arrested. The applicants were subsequently taken to the Adıyaman State Hospital, where they were examined by a doctor. The medical reports in respect of Ms Zeynep Saya, Mr Hasan Ölgün, Mr Müslüm Atasoy, Ms Zöhre Taş, Mr Nedim Çifçi and Ms Hediye Kilinç stated that there were no signs of ill-treatment on their bodies. As regards the remaining applicants, the following findings were indicated in the respective medical reports: – Şeyho Saya: Tenderness on the back of the right leg and on the back. – Çetin Taş: Tenderness on the lower left side of the chest and pain while breathing. Tenderness and pain on the right side of the forehead. Possible fracture of the ribs on the left side of the chest. – Akın Doğan: Scratches on the back. – Ali Murat Bilgiç: Tenderness and bruises on the left shoulder and the left arm. – Bahattin Barış Bilgiç: Scratches on the right elbow, the right knee and hyperaemia on the left side of the chest. 7. The applicants were then taken into custody. They were released the next day. 8. On different dates in May 1999 the applicants filed criminal complaints with the Adıyaman Public Prosecutor against those police officers who had allegedly used excessive force during their arrest. 9. On 17 June 1999 the Adıyaman Public Prosecutor transferred the case file to the Adıyaman Provincial Administrative Council, seeking authorisation to bring criminal proceedings against the accused officers, pursuant to the provisions of Law on the prosecution of Civil Servants. 10. On 16 February 2000 the Adıyaman Provincial Administrative Council found that there was not enough evidence to initiate criminal proceedings against the accused officers and consequently refused to do so. On 1 September 2000 the applicants appealed against this decision. In their appeal petition, they invoked a breach of Article 11 of the Convention, arguing that the police interference had breached their freedom of assembly. On 14 June 2001 the Supreme Administrative Council upheld the decision of the Administrative Council. 11. In the meantime, on 1 June 1999 the Adıyaman Public Prosecutor, after examining a video recording of the incident, delivered a decision not to prosecute with regard to seventy demonstrators – including the applicants – who had been involved in the incident on 1 May 1999. In reaching his decision, the Public Prosecutor stated that the demonstrators had been stopped by the police, although they had been walking silently along the pavement, without presenting a danger to the public or engaging in any violent activities. It was also indicated in the decision that, pursuant to section 24 of the Assemblies and Marches Act (Law no. 2911), the police were under an obligation to warn the group out loud to disperse; however, it was observed from the recording of the incident that they had failed to do so. In consequence, the public prosecutor held that the accused had not violated Law no. 2911.

dev

001-98115

ENG

UKR

CHAMBER

CASE OF MENSHAKOVA v. UKRAINE

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

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

4. The applicant was born in 1941 and lives in Sevastopol. 5. She worked at the State-owned company “Sevastopolskyy Morskyy Zavod” (“the SMZ”). Following her retirement from the SMZ on 30 September 1996 the applicant worked for the SMZ's subsidiary company “Sovmorsudokorpus” (“the SMSK”) until July 1997. 6. She instituted several sets of court proceedings against her former employers, seeking initially recovery of salary arrears and subsequently compensation for late payment of salary pursuant to Article 117 of the Labour Code. Under that provision, retired employees were entitled to claim compensation if their salary or related payments due to them were not paid on the day of termination of employment, i.e. such compensation concerned delays in payment after termination of employment. 7. In July 1997 the applicant lodged a claim with the Nakhimovskyy District Court of Sevastopol (“the Nakhimovskyy Court”) against the SMZ. She sought recovery of salary arrears. 8. On 8 July 1997 the court awarded her 492.17 Ukrainian hryvnyas (UAH) in salary arrears. The period of the applicant's work concerning which she was awarded the above sum in salary arrears was not specified. 9. On 26 November 1997 the applicant instituted a new set of proceedings in the same court against the SMZ, seeking compensation for the latter's failure to pay her salary arrears in due time. 10. On 5 August 1998 the court, referring to paragraph 1 of Article 117 of the Labour Code, awarded her UAH 1,574.40 in compensation for non-payment of salary arrears for the period of 1 October 1996 – 5 August 1998, during which her salary arrears had remained unpaid. The court noted that the respondent company failed to appear before it without informing about the reasons for its absence. It further observed that in his written statement submitted to the court on 13 March 1998 the company's representative accepted the applicant's claim as regards the amount of compensation for the period of 1 October 1996 – 13 March 1998. 11. The judgments of 8 July 1997 (salary arrears) and 5 August 1998 (compensation for late payment) were not appealed against and became final. The enforcement proceedings in respect of these judgments were instituted on 15 October 1997 and 5 October 1998 respectively. On 18 March 1999 the applicant received the full amounts of the awards. 12. On 1 October 2001 the SMZ lodged a request with the Supreme Court for leave to appeal against the judgment of 5 August 1998 under the new cassation procedure. In its appeal the SMZ alleged that it had not been responsible for the delay in payment of salary arrears to the applicant, that its representative before the first instance court had not been given the right to accept the applicant's claim, that the SMZ had not been duly informed about the date and time of the hearing before that court, and that the latter's judgment did not contain calculations of the awarded amount. On 23 April 2003 the Supreme Court granted such leave and invited the applicant to participate in the hearing on the SMZ's appeal scheduled for 29 May 2003. On the latter date the Civil Chamber of the Supreme Court quashed the judgment of 5 August 1998 on the ground that the Nakhimovskyy Court had examined the case in the absence of the SMZ and remitted it for fresh consideration. 13. Meanwhile, on 15 March 1999 the applicant lodged a new claim with the Nakhimovskyy Court, seeking compensation for the period of 6 August 1998 – 15 March 1999, during which the SMZ had failed to pay her salary arrears awarded by the judgment of 8 July 1997. 14. On 31 July 2003 the applicant requested the Nakhimovskyy Court to examine her claims of 26 November 1997 and 15 March 1999 jointly. In the course of a hearing on 18 September 2003 the court allowed the applicant's request. 15. On 26 November 2003 the court adopted a judgment dismissing the applicant's claims. Its relevant provisions read as follows: “... The court, having heard the plaintiff [and] having examined the materials of the civil case, considers that the claims are unsubstantiated and may not be allowed for the following reasons. In particular, the court established that on 30 September 1996 the plaintiff had retired [from the SMZ]... By the judgment of the Nakhimovskyy Court ... of 8 July 1997, she was awarded 492.17 [Ukrainian hryvnyas] in salary arrears... Therefore, the dispute concerning the recovery of sums in the event of termination of employment was determined and [the matter] turned to the stage of enforcement. The said judgment was enforced on 18 March 1999... In accordance with Article 117 of the Labour Code of Ukraine, if [the employer] fails to pay the employee [whose contract of employment was terminated] the sums due to him within the time-limits set by the law, [the former] shall pay the employee his average wages for the whole period of the delay until the day of the factual payment. As it appears from the materials of the case, the plaintiff retired on 30 September 1996, the sum of her salary arrears on the day of the retirement was 492.17 [Ukrainian hryvnyas] which was recovered by the judgment of 8 July 1997. Therefore, the dispute concerning the recovery of sums in the event of termination of employment was determined on 8 July 1997 and [the matter] turned to the stage of enforcement. The plaintiff lodged with the court her first claim for compensation under Article 117 of the Labour Code of Ukraine on 26 November 1997 ... having missed the three-month term envisaged by Article 233 of the Labour Code of Ukraine. The plaintiff and her representative did not furnish sufficient and objective evidence demonstrating that there had been a reasonable excuse for missing the procedural term, and she did not request an extension of [that] term; thus, the court [discerns] no grounds to renew it in accordance with the requirements of Article 234 of the Labour Code of Ukraine. In the light of the foregoing... [the court] Decided: To dismiss the claim of Menshakova...” 16. The applicant appealed, contending that the time-limit at issue had started to run on 18 March 1999, the day when she had received her belated salary payment. 17. On 18 March 2004 the Sevastopol Town Court of Appeal (the former Sevastopol Court) upheld the judgment of 26 November 2003. It rejected the applicant's contention that the limitation period under Article 233 of the Labour Code had started to run on 18 March 1999, when she had actually obtained the amount awarded by the judgment of 8 July 1997. It held that the “factual payment” had been made on the latter date and that the limitation period had started to run from that day onwards. 18. On 28 July 2006 a panel of three judges of the Supreme Court rejected the applicant's request for leave to appeal in cassation as unsubstantiated. 19. In May 1998 the applicant instituted proceedings in the Nakhimovskyy Court against the SMSK, seeking recovery of salary arrears and compensation for their prolonged non-payment. 20. On 25 May 1998 the court awarded her UAH 1,767.38 in salary arrears and compensation for late payment of these arrears for the period of 7 July 1997 – 25 May 1998. This judgment was not appealed against and became final. On an unspecified date the Nakhimovskyy District Bailiffs' Service instituted enforcement proceedings in respect of the judgment. On 15 June 1999 the enforcement proceedings were discontinued upon the applicant's request. On 12 July 1999 the applicant received the full amount of the award of 25 May 1998. 21. In April 1999 the applicant again instituted proceedings in the Nakhimovskyy Court against the SMSK, seeking compensation for the latter's failure to pay her salary arrears from 26 May 1998 onwards. 22. On 19 April 1999 the court rejected the applicant's claims as unsubstantiated. The applicant appealed in cassation, contending that the proceedings instituted by her in May 1998 concerned salary arrears and compensation for their non-payment during the period of 7 July 1997 – 25 May 1998, while in her new claim lodged with the courts in April 1999 she requested compensation for the period after 25 May 1998. 23. On 15 June 1999 the Sevastopol Court quashed the decision of the first-instance court and adopted a new decision by which it discontinued the proceedings in the applicant's case. It held that the matter had already been determined by the Nakhimovskyy Court on 25 May 1998. The relevant parts of the decision of 15 June 1999 read as follows: “... In accordance with Article 227 § 3 of the Code of Civil Procedure of Ukraine, the court shall discontinue the proceedings, if there is a judgment, which has entered into the force of the law, concerning a dispute between the same parties, on the same subject-matter and grounds. It appears from the case materials that on 25 May 1998 the Nakhimovskyy District Court adopted a judgment, by which the plaintiff was awarded 1,767.38 [Ukrainian hryvnyas] in respect of salary arrears and average wages for the delay in payment in the event of termination of employment during the period of 8 July 1997 to 25 May 1998... Therefore, [the court finds that] the dispute concerning the recovery of wages for the period of the delay in payment has been determined on 25 May 1998 and that the admission of a new claim concerning the same subject-matter and based on the same grounds would be contrary to Articles 136 § 3 and 227 § 3 of the Code of Civil Procedure... Pursuant to Articles 310 and 315 of the Code of Civil Procedure of Ukraine, [the court] Decided: To quash the judgment ... of 19 April 1999 and to discontinue the proceedings concerning the claim of Menshakova ... against [the SMSK]...” 24. On 4 December 1995 the Sevastopol Arbitration Court (State court dealing with disputes between companies and other economic entities before June 2001) initiated bankruptcy proceedings against the SMZ. The applicant and Mr K. joined the proceedings as the SMZ's creditors. By a decision of 24 December 1998, the arbitration court ordered the inclusion of the Nakhimovskyy Court's awards of 8 July 1997 and 5 August 1998 in the applicant's favour into the list of creditor's claims. 25. By a decision of 24 March 1999, partially amended by a decision of 2 April 1999, the same court quashed the decision of 24 December 1998 and discontinued the bankruptcy proceedings on the ground that the SMZ had paid the amounts claimed by the applicant and Mr K. in full. 26. On 6 and 24 April 1999 respectively, Mr K. and the applicant lodged with the court requests for supervisory review of the decisions of 24 March and 2 April 1999. 27. On 13 July 1999 the Higher Arbitration Court rejected the request of Mr K. as unsubstantiated. 28. By a letter of 8 October 1999, the Sevastopol Arbitration Court informed the applicant that her request for supervisory review had not been submitted to the Higher Arbitration Court as it had been directed against the same decisions as the request of Mr K. 29. On 3 November 1999 the applicant instituted proceedings in the Leninskyy District Court of Sevastopol against the Sevastopol Arbitration Court, seeking compensation for the latter's failure to consider her request for supervisory review of its decisions of 24 March and 2 April 1999. 30. On 22 May 2000 the Leninskyy District Court discontinued the proceedings on the ground that the applicant's claim was not to be considered by the courts, as the Sevastopol Town Arbitration Court enjoyed immunity from civil proceedings in respect of its procedural activities. On 19 September 2000 the Sevastopol Court upheld the decision of the firstinstance court. 31. The relevant provisions of the Code read as follows: “... A judge shall not [deal with] a claim: ... 3) if there is a judgment, which has entered into the force of the law, concerning a dispute between the same parties, concerning the same subject and based on the same grounds, or a court's ruling endorsing the plaintiff's withdrawal of the claim or a friendly-settlement agreement between the parties...” “... A court shall discontinue the proceedings: ... 3) if there is a judgment, which has entered into the force of the law, concerning a dispute between the same parties, concerning the same subject and based on the same grounds, or a court's ruling endorsing the plaintiff's withdrawal of the claim or a friendly-settlement agreement between the parties...” In the course of consideration of a case in cassation the court shall verify whether the first instance court's judgment is lawful and well-founded... The court shall not be bound by the reasons of an appeal in cassation ... and must review the entire case. The [first instance court's] judgment shall be quashed in cassation and the proceedings shall be discontinued or the claim shall be left without consideration on the grounds envisaged in Articles 227 and 229 of the Code. 32. The relevant provisions of the Code, as worded at the material, read as follows: “An enterprise, entity, or organisation shall pay the sums due to a [dismissed or retired] employee on the day of termination of his employment. If the employee did not work on the day of his [dismissal or retirement], the abovementioned sums shall be paid to him not later than the day following the day of the submission of his payment request. In the event of a dispute over the amount to be paid to a [dismissed or retired] employee, [the employer] ... shall pay the undisputed amount within the time-limit envisaged by this [provision].” “In the absence of a dispute over the amount to be paid to a [dismissed or retired] employee, [the employer] ... shall pay him his average wages for the whole period of the delay in payment of the amounts envisaged by Article 116 of this Code until the day of their factual payment, if the delay was due to the fault of [the employer]... In the event of a dispute over the amount to be paid to a [dismissed or retired] employee, [the employer] ... shall pay him compensation envisaged by this [provision], if the dispute was resolved in favour of the employee. If the dispute was resolved partly in favour of the employee, the amount of compensation for the delay shall be determined by the body deciding on the dispute...” “An employee may submit an application concerning a labour dispute directly to a ... court within three months following the day on which he became or should have become aware of a violation of his right...” 33. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows: “20. Having established, in the course of consideration of a case concerning recovery of [average] salary in connection with a delay in payment in the event of termination of employment, that an employee was not paid the amounts due to him ... on the day of his [dismissal or retirement] ... a court shall award, under Article 117 of the Labour Code, the employee average salary for the whole period of the delay in payment; if no such payment has been made before the consideration of the case [the court shall award average salary] until the date of the adoption of the judgment, safe in case the employer proofs that it was not responsible [for the delay]. The mere absence of funds shall not exclude the employer's responsibility. In case no payment [in the event of termination of employment] took place because of a dispute on the amount to be paid, the claims concerning the responsibility for the delay ... shall be allowed in full, if the dispute was determined in favour of the plaintiff or if a court dealing with the case reaches such a conclusion. In case the claim is partly allowed, the court determines the amount of compensation for the delay in payment, taking into account the disputed sum which [the plaintiff] was entitled to receive, the part of the claim it constituted, the value of the part [of the claimed amount] in comparison with average salary and other specific... 25. ...A failure to pay sums due to an employee on the day of his dismissal or, if he was absent from work on that day, on the day following the submission of his request for payment constitutes a ground for responsibility under Article 117 of the Labour Code. In this case, the running of a three-month time-limit for lodging an application with a court commences on the day following the payment of the above mentioned sums, irrespective of the delay in payment. A failure to meet the three-month time-limit for an application to a court as such constitutes a ground for dismissal of the claim, however, if the court finds that [the claim] is unsubstantiated, it shall dismiss [the claim] on [the latter] ground...”

dev

001-76682

ENG

BGR

CHAMBER

CASE OF YANAKIEV v. BULGARIA

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Civil rights and obligations;Determination (civil));Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Peer Lorenzen

9. By an order of 13 October 1983 the applicant was settled as a tenant, together with his family, in a flat which the State had assigned in 1980 for “use and management” to the State enterprise by which he was employed. He moved in the flat in 1986. 10. In a decision of 20 September 1991 the Council of Ministers transformed the enterprise employing the applicant into a Stateowned singlemember limited liability company. On 28 January 1992 the Varna Regional Court ordered the entry of the newly formed company into the register of companies. In a decision of 5 August 1992 the Minister of Industry, acting as a representative of the sole shareholder – the State – transformed the company into a Stateowned singleshareholder jointstock company. The transformation was entered into the register of companies kept at the Varna Regional Court on 15 September 1992. 11. In late 1992, after the entry into force, on 3 August 1992, of certain amendments to the Act to Settle the Housing Problems of LongStanding Home Purchase Savings Depositors of 1991 („Закон за уреждане на жилищните въпроси на граждани с многогодишни жилищноспестовни влогове“ – “the Housing Act of 1991” – see paragraphs 2427 below), the applicant applied to purchase the flat. He considered that paragraph 4 of the additional provisions of the Act entitled him to buy the flat at a preferential price. It appears that many of his colleagues had purchased the flats they were renting from their employer under this provision. On 28 December 1992 the board of directors of the applicant’s employer assented to the sale. 12. On 4 January 1993 the applicant requested the mayor of Varna to approve the sale, enclosing declarations and documents purporting to establish that he met all the conditions laid down in section 2 of the Act (see paragraph 27 below). In addition, he submitted a letter from his employer’s board of directors, in which it informed the mayor that it had assented to the sale and asked him to validate it. The letter expressly mentioned that the sale was to be effected under paragraph 4 of the additional provisions of the Housing Act of 1991, and indicated the company’s bank account to which the municipality was to transfer the sale proceeds once the applicant had made the payment. 13. The mayor failed to reply and on an unspecified date in 1993 the applicant filed with the Varna Regional Court an application for judicial review of his tacit refusal. 14. In a judgment dated 30 November 1994 and entered in the court’s register on 5 December 1994, the Varna Regional Court quashed the refusal and instructed the mayor to issue, within one month, an order validating the sale. It held as follows: “According to section 111 of the [State Property Regulations of 1975 („Наредба за държавните имоти“ – see paragraphs 3336 below)], the sale of State-entityowned [„ведомствени“] housing units is effected by the municipal councils under the conditions laid down in section 111(4) of the [Regulations], that is, pursuant to a proposal by the respective State entity, indicating the buyer. In such case, under section 120 of the [Regulations], the municipal council effects the sale on the basis of an order issued by it. The text of section 120 of the [Regulations] is categorical on the point that, provided all conditions for execution of the transaction have been met, the municipal council has no discretion whether or not to do so, but must issue the respective order. Such an order undoubtedly constitutes an individual administrative decision and is, like the tacit refusal to issue it, subject to review under the [Administrative Procedure Act of 1979 („Закон за административното производство“ – “the APA” – see paragraph 41 below)]. The facts of the case indicate beyond doubt that the applicant was a tenant in the flat [in issue] on the basis of a[n] ... order ... of 13 October 1983. As such, he has the right to buy it according to the procedure laid down in the [Regulations]. It is also beyond doubt that this flat is the property of [the applicant’s employer]. In a decision of [28 December 1992] the board of directors of the [applicant’s employer] allowed the applicant to purchase the State-entity-owned housing unit he was living in. In execution of this decision [the applicant’s employer] addressed a request to the chairperson of the Executive Committee of the Varna Municipal Council [i.e. the mayor – see paragraph 35 below], in which it had also indicated the buyer. Thus, all requirements of section 111 of the [Regulations] were complied with. In view of this state of affairs the Municipal Council should have discharged its duty under section 120 of the [Regulations], finalising in due form the consent already achieved between the parties and issuing the respective order. The Municipal Council is in effect not a party to the sale agreement. The parties are the State entityowner [of the flat] and the tenant. The Municipal Council acts as an administrative authority which only approves the already concluded contract. The tacit refusal to do so was unlawful.” 15. The mayor refused to comply and on 3 February 1995 submitted a petition for review (see paragraphs 4345 below) to the Supreme Court, arguing that such an order – or the refusal to issue it – was not an individual administrative decision and was hence not subject to judicial review under the APA. 16. The applicant filed a counterpleading, arguing, inter alia, that the dispute did not concern an ordinary sale of a Stateowned housing unit but a sale of a housing unit subject to the special provisions of paragraph 4 of the additional provisions of the Housing Act of 1991. The mayor’s role was thus not that of a contracting party, as it would have been in the general case, but that of a supervising administrative authority. Once the prerequisites for effecting the sale had been met, the mayor had no discretion but to approve it. He or she could refuse to do so only if the applicant did not meet the conditions laid down by the Act. 17. The Supreme Court held a hearing on 7 October 1996. The applicant’s counsel argued that the mayor’s petition for review had been submitted out of time. The participating prosecutor also maintained that the petition was untimely and stated that the mayor should be allowed to present evidence to prove when the Varna Regional Court’s judgment had been entered in the register. The merits of the case were not pleaded during the hearing. 18. On 9 October 1996 the Supreme Court sent a letter to the Varna Regional Court, enquiring about the date on which the latter’s judgment had been entered in the court’s register. The Varna Regional Court replied that its judgment had been entered on 5 December 1994. 19. In December 1996 the Supreme Court was divided into a Supreme Court of Cassation and a Supreme Administrative Court. The newly formed Supreme Administrative Court took over cases, such as the applicant’s, in which petitions for review in administrative proceedings had been pending before the former Supreme Court. 20. A threemember panel of the Supreme Administrative Court gave judgment on 14 January 1997. It held that the petition for review had been submitted within the two-month statutory time-limit and was thus admissible and continued: “... The petition for review is well-founded. In the judgment under review the Varna Regional Court quashed the tacit refusal of the mayor ... of Varna to enter into a contract for the sale of a Stateentityowned housing unit ... to its tenant... The mayor’s decisions to enter into contracts for the sale of Stateowned housing units under the State Property Regulations [of 1975] or the refusals to do so, including where the housing units have been given, for management, to ministries, other State entities, State commercial enterprises and institutions, are not administrative decisions within the meaning of section 2 of the [APA]. These decisions precede the execution of the bilateral transaction for transferring title to the respective property from the State to the individual purchaser and denote the assent of the mayor ... to the future execution of such a deal. [The mayor] does not, however, act as an administrative authority; he is placed on equal footing with the private individual contracting with him. For this reason his acts in such cases fall out of the ambit of the [APA] and are not subject to review under it. ... Moreover, in view of the terms of section 117 of the State Property Regulations [of 1975], it could not be accepted that the municipalities are bound to sell Stateentityowned housing units to the tenants settled therein. This provision sets out only the manner in which these housing units are sold and the persons who are entitled to purchase them in the event of a decision to that effect by the competent body. There is no legal obligation for the mayor to approve the sale of a Stateentityowned flat. This lack of a legal duty excludes administrative or judicial review under the [APA]. ... In examining the application [for judicial review] the [Varna] Regional Court overstepped its jurisdiction. Its judgment therefore is to be quashed, the application is to be left without examination, and the proceedings are to be discontinued. ...” 21. On 24 February 1997 the applicant filed a petition for review, expounding all his arguments, including those relating to the merits of the case. Later he filed additional observations. A hearing was held on 19 June 1997, at which the applicant’s counsel argued the case and made reference to his earlier written pleadings. 22. On 10 July 1997 a fivemember panel of the Supreme Administrative Court found the applicant’s petition timely, but dismissed it in the following terms: “The threemember panel’s judgment is wellfounded. The proceedings before the Varna Regional Court related to the refusal of the mayor of Varna to enter into a contract for the sale of a Stateentityowned housing unit. The holding that the decisions to enter into a contract for the sale of State-owned housing units in the manner prescribed in the State Property Regulations [of 1975] or the refusals to do so, including where [such housing units] have been assigned to State entities, as in the case at hand, are not individual administrative decisions within the meaning of section 2 of the APA is correct. [These decisions] precede the execution of a bilateral transaction transferring title to the property from the State to the [individual], and denote the assent of the mayor ... to the future execution of this transaction. [The mayor] does not act as an administrative authority; he is placed on an equal footing vis-à-vis the private person. Therefore, his acts in such cases are not encompassed by the [APA]. Acts which relate to civillaw relations, where the administrative authority and the [person concerned] are on an equal footing, are not individual administrative decisions within the meaning of the APA. The threemember panel correctly found that in view of section 117 et seq. of the State Property Regulations [of 1975] it could not be accepted that the municipalities are bound to sell Stateentityowned housing units to their occupants. This provision sets forth only the manner of selling such units, which could be purchased in the event of a decision to this effect by the competent body. There is however no legal duty for the mayor ... to assent to the sale of a Stateentityowned housing unit, and in the absence of such a legal obligation administrative or judicial review under the APA is inadmissible.” 23. Neither the threemember panel, nor the fivemember one mentioned the Housing Act of 1991 in their reasons. 24. This Act concerns mainly persons who have deposited money in special housing bank accounts prior to 1991 (the applicant does not fall into this category). 25. Separately, paragraph 4 of the additional provisions of the Act, dealing with the housing needs of employees of State entities („ведомства“), provided, as enacted in October 1991: “State entities which own residential buildings may sell existing housing units to their employees ... provided the persons willing to purchase them meet the requirements of section 2(1).” 26. Effective 3 August 1992, that text was amended to read: “1. State entities ... shall, by decisions adopted by their managements after 4 March 1991 and not later than six moths after the entry into force of this amendment of the Act, sell the existing housing units to their employees under the following terms: (1) employees who have applied to purchase State-entityowned housing units not later than 4 March 1991 or were tenants therein before that date and who meet the requirements of section 2(1)(1), (3) and (4) of the Act may purchase the units at prices set in accordance with [previous, more favourable pricing rules]. (2) employees who were settled as tenants after 4 March 1991, but before the entry of this amendment of the Act into force, and, as of the date of issuing of the settlement order, met the requirements of section 2(1)(1), (3) and (4) of the Act, may purchase the housing units at prices set in accordance with [the then current pricing rules]. 2. The difference between the price at which the housing units are acquired under subparagraph 1 and their real value shall be borne by the [respective State entity].” 27. Points 1, 3, and 4 of section 2(1) of the Act, as in force at the relevant time, laid down certain conditions for the persons concerned to come within its purview: (i) that they did not own homes or country houses fit for permanent use whose value, when added to the value of the remainder of their assets, was above 150,000 old Bulgarian levs (BGL), (ii) that they had not conveyed title to homes to third parties after 1 January 1981, except in cases of partition of property, and that (iii) the total amount of their movable and immovable assets, other than their homes and country houses, valued in accordance with the Regulations for the implementation of the Act, was below BGL 150,000. 28. Section 2 of the Regulations („Правилник за прилагане на Закона за уреждане на жилищните въпроси на граждани с многогодишни жилищноспестовни влогове“), which were enacted in October 1992, reads: “The persons eligible within the meaning of the Act are: ... (3) tenants in housing units owned by [State entities] whose tenancies commenced before 3 August 1992; ...” 29. Paragraph 2(1) of the of the additional provisions of the Regulations defines “existing housing units” (the expression used in paragraph 4 of the additional provisions of the Act – see paragraphs 25 and 26 above) as units which have been completed not later than 4 March 1991 (in the cases falling under subparagraph 1(1) of paragraph 4) or 3 August 1992 (in the cases falling under subparagraph 1(2) of paragraph 4). 30. Paragraph 2(2) of the additional provisions of the Regulations provides that paragraph 4 of the additional provisions of the Act does not apply to housing units which have been assigned by the municipalities to State entities for use and management. 31. By paragraph 2(3) of the additional provisions of the Regulations, the decisions to sell Stateentityowned housing units are valid if they are adopted by their collective management bodies, or by the respective government minister or an official authorised by him or her. 32. Paragraph 18(1) of the transitional and concluding provisions of the Regulations (added in March 1995) provides that if the housing units under paragraph 4 of the additional provisions of the Act have been listed as longterm assets of State-owned commercial companies, the difference between the price at which they were sold and their book value has to be noted down as a reduction of these companies’ capital. 33. The State Property Regulations of 1975 (repealed in September 1996) were adopted by the Council of Ministers under section 21 of the Property Act of 1951 („Закон за собствеността“) – which empowered it to make regulations for the “management, use, and disposition” of State property – and governed, inter alia, the procedure for selling housing units owned by the State (section 109(1)). 34. Their section 111(2) provided that where housing units, given for “use and management” to, inter alia, State entities or State commercial enterprises and institutions, were put up for sale, they had to be turned over to the municipality on the territory of which they were situated for effectuating the transaction. 35. Section 120(1) provided that the sale was effected on the basis of an order of the chairperson of the executive committee of the municipal council (after the adoption of the Constitution of 1991 that was the mayor). 36. Section 117 dealt with the conditions for and the manner of selling of Stateowned housing units to tenants. 37. Before 1989, under the communist regime, State enterprises did not enjoy an independent right of property over their assets; these assets were the property of the State and were only made available to them for “use and management”. 38. Under the Trade Act of 1991 („Търговски закон“) and other reform legislation adopted in 1991 and 1992, State enterprises had to be transformed, by decision of the relevant ministry and upon registration at the competent court, into singlemember limited liability companies or singleshareholder jointstock companies whose sole member or shareholder was the State. 39. The question whether the transformed enterprises became full owners of their assets or continued to be only beneficiaries of a right to “use and manage” them on behalf of the State was unclear and was still discussed in the legal theory after 1991. It was finally settled with the adoption, in May 1996, of the State Property and the Municipal Property Acts of 1996 („Закон за държавната собственост“ и „Закон за общинската собственост“). Sections 2(4) of both Acts provided that the assets of State or municipalityowned commercial companies were not the property of the State or, respectively, of the municipalities, even if they were the sole shareholder or member of such companies. In December 1999 the Supreme Administrative Court confirmed that this provision applied to flats previously made available for “use and management” to State enterprises which had later been transformed into commercial companies (реш. № 7376 от 30 декември 1999 г. по адм.д. № 4277/1999 г., ВАС, III о.). 40. Article 120 of the Constitution of 1991 provides: “1. The courts shall review the lawfulness of the administrative authorities’ acts and decisions. 2. Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.” 41. The APA governs the procedure for issuing administrative decisions and for judicial review of such decisions. Section 2(1) of the APA defines “individual administrative decisions” as “decisions issued [by public authorities], which create rights or obligations for, or affect the rights or the legitimate interests of, individuals or juristic persons, as well as the refusals to issue such decisions”. By sections 33 and 34 of the APA, all “administrative decisions”, save those relating to the national security or specifically enumerated by statute, are subject to judicial review. 42. In this interpretative judgment no. 21 of 26 October 1995 in constitutional case no. 18/1995 (реш. № 21 от 26 октомври 1995 г. по к.д. № 18 от 1995 г., обн. ДВ, бр. 99 от 10 ноември 1995 г.) the Constitutional Court gave a binding interpretation of Article 120 § 2 of the Constitution. It held, inter alia, that this provision encompassed all administrative decisions regardless of their character or theoretical qualification. The exclusion of a given administrative decision from judicial review could only be done by statute. “All administrative decisions” meant “without exception”. Only internal decisions which did not affect in any way physical or juristic persons outside the respective administration were not covered by the constitutional provision. 43. Until December 1997 section 44 of the APA provided that the regional courts’ judgments on applications for judicial review of administrative decisions were final and could be set aside only in accordance with Article 225 et seq. of the Code of Civil Procedure of 1952 (“the CCP”). 44. Articles 22530 of the CCP, repealed with effect from 1 April 1998, governed review proceedings before the former Supreme Court. Prior to 1990 these texts stipulated that review proceedings were initiated on the proposal of the Chief Prosecutor or the chairperson of the Supreme Court, which was not, as a rule, limited by time, and was examined in private by a section of the Supreme Court or its Plenary. 45. However, these texts were fully reshuffled with effect from 21 April 1990 and henceforth provided that review proceedings were initiated upon the petition of a party to the case (Article 225 § 1), lodged within two months after the entry into force of the lower court’s judgment (Article 226 § 1), or the proposal of the Chief Prosecutor (Article 225 § 2), lodged within one year after the judgment’s entry into force (Article 226 § 1). A petition for review did not have suspensive effect, but the Supreme Court could, on the application of the petitioning party, order a stay of the enforcement of the lower court’s judgment in case such enforcement would cause irreparable harm to the petitioning party (Article 225 § 4). The petition was examined by the Supreme Court at a public hearing in the presence of the parties to the case (Article 227 § 2). The Supreme Court had the power to set the judgment aside wholly or in part, whenever (i) it was “contrary to the law”, (ii) “substantial breaches of procedural law [had] occurred during the proceedings or in connection with the delivery of the judgment”, or (iii) it was “illfounded” (Article 225 § 3 in conjunction with Article 207). If the Supreme Court set the lower court’s judgment aside, it could either decide the case itself, or exceptionally remit it to the lower court for reexamination (Article 229 § 2). 46. Article 231 § 1 (h) of the CCP, adopted in 1997 and in force since 1 April 1998, provides that an interested party may request the reopening of civil proceedings in case a “judgment of the European Court of Human Rights has found a violation of the [Convention]”. By section 45 of the APA and section 41(1) of the Supreme Administrative Court Act of 1997 („Закон за върховния административен съд“), this provision is applicable to proceedings in administrative cases as well. The Supreme Administrative Court has already had occasion to use it to reopen proceedings resulting in a ruling that the courts had no jurisdiction to examine an application for judicial review of an administrative decision (see Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002; and реш. № 4332 от 8 май 2003 г. по адм.д. № 11004/2002 г., ВАС, петчленен състав).

dev

001-57886

ENG

GBR

CHAMBER

CASE OF WYNNE v. THE UNITED KINGDOM

No violation of Art. 5-4

C. Russo;John Freeland

6. In 1964 the applicant was convicted of the murder of a woman whom he had violently assaulted. He was sentenced to a mandatory term of life imprisonment. At that time the doctor who examined him found no signs of mental illness or abnormality. In May 1980 he was released on life licence after a positive recommendation by the Parole Board. 7. In June 1981 the applicant killed a 75 year-old woman who was placing flowers on a family grave in a London cemetery. He cut her throat with a knife. In December 1981 he pleaded not guilty to murder, but guilty to manslaughter on the ground of diminished responsibility. This plea was accepted by the court and in January 1982 a discretionary sentence of life imprisonment was imposed (see paragraph 12 below). The trial judge considered that a life sentence was appropriate in view of the extreme danger to the public which the applicant represented. The court, at the same time, revoked his life licence under section 62 (7) of the Criminal Justice Act 1967 ("the 1967 Act"; see paragraphs 14 and 15 below). The applicant claims that he was informed in 1983 by prison officers at H.M. Prison Wormwood Scrubs that he was subject to the regime for discretionary life sentences. 8. In December 1985 the applicant was transferred to the hospital wing of Parkhurst Prison. Since then he has been transferred to Gartree Prison where he is held as a "Category A" (high security) prisoner. 9. The applicant was considered for parole by the Parole Board in January 1989. The Board recommended that his case be referred again to the local review committee in 1994. By letter dated 14 August 1989 to the applicant’s Member of Parliament, the Home Office gave the following information: "In accordance with paragraph 4 [of section 61 of the 1967 Act], the trial judge and Lord Chief Justice were consulted in September 1987. In the light of their views, it was decided that [the applicant’s] case should be referred to the local review committee, as the first stage in a formal review by the Parole Board, in June 1988. The local review committee considered the case at that time [June 1988] and the Parole Board considered it in January 1989. The Board did not feel able to recommend [the applicant’s] release and recommended instead that it should be referred to the local review committee (as the first stage in a further formal review) in January 1994. This recommendation was accepted and [the applicant] was informed accordingly. He should have been told in February, but owing to an oversight at Gartree I am afraid that he was not informed until last month. You will appreciate that I cannot forecast what the outcome of the next review will be or say when [the applicant] might be released. When the Parole Board consider [the applicant’s] case in 1994 the tariff will have been satisfied and the question of risk will be the overriding consideration. Indeed, the Parole Board will have borne the question of risk in mind in making their recommendation as to the date of the next review. As you know, the safety of the public is paramount and no life sentence prisoner will be released if the assessment of risk is unsatisfactory, no matter how long he has been detained." 10. He subsequently learned that the "tariff" period fixed by the trial judge in respect of his second offence expired in June 1991 (see paragraph 17 below as regards the "tariff" period). 11. In a Home Office memorandum dated 5 June 1992 the applicant was informed that the "tariff" in respect of his conviction in 1964 had now been served and that his continued detention was based on the risk he represented. 12. Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of manslaughter may be sentenced to life imprisonment at the discretion of the trial judge. Such a discretionary life sentence of imprisonment may also be passed in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside (see, in this connection, the Thynne, Wilson and Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no. 190-A, pp. 19-20, paras. 50-53). 13. Under section 61 of the 1967 Act the Secretary of State may release on licence a person sentenced to life imprisonment only if recommended to do so by the Parole Board, and after consultation with the Lord Chief Justice of England and the trial judge if available. By virtue of section 62 (1) the Secretary of State may revoke the licence of a person whose recall to prison is recommended by the Parole Board. 14. Under section 62 (7) of the 1967 Act, if a person subject to a licence is convicted on indictment of an offence, the trial court may, whether or not it passes any other sentence on him, revoke the licence. 15. The effect of revocation of a licence, whether by the Secretary of State or by a court, is that the person is liable to be detained in pursuance of his sentence (section 62 (9) of the 1967 Act). 16. It is the duty of the Parole Board to advise the Secretary of State with respect to, inter alia, the release on licence under section 61, and the recall under section 62, of persons whose cases have been referred to the Board by the Secretary of State (section 59 of the 1967 Act; see also the above-mentioned Thynne, Wilson and Gunnell judgment, pp. 21-22, paras. 57-58). 17. Prior to 1992, in respect of both mandatory and discretionary life sentences, the Secretary of State would receive the views of the judiciary (the trial judge and the Lord Chief Justice) on the period deemed necessary to satisfy the requirements of retribution and deterrence ("the tariff period") and of the Parole Board on the question of risk. The Secretary of State would decide when, if at all, it was appropriate to release the prisoner on life licence. He accepted the views of the judiciary, in discretionary life sentence cases, as to the length of the tariff period. However, in mandatory life sentence cases he formed his own judgment on that question, taking into account the views of the judiciary (for the distinction between discretionary and mandatory life sentences, see the above-mentioned Thynne, Wilson and Gunnell judgment, pp. 19-20, paras. 50-53). 18. Following the judgment of the European Court in the case of Thynne, Wilson and Gunnell (loc. cit.) changes to the procedures for the release of discretionary life prisoners were introduced by the Criminal Justice Act 1991 ("the 1991 Act"). Parliament decided, however, not to extend these changes to mandatory life sentences. Under section 34 of this Act discretionary life prisoners are now informed by the trial judge, in open court, of the tariff period appropriate for the offence. After the expiry of that period, the prisoner has a right to be released on life licence if and when the Parole Board decides that it is safe to do so. They are entitled to appear before the Board in person, to see all the reports placed before it, and to call witnesses and submit documentary evidence. When the Board decides that a prisoner should be released the Secretary of State is under a duty to do so (section 34 (3) of the 1991 Act). Section 34 (7) (a) of the 1991 Act specifically excludes from eligibility for review under the new procedures a discretionary life prisoner who is also serving a mandatory life sentence. 19. In the debate in the House of Commons on 16 July 1991 concerning this legislation, the Minister of State for the Home Department made the following statement concerning the differences between mandatory and discretionary life sentences: "Mandatory life sentence cases ... raise quite different issues and the Government do not agree that it is appropriate to extend a similar procedure to these cases. In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so. The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the State for the rest of his days. If necessary, he can be detained for life without the necessity for a subsequent judicial intervention. The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner’s release than by his continued detention. In exercising his continued discretion in this respect, the Home Secretary must take account not just of the question of risk, but of how society as a whole would view the prisoner’s release at that juncture. The Home Secretary takes account of the judicial recommendation, but the final decision is his." 20. In relation to mandatory life prisoners, the Secretary of State continues to decide the length of the tariff after considering advice from the judiciary and any representations which the prisoner wishes to make. After the expiry of that period, he has power to release the prisoner on life licence if recommended to do so by the Parole Board. The decision on whether to release is for him alone. 21. On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State "will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice". 22. In determining the principles of fairness that apply to the procedures governing review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (the "tariff") and a security period. As regards the latter, detention is linked to the assessment of the prisoner’s risk to the public following the expiry of the "tariff" (R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 Weekly Law Reports 135; R. v. Parole Board, ex parte Wilson (Court of Appeal) [1992] 2 All England Reports 576; R. v. Secretary of State for the Home Department, ex parte Cox (judgment of the Divisional Court of 4 September 1992); R. v. Parole Board, ex parte Creamer and Scholey (judgment of the Divisional Court of 21 October 1992)). 23. In R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 All England Reports 92, the House of Lords observed that, in contrast with the position as regards discretionary life sentences, the theory and the practice in respect of mandatory life sentences were out of tune. In his speech, with which the other Law Lords agreed, Lord Mustill explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a "tariff" period to reflect the requirements of retribution and deterrence. A mandatory life prisoner knew that once he had served the penal element of his sentence the penal consequences of his crime had been exhausted. Nevertheless, the Secretary of State was not obliged to adopt the judicial view of the "tariff" period and it was he who was entrusted with the task of deciding on the prisoner’s release. He was entitled to depart from the judge’s advice and to have regard to broader considerations of a public character than those which applied to an ordinary sentencing function. He added (loc. cit., p. 105): "The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and the current practice there remains a substantial gap between them. It may be - I express no opinion - that the time is approaching when the effect of the two types of life sentence should be further assimilated. But this is a task for Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the State, through the medium of judicial review." Lord Mustill considered that, having regard to the rights which discretionary prisoners had, the Secretary of State was required to comply with the following requirements of procedural fairness when fixing the penal element in a mandatory life sentence: the Secretary of State must inform such a prisoner of the judicial advice on the length of the "tariff", and give him the opportunity to make written representations on that subject before he decides on the appropriate term of years. If the Secretary of State departs from the judicial advice, he must give reasons for doing so.

dev

001-58483

ENG

SVN

CHAMBER

CASE OF MAJARIC v. SLOVENIA

Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - financial award

Elisabeth Palm;Gaukur Jörundsson

5. On 6 December 1991 the applicant was charged with sexual assault of a minor and abduction of minors. He was remanded in custody. On 30 April 1992 the applicant was released. 6. On 5 June 1992 the applicant’s trial started before the Nova Gorica District Court (Okrožno sodišče – “the District Court”). On the same day the case was adjourned. 7. On 16 June 1992 the District Court ordered the redetention of the applicant. 8. On 28 August 1992 a number of witnesses were heard and on 3 September 1992 the District Court again adjourned the applicant’s trial due to the applicant’s illness. 9. By decision of the District Court dated 17 September 1992, the applicant was again released. 10. A hearing scheduled for 28 September 1992 had to be adjourned sine die as the applicant was ill. 11. On 21 July 1992 the applicant was accused of another sexual assault of a minor. An indictment was filed on 18 January 1993. The applicant entered a plea against the indictment which was rejected on 15 February 1993. On 17 March 1993 the District Court joined the two sets of proceedings. 12. On 2 June 1993 the public prosecutor requested further investigations on the ground that there was reasonable suspicion that the applicant had also criminally neglected and ill-treated a minor within the meaning of Article 96 §§ 1 and 2 of the Criminal Code. 13. On 21 October 1993 a preliminary charge was filed in respect of the aforesaid acts. On 28 March 1995 the District Court decided to deal with all charges against the applicant in a single set of proceedings. 14. In the period from 18 February 1997 to 9 July 1997 the District Court held several hearings. 15. On 9 July 1997 the District Court convicted the applicant of sexual offences on several counts. A combined prison sentence of two years and eight months was imposed on the applicant. Both the applicant and the public prosecutor appealed. 16. On 12 February 1998 the Koper High Court (Višje sodišče) rejected the applicant’s appeal and increased the sentence to three years’ imprisonment. 17. On 26 March 1998 the applicant lodged a plea of nullity (zahteva za varstvo zakonitosti). The District Court transmitted it to the Supreme Court (Vrhovno sodišče), together with the file, on 5 June 1998. The Supreme Court dismissed this complaint on 17 September 1998. 18. On 24 March 1998 the applicant lodged a constitutional complaint against the Koper High Court’s judgment of 12 Februrary 1998. It was dismissed by the Constitutional Court (Ustavno sodišče) on 15 June 1998. 19. On 12 October 1998 the applicant filed a further constitutional complaint concerning the Supreme Court’s decision of 17 September 1998 (see paragraph 17 above). He alleged, inter alia, a violation of Article 6 § 3 of the Convention in the criminal proceedings against him. 20. On 1 December 1998 the Constitutional Court refused to send the case back to the lower courts for a new examination as it found no violation of the applicant’s right to a fair hearing.

dev

001-93972

ENG

FIN

CHAMBER

CASE OF KARI-PEKKA PIETILÄINEN v. FINLAND

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

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

5. The applicant was born in 1967 and lives in Helsinki. 6. On 24 February 2004 the applicant was convicted of aggravated fraud by the Tuusula District Court (käräjäoikeus, tingsrätten) and sentenced to conditional imprisonment for one year and eight months. 7. On 25 March 2004 the applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten) requesting, inter alia, that an oral hearing be held. The other defendants and one of the complainants also appealed to the Appeal Court. 8. On 28 December 2004, after having received written observations from the parties, the Appeal Court decided to hold an oral hearing. On 29 December 2004 the parties were summoned to attend the oral hearings which were to take place on 28 February, 14 to 16 March, 18 March, and 21 to 24 March 2005. It was stated in the decision and in the summons that the applicant was to appear in person at the hearing on all of those days, under penalty of a default fine. His presence was required due to his own appeal as well as the opposing parties’ appeal and in order to be heard by the public prosecutor. However, the hearing of witnesses was to take place between 14 and 24 March 2005. Moreover, it was stated in the summons that, if the applicant were to be absent from the main hearing without a valid excuse and despite the penalty of a default fine being imposed, his appeal would be discontinued. As far as the opposing parties’ appeal and the hearing by the public prosecutor were concerned, a new threat of a higher fine could be imposed on the applicant, he could be ordered to be brought to the same or a later hearing, and the case could be decided regardless of his absence. A valid excuse meant circumstances of force majeure or an illness certified by a medical certificate. Work or holiday reasons were normally not considered as valid reasons. The Appeal Court was to examine whether the excuse was valid. 9. The summons was served on the applicant on 4 January 2005. 10. The applicant did not attend the hearing on 28 February 2005 but was represented by his counsel. He could not be reached by telephone despite several attempts. The public prosecutor requested that the applicant be brought to the hearing but this was not done. The applicant’s counsel indicated that the applicant could most likely be found at his home but that his presence at the hearing on 28 February 2005 was not necessary as it had been planned in advance that he would be heard only on 15 March 2005. 11. On 28 February 2005 the Appeal Court decided, on the basis of Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 381/2003), that the applicant’s appeal was to be discontinued due to his absence. It found that, since the applicant had not attended the hearing on 28 February 2005 or notified the court of a valid excuse for his absence, he had to be considered to have been absent even though his counsel had been present. It was stated in the decision that an ordinary appeal was not allowed but if the applicant had had a valid excuse that he had not been able to announce in time, he had the right to a reopening of the case on the basis of the same appeal, by notifying the Appeal Court in writing within thirty days of the decision to discontinue the appeal. If he could not provide a valid excuse, the case would be ruled inadmissible. 12. On 15 March 2005 the applicant attended the hearing as planned and was questioned as a witness. 13. On 24 March 2005 the applicant notified the Appeal Court in writing that he had had a valid excuse for his absence and that he wanted his case to be reopened. He claimed that the national provision in question, Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure, had been too strictly applied. He referred to a Supreme Court judgment in which the court had stated that it was not necessary to summon an applicant to appear in person unless his presence was strictly necessary, for example for questioning. According to the Supreme Court, the national provision in question should not be interpreted too strictly. If the applicant was absent from the main hearing but his presence was not deemed strictly necessary, his appeal should not be discontinued due to his absence. 14. Furthermore, the applicant claimed that the above-mentioned provision most likely failed to comply with the requirements of the European Convention on Human Rights. When the provision in question had last been amended, the Government had proposed some textual changes in order to reflect better the Court’s case-law in this respect. These changes were not, however, accepted by the Parliament. 15. Moreover, the applicant claimed that, as there were no rules on how national law was to be applied when the main hearing lasted for several days, a Convention-friendly approach should have been adopted. The Appeal Court had set up a procedural plan according to which the applicant was to be heard in person only on 15 March 2005. It was not indicated in the summons that even one day’s absence would be regarded as absence from the whole main hearing. The applicant’s presence at the hearing on 28 February 2005 was thus not strictly necessary and the Appeal Court should not have discontinued his appeal. The applicant had never intended to discontinue his appeal. 16. In any event, the applicant claimed that he had had a valid excuse as he had been ill. He provided a medical certificate and two medical documents to that effect. 17. On 21 June 2005 the Appeal Court rejected the applicant’s notification. It found that the medical certificate had been dated eight days after the hearing and that the doctor had thus not examined the applicant’s health on 28 February 2005. On that date, the applicant had not received any treatment in a hospital or in a similar medical institution. The applicant was suffering from a long-term illness and his treatment was estimated to last two to three years. Despite the applicant’s state of health, he had been able to attend the hearing on 15 March 2005. His illness was thus not of a kind to constitute a valid excuse for absence. The applicant had time to prepare himself well in advance for the hearing and also to take the hearing into account when planning his treatment. Thus, the applicant had not shown that he had had a valid reason to be absent from the hearing on 28 February 2005 and he had no right to have his case reopened. 18. On 18 August 2005 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal relied on before the Appeal Court and pointing out that the Appeal Court had taken no stand on his claims concerning national law and the Court’s case-law. 19. On 11 October 2005 the Supreme Court refused leave to appeal. 20. According to Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 81/2003), if the appellant is absent from the main hearing, the appeal shall be discontinued. According to Chapter 12, section 29 of the same Code (Act no. 1052/1991), a party who, in spite of having been ordered to appear in court in person, sends an attorney in his place without a valid excuse, shall be deemed to be absent. 21. When the current provisions concerning appeals to the Appeal Court were amended in 2002 and 2003, the following was mentioned in the Government Proposal HE 91/2002 vp.: “The provision [Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure] is interpreted [by the Supreme Court, KKO 2000:44] to mean that an appeal of an applicant summoned to appear in person is discontinued if he or she is absent from the main hearing even if he or she is represented by counsel. However, the European Court has on many occasions stated that it was of crucial importance for the fairness of the criminal justice system that the accused be adequately defended by counsel, in spite of having been properly summoned to appear in person. In its judgments of Lala and Pelladoah v. The Netherlands (application nos. 14861/89 and 16737/90, judgment of 22 September 1994, points 34 and 40) and Van Geyseghem v. Belgium (application no. 26103/95, judgment of 21 January 1999, points 33—35) as well as most recently in its judgment Stroek and Goedhart v. Belgium (application nos. 36449/97, 36467/97 and 34989/97, judgment of 20 March 2001), the European Court stated that an accused does not lose this right to be defended effectively by a lawyer merely on account of not attending a court hearing. It is immaterial whether the absence is due to a valid excuse or whether an appeal is possible. It is also immaterial that the defendant was adequately defended in the lower instance. The judgment in the Van Geyseghem case concerned an action for recovery of a higher court judgment which was given in absentia. The applicant, who was an accused in the criminal proceedings, was represented by her counsel in the recovery proceedings. The higher court "declared the application void". The proceedings were thus similar to those in Finland when an appeal is discontinued. On the other hand, in its judgment of Eliazer v. The Netherlands (application no. 38055/97, judgment of 16 October 2001, point 35), the European Court found no violation when counsel was heard and the case was decided thereafter. In the light of the above Court’s case-law, it is not entirely clear what should be done regarding an appeal of an applicant who is an accused in criminal proceedings and who, despite being summoned, does not appear in person at the main hearing.” 22. However, it was proposed that Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure be amended so that an appeal by an applicant summoned to appear in person would no longer be discontinued if he or she were absent from the main hearing but represented by counsel. It was felt that it was better that the applicant in such situations received a decision on material rather than procedural grounds. 23. The Parliamentary Legal Committee estimated, however, in its report LaVM 27/2002 vp., that as it was debatable whether these amendments were necessary, and since they were causing inconvenience for the functioning of the appeal courts, the amendments should not be adopted. The proposed amendments were thus withdrawn. 24. The Supreme Court took a stand on this issue in its judgment of 1 October 2004 (KKO 2004:94). It found, inter alia, the following: “13. The European Court has in many judgments stated that it was of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, and that he could not be deprived of this right merely on account of not attending a court hearing. According to the Court, even if the legislature had to be able to discourage unjustified absences, it could not penalise them by creating exceptions to the right to legal assistance (see Poitrimol v. France, judgment of 23 November 1993, Lala v. The Netherlands and Pelladoah v. The Netherlands, judgments of 22 September 1994, as well as Van Geyseghem v. Belgium, judgment of 21 January 1999, Van Pelt v. France, judgment of 23 May 2000 and Goedhart v. Belgium, judgment of 20 March 2001). ...... 16. When deciding in what situations a case can be examined only when the applicant is present in person and in what situations the applicant has the right to defend himself through legal assistance of his choosing, one has to distinguish different situations in the criminal proceedings. If the applicant is heard in order to clarify the matter, his presence in person is necessary. When, however, other witnesses are heard or the parties are heard in order to assess legally the act described in the indictment or the defence, it is appropriate that questioning is undertaken and the statements are given by a legal representative. It is also clear that when the applicant exercises his right to question or to give legal statements, he cannot be deprived of his right to use legal assistance and that his presence in person in those situations is not necessary. Therefore, the applicant should not be obliged to appear in person under penalty of a default fine unless the outcome of the case might depend on the reliability of his account or his presence in person is necessary for some other reason. 17. According to the provisions concerning the proceedings in appeal courts, an appeal court cannot, without any particular grounds, change the district court’s conclusions concerning the evidence if persons meant to be heard as witnesses are absent from the main hearing. The starting point is that a higher instance should have the same possibility to assess the oral testimony as a district court, the correctness of whose judgment is being assessed by the higher instance. This means, inter alia, that the principle of immediate presentation of evidence must be applied also on appeal. It does not follow from the wording of Chapter 26, section 20, subsection 1, of the Code of Judicial Procedure, nor did it follow from it at the time when the Appeal Court examined the case, that an appeal should always be entirely discontinued when the applicant is absent from the main hearing, even though summoned to appear in person. The court which has the right and the obligation to conduct the proceedings can and indeed must then decide whether the examination of some parts of the appeal by hearing only counsel is necessary or reasonable. When considering this, the court must take into account the applicant’s justified legal expectations. If it becomes clear that the applicant’s presence in person is, in spite of the given order, not necessary, his appeal should not in this kind of situation be even partly discontinued due to his absence.”

dev

001-122352

ENG

GBR

ADMISSIBILITY

MCLEAN AND COLE v. THE UNITED KINGDOM

Inadmissible

David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

1. The applicant in the first case, Mr Joseph McLean, is a British national, who was born in 1980. He was represented before the Court by Taylor & Kelly, a firm of solicitors based in Coatbridge. 2. The applicant in the second case, Mr Kevin Cole, is a Jamaican national, who was born in 1974. He was represented before the Court by Leigh Day & Co, a firm of solicitors based in London. 3. Both applicants are in detention following their conviction for various criminal offences. 4. The applicants complained that, as convicted prisoners, they had been subject to a blanket ban on voting in elections and had been, or would be, prevented from voting in one or more of the following: elections to the European Parliament on 4 June 2009; the parliamentary election on 6 May 2010; elections to the Scottish Parliament on 5 May 2011; a nationwide referendum on the alternative vote on 5 May 2011; local government elections on various dates; and future elections. 5. Pursuant to sections 1-4 of the Representation of the People Act 1983 a convicted person, during the time that he is detained in a penal institution in pursuance of his sentence, is legally incapable of voting at any parliamentary or local election. 6. Section 11 of the Scotland Act 1998 provides that only persons who, on the day of the poll, would be entitled to vote as electors at a local government election and are registered in the register of local government electors are entitled to vote as electors at an election to the Scottish Parliament. 7. Section 8(1) of the European Parliamentary Elections Act 2002 provides, in so far as relevant, that a person is entitled to vote at an election to the European Parliament if, on the day of the poll, he would be entitled to vote as an elector at a parliamentary election. 8. In so far as relevant, section 2 of the Parliamentary Voting System and Constituencies Act 2011 provided that only those who, on the date of the alternative vote referendum, were entitled to vote as electors at a parliamentary election were entitled to vote in the alternative vote referendum of 5 May 2011. 9. Each of the four jurisdictions of the United Kingdom (England, Scotland, Wales and Northern Ireland) is subdivided into a number of local authorities. The specific system in place varies depending on the jurisdiction in question. 10. The system of local government was created by statute. Local authorities’ internal organisation and competences are regulated by statutes enacted by the Parliament of the United Kingdom and by the Parliaments and Assemblies of the three devolved jurisdictions (Scotland, Wales and Northern Ireland). 11. The functions and powers of local authorities are of a predominantly administrative nature and generally cover areas such as waste management and collection, housing, local planning, council tax collection, licensing, transport and social services. In respect of these various areas, local authorities carry out their duties in accordance with primary legislation governing the area in question and can only act in so far as they are authorised to do so by statute or by subordinate legislation. 12. Local authorities have the power to make by-laws, which are essentially laws of local application. By-laws usually have to be confirmed by a Government minister or the ministers of the devolved jurisdictions before they can take effect. 13. On 23 November 2010 the Court (Fourth Section) adopted a pilot judgment in Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, ECHR 2010 (extracts). It found a violation of Article 3 of Protocol No. 1 in respect of the blanket ban on voting applicable to convicted prisoners as regards parliamentary elections and elections to the European Parliament. It also imposed a deadline for action, indicating that the United Kingdom had to introduce legislative proposals to amend the incompatible legislation within six months of the date on which the judgment became final, with a view to the enactment of the law according to any time-scale determined by the Committee of Ministers. 14. On 22 November 2012 the Government published a draft bill on prisoners’ voting eligibility. The draft bill includes three proposals: (1) ban from voting those sentenced to four years or more; (2) ban from voting those sentenced to more than six months; or (3) ban from voting all prisoners. The proposals cover both local and parliamentary elections. Although the draft bill is currently drafted to extend to England and Wales only, the introduction and explanatory notes make it clear that the final bill would extend to the whole of the United Kingdom. The devolved jurisdictions are therefore involved in the pre-legislative process. 15. On 6 December 2012 the Committee of Ministers, responsible for supervising the execution of the judgment, adopted a decision in which it noted the range of options proposed in the draft bill; endorsed the view that the third option aimed at retaining the blanket ban was not compatible with the Convention; invited the Government to keep it regularly informed of the proposed time-scale; and decided to resume consideration of the case at the latest at its September 2013 meeting. 16. On 16 April 2013 a motion to nominate the six members of the House of Commons to serve on a joint committee which will conduct prelegislative scrutiny of the draft bill was agreed. On 14 May 2013 a motion to nominate the six members of the House of Lords to serve on the committee was agreed. The committee held its first meeting on 15 May 2013 and will report by 31 October 2013. 17. On 10 June 2013, there was a hearing before the Supreme Court in the case of McGeoch v. The Lord President of the Council and another. The claimant is a serving prisoner who claims that the prohibition on prisoners voting is incompatible with European Union law.

dev

001-61886

ENG

MDA;RUS

GRANDCHAMBER

CASE OF ILAŞCU AND OTHERS v. MOLDOVA AND RUSSIA

Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) (Russia);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) (Russia);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Russia);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Competent court) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Competent court) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Competent court) (Russia);No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) (the Republic of Moldova) (Russia);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) (Russia);Pecuniary damage - award;Non-pecuniary damage - award

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

19. The applicants, who were Moldovan nationals when the application was lodged, were born in 1952, 1955, 1961 and 1963 respectively. At the time when they lodged their application, they were detained in the Transdniestrian part of Moldova. 20. Although detained, Mr Ilaşcu was twice elected to the Moldovan parliament, from 1994 to 2000. As a member of parliament, he was appointed to form part of the Moldovan delegation to the Parliamentary Assembly of the Council of Europe. On 4 October 2000 Mr Ilaşcu acquired Romanian nationality. In December 2000 he was elected to the Senate of the Romanian parliament and appointed as a member of the Romanian delegation to the Parliamentary Assembly of the Council of Europe. 21. Mr Leşco and Mr Ivanţoc acquired Romanian nationality in 2001. 22. Mr Ilaşcu was released on 5 May 2001; since then he has lived in Bucharest (Romania). The second and third applicants' homes are in Chişinău (Moldova), whereas the fourth applicant lives in Tiraspol (Transdniestria, Moldova). At present all three of them are detained in Tiraspol. 23. In view of the fact that, in the applicants' submission, it was impossible for them to apply to the Court directly, the application was lodged by their wives, Mrs Nina Ilaşcu, Mrs Tatiana Leşco and Mrs Eudochia Ivanţoc, and by the fourth applicant's sister, Mrs Raisa Petrov-Popa. 24. The second applicant was represented before the Court by Mr A. Tănase, of the Chişinău Bar. The other applicants were represented by Mr C. Dinu, of the Bucharest Bar, until his death in December 2002. Since January 2003 they have been represented by Mr V. Gribincea, of the Chişinău Bar. 25. In order to establish the facts, the Court based itself on documentary evidence, the observations of the parties, and the statements of the witnesses who gave evidence on the spot, in Chişinău and Tiraspol. 26. In assessing the evidence for the purpose of establishing the facts, the Court considers that the following elements are relevant. (i) In assessing both written and oral evidence, the Court has hitherto generally applied “beyond a reasonable doubt” as the standard of proof required. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact; in addition, the conduct of the parties in relation to the Court's efforts to obtain evidence may constitute an element to be taken into account (see, mutatis mutandis, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). (ii) As regards the statements taken down by the delegates, the Court is aware of the difficulties that may arise in assessing such depositions obtained through interpreters: it has therefore paid particular attention to the meaning and weight to be given to the witnesses' statements to the delegates. The Court is likewise aware that a large number of relevant facts concern events which took place more than ten years ago in an obscure and particularly complex context, which makes some degree of imprecision about dates and other details inevitable. It does not consider that that in itself can cast doubt on the credibility of the witness evidence. (iii) In a case where there are contradictory and opposing accounts of the facts, the Court is inevitably confronted with difficulties which any court of first instance is bound to meet when seeking to establish the facts, regard being had, for example, to the fact that it does not have direct and detailed knowledge of the conditions obtaining in the region. Moreover, the Court has no powers to compel witnesses to appear. In the present case, out of fifty-one witnesses called, seven did not appear before the delegates. Consequently, the Court found itself having to deal with the difficult task of establishing the facts in the absence of potentially important depositions. 27. With the assistance of the parties, the Court conducted an on-the-spot investigation, in the course of which it took evidence from the following forty-three witnesses: (a) on the particular circumstances of the applicants' arrest, conviction and detention: the applicants; Mrs Tatiana Leşco and Mrs Eudochia Ivanţoc, the wives of the second and third applicants; Mrs Raisa PetrovPopa, the sister of the fourth applicant; Mr Ştefan Urîtu, detained in 1992 with the applicants; Mr Constantin Ţîbîrnă, a doctor who examined the applicants in 1995-98 while they were detained in Tiraspol and Hlinaia; Mr Nicolae Leşanu, a doctor who examined the applicants in 1995-97 while they were detained in Tiraspol and Hlinaia; Mr Vladimir Golovachev, the governor of Tiraspol Prison no. 2; Mr Stepan Tcherbebchi, the governor of Hlinaia Prison from 1992 to 2001; Mr Sergey Kotovoy, the governor of Hlinaia Prison; Mr Yefim Samsonov, “Director of the Prison Medical Service of the MRT”; and Mr Vasiliy Semenchuk, a doctor at Hlinaia Prison since 1995; (b) on the measures taken by Moldova to secure the applicants' release and on relations between Moldova, the Russian Federation and Transdniestria, various Moldovan officials and politicians: Mr Dumitru Postovan, Attorney-General of Moldova from 1990 until July 1998; Mr Valeriu Catană, Attorney-General of Moldova from 31 July 1998 to 29 July 1999; Mr Vasile Rusu, Attorney-General of Moldova since 18 May 2001; Mr Vasile Sturza, Deputy Attorney-General of Moldova from 1990 to 1994 and Minister of Justice from 1994 to 1998; Z, a former Moldovan government minister; Mr Victor Vieru, Deputy Minister of Justice since 2001; X, a former Moldovan senior official; Mr Mircea Snegur, President of Moldova from 1990 to 1996; Mr Alexandru Moşanu, President of the Moldovan parliament from 1990 to 1992; Y, a former Moldovan diplomat; Mr Andrei Sangheli, Prime Minister of Moldova from 1992 to 1997; Mr Anatol Plugaru, Moldova's Minister of Security in 1991-92; Mr Nicolai Petrică, general in the Moldovan army from 1992 to 1993; Mr Andrei Stratan, former Director of Customs; Mr Vladimir Molojen, Director of the Information Technology Department; Mr Ion Costaş, Minister of Defence in 1991-92; Mr Valentin Sereda, Director of the Moldovan Prison Service; Mr Victor Berlinschi, member of the Moldovan parliament from 1990 to 1994; Mr Constantin Obroc, Deputy Prime Minister in 1991-92 and adviser to the President of Moldova from 1993 to 1996; Mr Mikhail Sidorov, member of the Moldovan parliament; and Mr Pavel Creangă, Moldovan Minister of Defence from 1992 to 1997. (c) on the presence of the ROG and the Russian Federation's peacekeeping troops in the Transdniestrian region of Moldova, soldiers from those units: General Boris Sergeyev, commander of the ROG; Colonel Alexander Verguz, officer commanding the ROG; Lieutenant-Colonel Vitalius Radzaevichus, former member of the command structure of the ROG; Colonel Anatoliy Zverev, commander of the Russian Federation's peacekeeping troops in the Transdniestrian region of Moldova; Lieutenant-Colonel Boris Levitskiy, president of the military tribunal attached to the ROG; Lieutenant-Colonel Valeriy Shamayev, military prosecutor attached to the ROG; and Mr Vasiliy Timoshenko, former military prosecutor attached to the 14th Army and the ROG. 28. The Moldavian Soviet Socialist Republic, which was set up by a decision of the Supreme Soviet of the USSR on 2 August 1940, was formed from a part of Bessarabia taken from Romania on 28 June 1940 following the Molotov-Ribbentrop Pact between the USSR and Germany, where the majority of the population were Romanian speakers, and a strip of land on the left bank of the Dniester in Ukraine (USSR), Transdniestria, which was transferred to it in 1940, and is inhabited by a population whose linguistic composition in 1989, according to publicly available information, was 40% Moldavian, 28% Ukrainian, 24% Russian and 8% others. Russian became the new Soviet republic's official language. In public life, the Soviet authorities imposed the use of Cyrillic script for written Romanian, which thus became “Moldavian” and took second place after Russian. 29. In August and September 1989 the Moldavian Supreme Soviet enacted two laws introducing the Latin alphabet for written Romanian (Moldavian) and making that language the country's first official language, in place of Russian. On 27 April 1990 the Supreme Soviet adopted a new tricolour flag (red, yellow and blue) with the Moldavian heraldic device and a national anthem which, at that time, was the same as Romania's. In June 1990, against a background of autonomist and independence movements within the Soviet Union, the Moldavian Soviet Socialist Republic took as its new name the Moldovan Soviet Socialist Republic. It proclaimed its sovereignty on 23 June 1990 (OSCE information document of 10 June 1994 – see note to paragraph 28 above). On 23 May 1991 the Moldovan Soviet Socialist Republic changed its name to the Republic of Moldova. 30. On 2 September 1990 the “Moldavian Republic of Transdniestria” (the “MRT”) was proclaimed. On 25 August 1991 the “Supreme Council of the MRT” adopted the declaration of independence of the “MRT”. To date, the “MRT” has not been recognised by the international community. 31. On 27 August 1991 the Moldovan parliament adopted the Declaration of Independence of the Republic of Moldova, whose territory included Transdniestria. At that time, the Republic of Moldova did not have its own army and the first attempts to create one took place a few months later. The Moldovan parliament asked the Government of the USSR “to begin negotiations with the Moldovan Government in order to put an end to the illegal occupation of the Republic of Moldova and withdraw Soviet troops from Moldovan territory”. 32. After the declaration of independence of the Republic of Moldova, the 14th Army of the military district of Odessa of the Ministry of Defence of the USSR (“the 14th Army”), whose headquarters had been in Chişinău since 1956, remained in Moldovan territory. Large-scale movements of equipment were nevertheless reported from 1990 onwards: among other transfers, large quantities of equipment began to be withdrawn from Moldovan territory. 33. During 1991, the 14th Army was composed of several thousand soldiers, infantry units, artillery (notably an anti-aircraft missile system), armoured vehicles and aircraft (including planes and strike helicopters), and had a number of ammunition stores, including one of the largest in Europe at Kolbasna in Transdniestria. 34. In addition to the weaponry of the 14th Army, DOSAAF, “The Voluntary Association for Assistance to the Army, Air Force and Navy” (ДОСААФ – Добровольное Общество Содействия Армии Авиации и Флоту), a State organisation situated in Moldovan territory set up in 1951 to prepare the civilian population for war, had a stock of ammunition. After the proclamation of Moldova's independence, the DOSAAF equipment situated in that part of the national territory controlled by the Moldovan Government passed into their hands and the remainder – located in Transdniestria – passed into those of the Transdniestrian separatists. 35. On 6 September 1991 the “Supreme Soviet of the Moldavian Republic of Transdniestria” issued an order placing all establishments, enterprises, organisations, militia units, public prosecutors' offices, judicial bodies, KGB units and other services in Transdniestria, with the exception of military units belonging to the Soviet armed forces, under the jurisdiction of the “Republic of Transdniestria”. Officers, non-commissioned officers, and other ranks of military units stationed in Transdniestria were urged to “show civic solidarity and mobilise to defend the Republic of Transdniestria alongside workers' representatives in the event of invasion from Moldova”. 36. On 18 September 1991 the “President of the Supreme Soviet of the Moldavian Soviet Socialist Republic of Transdniestria” decided to place the units of the Soviet armed forces deployed in Transdniestria under the jurisdiction of the “Republic”. 37. By Decree no. 234 of 14 November 1991, the President of Moldova, Mr Snegur, declared that ammunition, weapons, military transport, military bases and other property belonging to the military units of the Soviet armed forces stationed in Moldovan territory were the property of the Republic of Moldova. 38. On 8 December 1991 Belarus, the Russian Federation and Ukraine signed the Minsk Agreement, noting the end of the Soviet Union's existence and setting up the Commonwealth of Independent States (CIS – see paragraph 290 below). 39. On 21 December 1991 eleven member States of the USSR, including Moldova and Ukraine, signed the Alma-Ata Declaration, which confirmed and extended the Minsk Agreement setting up the CIS. The Alma-Ata Declaration also confirmed that, through the establishment of the CIS, the USSR had ceased to exist and that the CIS was neither a State nor a supra-State entity. A Council of the Heads of Government of the CIS was also set up and decided to support Russia as the successor to the USSR at the United Nations, including the Security Council, and in other international organisations. 40. On 30 January 1992 the Republic of Moldova became a member of the Conference on Security and Cooperation in Europe (CSCE). On 2 March 1992 it was admitted to the United Nations. 41. On 8 April 1994 the Moldovan parliament ratified, with certain reservations, the treaty providing for Moldova's accession to the CIS, signed by the Moldovan President at Alma-Ata on 21 December 1991 (see paragraph 293 below). 42. The statements made to the Court's delegates during the on-the-spot investigation have confirmed that military operations took place during the conflict (see Annex: Mr Urîtu, §§ 64-66 and 69-71; X, §§ 216, 218 and 220; Mr Snegur, §§ 230 and 238; Mr Moşanu, §§ 243-45; Y, § 254; Z, §§ 271 and 277-81; General Petrică, §§ 296-97 and 299; Mr Costaş, §§ 401, 405-07 and 409; and Mr Creangă, §§ 457-60). These military operations are also attested to by other documents in the file. The respondent Governments did not contest the veracity of the detailed information set out below, although they gave different interpretations of the facts (see paragraphs 50, 56-57, 60, and 62-64 below). 43. From 1989 onwards, movements of resistance to Moldovan independence began to form in southern Moldova (Gagauzia) and the east of the country (Transdniestria). 44. Armed clashes broke out on a limited scale between the Transdniestrian separatists and the Moldovan police as early as November 1990 in eastern Moldova, at Dubăsari, on the left bank of the Dniester. 45. In the months that followed, the Transdniestrian authorities created paramilitary units called “workers' detachments”, on the basis of which a professional and fully equipped “Republican Guard” was formed in 1991 (see the previously cited OSCE information document of 10 June 1994 – note to paragraph 28 above). 46. The applicants alleged that on 19 May 1991 the USSR's Minister of Defence had ordered the commander of the 14th Army, General Netkachev, to call up reservists to make up the complement of the 14th Army troops deployed in Transdniestria and to put these troops and their military equipment on combat footing. He allegedly justified that order in the following terms: “Given that Transdniestria is Russian territory and that the situation there has deteriorated, we must defend it by all means possible.” 47. On 1 December 1991 a presidential election – declared illegal by the Moldovan authorities – was organised in the provinces (raioane) on the left bank of the Dniester (Transdniestria). Mr Igor Smirnov was elected “President of the MRT”. 48. By a decree of 5 December 1991, Mr Smirnov decided to place “the military units deployed in the Moldavian Republic of Transdniestria, attached for the most part to the Odessa military district, under the command of the head of the National Defence and Security Department of the Moldavian Republic of Transdniestria”. The head of that department, Mr Gennady I. Iakovlev, who was also the commander of the 14th Army (see paragraph 53 below), was requested to take all necessary measures to put an end to transfers and handovers of weaponry, equipment and other property of the Soviet army in the possession of the military units deployed in Transdniestria. The declared aim of that measure was to preserve, for the benefit of the Transdniestrian separatist regime, the weapons, equipment and assets of the Soviet army in Transdniestria. 49. In December 1991 the Moldovan authorities arrested Lieutenant-General Iakovlev in Ukrainian territory, accusing him of helping the Transdniestrian separatists to arm themselves by using the weapons stocks of the 14th Army. He was taken to Moldovan territory for the purposes of the investigation. 50. According to the applicants, Lieutenant-General Iakovlev was arrested by the Moldovan authorities and accused of arming the separatists. After his arrest he had allegedly made statements confirming the Russian Federation's intervention in the conflict and its support for Transdniestria, and these had been recorded on about ten cassettes. However, they contended that Lieutenant-General Iakovlev had been released as a result of the intercession with the Moldovan authorities of a Russian general, Nicolai Stolearov, who had travelled from Moscow to Chişinău for that very reason. The Moldovan Government did not comment on this point. Although several witnesses made the assertion (see Annex: Mr Urîtu, § 66; Mr Postovan, § 182; Z, § 272; and Mr Plugaru, § 286), the Court cannot accept that it has been established beyond a reasonable doubt that Lieutenant-General Iakovlev was released in exchange for a number of Moldovan police officers held prisoner by the Transdniestrian forces. It has heard different accounts of the exact reasons for Lieutenant-General Iakovlev's release and, in the absence of any documentary evidence about what took place during the investigation or about his release, it can neither dismiss nor accept the accounts of the witnesses, most of whom, in the delegates' opinion, were generally credible. On the other hand, the Court notes that all the witnesses questioned on the subject agreed that a Russian general had travelled from Moscow to Chişinău to obtain Lieutenant-General Iakovlev's release. The Court accordingly considers it to be established beyond a reasonable doubt that the authorities of the Russian Federation interceded with the Moldovan authorities to obtain the release of Lieutenant-General Iakovlev. 51. At the end of 1991 and the beginning of 1992, violent clashes broke out between the Transdniestrian separatist forces and the Moldovan security forces, claiming the lives of several hundred people. 52. The applicants referred to a number of facts which gave a precise indication of the course of the fighting. These facts were not contested by the respondent Governments or rebutted by the witness evidence taken by the delegates during the on-the-spot investigation. 53. On 6 December 1991, in an appeal to the international community and the United Nations Security Council, the President of the Republic of Moldova, Mircea Snegur, the President of the Moldovan parliament, Alexandru Moşanu, and the Prime Minister, Valeriu Muravschi, protested against the occupation, on 3 December 1991, of the Moldovan towns of Grigoriopol, Dubăsari, Slobozia, Tiraspol and Ribniţa, situated on the left bank of the Dniester, by the 14th Army, which had been under the command of Lieutenant-General Iakovlev since a date which has not been specified. They accused the authorities of the USSR, particularly the Ministry of Defence, of having prompted these acts. The soldiers of the 14th Army were accused of distributing military equipment to the Transdniestrian separatists and organising the separatists into military detachments which were terrorising the civilian population. 54. By a decree of 26 December 1991, Mr Smirnov, the “President of the MRT”, created the “armed forces of the MRT” from troops and formations stationed in the territory of the “MRT”, with the exception of the armed forces making up the “Strategic Peacekeeping Forces”. 55. In January 1992 Lieutenant-General Iakovlev was relieved of command of the 14th Army by the command of the combined armed forces of the CIS. By a decision of 29 January 1992 of the commander-in-chief of the joint armed forces of the CIS, Lieutenant-General Iakovlev was placed at the disposal of the Military Registration Bureau of the Primorski district of the city of Odessa (Ukraine). 56. In 1991-92, during clashes with the Moldovan security forces, a number of military units of the USSR, and later of the Russian Federation, went over with their ammunition to the side of the Transdniestrian separatists, and numerous items of the 14th Army's military equipment fell into separatist hands. The parties disagreed about how these weapons came to be in the possession of the Transdniestrians. 57. The applicants submitted that the 14th Army had armed the separatists in two ways: firstly, ammunition stores belonging to the 14th Army had been opened up to the separatists; secondly, 14th Army personnel had offered no resistance when separatist militiamen and civilians tried to seize military equipment and ammunition. For example, no force had been used against the Committee of Transdniestrian Women, led by Galina Andreeva. The Court notes the explanation given by an ROG officer (see Annex: Colonel Verguz, § 359) about the forcible seizure of weapons by women and children and observes that this account was contested by all the Moldovan witnesses questioned on the subject. The Court considers it highly improbable that women and children could have seized weapons and ammunition guarded by armed military personnel in locked stores without the guards' agreement. In short, the Court considers it to have been established beyond a reasonable doubt that Transdniestrian separatists were able to arm themselves with weapons taken from the stores of the 14th Army stationed in Transdniestria. The 14th Army troops chose not to oppose the separatists who had come to help themselves from the Army's stores; on the contrary, in many cases they helped the separatists equip themselves by handing over weapons and by opening up the ammunition stores to them (see Annex: Mr Urîtu, § 65; Mr Petrov-Popa, § 130; Mr Postovan, §§ 182 and 201; Mr Costaş, § 407; and Mr Creangă, § 457). 58. The applicants asserted that 14th Army troops had joined the separatist side with the evident approval of their superiors. 59. The 14th Army's Parcani sapper battalion, under the orders of General Butkevich, had gone over to the separatist side. That information has been confirmed by the Russian Government. The applicants went on to say that at the time of this “transfer” the sappers were in possession of a considerable number of Kalashnikov rifles, cartridges, TT and Makarov pistols, grenades and grenade launchers and air-to-ground rocket launchers. It was the Parcani battalion which had destroyed the bridges at Dubăsari, Gura Bâcului-Bâcioc and Coşniţa. The applicants further asserted that, on 20 July 1992, armoured combat vehicles, mine throwers, battle tanks and armoured transport vehicles were transferred from 14th Army units to the separatists. In addition, during the fighting, eight 14th Army helicopters had taken part in transporting ammunition and the wounded on the separatist side. In a written statement sent to the Court by Mr Leşco's representative on 19 November 2001, Mrs Olga Căpăţînă, a former volunteer attached to the Moldovan Ministry of National Security from 15 March to 15 August 1992, said that during that period, as evidenced by a certificate issued by the Ministry, she had worked for the general staff of the Russian army, at the 14th Army's command and espionage centre, under the name of Olga Suslina. While working there, she had sent the Moldovan Ministry of National Security hundreds of documents confirming the participation of Russian troops in the armed operations and the massive contribution of weapons they had made. She had also gathered information proving that the separatists' military operations were directed by the 14th Army, which coordinated all its actions with the Ministry of Defence of the Russian Federation. 60. The applicants asserted that thousands of Russian Cossacks had come from Russia to fight alongside the separatists; the Union of Cossacks, a Russian association, had been recognised by the Russian authorities. They alleged that the arrival of the Cossacks from Russia had not been hindered in any way by the Russian authorities, in spite of the appeal to them made by the Moldovan President, Mr Snegur. On the contrary, 14th Army officers had welcomed nearly 800 Cossacks at the beginning of March 1992 and armed them. The applicants asserted in that connection that, whereas in 1988 there had been no Cossacks in Moldovan territory, nearly 10,000 Cossacks who had come from the Russian Federation were now living in Transdniestrian territory. The Russian Government submitted that Cossacks could be found in other parts of the world and that everyone had the right to freedom of movement. The Court notes that several documents in the file and statements taken down by the delegates show that large numbers of Cossacks and other Russian nationals went to Transdniestria to fight alongside the separatists. It further notes that the Russian Government have not denied this. The Court accordingly considers it to be established beyond a reasonable doubt that large numbers of Russian nationals went to Transdniestria to fight in the ranks of the Transdniestrian separatists against the Moldovan forces. 61. In a book published in 1996 by the publishing house Vneshtorgizdat and entitled General Lebed – Russian Enigma, the author, Vladimir Polushin, supplies plentiful evidence, backed up by documentary sources, of the support given by the Russian Federation to the Transdniestrian separatists. The book mentions, for example, the creation by General Lebed of the Russo-Transdniestrian joint defence headquarters and the participation by the 14th Army in the military operations conducted by the Transdniestrian forces against the Moldovan “enemy”. Referring to this book, the applicants mentioned by way of example the destruction of a Moldovan unit by the 14th Army at Chiţcani on 30 June 1992 and the shelling by the 14th Army of several Moldovan positions at Coşniţa, Dubăsari, Slobozia and Hârbovăţ between 1 June and 3 July 1992. The other parties did not comment on the information given in the book. 62. The applicants further submitted that the bridge abutments on the left bank of the Dniester had been mined by 14th Army personnel. The Court notes that one witness directly involved at the highest level in the military operations during the conflict asserted that part of the territory on the left bank of the Dniester had been mined, that this work had been done by specialists, and that after the end of the conflict the Moldovan army had had to have recourse to foreign specialists in order to demine the area (see Annex: Mr Costaş, § 406). That information was not disputed by the other parties. Taking account also of the witness's credibility, the Court can take it to be established that part of Moldovan territory situated on the left bank of the Dniester was mined by the forces opposing the Moldovan army. On the other hand, it notes that this witness was unable to assert categorically that the mines had been laid by 14th Army personnel, but merely contended that logically work of such a technical level could only have been carried out by professionals, that is by 14th Army troops. It likewise notes that this witness asserted that the separatists had seized anti-personnel mines previously held in the 14th Army's stores. In the circumstances, the Court considers that this assertion is not certain “beyond a reasonable doubt” and therefore cannot take it as established that it was 14th Army or ROG personnel who laid mines on the left bank of the Dniester. 63. The Moldovan Government asserted that they had never claimed that the army of the Russian Federation had been legally stationed in Moldovan territory, or that the 14th Army had not intervened in the Transdniestrian conflict. On the contrary, they asserted, as appeared from the witness evidence taken by the Court's delegates, that the 14th Army had intervened actively, both directly and indirectly, in the Transdniestrian conflict, against the armed forces of Moldova. The Transdniestrian separatists had been able to arm themselves with weapons belonging to the 14th Army and with the 14th Army's complicity. The Moldovan Government considered that no faith could be placed in assertions that women had forcibly seized weapons and ammunition from the 14th Army's stores. Moreover, not a single Russian soldier had subsequently been disciplined for negligence or complicity in the seizure of equipment from the 14th Army's stores. 64. The Russian Government argued that the 14th Army had been in Moldova when the Transdniestrian conflict broke out. The Russian military forces as such had taken no part whatsoever in the fighting and had not been involved in the acts complained of. However, where illegal armed operations had been carried out against soldiers of the 14th Army, appropriate measures had been taken in accordance with international law. In general, the Russian Government were prepared to accept as a hypothesis that individuals claiming allegiance to the 14th Army might have taken part in the acts in issue, but emphasised that if that had been the case such conduct would have constituted a gross breach of Russian legislation, for which the individuals responsible would have been punished. The Russian Government went on to say that the Russian Federation had remained neutral in the conflict. In particular, it had not supported the combatants in any way, whether militarily or financially. 65. The Court notes that all the Moldovan witnesses questioned categorically confirmed the active involvement, whether direct or indirect, of the 14th Army, and later of the ROG, in the transfer of weapons to the Transdniestrian separatists. They also confirmed the participation of Russian troops in the conflict, particularly the involvement of tanks bearing the flag of the Russian Federation, shots fired towards the Moldovan positions from units of the 14th Army and the transfer of a large number of 14th Army troops to the reserves so that they could fight alongside the Transdniestrians or train them (see Annex: Mr Costaş, § 406; and Mr Creangă, § 457). These assertions are corroborated by the information contained in OSCE report no. 7 of 29 July 1993, added to the file by the Romanian Government, and by other sources (see Annex: Mr Moşanu, § 244). In that connection, the Court notes both the abundance and the detailed nature of the information in its possession on this subject. It sees no reason to doubt the credibility of the Moldovan witnesses heard, and notes that their assertions are corroborated by the Moldovan Government, who confirmed these facts in all of the observations they submitted throughout the proceedings. As to the Russian Government's allegation that the witnesses belonged to political circles opposed to the Russian Federation, the Court notes that this has not been substantiated. Moreover, it is not possible for the Court to determine precisely on the basis of the statements taken what the relative strengths of the combatants were. However, regard being had to the support given by the troops of the 14th Army to the separatist forces and the massive transfer of arms and ammunition from the 14th Army's stores to the separatists, it is certain that the Moldovan army was in a position of inferiority that prevented it from regaining control of Transdniestria (see Annex: Z, § 271; and Mr Costaş, § 401). 66. On 5 March 1992 the Moldovan parliament protested against the silence of the Russian authorities, amounting to complicity in its view, about the support allegedly given to the Transdniestrian separatists by armed groups of Cossacks from Russia belonging to the Union of Cossacks, an association recognised by the Russian authorities. The Moldovan parliament asked the Supreme Soviet of the Russian Federation to intervene, with a view to securing the immediate withdrawal of the Russian Cossacks from Moldovan territory. 67. On 23 March 1992 the Ministers for Foreign Affairs of Moldova, the Russian Federation, Romania and Ukraine met in Helsinki, where they adopted a declaration laying down a number of principles for the peaceful settlement of the conflict. At further meetings held in April and May 1992 in Chişinău, the four ministers decided to set up a Quadripartite Commission and a group of military observers to supervise observance of any ceasefire. 68. On 24 March 1992 the Moldovan parliament protested about interference by the Russian Federation in Moldovan affairs after the Presidium of the Supreme Soviet of the Russian Federation issued a declaration on 20 March 1992 recommending to Moldova solutions for the settlement of the Transdniestrian conflict consistent with respect for the rights of the “Transdniestrian people”. 69. On 28 March 1992 the President of the Republic of Moldova, Mr Snegur, decreed a state of emergency. He noted that “adventurers” had created on the left bank of the Dniester, “not without outside help”, a “pseudo-State”, and that, “armed to the teeth with the most up-to-date equipment of the Soviet army”, they had unleashed armed conflict, doing everything they could to bring about the intervention in the conflict of the 14th Army of the combined armed forces of the CIS. Under the state of emergency, the Moldovan Ministries of National Security and of the Interior and other relevant bodies, acting in concert with the units of the Moldovan army, were ordered by the President to take all necessary measures to break up and disarm illegally armed formations and seek out and bring to justice all those who had committed crimes against the organs of the State and the population of the Republic. The founders of the “so-called Moldavian Republic of Transdniestria” and their accomplices were enjoined to dissolve illegal armed formations and surrender to the organs of the Republic. 70. By Decree no. 320 of 1 April 1992, the President of the Russian Federation placed the military formations of the USSR stationed in Moldovan territory, including those on the left bank of the Dniester, under the jurisdiction of the Russian Federation, so that the 14th Army became the Russian Operational Group in the Transdniestrian region of Moldova (“the ROG” or, as previously, “the 14th Army”). 71. By Decree no. 84 of 1 April 1992, the “President of the MRT”, Mr Smirnov, relieved Lieutenant-General Iakovlev of command of the “Defence and Security Department of the MRT”. 72. On 2 April 1992 General Netkachev, the commander of the ROG (the 14th Army), ordered the Moldovan forces which had encircled the town of Tighina (Bender), held by the separatists, to withdraw immediately, failing which the Russian army would take counter-measures. 73. The applicants alleged that, after that ultimatum from General Netkachev, joint military exercises between the 14th Army and the separatists began on the former's shooting range in Tiraspol. 74. On 4 April 1992 the Moldovan President, Mr Snegur, sent a telegram to the heads of State of the member countries of the CIS, to the commander of the combined armed forces of the CIS and to the commander of the 14th Army, drawing their attention to the fact that the 14th Army was failing to remain neutral. 75. On 5 April 1992 Alexander Rutskoy, the Vice-President of the Russian Federation, went to Tiraspol. As evidenced by the press articles the applicants submitted to the Court, which have not been contested by the other parties, Mr Rutskoy first visited a military unit of the 14th Army and then went to Tiraspol's central square, in the company of Mr Smirnov. In a speech to the five thousand people present, Mr Rutskoy declared that Mr Snegur did not wish to engage in dialogue and that the best solution would be a confederation in which Moldovans and Russians would live together on an equal footing. Lastly, he said that the 14th Army should act as a buffer between the combatants so that the Transdniestrian people could obtain their independence and their sovereignty and work in peace. 76. By Order no. 026 of 8 April 1992 from the commander-in-chief of the combined armed forces of the CIS, it was decided that only troops and units of the 14th Army stationed in the territory of the former Moldovan Soviet Socialist Republic could form the basis for the creation of the armed forces of the Republic of Moldova. Three military units which had been part of the 14th Army decided to join the new army of the Republic of Moldova. These were a unit at Floreşti (ammunition store no. 5381), the 4th artillery regiment at Ungheni and the 803rd rocket artillery regiment at Ungheni. The soldiers of the 115th independent battalion of sappers and firemen of the 14th Army refused to enlist in the armed forces of Moldova and “placed themselves under the jurisdiction of the Transdniestrian region”, according to the terms used by the Russian Government. 77. In a message sent in April 1992 to the commander-in-chief of the combined armed forces of the CIS, the President of Moldova, Mr Snegur, declared that the events in Transdniestria were prompted and supported by “the imperial and pro-communist structures of the USSR and their legal successors” and that the 14th Army had not been neutral in the conflict. In that connection, he emphasised that the Transdniestrian military formations were equipped with modern weapons which had belonged to the former Soviet army and that large numbers of Russian citizens had taken part in the conflict on the separatist side as mercenaries. 78. In a letter sent in April 1992 to the leaders of the member countries of the United Nations Security Council, the OSCE and the CIS, Mr Snegur accused the commander of the 14th Army of arming the Transdniestrian units in December 1991 and complained of the attitude of the 6th Congress of Deputies of the Russian Federation, which had called for the continuing presence in Moldova of units of the army of the Russian Federation as “pacification forces”. Lastly, Mr Snegur observed that one essential condition for the peaceful settlement of the Transdniestrian conflict was the rapid withdrawal of the army of the Russian Federation from Moldovan territory, and asked the international community to support the young Moldovan State in its struggle for freedom and democracy. 79. On 20 May 1992 the President of the Moldovan parliament protested against the occupation of further parts of Transdniestria on 19 May 1992 by the forces of the 14th Army, backed up by Cossack and Russian mercenaries and by Transdniestrian paramilitary forces. His statement pointed out that this military aggression on the part of the Russian Federation violated Moldova's sovereignty and all the rules of international law, making the negotiations then in progress to find a solution to the conflict in Transdniestria a sham. The President accused the Russian Federation of arming the Transdniestrian separatists and asked the Supreme Soviet of the Russian Federation to call a halt to the aggression and withdraw Russian military forces from Moldovan territory. 80. This protest was also directed against speeches deemed to be “full of aggression” towards Moldova made in Tiraspol and Moscow by Mr Rutskoy, the Vice-President of the Russian Federation, and against a statement made on 19 May 1992 by the Military Council of the ROG. 81. On 26 May 1992 the Moldovan parliament sent a letter to the Supreme Soviet of Ukraine, expressing its gratitude to the Ukrainian authorities, who had declined to join in the occupation of 19 May 1992. 82. On 22 June 1992 the Moldovan parliament appealed to the international community, opposing the “new aggression perpetrated in Transdniestria on 21 June 1992 by the forces of the 14th Army” and complaining that its actions of destruction and pillage had driven large numbers of civilians to flee their homes. The international community was urged to send experts to Transdniestria to halt the “genocide” of the local population. 83. On 23 June 1992 the President of Moldova, Mr Snegur, asked the Secretary-General of the United Nations, Mr Boutros Boutros-Ghali, to inform the members of the Security Council of the “assault on the town [of Tighina] by the 14th Army”, which he viewed as “direct and brutal” interference in the Republic of Moldova's internal affairs. He also expressed his concern about the statements of the President of the Russian Federation, Mr Yeltsin, and its Vice-President, Mr Rutskoy, “which clearly show[ed] that the Russian Federation [was] not prepared to abandon the 'rights' it no longer possess[ed], either de jure or de facto, over a territory that no longer belong[ed] to it after the dismemberment of the Soviet empire”. Mr Snegur concluded: “The threats recently repeated against the legal leaders of the Republic of Moldova, an independent and sovereign State, by the Russian authorities are a cause for concern to the Moldovan public, since they seem to prefigure other means of interference in our internal affairs, that is, means and methods specific to the Soviet communist imperialist system ...” 84. In the first half of July 1992, intense discussions took place within the CIS about the possibility of deploying a CIS peacekeeping force in Moldova. Mention was made in that connection of an agreement signed in Minsk in March 1992 concerning groups of military observers and strategic CIS peacekeeping forces. 85. At a CIS meeting held in Moscow on 6 July 1992, it was decided to deploy in Moldova, as a preliminary step, a CIS peacekeeping force made up of Russian, Ukrainian, Belarusian, Romanian and Bulgarian troops, on condition that Moldova requested this. Although the Moldovan parliament made such a request the next day, the force was never deployed since some countries had had second thoughts about their agreement to join a CIS force. 86. On 10 July 1992, at the Helsinki Summit of the CSCE, the President of Moldova, Mr Snegur, asked for consideration to be given to the possibility of applying the CSCE peacekeeping mechanism to the Moldovan situation. That was not done because there was not an effective and lasting ceasefire (see the previously cited OSCE information document of 10 June 1994 – note to paragraph 28 above). 87. On 21 July 1992 the President of the Republic of Moldova, Mr Snegur, and the President of the Russian Federation, Mr Yeltsin, signed an agreement on the principles for the friendly settlement of the armed conflict in the Transdniestrian region of the Republic of Moldova (“the ceasefire agreement” – see paragraph 292 below). The copy submitted to the Court by the Moldovan Government bears the signatures of Mr Snegur and Mr Yeltsin only. The Russian Government supplied the Court with a copy bearing the signatures of Mr Snegur and Mr Yeltsin, as the Presidents of Moldova and the Russian Federation respectively. Underneath the signature of Mr Snegur, that copy also bears the signature of Mr Smirnov, without any indication of his status. Mr Smirnov's signature is not on the copy submitted by the Moldovan Government. In his statement to the Court's delegates, Mr Snegur confirmed that the official document in two copies was signed by him and Mr Yeltsin only (see Annex: Mr Snegur, § 228). As appears from the witness evidence given to the Court, the broad lines of the agreement were drafted by the Russian side, which presented it for signature to the Moldovans (see Annex: Z, § 281). 88. The Russian Government argued that under the terms of Article 4 of the agreement of 21 July 1992, the Russian Federation signed the agreement not as a party to the conflict but as a peace broker. 89. The agreement introduced the principle of a security zone to be created by the withdrawal of the armies of the “parties to the conflict” (Article 1 § 2). 90. Under Article 2 of the agreement, a Joint Control Commission (“the JCC”) was set up, composed of representatives of Moldova, the Russian Federation and Transdniestria, with its headquarters in Tighina (Bender). The agreement also provided for peacekeeping forces charged with ensuring observance of the ceasefire and security arrangements, composed of five Russian battalions, three Moldovan battalions and two Transdniestrian battalions under the orders of a joint military command structure which was itself subordinate to the JCC. 91. Under Article 3 of the agreement, the town of Tighina was declared a region subject to a security regime and its administration was put in the hands of “local organs of self-government, if necessary acting together with the control commission”. The JCC was given the task of maintaining order in Tighina, together with the police. Article 4 required the 14th Army of the Russian Federation, stationed in the territory of the Republic of Moldova, to remain strictly neutral; Article 5 prohibited sanctions or blockades and laid down the objective of removing all obstacles to the free movement of goods, services and persons. Lastly, the measures provided for in the agreement were defined as “a very important part of the settlement of the conflict by political means” (Article 7). 92. On 29 July 1994 Moldova adopted a new Constitution. It provides, inter alia, that Moldova is neutral, that it prohibits the stationing in its territory of troops belonging to other States and that a form of autonomy may be granted to regions which include some areas on the left bank of the Dniester (see paragraph 294 below). 93. On 21 October 1994 Moldova and the Russian Federation signed an agreement concerning the legal status of the military formations of the Russian Federation temporarily present in the territory of the Republic of Moldova and the arrangements and time-limits for their withdrawal (see paragraph 296 below). Article 2 of the agreement provided that the withdrawal of the Russian army from Moldovan territory was to be synchronised with the political settlement of the Transdniestrian conflict and the establishment of a special status for the “Transdniestrian region of the Republic of Moldova”. This agreement was not ratified by the authorities of the Russian Federation and so never came into force (see paragraph 115 below). 94. The applicants submitted that the Russian peacekeeping forces had not maintained strict neutrality, but had favoured the Transdniestrians by allowing them to change the balance of forces which had obtained between the parties at the time of the ceasefire of 21 July 1992. 95. On 28 December 1995 the Moldovan delegation to the JCC sent a letter to the head of the Russian delegation to the JCC protesting about a proposal by the deputy commander of the Russian Federation's land forces to transfer the powers of the Russian peacekeeping units to the units of the ROG, which the Moldovan delegation considered to be contrary to Article 4 of the agreement of 21 July 1992. The proposal was also deemed unacceptable in view of “a certain level of politicisation of the men of the ROG and their lack of impartiality vis-à-vis the parties to the conflict”. The Moldovan delegation referred to a number of infringements of the principle of neutrality set forth in the agreement of 21 July 1992, which included: the transfer of certain military equipment and ammunition by the 14th Army to the unconstitutional authorities in Tiraspol; training of “MRT” troops by the Russian army; and transfers of military units from the 14th Army to the “MRT” side – for example, the Parcani sapper battalion, converted into an “MRT” artillery unit, the transfer of the fortress of Tighina (Bender) to the 2nd “MRT” infantry brigade, or the transfer to the “MRT” of the Slobozia depot, occupied by a 14th Army signals battalion. The Moldovan delegation drew attention to the fact that “MRT” military units had been brought into the security zone with the connivance of the JCC's Russian troops, that new paramilitary units had been formed in the town of Tighina (Bender), which had been declared a security zone and was under the responsibility of the Russian peacekeeping forces, and that firms in Tighina (Bender) and Tiraspol were manufacturing weapons and ammunition. The Moldovan delegation asked their government to consider the possibility of replacing the Russian peacekeeping forces in Transdniestria by a multinational force under the auspices of the United Nations or the OSCE. Lastly, the Moldovan delegation expressed their hope for rapid implementation of the agreement of 21 October 1994 on the withdrawal of the armed forces of the Russian Federation from Moldovan territory. 96. In a letter dated 17 January 1996, the head of the Russian delegation to the JCC stated that the examples of an alleged lack of impartiality on the part of 14th Army personnel given by the Moldovan delegation in their letter of 28 December 1995 were “distortions” and untrue. The Russian delegation considered that the agreement of 21 July 1992 undoubtedly permitted the Russian Federation to transfer to the ROG duties which had been given to the peacekeeping forces and asked the Moldovan delegation to review their position and reconsider the proposals to that effect made by the Russian Minister of Defence. 97. On 8 May 1997 in Moscow, Mr Lucinschi, the President of Moldova, and Mr Smirnov, the “President of the MRT”, signed a memorandum laying down the basis for the normalisation of relations between the Republic of Moldova and Transdniestria, in which they undertook to settle any conflict they might have through negotiations, with the assistance, where necessary, of the Russian Federation and Ukraine, as guarantors of compliance with the agreements reached, and of the OSCE and CIS. The memorandum was countersigned by the representatives of the guarantor States, namely Mr Yeltsin for the Russian Federation and Mr Kuchma for Ukraine. It was also signed by Mr H. Petersen, the OSCE President, who was present at the signing by the parties and the guarantor States. Under the terms of the memorandum, the status of Transdniestria is to be based on the following principles: decisions must be agreed by both sides, powers must be shared out and delegated, and guarantees must be secured reciprocally. Transdniestria must participate in the conduct of the foreign policy of the Republic of Moldova on questions concerning its own interests to be defined by mutual agreement. Transdniestria would have the right to unilaterally establish and maintain international contacts in economic, scientific, technical, cultural and other fields, to be determined by mutual agreement. The memorandum welcomes the willingness of the Russian Federation and Ukraine to act as guarantors of compliance with the provisions contained in the documents defining the status of Transdniestria and in the memorandum. The parties also confirmed the need to pursue the joint peacekeeping forces' common activities in the security zone, in accordance with the agreement of 21 July 1992. In the event of a breach of the agreements, the memorandum also entitles the parties to seek consultations with the guarantor States with a view to measures being taken to normalise the situation. Lastly, the two parties undertook to establish relations between themselves in the context of a shared State within the borders of the Moldavian SSR as it existed on 1 January 1990. 98. On 20 March 1998 representatives of Moldova, Transdniestria, the Russian Federation and Ukraine signed in Odessa (Ukraine) a number of documents intended to secure the settlement of the Transdniestrian conflict (see paragraph 123 below). 99. In observations submitted in 1999 on a draft report on Moldova by the Parliamentary Assembly's Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe, the Moldovan Government indicated that the separatist authorities were illegally removing weapons from the ROG's stores “with the tacit agreement of the authorities of the Russian Federation, whose peacekeeping forces are deployed in the security zone of the Transdniestrian region of Moldova”. 100. In a letter of 6 February 2001, the Moldovan delegation to the JCC sent a letter to the heads of the Russian and Transdniestrian delegations to the JCC protesting about the partiality of the commanders of the peacekeeping forces. They were accused of permitting the introduction of military equipment and ammunition into the security zone and the enlistment of Transdniestrian armed military units. The Moldovan delegation emphasised that these facts had been noted by the military observers on the ground and complained of the attitude of the commander of the Russian peacekeeping forces, who had neither monitored nor prevented the militarisation of the security zone, thus failing to respect the status of the peacekeeping forces. Lastly, the Moldovan delegation pointed out that such an attitude on the part of the Russian peacekeeping forces was an encouragement for the Transdniestrians. The Russian Government asserted that the peacekeeping forces respected the neutrality required by the agreement of 21 July 1992. The Court notes the witness evidence given by the commander of the Russian peacekeeping forces, Colonel Zverev (see Annex, § 368), to the effect that the Russian peacekeeping forces complied with the agreement. The witness further declared that he was not aware of illegal acts by Transdniestrians in the zone controlled by the Russian forces. The Court observes, however, that the evidence in question is contradicted by the JCC's official documents, which show, with an abundance of details, that in various areas of Transdniestria under the control of the Russian peacekeeping forces, such as the area of Tighina (Bender), Transdniestrian separatist forces were breaching the ceasefire agreement. Having regard to the official nature of the JCC documents and the consistency of the information they contain, the Court considers it to be established with a sufficient degree of certainty that, in the area under the responsibility of the Russian peacekeeping forces, the Transdniestrians have not discharged the obligations arising for them from the agreement of 21 July 1992. 101. On 16 April 2001 the Presidents of the Republic of Moldova and the Russian Federation, Mr Voronin and Mr Putin, signed a joint declaration, point 5 of which states: “The Presidents advocated the rapid and fair settlement of the Transdniestrian conflict by exclusively peaceful means based on respect for the principle of the Republic of Moldova's sovereignty and territorial integrity, and for international human rights standards.” 102. In a document dated 4 September 2001 analysing implementation of the Moldovan-Russian agreement of 20 March 1998 on the principles for a peaceful settlement of the armed conflict in the Transdniestria region of the Republic of Moldova, the Moldovan delegation to the JCC pointed to the failure of the Transdniestrian side to fulfil their obligations, in that they had created new military units, introduced weapons into the security zone and set up customs posts. The Moldovan delegation expressed concern about the fact that the joint military command had not taken any suitable steps to put an end to the situation but had merely noted the facts. The Moldovan delegation proposed that concrete measures to ensure that parties' undertakings were honoured be discussed by the Ministries of Foreign Affairs of Moldova and the Russian Federation. Lastly, the Moldovan delegation proposed that the function of military observer in the security zone be placed under the patronage of the OSCE. 103. In March 2003 the Russian peacekeeping forces in Transdniestria comprised 294 soldiers, 17 armoured vehicles, 29 other vehicles and 264 firearms. To date, according to the witness evidence given to the Court (see Annex: Colonel Zverev, § 367), no soldier of the 14th Army or the ROG has been employed in the Russian peacekeeping forces. 104. Meetings with the Transdniestrian side continue to take place to discuss various aspects of a possible solution to the situation in Transdniestria. 105. At these negotiations, the Moldovan side persuaded the Transdniestrians to set up a commission to examine the possibility of pardoning all persons convicted and detained in Transdniestria as a result of judgments pronounced by the Transdniestrian courts (see Annex: Mr Sturza, §§ 309, 312 and 318). 106. One of the subjects regularly placed on the negotiations agenda is the immunity from prosecution requested by the Transdniestrian side for civil servants and officials of the Transdniestrian administration (see Annex: Mr Sturza, § 314; and Mr Sidorov, § 446). 107. Since 2002 a number of plans to give Moldova a federal structure have been proposed by the OSCE, the President of Moldova and the Russian Federation. 108. The most recent negotiations, conducted with the help of the OSCE, were based on proposals aimed at setting up a federal State in which Transdniestria would be autonomous. 109. On 4 April 2003, in the context of negotiations with Transdniestria, the Moldovan parliament adopted a protocol concerning the creation of a mechanism for drafting a federal constitution for the Republic of Moldova. 110. According to a press release put out by the OSCE mission in Moldova, the first meeting of the joint commission took place on 24 April 2003 at OSCE headquarters in Moldova. At that meeting it was decided that a final text should be made ready by October 2003 so that the new Constitution could be presented to all of the Moldovan people for adoption at a referendum to be organised in February 2004. 111. As provided for in Article 4 of the ceasefire agreement of 21 July 1992, Moldova and the Russian Federation began negotiations over the withdrawal of the ROG from Moldovan territory and its status pending such withdrawal. Russia proposed in 1994 that the ROG's withdrawal from Moldovan territory should be timed to coincide with settlement of the Transdniestrian conflict (see paragraph 93 above), and Moldova only accepted that proposal, which it considered counterproductive, on Russia's insistence and after persuading Russia to declare itself in favour of the speedy release of the members of the Ilaşcu group (see Annex: Y, § 254). In a press release of 12 February 2004, the Moldovan Ministry of Foreign Affairs said that the Moldovan authorities were categorically opposed to any synchronisation between the political settlement of the Transdniestrian conflict and the withdrawal of the Russian armed forces from Moldovan territory, and that they sought the complete and unconditional withdrawal of the Russian armed forces, in accordance with the OSCE's decisions (see paragraph 124 below), especially as the OSCE member States had set up a voluntary fund to finance the withdrawal in question. 112. Article 2 of the agreement of 21 October 1994 (“the first agreement”) provided for the withdrawal by Russia of its military formations within three years from the entry into force of the agreement, with implementation of the withdrawal within the time-limit to take place simultaneously with a political settlement of the Transdniestrian conflict and the establishment of a special status for the “Transdniestrian region of the Republic of Moldova” (see paragraph 296 below). As regards the stages and dates for the final withdrawal of Russian troops, Article 2 provided that these were to be determined in a separate protocol to be concluded between the parties' Ministries of Defence. 113. Under Article 5 of the agreement, the sale of any type of military technology, weapon or ammunition belonging to the military forces of the Russian Federation stationed in the territory of the Republic of Moldova could take place only by way of a special agreement between the governments of the two countries. 114. According to Article 7 of the agreement, Tiraspol military airport was to be used jointly by the aircraft of the ROG and the “civil aviation of the Transdniestrian region of the Republic of Moldova”. A second agreement, also reached on 21 October 1994, between the Moldovan and Russian Ministers of Defence (“the second agreement”) governed the use of Tiraspol airport. It provided, for example, that flights to Tiraspol airport were to be made in accordance with the “Provisional rules on the joint dispersed aviation of the military formations of the Russian Federation and the civil aviation of the Transdniestrian region of the Republic of Moldova”, in coordination with Moldova's State civil aviation authority and the Ministry of Defence of the Russian Federation (see paragraph 297 below). 115. On 9 November 1994 the Moldovan Government adopted the decision to implement the agreement concerning the withdrawal of the Russian army from Moldovan territory. On a date which has not been specified, the Government of the Russian Federation decided to submit this agreement for ratification by the Duma. On 17 November 1998, as the first agreement of 21 October 1994 had still not been ratified by the Duma, the Minister for Foreign Affairs of the Russian Federation asked the Duma to remove the matter from its order of business, on the ground that “any decision by the Ministry to reconsider this issue will depend on the evolution of relations with the Republic of Moldova and the Transdniestrian region and on a political settlement in the area”. In January 1999 the agreement was removed from the Duma's order of business. It has still not come into force. The second agreement was approved by the Moldovan Government alone, on 9 November 1994. 116. The Moldovan Government emphasised that the words “civil aviation of the Transdniestrian region of the Republic of Moldova”, contained in the agreements with the Russian Federation, must be interpreted as a reference to the constitutional local authorities of Moldova answerable to the central authorities, which did not apply to the Transdniestrian separatist regime. The Russian Government submitted that these words meant the present local authorities, which were seen as a mere business partner. They maintained that this did not amount in any way to official or political recognition of the “MRT”. 117. The Court notes, firstly, that neither of the agreements of 21 October 1994 has come into force, not having been ratified by Russia. It further notes that, according to the witness evidence of Mr Sergeyev, the commander of the ROG, Tiraspol airport is used as a free space by both the Russian military forces and the Transdniestrian separatists. The airspace is monitored by Moldovan or Ukrainian air-traffic controllers, depending on whether the territory over which the flight path crosses is Ukrainian or Moldovan. It also appears that Russian aircraft cannot take off from or land at Tiraspol airport without the authorisation of the relevant Moldovan authorities. Flight security at Tiraspol airport is controlled by the Russian forces as regards Russian aircraft taking off, landing or parked on the ground, and by the Transdniestrian separatists as regards their aircraft. Neither the ROG authorities nor the Russian peacekeeping forces interfere with the way in which the Transdniestrians use Tiraspol airport. For their part, the Transdniestrian separatists do not interfere with the way in which the Russian forces use it (see Annex: General Sergeyev, § 340). 118. It appears from a study by Mr Iurie Pintea, “The military aspect of a settlement of the conflict in the eastern region of the Republic of Moldova” (published by the Moldovan Public Policy Institute in August 2001 and submitted to the Court by the applicants), that “MRT” military formations have taken over the control tower and the technical installations of Tiraspol airport, in breach of the agreement of 21 October 1994, while the ROG part of the airport is allegedly used for purposes other than those mentioned in the agreement, for example for visits to Transdniestria by Russian politicians and for arms sales transactions. The other parties did not comment on the above information. 119. Article 13 of the first agreement provides that all accommodation, barracks, vehicle parks, shooting ranges and fixed machine tools, stores and the tools they contain left unused after the withdrawal of the military formations of the Russian Federation are to be transferred for management “to the organs of the local public administrative authorities of the Republic of Moldova” in the quantity existing de facto. It also provides that the arrangements for the transfer or sale of the immovable property assets of the Russian military are to be determined in an agreement to be reached for that purpose between the parties' governments. 120. According to Article 17 of the agreement, with a view to ensuring the withdrawal of the military formations of the Russian Federation from the territory of the Republic of Moldova within the time-limit and their effective deployment in their new stations in the territory of the Russian Federation, the Republic of Moldova is required to contribute a portion of the costs for the construction inside the territory of the Russian Federation of the premises needed for their installation. 121. In its Opinion No. 193 of 1996 on the accession of the Russian Federation to the Council of Europe, the Parliamentary Assembly of the Council of Europe noted the intention expressed by the Russian Federation “to ratify, within six months from the time of accession, the agreement of 21 October 1994 between the Russian and Moldovan Governments, and to continue the withdrawal of the 14th Army and its equipment from the territory of Moldova within a time-limit of three years from the date of signature of the agreement”. 122. In a report dated 30 August 1996, the principal military prosecutor of the Procurator General's Office of the Russian Federation, Lieutenant-General G.N. Nosov, noted that irregularities and illegal acts had been committed within the ROG in relation to the management of military equipment. In particular, he noted the lack of supervision, which encouraged abuses and theft, failure to comply with decisions concerning the transfer free of charge to the Transdniestrian leaders of a number of motor vehicles taken out of service, the communication to those leaders of an inventory of military engineers' equipment in the ROG's stores, which had prompted them to demand an increase in the quantities of goods transferred, and the unauthorised transfer to the “MRT” of several hundred pieces of technical equipment and several thousand tonnes of other equipment. Consequently, the principal military prosecutor asked the Minister of Defence of the Russian Federation to take additional measures to put an end to the breaches of the law noted within the ROG, to consider whether to bring disciplinary proceedings against Lieutenant-General E. and Major-General D. for failure to maintain effective control and dereliction of duty, and to inform him of the results. 123. On 20 March 1998, among other documents concerning a settlement of the situation in Transdniestria, an agreement on questions concerning the military assets of the 14th Army (see paragraph 299 below) was signed in Odessa (Ukraine). The signatories were Mr Chernomyrdin, on behalf of the Russian Federation, and Mr Smirnov, “President of the MRT”. According to the timetable annexed to the agreement, the withdrawal and decommissioning of certain stocks, to be disposed of by explosion or some other mechanical process, was to be completed by 31 December 2001, subject, among other conditions, to authorisation by the authorities of the Republic of Moldova, “particularly of the region of Transdniestria”. The withdrawal (transfer and decommissioning) of surplus ammunition and other ROG equipment was planned to take place by 31 December 2002 at the latest. The withdrawal of the ROG's standard-issue equipment and personnel not forming part of the peacekeeping forces was to be completed by 31 December 2002, on condition that the process of withdrawing ammunition and other equipment to Russia had been completed by then, that other equipment was transferred or decommissioned, and that Moldova discharged its obligations arising under Article 17 of the agreement of 21 October 1994. 124. In their declaration at the Istanbul summit of 19 November 1999, the heads of State and government of the OSCE States indicated that they were expecting “an early, orderly and complete withdrawal of Russian troops from Moldova” and welcomed the commitment by the Russian Federation to complete withdrawal of its forces from Moldovan territory by the end of 2002. Lastly, they pointed out that an international assessment mission was ready to be dispatched without delay to explore removal and destruction of Russian ammunition and armaments. 125. In observations submitted in 1999 to the Parliamentary Assembly of the Council of Europe, the Moldovan Government asserted that on that date the official figure put forward by the Russian authorities for the quantity of ROG arms and ammunition stocked in Transdniestria was 42,000 tonnes, but that it had not been possible to verify that figure, since both the Russian authorities and the Transdniestrian separatists had refused to countenance an international assessment mission. The Moldovan authorities drew attention to the fact that any withdrawal of ROG personnel not accompanied by removal of the ROG's enormous weapons stocks would increase the risk that Transdniestrian separatists would get their hands on these weapons. 126. A number of trainloads of equipment belonging to the ROG were moved out between 1999 and 2002. 127. On 15 June 2001 the Russian Federation and Transdniestria signed a protocol concerning joint work with a view to using the weapons, military technology and ammunition. 128. On 19 November 2001 the Russian Government submitted to the Court a document showing that in October 2001 the Russian Federation and the “MRT” signed an agreement on the withdrawal of the Russian forces. Under that agreement, in compensation for the withdrawal of part of the Russian military equipment stationed in Transdniestria, the “MRT” was granted a reduction of one hundred million United States dollars in its debt for gas imported from the Russian Federation, and the transfer to it by the ROG, in the course of their withdrawal, of part of their equipment capable of being put to civilian use. 129. According to a document submitted to the Court in November 2002 by the Moldovan Government, the volume of high-tech weaponry, ammunition and military equipment belonging to the ROG which had been withdrawn by November 2002 from the territory of the Republic of Moldova by virtue of the agreement of 21 October 1994 represented only 15% of the total volume declared in 1994 as being stationed in Moldovan territory. 130. According to an OSCE press release, 29 railway wagons carrying bridge-building equipment and field kitchens were moved out on 24 December 2002. The same press release quoted a declaration by the commander of the ROG, General Boris Sergeyev, to the effect that the latest withdrawals had been made possible by an agreement with the Transdniestrians under which the Transdniestrian authorities were to receive half of the non-military equipment and supplies withdrawn. General Sergeyev cited the example of the withdrawal, on 16 December 2002, of 77 lorries, which had been followed by the transfer of 77 ROG lorries to the Transdniestrians. 131. In June 2001, according to information supplied to the Court by the Russian Government, the ROG still had some 2,200 troops in Transdniestria. In his witness evidence, General Sergeyev asserted that in 2002 the ROG's numbers had shrunk to just under 1,500 troops (see Annex, § 338). The Court has not received any precise information about the quantity of arms and ammunition stocked by the ROG in Transdniestria. According to the applicants and the witness evidence taken by the Court's delegates (see Annex: Mr Snegur, § 235), in 2003 the ROG had at least 200,000 tonnes of military equipment and ammunition there, mainly kept at Kolbasna. According to information supplied by the Russian Government in June 2001 and not contested by the other parties, the ROG had in addition the following equipment: 106 battle tanks, 42 armoured cars, 109 armoured personnel carriers, 54 armoured reconnaissance vehicles, 123 cannons and mortars, 206 anti-tank weapons, 226 anti-aircraft guns, 9 helicopters and 1,648 vehicles of various kinds. In his witness evidence, General Sergeyev asserted that 108 battle tanks had been destroyed during 2002 and that the destruction of anti-aircraft defence systems was in progress (see Annex, § 341). 132. ROG personnel, and the military prosecutors and judges attached to the ROG, did not receive any specific instructions regarding their relations with the Transdniestrian authorities (see Annex: Lieutenant-Colonel Shamayev, § 374). 133. ROG personnel can travel freely in Transdniestrian territory. Before moving troops or equipment, the ROG informs the Transdniestrian authorities. Sometimes these movements occasion incidents, such as occurred with the seizure by the Transdniestrians of three ROG vehicles (see Annex: Lieutenant-Colonel Radzaevichus, § 363; and Lieutenant-Colonel Shamayev, § 376). In such cases, and in the absence of instructions, the ROG authorities try to negotiate directly with the Transdniestrian authorities. According to the legal provisions in force in the Russian Federation, the ROG's prosecuting authorities are not empowered to refer cases directly to the Moldovan authorities, which have jurisdiction in Transdniestrian territory. Any theft or other criminal act committed by a Transdniestrian civilian against the ROG must be reported by the ROG authorities to the relevant authorities of the Russian Federation, since only they can refer the matter to the Moldovan authorities. In practice, criminal acts of this type are investigated by the Transdniestrian authorities. 134. ROG investigators are empowered to investigate criminal acts committed by ROG personnel or with their participation, but only in relation to the individual soldiers implicated. However, to date, no case of this type has been reported (see Annex: Lieutenant-Colonel Levitskiy, § 371; and Mr Timoshenko, § 379). 135. According to the documents submitted to the Court by the Russian Government, ROG equipment and installations lending themselves to civilian use have been transferred to the “MRT”. For example, the building in which the applicants were detained in 1992 by the 14th Army was transferred in 1998 to the Transdniestrian separatists. According to the witness evidence given by Mr Timoshenko, the building is now used by the “MRT prosecution service” (see Annex, § 380). 136. According to the study by Mr Iurie Pintea (see paragraph 118 above), the Kolbasna military store was divided in 1994 into two parts, one of which was assigned to the “MRT”, which installed an ammunition store there for its army. He reported that, at the time when his study was published in 2001, security at the “MRT” store was provided by a 300strong motorised infantry brigade of the “MRT” army equipped with armoured transport vehicles, anti-tank weapons and mine throwers, plus an anti-aircraft battery, which also controlled movement into and out of the stores as a whole. Security at the ROG store was provided by ROG personnel. For movement out of the part of the stores which belongs to the ROG, a Transdniestrian customs post has been specially installed. Security and movement within the stores as a whole could not be monitored from the outside. 137. From undated statements to the press, submitted to the Court by the applicants and not contested by the other parties, it appears that the VicePresident of the Russian Federation at the time, Mr Rutskoy, recognised the “legitimacy of the entity created on the left bank of the Dniester”. 138. In an undated television appearance reported by the press, as submitted to the Court by the applicants and not contested by the other parties, the President of the Russian Federation, Mr Yeltsin, said: “Russia has lent, is lending and will continue to lend its economic and political support to the Transdniestrian region.” 139. After the end of the conflict, senior officers of the 14th Army participated in public life in Transdniestria. In particular, soldiers of the 14th Army took part in the elections in Transdniestria, military parades of the Transdniestrian forces and other public events. The documents in the file, and the evidence of several witnesses who agreed on this point and were not contradicted by the other parties, show that on 11 September 1993 General Lebed, the ROG's commander, was elected a member of the “Supreme Soviet of the MRT” (see Annex: Mr Ilaşcu, § 26; Mr Urîtu, § 72; and X, § 220). 140. The applicants alleged that a consulate of the Russian Federation had been opened in Transdniestrian territory, in the territory of the ROG, without the agreement of the Moldovan authorities and that various activities including polling took place there. The Russian Government denied the existence of a Russian consulate in Transdniestrian territory. On 27 February 2004 the Moldovan Ministry of Foreign Affairs sent a note to the embassy of the Russian Federation in Chişinău in which the Moldovan authorities expressed their regret about the fact that the authorities of the Russian Federation had opened seventeen fixed polling stations in Transdniestrian territory for the presidential election of 17 March 2004 without the agreement of the Moldovan authorities and that in acting thus the Russian authorities had presented them with a fait accompli, creating an undesirable precedent. The note went on to say that the only places in which the opening of polling stations was desirable were the ROG headquarters in Tiraspol, the headquarters of the peacekeeping forces in Tighina (Bender), the Russian embassy in Chişinău and mobile polling stations. 141. The Court notes that, apart from the applicants' assertions, there is no evidence of the existence of a Russian consulate in Tiraspol carrying out ordinary consular functions and open to all Transdniestrians who have or wish to acquire Russian nationality. In addition, none of the witnesses who gave evidence in Moldova was able to confirm such allegations. In the absence of corroboration, the Court cannot consider it to have been established beyond a reasonable doubt that a Russian consulate is permanently open in Tiraspol for all Transdniestrians who have or wish to acquire Russian nationality. On the other hand, the Court takes it as established that fixed consular posts, operating as polling stations, were opened by the Russian authorities in Transdniestrian territory without the agreement of the Moldovan authorities. With regard to the press articles submitted by the applicants mentioning the existence of a consular office of the Russian Federation in the territory of the ROG, the Court notes that these too are uncorroborated. However, the Russian Government have not denied the existence of such an office. The Court considers that in view of the special situation of the ROG, stationed in Transdniestrian territory, it is plausible that for practical reasons a consular office should be opened in the territory of the ROG to enable Russian soldiers to settle various problems normally dealt with by consulates. 142. The applicants asserted that on 12 March 1992 the Russian Central Bank opened a number of accounts for the Transdniestrian Bank. The other parties did not challenge the veracity of that information. 143. In Resolution no. 1334 IGD of 17 November 1995, the Duma of the Russian Federation declared Transdniestria a “zone of special strategic interest for Russia”. 144. Eminent politicians and representatives of the Russian Federation have confirmed on various occasions the support it has lent to Transdniestria. Representatives of the Duma and other prominent figures of the Russian Federation have travelled to Transdniestria and taken part in official events there. For their part, representatives of the “MRT” regime have travelled to Moscow on official visits, notably to the Duma. 145. The applicants also submitted that, several years after the conflict, the support given by the Russian authorities to the creation of the Transdniestrian regime was publicly confirmed in a television programme broadcast on an unspecified date on the Russian channel TV-Centre in which Mr Voronin, Mr Smirnov and Mr Khasbulatov were interviewed. During the programme, Mr Khasbulatov, who was President of the Russian parliament from 1991 to 1993, said that when it became clear that Moldova was going to leave the sphere of Russian influence an “administrative territorial enclave” was created there. During the same programme, Mr Voronin, the President of Moldova, said that the former Russian President, Mr Yeltsin, had supported Mr Smirnov in order to use him against the democratic regime in Chişinău. The other parties did not contest these facts. 146. On 19 May 1994 Lieutenant-General Iakovlev, the former commander of the 14th Army and former head of the “Defence and Security Department of the MRT”, became a citizen of the Russian Federation. 147. In 1997 Mr Mărăcuţă, the “President of the Supreme Soviet of the MRT”, was granted Russian nationality. 148. In 1999 Mr Caraman, one of the “MRT” leaders, also acquired Russian nationality. 149. Mr Smirnov was granted Russian nationality in 1997 (according to the Russian Government) or 1999 (according to the applicants). 150. According to the applicants, who were not contradicted on this point by the other parties, the arms industry is one of the pillars of the Transdniestrian economy, which is directly supported by Russian firms involved in arms manufacture in Transdniestria. According to the study by Iurie Pintea (see paragraph 118 above), from 1993 onwards Transdniestrian arms firms began to specialise in the production of high-tech weapons, with the help of funds and orders from various Russian companies, including the Russian arms producer and trader Росвооружение. Russian companies provide Transdniestrian firms with the technology and equipment they need to manufacture modern weaponry and military equipment. Transdniestrian firms also produce components for Russian arms manufacturers. For example, the Elektrommash company receives the components for the silenced pistols it produces from the Russian Federation and delivers components for various weapons systems assembled in the Russian Federation. 151. Citing Mr Pintea's study, the applicants submitted that, under the cover of “withdrawal”, the ROG was supplying Transdniestrian firms with parts and tools for military use. They alleged that the Râbniţa engineering works, which produces 82 mm mortars, regularly received truckloads of mortars and howitzers from the ROG stores at Kolbasna, passed off as “destruction of untransportable ammunition”. 152. In addition, there was interdependence between Transdniestrian economic and other interests and the ROG on account of the fact that the ROG employs huge numbers of the inhabitants of Transdniestria. According to the same study by Mr Pintea, nearly 70% of the command structure of the ROG unit stationed in Kolbasna (including the ammunition store) was made up of inhabitants of Râbniţa and Kolbasna, while 100% of the technical staff of the Kolbasna stores (head storekeepers, technicians and mechanics) were inhabitants of the region. In all, 50% of the ROG's officers and 80% of its non-commissioned officers were inhabitants of the “MRT”. The other parties did not contest this information. 153. There is judicial cooperation for the transfer of prisoners between the Russian Federation and Transdniestria, without going through the Moldovan authorities. Russian prisoners detained in Transdniestria have been transferred thanks to such cooperation to a prison in the Russian Federation (see Annex: Colonel Golovachev, § 136; and Mr Sereda, § 423). 154. The applicants asserted, citing press articles, that visits between officials of the Russian Federation and the “MRT” continued to take place. On 16 February 1999 the newspaper Transdniestria reported a visit by a delegation of the “Supreme Soviet of the MRT”, including Mr Mărăcuţă, Mr Caraman and Mr Antiufeyev, to the Duma of the Russian Federation. On 1 June 2001 an eight-member delegation from the Duma went to Tiraspol and stayed there until 4 June 2001. In addition, between 28 August and 2 September 2001, members of the Duma took part in the celebrations to mark the 10th anniversary of the “MRT” 's declaration of independence. 155. “MRT” leaders have been awarded official distinctions by various institutions of the Russian Federation and are received in honour by its State organs. It appears from the documents filed by the applicants that Mr Smirnov was invited to Moscow by Moscow State University. 156. The Russian Federation has direct relations with the “MRT” regarding its gas exports. As shown by a telegram sent on 17 February 2000 by the Chairman of the Russian group Gazprom to the Deputy Prime Minister of Moldova, contracts for supplying gas to Moldova do not apply to Transdniestria, to which gas is delivered separately on more favourable financial terms than those granted to the rest of the Republic of Moldova (see Annex: Y, § 261; and Mr Sangheli, § 268). 157. Transdniestria receives electricity directly from the Russian Federation. 158. Products manufactured in Transdniestria are exported to the Russian market, some of them being passed off as Russian products (see Annex: Mr Stratan, § 333). 159. The ROG buys certain products which it needs to supply its troops directly from the Transdniestrian market (see Annex: General Sergeyev, § 347). 160. Russian companies have taken part in privatisations in Transdniestria. The documents submitted by the applicants show that the Russian firm Iterra bought the largest undertaking in Transdniestria, the Râbniţa engineering works, despite the opposition of the Moldovan authorities. 161. Moreover, in January 2002 the Moldovan Government submitted to the Court a video cassette containing a recording of a Russian television programme about Russo-Moldovan relations and the Transdniestrian regime. The Russian commentator mentioned in the first place the treaty of friendship recently signed by the Russian Federation and the Republic of Moldova, in which Moscow and Chişinău condemned “separatism in all its forms” and undertook “not to lend any support to separatist movements”. According to the journalist, the treaty unambiguously confirmed the Russian Federation's support for Moldova in the Transdniestrian conflict. The rest of the item looked at various aspects of the Transdniestrian economy, presented as being wholly under the control of the Smirnov family, stating that its main source of income was the manufacture and export of arms to countries such as Afghanistan, Pakistan, Iraq or Chechnya. The programme closed with the information that the Transdniestrian authorities had shut down the broadcast over the territory of the “MRT”, citing poor weather conditions as the excuse. 162. The Moldovan authorities have never officially recognised the organs of the “MRT” as a State entity. 163. After the agreement of 21 July 1992, the two parties established relations with a view to settling the conflict. Contact was established and maintained mainly through negotiation committees and concerned the political question of Transdniestria's status, and settlement of various aspects of everyday life (economic, social, etc.). 164. According to the concordant statements of several witnesses (see Annex: Mr Urîtu, § 66; Mr Postovan, § 182; Z, § 272; Mr Plugaru, § 286; and Mr Obroc, § 430), the first meetings between Moldova and Transdniestria related to exchanges of prisoners captured on either side during the 1992 fighting. These exchanges generally concerned groups of prisoners. 165. According to the concordant statements of several witnesses (see Annex: Mr Urîtu, § 67; Mr Snegur, § 239: and Mr Sturza, § 311), after the ceasefire of 21 July 1992, private individuals and official delegations involved in the negotiations were able to travel to Transdniestria. There were sometimes incidents, when Transdniestrian guards refused access to Transdniestria. 166. As private individuals, doctors have fairly free access to Transdniestria, whether for consultations or for professional conferences (see Annex: Mr Ţîbîrnă, § 84; and Mr Leşanu, § 85). 167. From 1993 onwards, the Moldovan authorities began to institute criminal proceedings against certain Transdniestrian officials accused of falsely claiming the status of State officers (see paragraphs 221 and 230 below). 168. Nevertheless, persons who had acted as senior officials of the “MRT” were able to return to Moldova and subsequently take high office. For example, Mr Sidorov, who had been “Minister of Justice of the MRT” in 1991, held a number of senior State offices after his return from Transdniestria; he was a member of the Moldovan parliament from 1994 to 1998, Moldovan Ombudsman from 1998 to 2001 and member of the Moldovan parliament and Chairman of the Human Rights and Minorities Committee from 2001 (see Annex: Mr Sidorov, §§ 437-38). 169. On 7 February 1996, in the presence of OSCE mediators, Russia and Ukraine, the Moldovan authorities adopted a protocol providing for the removal of the customs posts belonging to Transdniestria. 170. Movement of persons between Transdniestria and the rest of Moldova after 1997 took place under the same conditions as before, with the Transdniestrian authorities deciding whether to permit passage in a discretionary fashion. When official delegations or Moldovan dignitaries wish to enter Transdniestria, prior contact for the purpose of seeking authorisation is necessary, even though such authorisation may be revoked at any time (see Annex: Mr Sereda, § 418). For example, the Moldovan Government said that in 2003, as a reprisal against a decision taken in February 2003 by the Council of the European Union prohibiting Igor Smirnov and sixteen other Transdniestrian leaders from entering the European Union for one year, the Transdniestrian authorities declared certain senior Moldovan leaders, including the President of Moldova, the President of the Moldovan parliament, the Prime Minister, the Minister of Justice and the Minister for Foreign Affairs, personae non gratae. 171. The applicants alleged that Transdniestrian leaders, including Mr Smirnov, Mr Mărăcuţă and Mr Caraman, also had Moldovan nationality and were in possession of Moldovan diplomatic passports. In addition, they asserted that the Moldovan Government had awarded them official honours. The Moldovan Government said that the Transdniestrian leaders did not possess Moldovan nationality as they had never requested Moldovan identity papers. The Court notes that the witness questioned by the delegates on this subject denied that any Moldovan identity documents whatsoever had been issued to Mr Smirnov, Mr Mărăcuţă and Mr Caraman (see Annex: Mr Molojen, § 396). In the absence of corroboration of the applicants' allegations, the Court considers that it has not been established beyond a reasonable doubt that the Moldovan authorities issued passports to Transdniestrian leaders. 172. A number of senior Moldovan officials, including Mr Sturza, the Minister of Justice, Deputy Attorney-General and, since 2000, Chairman of the Committee for Negotiations with Transdniestria, have continued to visit Tiraspol to meet Transdniestrian politicians, including Mr Smirnov, Mr Mărăcuţă, the “Attorney-General of the MRT” and the “President of the Supreme Court of the MRT”. The main subjects discussed at these meetings have been the applicants' situation, their release, and negotiations about the future status of Transdniestria, including official decisions taken by Transdniestrian local authorities (see Annex: Mr Sturza, § 312). 173. On 16 May 2000 the President of the Moldovan parliament, Mr Diacov, visited Mr Ilaşcu in his prison cell in Tiraspol. On the same day, the Moldovan President, Mr Lucinschi, visited Tiraspol. 174. On 16 May 2001 the President of Moldova, Mr Voronin, and the Transdniestrian leader, Mr Smirnov, signed two agreements – one about mutual recognition of documents issued by the Moldovan and Transdniestrian authorities, and the other concerning measures to attract and protect foreign investment. 175. In the field of economic cooperation, the applicants asserted that the Moldovan authorities issued certificates of origin for products from Transdniestria. The Moldovan Government did not comment on this allegation. 176. As regards the alleged practice of the Moldovan authorities of issuing certificates of origin to goods exported from Transdniestria, as submitted by the applicants and by the Russian Government, the Court notes that this allegation was not confirmed by any witness. On the contrary, Mr Stratan, the Director of Customs, denied the existence of such a practice (see Annex, § 327). In these circumstances, in the absence of corroboration of the applicants' assertions, the Court cannot regard it as established beyond a reasonable doubt that the Moldovan authorities are conducting a policy of supporting the Transdniestrian economy through such export certificates. 177. In addition to the cooperation introduced as a result of the agreement reached by the President of Moldova and the “President of the MRT”, as established by the witness evidence taken by the Court's delegates, there are more or less de facto relations between the Moldovan and Transdniestrian authorities in other fields. For example, the Transdniestrian Ministry of Justice, particularly the prisons service, and the Moldovan Ministry of Justice are in contact (see Annex: Lieutenant-Colonel Samsonov, § 172). There are also unofficial relations between the Moldovan and Transdniestrian authorities on judicial and security matters, in the interests of crime prevention. Although there is no cooperation agreement, Moldovan prosecutors or officers investigating criminal cases sometimes ring their “colleagues” in Transdniestria, particularly to obtain information and summon witnesses (see Annex: Mr Postovan, § 190; and Mr Catană, § 206). 178. There is a single telephone system for the whole of Moldova, including Transdniestria. A telephone call between Chişinău and Tiraspol is considered a national call (see Annex: Mr Molojen, § 398; and Mr Sidorov, § 454). 179. The Moldovan Government's Information Department issues identity documents (identity cards) to all persons resident in Moldova, including those in Transdniestria (see Annex: Mr Molojen, § 399). 180. In 2001, under agreements with the World Trade Organisation, the Moldovan authorities set up a chain of mixed Moldovan-Ukrainian customs posts along the border with Ukraine and introduced new customs stamps not available to the Transdniestrian authorities. The Court has not been informed whether the Moldovan-Ukrainian customs posts are still operational. 181. In response to the measures mentioned in the previous paragraph, the Transdniestrian authorities informed the Moldovan authorities, in a letter of 18 September 2001, of the unilateral suspension of negotiations on the status of Transdniestria, threatening to cut off gas and electricity supplies to Moldova passing through Transdniestria. 182. The Moldovan Government asserted that, during an incident in 2001 at the railway junction of Tighina (Bender), the Transdniestrian authorities had blocked 500 wagons containing humanitarian gifts for Moldovan children and elderly persons and shipments of petroleum and other goods from the European Union on their way to Moldovan firms. 183. In a declaration made public on 6 February 2002, the OSCE mission in Moldova criticised the actions of the Transdniestrian authorities, who on 16 January 2002 had started to prevent the OSCE representatives from entering the territory controlled by the “MRT”, in breach of the agreement of 26 August 1993 between the OSCE and Mr Smirnov. 184. It appears from a document submitted to the Court by the Moldovan Government on 15 March 2002, that by Order no. 40 of 7 March 2002 the “Minister of Security of the MRT” refused access to the territory of the “MRT” to the representatives of the Ministries of Defence and Internal Affairs, the Information and Security Service and other Moldovan military bodies. 185. Lastly, the national football championship also includes Transdniestrian teams, and matches played by the Moldovan football team, including international games, are often staged in Tiraspol, as was the case for a match against the Netherlands in April 2003 (see Annex: Mr Sidorov, § 454). 186. The Court summarises below the facts connected with the applicants' arrest, pre-trial detention, conviction and conditions of detention, as alleged by the applicants and confirmed by the documentary evidence and the witnesses' statements. It further notes that, in their written observations of 24 October 2000, the Moldovan Government endorsed the applicants' account of the circumstances in which they had been arrested, convicted and detained. In the same observations they indicated that the applicants had certainly been arrested without a warrant, that they had remained for two months on premises belonging to the 14th Army and that the searches and seizures had also been carried out without a warrant. The Moldovan Government submitted that the applicants' allegations about their conditions of detention were very plausible. 187. The Russian Government indicated that they had had no knowledge of the circumstances of the applicants' arrest, conviction and conditions of detention. 188. It appears from the evidence given by the applicants, their wives and Mr Urîtu, corroborated in general by the statement of Mr Timoshenko, that the applicants were arrested at their homes in Tiraspol between 2 and 4 June 1992, in the early hours of the morning. They were arrested by a number of persons, some of whom wore uniforms bearing the insignia of the 14th Army of the USSR, while others wore camouflage gear without distinguishing marks. The details of their arrest are as follows. 189. The second applicant, Alexandru Leşco, was arrested on 2 June 1992 at 2.45 a.m. The next day his home was searched in the presence of his neighbours. 190. The first applicant, Ilie Ilaşcu, who at the material time was the local leader of the Popular Front (a party represented in the Moldovan parliament) and was campaigning for the unification of Moldova with Romania, was arrested on 2 June 1992, at about 4.30 a.m., when ten to twelve persons armed with automatic pistols forcibly entered his home in Tiraspol, where they carried out a search and seized certain objects. These included a pistol which, according to the applicant, had been placed in his house by the persons searching the premises. The applicant alleged that his arrest and the search were carried out without a warrant. He had been informed that he was being arrested because, as a member of the Popular Front, he presented a threat to the stability of the “MRT”, which was at war with Moldova. 191. The third applicant, Andrei Ivanţoc, was arrested at his home on 2 June 1992 at 8 a.m. by several armed persons who struck him with the butts of their weapons and kicked him. According to the applicant, during the search which followed, several carpets, 50,000 roubles and a “handsome” watch were confiscated. 192. The fourth applicant, Tudor Petrov-Popa, was arrested on 4 June 1992 at 6.45 a.m. by two persons, one of whom was a police officer, Victor Gusan. At about 11 a.m., two public prosecutors, Mr Starojuk and Mr Glazyrin, searched the applicant's home in his absence. 193. In a 140-page indictment drawn up by public prosecutor Starojuk, among others, the applicants were accused of anti-Soviet activities and of fighting by illegal means against the legitimate State of Transdniestria, under the direction of the Popular Front of Moldova and Romania. They were also accused of committing a number of offences punishable, according to the indictment, in some cases by the Criminal Code of the Republic of Moldova and in others by that of the Moldovan Soviet Socialist Republic. The offences of which the applicants were accused included the murder of two Transdniestrians, Mr Gusar and Mr Ostapenko (see also paragraph 225 below). 194. As evidenced by the concordant statements of the applicants and other witnesses (see Annex: Mr Urîtu, §§ 55-56 and 60-61; Mrs Leşco, §§ 30-31; and Mrs Ivanţoc, §§ 38 and 41), the applicants were first taken to Tiraspol police headquarters, which were probably also the premises of the “Ministry of Security of the MRT”, where they were interrogated and subjected to ill-treatment for several days. Their interrogators included Vladimir Gorbov, “Deputy Minister of Security”, Vladimir Antiufeyev (or Chevtsov), the “Minister”, and a person named Gushan. Some of the guards and investigators wore uniforms which were similar, if not identical, to those used by the Soviet personnel of the 14th Army. During the first days of their detention at police headquarters, the applicants were beaten regularly and severely, and received practically nothing to eat or drink. The interrogations often took place at night and during the daytime they were not permitted to rest. 195. The first applicant said that he had been taken immediately after his arrest into the office of the “Minister of Security of the MRT”, where there were five other persons, introduced to him as colonels in the Russian counter-espionage service. They asked him, in exchange for his release, to place at the service of Transdniestria the skills he had acquired during his military service with the USSR special troops and pass himself off as an agent working for the Romanian secret service. The applicant alleged that, when he turned down that proposal, he was told that his only alternative was the cemetery. 196. A few days after their arrest, the first three applicants were taken separately to the 14th Army garrison headquarters (komendatura) in Suvorov Street, Tiraspol, in vehicles bearing Russian markings. The applicants submitted that during their detention in the territory of the 14th Army, they were guarded by soldiers of that army and that while they were there, Transdniestrian police officers came to see them in their cells. They also alleged that during this period they were tortured by 14th Army personnel. The Moldovan Government said that, in the light of the statements made by the Moldovan witnesses and Mr Timoshenko to the delegates of the Court, it was apparent that 14th Army personnel had taken part in the applicants' arrest and interrogation. In their observations of 1 September 2003, the Russian Government repeated their initial position, namely that the Court did not have jurisdiction ratione temporis to examine events which had taken place in 1992. On the merits, they nevertheless acknowledged that the applicants had been detained on the premises of the 14th Army, but asserted that this detention had been of very short duration and that in any event it had been illegal. The Government said that military prosecutor Timoshenko had put a stop to this illegal detention as soon as he had been informed of it. They did not comment on the question whether Russian soldiers had taken part in the applicants' initial arrest. They submitted that, apart from providing cells for the applicants' detention, the 14th Army personnel had done nothing illegal. In particular, they had not guarded the cells in which the applicants were detained. In that connection, the Government said that the applicants could not have seen Russian insignia on the warders' uniforms because the new Russian insignia, which replaced those of the USSR, had only been introduced by Order no. 2555, issued on 28 July 1994 by the Minister of Defence of the Russian Federation. The Russian Government further submitted that Colonel Gusarov (see paragraph 270 below) had not served in the Russian military formations stationed in Transdniestrian territory, but had performed his service at the “Ministry of the Interior of the MRT”. 197. The Court notes that the first three applicants alleged that they had been detained for two months at 14th Army garrison headquarters. (see Annex: Mr Ilaşcu, §§ 2, 4 and 11; Mr Urîtu, §§ 55-56; Mr Ivanţoc, §§ 9495; Mr Leşco, §§ 114 and 117; Mr Petrov-Popa, § 124; Mrs Leşco, §§ 33-34; Mrs Ivanţoc, § 39; and Mrs Petrov-Popa, § 48). On that subject, the Court notes that Mr Timoshenko asserted in his witness evidence (see Annex, § 381) that the applicants had stayed on the premises of the 14th Army for a very short space of time, although he was unable to say exactly how long. Without casting a general doubt on the testimony of Mr Timoshenko, which it considers to be credible, the Court considers that it contains a number of details, including those concerning the length of time the applicants spent on the premises of the 14th Army, which are confused, and moreover refuted by other testimony. 198. The Tiraspol garrison headquarters were commanded by Mikhail Bergman. The applicants were detained there one to a cell. A Mr Godiac, arrested at the same time as the applicants, was detained in the same building. While being interrogated or when visited in their cells, the applicants saw Mr Gorbov and officers of whom some wore the uniform of the 14th Army. They were interrogated especially at night, the interrogations being accompanied by ill-treatment. They were also beaten at other times. The applicants were struck regularly and severely by soldiers in 14th Army uniforms. Transdniestrian police officers sometimes participated in inflicting ill-treatment on the applicants. Ilie Ilaşcu was subjected to four mock executions. The first time, his death warrant was read out to him, whereas on the other occasions he was taken out blindfolded into a field where the warders fired at him with blank cartridges until he fainted. The second applicant was threatened with rape. After a month, as a result of the blows he had received, the third applicant was admitted to a psychiatric hospital, where he remained for a month (see Annex: Mr Ivanţoc, § 97). 199. The cells had no toilets, no water and no natural light. A light bulb in each cell was lit permanently. The fold-away beds fixed to the wall were lowered at midnight and put back up at five in the morning. The applicants had only fifteen minutes per day for outdoor exercise, in an enclosed area. During their detention at the 14th Army garrison headquarters, they were not able to wash themselves or change their clothes. The toilets were along the corridor, and the prisoners were taken there only once a day by guards accompanied by an Alsatian dog. They had only forty-five seconds in which to relieve themselves, knowing that the dog would be set on them if they took longer. Since they were taken to the lavatory only once a day under the conditions described above, the applicants had to relieve themselves in their cells (see Annex: Mr Ivanţoc, § 95; Mr Leşco, § 115; Mrs Leşco, § 33; and Mrs Ivanţoc, § 40). They were cut off from the outside world. Their families were not permitted to contact them or send them parcels. They were not able to send or receive mail and had no access to lawyers. 200. On 23 August 1992, when General Lebed took command of the 14th Army, the persons detained at the headquarters of the army's Tiraspol garrison, including the three applicants, were transferred to Tiraspol police headquarters. The transfer was carried out by soldiers of the 14th Army in 14th Army vehicles (see Annex: Mr Ilaşcu, § 11; Mr Urîtu, § 55; and Mrs Ivanţoc, § 39). 201. The circumstances of the applicants' detention, as described in their written depositions and witness evidence, and in the corroborating evidence given by other witnesses (see Annex: Mr Urîtu, §§ 56 and 60-61; Mrs Ivanţoc, § 41; and Mrs Leşco, §§ 30-31), are summarised below. 202. The first applicant remained in a cell at Tiraspol police headquarters for nearly six months, until April 1993, when his trial began. 203. The second applicant was transferred from the 14th Army garrison headquarters to Tiraspol police headquarters, where he remained until April 1993, when his trial began. 204. The third applicant remained for one month at the 14th Army garrison headquarters. He was then confined to a psychiatric hospital, where he remained for nearly a month. On his return from hospital, he was taken back to the 14th Army garrison headquarters and immediately transferred to Tiraspol police headquarters, where he was detained until April 1993. 205. The fourth applicant was detained until the beginning of the trial at Tiraspol police headquarters. 206. In the remand centre at Tiraspol police headquarters, the interrogations took place at night. The applicants were regularly beaten there, especially during the month which followed their return from the 14th Army garrison headquarters. 207. The cells had no natural light. During the first few weeks, they were not permitted to receive visits from their families or lawyers. Later, permission was granted on a discretionary basis for visits by their families and they began to receive parcels, albeit at irregular intervals. They were often unable to eat the food sent by their families because it had become spoiled during the searches carried out for security reasons. They were not permitted to receive or send mail, and were unable to speak to their lawyers. 208. During this period, the applicants were only rarely able to see a doctor, and when they had been subjected to ill-treatment the doctor's visit took place long afterwards. Hallucinogenic drugs administered to Mr Ivanţoc gave him chronic migraines. During this period he was not treated for his headaches and his wife was not given permission to send him medicines. 209. Mr Ilaşcu was able to see his lawyer for the first time in September 1992, several months after his arrest. 210. On a date which has not been specified, the applicants were transferred to Tiraspol Prison in preparation for their trial. While detained pending trial, they were subjected to various forms of inhuman and degrading treatment: they were savagely beaten; Alsatian dogs were set on them; they were held in solitary confinement and fed false information about the political situation and their families' health as bait to induce them to accept a promise of their release if they signed confessions; lastly, they were threatened with execution. 211. Andrei Ivanţoc and Tudor Petrov-Popa were treated with psychotropic substances and as a result Mr Ivanţoc experienced mental disorders. 212. The applicants were brought before the “Supreme Court of the Moldavian Republic of Transdniestria”, which sat first in the functions room of the Kirov State company and later in the concert hall of the Tiraspol cultural centre. During the trial, which began on 21 April 1993 and ended on 9 December 1993, the only persons authorised to enter the courtroom were Moldovan nationals with proof of residence in Transdniestria. Armed police and soldiers were present in the hall and on the stage where the judges sat. The applicants appeared at their trial locked inside metal cages. Witnesses were able to attend the trial as they wished, without being required to leave the courtroom while the other witnesses were giving evidence. On numerous occasions during the trial, the applicants were permitted to speak to their lawyers only in the presence of armed police officers. The hearings took place in a tense atmosphere, with placards hostile to the accused displayed by the public. As evidenced by a photograph submitted to the Registry by the applicants, taken in the courtroom and published in a Moldovan newspaper, one of these placards was inscribed with the words “Bring the terrorists to account!” (Teрpopиcтoв – к oтвeту!). 213. The applicants were tried by a three-judge bench composed as follows: Mrs Ivanova, a former judge of the Supreme Court of Moldova, presiding; Mr Myazin, aged 28 at the time of the trial, who had worked for one year at the Moldovan Procurator General's Office before being appointed to the “Supreme Court of the MRT”; and Mr Zenin. 214. The judgment records that Commandant Mikhail Bergman, an ROG officer, appeared as a witness. He told the court that the applicants had not been ill-treated by his subordinates while they were detained on the premises of the 14th Army and that they had not made any complaints. 215. The court gave judgment on 9 December 1993. 216. It found the first applicant guilty of a number of offences defined in the Criminal Code of the Moldovan Soviet Socialist Republic, including incitement to commit an offence against national security (Article 67), organisation of activities with the aim of committing extremely dangerous offences against the State (Article 69), murdering a representative of the State with the aim of spreading terror (Article 63), premeditated murder (Article 88), unlawfully requisitioning means of transport (Article 182), deliberate destruction of another's property (Article 127) and illegal or unauthorised use of ammunition or explosive substances (Article 227). It sentenced him to death and ordered the confiscation of his property. 217. The court found the second applicant guilty of murdering a representative of the State with the aim of spreading terror (Article 63), deliberate destruction of another's property (Article 127), and unauthorised use of ammunition or explosive substances (Article 227 § 2); it sentenced him to twelve years' imprisonment in a hard labour camp and confiscation of his property. 218. The third applicant was found guilty of murdering a representative of the State with the aim of spreading terror (Article 63), unauthorised use and theft of ammunition or explosive substances (Articles 227 and 227-1 § 2), unlawfully requisitioning horse-drawn transport (Article 182 § 3), deliberate destruction of another's property (Article 127) and assault (Article 96 § 2). He was sentenced to fifteen years' imprisonment in a hard labour camp and confiscation of his property. 219. The fourth applicant was found guilty of murdering a representative of the State with the aim of spreading terror (Article 63), assault (Article 96 § 2), unlawfully requisitioning horse-drawn transport (Article 182 § 3), deliberate destruction of another's property (Article 127), and unauthorised use and theft of ammunition or explosive substances (Articles 227 and 227-1 § 2). He was sentenced to fifteen years' imprisonment and confiscation of his property. 220. On 9 December 1993 the President of the Republic of Moldova declared that the applicants' conviction was unlawful, on the ground that it had been pronounced by an unconstitutional court. 221. On 28 December 1993 the Deputy Attorney-General of Moldova ordered a criminal investigation in respect of the “judges”, “prosecutors” and other persons involved in the prosecution and conviction of the applicants in Transdniestria, accusing them under Articles 190 and 192 of the Criminal Code of the Republic of Moldova of unlawful arrest. 222. On 3 February 1994 the Supreme Court of the Republic of Moldova examined of its own motion the judgment of 9 December 1993 of the “Supreme Court of the MRT”, quashed it on the ground that the court which had rendered it was unconstitutional, and ordered the file to be referred to the Moldovan public prosecutor for a new investigation in accordance with Article 93 of the Code of Criminal Procedure. It appears from the written depositions, the information supplied by the Moldovan Government and the evidence given by the witnesses heard by the Court in Chişinău in March 2003, that the investigation ordered in the judgment of 3 February 1994 came to nothing (see Annex: Mr Postovan, § 184; and Mr Rusu, § 302). 223. In addition, the Supreme Court of the Republic of Moldova set aside the warrant for the applicants' detention, ordered their release and asked the public prosecutor to look into the possibility of prosecuting the judges of the “so-called” Supreme Court of Transdniestria for deliberately rendering an illegal decision, an offence punishable under Articles 190 to 192 of the Criminal Code. 224. The authorities of the “MRT” did not respond to the judgment of 3 February 1994. 225. The Moldovan authorities had opened an investigation into the deaths of Mr Gusar and Mr Ostapenko in April and May 1992 respectively, but the public prosecution service suspended this on 6 June 1994, under Article 172 § 3 of the Moldovan Code of Criminal Procedure, in the absence of any cooperation from the Transdniestrian judicial and police authorities. The investigation was reopened on 9 September 2000. As a result, a number of requests for cooperation (the transmission of documents) were sent to the “Public Prosecutor of the MRT”, Mr V.P. Zaharov. Not receiving any reply, the Moldovan public prosecution service once again suspended the investigation on 9 December 2000. Since then it has not been reopened. 226. By a decree of 4 August 1995, the President of the Republic of Moldova promulgated an amnesty law on the occasion of the first anniversary of the adoption of the Moldovan Constitution. The amnesty applied in particular to convictions for offences defined in Articles 227, 227-1 and 227-2 of the Criminal Code committed after 1 January 1990 in several provinces of the left bank of the Dniester. 227. On 3 October 1995 the Moldovan parliament asked the Moldovan Government to give priority to the problem of the applicants' detention as political prisoners and keep it regularly informed of developments in the situation and remedial action undertaken, and requested the Ministry of Foreign Affairs to seek firm support from the countries where Moldova had diplomatic missions with a view to securing the release of the applicants (“the Ilaşcu group”). 228. The first applicant, despite being imprisoned, was elected a member of the Moldovan parliament on 25 February 1994 and again on 22 March 1998 but, having been deprived of his liberty, he never took his seat. 229. On 16 August 2000 the public prosecutor declared void the order of 28 December 1993 against the “MRT” “judges” and “prosecutors” (see paragraph 221 above), on the ground that there could only be unlawful arrest within the meaning of Articles 190 and 192 of the Criminal Code where the relevant measure was taken by judges or prosecutors appointed in accordance with the legislation of the Republic of Moldova, which was not so in the present case. He also stated that in his view it was not appropriate to begin an investigation in respect of false imprisonment or usurpation of the powers or title corresponding to an official office, offences defined in Articles 116 and 207 of the Criminal Code respectively, on the grounds that prosecution was time-barred and that the suspected offenders were refusing to assist the authorities with their enquiries. 230. On the same day, the public prosecutor ordered a criminal investigation in respect of the governor of Hlinaia Prison on suspicion of false imprisonment and usurpation of the powers or title corresponding to an official office, as defined in Articles 116 and 207 of the Criminal Code. It appears from the information supplied by the Moldovan Government and the statements of the witnesses heard by the Court at Chişinău in March 2003 that this criminal investigation came to nothing (see Annex: Mr Rusu, § 302; and Mr Sturza, § 314). 231. On 4 October 2000, at Mr Ilaşcu's request, the Romanian authorities granted him Romanian nationality by virtue of Law no. 21/1991. 232. On 26 November 2000 Mr Ilaşcu was elected to the second chamber of the Romanian parliament. Having renounced Moldovan nationality and his seat in the Moldovan parliament, he ceased to be a member of parliament on 4 December 2000. 233. In 2001, at their request, Mr Ivanţoc and Mr Leşco were likewise granted Romanian nationality. 234. On 5 May 2001 Mr Ilaşcu was released. The circumstances of his release, which are disputed, are summarised below (see paragraphs 279-82). 235. The first applicant, Ilie Ilaşcu, was detained in Tiraspol Prison no. 2 until his conviction, on 9 December 1993. He was then transferred to Hlinaia Prison, to the wing for prisoners condemned to death, remaining there until July 1998, when he was again transferred to Tiraspol Prison no. 2. He stayed there until his release in May 2001. 236. Mr Alexandru Leşco was transferred after his trial to Tiraspol Prison no. 2, where he is still detained. 237. Andrei Ivanţoc was transferred after conviction to Hlinaia Prison, where he probably remained for only a few weeks. Because of his illness, he was first admitted to hospital and then transferred to Tiraspol Prison no. 2, where he remains to date. 238. Mr Tudor Petrov-Popa was transferred shortly before the beginning of his trial to Tiraspol Prison no. 2. At some time after Mr Ilaşcu's release in May 2001, Mr Petrov-Popa was transferred to Hlinaia Prison, where he stayed until 4 June 2003, on which date he was transferred to Tiraspol Prison no. 3 “in order to facilitate contact with his lawyer”, according to the prison service. 239. From the first few months after the applicants' arrest, the Moldovan Government granted financial assistance to their families. In addition, the authorities found accommodation for those of the applicants' families who had been obliged to leave Transdniestria and occasionally gave them help, firstly to visit the applicants, by placing transport at their disposal, and secondly to improve the applicants' conditions of detention, by sending doctors and supplying them with newspapers (see Annex: Mr Snegur, § 240; Mr Moşanu, § 248; and Mr Sangheli, § 267). 240. The applicants were detained, except for a few very short periods, alone, each in his own cell, except for Mr Leşco, who was held in solitary confinement only during the first few years. Mr Ilaşcu was always held in solitary confinement. He was not allowed correspondence, but nevertheless managed to send a few letters out of prison. 241. In Hlinaia Prison, Mr Ilaşcu was detained in the wing for prisoners condemned to death. His conditions of detention were harsher than those of the other applicants. Inside his cell a metal cage of the same dimensions as the cell had been fitted. Inside the cage was the bed and table, also made of metal. Mr Ilaşcu was not permitted to speak to the other prisoners or the warders. He was therefore taken alone for his daily walk, which took place in the evening, indoors. Mr Ilaşcu's food was 100 grams of rye bread three times a day and a glass of tea without sugar twice a day. In the evening he also received a concoction called “balanda” whose main ingredient is kibbled maize. 242. The applicants' cells had no natural light: the only light – from an electric bulb in the corridor – entered each cell through an opening cut out in the door. 243. The applicants could only rarely take showers and had to go several months without washing. 244. None of the cells occupied by Mr Ilaşcu during his detention was heated, even in winter. 245. Both in Hlinaia and in Tiraspol, the applicants had cold water in their cells, which were equipped with toilets that were not separated off from the rest of the cell. 246. The applicants were able to receive parcels and visits from their families, although the relevant authorisation was not systematically given by the prison governors. At times, authorisation to receive visits or parcels was refused on the orders of Igor Smirnov or Vladimir Antiufeyev/Chevtsov. 247. As parcels were searched, any food in them sometimes became unfit for consumption. To protest about the insufficient quantity of food served to them in prison, the authorities' occasional refusal to distribute to them the food brought by their families and the fact that this food was being spoiled in the checking process, the applicants went on several hunger strikes. 248. In 1999 Mr Ilaşcu was allowed visits by Mrs Josette Durrieu, a member of the Parliamentary Assembly of the Council of Europe, and by Mr Vasile Sturza, the Chairman of the Committee for Negotiations with Transdniestria. 249. In a letter sent in March 1999 to the Moldovan parliament about the governmental crisis facing Moldova, Mr Ilaşcu declared his support for Mr Ion Sturza as candidate for the post of Prime Minister. His letter was read out from the rostrum by the President and enabled Parliament to put together the majority required in order to appoint Mr Ion Sturza as Prime Minister. In 1999, following his vote for the Sturza government and during the nine months that government lasted, Mr Ilaşcu was not allowed any visits from his family or any parcels. The other applicants, particularly Mr Ivanţoc, suffered similar restrictions. 250. In a letter to the Court dated 14 May 1999, Mr Ivanţoc wrote that since Mr Ilaşcu's letter to the Moldovan parliament the applicants' conditions of detention, and those of Mr Ilaşcu in particular, had deteriorated. 251. In a letter of 17 July 1999, Mr Ivanţoc informed the public that he had begun a hunger strike to protest about the harsh conditions in which he and his companions were detained. He pointed out, for example, that he could not contact a lawyer and that he was not permitted to receive visits from doctors or Red Cross representatives. He argued that the passivity of the Moldovan authorities in the face of the situation in Transdniestria, and particularly that of the Ilaşcu group, amounted to tacit support for the Transdniestrian authorities. 252. In a written statement of 29 July 1999 Mr Ivanţoc, who was on the seventy-seventh day of his hunger strike, accused the leaders in Chişinău of doing nothing to protect human rights in Moldova and of “having a good time” with the separatist leaders of Transdniestria. He also complained of the Tiraspol prison authorities' refusal to allow himself and Mr Ilaşcu access to a doctor and said that Mr Ilaşcu, who had been held in solitary confinement for a lengthy period, was being ill-treated. All the furniture had been taken out of his cell, his clothes had been taken away from him except for a vest and he was repeatedly beaten by members of the “special forces”, who kept suggesting that he should kill himself. 253. In a letter to the Court of 10 May 2000, Mr Ilaşcu pointed out that he had not been able to consult a doctor since 1997. Doctors who had made the journey from Chişinău at that time had examined him and written a report on his state of health, which they described as serious. In the same letter, he accused the authorities of the Republic of Moldova of hypocrisy, alleging that in spite of their calls for the applicants' release they were doing everything they could to prevent them from regaining their liberty. 254. On 14 January 2002 the applicants' representative, Mr Dinu, informed the Court that the conditions of detention of the three applicants still incarcerated had deteriorated since June 2001. Mr Ivanţoc had been refused a visit by his wife, without any explanation. Mr Ivanţoc and Mr Leşco began to receive only bread for food. Mr Petrov-Popa was transferred to Hlinaia Prison where, in conditions of total isolation, he was told that he would not be permitted any visits for six months. 255. With the exception of Mr Ilaşcu, the applicants were permitted correspondence in Russian; letters in Romanian were forbidden. Their mail was censored. They could not as a general rule receive newspapers in Romanian. 256. Mr Ivanţoc was refused a visit from his wife on 15 February 2003. The visit was allowed to go ahead one week later. 257. At the witness hearings before the delegates of the Court in Tiraspol in March 2003, the Transdniestrian prison service undertook to allow the applicants' lawyers to meet their clients detained in Transdniestria. Mr Tănase was able to see his client, Mr Leşco, for the first time on a date which has not been specified, in May or June 2003. Mr Gribincea was able to meet his clients for the first time since their incarceration on 20 June 2003. 258. The Court has established the conditions under which the applicants' medical examinations were conducted on the basis of the witness evidence and other documents in its possession, including the registers of medical consultations kept in the places of the applicants' detention. 259. In general, the Court notes that, during their detention the applicants' health deteriorated. They were able to see, at their request, the prison doctor, who in most cases restricted his examination to palpation and auscultation. 260. Alexandru Leşco, although suffering from acute arthritis, pancreatitis and a dental abscess, was refused permission to see a doctor. His eyesight also deteriorated. 261. In 1995, however, Mr Leşco was taken to hospital in Tiraspol and operated on for his pancreatitis. 262. With few exceptions, the applicants' illnesses were not treated. The only medicines they were given were the medicines sent by their families. The prison “authorities” cited security grounds as the reason for not allowing the applicants to receive the pharmaceutical information notes accompanying these medicines. 263. After negotiations with the Moldovan authorities, and above all after the intervention of President Snegur, the Transdniestrian prison authorities allowed specialists from Chişinău to examine the applicants. Thus, on several occasions between 1995 and 1999, the applicants were examined by a medical commission from Moldova, which included Mr Leşan and Mr Ţîbîrnă. In 1999 the visits took place from January to March, and again in November. On one occasion, Mr Ilaşcu was able to have an electrocardiogram; Mr Ivanţoc was operated on for liver disease; Mr Petrov-Popa had an injection for his tuberculosis and was prescribed treatment. The examinations took place in the presence of prison doctors and warders. The medicines prescribed by the Moldovan doctors, as recorded in the prison medical registers, were not supplied, the only medicines received by the applicants being those brought by their families. On two occasions, Mr Ilaşcu was allowed to be examined by International Red Cross doctors. 264. Mr Petrov-Popa, who was suffering from tuberculosis, was treated for approximately six months, until March 1999. However, most of the medicines were provided by his family. 265. None of the applicants was able to obtain dietetically appropriate meals, although these had been prescribed by doctors, in Mr Ilaşcu's case for his disorder of the digestive tract, in Mr Ivanţoc's case for his liver disease, in Mr Leşco's case for the consequences of his pancreatitis and in Mr Petrov-Popa's case for his tuberculosis. Mr Leşco, Mr Ivanţoc and Mr Petrov-Popa said they suffered from pancreatitis, liver disease and tuberculosis respectively and were not receiving the appropriate treatment. 266. Mr Petrov-Popa now occupies the same cell in Hlinaia Prison Mr Ilaşcu was in before his release, although there is a special wing there for prisoners with tuberculosis. Since the entry into force in 2002 of the new Transdniestrian Code of Criminal Procedure, Mr Petrov-Popa's conditions of detention in Hlinaia have improved, since he can receive three extra parcels and three extra visits per year. The improvement was ordered by the governor of Hlinaia Prison in the light of the applicant's good conduct. 267. During the first few months of his detention in Hlinaia, Mr Ilaşcu was ill-treated several times. On the slightest pretext, Mr Ilaşcu was removed to a disciplinary cell. 268. After his transfer to Tiraspol Prison no. 2, Mr Ilaşcu's situation improved slightly in that he was not punished so frequently as at Hlinaia and was ill-treated only after certain events. For example, after the publication in the press of an article about the applicants, prison warders entered the cells of Mr Ilaşcu and Mr Ivanţoc and confiscated or destroyed all the objects they found there. They beat the applicants severely and placed them in disciplinary cells for twenty-four hours. 269. The cells of Mr Ilaşcu and Mr Ivanţoc were smashed up after Mr Ilaşcu had voted for the Sturza government in 1999, and after the lodging of their application to the Court. The objects destroyed included personal effects such as photographs of the applicants' children and icons. They were also savagely beaten. After lodging his application with the Court, Mr Ilaşcu was beaten by soldiers who kicked him and hit him with rifle butts. He then had a pistol placed in his mouth and was threatened with death if he ever tried to send letters out of the prison again. On that occasion he lost a tooth. 270. In the above-mentioned letter of 14 May 1999, Andrei Ivanţoc said that on the previous day hooded civilians had entered his cell, struck him with a stick on his head, his back and over his liver and punched him repeatedly over his heart. They had then dragged him into the corridor, where he saw one Colonel Gusarov in the act of banging Ilie Ilaşcu's head against a wall and kicking him. Colonel Gusarov had then put a pistol into Mr Ilaşcu's mouth and threatened to kill him. Colonel Gusarov had told the applicants that this assault had been prompted by their application to the European Court of Human Rights. In the same letter, Andrei Ivanţoc urged the Moldovan parliament and Government, the international media and human rights protection organisations to intervene in order to halt the torture to which he and the other three applicants were being subjected. 271. Following these events, as appears from a letter of 1 September 1999 sent to the Court by Mr Leşco's representative, the applicants were denied food for two days and light for three days. 272. Mr Ivanţoc's cell in Tiraspol Prison was smashed up on other occasions, in November 2002 and on or around 15 February 2003. 273. The negotiations between the Republic of Moldova and the Russian Federation about the withdrawal of Russian forces from Transdniestria, during which the settlement of the Transdniestrian question was also mentioned, never covered the applicants' situation. However, in discussions between the Moldovan President and the President of the Russian Federation, the Moldovan side regularly raised the question of the applicants' release (see Annex: Y, § 254). 274. In the context of the creation by the Transdniestrian side of a commission to examine the possibility of pardoning all persons convicted and detained in Transdniestria as a result of judgments delivered by the Transdniestrian courts (see Annex: Mr Sturza, §§ 309 and 311), the Moldovan authorities obtained a promise of the applicants' release. In that context, the Moldovan Deputy Attorney-General, Mr Vasile Sturza, went to Tiraspol several times to negotiate the applicants' release, even meeting Mr Ilaşcu in 1996 in Hlinaia Prison. Mr Sturza went one last time to Tiraspol on 16 April 2001 in order to bring the applicants back to Chişinău, but without success. It was only on 5 May 2001 that Mr Ilaşcu was released (see paragraph 279 below). 275. In a letter of 23 February 2001, the President of Moldova, Mr Lucinschi, and the head of the OSCE mission in Moldova, Mr Hill, asked Mr Smirnov to release the applicants for humanitarian reasons. 276. On 12 April 2001 the new President of Moldova, Mr Voronin, again asked Mr Smirnov to release the applicants on humanitarian grounds. 277. From the beginning of the negotiations with the Transdniestrians, the question of the applicants' situation was regularly raised by the Moldovan authorities. In particular, discussions on this point took place with representatives of the “prosecution service of the MRT”, the “Supreme Court of the MRT” and the “Minister of Justice of the MRT”, and with Igor Smirnov. 278. The applicants submitted to the Court a note verbale dated 19 April 2001 to the Moldovan embassy in Moscow, in which the Ministry of Foreign Affairs of the Russian Federation drew the Moldovan Government's attention to the fact that the memorial they had filed with the European Court of Human Rights in October 2000 gave a subjective assessment of Russia's role in the case of the Ilaşcu group and in no way reflected “the friendly character of relations between the Republic of Moldova and the Russian Federation”. The note continued: “Examination of the memorial by the Grand Chamber of the European Court, due to take place on 1 May of this year, may cause serious prejudice to the interests of the Russian Federation and Moldova. In that context, the Russian side, relying on the agreement reached by the heads of the diplomatic services of the two countries with regard to the need to withdraw the memorial concerned, urges the Government of Moldova to take all the necessary steps to ensure the withdrawal of this document before 30 April and to inform the European Court and Russia's representative to that organ of the fact officially.” 279. Mr Ilaşcu said that at about 5.30 a.m. on 5 May 2001 Vladimir Chevtsov, also known as Antiufeyev, the Transdniestrian “Minister of Security”, entered his cell and told him to get dressed quickly because he was to be presented to the “President of the MRT”. The applicant left all his personal effects in the cell and was placed in a car attached by handcuffs to two soldiers. Vladimir Chevtsov also got in the car. The applicant was driven to Chişinau and there, about one hundred metres away from the presidential palace, he was handed over to the head of the Moldovan secret service, Mr Păsat. The applicant asserted that Mr Chevtsov had read out in front of Mr Păsat his transfer document, worded as follows: “The prisoner Ilaşcu, who has been sentenced to death, is transferred to the competent organs of the Republic of Moldova.” After handing over this document, Mr Chevtsov allegedly declared that the sentence remained valid and would be enforced if Mr Ilaşcu returned to Transdniestria. Moldovan special forces then took the applicant to the Ministry of Security, where he was questioned briefly before being released. 280. On 22 June 2001 the Moldovan Government informed the Court that the President of the Republic of Moldova, Mr Voronin, had learned of Mr Ilaşcu's release from a letter sent to him by Mr Smirnov on 5 May 2001. In that letter, Mr Smirnov requested that in return for the Transdniestrian authorities' gesture, the Republic of Moldova should condemn “its 1992 aggression against the Transdniestrian people”, make full reparation for the pecuniary damage sustained by the “MRT” as a result of the aggression, and present its “apologies to the Transdniestrian people for the pain and suffering caused”. 281. In a letter of 16 November 2001, the Moldovan Government submitted to the Court copies of several decrees signed by Mr Smirnov, the “President of the MRT”. Decree no. 263, signed on 6 July 1999, provided for a moratorium on enforcement of the death penalty within the territory of the “MRT” from 1 September 1999. This moratorium was apparently also applicable to judgments rendered before that date, but not enforced by the time of the decree's entry into force, which was to coincide with its signature and publication in the Official Gazette. Decree no. 198, signed by Mr Smirnov on 5 May 2001, granted a pardon to Mr Ilaşcu and ordered his release. The decree came into force on the day of its signature. The Moldovan Government made no comment on the subject of Mr Ilaşcu's alleged transfer, but merely submitted to the Court Mr Smirnov's decree concerning the applicant. Nor did they comment on the decree's authenticity. They added nevertheless that they had heard rumours to the effect that, before signing the decree in question, Mr Smirnov had commuted the death sentence imposed on Mr Ilaşcu to one of life imprisonment. Mr Ilaşcu asserted that Mr Smirnov's decree was a forgery created after his release. He maintained that, in spite of his release, his conviction remained valid and that if he returned to Transdniestria he would be liable to the death sentence. 282. The Court has only the allegations of Mr Ilaşcu, a copy of Mr Smirnov's “decree” of 5 May 2001 and the Moldovan Government's assertions of a commutation of the sentence. None of these different accounts is corroborated by other evidence and the Court can see no objective element capable of persuading it to accept one version rather than another. Consequently, the Court considers that as the evidence before it stands at present, it is not able to reach a conclusion as to the reasons and legal basis for Mr Ilaşcu's release. 283. After Mr Ilaşcu's release, the representative of Mr Leşco submitted in a letter received by the Court on 1 June 2001 that this release had been prompted by the Russian authorities' intercession with the Transdniestrian authorities. He asserted that, in an interview given to the Moldovan public radio station Radio Moldova, the Moldovan Minister for Foreign Affairs, Mr Nicolae Chernomaz, had stated: “Ilie Ilaşcu was released following the intervention of the Russian Minister for Foreign Affairs, Igor Ivanov, who, at the request of Moldova's President Voronin, spoke to the Tiraspol authorities on this subject over the telephone. He explained to them that this is an international problem affecting the honour of the Russian Federation and Moldova.” Mr Chernomaz apparently went on to say that he had met Mr Ivanov to try to convince him that “the application to the European Court of Human Rights could not be withdrawn because Mr Ilaşcu was a prisoner of conscience, a hostage of the 1992 conflict”. 284. At the hearing on 6 June 2001, the Moldovan Government thanked those who had contributed to Mr Ilaşcu's release, in particular the Russian Federation, and stated that they wished to modify the position they had previously adopted in the observations of 24 October 2000, particularly as regards the responsibility of the Russian Federation. They explained this decision by their desire to avoid undesirable consequences, such as tension or the end of the process aimed at finding a peaceful solution to the Transdniestrian dispute and securing the release of the other applicants. 285. After Mr Ilaşcu's release, meetings between him and the Moldovan authorities took place to discuss the prospects for the release of the other applicants. At a press conference which he gave on 31 July 2001, the President of Moldova, Mr Voronin, declared: “Mr Ilaşcu is the person who is keeping his comrades detained in Tiraspol.” He pointed out in that connection that he had suggested to Mr Ilaşcu that he should withdraw his application to the Court against the Russian Federation and Moldova, in exchange for which the other applicants would be released before 19 June 2001, but that Mr Ilaşcu had refused to do so. According to the Moldovan press agency Basa-press, Mr Voronin also suggested that if Mr Ilaşcu won his case before the Court that would make the release of the other applicants more difficult. 286. In a report of 20 February 1994 written at the request of the OSCE's Office for Democratic Institutions and Human Rights by Mr Andrzej Rzeplinski, Professor of Criminal Law and Human Rights at the University of Warsaw, and Mr Frederick Quinn, of the OSCE, following a fact-finding visit to Transdniestria, the applicants' trial before the “Supreme Court of the MRT” was analysed from the point of view of respect for fundamental rights. The authors noted serious infringements of the defendants' rights, which included the lack of any contact with a lawyer during the first two months after their arrest, very limited access thereafter, infringement of the right to be tried by an impartial tribunal, in that the court had refused to examine the applicants' allegations that their confessions had been wrung from them by inhuman treatment, and infringement of the right enshrined in Article 14.5 of the International Covenant on Civil and Political Rights, in that the applicants' trial had been conducted according to an exceptional procedure which denied them any right to an appeal. Lastly, the authors described the trial as “a political event from beginning to end”. They concluded that some of the terrorism charges preferred against the applicants on the basis of the Criminal Code of the Soviet era would be considered merely free speech issues in modern democracies. 287. On 28 September 1999 the President of the Parliamentary Assembly and the Secretary General of the Council of Europe appealed to the separatist authorities in Transdniestria to permit the International Committee of the Red Cross (ICRC) to visit the applicants and called for an immediate improvement in their conditions of detention. 288. While in Transdniestria on 18 and 19 October 2000, during a visit to Moldova from 16 to 20 October 2000, the Council of Europe's Commissioner for Human Rights asked the Transdniestrian authorities for permission to see Mr Ilaşcu in order to check his conditions of detention. Permission was refused on the ground that, for lack of time, it had not been possible to obtain the necessary authorisations. 289. In November 2000, following its visit to Moldova, including the region of Transdniestria, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) produced its report. On the question of the situation in Transdniestria's prisons, the CPT drew attention to severe overcrowding and expressed its concern about the practice of keeping certain prisoners in solitary confinement for long periods and about the inadequate level of treatment for sick prisoners, indeed the total absence of treatment for tuberculosis patients, including the possibility of receiving dietetically appropriate meals. The CPT pointed out that the situation in Transdniestrian penitentiary establishments in 2000 left a great deal to be desired, especially at Hlinaia Prison, where the conditions of detention were deplorable: poor ventilation, insufficient natural light, inadequate sanitary facilities and overcrowding. On the situation of the applicants in particular, the CPT said that three members of the Ilaşcu group had been detained for eight years under conditions of solitary confinement which were having harmful psychological consequences for at least one of them. The CPT went on to say that solitary confinement could, in certain circumstances, amount to inhuman and degrading treatment and that in any event solitary confinement for so many years was indefensible. The CPT asked the Transdniestrian authorities to relax the conditions of detention of the three members of the Ilaşcu group held in solitary confinement by allowing them access to the newspapers of their choice and by ensuring that they could receive visits from their families and lawyers. The doctors in the CPT delegation were able to examine three of the four applicants, including Mr Ilaşcu. They recommended that he be given appropriate medical treatment for his illness. The CPT reported accounts of beatings in May 1999 allegedly inflicted on members of the Ilaşcu group imprisoned in Tiraspol by masked individuals. 290. The relevant provisions of the Minsk Agreement of 8 December 1991 read as follows: “We, the Republic of Belarus, the Russian Federation (RSFSR) and Ukraine, as founder States of the Union of Soviet Socialist Republics and signatories of the Union Treaty of 1922, hereinafter referred to as the 'High Contracting Parties', hereby declare that the USSR as a subject of international law and a geopolitical reality no longer exists. On the basis of the historical commonality of our peoples and the ties that have developed between them, and bearing in mind the bilateral agreements concluded between the High Contracting Parties, Desirous of setting up lawfully constituted democratic States, Intending to develop our relations on the basis of mutual recognition of and respect for State sovereignty, the inalienable right to self-determination, the principles of equality and non-intervention in internal affairs, of abstention from the use of force and from economic or other means of applying pressure and of settling controversial issues through agreement and other universally recognised principles and norms of international law, ... Confirming our adherence to the purposes and principles of the Charter of the United Nations, the Helsinki Final Act and the other documents of the Conference on Security and Cooperation in Europe, Undertaking to abide by the universally recognised international norms relating to human and peoples' rights, We have agreed as follows: The High Contracting Parties hereby establish the Commonwealth of Independent States. ... 1. The member States of the Commonwealth will cooperate in safeguarding international peace and security and implementing effective measures for the reduction of armaments and military expenditures. ... 2. The Parties will respect each other's efforts to achieve the status of a nuclear-free zone and a neutral State. 3. The member States of the Commonwealth will maintain, and retain under joint command, a common military and strategic space, including joint control over nuclear weapons, the procedure for implementing which will be regulated by a special agreement. 4. They also jointly guarantee the necessary conditions for the deployment and functioning and the material and social security of the strategic armed forces. ... The High Contracting Parties undertake to discharge the international obligations incumbent on them under treaties and agreements entered into by the former USSR.” 291. On 24 December 1991 the USSR's Permanent Representative to the United Nations, Ambassador Y. Vorontsov, communicated to the Secretary-General of the United Nations a letter from the President of the Russian Federation, Boris Yeltsin, worded as follows: “The USSR's membership of the United Nations, including the Security Council and all the other organs and organisations of the United Nations system, is continued by the Russian Federation (RSFSR) with the support of the countries of the Commonwealth of Independent States. In that connection, I request that the name “Russian Federation” be used at the United Nations in place of the “Union of Soviet Socialist Republics”. The Russian Federation assumes full responsibility for all the USSR's rights and obligations under the United Nations Charter, including financial undertakings. Please consider this letter confirmation of the right of all persons currently holding the status of USSR representatives to the United Nations to represent the Russian Federation in the organs of the United Nations.” 292. On 21 July 1992 the President of Moldova, Mr Mircea Snegur, and the President of the Russian Federation, Mr Boris Yeltsin, signed in Moscow an agreement concerning principles for a friendly resolution of the armed conflict in the Transdniestrian region of the Republic of Moldova, which provided: “The Republic of Moldova and the Russian Federation, Desiring to bring about as rapidly as possible a final ceasefire and settlement of the armed conflict in the Transdniestrian regions; Endorsing the principles enshrined in the Charter of the United Nations and those of the Conference for Security and Cooperation in Europe; Noting that, on 3 July 1992, the President of the Republic of Moldova and the President of the Russian Federation reached agreement on principles, Have agreed as follows: 1. The parties to the conflict undertake, on signature of the present agreement, to take all necessary steps to implement the ceasefire, and a cessation of any other armed action against the other party. 2. As soon as the ceasefire has taken effect the parties will withdraw their armies, weapons and military equipment within seven days. Withdrawal of the two armies will permit the establishment of a security zone between the parties to the conflict. The exact boundaries of the security zone will be determined in a special protocol agreed between the parties on implementation of the present agreement. 1. A specially created commission, composed of representatives of the three parties to the settlement of the conflict, will have responsibility for verifying implementation of the measures provided for in Article 1 above and ensure that a security regime is enforced within the security zone. To that end, the commission will have recourse to the groups of military observers brought in under previous agreements, including quadripartite agreements. The control commission will complete its work within seven days of signature of the present agreement. 2. Each party will appoint its representatives to the commission. The control commission will sit in Bender. 3. With a view to implementing the measures mentioned above, the control commission will take under its orders the military contingents of volunteers representing the parties participating in the implementation of the present agreement. The positions to be occupied by these contingents and their interventions to maintain the ceasefire and ensure security in the conflict in the region will be determined by the control commission, which must reach a consensus in this regard. The size of the military contingents, their status and the conditions for their intervention in and withdrawal from the security zone will be laid down in a separate protocol. 4. In the event of breaches of the provisions of the present agreement, the control commission will carry out inquiries and take without delay the necessary steps to re-establish peace and order, and appropriate measures to prevent future breaches. As the seat of the control commission, and in view of the seriousness of the situation, Bender is hereby declared a region subject to a security regime, enforcement of security being the task of the military contingents of the parties to implementation of the present agreement. The control commission will ensure the maintenance of public order in Bender, acting together with the police. Bender will be administered by the organs of local self-government, where necessary acting together with the control commission. The Russian Federation's 14th Army, stationed in the territory of the Republic of Moldova, will observe strict neutrality. Both parties to the conflict undertake to observe neutrality and not to engage in any action against the 14th Army's property, its personnel or their families. All questions relating to the 14th Army's status or the stages and timetable for its withdrawal will be settled by negotiations between the Russian Federation and the Republic of Moldova. 1. The parties to the conflict consider sanctions or blockades of any kind unacceptable. Accordingly, all obstacles to the free movement of goods, services and persons shall be removed, and all necessary measures will be taken to put an end to the state of emergency in the territory of the Republic of Moldova. 2. The parties to the conflict will enter without delay into negotiations to solve problems relating to the return of refugees to their homes, aid to the population of the conflict-stricken region and reconstruction of housing and public buildings. The Russian Federation will lend its full support to that end. 3. The parties to the conflict will take all necessary steps to ensure the free movement of humanitarian aid intended for the conflict-stricken region. A common press centre will be created with the task of providing the control commission with correct information about developments in the situation in the region. The parties consider that the measures provided for in the present agreement form a very important part of the settlement of the conflict by political means. The present agreement will come into force on the day of its signature. The present agreement shall cease to have effect by a joint decision of the parties or in the event of denunciation by one of the parties, which will entail cessation of the activities of the control commission and the military contingents under its orders.” 293. On 8 April 1994 the Moldovan parliament ratified the Alma-Ata Agreement of 21 December 1991 by which Moldova had joined the CIS, with the following reservations: “... 2. Article 6, with the exception of paragraphs 3 and 4 ... The Parliament of the Republic of Moldova considers that within the CIS the Republic of Moldova will make economic cooperation its priority, excluding cooperation in the political and military sphere, which it considers incompatible with the principles of sovereignty and independence.” 294. The relevant provisions of the Moldovan Constitution of 29 July 1994 provide: “1. The Republic of Moldova proclaims its permanent neutrality. 2. The Republic of Moldova shall not authorise the stationing in its territory of troops belonging to other States.” “1. A form of autonomy under special conditions may be granted to areas on the left bank of the Dniester and in the south of the Republic of Moldova by virtue of a special status authorised by means of an institutional act ...” 295. The relevant provisions of the Moldovan Criminal Code provide: “False imprisonment shall be punished by imprisonment for up to one year. False imprisonment which has endangered the life or health of the victim or caused him or her physical suffering shall be punished by imprisonment for one to five years.” “Usurpation of the powers or title corresponding to an official office, if perpetrated in order to further the commission of an offence, shall be punished by a fine of up to thirty times the minimum monthly salary or up to two years' labour or up to two years' imprisonment.” 296. On 21 October 1994 Moldova and the Russian Federation signed an “Agreement concerning the legal status of the military formations of the Russian Federation temporarily present in the territory of the Republic of Moldova and the arrangements and time-limits for their withdrawal”, whose main provisions are worded as follows: “The Republic of Moldova and the Russian Federation, hereinafter referred to as 'the Parties', with the participation of the region of Transdniestria, Having regard to the new political relations established in Europe and throughout the world; Confirming that the Republic of Moldova and the Russian Federation are sovereign and independent States; Convinced that they must ground their relations on principles of friendship, mutual understanding and cooperation; Proceeding from agreements the Parties have already reached in the military sphere; Acting in accordance with the documents adopted at the Conference for Security and Cooperation in Europe, Have agreed as follows: ... The status of the military formations of the Russian Federation in the territory of the Republic of Moldova is determined by the present Agreement. The stationing of military formations of the Russian Federation within the territory of the Republic of Moldova is an interim measure. Subject to technical constraints and the time required to station troops elsewhere, the Russian side will effect the withdrawal of the above-mentioned military formations within three years from the entry into force of the present Agreement. The practical steps taken with a view to withdrawal of the military formations of the Russian Federation from Moldovan territory within the time stated will be synchronised with the political settlement of the Transdniestrian conflict and the establishment of a special status for the Transdniestrian region of the Republic of Moldova. The stages and timetable for the final withdrawal of the military formations of the Russian Federation will be laid down in a separate protocol, to be agreed between the Parties' Ministries of Defence. ... For as long as Russian military formations remain in the territory of the Republic of Moldova, no recourse may be had to them with a view to the solution of an internal conflict within the Republic of Moldova, or for other military actions against third countries. The sale of any type of military technology, armaments and ammunition belonging to the military formations of the Russian Federation in the territory of the Republic of Moldova may take place only after a special agreement between the governments of the two countries. Movements and military investigations by the military formations of the Russian Federation in the territory of the Republic of Moldova outside their bases will take place in accordance with a plan drawn up by agreement with the relevant organs of the Republic of Moldova. It is the responsibility of military formations to ensure, both inside their bases and during movements outside, that military objects and property are guarded in the manner prescribed within the Russian army. Tiraspol military airport will be used as the joint base of the aviation of the military formations of the Russian Federation and the civil aviation of the Transdniestrian region of the Republic of Moldova. Movement of military aircraft inside the airspace of the Republic of Moldova is to take place on the basis of a special agreement concluded between the Parties' Ministries of the Interior. ... Accommodation and barracks, service buildings, vehicle parks, firing ranges and fixed machine tools, stores and the tools they contain, buildings and other premises left unoccupied as a result of the withdrawal of the military formations of the Russian Federation will be transferred for management to the organs of the local public administrative authorities of the Republic of Moldova in the quantity existing de facto and in the condition they are in. The manner of the transfer or sale of the immovable property of the military formations of the Russian Federation will be determined in a special agreement to be concluded between the governments of the Parties. ... With a view to ensuring the withdrawal of the military formations of the Russian Federation from the territory of the Republic of Moldova within the time stated, and their effective operation in their bases within the territory of the Russian Federation, the premises needed for the installation of the military formations will be moved. The amount of money to be paid, the list of premises to be reconstructed and the place where they are to be installed will be determined in a special agreement. ... The present Agreement will come into force on the day of the last notification by the Parties concerning implementation of the necessary internal procedures, and will remain in force until the total withdrawal of Russian military formations from the territory of the Republic of Moldova. The present Agreement will be registered with the United Nations Organisation in accordance with Article 102 of the United Nations Charter.” 297. On 21 October 1994 an agreement was reached in Moscow between the Ministries of Defence of the Republic of Moldova and the Russian Federation on flights by the aviation of Russian military units temporarily located in the territory of the Republic of Moldova; this provided for use of Tiraspol airport by transport planes of the armed forces of the Russian Federation. The relevant parts of that agreement provide: “Tiraspol military airport will be used by the military units of the Russian Federation until their definitive withdrawal from the territory of the Republic of Moldova. Movement and joint flights at Tiraspol airport by the civil aviation of the region of Transdniestria belonging to the Republic of Moldova and Russian aircraft will take place in accordance with the 'Provisional rules on the joint dispersed aviation of the military formations of the Russian Federation and the civil aviation of the region of Transdniestria of the Republic of Moldova', and in coordination with the State civil aviation authority of the Republic of Moldova, the Ministry of Defence of the Republic of Moldova and the Ministry of Defence of the Russian Federation. Other aircraft may take off from Tiraspol airport only after coordination with the State aviation authorities of the Republic of Moldova and the Ministry of Defence of the Russian Federation.” “The postal aircraft belonging to the Russian units may take off from Tiraspol airport twice a week at most (on Tuesdays and Thursdays, or on other days of the week after prior coordination between the Parties).” Requests by the aviation of the armed forces of the Russian Federation to carry out flying tuition, training flights and flyovers are to be presented before 3 p.m. (local time) through the air traffic coordination bodies (control centres). Confirmation of such requests and the authorisations needed for use of the Republic of Moldova's airspace will be issued by the anti-aircraft defence and aviation control centre of the Armed Forces of the Republic of Moldova. The decision concerning the use of the Republic of Moldova's airspace, in accordance with the flight request, in the areas where the Russian units are temporarily stationed will be taken by the Chief of General Staff of the Armed Forces of the Republic of Moldova.” “Monitoring of the implementation of the present agreement will be carried out by the representatives of the Ministries of Defence of the Republic of Moldova and the Russian Federation, in accordance with the special rules drawn up jointly by them.” “The present agreement will come into force on the date of its signature and will remain valid until the definitive withdrawal of the military units of the Russian Federation from the territory of the Republic of Moldova. The present agreement may be amended with the mutual consent of the Parties.” 298. The instrument of ratification of the Convention deposited by the Republic of Moldova with the Council of Europe on 12 September 1997 contains a number of declarations and reservations, the relevant part being worded as follows: “1. The Republic of Moldova declares that it will be unable to guarantee compliance with the provisions of the Convention in respect of omissions and acts committed by the organs of the self-proclaimed Trans-Dniester republic within the territory actually controlled by such organs, until the conflict in the region is finally settled. ...” 299. On 20 March 1998 the representative of the Russian Federation, Mr V. Chernomyrdin, and the representative of the “MRT”, Mr I. Smirnov, signed in Odessa (Ukraine) an agreement on questions relating to military property, worded as follows: “At the close of negotiations on questions relating to military property linked to the presence of the Russian forces in Transdniestria, agreement has been reached on the following points: 1. All the property concerned is divided into three categories: (a) the first category includes the standard-issue weapons of the United Group of Russian forces, its ammunition and its property; (b) the second includes weapons, ammunition and surplus movable military property which must imperatively be returned to Russia; (c) the third includes weapons, ammunition and military and other equipment which can be sold (decommissioned) directly on the spot or outside the places where they are stored. Revenue from the sale of property in the third category will be divided between the parties in the following proportions: Russian Federation: 50% Transdniestria: 50%, after deducting the expenses arising from the sale of military property in the third category. Conditions for the use and transfer of property in the third category shall be laid down by Russia with the participation of Transdniestria. 2. The parties have agreed to pay their debts to each other in full on 20 March 1998 by offsetting them against the income from the sale of military property or from other sources. 3. Russia will continue to withdraw from Transdniestria the military property essential to the requirements of the Russian armed forces as defined in the annex to the present agreement. The Transdniestrian authorities will not oppose the removal of this property. 4. In agreement with Transdniestria, Russia will continue to destroy the unusable and untransportable ammunition near to the village of Kolbasna with due regard for safety requirements, including ecological safety. 5. To ensure the rapid transfer of the immovable property, the representatives of the Russian Federation and Transdniestria have agreed that the premises vacated by the Russian forces may be handed over to the local authorities in Transdniestria in accordance with an official deed indicating their real value. 6. It is again emphasised that the gradual withdrawal of Russian armed forces stationed in Transdniestria and the removal of their property will be effected transparently. Transparent implementation of the withdrawal measures can be ensured on a bilateral basis in accordance with the agreements signed between Moldavia and Russia. The essential information on the presence of the Russian forces in Transdniestria will be transmitted in accordance with the current practice to the OSCE, through the OSCE mission in Chişinău.”

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CASE OF JOHNSTON AND OTHERS v. IRELAND

Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 8 and 12;No violation of Art. 14+8;Violation of Art. 8 regarding the legal situation of the third applicant under Irish law;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

C. Russo;Gaukur Jörundsson;J.A. Carrillo Salcedo

10. The first applicant is Roy H.W. Johnston, who was born in 1930 and is a scientific research and development manager. He resides at Rathmines, Dublin, with the second applicant, Janice Williams-Johnston, who was born in 1938; she is a school-teacher by profession and used to work as director of a play-group in Dublin, but has been unemployed since 1985. The third applicant is their daughter, Nessa Doreen Williams-Johnston, who was born in 1978. 11. The first applicant married a Miss M in 1952 in a Church of Ireland ceremony. Three children were born of this marriage, in 1956, 1959 and 1965. In 1965, it became clear to both parties that the marriage had irretrievably broken down and they decided to live separately at different levels in the family house. Several years later both of them, with the other’s knowledge and consent, formed relationships and began to live with third parties. By mutual agreement, the two couples resided in self-contained flats in the house until 1976, when Roy Johnston’s wife moved elsewhere. In 1978, the second applicant, with whom Roy Johnston had been living since 1971, gave birth to Nessa. He consented to his name being included in the Register of Births as the father (see paragraph 26 below). 12. Under the Constitution of Ireland (see paragraphs 16-17 below), the first applicant is unable to obtain, in Ireland, a dissolution of his marriage to enable him to marry the second applicant. He has taken the following steps to regularise his relationship with her and with his wife and to make proper provision for his dependents. (a) With his wife’s consent, he has consulted solicitors in Dublin and in London as to the possibility of obtaining a dissolution of the marriage outside Ireland. His London solicitors advised that, in the absence of residence within the jurisdiction of the English courts, he would not be able to do so in England, and the matter has therefore not been pursued (see also paragraphs 19-21 below). (b) On 19 September 1982, he concluded a formal separation agreement with his wife, recording an agreement implemented some years earlier. She received a lump-sum of IR£8,800 and provision was made for maintenance of the remaining dependent child of the marriage. The parties also mutually renounced their succession rights over each other’s estates. (c) He has made a will leaving his house to the second applicant for life with remainder over to his four children as tenants in common, one half of the residue of his estate to the second applicant, and the other half to his four children in equal shares. (d) He has supported the third applicant throughout her life and has acted in all respects as a caring father. (e) He contributed towards the maintenance of his wife until the conclusion of the aforementioned separation agreement and has supported the three children of his marriage during their dependency. (f) The second applicant has been nominated as beneficiary under the pension scheme attached to his employment. (g) He has taken out health insurance in the names of the second and third applicants, as members of his family. 13. The second applicant, who is largely dependent on the first applicant for her support and maintenance, is concerned at the lack of security provided by her present legal status, in particular the absence of any legal right to be maintained by him and of any potential rights of succession in the event of intestacy (see also paragraph 23 below). As is permitted by law, she has adopted the first applicant’s surname, which she uses amongst friends and neighbours, but for business purposes continues to use the name Williams. According to her, she has felt inhibited about telling employers of her domestic circumstances and although she would like to become an Irish citizen by naturalisation, she has been reluctant to make an application, not wishing to put those circumstances in issue. 14. The third applicant has, under Irish law, the legal situation of an illegitimate child and her parents are concerned at the lack of any means by which she can, even with their consent, be recognised as their child with full rights of support and succession in relation to them (see paragraphs 30-32 below). They are also concerned about the possibility of a stigma attaching to her by virtue of her legal situation, especially when she is attending school. 15. The first and second applicants state that although they have not practised any formal religion for some time, they have recently joined the Religious Society of Friends (the Quakers) in Dublin. This decision was influenced in part by their concern that the third applicant receives a Christian upbringing. 16. The Constitution of Ireland, which came into force in 1937, includes the following provisions: "40.3.1o The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 40.3.2o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. 41.1.1o The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. 41.1.2o The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State. (...) 41.3.1o The State pledges itself to guard with special care the institution of Marriage, on which the family is founded, and to protect it against attack. 41.3.2o No law shall be enacted providing for the grant of a dissolution of marriage. (...) 42.1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. (...) 42.5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child." 17. As a result of Article 41.3.2o of the Constitution, divorce in the sense of dissolution of a marriage (divorce a vinculo matrimonii) is not available in Ireland. However, spouses may be relieved of the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation (also known as a divorce a mensa et thoro); such a decree, which is obtainable only on proof of commission of adultery, cruelty or unnatural offences, does not dissolve the marriage. In the remainder of the present judgment, the word "divorce" denotes a divorce a vinculo matrimonii. It is also possible to obtain on various grounds a decree of nullity, that is a declaration by the High Court that a marriage was invalid and therefore null and void ab initio. A marriage may also be "annulled" by an ecclesiastical tribunal, but this does not affect the civil status of the parties. 18. The Irish courts have consistently held that the "Family" that is afforded protection by Article 41 of the Constitution is the family based on marriage. Thus, in The State (Nicolaou) v. An Bord Uchtála The Adoption Board 1966 Irish Reports 567, the Supreme Court said: "It is quite clear from the provisions of Article 41, and in particular section 3 thereof, that the family referred to in this Article is the family which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the law for the time being in force in the State. While it is quite true that unmarried persons cohabiting together and the children of their union may often be referred to as a family and have many, if not all, of the outward appearances of a family, and may indeed for the purposes of a particular law be regarded as such, nevertheless as far as Article 41 is concerned the guarantees therein contained are confined to families based upon marriage." The Supreme Court has, however, held that an illegitimate child has unenumerated natural rights (as distinct from rights conferred by law) which will be protected under Article 40.3 of the Constitution, such as the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being, as well as the same natural rights under the Constitution as a legitimate child to "religious and moral, intellectual, physical and social education" (G v. An Bord Uchtála 1980 Irish Reports 32). 19. Article 41.3.3o of the Constitution provides: "No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage dissolved." 20. A series of judicial decisions has established that the foregoing provision does not prevent the recognition by Irish courts, under the general Irish rules of private international law, of certain decrees of divorce obtained, even by Irish nationals, in another State. Such recognition used to be granted only if the parties to the marriage were domiciled within the jurisdiction of the foreign court at the time of the relevant proceedings (Re Caffin Deceased: Bank of Ireland v. Caffin 1971 Irish Reports 123; Gaffney v. Gaffney 1975 Irish Reports 133; however, since 2 October 1986 a divorce will be recognised if granted in the country where either spouse is domiciled (Domicile and Recognition of Foreign Divorces Act 1986). To be regarded as domiciled in a foreign State, a person must not only be resident there but also have the intention of remaining there permanently and have lost the animus revertendi. Moreover, the foreign divorce will not be recognised if domicile has been fraudulently invoked before the foreign court for the purpose of obtaining the decree. 21. If notice is served for a civil marriage before a Registrar of Births, Marriages and Deaths in Ireland and he is aware that either of the parties has been divorced abroad, he must, under the regulations in force, refer the matter to the Registrar-General. The latter will seek legal advice as to whether on the facts of the case the divorce would be recognised as effective to dissolve the marriage under Irish law and as to whether the intended marriage can consequently be permitted. 22. Persons who, like the first and second applicants, are living together in a stable relationship after the breakdown of the marriage of one of them are unable, during the lifetime of the other party to that marriage, to marry each other in Ireland and are not recognised there as a family for the purposes of Article 41 of the Constitution (see paragraphs 17 and 18 above). 23. Such persons, unlike a married couple, have no legal duty to support or maintain one another and no mutual statutory rights of succession. However, there is no impediment under Irish law preventing them from living together and supporting each other and, in particular, from making wills or dispositions inter vivos in each other’s favour. They can also enter into mutual maintenance agreements, although the Government and the applicants expressed different views as to whether these might be unenforceable as contrary to public policy. In general, the married member of the couple remains, at least in theory, under a continuing legal obligation to maintain his or her spouse. In addition, testamentary dispositions by that member may be subject to the rights of his or her spouse or legitimate children under the Succession Act 1965. 24. As compared with married couples, persons in the situation of the first and second applicants: (a) have no access, in the event of difficulties arising between them, to the system of barring orders instituted to provide remedies in respect of violence within the family (Family Law (Maintenance of Spouses and Children) Act 1976, as amended by the Family Law (Protection of Spouses and Children) Act 1981); they can, however, obtain analogous relief by seeking a court injunction or declaration; (b) do not enjoy any of the rights conferred by the Family Home Protection Act 1976 in relation to the family home and its contents, notably the prohibition on sale by one spouse without the other’s consent and the exemption from stamp duty and Land Registry fees in the event of transfer of title between them; (c) as regards transfers of property between them, are less favourably treated for the purposes of capital acquisition tax; (d) enjoy different rights under the social welfare code, notably the benefits available to deserted wives; (e) are unable jointly to adopt a child (see also paragraph 29 below). 25. In Irish law, the principle mater semper certa est applies: the maternal affiliation of an illegitimate child, such as the third applicant, is established by the fact of birth, without any requirement of voluntary or judicial recognition. The Illegitimate Children (Affiliation Orders) Act 1930, as amended by the Family Law (Maintenance of Spouses and Children) Act 1976 and the Courts Act 1983, provides procedures whereby the District Court or the Circuit Court may make an "affiliation order" against the putative father of a child directing him to make periodic payments in respect of the latter’s maintenance and also whereby the court may approve a lump-sum maintenance agreement between a person who admits he is the father of an illegitimate child and the latter’s mother. Neither of these procedures establishes the child’s paternal affiliation for all purposes, any finding of parentage being effective solely for the purposes of the proceedings in question and binding only on the parties. 26. Under the Registration of Births and Deaths (Ireland) Act 1863, as amended by the Births and Deaths Registration (Ireland) Act 1880, the Registrar may enter in the register the name of a person as the father of an illegitimate child if he is so requested jointly by that person and the mother. The act of registration does not, however, establish paternal affiliation. 27. The mother of an illegitimate child is his sole guardian as from the moment of his birth (section 6(4) of the Guardianship of Infants Act 1964) and has the same rights of guardianship as are jointly enjoyed by the parents of a legitimate child. The natural father can apply to the court under section 11(4) of the same Act regarding the child’s custody and the right of access thereto by either parent; however, he cannot seek the court’s directions on other matters affecting the child’s welfare nor is there any means whereby he can be established as guardian of the child jointly with the mother, even if she consents. 28. An illegitimate child may be legitimated by the subsequent marriage of his parents, provided that, unlike the first and second applicants, they could have been lawfully married to one another at the time of the child’s birth or at some time during the preceding ten months (section 1(1) and (2) of the Legitimacy Act 1931). 29. Under the Adoption Act 1952, as amended, an adoption order can only be made in favour of a married couple living together, a widow, a widower, or the mother or natural father or a relative of the child. 30. The effect of the Illegitimate Children (Affiliation Orders) Act 1930, as amended by the Family Law (Maintenance of Spouses and Children) Act 1976, is to impose on each of the parents of an illegitimate child an equal obligation to maintain him. This obligation cannot be enforced against the father until an "affiliation order" has been made against him (see paragraph 25 above). 31. The devolution of estates on intestacy is governed by the Succession Act 1965 which provides, basically, that the estate is to be distributed in specified proportions between any spouse or "issue" who may survive the deceased. In O’B v. S 1984 Irish Reports 316, the Supreme Court held that the word "issue" did not include children who were not the issue of a lawful marriage and that accordingly an illegitimate child had, under the Act, no right to inheritance on the intestacy of his natural father. Whilst also holding that the resultant discrimination in favour of legitimate children was justifiable by reason of sections 1 and 3 of Article 41 of the Constitution (see paragraph 16 above), the Supreme Court stated that the decision to change the existing rules of intestate succession and the extent to which they were to be changed were primarily matters for the legislature. The relevant rules in the Act formed part of a statute designed to strengthen the protection of the family in accordance with Article 41, an Article which created not merely a State interest but a State obligation to safeguard the family; accordingly, the said discrimination was not necessarily unjust, unreasonable or arbitrary and the said rules were not invalid having regard to the provisions of the Constitution. An illegitimate child may, on the other hand, in certain circumstances have a right to inheritance on the intestacy of his mother. A special rule (section 9(1) of the Legitimacy Act 1931) lays down that where the mother of an illegitimate child dies intestate leaving no legitimate issue, the child is entitled to take any interest in his mother’s estate to which he would have been entitled if he had been born legitimate. 32. As regards testate succession, section 117 of the Succession Act 1965 empowers a court to make provision for a child for whom it considers that the testator has failed in his moral duty to make proper provision. An illegitimate child has no claim against his father’s estate under this section, but may be able to claim against his mother’s estate provided that she leaves no legitimate issue. 33. An illegitimate child inheriting property from his parents is potentially liable to pay capital acquisition tax on a basis less favourable than a child born in wedlock. 34. In 1983, a Joint Committee of the Dáil (Chamber of Deputies) and the Seanad (Senate) was established, inter alia, to examine the problems which follow the breakdown of marriage. In its report of 1985, it referred to figures suggesting that approximately 6 per cent of marriages in Ireland had broken down to date, but noted the absence of accurate statistics. The Committee considered that the parties to stable relationships formed after marriage breakdown and the children of such relationships currently lacked adequate legal status and protection; however, it expressed no view on whether divorce legislation was at present necessary or desirable. In a national referendum held on 26 June 1986, a majority voted against an amendment of the Constitution, which would have permitted legislation providing for divorce. 35. In September 1982, the Irish Law Reform Commission published a Report on Illegitimacy. Its basic recommendation was that legislation should remove the concept of illegitimacy from the law and equalise the rights of children born outside marriage with those of children born within marriage. After considering the report, the Government announced in October 1983 that they had decided that the law should be reformed, and that reform should be concentrated on the elimination of discrimination against persons born outside marriage and on the rights and obligations of their fathers. However, the Government decided not to accept a proposal by the Law Reform Commission that the father be given automatic rights of guardianship in relation to a child so born. 36. In May 1985, the Minister of Justice laid before both Houses of Parliament a Memorandum entitled "The Status of Children", indicating the scope and nature of the main changes proposed by the Government. On 9 May 1986, the Status of Children Bill 1986, a draft of which had been annexed to the aforesaid Memorandum, was introduced into the Seanad. If enacted in its present form, the Bill - which has the stated purpose of removing as far as possible provisions in existing law which discriminate against children born outside marriage - would have, inter alia, the following effects. (a) Where the name of a person was entered on the register of births as the father of a child born outside marriage, he would be presumed to be the father unless the contrary was shown (cf. paragraph 26 above). (b) The father of a child born outside marriage would be able to seek a court order making him guardian of the child jointly with the mother (cf. paragraph 27 above). In that event, they would jointly have all the parental rights and responsibilities that are enjoyed and borne by married parents. (c) The proviso qualifying the possibility of legitimation by subsequent marriage would be removed by the repeal of section 1(2) of the Legitimacy Act 1931 (see paragraph 28 above). (d) The legal provisions governing the obligation of both of the parents of a child born outside marriage to maintain him would be similar to those governing the corresponding obligation of married parents (see paragraph 30 above). (e) For succession purposes, no distinction would be made between persons based on whether or not their parents were married to each other. Thus, a child born outside marriage would be entitled to share on the intestacy of either parent and would have the same rights in relation to the estate of a parent who died leaving a will as would a child of a family based on marriage (cf. paragraphs 31 and 32 above). The Explanatory Memorandum to the Bill states that any fiscal changes necessitated by the proposed new measures would be a matter for separate legislation promoted by the Minister for Finance. 37. Work is also in progress on legislation reforming the law of adoption, following the publication in July 1984 of the Report of the Review Committee on Adoption Services. That Committee recommended that, as at present (see paragraph 29 above), unmarried couples should not be eligible to adopt jointly even their own natural children.

dev

001-109153

ENG

TUR

ADMISSIBILITY

PAPAIOANNOU AND OTHERS v. TURKEY

Inadmissible

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä

The eight applicants are a family. The first applicant, Christina Papaioannou, is the mother of the other seven applicants, Ioannis Papaioannou, Demetris Papaioannou, Eftihia Hadjinicolaou (née Papaioannou), Neophytos Papaioannou, Stavros Papaioannou, Panayiotis Papaioannou and Andreas Papaioannou. They are all Cypriot nationals of Greek-Cypriot origin born in 1929, 1949, 1951, 1952, 1957, 1962 and 1966 respectively. Applicants nos. 1, 2, 3, 6 and 7 are living in Deryneia and applicants nos. 4, 5 and 8 are living in Nicosia. They are represented before the Court by Mr A. Demetriades and Ms E.Nathanael, lawyers practising in Nicosia. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants are owners and/or part owners of seven plots of land and three houses all situated in the area of Famagusta. Five of the plots of land were used for agricultural purposes and according to the applicants the produce from these plots was the main source of their family income. The three houses were situated on the remaining two plots of land. One of the houses was rented out whilst the other two were the homes of the applicants. In July 1974, the applicants were forced to abandon their homes and property in Famagusta. They have not had access and/ or use of them ever since.

dev

001-79156

ENG

SVN

CHAMBER

CASE OF ŠUBINSKI v. SLOVENIA

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award

David Thór Björgvinsson;John Hedigan

5. The applicant was born in 1971 and lives in Mirna. 6. The application concerns two sets of criminal proceedings. In both sets of proceedings, the hearings were closed to the public for the purpose, among others, of protecting the rights of the alleged victims and – as regards some of the hearings – the private life of the applicant. 7. On 13 March 1998 an official police report (uradni zaznamek) was prepared concerning the applicant's attitude towards children he had taught in a primary school. It contained a statement given by one of the school teachers which had been obtained in accordance with section 148/2 of the Criminal Procedure Act (Zakon o kazenskem postopku – see paragraph 44 below). The teacher stated that she had not noticed anything strange in the applicant's attitude towards children. She also described an incident where the parents of a boy who the applicant had allegedly abused had come to the school to complain about the applicant's conduct and stated that the applicant had resigned following this incident. 8. On 31 August 1998 the Murska Sobota District Public Prosecutor (Okrožno državno tožilstvo v Murski Soboti) lodged a request for a criminal investigation on the basis of reasonable suspicion that the applicant had committed two criminal offences of sexual assault on a minor under the age of 15 (spolni napad na osebo, mlajšo od petnajst let). The request was based on findings from the preliminary proceedings. 9. On 4 May 1999, after questioning the applicant, the investigating judge of the Murska Sobota District Court (Okrožno sodišče v Murski Soboti) decided to open a criminal investigation, and that decision became final on 12 May 1999. 10. An examination of witnesses scheduled for 25 May 1999 was adjourned at the applicant's request. On 3 June 1999, 9 December 1999 and 21 December 1999 the investigating judge examined several witnesses, mostly for the prosecution. On 4 and 18 April 2000 the court examined several defence witnesses. On 21 April 2000 the applicant proposed a re-examination of certain witnesses. The investigating judge, disagreeing with the proposal, requested the interlocutory-proceedings chamber of three judges (zunaj obravnavni senat) at the Murska Sobota District Court to decide on the issue. On 9 June 2000 the chamber dismissed the proposal. 11. On 29 June 2000 the applicant was indicted for the criminal offence of sexual abuse of a minor. The indictment became final on 17 August 2000. 12. On 30 January 2003 the Murska Sobota District Court held a hearing. The applicant's lawyer requested that the alleged victim, who was a minor, be examined as a witness. The minor was consequently examined by the investigating judge on 13 March 2003. 13. The next hearing was held on 8 April 2003. After the hearing, the Murska Sobota District Court convicted the applicant and sentenced him to two years' imprisonment. The written judgment was issued on 11 April 2003. 14. The applicant appealed on 22 May 2003. On 24 March 2004 the Maribor Higher Court (Višje sodišče v Mariboru) dismissed the appeal. Consequently, the first-instance court's judgment became final on 24 March 2004. 15. On 13 July 2004 the applicant lodged a request for the protection of legality (zahteva za varstvo zakonitosti). On 11 November 2004 the Supreme Court (Vrhovno sodišče) rejected the request. 16. On 31 January 2005 the applicant lodged a constitutional appeal. The proceedings are pending before the Constitutional Court. 17. On 14 April 2003 the applicant was arrested by the police. On 16 April 2003 he was brought before the investigating judge at the Murska Sobota District Court on suspicion of having committed another criminal offence. On the same day the investigating judge remanded him in custody. 18. On 17 April 2003 the public prosecutor applied for a criminal investigation. 19. On 18 April 2003 the applicant appealed against his detention. On the same day the interlocutory-proceedings chamber dismissed the appeal as unfounded. 20. On 24 April 2003 the investigating judge examined the applicant and opened a criminal investigation against him. 21. On 12 May 2003 the detention was prolonged for two months by the interlocutory-proceedings chamber. An appeal by the applicant against the prolongation was dismissed by the Maribor Higher Court on 19 May 2003. 22. On 15 May and 6 June 2003 the investigating judge examined witnesses. On 19 May 2003 the investigating judge appointed two medical experts. The experts submitted their opinions on 26 May and 23 June 2003 respectively. 23. On 9 July 2003 the public prosecutor indicted the applicant for the criminal offences of sexual assault on a minor and of presenting and manufacturing pornographic material concerning minors (prikazovanje in izdelava pornografskega gradiva z zlorabo mladoletne osebe). 24. On 10 July 2003 the applicant's detention was prolonged by a decision of the interlocutory-proceedings chamber. An appeal of 14 July 2003 was dismissed on 16 July 2003 and a request for the protection of legality, lodged on 25 July 2003, was rejected by the Supreme Court on 21 August 2003. It appears that the applicant's detention was subsequently prolonged every two months, the last time on 11 November 2004 (see paragraph 38 below). The applicant's appeals against the prolongation of his detention were dismissed by the second-instance court. 25. On 21 July 2003 the applicant appealed against the indictment. The interlocutory-proceedings chamber dismissed the appeal on 23 July 2003. 26. On 23 September 2003 the court held a hearing. 27. The hearing scheduled for 21 October 2003 was cancelled because the applicant requested the withdrawal of the public prosecutor, all members of the chamber (senat) and the president of the Murska Sobota District Court. The requests were dismissed by the president of the Murska Sobota District Public Prosecutor's Office and the president of the Maribor Higher Court on 23 October 2003 and 5 November 2003 respectively. 28. The hearing scheduled for 4 December 2003 was also cancelled since the applicant requested the withdrawal of the president of the chamber and the president of the court. On 12 December 2003 the requests were dismissed by the president of the Maribor Higher Court. 29. The hearing scheduled for 20 January 2004 was cancelled at the request of the applicant's lawyer owing to her commitments in another – unrelated – case. 30. The hearing scheduled for 5 February 2004 was cancelled owing to a new request for withdrawal based essentially on the same reasons as the previous one. The request was rejected on 17 February 2004. 31. The next hearing was scheduled for 16 March 2004. Before the hearing, the court dismissed a new request for the withdrawal of judges, finding that it was a delaying tactic. As more than three months had elapsed since the last hearing, the court had to conduct the trial ab initio with, in particular, a fresh examination of the applicant and the reading of testimony. The applicant requested that the witnesses and experts be examined again. 32. Before the hearing on 1 April 2004, the applicant again filed a request for the withdrawal of judges, but it was rejected. The applicant requested that the alleged victim be examined again. On 12 April 2004 the alleged victim was examined by the investigating judge. 33. On 22 April 2004, before the scheduled hearing, at around 8 a.m., the applicant injured his finger while opening the window of his cell. At 8.30 a.m. the officers took him to the court intending to ask the judge whether he should be taken to see a doctor immediately or at the end of the hearing. At the court, the applicant requested that jurisdiction in the case be transferred to another court and the hearing was consequently adjourned. Subsequently, on the same day at about 9.30 a.m., the officers offered to take the applicant to see a doctor but he refused to go. At the applicant's subsequent request, made at 1.30 p.m., he was taken to see the doctor at 2 p.m. According to the letter sent by the prison authorities to the Murska Sobota Police, the doctor did not consider the injury to be serious. 34. On 19 May 2004 the Maribor Higher Court dismissed the request for transfer of jurisdiction. On 3 June 2004 the applicant lodged a request for the protection of legality against that decision. The case file was thus sent to the Supreme Court and the first-instance court cancelled the scheduled hearings. On 24 June 2004 the Supreme Court rejected the request. 35. On 23 August 2004 the president of the chamber himself requested to stand down from the proceedings. He expressed doubts as to his ability to conduct the proceedings properly owing to the conduct of the applicant and his lawyer. On 26 August 2004 the case was referred to a new judge. 36. On 14 September 2004 a hearing was held. Before the hearing, the court dismissed the request for the withdrawal of judges and the transfer of jurisdiction, noting that the applicant had abused his procedural rights. On 13 October 2004 a hearing was held at which several witnesses and experts were heard. On 27 October 2004 another hearing was held and the following hearing was scheduled for 11 November 2004. 37. On 10 November 2004 the applicant was taken to the hospital where it was discovered that he had swallowed ten coins. However, the court refused to cancel the scheduled hearing. 38. After the hearing held on 11 November 2004 the court delivered a judgment finding the applicant guilty and sentenced him to twelve years' imprisonment, inclusive of the sentence imposed in the previous set of proceedings (see paragraphs 7-16 above). The written judgment was issued on 29 November 2004. 39. On 14 December 2004 the public prosecutor lodged an appeal. On 16 December 2004 the applicant appealed and on 17 December 2004 the applicant's lawyer appealed. On 17 March 2005 the Maribor Higher Court increased the sentence to fourteen years' imprisonment. The judgment became final on that day. 40. On 8 July 2005 the applicant lodged a request for the protection of legality with the Supreme Court. On 20 April 2006 the court rejected the request. 41. On 16 June 2006 the applicant lodged a constitutional appeal. The proceedings are pending before the Constitutional Court. 42. In Slovenia, criminal proceedings before district courts (okrožna sodišča) are divided into three stages – preliminary proceedings (predkazenski or predhodni postopek), conducted by the police and the public prosecutor; a criminal investigation (preiskava), conducted by the investigating judge of a District Court; and the trial (glavna obravnava), held before a mixed chamber (senat) of professional and lay judges. 43. A trial is preceded by a formal indictment, which normally follows a criminal investigation (preiskava). Prior to that, however, are the preliminary proceedings in which the police prepare a criminal complaint (ovadba) and the public prosecutor then lodges a request for a criminal investigation (zahteva za preiskavo). 44. Section 148 of the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94, “the CPA”) reads, as far as relevant: “(1) If there are reasons to suspect that a criminal offence liable to mandatory prosecution has been committed, the police shall take the necessary steps to pursue the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or abscond, discovering and securing traces of the offence or objects of value as evidence, and collecting all information that may be useful for the successful conduct of criminal proceedings. (2) In order to fulfil the above duty the police may seek information from citizens, inspect vehicles, passengers and luggage, restrict movement within a specific area for a limited period of time, carry out what is necessary to identify persons and objects; send out a wanted notice concerning persons and objects; inspect in the presence of the responsible person any facilities, premises and documentation of enterprises or other legal entities, and take other necessary measures. The findings of facts and circumstances relevant to the criminal proceedings, as well as the objects found or seized, shall be recorded in writing or an official report shall be prepared in that connection. (3) Police may summon individuals but must inform them of the reasons. They may forcibly bring an individual who has failed to appear after being summoned, if he has been alerted to that possibility in the summons. In taking measures under this section, police may not examine citizens as defendants, witnesses or experts. ... (6) On the basis of the information collected the police shall draw up a criminal complaint in which it shall set out the evidence discovered in the process of gathering information... .” 45. In principle, the request for an investigation is based on the information gathered by the police in the preliminary proceedings (see paragraph 44 above). However, prior to the opening of an investigation, the investigating judge can, if necessary, take individual investigative measures (section 166 of the CPA). 46. The request for an investigation must include, inter alia, a description of the alleged acts and their legal characterization, the identification of the suspect and the evidence substantiating a reasonable suspicion (utemeljeni sum) that the suspect has committed the alleged acts. The public prosecutor can also propose that a suspect be detained on remand. The relevant provisions of section 168 of the CPA provide: “(3) The request for investigation shall specify: the person against whom an investigation is requested, the description of the acts constituting a criminal offence, the statutory designation of the criminal offence, the circumstances establishing the reasonable suspicion, and evidence already collected. The public prosecutor shall indicate in the request which particular circumstances should be explored in the investigation and which particular measures should be taken, and may propose that the person against whom investigation is requested be detained. (4) The public prosecutor shall send to the investigating judge the report and all documents and records of the measures taken. At the same time, he shall send to the investigating judge any items to be adduced as evidence or shall notify him of their whereabouts. (5) If the public prosecutor withdraws a request for an investigation before the decision on investigation is rendered, the investigating judge shall decide that the request is dismissed and inform the aggrieved party that he or she may take over the prosecution (sections 60 and 62).” 47. There is no provision in the CPA requiring the applicant to be notified at this stage. A copy of the request for an investigation is normally sent to the applicant later, together with a summons to appear before the investigating judge (section 169/4 of the CPA). 48. The public prosecutor's request for an investigation requires a decision by the investigating judge. The investigating judge may comply with the request and open a criminal investigation or, if he does not agree with it, refer it to the interlocutory-proceedings chamber of three judges (zunaj obravnavni senat) for them to decide. Appeals may be lodged against the decision dismissing or upholding the request (section 169 of the CPA). 49. After the closure of the criminal investigation the public prosecutor prefers a formal indictment or otherwise drops the charges (sections 184 and 268 of the CPA). 50. As regards the guarantee of the right to a trial within a reasonable time, the CPA, as far as relevant, provides (sections 15, 185 and 286 respectively): “The court shall use its best endeavours to ensure that the proceedings are conducted without unnecessary delay and that any abuse of the rights of participants in the proceedings is prevented. (1) If the criminal investigation is not completed within six months, the investigating judge shall inform the president of the court of the reasons. (2) The president of the court shall take the necessary measures to complete the investigation. (3) The presiding judge shall schedule the main hearing within a maximum period of two months after an indictment has been referred... Should he fail to schedule the main hearing within the said period, he shall inform the president of the court of the reasons for not doing so. The president of the court shall take the necessary measures to schedule the main hearing.”

dev

001-113750

ENG

BGR

CHAMBER

CASE OF ZHELYAZKOV v. BULGARIA

Remainder inadmissible;Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

6. At about 3 p.m. on 30 December 2003 the applicant and his father went to the District Prosecutor’s Office in Tsarevo to obtain a copy of a document. The clerk refused to give it to them. A quarrel ensued. A prosecutor came in and ordered the applicant to leave the premises. A brawl ensued. The police, who had been called in, drew up a procès-verbal saying that, by insulting the prosecutor and trying to hit him, the applicant had committed an offence under the 1963 Decree on Combating Minor Hooliganism (“the 1963 Decree” – see paragraphs 1011 below). The applicant refused to sign the procès-verbal, saying that he would present his objections before a court. 7. About half an hour later the police made an order for the applicant’s detention under section 70(1)(8) of the Ministry of Internal Affairs Act 1997, then in force. The order said that the applicant was being detained for committing an offence under the 1963 Decree. 8. At 10 a.m. on 31 December 2003 the applicant was brought before the Tsarevo District Court. He was assisted by two counsel. The court heard the applicant, two witnesses, and the applicant’s counsel. In a decision of the same day it found the applicant guilty of an offence under Article 1 § 2 of the Decree for insulting and trying to hit the prosecutor, and sentenced him to fifteen days’ detention in the premises of the Ministry of Internal Affairs. The court went on to order, by reference to Article 8 § 2 of the Decree (see paragraph 12 below), that during his detention the applicant was to carry out socially useful work adapted to his health, age and professional skills; he was to take part in public works on the territory of the Tsarevo Municipality. The decision was final and immediately enforceable. 9. The applicant was released at 11 a.m. on 14 January 2004. It is unclear what work exactly was carried out by him during his detention. 10. Decree No. 904 of 28 December 1963 on Combating Minor Hooliganism was passed by the then existing Presidium of the National Assembly under a simplified legislative procedure, as possible under Article 35 § 5 and Article 36 of the then in force 1947 Constitution. It was published in the State Gazette on 31 December 1963, as required under section 37(1) of the Normative Acts Act 1973, as worded at that time. The Supreme Administrative Court has on a number of occasions said that the Decree has the same force as an Act of Parliament (опр. № 9959 от 7 ноември 2003 г. по адм. д. № 9327/2003 г., ВАС, I о.; опр. № 10286 от 10 декември 2004 г. по адм. д. № 9761/2004 г., ВАС, петчленен св; опр. № 14673 от 3 декември 2009 г. по адм. д. № 15200/2009 г., ВАС, I о.; опр. № 12764 от 1 ноември 2010 г. по адм. д. № 13284/2010 г., ВАС, I о.). 11. Article 1 § 2 of the Decree defines minor hooliganism as an indecent act consisting of uttering swearwords, insults or other offensive words in a public place and in front of many people, in an offensive attitude towards other citizens or public officials, or in a quarrel, fight or suchlike that breach the peace but due to their lower degree of dangerousness do not amount to the criminal offence of hooliganism. Such acts, if perpetrated by persons older than sixteen, carry a penalty of up to fifteen days’ detention in the premises of the Ministry of Internal Affairs or a fine (Article 1 § 1). 12. Under Article 8 § 2 of the Decree, the penalty of detention in the premises of the Ministry of Internal Affairs must be accompanied by work determined in accordance with the detainee’s health, age and abilities. That work is not remunerated. 13. Cases under the Decree fall under the jurisdiction of the district courts (Articles 3 and 4). Until May 2011 Article 7 provided that the court’s decision was not subject to appeal. On 4 May 2011 (реш. № 3 от 4 май 2011 г. по к. д. № 19 от 2010 г., обн., ДВ, бр. 38 от 17 май 2011 г.) the Constitutional Court declared that rule unconstitutional. As a result, in November 2011 Article 7 was amended and now provides, in paragraph 2, that the district court’s decision to impose an administrative penalty may be appealed on points of law before the regional court within twenty-four hours. The case must be listed for hearing before the regional court not more than three days after the district court’s decision (paragraph 1, as amended), and the regional court must rule, by means of a final decision, on the day it receives the appeal (paragraph 3, as amended). In the explanatory notes to the amendment bill the Government referred to, inter alia, the need to bring the Decree into line with the Convention and this Court’s caselaw. 14. Under section 25 of the Execution of Punishments Act 1969, persons serving a custodial sentence following their conviction of a criminal offence were entitled to receive at least thirty per cent of the remuneration due for their work. 15. Section 78(1) of the Execution of Punishments and PreTrial Detention Act 2009, which superseded the 1969 Act in June 2009, provides that persons serving a custodial sentence following their conviction of a criminal offence are entitled to receive at least thirty per cent of the remuneration due for all work carried out by them except voluntary unpaid work and regular shifts to maintain order and hygiene. 16. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by those rules in legislation and policies. 17. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted on 12 February 1987. 18. Rule 76.1 provides that “[t]here shall be a system of equitable remuneration of the work of prisoners”. 19. The commentary in the Explanatory memorandum to the Rules says: “This rule recognises the importance and value of an adequate and equitable payment system in the context of treatment regimes. No provision to encourage the development of wages systems towards levels that apply for similar work in the community has been made in the rule itself as that would have been premature at this stage. However, a great deal of progress has been made in that respect in a number of countries and that is to be encouraged. ...” 20. On 11 January 2006 the Committee of Ministers adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”. 21. Rule 26.10 provides that “[i]n all instances there shall be equitable remuneration of the work of prisoners”. 22. The commentary on the 2006 Rules (drawn up by the European Committee on Crime Problems) says that the level of remuneration of prisoners should be guided by the principle of mirroring conditions for workers on the outside, and that ideally all prisoners should be paid wages that are related to those in society as a whole.

dev

001-83269

ENG

RUS

CHAMBER

CASE OF BAGEL v. RUSSIA

Violation of Art. 3;No violation of Art. 3

Loukis Loucaides

5. The applicant was born in 1951 and lives in Barnaul. 6. On 12 October and 15 December 1999 and on 4 February 2000 the applicant was charged with unlawful business activities, tax evasion and fraud, respectively. Three criminal cases against the applicant were initiated. 7. On 4 February 2000 the applicant was remanded in custody. 8. On 9 August 2000 the three criminal cases against the applicant were joined. 9. From 10 December 1999 to 15 March 2001 the prosecutor's office of the Tsentralnyy District of Barnaul extended the preliminary investigation seven times in view of the complexity of the case. 10. On 29 June 2001 the bill of indictment against the applicant was issued. 11. On 17 September 2001 the case was transmitted to the Tsentralniy District Court of Barnaul. 12. On 6 March 2003 the Tsentralniy District Court of Barnaul convicted the applicant as charged and sentenced him to four years' imprisonment. 13. On 15 May 2003 the Altayskiy Regional Court commuted the term of imprisonment to three years and ten months and upheld the remainder of the judgment. 14. The applicant was released on 23 May 2003. 15. Following his arrest on 4 February 2000 the applicant was detained in a temporary detention centre in Barnaul (Изолятор временного содержания г. Барнаула). Thereafter, the applicant was transferred to the pre-trial detention centre no. IZ-17/1. In the course of the preliminary investigation the applicant was returned to the temporary detention centre several times in order to participate in investigative measures. The applicant submitted, and the Government did not dispute, that he had spent seventy-nine days in total in the temporary detention centre. The parties did not specify the dates when the transfers to the temporary detention centre had taken place. 16. It is clear that from 4 to 20 February 2000 the applicant was held in the temporary detention centre in a cell measuring 20 sq. m. The applicant submitted that he shared the cell with thirty inmates, that there had been no beds in the cell and that the inmates had to sleep on the floor. 17. According to the Government, the exact number of detainees per cell could not be established because the registers had since been destroyed. The Government also submitted that the applicant's cell had been equipped with beds. 18. From 21 February 2000 to 23 May 2003 the applicant was held in the pre-trial detention centre no. IZ-17/1 in Barnaul. 19. The parties submitted the following information concerning the cells where the applicant had been held. 20. Relying on a certificate issued on 18 November 2005 by the pre-trial detention centre governor, the Government submitted that the applicant had been held in cell no. 208 from 21 February 2000 to 17 March 2000 and from 23 March 2000 to 15 June 2000. The cell measured 24.5 sq. m; was equipped with six beds and accommodated up to seven inmates. According to the certificate, at that time the pre-trial detention centre, which is designed to accommodate 1,135 persons, housed 2,600 to 2,790 inmates. 21. The applicant submitted that the cell measured 12 sq. m and had been severely overcrowded. 22. The Government submitted that from 15 June 2000 to 25 July 2000 the applicant had been held in cell no. 205. The cell measured 32.1 sq. m; it was equipped with eight beds and accommodated up to nine inmates. According to the same certificate, at the material time the detention centre housed 2,600 to 2,750 inmates. 23. The applicant submitted that the cell measured 16 sq. m and had been severely overcrowded. 24. The Government submitted that from 25 July 2000 to 25 March 2001 the applicant had been held in cell no. 221. The cell measured 24.1 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,900 to 2,320 inmates. 25. The applicant submitted that the cell measured 11 sq. m and had been overcrowded. 26. The Government submitted that from 25 March 2001 to 11 April 2001 the applicant had been held in cell no. 194. The cell measured 24.1 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,900 to 1,980 inmates. 27. The applicant submitted that the cell measured 10 sq. m and had been overcrowded. 28. The Government submitted that from 11 April 2001 to 14 March 2003 the applicant had been held in cell no. 192. The cell measured 24.8 sq. m; it was equipped with six beds and accommodated up to six inmates. According to the same certificate, at the material time the detention centre housed 1,470 to 1,980 inmates. 29. The applicant disagreed with the Government, claiming that during the two years of his stay in cell no. 192 it had accommodated up to twelve inmates. As a result, inmates had to take turns to sleep or slept on the concrete floor. He submitted written statements by four of his former cellmates, according to which cell no. 192 measured 11 sq. m and had been severely overcrowded. 30. The Government submitted that from 14 April 2003 to 20 May 2003 the applicant had been held in cell no. 128. The cell measured 120.2 sq. m; it was equipped with thirty beds and accommodated up to twenty-seven inmates. According to the same certificate, at the material time the detention centre housed 1,400 to 1,470 inmates. 31. The applicant submitted that the cell measured 100 sq. m. He did not comment on the number of inmates in the cell. 32. Relying on the certificate issued on 18 November 2005 by the detention centre governor, the Government submitted that the conditions in all of the cells had been satisfactory. In particular, the cells had been equipped with a lavatory pan separated from the living area and the cell windows had not been covered with metal shutters. The certificate did not describe the state of the cells during the period of the applicant's detention from 21 February 2000 to 23 May 2003. 33. The Government submitted that the applicant had been allowed one-hour daily walks in the courtyard. 34. The applicant submitted that a lavatory pan had not been separated from the living area and offered no privacy; it had been located within 0.5 or 1 metre from the dining table. The cell windows were covered with metal shutters and let no air through. There was no ventilation in the cells. 35. The applicant pointed out that the sanitary conditions in cell no. 128 had been satisfactory. 36. From 17 to 23 March 2000 the applicant was held in solitary cell no. 3 on suspicion of having the HIV virus. The applicant submitted that the cell had been a punishment cell, located in the basement with no access to daylight or fresh air. He also submitted that he had not been given food for the first three days of his stay in that cell because he had not been provided with any cutlery or tableware by the detention centre administration. According to the certificate of 18 November 2005 issued by the detention centre governor and submitted by the Government, cell no. 3 was a solitary confinement cell rather than a punishment cell. The Government also submitted documents showing that the cell had a window and that the applicant had been provided in good time with cutlery, tableware and other necessary items. 37. The applicant submitted that during the period of his detention his spine had hurt but he had been refused medical assistance. The Government provided the Court with the applicant's medical file, according to which the applicant had received treatment for spinal osteochondrosis at the detention centre's medical unit. 38. The applicant was transported from the pre-trial detention centre to the courthouse on 145 occasions, the last time on 15 May 2003. He offered the following description of the days of transport. 39. On the days of the hearings he had been woken up at 5 a.m. At about 6 a.m. he had been taken from his cell to the so-called “assembly” cell, together with other detainees who had a hearing on that day. 40. The applicant had not normally arrived back at the prison until 7.30 p.m. and had been held in the “assembly” cell until 10 or 11 p.m. During the day he had received no food or outdoor exercise and had often missed the weekly shower. 41. The Government submitted that on the days of transport the applicant had been woken at 6 a.m. and taken to the court in the prison van. He would normally come back to the prison no later than 8 p.m. According to the certificate of 18 November 2005 issued by the detention centre governor, on the days of transport the applicant had been fed in the morning and had been given a packed meal in accordance with the order of the Ministry of Justice of 4 February 2004. 42. The applicant pointed out that the detention centre administration had started to give packed meals to detainees after 4 February 2004 when the respective order was adopted by the Ministry of Justice, whereas he had been released on 23 May 2003. 43. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government. Section 23 provides that detainees should be held in conditions which meet sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware, cutlery and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 44. Annex 3 to the Order of the Ministry of Justice of 4 May 2001 no. 136 (as amended on 4 February 2004) set detailed daily standards for free food, including packed meals, which were given to detainees at the material time.

dev

001-97402

ENG

POL

CHAMBER

CASE OF PINKOWSKI v. POLAND

No violation of P1-3

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

5. The applicant, Mr Mariusz Pińkowski, is a Polish national who was born in 1970 and lives in Częstochowa. 6. On 9 March 2000 the Częstochowa Regional Prosecutor (Prokurator Okręgowy) charged the applicant with being an accomplice to an armed robbery and murder in France. 7. On the same date the Częstochowa District Court (Sąd Rejonowy) remanded the applicant in custody. The court justified its decision by the strong evidence against the applicant, the likelihood of a severe sentence of imprisonment being imposed on him if convicted and the risk that he might obstruct the proceedings. 8. On an unspecified date the applicant was charged with being an accomplice to an armed robbery, murder, false imprisonment and being a member of an organised criminal gang (no. II K 55/01). All the offences in question were alleged to have taken place in France. 9. Subsequently, on 25 May 2001 the applicant was charged with being an accomplice to an armed robbery and with the imprisonment, torture and murder of a certain A.T., and with being a member of an organised criminal gang in France. 10. On 18 June 2001 the bill of indictment was lodged with the Częstochowa Regional Court. 11. The applicant's pre-trial detention was extended by the decision of the Katowice Court of Appeal (Sąd Apelacyjny) of 28 August 2000 (upheld by the Supreme Court (Sąd Najwyższy) on 2 October 2000) and the decisions of the Katowice Regional Court of 14 February, 28 June and 29 November 2001 (upheld by the Katowice Court of Appeal on 14 March, 22 August and 20 December 2001, respectively). 12. The courts referred to the original grounds for the applicant's detention and, additionally, to the international dimension of the case. 13. Meanwhile, on 1 March 2002 the Nowy Sącz Regional Court convicted the applicant as charged and sentenced him to twenty-five years' imprisonment. The reports obtained from Polish and French forensic experts in the course of the proceedings were contradictory as regards the cause of the victim's death. However, relying on the witness testimony and other evidence, the court established that the victim had died not as a result of asphyxia (when the applicant, acting together with accomplices, strangled him with a wire and put tape around his face) as claimed by some experts but as a result of being shot by the applicant in a forest where the applicant had possibly buried him with the aid of the gang. 14. On 3 October 2002 the Kraków Court of Appeal quashed the above judgment and remitted the case to the prosecution for further investigation, with a view to eliminating the major discrepancies in the evidence obtained. 15. On 21 November 2003 the Częstochowa Regional Prosecutor issued a new decision charging the applicant with, among other offences, attempting to kill A.T. by strangling him and then hiding the body. The supplementary investigation revealed that the victim had died as a result of numerous wounds inflicted on him. In addition, the applicant was found to have incited and led the other accomplices, acting on orders from a certain R.S. All the offences in question were alleged to have taken place in France. 16. Meanwhile, the preventive measure was upheld by decisions of the Kraków Court of Appeal of 21 February, 21 August, 3 October and 31 December 2002, and 26 March, 24 September and 16 December 2003. 17. Subsequently the applicant's pre-trial detention was extended by the trial court, the Nowy Sącz Regional Court, in its decisions of 29 June and 15 November 2004 and of 29 March and 19 August 2005 (upheld by the Kraków Court of Appeal on 22 July and 9 December 2004 and on 4 May and 14 September 2005, respectively). 18. The courts reiterated the original grounds for the applicant's pre-trial detention. In addition, although they acknowledged the fact that the investigation had been lengthy, the domestic courts considered it justified in the light of the international character of the case and the fact that certain witnesses had to be examined with the aid of the French authorities. 19. On an unspecified date in early-2004 a new bill of indictment was lodged by the prosecutor (no. II K 8/04) and the case was sent to the Nowy Sącz Regional Court. 20. From 17 May 2004 until 18 November 2005 the trial court held thirteen hearings. The court examined a French witness and obtained a forensic report from a French expert. The case file comprised twenty-three volumes in Polish and twenty-nine volumes in French. 21. On 18 November 2005 the Nowy Sącz Regional Court convicted the applicant as charged and sentenced him to fifteen years' imprisonment. That term was reduced by the period which the applicant had already spent in pre-trial detention, from 11 March 2000 until 27 March 2001 and from 14 January 2003 until 18 November 2005. 22. On 8 March 2006 the Kraków Court of Appeal acquitted the applicant of inciting and commanding the other accomplices and upheld the remainder of the first-instance judgment. 23. On 15 February 2007 the Supreme Court dismissed the cassation appeals lodged by the defence lawyers. 24. In parallel to his pre-trial detention which is the subject of the instant application, the applicant served two separate prison sentences. Between 22 April and 31 July 2002 the applicant was serving a sentence of 100 days imposed on him by a judgment of the Częstochowa District Court of an unspecified date (no. III K 1554/98). On 31 July 2002 he started serving a sentence of twelve years' imprisonment, which was imposed on him by a judgment of the Nowy Sącz Regional Court of an unspecified date (no. II K 14/06). 25. During his pre-trial detention, the applicant was first held in the Nowy Sącz Prison and later in Częstochowa Remand Centre. 26. On 14 November 2001 the Penitentiary Commission of Nowy Sącz Prison (Komisja Penitencjarna) classified him as a “dangerous detainee” (“N”). That decision was based on the information about the applicant obtained from the trial court, namely that he had been suspected of a cruel crime committed while acting in an organised criminal gang. 27. On 8 May 2003 that decision was lifted by the Penitentiary Commission of Częstochowa Remand Centre. 28. The applicant did not submit any details about the conditions of his detention under the “N” regime. 29. It appears that on 19 December 2007 the applicant was released on parole. 30. The applicant did not complain about the length of the proceedings under the Act 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”). 31. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are summarised in several judgments concerning similar cases (see, among others, Kauczor v. Poland, no. 45219/06, §§25-27, 3 February 2009; Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006; Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006). 32. The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings, in particular the applicable provisions of the above-mentioned 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

dev

001-60492

ENG

GBR

CHAMBER

CASE OF WILLIAM FAULKNER v. THE UNITED KINGDOM

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

Nicolas Bratza

6. The applicant, who was born in 1947, was released from detention in February 1999. Prior to that he was detained at HMP Magilligan, County Derry, Northern Ireland, on temporary transfer from a Scottish prison while serving a seven year sentence for a drug offence. 7. On 1 July 1996 a sealed letter sent by him to the Scottish Minister of State was returned to him by the prison authorities. Following the Court’s admissibility decision, the Government informed the Court that the Prison Service was unable to explain why the letter had not been sent, since there was nothing untoward in its content. 8. The relevant domestic legislation is the Prison and Young Offenders Centre Rules (Northern Ireland) 1995 (“the Rules”), which came into effect on 1 March 1995. 9. Rule 67(1) allows the Secretary of State to impose restrictions on communications between a prisoner and others, either generally or in a particular case, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons. Under Rule 67(4), except as provided by the Rules, every letter or communication to or from a prisoner may be read or examined by the Governor who may, at his discretion, stop any such letter on the grounds that it is not permitted under paragraph (1) or that it may undermine the prison’s security.

dev

001-75593

ENG

HRV

CHAMBER

CASE OF BUJ v. CROATIA

Violation of Art. 6-1 (length of land registry proceedings);Violation of Art. 13;No separate issue under P1-1;Remainder inadmissible (length of inheritance proceedings);Non-pecuniary damage - financial award

Christos Rozakis

4. The applicant was born in 1938 and lives in Jelsa. 5. The applicant’s mother died on 1 May 1994 and inheritance proceedings were opened before the Stari Grad Municipal Court (Općinski sud u Starom Gradu). 6. On 8 June 1999 the court issued a decision distributing the property between the applicant and his brother. The relevant part of that decision reads: ... the land registry division of this court shall register the ownership of the heirs [listed above], once [that part of the decision] becomes final... 7. Subsequently, the applicant’s brother lodged an appeal against that decision complaining about the ruling on the costs of the proceedings. 8. On 12 April 2002 the Split County Court (Županijski sud u Splitu) declared the appeal inadmissible. The decision was served on the applicant’s representative on 22 May 2002. 9. It would appear that the applicant’s ownership of the inherited property has to date not been recorded in the land register.

dev

001-96278

ENG

SVK

ADMISSIBILITY

HORNAK v. SLOVAKIA

Inadmissible

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

The applicant, Mr Juraj Horňák, is a Slovak national who was born in 1959 and lives in Bratislava. He was represented before the Court by Ms E. Kliniecová, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 April 2000 the applicant challenged several decisions taken by the general meeting of a limited liability company on 23 March 2000. The members of the chamber of the Žilina Regional Court to whom the case fell to be examined requested to be excluded. They explained that they had a negative opinion of the applicant in view of his inappropriate behaviour in other sets of proceedings. On 27 June 2000 the Supreme Court refused to exclude those judges. On 27 October 2000 the Regional Court discontinued the proceedings as the applicant had not paid court fees within the time-limit set. On 8 December 2000 it quashed that decision as the applicant had subsequently paid the fees. On 5 February 2001 the Regional Court dismissed the applicant’s action. On 9 April 2002 the Supreme Court quashed the first-instance judgment and remitted the case to the Regional Court. In the later period the file was transferred to the Supreme Court several times in order to decide on (i) the applicant’s requests to exclude the judges from dealing with the case and to transfer the case to another court, and (ii) the judges’ requests to be excluded from the examination of the case, inter alia on the ground that they and the applicant were involved in litigation. On 9 September 2004 the Regional Court found in the applicant’s favour. The judgment was served on him on 11 February 2005. On 15 March 2005 the defendant appealed. On 13 April 2005 the Constitutional Court found that the Regional Court had not violated the applicant’s right to a hearing within a reasonable time. The case was not complex, but the applicant by his conduct had significantly contributed to the length of the proceedings in that (i) he had not paid the court fees on time, (ii) he had repeatedly challenged judges and had requested that the case be transferred to a different court and (iii) he had not appeared before the Regional Court on 5 February 2001. As to the conduct of the Regional Court, there was a single delay between 18 December 2002 and 23 May 2003. Otherwise the Regional Court had proceeded with the case in an appropriate manner. The file was transferred to the Supreme Court on 27 April 2005. On 27 July 2006 the Supreme Court found against the applicant. The judgment became final on 20 September 2006. On 29 December 2000 the applicant filed an action with the Žilina Regional Court. He challenged the validity of decisions which the general meeting of a limited liability company had taken on 8 December 2000. On 4 January 2001 the President of the Regional Court asked the Supreme Court to exclude three Regional Court judges from examination of the case. She argued that the judges were biased because the applicant, who had been a party to numerous sets of proceedings before the same Regional Court (for example the proceedings mentioned under the point A above), had behaved in an arrogant manner towards the judges in those proceedings. She also stated that the applicant had lodged an action for protection of his integrity against those judges. On 4 February 2002 the Supreme Court exempted the judges from examination of the case. Subsequently the newly appointed judges also requested, on three occasions, to be excluded from examination of the case. The Supreme Court examined the requests for the total period of approximately two months and did not exempt the judges from dealing with the case. On 19 May 2003 the Regional Court asked the applicant to pay the court fees within ten days. As he had failed to do so, the proceedings were discontinued on 26 January 2004. After the decision to discontinue the proceedings had been served on the applicant, he paid the fees. On 18 August 2004 the Constitutional Court found that the Regional Court had not violated the applicant’s right to a hearing within a reasonable time. The Constitutional Court noted that the applicant had been obliged to pay the fees at the time of filing his action. He had done so after the Regional Court had decided to discontinue the proceedings. It concluded that the applicant was not genuinely interested in having the point in issue determined in the proceedings complained of and that his complaint about delays in those proceedings was therefore devoid of substance. On 29 October 2004 the Regional Court quashed its decision of 26 January 2004 noting that the applicant had paid the court fees. The Regional Court found against the applicant on 20 April 2006. In the absence of an appeal, the judgment became final on 3 January 2007.

dev

001-100406

ENG

ROU

ADMISSIBILITY

BOICESCU AND OTHERS v. ROMANIA

Inadmissible

Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants, Ms Marie-Jeanne Boicescu, Mr Vlad Boicescu and Mr Şerban Ion Boicescu are Romanian nationals who were born in 1937, 1945 and 1953, respectively, in Craiova and live in Bucharest. They were represented before the Court by Mr Dan Mihai, a lawyer practising in Bucharest. On unspecified dates the applicants filed two administrative applications with the Dolj County Commission for the Implementation of Law No. 112 of 1995 (the Commission) seeking the restitution in natura of the immovable property located at no. 82 Unirii St. in Craiova and nationalised by the State on the basis of the provisions of Law-Decree No. 92 of 1950. By two decisions of 20 March and 8 May 1997 the Commission rejected the applicants' claim seeking the restitution in natura of the immovable property, on the ground that it was occupied by tenants, and acknowledged their right to compensation under the procedure provided for by Law No. 112 of 1995. On 29 July 1997 the applicants brought an action against the Commission seeking the recovery of possession of the claimed immovable property. On 8 January 1998 the Commission valued the immovable property to be worth 412,041,096 lei (ROL), capped the amount in accordance with Article 13 § 2 of Law No. 112 of 1995 and awarded the applicants the total sum of ROL 170,458,080 in compensation. By a decision of 28 October 1998 the Craiova District Court rejected the applicants' action seeking the recovery of possession of the claimed immovable property. It held that by pursuing the procedure provided for by Law No. 112 of 1995 the applicants had acknowledged that the immovable property had been nationalised legally by the State. Therefore, they could no longer bring court proceedings seeking the recovery of possession of their property, as the legal bases of the two sets of proceedings were different and irreconcilable. The applicants appealed the decision. By a decision of 20 April 2000 the Dolj County Court allowed the applicants' appeal and quashed the decision of 28 October 1998 on the ground that the claimed immovable property had been nationalised illegally by the State. The court also ordered the restitution in natura of the immovable property to the applicants. The Commission appealed the decision. By a final decision of 10 November 2000 the Craiova Court of Appeal allowed the Commission's appeal (recurs) and upheld the decision of 28 October 1998 on the ground that the administrative decisions acknowledging the lawfulness of the nationalisation had not been contested by the applicants, the said administrative decisions remained final and therefore the applicants could no longer institute proceedings seeking the recovery of possession of the claimed immovable property. In a letter of 12 September 2001 the applicants informed the Court that they refused to collect the compensation awarded to them on the basis of Law No. 112 of 1995 on the ground that the compensation awarded did not reflect the market value of the property. There is no evidence in the file that the applicants filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws (Laws Nos. 10 of 2001, 247 of 2005 and 1 of 2009) seeking restitution in natura or compensation equivalent to the market value of the claimed immovable property. In a letter of 10 February 2010, delivered to the applicants on 15 February 2010, they were asked to inform the Court if they had filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws. The letter remains unanswered to date. a) The relevant domestic legal provisions concerning excerpts from Law Decree No. 92/1950 regulating the nationalisation of immovable property and excerpts from Law No. 112/1995 regulating the legal status of immovable property nationalised for apartment building use are summarised in Constantinescu v. Romania ((dec.), no. 61767/00, 14 September 2004). b) The relevant provisions of Law No. 10/2001 of 14 February 2001 regulating the legal status of immovable property unlawfully nationalised by the State between 6 March 1945 and 22 December 1989, as it was amended by Law No. 247/2005, are summarised in Halmagiu and Belu v. Romania (no. 10012/03, §§ 18-20, 3 June 2008). c) The relevant provisions of Law No. 1/2009 of 30 January 2009 amending Law No. 10/2001 regulating the legal status of immovable property unlawfully nationalised by the State between 6 March 1945 and 22 December 1989, which entered force on 6 February 2009, read as follows: “(1). Individuals who were compensated under the procedure provided for by the provisions of Law No. 112 of 1995, (...), could claim the restitution in natura of the claimed immovable property insofar as the property had not been sold by the time of the entry into force of the law and insofar as they had returned the amount received as compensation, (...). (2). Where the immovable property was sold in compliance with the provisions of Law No. 112 of 1995, (...), the entitled individuals have a right to equivalent compensatory measures which reflect the market value of the immovable property (...). Where the entitled individuals were awarded compensation on the basis of the procedure provided for by Law No. 112 of 1995, (...), they have a right to be awarded the difference in value between the sums they had cashed in and the market value of the immovable property (...).”

dev

001-57922

ENG

CHE

CHAMBER

CASE OF SCHULER-ZGRAGGEN v. SWITZERLAND (ARTICLE 50)

Pecuniary damage - financial award

C. Russo

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of the Swiss Confederation ("the Government") on 25 May and 5 August 1992, 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. 14518/89) against the Swiss Confederation lodged with the Commission under Article 25 (art. 25) by a Swiss national, Mrs Margrit Schuler-Zgraggen, on 29 December 1988. 2. In a judgment of 24 June 1993 ("the principal judgment") the Court found that there had been a breach of Article 14 of the Convention taken together with Article 6 para. 1 (art. 14+6-1), as the assumption that women gave up work when they gave birth to a child had been the sole basis for the reasoning in a judgment of the Federal Insurance Court and had introduced a difference of treatment on the ground of sex only, a difference that lacked any reasonable and objective justification (Series A no. 263, pp. 20-22 and 24, paras. 61-67 and point 5 of the operative provisions). The Court ruled that its judgment constituted in itself sufficient just satisfaction in respect of the alleged non-pecuniary damage and that the respondent State was to pay the applicant, within three months, 7,500 Swiss francs (CHF) in respect of costs and expenses (ibid., pp. 22-24, paras. 69 and 76 and points 6-7 of the operative provisions). 3. As the question of the application of Article 50 (art. 50) was not ready for decision as regards the pecuniary damage, it was reserved in the principal judgment. The Court invited the Government and the applicant to submit their written observations within six months and, in particular, to notify the Court of any agreement they might reach (ibid., pp. 23 and 24, para. 74 and point 8 of the operative provisions). 4. On 7 April 1994 the Agent of the Government informed the President that in a judgment of 24 March 1994 the Federal Insurance Court had concluded the rehearing proceedings commenced under section 139a of the Federal Judicature Act. Its own judgment of 21 June 1988 had been set aside, together with the decision of the Canton of Uri Appeals Board for Old Age, Survivors’ and Invalidity Insurance of 8 May 1987 and the decision of the Invalidity Insurance Board of the Canton of Uri of 21 March 1986; and the applicant had been granted a full invalidity pension with effect from 1 May 1986. 5. On 27 April 1994 counsel for the applicant advised the Registrar that his client did not consider that the proceedings in Switzerland were terminated and that she had submitted to the Department of Finance a claim for compensation in the amount of CHF 40,933.64 based on section 3 of the Act on the liability of the Confederation. 6. On 25 May 1994 the Secretariat of the Commission informed the Registrar that the Delegate wished to leave the question of Article 50 (art. 50) to the Court’s discretion. 7. On 14 September 1994 the applicant’s representative sent the Registrar a copy of the Federal Council’s decision of 12 June 1994 whereby the compensation claim was refused; he asked the Court to consider the possibility of ruling on his client’s claims as an agreement with the Government seemed unlikely. 8. On the President’s instructions, the Registrar consulted the Agent of the Government and the Delegate of the Commission. On 12 October 1994 the Agent said he had nothing to add to the Federal Council’s decision of 12 June 1994. On the following day the Delegate made it known that he was leaving the matter to the Court’s discretion. 9. On 25 October 1994

dev

001-23056

ENG

TUR

ADMISSIBILITY

CAGLAYAN v. TURKEY

Inadmissible

Georg Ress

The applicant, İbrahim Cağlayan, is a Turkish national, who was born in 1952 and lives in Istanbul. He was represented before the Court by Mr Kocak, a lawyer practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. In 1992, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a state body responsible, inter alia, for motorway construction, expropriated a plot of land belonging to the applicant in İstanbul. A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place. On 25 November 1997, following the applicant’s request for increased compensation, the Pendik Civil Court of General Jurisdiction awarded him an additional compensation of 1,479,600,000 Turkish liras (TRL) plus an interest at the statutory rate of 30 % per annum. On 9 March 1998 the Court of Cassation upheld the decision of the firstinstance court. The due amount, which was 2,501,918,000 Turkish liras (TRL) including the interest, was paid to the applicant on 26 May 1998. Under Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts was set at 30% per annum. As of 1 January 1998 the statutory rate of interest was increased to 50%. The statutory rate of interest was set at the compound interest rate, namely 60% as of 1 January 2000. A description of further relevant domestic law may be found in the Aka v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, §§ 17-25; Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV, §§ 13-16.

dev

001-58497

ENG

CHE

GRANDCHAMBER

CASE OF AMANN v. SWITZERLAND

Violation of Art. 8 with regard to interception of telephone call;Violation of Art. 8 with regard to creation and storing of information card;Preliminary objection dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

Elisabeth Palm;Gaukur Jörundsson

7. The applicant, who was born in 1940, is a businessman living in Switzerland. In the early 1980s he imported depilatory appliances into Switzerland which he advertised in magazines. 8. On 12 October 1981 a woman telephoned the applicant from the former Soviet embassy in Berne to order a “Perma Tweez” depilatory appliance. 9. That telephone call was intercepted by the Federal Public Prosecutor’s Office (Bundesanwaltschaft – “the Public Prosecutor’s Office”), which then requested the Intelligence Service of the police of the Canton of Zürich to carry out an investigation into the applicant and the goods he sold. 10. The report drawn up by the police of the Canton of Zürich in December 1981 stated that the applicant, who had been registered in the Commercial Registry since 1973, was in the aerosols business. It stated that “Perma Tweez” was a battery-operated depilatory appliance; a leaflet describing the appliance was appended to the report. 11. On 24 December 1981 the Public Prosecutor’s Office drew up a card on the applicant for its national security card index on the basis of the particulars provided by the police of the Canton of Zürich. 12. In 1990 the public learned of the existence of the card index being kept by the Public Prosecutor’s Office and many people, including the applicant, asked to consult their card. 13. Various laws on accessing and processing the Confederation’s documents were then enacted. 14. On 12 September 1990 the special officer in charge of the Confederation’s national security documents (“the special officer”) sent the applicant, at his request, a photocopy of his card. 15. The applicant’s card, which was numbered (1153 : 0) 614 and on which two passages had been blue-pencilled ..., contained the following information: “from the Zürich Intelligence Service: A. identified as a contact with the Russian embassy according to ... . A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ...” 16. As soon as he received his card, the applicant asked the Ombudsman at the Public Prosecutor’s Office to disclose the blue-pencilled passages. 17. On 9 October 1990 the Ombudsman replied that the censored passage at the end of the card rightly concealed the initials of the federal police officers who had obtained the information on the card. The other censored passage related to a technical surveillance measure ordered against a third party; the Ombudsman stated that he would be recommending that the special officer disclose that information, since – in his view – the applicant’s interest prevailed over the public interest in keeping it secret. 18. On 19 April 1991 the special officer decided, on the basis of Article 5 § 1 of the Order of 5 March 1990 on the Processing of Federal National Security Documents, that the initials at the end of the card could not be disclosed. He also considered that the other censored passage contained counter-intelligence which, pursuant to Article 5 § 3 (a) of the Order, should not be disclosed. On the basis of those considerations, the disclosure of the applicant’s card was extended to one word (“report”): “from the Zürich Intelligence Service: A. identified as a contact with the Russian embassy according to report ... A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ...” 19. On 26 October 1991 the applicant filed a request for compensation with the Federal Department of Finance. His request was refused on 28 January 1992. 20. On 9 March 1992 the applicant filed an administrative-law action with the Federal Court claiming compensation from the Confederation of 5,000 Swiss francs for the unlawful entry of his particulars in the card index kept by the Public Prosecutor’s Office. He also requested that his file and card be sent immediately to the Federal Archives with a prohibition on making any copies and that they be ordered to store the information under lock and key and not disclose any of it without his agreement. 21. On being invited to submit its written observations, the Confederation stated, in its memorial of 26 May 1992, that according to the information provided by the Public Prosecutor’s Office and the special officer the record of the surveillance was no longer in the federal police’s files. It pointed out in that connection that, pursuant to section 66(1 ter) of the Federal Criminal Procedure Act (“FCPA”), documents which were no longer necessary had to be destroyed (“Das Protokoll der technischen Ueberwachung ist gemäss Auskunft der Bundesanwaltschaft und des Sonderbeauftragten ... in den Akten der Bundespolizei nicht mehr vorhanden. In diesem Zusammenhang ist anzumerken, dass nicht mehr benötigte Akten gemäss Art. 66 Abs. 1ter BStP ... vernichtet werden müssen”). 22. The Federal Court held hearings on 27 October 1993 and 14 September 1994. The applicant’s lawyer pointed out that the case number of the card, namely (1153 : 0) 614, was a code meaning “communist country” (1), “Soviet Union” (153), “espionage established” (0) and “various contacts with the Eastern bloc” (614). The Confederation’s representative stated that where someone (jemand) at the former Soviet embassy was under surveillance, on every telephone call both parties to the conversation were identified, a card drawn up on them and a telephone monitoring report (Telefon-Abhör-Bericht) made. In that connection she stated that most of the reports had been destroyed and that those which had not been were now stored in bags; the intention had been to destroy them as well, but when the post of special officer had been instituted everything had had to be maintained “in its present state”. She went on to state that she did not know whether the telephone monitoring report in respect of the applicant had or had not been destroyed. According to information she had received from the special officer, the reports had not been sorted and it would require about five people and one year’s work to examine the contents of all the bags still in existence. 23. In a judgment of 14 September 1994, which was served on 25 January 1995, the Federal Court dismissed all the applicant’s claims. 24. Regarding the issue whether there was a legal basis for the measures complained of, the Federal Court referred first to section 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office. However, it considered it unnecessary to examine whether those provisions could have provided a lawful basis for the alleged infringement of the applicant’s personality rights, since one of the conditions for awarding compensation had not been met. 25. The court then referred to sections 66 et seq., and particularly section 72 FCPA on the monitoring of telephone communications and postal correspondence, and to Articles 265 et seq. of the Criminal Code, which govern “crimes or major offences against the State,” and reiterated that information could lawfully be gathered – even before a prosecution was brought – in order to prevent an offence being committed against the State or national security if there was evidence that such an offence was being prepared. 26. In that connection the Federal Court found: “... a card was drawn up on the plaintiff in connection with the then monitoring of telephone communications with the Soviet embassy for counter-intelligence reasons. As he had contacts with a male or female employee of the Soviet embassy and it was not immediately clear that the ‘Perma Tweez’ appliance which he sold was a harmless depilatory instrument, the authorities acted correctly in investigating his identity, his circumstances and the ‘Perma Tweez’ appliance in question and recording the result.” 27. The Federal Court held, however, that it did not have to rule on whether those provisions, particularly section 66(1 ter) FCPA, allowed the information thus obtained to be kept after it had become apparent that no criminal offence was being prepared (“Fraglich ist, ob die Aufzeichnungen weiter aufbewahrt werden durften, nachdem sich offenbar herausgestellt hatte, dass keine strafbare Handlung vorbereitet wurde”), since the applicant had not suffered a serious infringement of his personality rights. 28 29. Lastly, the Federal Court held that the applicant’s administrative-law action, which he had filed with it on 9 March 1992, was an “effective remedy” within the meaning of Article 13 of the Convention. It also pointed out that the applicant could have instituted proceedings challenging certain data in the Public Prosecutor’s card index and requesting that they be amended. In that connection the Federal Court referred to, inter alia, the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration (section 44), to the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office (Article 7 § 1) and to the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office (Article 11 § 1). 30. In 1996 the applicant’s card was removed from the card index and transferred to the Federal Archives where it cannot be consulted for fifty years. 31. The relevant provisions of the Federal Constitution in force at the material time were worded as follows: “The powers and duties of the Federal Council, as referred to in the present Constitution, are the following, among others: ... 9. It shall ensure that Switzerland’s external security is protected and its independence and neutrality maintained; 10. It shall ensure that the Confederation’s internal security is protected and that peace and order are maintained; ...” 32. The relevant provisions of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office are worded as follows: “The Police Service of the Federal Public Prosecutor’s Office (Federal Police) shall provide an investigation and information service in the interests of the Confederation’s internal and external security. That service shall comprise: 1. The surveillance and prevention of acts liable to endanger the Confederation’s internal or external security (police politique); 2. Police investigations in the prosecution of offences against the internal or external security of the Confederation (police judiciaire).” 33. The relevant provisions of the Federal Criminal Procedure Act in force at the material time were worded as follows: “… 3. The Federal Public Prosecutor’s Office shall be provided with the personnel necessary to enable it to run a uniform investigation and information service in the interests of the Confederation’s internal and external security. The Public Prosecutor’s Office shall, as a general rule, act in concert with the relevant police authorities of the cantons. It shall in each case inform those police authorities of the results of its investigations as soon as the aim of and stage reached in the proceedings make it possible to do so.” “1. The investigating judge may order monitoring of the accused’s or suspect’s postal correspondence and telephone and telegraphic telecommunications if (a) the criminal proceedings concern a crime or major offence whose seriousness or particular nature justifies intervention or a punishable offence committed by means of the telephone; and if (b) specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence; and if (c) without interception, the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results. 1 bis. Where the conditions justifying the monitoring of the accused or suspect are satisfied, third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him ... The telephone connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused. 1 ter. Recordings which are not needed for the conduct of an investigation shall be kept in a separate place, under lock and key, and shall be destroyed at the end of the proceedings.” “1. Within twenty-four hours of his decision, the investigating judge shall submit a copy of it, accompanied by the file and a brief statement of his reasons, for approval by the President of the Indictment Division. 2. The decision shall remain in force for not more than six months; the investigating judge may extend its validity for one or more further periods of six months. The order extending its validity, accompanied by the file and the statement of reasons, must be submitted, not later than ten days before expiry of the time-limit, for approval by the President of the Indictment Division. 3. The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary, or immediately if his decision is rescinded.” “1. The President of the Indictment Division shall scrutinise the decision in the light of the statement of reasons and the file. Where he finds that there has been a breach of federal law, including any abuse of a discretionary power, he shall rescind the decision. 2. He may authorise monitoring provisionally; in that case, he shall lay down a time-limit within which the investigating judge must justify the measure, either by adding any relevant material to the file or orally.” “1. The procedure shall be kept secret even from the person concerned. The President of the Indictment Division shall give brief reasons for his decision and notify the investigating judge thereof within five days of the date when the monitoring began or, where the period of validity has been extended, before the further period begins. 2. The President of the Indictment Division shall ensure that the interception measures are discontinued on expiry of the time-limit.” “1. Before the opening of a preliminary investigation the Principal Public Prosecutor may order interception of postal correspondence and telephone and telegraphic communications and prescribe the use of technical appliances... 2. He may also order those measures in order to prevent the commission of a punishable offence justifying such intervention where particular circumstances give rise to the presumption that such an offence is being prepared. 3. Sections 66 to 66 quater shall be applicable by analogy.” 34. The relevant provisions of the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration are worded as follows: “411. There must be a legal basis for the processing of personal data. 412. Personal data may be processed only for very specific purposes. The data and technique used to process them must be appropriate and necessary to the performance of the task to be carried out. 413. Inaccurate or incomplete data must be rectified having regard to the purpose of the processing. 414. Data which are of no foreseeable further use or which have evidently been processed illegally must be destroyed. The obligation to store them in the Federal Archives is reserved. ...” “431. As regards personal data files the federal offices and other administrative units having the same status must take the necessary measures to ensure that they can supply information on the legal basis and aim of the files, the nature of the processed data and the lawful recipients thereof to anyone requesting the same. 432. On request, they must indicate in a comprehensible manner to anyone who has disclosed his identity whether – and which – data on him from a particular file have been processed. ...” “If it emerges, on a request, that the data on the person making the request are inaccurate or incomplete, or inappropriate to the purpose for which they have been recorded, or that processing is illegal for another reason, the organ in question must rectify or destroy such data immediately, and at the latest when the file is next accessed.” 35. The relevant provisions of the Federal Council’s Order of 5 March 1990 on the Processing of Federal National Security Documents are worded as follows: “1. The present Order shall guarantee that persons in respect of whom the federal police possess documents compiled on grounds of national security can defend their personality rights without hindering the performance of national security tasks. 2. Federal documents compiled on grounds of national security shall be placed in the custody of a special officer...” “1. The special officer shall have custody of all documents belonging to the Police Service of the Federal Public Prosecutor’s Office. 2. He shall then sort the documents and withdraw those which serve no further purpose...” “1. The special officer shall allow applicants to consult their cards by sending them a photocopy thereof. 2. He shall conceal data relating to persons who have processed the cards and to foreign intelligence and security services. 3. Furthermore, he may refuse or restrict the consultation if it (a) reveals details of investigative procedures in progress or of knowledge relating to the fight against terrorism, counter-intelligence or the fight against organised crime; ...” “1. The ombudsman appointed by the Federal Council shall examine, at the request of the person concerned, whether the present Order has been complied with. …” “1. Anyone claiming that his request to consult his card has not been dealt with in accordance with the present Order may contact the ombudsman within thirty days. 2. If the ombudsman considers that the Order has been complied with, he shall inform the applicant accordingly. The applicant may lodge an appeal with the Federal Council within thirty days of receiving the ombudsman’s decision. 3. If the ombudsman considers that the Order has not been complied with, he shall inform the special officer and the applicant accordingly. The special officer shall then give a fresh decision, which is subject to appeal.” 36. The relevant provisions of the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office provide: “1. Authorisation to consult documents shall be granted to persons who submit a prima facie case that they have sustained pecuniary or non-pecuniary damage in connection with information transpiring from documents held by the Police Service or with acts by officers of the Federal Public Prosecutor’s Office. …” “1. The special officer shall sort the documents placed in his custody and eliminate those which are no longer necessary for national security and are no longer the subject of a consultation process. 2. Documents relating to criminal proceedings shall be eliminated if (a) the time-limit for prosecuting the offence has expired following a stay of the proceedings; (b) the proceedings have been closed by an enforceable judgment. 3. The eliminated documents shall be stored in the Federal Archives. They can no longer be consulted by the authorities and access to them shall be prohibited for fifty years.” 37. The relevant provisions of the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office are worded as follows: “1. A person who contests the accuracy of certain data may request that an appropriate annotation be marked on the documents or appended thereto. 2. Documents which are manifestly erroneous shall be rectified at the request of the person concerned. ...” 38. A Parliamentary Commission of Inquiry (“PCI”) was set up to investigate the so-called “card index” affair. In its report published in the Federal Gazette (Feuille fédérale (FF) 1990, I, pp. 593 et seq.) it noted, among other things, in connection with the monitoring of telephone conversations (pp. 759 and 760): “According to various sources, a number of people feared that their telephone conversations were being monitored for political reasons. The PCI has conducted a thorough examination of the technical surveillance measures ordered by the Federal Public Prosecutor’s Office. In the course of that examination it requested from the Federal Public Prosecutor’s Office a full and detailed list of the persons whose telephones were tapped and the telephone connections which were monitored; that list was then compared with the list requested independently from the Post, Telecommunications and Telegraph Office. The PCI was then able to satisfy itself, partly with the help of certain documents and also following an interview with the President of the Indictment Division of the Federal Court, that there were no differences between the lists drawn up by the authorities ordering the telephone tapping and the authorities implementing those orders. ... The federal investigating judge and, before the preliminary investigation begins, the Federal Public Prosecutor have power to order a surveillance measure. A decision taken to this effect is valid for no more than six months but may be extended if necessary. It requires in all cases the approval of the President of the Indictment Division of the Federal Court. That approval procedure has been considerably formalised over recent years and is now applied by means of a pre-printed form. The PCI noted that all decisions had been submitted to the President of the Indictment Division and that he had approved all of them without exception...”

dev

001-90804

ENG

RUS

CHAMBER

CASE OF BORZHONOV v. RUSSIA

Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 13+6-1;Violation of Art. 6-1;Violation of Art. 13+P1-1;Violation of P1-1;Pecuniary and non-pecuniary damage - award

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

4. The applicant was born in 1954 and lives in the town of Ulan-Ude in the Buryatiya Republic. 5. The Russian authorities initiated criminal proceedings against the applicant: - on 13 June 1999 under Article 198 § 2 of the Criminal Code (tax evasion by a private person); the applicant was charged on 10 August 1999; - on 24 June 1999 under Article 201 § 1 of the Code (abuse of power); - on 29 August 1999 under Article 199 of the Code (tax evasion by a legal entity); - on 13 October 1999 under Article 160 § 3 (b) (misappropriation of private property); - on 21 January 2000 under Article 165 (causing pecuniary damage). 6. The above cases were joined on a number of occasions, most recently on 4 June 2001. According to the Government, the charges under Articles 165 and 199 of the Code were abandoned on 5 January 2000 and 4 June 2001 respectively (see, however, paragraph 9 below). 7. According to the Government, the proceedings were suspended on 6 January, 4 February and 17 August 2000, 13 June and 21 September 2001, and 20 January 2003, owing to the applicant’s illness. According to the Government, the applicant and his counsel were advised that the proceedings had been suspended on a number of occasions and subsequently resumed. 8. On 18 August 2004 the applicant sought access to the case file and, in particular, to the above-mentioned decisions to suspend the proceedings. On 27 August 2004 the Prosecutor’s Office of the Buryatiya Republic sent him a letter stating that the case file might be available at the archives of the Tax Authority in Ulan-Ude. On 5 October 2004 the Investigations Department of the Regional Ministry of the Interior informed the applicant that the criminal case against him had been suspended owing to his illness. Upon his renewed request, on 22 December 2004 the applicant received another reply from the Regional Office of the Drugs Control Service stating that the Investigations Department might be able to provide the requested documents. On 8 September 2005 the Drugs Control Service informed the applicant that on 10 July 2003 the criminal case against him had been forwarded to the Prosecutor’s Office of the Buryatiya Republic. 9. On 20 January 2006 the Investigations Department discontinued the proceedings as regards charges under Articles 160, 165, 198, 199 and 201 of the Criminal Code. 10. In August 1997 the applicant bought a PAZ-320500 bus. On 5 November 1999 the investigator in the criminal case against the applicant (see above) authorised seizure of the bus as security for eventual civil claims against him or eventual confiscation as a penalty under Article 160 § 3 (b) of the Criminal Code (see paragraph 16 below). On 9 November 1999 the applicant’s bus was seized. It appears that no civil claims were lodged in the criminal case against the applicant. 11. On an unspecified date the bus was transferred for safekeeping to a Mr Y. 12. In September 2003 the applicant brought proceedings in which he challenged the investigator’s seizure order as unlawful and requested the court to release the bus. 13. On 15 September 2003 the Sovetskiy District Court of Ulan-Ude examined the applicant’s claims with reference to Article 125 of the 2002 Code of Criminal Procedure (see paragraph 19 below) and rejected them as unfounded. The court held as follows: “...under Article 175 § 1 of the RSFSR Code of Criminal Procedure in order to secure civil claims or eventual confiscation of property the investigator shall issue an order of attachment in respect of the accused’s property which had been unlawfully obtained. Article 160 § 3 of the Criminal Code of the Russian Federation provides for confiscation as a penalty. Besides, the case discloses pecuniary loss [sustained by the victim], and the victim has the right to file a civil claim for damages against the applicant... The court finds no reasons for leaving the bus with [the applicant] for safekeeping... The [first instance] court rejected the applicant’s arguments to the effect that his property rights over the bus had been breached by the continuing attachment of property and the criminal case is still pending. The case is being suspended owing to the applicant’s illness...” 14. On 11 November 2003 the Supreme Court of the Buryatiya Republic upheld the judgment on appeal. The court stated: “Under Article 115 § 9 the Code of Criminal Procedure, which is now applicable to issues pertaining to attachment of property, the authority dealing with the criminal case has the power to release the property under the order of attachment, if attachment is no longer needed. As shown by the case file, at present the criminal case against the applicant is being dealt with by the investigating authority, the investigation being suspended. Taking into account the earlier submissions and the requirement of the procedure under Article 125 of the Code of Criminal Procedure, the court is not empowered to decide on the issue of lifting the order of attachment...” 15. On 18 July 2006 the deputy prosecutor of the Buryatiya Republic lifted the order of attachment in respect of the applicant’s bus. The applicant was served with a copy of that decision on 21 March 2007. It appears that the authorities were unable to determine where the bus was kept and thus could not return it to the applicant. 16. Under Article 160 § 3 (b) of the Code, in force at the material time, misappropriation of another’s property committed on a large scale or in view of the person’s hierarchical status was punishable by a sentence of imprisonment of up to ten years with or without confiscation of property. Under the Federal Law of 8 December 2003 (no. 162-ФЗ), confiscation as a penalty was removed from the Criminal Code, including its Article 160 § 3 (b). On 27 July 2006 a new Chapter 15.1 reintroducing the notion of confiscation was inserted into the Code in relation to a number of offences. The offences under Articles 160, 165, 198, 199 and 201 were not concerned. 17. A preliminary investigation in a criminal case had to be completed within two months starting from the date when the proceedings were initiated until the date when a bill of indictment was sent to the prosecutor or when the proceedings were terminated or suspended (Article 133). The preliminary investigation could be suspended if the accused had absconded or if his whereabouts had not been determined or if he was suffering from a mental or other serious disease. The investigator had to issue a reasoned decision (Article 195). Pursuant to Article 218 of the Code, a prosecutor was competent to examine complaints against decisions taken by an inquirer or an investigator. By a ruling of 23 March 1999, the Constitutional Court invalidated this provision in so far as it excluded a possibility of judicial supervision over such decisions, including those relating to suspension of proceedings and imposition of charging orders. 18. Under Article 208 § 1 of the Code, the preliminary investigation can be suspended, inter alia, if the suspect or accused is temporarily suffering from a serious disease which prevents him from participating in the investigation. A victim, civil claimant or respondent and their representatives should be notified accordingly and apprised of their right to appeal against the decision suspending the proceedings (Article 209 § 1). A suspect or accused and counsel should also be informed, if the suspension was caused by his or her illness. 19. Articles 123 and 125 of the Code concern judicial supervision over any (in)action on the part of an inquirer, investigator or prosecutor in so far as such (in)action affects a complainant’s rights or impedes his or her access to a court. The judge either (i) invalidates the impugned (in)action as unlawful or lacking justification and requires the respondent authority to remedy the violation, or (ii) rejects the complaint. 20. A decision terminating the criminal proceedings should be handed over or dispatched to the person concerned (Article 214 § 4). 21. Article 133 § 1 of the Code safeguards a so-called “right to rehabilitation”, including a right to full compensation in respect of pecuniary and non-pecuniary damage caused by criminal prosecution of a person who has been acquitted or in respect of whom the criminal proceedings have been terminated, inter alia, owing to a lack of corpus delicti or because the person had not been involved in the criminal act. The investigator issues a decision in which he or she recognises the person’s right to rehabilitation and also sends notification explaining the procedure for obtaining compensation (Article 134 § 1). 22. A person who has sustained pecuniary damage or loss from a criminal offence has a right to lodge a civil claim against the accused. He or she can exercise this right from the commencement of the criminal proceedings until the opening of the trial (Article 29). 23. If sufficient reasons obtain as to the existence of pecuniary damage caused by a criminal offence, the investigating authority or a court should take measures for securing the existing or eventual civil claim and/or for impeding the accused from hiding his property, if the charges against him carry confiscation as a possible penalty (Article 30). 24. According to Article 175 of the Code, in order to secure civil claims or eventual confiscation of property, the investigator should issue a charging order in respect of an accused’s property; that of persons who are liable by law for the accused or suspect’s actions; that of other persons who are in possession of the property acquired through unlawful actions. Property attached may be impounded or transferred at the attaching official’s discretion for safekeeping to a competent authority or left with the owner or other person who shall be warned about responsibility for keeping the property safe, and the fact shall be mentioned in the relevant record. The investigator lifts the charging order if it is no longer needed. 25. Under Article 115 § 1 of the Code, in order to ensure execution of a judgment in a part pertaining to a civil claim, to satisfy other pecuniary penalties or an eventual confiscation of property, an inquirer or investigator, subject to the prosecutor’s consent, or a prosecutor should apply to a court for a charging order in respect of the suspect’s or accused’s property. The court should examine such request under the procedure set out in Article 165 of the Code. A charge or attachment of property prohibits the proprietor or owner from disposing of, and, if appropriate, using the property; it may require impounding of that property and its transfer for safekeeping to its proprietor or owner or a third person (§§ 2 and 6). A charging order is lifted by the authority dealing with the criminal case when the charge is no longer needed (§ 9). On 4 July 2003 Article 115 § 1 of the Code was amended to exclude an eventual confiscation of property as a reason for requesting a charging order. A charging order could only concern property acquired by the suspect, accused or another person as a result of criminal activity or by criminal means. On 8 December 2003 Article 115 § 1 of the Code was amended to reintroduce an eventual confiscation of property as a reason for requesting a charging order; in such circumstances it became incumbent on the court to indicate the relevant circumstances in its decision. 26. By decision no. 97-O of 10 March 2005 the Constitutional Court held, in the context of proceedings concerning Article 82 of the CCrP on real evidence, that provisional measures such as imposition of a charge on one’s property may be required in criminal proceedings and should not be considered as a violation of constitutional rights and freedoms, including property rights. Judicial scrutiny of such measures as to their lawfulness should also encompass an assessment of whether other measures would be inappropriate, with due regard to the gravity of the charges in relation to which provisional measures have been taken, as well as to the nature of the property under the charge, its importance for its owner or holder and other eventual negative effects that the charge might have. Thus, it is incumbent on the investigator and, subsequently, on the reviewing court to be satisfied that the property under the charge should or should not be returned to its owner for safekeeping until the closure of the criminal proceedings.

dev

001-93496

ENG

RUS

CHAMBER

CASE OF TARNOPOLSKAYA AND OTHERS v. RUSSIA

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

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

5. The applicants' names and other details are indicated in the appended table. 6. The applicants emigrated to Israel from the USSR in the 1980s and 1990s and obtained Israeli nationality. Before immigration they had been receiving old-age pensions from the Soviet authorities. However, once the applicants left the USSR, the payments were discontinued in accordance with the USSR pension law applicable at the material time. As they left the USSR prior to its collapse, they were not entitled to a pension under the new Russian legislation. 7. In early 2000 the applicants unsuccessfully applied to the regional departments of the Pension Fund of the Russian Federation (“the Pension Fund”) for the payment of their pensions to be restored. On unspecified dates they brought civil proceedings against the Pension Fund requesting restoration of the payment of their pensions. 8. By the final judgments listed in the appended table the applicants' claims were allowed and the Pension Fund was ordered to restore pension payments. 9. In their judgments the courts found, inter alia, that although the pensions had initially been awarded in accordance with the USSR legislation, the latter was also applicable in the Russian Federation. The courts interpreted the relevant legal provisions in the light of the Constitutional Court judgment of 15 June 1998, considering that the pension payments should be restored regardless of the date or place of emigration from the Russian Federation. 10. The Pension Fund restored the payments in ten cases (see § 43 below). 11. On 17 June 2005 the Pension Fund, in a letter numbered ГВ2115/6390, asked the Supreme Court of the Russian Federation to provide an explanation of the issue. It based the request on the fact that courts of different regions had different attitudes towards the problem. Thus, it noted that in Moscow, the Moscow Region and in most of the other regions the courts rejected claims for payment of pensions to emigrant pensioners whose pensions had been awarded in accordance with the legislation of the USSR. At the same time, the courts in St Petersburg, in the Samara Region, in the Kaluga Region and in the Yaroslavl Region awarded such payment. 12. Subsequently the Pension Fund, as a party to the proceedings in the present case, lodged requests with the competent regional courts for supervisory review of the final judgments in the applicants' favour. The Presidia of the regional courts granted the requests, quashed the judgments and dismissed the applicants' claims. 13. The Presidia found that according to the relevant USSR legislation, under which the pensions had been awarded, there was no possibility to continue the payments to the applicants, as they had left the country. According to their interpretation of the Ruling of the Constitutional Court of 15 June 1998, the payments were to be restored only if the pensions had been awarded in accordance with the legislation of the Russian Federation, not the USSR. The Presidia accordingly concluded that there was no basis under the domestic law for the payments to be awarded to the applicants. 14. The relevant data on the Presidia decisions is listed below. 15. For the relevant provisions on the supervisory-review proceedings contained in the Code of Civil Procedure of the Russian Federation see, among many other authorities, the Court's judgment in the case of Sobelin and Others v. Russia (nos. 30672/03 et seq., § 34, 3 May 2007). 16. According to the law “On the Judicial System of the Russian Federation”, no. 1-FKZ of 31 December 1996, the Supreme Court of the Russian Federation is a supreme judicial body performing judicial supervision over the activities of all the courts of general jurisdiction and, inter alia, providing explanations on the issues of judicial practices. 17. The relevant provisions on the payment of pensions to those who left the USSR and the Russian Federation are as follows. 18. According to the Provisions regulating the award and payment of state pensions, which were approved by the USSR Council of Ministers Decree on 3 August 1972, USSR citizens living abroad shall be paid their pensions unless they left the USSR for permanent residence or for capitalist countries. 19. The law of 24 October 1990 “On the Operation of Legislation of the USSR on the Territory of the Russian Federation” provided that the USSR legal acts operated directly on the territory of the Russian Federation unless they contradicted the Russian Federation legislation. 20. According to the Order of the Supreme Council of the RSFSR of 11 December 1991 “On Ratification of the Agreement Establishing the Commonwealth of Independent States”, the judicial norms of the former USSR were to be applied in the Russian Federation prior to adoption of the relevant legislation of the Russian Federation. 21. According to the decree of the Supreme Soviet of the Russian Federation no. 4461-I of 11 February 1993, the Pension Fund was allowed to pay pensions awarded under the USSR legislation to pensioners who had been receiving such pensions in the Russian Federation and had left for permanent residence abroad. 22. The law “On Pension Payments to Persons Leaving the Russian Federation for Permanent Residence Abroad” no. 5318-I of 2 July 1993 provided that upon a written request by a pensioner leaving Russia the pension should be transferred to him or her abroad. 23. On 15 June 1998 the Constitutional Court ruled (in Decision no. 18P) that law no. 5318-I of 2 July 1993, applied at the material time, contradicted the Constitution in the part concerning the refusal to pay pensions to persons who had left the Russian Federation before 1 July 1993. 24. According to the law “On Pension Payments to Persons Leaving the Russian Federation for Permanent Residence Abroad” no. 21-FZ of 6 March 2001, pensions were to be paid to persons who had acquired the right to receive a pension in accordance with the legislation of the Russian Federation at the time they left the country. 25. The new law “On State Pensions in the Russian Federation” no. 173FZ of 17 December 2001 reiterated that upon a written request by a pensioner leaving Russia the pension should be paid in Russia by power of attorney or transferred to him or her abroad (Article 24). It also provided that payments that had not been received in time because of the fault of the bodies responsible for the pension award or payment should be paid for the entire previous period (Article 23). 26. On 29 November 2006 in Ruling no. 85-B06-13 the Supreme Court of the Russian Federation found that no pension payments should be made if they were initially awarded in accordance with USSR, not Russian Federation, legislation. It noted, in particular, that “those who had been entitled to pension in accordance with the USSR legislation [...] and had left the Russian Federation for permanent residence abroad have lost their title to the pension”.

dev

001-66606

ENG

HRV

ADMISSIBILITY

TOTH v. CROATIA

Inadmissible

Christos Rozakis

The applicant, Mr Milenko Toth, is a Croatian citizen who was born in 1962 and is presently serving a sentence in Lepoglava State Prison. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 September 1992 the competent investigating judge opened an investigation against the applicant on a charge of murder. The applicant was indicted by the Sisak County State Attorney’s Office (Okružno državno odvjetništvo Sisak) on 12 February 1993. On 27 January 1994 the investigating judge opened another investigation against the applicant, charging him with the attempted murder of a judge. He was indicted on 15 November 1994. The two criminal proceedings were subsequently joined. On 20 September 1995 the Sisak County Court (Županijski sud u Sisku) convicted the applicant of both offences. On 22 May 1996 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the first-instance conviction with regard to the murder charge. This part of the judgment became final. At the same time, the Supreme Court quashed part of the judgment relating to the attempted murder and remitted the case. In the resumed proceedings, on 9 May 1997 the Sisak County Court convicted the applicant of attempted murder and sentenced him to fifteen years’ imprisonment. On appeal, the Supreme Court upheld the first instance judgment on 24 June 1998. The applicant states that he filed a constitutional complaint with the Constitutional Court on 29 November 1999, alleging that both his convictions had been based on evidence obtained illegally and thus his right to a fair trial had been violated. His constitutional complaint concerned both convictions. He maintains that his complaint was never adjudged by the Constitutional Court. The Government admit that the applicant’s letter to the Constitutional Court dated 29 November 1999 was titled “a constitutional complaint”. However, they submit that the applicant had already lodged a constitutional complaint on 25 February 1999 and that his letter of 29 November 1999 was merely an extension of his previous complaint, seeking to include the proceedings concerning the murder, which had ended in 1996. It was thus regarded by the Constitutional Court as a new submission in an already existing case. Moreover, the Government submit two decisions of the Constitutional Court, by which it adjudged the entirety of the complaints raised by the applicant in his submission dated 29 November 1999 with regard to both proceedings. In its decision dated 4 October 2000, the Constitutional Court dismissed the applicant’s complaint, finding no violation of his right to a fair trial in the proceedings concerning the attempted murder. In its decision dated 8 March 2002 the Constitutional Court dismissed the applicant’s complaint relating to the fairness of the proceedings concerning the murder, as it had been lodged outside the statutory time-limit.

dev

001-61204

ENG

HRV

CHAMBER

CASE OF MULTIPLEX v. CROATIA

Violation of Art. 6-1 with regard to access to court;No separate issue under Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

Christos Rozakis

8. The applicant company is owned by Mr Smail Smailagić who lived in Banja Luka, which is situated on the territory of the present day Republika Srpska, a part of Bosnia and Herzegovina, until 15 May 1992 when he fled to Croatia and went to live in Porat-Červar. 9. On 13 August 1992 the Croatian Military Police requisitioned a vehicle belonging to the applicant company. 10. According to the Government the vehicle had been requisitioned by the military authorities from Bosnia and Herzegovina. Upon the request by the military authorities from Bosnia and Herzegovina for the return of vehicles which had been requisitioned in Bosnia and Herzegovina for military purposes, in case that they were located in Croatia, the Croatian Ministry of Defence conferred the applicant company's vehicle after having found it. The vehicle was conferred to the Bosnian authorities on 19 August 1993 and has ever since been in their possession. 11. According to the applicant the vehicle was requisitioned by the Croatian authorities and conferred to the Croatian para-military forces in Bosnia and Herzegovina, the so-called Croatian Defence Council (Hrvatsko vijeće obrane). The applicant company repeatedly requested the Croatian Defence Council to return the vehicle, but to no avail. 12. On 11 October 1993 the applicant company filed a civil claim for damages in the amount of 15,600 German Marks (DEM) against the Republic of Croatia, with the Zagreb County Commercial Court (Okružni privredni sud u Zagrebu). It appears that the case was subsequently transferred to the Zagreb Municipal Court (Općinski sud u Zagrebu). 13. On 15 May 1995 the Republic of Croatia filed its reply denying the plaintiff's claim. It requested the court to stay the proceedings until the end of war in Croatia. It stated further that the vehicle had been requisitioned only temporarily for needs of the army and would be returned to the applicant company after the war. 14. At the hearing on 14 September 1995 the applicant company specified the claim for damages seeking 58,000 Croatian Kunas (HRK). 15. On 12 March 1998 the applicant company requested the Ministry of Justice to speed up the proceedings. 16. On 13 July 1998 the court decided that an expertise be carried out in order to establish the value of the vehicle in question. The applicant company was invited to pay an advance for the costs of the expertise. 17. On 31 August 1998 the case-file was assigned to an expert who submitted his opinion on 5 October 1998. 18. It appears that the defendant asked the court to stay the proceedings claiming that it was uncertain whether the applicant company still existed because the excerpt from the Banja Luka Court registry on the applicant company's legal status was quite old. 19. On 4 May 1999 the court invited the company's representative to submit a new excerpt from the relevant registry. 20. The applicant company's legal representative informed the court that he no longer represented the applicant. 21. On 5 July 1999 the applicant company requested the court to schedule a hearing. 22. On 19 July 1999 the applicant company's representative submitted an uncertified excerpt from the Banja Luka Court's registry dating from 1990. 23. On 25 August 1999 the court invited the applicant to submit a new excerpt, not older than six months, showing that Mr Smailagić was entitled to represent the applicant company. 24. On 6 November 1999 Parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the war in Croatia were to be stayed. 25. On 10 December 1999 the court stayed the proceedings pursuant to the above change in law. 26. On 29 December 1999 the applicant company appealed against the above decision claiming that the Zagreb Municipal Court erred in its application of the law as the vehicle in question was not taken by any member of the Croatian army or police acting in an official capacity but exclusively for the needs of the Croatian Defence Council, a military formation of Bosnia and Herzegovina, operating in that country. 27. It appears that on 15 November 2000 a party in some other proceedings concerning the same matter filed a constitutional claim challenging the above legislation. However, the Constitutional Court has not yet adopted any decision. 28. On 8 May 2001 the Zagreb County Court (Županijski sud u Zagrebu) upheld the Zagreb Municipal Court decision of 10 December 1999. 29. On 16 June 2001 the applicant company filed a request for revision with the Zagreb Municipal Court, repeating its arguments from the earlier appeal. On 28 June 2001 the Zagreb Municipal Court rejected the above request as inadmissible. It found that the Civil Procedure Act (Zakon o parničnom postupku) allows a party to file a request for revision only against a final decision of an appellate court while the decision of the Zagreb County Court did not represent a final decision in that case. 30. On 21 July 2001 the applicant company appealed against the Municipal Court's decision. 31. On 2 October the Zagreb County Court dismissed the appeal. 32. Section 184 (a) of the 1999 Act on Changes of the Civil Obligations Act (Zakon o dopunama Zakonu o obveznim odnosima, Official Gazette no. 112/1999) provides that all proceedings instituted against the Republic of Croatia for damages caused by the members of the Croatian army or police when acting in their official capacity during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 are to be stayed. 33. The Act also imposed an obligation on the Government to submit to Parliament special legislation, regulating the responsibility for such damages, at the latest within six months from the entry into force of the present Act. So far no new legislation has been introduced.

dev

001-89607

ENG

BGR

CHAMBER

CASE OF BOCHEV v. BULGARIA

Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

5. At about 5 a.m. on 9 May 1998 the applicant and an accomplice were surprised by police while in the process of trying to enter a computer equipment shop through a hole in the wall of the basement of a neighbouring building. They had previously drilled the hole over the course of several nights, and in this way had attracted the attention of the building’s inhabitants. 6. On the morning of 9 May 1998 the applicant and his accomplice were heavily armed. The applicant opened fire and shot a police officer dead. Later he detonated a hand grenade. In the ensuing exchange of gunfire his accomplice was injured and died. The special antiterrorism squad intervened later in the morning. The applicant gave himself up and was arrested at about 8.30 a.m., after negotiations with the police, a psychologist and a public prosecutor. 7. On the same day, 9 May 1998, the applicant was charged with attempted robbery committed in conspiracy with others and accompanied by murder, and placed in pretrial detention. 8. The charges against him were later amended to include the unlawful possession of firearms, ammunition and explosives in large quantities, the murder of a police officer, and attempted murder of six police officers committed in a manner and by means which endangered several lives and by a person who had already committed murder. The maximum penalty on conviction for those offences was life imprisonment, with or without parole. 9. After the Sofia City Prosecutor’s Office referred the case back to the investigator on three occasions for additional investigation, on 13 August 1999 the investigator finished his work on the case, recommending that the applicant be committed for trial. 10. On 29 December 1999 the Sofia City Prosecutor’s Office filed an indictment against the applicant with the Sofia City Court. 11. On 21 February 2000 the judgerapporteur to whom the case was assigned set it down for hearing on 8 and 9 June 2000. As required by Article 241 § 2 (4) of the 1974 Code of Criminal Procedure, as in force at that time, he examined of his own motion whether the applicant’s pretrial detention should be replaced with a more lenient measure, and confirmed it without giving reasons. 12. The trial against the applicant began in June 2000, but had to restart in October 2001, as in May 2001 the judge-rapporteur was appointed as the Minister of Justice and the formation examining the case did not include a reserve judge. 13. Over the course of the next few years numerous hearings were adjourned for various reasons. On some occasions the adjournments were made necessary by the fact that the applicant had dismissed his counsel and instructed new ones, who needed time to acquaint themselves with the case file. 14. In a judgment of 14 October 2005 the Sofia City Court found the applicant guilty of murdering a police officer, attempting to murder another police officer and unlawfully possessing firearms and explosives. Although under the relevant provisions of the 1968 Criminal Code it could have imposed a sentence of life imprisonment, it opted for a lesser penalty and sentenced the applicant to thirty years’ imprisonment, citing his clean criminal record, and the facts that he had a family and had not been fully discredited morally and socially. 15. Both the applicant and the prosecution appealed. The prosecution requested that the applicant’s sentence be increased to life imprisonment. 16. On 2 October 2007 the Sofia Court of Appeal upheld the Sofia City Court’s judgment. When considering the appropriateness of the applicant’s sentence, it found that the mitigating circumstances relied on by the lower court were not sufficient to warrant a sentence less than the maximum penalty. It also found that the Sofia City Court had failed to take into account certain aggravating circumstances, such as the victim’s good moral character. In its judgment, the murder committed by the applicant was considerably graver than other offences of that type and the aggravating circumstances were, overall, of such weight and intensity as to rule out a penalty showing any degree of lenience. However, it went on to say, by express reference to Article 6 § 1 of the Convention, that the criminal charges against the applicant had not been determined within a reasonable time, with all the negative repercussions which this had had on him. It found that the excessive length of the proceedings was not attributable to the applicant’s conduct, although he had at times failed to organise his defence efficiently. In the court’s view, the undue delay amounted in itself to a mitigating circumstance, which obviated the need to imprison the applicant for life, in line with the former Commission’s and the Court’s caselaw that the excessive length of criminal proceedings could be remedied by a reduction in sentence. 17. The applicant and the prosecution appealed on points of law. The prosecution again argued that the penalty was far too lenient and should be increased to life imprisonment. 18. In a judgment of 5 March 2008 the Supreme Court of Cassation upheld the Sofia Court of Appeal’s judgment, endorsing its reasoning. 19. The applicant was arrested on 9 May 1998 and detained by an investigator’s order of the same day. The reasons given by the investigator were that the applicant had committed a serious wilful offence and that there existed a genuine risk that he might abscond. On the same day the investigator’s order was approved by a prosecutor. 20. The applicant made his first request for release on 2 October 1998, when the proceedings against him were at the preliminary investigation stage. The request was dismissed by the Sofia City Court at a public hearing held on 13 October 1998. The court observed that the applicant had committed a serious wilful offence carrying a very severe penalty, and that no special circumstances warranting his release existed. This decision was not subject to appeal. Nevertheless, on 13 December 2000, when the proceedings against him had already progressed to the trial stage, the applicant appealed against it to the Sofia Court of Appeal. In a decision made in private on 15 January 2001 the Sofia Court of Appeal, finding that the applicant’s legal challenge was actually not an appeal but a fresh request for release, sent it to the Sofia City Court for a ruling. On 1 February 2001 the applicant appealed against this decision to the Supreme Court of Cassation. On 21 February 2001 the Sofia Court of Appeal returned the appeal, informing the applicant that its decision was not subject to appeal on points of law. It seems that the Sofia City Court did not examine the request. 21. On 26 February 2001 the applicant appealed against the decision of the judgerapporteur to confirm his detention of his own motion following receipt of the indictment (see paragraph 11 above). On 9 March 2001 the Sofia Court of Appeal, sitting in private, declared the appeal inadmissible. 22. The applicant made further requests for release at several trial hearings, held on 9 April and 29 November 2001, and 18 March and 9 May 2002. They were all turned down by the Sofia City Court at the respective hearings. The applicant’s ensuing appeals were dismissed by the Sofia Court of Appeal by decisions made in private on 4 May 2001, 7 January, 15 April and an unknown later date in 2002. 23. In their reasoning the Sofia City Court and the Sofia Court of Appeal stressed, with various degrees of detail, the following points: (i) the applicant stood accused of several very serious offences, which in itself justified the conclusion that he was a dangerous individual who could abscond or reoffend, (ii) there were no fresh circumstances warranting his release, and (iii) no unwarranted delays had taken place in the criminal proceedings, as the case was factually and legally complex. 24. In its decision of 4 May 2001 the Sofia Court of Appeal stated that the presumption under Article 152 § 2 (3) of the 1974 Code of Criminal Procedure, in the 1 January 2000 version, about the existence of a risk that the detainee might abscond or reoffend (see paragraph 32 below) applied to the applicant’s case. In two other decisions – those of 7 January and 15 April 2001 – that court expressed the view that the applicant’s lack of a criminal record, known identity and permanent place of abode were not enough to rebut this presumption. 25. On at least two occasions, in April and May 2002, the applicant’s appeals against the decisions of the Sofia City Court were sent to the competent public prosecutors, who commented on them in writing. These comments were not communicated to the applicant and later the Sofia Court of Appeal ruled on the appeals in private, without holding a hearing, with the result that the applicant did not have the opportunity of replying to these comments. 26. In October 2002 and April and December 2003 the applicant made three further requests for release in writing. They were turned down by the Sofia City Court in decisions made in private on 18 October 2002 and 14 April and 29 December 2003. On appeal, these decisions were upheld by the Sofia Court of Appeal in decisions also made in private on 11 November 2002, 23 May 2003 and 12 January 2004. 27. The applicant later lodged four more requests for release. They were all rejected by the Sofia City Court at public hearings held on 27 January, 4 May, 8 September and 23 November 2004. The applicant’s ensuing appeals were dismissed by the Sofia Court of Appeal by decisions made in private on 19 February, 7 June, 21 September and 20 December 2004. The Sofia City Court declined to examine a further request for release made by the applicant during the trial hearing on 13 January 2005, on the grounds that his counsel was absent and it could not proceed with the case. 28. In turning down the requests for release made between October 2002 and November 2004 the courts relied on the seriousness of the charges against the applicant, the lack of change in the circumstances save for the passage of time, the complexity of the case and the diligent conduct of the proceedings. In their decisions of 4 May 2004 and 8 September and 23 November 2004 the Sofia Court of Appeal and the Sofia City Court expressed the view that the length of the proceedings was due to the numerous adjournments caused by the applicant. 29. In its decisions of 4 May, 8 September and 23 November 2004 the Sofia City Court stated that under the newly added Article 268a of the 1974 Code of Criminal Procedure (see paragraph 36 below), when ruling on requests for release made during the trial, it was barred from examining the existence or otherwise of a reasonable suspicion against the applicant. In its view, to do so would mean to prejudge the merits of the criminal case against the applicant. It was true that under Article 5 § 1 (c) of the Convention the court had to examine whether a reasonable suspicion existed, but that applied only to rulings made at the pretrial stage. This view was endorsed by the Sofia Court of Appeal in its decision of 21 September 2004. For this reason, the courts declined to delve into the applicant’s arguments concerning this point. 30. On 14 October 2005 the Sofia City Court convicted the applicant (see paragraph 14 above). In a separate decision it confirmed his detention. 31. On 17 June 2002 the applicant asked the Supreme Administrative Court to annul certain provisions of Regulation no. 2 governing the legal regime of pretrial detainees (see paragraph 42 below), which, in his view, violated, inter alia, his freedom of correspondence. In a final judgment of 19 July 2002 the Supreme Administrative Court rejected his application. 32. The relevant provisions of the 1974 Code of Criminal Procedure and the Bulgarian courts’ practice before 1 January 2000 are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 2536, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 5559, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 7988, ECHR 2003-XII (extracts)). On 1 January 2000 the legal framework of pretrial detention was amended with the aim of ensuring the compliance of Bulgarian law with the Convention (тълк. реш. № 1 от 25 юни 2002 г. по н.д. № 1/2002 г., ОСНК на ВКС). The amendments and the resulting practice of the Bulgarian courts are summarised in the Court’s judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 3235, 10 August 2006), and Yordanov v. Bulgaria (no. 56856/00, §§ 2124, 10 August 2006). 33. On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure, which reproduced all the provisions brought in with the January 2000 reform. 34. By Article 304 § 1 of the 1974 Code, during the trial the detainees’ requests for release were examined by the trial court (the same is currently provided for by Article 270 of the 2005 Code). It followed from Article 304 §§ 1 and 2 of the 1974 Code that these requests could be examined in private or at an oral hearing (under Article 270 § 2 of the 2005 Code, these requests must be examined at an oral hearing). The law did not – and still does not – require the court to decide within a particular timelimit. 35. The trial court’s decision was subject to appeal to the higher court (Article 344 § 3 of the 1974 Code; superseded by Article 270 § 4 of the 2005 Code). The higher court could examine the appeal in private or, if it considered it necessary, at an oral hearing (Article 348 § 1 of the 1974 Code, reproduced in Article 354 § 1 of the 2005 Code). 36. A new Article 268a was added to the 1974 Code in May 2003. By paragraph 1 of that Article (presently reproduced in Article 270 § 1 of the 2005 Code), a fresh request for release at the same level of court could be made only if there had been a change in circumstances. Paragraph 2 in fine of this Article (presently reproduced in Article 270 § 2 in fine of the 2005 Code) provided that the trial court had to refrain from examining the existence or otherwise of a reasonable suspicion against the detainee. 37. Section 2 of the 1988 State Responsibility for Damage Caused to Citizens Act (“the SRDA” – Закон за отговорността на държавата за вреди, причинени на граждани – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, Закон за отговорността на държавата и общините за вреди), provides as follows: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful: 1. pretrial detention, including when imposed as a preventive measure, when it has been set aside for lack of lawful grounds; 2. criminal charges, if the person concerned has been acquitted, or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence...” 38. In a binding interpretative decision (тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК) made on 22 April 2004 the Plenary Meeting of the Civil Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the SRDA. In line with the courts’ earlier case-law, in point 13 of the decision it held that pretrial detention was unlawful when it did not comply with the requirements of the Code of Criminal Procedure and that the State was liable under section 2(1) of the SRDA when such detention had already been set aside as unlawful. 39. Individuals seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС, ІV г.о.). 40. Articles 30, 32 § 1 and 34 of the 1991 Constitution read, as relevant: “Everyone has the right to meet in confidence with the person who defends him. The confidentiality of their communication shall be inviolable.” “The private life of citizens shall be inviolable. Everyone has the right to protection against unlawful interference in his private or family life and against encroachment on his honour, dignity and reputation.” “1. The freedom and secrecy of correspondence and other communications shall be inviolable. 2. This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences.” 41. Section 18(2) of the 1991 Bar Act (Закон за адвокатурата), presently superseded by section 33(2) of the 2004 Bar Act, provided that the correspondence between lawyers and their clients was inviolable, could not be subject to interception and could not be used as evidence in court. 42. Between 1993 and 2000 the legal regime of pretrial detainees, including their correspondence, was the subject of two successive regulations issued by the Minister of Justice: Regulation no. 12 of 15 April 1993, superseded by Regulation no. 2 of 19 April 1999. 43. Under section 18(5) of Regulation no. 12, detainees had the right to send and receive an unlimited number of letters. Section 19(2) of the Regulation provided that letters (except those to and from the detainees’ counsel), which contained advice about the criminal proceedings against them, were not allowed to be passed on, but instead had to be made available to the competent prosecutor or court. 44. Section 25(1) of Regulation no. 2 provided that “the correspondence of the accused and of the indicted [was] subject to inspection by the [detention facilities] administration”. 45. In a decision of 22 December 2000 (реш. № 7982 от 22 декември 2000 г. по адм.д. № 3351/2000 г., ВАС, петчленен състав, обн., ДВ, бр. 4 от 12 януари 2001 г.) the Supreme Administrative Court annulled this provision, holding that it was contrary to Articles 30 § 5, 32 and 34 of the 1991 Constitution (see paragraph 40 above), Article 8 of the Convention and section 18(2) of the 1991 Bar Act (see paragraph 41 above), as it provided for systematic monitoring of the entirety of the detainees’ correspondence. 46. In June 2002 the 1969 Execution of Punishments Act (Закон за изпълнение на наказанията), which is the statute regulating, along with other matters, the manner of serving custodial sentences, was amended and now incorporates, in the newly added sections 128132h, special rules relating to pretrial detainees. As a result, Regulation no. 2 ceased to apply; it was however expressly repealed only on 1 September 2006, when the Minister of Justice amended the Regulations relating to the application of the Act (see paragraph 49 below). 47. The new section 132d(3) of the 1969 Act provided that “[t]he correspondence of the accused and of the indicted [was] subject to inspection by the [prison] administration”. 48. In a decision of 18 April 2006 (реш. № 4 от 18 април 2006 г. по к.д. № 11 от 2005 г., обн., ДВ, бр. 36 от 2 май 2006 г.) the Constitutional Court, acting pursuant to a request by the Chief Prosecutor, declared this provision unconstitutional. After analysing in detail the relevant constitutional and Convention provisions and making reference to, among others, the cases of Campbell v. the United Kingdom (judgment of 25 March 1992, Series A no. 233), Calogero Diana v. Italy (judgment of 15 November 1996, Reports of Judgments and Decisions 1996V) and Petra v. Romania (judgment of 23 September 1998, Reports 1998VII), it held that a blanket authorisation to inspect the correspondence of all detainees without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles 30 § 5 and 34 of the 1991 Constitution (see paragraph 40 above). 49. Following the Constitutional Court’s decision, on 1 September 2006 the Regulations for application of the 1969 Execution of Punishments Act were amended. Under the new section 178(1), pretrial detainees are entitled to unlimited correspondence which is not subject to monitoring. Envelopes have to be sealed and opened in the presence of members of staff, in a manner allowing those members to make sure that they do not contain money or other prohibited items (section 178(2) of the Regulations).

dev

001-81066

ENG

FRA

CHAMBER

CASE OF HACHETTE FILIPACCHI ASSOCIES v. FRANCE

No violation of Art. 10

Christos Rozakis

6. In its 19 February 1998 edition the French weekly magazine Paris-Match, published by the applicant company, featured an article in its “News” section entitled 'La République assassinée' (The Murdered Republic), concerning the murder of the Prefect Claude Erignac in Ajaccio, Corsica, on 6 February 1998. 7. The article was illustrated by a photograph of the scene, taken moments after the murder, showing the prefect's body lying on the ground. 8. The article was published a week after the murder, by which time the news had been extensively covered and commented on in the media, both in the printed press and on television, including the national channels. 9. The magazine's two-page colour photograph showed Mr Erignac's lifeless body lying on the ground, his face turned partly towards the camera. In the right hand corner of the picture, under the headline 'La République assassinée', the following commentary could be read: “On this Ajaccio pavement, on Friday 6 February at 9.15 p.m., Claude Erignac, Prefect of Corsica, wrote a tragic page in our history with his blood. No prefect had been killed in France since Jean Moulin in 1943 ... In 1998 the bullets fired into the back of this unarmed man, who was on his way to listen to Beethoven's “Heroic Symphony”, will shake all those who thought terror was something you get used to out of their stupor. In the book of condolences opened at the prefecture, many Corsicans, proud as they are reputed to be, will write their “shame”. They will applaud President Chirac when, at the memorial in Ajaccio to all those who gave their lives for France, he reaffirms the values of the Republic. Values which, today, have become a challenge.” 10. On 12 February 1998 Claude Erignac's widow and children lodged an urgent application against several companies (including the applicant company) seeking the seizure, under Article 809 of the new Code of Civil Procedure, of all copies of magazines containing the aforesaid photograph (including Paris-Match) and prohibition of their sale on penalty of fines. They also sought an award of damages in the sum of 150,000 French francs (FRF) payable jointly and severally by the defendants. 11. The claimants submitted that the purpose of publishing the photograph of the bloody, mutilated body of the Prefect of Corsica was by no means to inform the public but purely commercial, and constituted a particularly intolerable infringement of their right to respect for their private life. 12. The defendant companies replied that the picture of a person who died in a public place because of the post he occupied could not constitute either a violation of his family's right to respect for their private life or a manifestly unlawful infringement warranting the intervention of the urgent-applications judge when the picture had been published in the context of a political and judicial event that amounted to a national tragedy and, furthermore, had been published and disseminated by numerous other press agencies and television channels, including public ones. 13. By an order of 12 February 1998, the President of the Paris tribunal de grande instance, under Article 809 § 1 of the new Code of Civil Procedure, found against the applicant company and the other defendant companies for the following reasons: “... the claimants contend that, in spite of being put on notice, the weekly magazines Paris Match and VSD published in their editions which went on sale on 12 February 1998 a photograph of the bloody, mutilated body of Claude Erignac, Prefect of Corsica, who was murdered in Ajaccio on 6 February 1998; ... it is established that the public's right to information authorises a newspaper to inform its readers, in words or in pictures, of any exceptional event that amounts, as in this case, to a national tragedy, drawing it to the attention of public opinion; ... this fundamental right has its limits only in a publication which is particularly intolerable, because the excessively serious nature of the text or picture is liable to cause the victims unbearable distress, the nature and extent of which are for the urgent-applications judge to determine, in keeping with the provisions of Article 809 § 1 of the new Code of Civil Procedure; ... in the instant case the publication of the photograph showing the dead body of Prefect Claude Erignac lying in the street cannot but constitute an intolerable injury to the feelings of the claimants, who have undergone a particularly serious emotional shock in view of the exceptional circumstances of the murder; ... the need for information cannot justify the existence of such an infringement – even if the photograph in issue, which was taken in a public place, was touched up and published by different news sources – without every effort being made to preserve the dignity of the murdered prefect's body and show a minimum of consideration for the feelings of the claimants, for whom time had not yet alleviated the horror of their ordeal; ... however ... a seizure order would be unenforceable in practice, and disproportionate to the nature of the infringement complained of, for which compensation could be sought in court ...” 14. The urgent-applications judge ordered the applicant company to publish the following statement at its own expense in the following issue of Paris-Match, in a box measuring fifteen centimetres by fifteen centimetres, under the heading “Court-ordered statement” in bold characters one centimetre high: “By order of 12 February 1998, the Paris tribunal de grande instance, acting on an application in urgent proceedings, declared that the photograph published by Paris Match in its 19 February 1998 issue, showing the dead body of the Prefect Claude Erignac, caused Mrs Erignac and her children considerable distress.” 15. The applicant company appealed against that order, submitting that the measure concerned amounted to a violation of press freedom and the right to inform guaranteed under Article 10 of the Convention. It argued that the photograph in issue was the dark, subdued image of a historic event and, as such, could not constitute an intrusion into the Erignac family's private life. The applicant company also disputed the alleged indecency of the photograph. 16. In a judgment delivered on 24 February 1998 the Paris Court of Appeal upheld the interim order, but modified the content of the statement. Having had regard, in particular, to Article 10 of the Convention, the Court of Appeal ruled that: “... under the provisions of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, exercise of the right to freedom of expression may be subject to such penalties as are prescribed by law and are necessary in a democratic society for the protection of the rights of others; ... Article 9 § 2 of the Civil Code embodies a penalty that meets the requirements of the aforesaid provisions, namely that judges may, without prejudice to a right to compensation for damage sustained, order any measures, such as seizure, attachment and others, that may prevent an intrusion into private life or cause it to cease; in the event of urgency such measures may be ordered on an interlocutory application.” ... in the instant case ... the offending photograph, as published ... by the weekly Paris-Match, clearly shows the body and face of Claude Erignac, lying on the ground in a street in Ajaccio in the moments following his murder on 6 February 1998; ... the publication of that photograph at a time when Mr Erignac's close family was still in mourning, as it was done without their consent, constituted a gross intrusion into their grief and, accordingly, the intimacy of their private life; ... in the presence of such an intrusion an urgent-applications judge who finds, as in the instant case, that he is unable materially to make the intrusion cease, by a seizure measure, for example, is empowered by the last of the laws mentioned above to prescribe any other appropriate measure; ... it follows that the measure of publishing a statement prescribed by the first judge is legally justified under the provisions of Article 9 § 2 of the Civil Code, provided that its purpose is to cause the intrusion into the Erignac family's private life to cease; ... in order to satisfy that requirement, the content of the statement should be modified in the manner prescribed in the operative provisions of this judgment, and the decision ordering its publication should be combined with a fine ...”. 17. The Court of Appeal ordered the publication, in the first issue of Paris-Match to be published after the judgment had been served, of a statement worded as follows: “... in bold characters half a centimetre high, under the heading “Publication of court judgment”, in a box measuring 15 x 7.5 centimetres: “In a judgment of 24 February 1998, the Paris Court of Appeal ordered the publication of the following statement: The photograph of the body of Claude Erignac lying on the ground in a street in Ajaccio which appeared in edition 2543 of the weekly Paris Match, dated 19 February 1998, was published without the consent of Claude Erignac's family, who consider its publication as an intrusion into the intimacy of their private life” ...” 18. The applicant company lodged an appeal on points of law, claiming among other things that there had been a violation of Article 10 of the Convention. 19. In a judgment of 20 December 2000 the Court of Cassation dismissed the appeal for the following reasons: “... having noted that the photograph published clearly showed the body and face of the murdered prefect lying on the ground in a street in Ajaccio, the Court of Appeal was able to rule that the picture concerned showed disregard for human dignity and that its publication was illegal, its decision thus being legally justified with regard to the requirements of Article 10 of the European Convention and Article 16 of the Civil Code ...”. 20. The Erignac family brought no proceedings on the merits. 21. Article 808 reads as follows: “In all urgent cases the President of the tribunal de grande instance may order any interim measures which are not seriously disputable or are justified by the existence of a dispute.” 22. Article 809 reads as follows: “The president may order at any time, even in the event of a serious dispute, such measures to preserve or restore the present position as are necessary either to prevent imminent damage or to put an end to a manifestly unlawful infringement. Where the existence of an obligation is not seriously disputable, he may award an advance to the entitled party, or order the execution of the obligation, even if it is an obligation to take action.” 23. Article 9 provides: “Everyone has the right to respect for his private life. Judges may, without prejudice to a right to compensation for damage sustained, order any measures, such as seizure, attachment and others, that may prevent an intrusion into private life or cause it to cease; in the event of urgency such measures may be ordered on an interlocutory application.” 24. Article 16 of the Civil Code provides as follows: “The law ensures the primacy of the person, prohibits any infringement of a person's dignity and guarantees respect for the human being from the beginning of life.” 25. Section 38, paragraph 3, of the version in force at the material time – which was repealed on 16 June 2000 – provided: “[A fine of 25,000 French francs] shall be applicable in established cases of publication, by any means, of photographs, engravings, drawings or portraits reproducing all or part of the circumstances of any of the crimes and offences provided for in chapters I, II and VII of part II of book II of the Criminal Code.” [which cover murder, among other things].

dev

001-93260

ENG

HRV

CHAMBER

CASE OF MARESTI v. CROATIA

Violation of Art. 6-1;Violation of P7-4;Remainder inadmissible;Non-pecuniary damage - Award

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

4. The applicant was born in 1965 and lives in Pazin. 5. On 16 June 2005 the Pazin Police lodged a request for minor-offences proceedings to be instituted against the applicant in the Pazin Minor-Offences Court (Prekršajni sud u Pazinu). In a decision of the same day the Pazin Minor-Offences Court found that at about 7 p.m. on 15 June 2005 at the Pazin coach terminal, the applicant had, while under the influence of alcohol, verbally insulted one D.R., punched him in the head several times and proceeded to kick and punch him about the body. The applicant was found guilty of particularly offensive behaviour in a public place in that he had insulted another and caused a breach of the peace. This constituted a minor offence under section 6 of the Minor Offences against Public Order and Peace Act for which he was sentenced to forty days’ imprisonment. That decision became final on 29 June 2005. The relevant part of the decision reads: “Defendant: Armando Maresti ... is guilty in that at 7 p.m. on 15 June 2005 at the coach terminal in Pazin, while under the influence of alcohol, he ... firstly insulted D.R. ... and then pushed him with both hands and, when he fought back, started to hit him with his fists many times to the head before continuing to punch and kick him about his entire body. ...” 6. On 14 July 2005 the Pazin State Attorney’s Office (Općinsko državno odvjetništvo Pazin) lodged an indictment with the Pazin Municipal Court (Općinski sud u Pazinu) accusing the applicant of causing grievous bodily injury to A.M. 7. The applicant was represented in the proceedings by counsel. On 9 September 2005 his counsel submitted a written request for all correspondence to go through him and enclosed a signed authority by the applicant’s mother. At the time the applicant was serving a prison sentence in Pula Prison. 8. On 15 November 2005 the Pazin State Attorney’s Office lodged an indictment with the Pazin Municipal Court accusing the applicant of causing grievous bodily injury to D.R. It relied in the indictment on a police report on the events of 15 June 2005. 9. On 12 April 2006 the Municipal Court joined three separate sets of criminal proceedings against the applicant, including the proceedings in respect of the alleged assaults on A.M. and D.R. On the same day it ordered the applicant’s detention on the grounds that he had been indicted in several sets of proceedings, had a number of previous convictions and would be liable to reoffend if left at large. 10. On 19 May 2006 the Municipal Court found the applicant guilty on two counts of assault causing grievous bodily injury and one count of making death threats. In respect of the incident at the Pazin coach terminal on 15 June 2005, it found that the applicant had approached D.R. and insulted him verbally before proceeding to punch and kick him about the body. He was sentenced to one year’s imprisonment in respect of all the offences of which he was convicted. The time he had already served in connection with his conviction in the summary proceedings before the Minor-Offences Court was to be deducted from his sentence. He was ordered to undergo compulsory treatment for alcohol addiction during his imprisonment. The relevant part of the judgment reads: “Defendant Armando Maresti ... is guilty because ... 2) at about 7 p.m. on 15 June 2005. at the coach terminal in Pazin, while under the influence of alcohol, he ... approached D.R. ... and firstly insulted him verbally, ... and then proceeded to push him with both hands before hitting him on the head with his fists breaking his dental prosthesis; when he [D.R.] attempted to leave, the defendant caught him, pushed him to the ground and kicked him about his entire body thereby causing him a number of injuries...” 11. In an appeal of 7 June 2006 the applicant alleged, inter alia, that in respect of the offences against A.M. and D.R. he had already been convicted by the Pazin Minor-Offences Court and that the non bis in idem rule had been violated. On 30 June 2006 the Pula County Court (Županijski sud u Puli) allowed the applicant’s appeal in respect of the offence against A.M., on grounds other than the alleged violation of the non bis in idem rule, and upheld his convictions of the other two offences, while reducing the overall sentence to seven months’ imprisonment. 12. The appellate judgment was served on the applicant’s mother on 9 August 2006 and on his counsel on 16 August 2006. On 13 September 2006 the applicant’s counsel lodged a request with the Pazin Municipal Court for extraordinary review of the final judgment. He argued, inter alia, that the applicant had acted in self defence and repeated the submission he had made on appeal that, as the applicant had already been convicted by the Pazin Minor-Offences Court , the non bis in idem rule had been violated. 13. In a decision of 14 September 2006, the Municipal Court declared the request inadmissible as it had been lodged outside the one-month time limit. On an appeal against that decision, the applicant argued that the impugned judgment had not been properly served since his mother suffered from schizophrenia and was not capable of clear judgment and so could not be regarded as an adult member of the same household within the meaning of Article 146, paragraph 1, of the Code of Criminal Procedure. He supported that assertion with a medical certificate. He further argued that his request for extraordinary review of the final judgment had been lodged within one month after it was served on his counsel and so had complied with the prescribed time-limit. 14. On 23 February 2007 the Pula County Court dismissed the appeal after finding that the applicant’s mother had signed an authority for the applicant’s legal representation in the criminal proceedings, so that it could not be said that she had been incapable of clear judgment. 15. In a subsequent constitutional complaint lodged on 23 March 2007 the applicant argued, inter alia, that the judgment of the Pula County Court of 30 June 2006 had not been properly served on him and that his right to a remedy had thus been violated. On 24 May 2007 the Constitutional Court declared the complaint inadmissible on the ground that it did not concern the merits of the case. 16. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows: “Correspondence for which this Act does not specifically prescribe personal service shall also be served personally. Where, however, the intended recipient is not found on the premises..., it may be served on an adult member of the same household who shall be bound to accept service...” “An infringement of the Criminal Code arises if: ... 3. there exist circumstances which exclude criminal prosecution, in particular, where ... the matter has already been finally adjudicated, ...” “(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act. (2) A request for the extraordinary review of a final judgment shall be lodged within a month after the final judgment has been served on the defendant. ...” “The Supreme Court shall decide requests for the extraordinary review of a final judgment.” “A request for the extraordinary review of a final judgment may be lodged [in respect of]: 1. an infringement of the Criminal Code to the detriment of the convicted person under Article 368(1)-(4) of this Act... ... 3. an infringement of the defence rights at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.” 17. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997) read as follows: “Whoever inflicts bodily injury on another or impairs another’s health shall be sentenced to imprisonment for a term of no less than three months and not exceeding three years.” 18. The relevant part of the Minor Offences against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira, Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads: “Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.”

dev

001-90751

ENG

TUR

CHAMBER

CASE OF GAVRIEL v. TURKEY

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

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

7. The applicant was born in 1942 and lives in the United Kingdom. 8. The applicant claimed that until 14 August 1974 he and his family used to live in Morphou (Cyprus) in a detached house with a yard (area: 229 sq. m). This property was registered in the name of the applicant’s wife under plot no. 315, sheet/plan 19/32.5.2. On 14 August 1974, as the Turkish forces were advancing, the applicant and his family fled their home leaving behind all its contents, including precious personal belongings. 9. The applicant also claimed that he was the owner of the following plots of land in northern Cyprus: (a) Nicosia/Kapouti, plot no. 576, sheet/plan 19/16, field, area: 5,017 sq. m; (b) Kyrenia/Livera, plot no. 39/1, sheet/plan 5/62W1, field, area: 112,149 sq. m; (c) Kyrenia/Livera, plot no. 14, sheet/plan 5/62W2, field, area: 171,549 sq. m; (d) Kyrenia/Livera, plot no. 34, sheet/plan 5/63W1, field, area: 22,074 sq. m; (e) Kyrenia/Livera, plot no. 45, sheet/plan 5/63W1, field, area: 11,582 sq. m. 10. In support of his claim of ownership the applicant produced the relevant certificates of registration and affirmations of ownership issued by the Republic of Cyprus. 11. The applicant alleged that from 14 August 1974 onwards he had not been able to return to his house and had been continuously prevented from exercising his property rights and enjoying his properties.

dev

001-61696

ENG

TUR

CHAMBER

CASE OF AHMET ÖZKAN AND OTHERS v. TURKEY

No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 8 - Right to respect for private and family life;Pecuniary and non-pecuniary damage - award

8. The case mainly concerns events which took place in 1993 in the village of Ormaniçi in the Güçlükonak district of the Şırnak province in south-east Turkey. The applicants alleged that, on 20 February 1993, security forces had attacked Ormaniçi, as a result of which two children had died. The applicants further alleged that on the same day the security forces had set fire to houses in Ormaniçi and had taken most of the male villagers into detention. The applicants claimed that these men had been subjected to ill-treatment in detention, resulting in various serious injuries and the death of one villager. They further alleged that the security forces had returned to Ormaniçi later in 1993, when they had burned houses and destroyed harvested crops, and that they had returned once again in the spring of 1994 when they had killed four villagers and forced the villagers to leave Ormaniçi. 9. The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 2 to 4 April 1998 and from 5 to 10 October 1998 from 25 applicants, 8 other villager witnesses and 15 officials. 10. The certified transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court. 11. The parties' submissions on the facts (Sections A and B) and the proceedings conducted before the domestic authorities (Section C) are summarised below. The documentary material before the Court is summarised in Appendix II and the oral evidence to the Delegates in Appendix III, which appendices are available on the Court's website and which are held in the Court's archives. 12. In the early morning of 20 February 1993, military forces attacked the village of Ormaniçi. Many soldiers were dressed in white camouflage gear. There was snow on the ground and it was very cold. The military forces started attacking the village with rifles and heavy weaponry and later moved into the village, systematically removing each family from their house and taking them to the village square. Many families were unable to dress and were forced into the open with their children without proper clothing and/or shoes. 13. Most of the male villagers were beaten as they were taken to the village square, where they were made to lie face down in the mud and snow, and were subsequently blindfolded. The villagers arrived in the square between 10 a.m. and 12 noon and remained there until just before sunset. The women and children were also assembled near the village square but were not blindfolded. 14. While the villagers were being gathered in the square, a detailed search of all the properties was conducted and the soldiers began systematically setting fire to the homes, using an incendiary agent that they appeared to have brought with them specifically for this purpose. Many of the animals which were kept in stables or were wandering around the village were shot, or burned in their stables. 15. During the raid one soldier threw a bomb into the house of a villager called Mevlüde Ekin. The bomb exploded, causing severe intestinal injuries to her six-year-old-daughter Abide. Ms Ekin and her other children, together with Abide, were then evacuated to the village square. The village muhtar, Mehmet Aslan, was taken to the house of Mevlüde Ekin to accompany the soldiers in a search. It was claimed that somebody had been shooting from her house at the soldiers when the bomb was thrown. During this search a soldier inside the house was shot and killed instantaneously. The army commander instructed Mehmet Aslan to indicate that he had been shot by terrorists, whereas he had in fact been shot by another soldier. 16. Just before sunset about twelve people who had been blindfolded, including Mevlüde Ekin's daughter Halime Ekin, were taken from Ormaniçi to Şırnak by helicopter. They were placed in custody in Şırnak. The remainder of the men were roped together and forced to walk blindfolded and, in many cases, without adequate clothing or footwear, from Ormaniçi to Güçlükonak. They had to walk some 7 kilometres in the snow, which took 2½ hours. 17. When the men arrived in Güçlükonak, they were put into a partly constructed military building. The floors were wet and constantly under water to a depth of about 10 cm. There was no heating or furniture. Many of the men were not fed for several days. They were systematically tortured and forced, whilst blindfolded, to fingerprint statements which had been prepared for them. They suffered various forms of torture including electric shock treatment, burning with hot metal bars, beatings, and anal rape with a truncheon and with bottles. 18. As a result of the walk to Güçlükonak and the conditions of detention there, many of the men suffered severe injuries to their feet, some of which required subsequent amputation of toes or feet. The men at Güçlükonak were moved to Şırnak by helicopter on or about 5 March 1993. 19. The persons who had been taken directly to Şırnak were also tortured and forced to sign statements. Allegations were put to them that they were members or supporters of the PKK. One man, İbrahim Ekinci, having been tortured, fell ill and was removed to hospital, where he died of pneumonia on 16 March 1993. 20. On 21 February 1993, military forces returned to Ormaniçi to burn more houses and kill more animals. The women of the village, together with the children, slept in the mosque, in caves, and in some unburned outbuildings. Abide Ekin died in the mosque, without having received medical attention for her injuries. A few days later, another child, Ali Yıldırım, was killed as a result of the explosion of a mortar bomb or grenade that had been left in the village by the military forces after the attack on 20 February 1993. 21. Most of the detained villagers were released either on 9 or 16 March 1993. They appeared before public prosecutors at Eruh (Siirt district) and many complained of the torture that they had suffered. On 30 April 1993 a number of the men were charged with terrorist offences, which were to be tried before the Diyarbakır State Security Court. A number of villagers remained in custody until approximately June 1993. Two villagers, Mehmet Nuri Özkan and Ali Erbek, were still in custody at the time of the oral hearing held in October 1998. Mehmet Nuri Özkan has been released since, but Ali Erbek is currently still in custody. 22. Both before and at the time of the transfer of the men from Şırnak to Eruh a number were taken to the Mardin and Diyarbakır State Hospitals, where they were placed in the prison wing. After medical treatment, some had parts of their feet amputated. This was the case of Fahrettin Özkan, who was only 13 years old at the material time. 23. At the time of their release on 9 and 13 March 1993 respectively, the majority of the detained men were taken by bus to Siirt and subsequently to a nearby village. For the most part they returned to Ormaniçi by mule since they were unable to walk. During the period between 9 March 1993 and the summer/autumn of 1993, as they gradually recovered from their injuries, many of the men attempted to rebuild the burnt houses. 24. In the late summer or autumn of 1993 there was a further incident in Ormaniçi. On this occasion all the villagers were assembled near the school. Two women were taken into the school and tortured and the soldiers went to a number of houses and removed all of the harvested crops and destroyed them. Some more buildings were also burnt, and further animals died after eating contaminated food. Many of the villagers had left the village to live in caves nearby but had continued to cultivate their land. 25. A number of other villagers returned to Ormaniçi in the spring of 1994. In or about May 1994 the soldiers came to the village once more and gunfire was heard in the orchards and fields nearby. After that the soldiers arrived in the village indicating that they had killed seven terrorists. In fact four villagers had been killed as well as three alleged members of the PKK. After this incident the villagers were given three days to leave the village, otherwise they would be killed. They all left and moved to various towns in south-east Turkey, including Güçlükonak, Tarsus and Siirt. A number also moved to İstanbul. They have been unable to return to the village since that date. Some have remained in a neighbouring village. 26. In August 1994 the Government carried out an investigation in Ormaniçi into the events which had taken place there in February 1993. No investigation was carried out into the detention of the villagers in Güçlükonak or Şırnak, notwithstanding the injuries they had suffered whilst in custody. None of the applicants has been offered any compensation for their losses. 27. While the security forces were approaching the village of Ormaniçi on 20 February 1993 in order to carry out a search in the valley of the Ormaniçi stream, they came under fire from the village. 28. In the course of the ensuing clash, the roofs of some houses in the village caught fire as a result of being hit by tracer bullets fired in the course of the exchange of fire. No house was deliberately set on fire by members of the security forces involved in the incident. Although some livestock in the village may have died of suffocation caused by smoke, none of the members of the security forces involved deliberately killed any livestock there. 29. Apart from one soldier who was killed when conducting a search in one of the houses of the village, nobody was injured or killed in Ormaniçi on 20 February 1993. 30. Those villagers who were subsequently taken into detention were not ill-treated during their detention. The injuries sustained by a number of these villagers, which in the case of four villagers resulted in the amputation of toes, had been caused by frostbite, for which they received medical treatment while in detention. 31. One of the villagers taken into detention, who suffered from epilepsy, was transferred to hospital while in detention. He subsequently died in hospital of natural causes. 32. On 31 March 1993 the Eruh public prosecutor issued a decision of lack of jurisdiction in respect of 42 persons who had been taken into detention on 20 February 1993 in the village of Ormaniçi and referred the case to the office of the public prosecutor at the Diyarbakır State Security Court. 33. On 30 April 1993 the public prosecutor at the Diyarbakır State Security Court issued a decision of non-prosecution in respect of 25 Ormaniçi villagers for lack of sufficient evidence of the charges of membership of the PKK or aiding and abetting the PKK. These villagers were consequently released. 34. As regards the other 17 Ormaniçi villagers, on 30 April 1993 the public prosecutor at the Diyarbakır State Security Court issued an indictment committing them to appear before the State Security Court on charges of armed activities on behalf of the PKK, membership of the PKK and/or aiding and abetting the PKK. Although most of these villagers were released at some point in time, the villagers Mehmet Nuri Özkan and Ali Erbek were still in detention in October 1998. In September 1998 the proceedings before the State Security Court in the case were still pending. 35. On 24 June 1993 the public prosecutor at the Diyarbakır State Security Court took a decision of non-prosecution in relation to the death on 17 March 1993 of İbrahim Ekinci, one of the Ormaniçi villagers taken into detention on 20 February 1993. In this decision it was noted that the cause of death found had been pneumonia and it was held that no offence had been committed in that the incident was due to no one's fault or influence. It was decided that, unless there were any objections, there were no grounds for instituting proceedings. 36. The applicants did not make an official complaint about the destruction of their property and homes or about their treatment in detention. On 12 April 1993 Ayşe Ekinci filed a criminal complaint with the office of the public prosecutor in Cizre in relation to her husband İbrahim Ekinci, who had died in hospital while in detention. 37. On 15 August 1994, on the basis of this criminal complaint, the Eruh public prosecutor took a decision of non-prosecution. In his decision it was pointed out that the cause of death found was pneumonia. 38. After the Commission had communicated the applicants' complaints to the Government, the Turkish Ministry of Justice ordered an investigation into the events of 20 February 1993 in Ormaniçi, including the death of two children in the village. 39. On 10 August 1994 the Siirt public prosecutor carried out an on-site inspection in Ormaniçi in order to establish whether houses had been demolished and burned and to take statements from applicants. He was accompanied by a civil engineer, who drew up a separate report on the conditions of the houses found in Ormaniçi. Also on 10 August 1994, the Eruh public prosecutor went to Ormaniçi in order to carry out an investigation of the death of two children, Abide Ekin and Ali Yıldırım, in the course of which the two children's remains were disinterred. 40. On 27 June 1995 the Eruh public prosecutor issued a decision of lack of jurisdiction in the investigation concerning the death of Abide Ekin and Ali Yıldırım. In his decision it was found to have been established that the children had died as a result of the explosion of explosive devices with which they had played and which had been left unexploded after the incident in Ormaniçi on 20 February 1993. The offence was described as causing the death of two persons by leaving explosive material in the village. According to this decision, the perpetrators – referred to as defendants – were an unspecified number of illegal PKK terrorists. The decision further stated that the case file was to be transmitted to the office of the public prosecutor at the Diyarbakır State Security Court for further proceedings. 41. On 21 July 1995 the public prosecutor at the Diyarbakır State Security Court decided that the Eruh public prosecutor – in co-operation with the Eruh District Gendarmerie Command, the Siirt Directorate of Security and the Siirt Provincial Gendarmerie Command – was to conduct a further investigation into the deaths of Abide Ekin and Ali Yıldırım and to communicate the results of this investigation to the office of the public prosecutor at the Diyarbakır State Security Court at regular intervals. It appears that such reports were sent on a regular basis. According to the wording of the last report made available, a letter of 3 June 1998 from the Siirt Provincial Directorate of Security to the office of the public prosecutor at the Diyarbakır State Security Court: “the incident occurred as a result of the activities of the outlawed PKK terrorist organisation and upon the establishment of open [as yet unknown] identities and apprehension of the perpetrators information will be submitted separately”. 42. No information has been submitted as to the outcome of the investigation conducted by the Siirt public prosecutor into the destruction of houses in Ormaniçi. 43. Since approximately 1985 serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers' Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. By 1996 the violence had claimed the lives of 4,036 civilians and 3,884 members of the security forces. In 1987 ten of the eleven provinces of south-eastern Turkey became the subject of emergency rule. 44. Two principal decrees relating to the south-eastern region were made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). Decree no. 285 (of 10 July 1987) established a regional governorship of the state of emergency region in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the Decree, all public security forces and the Gendarmerie Public Peace Command were at the disposal of the regional governor. Decree no. 430 (of 16 December 1990) reinforced the powers of the regional governor. 45. The number of provinces affected by the emergency rule decreased over the period between 1987 and November 2002. The state of emergency in south-east Turkey was fully lifted on 30 November 2002 when the emergency rule ceased to apply to the last two provinces affected by it. 46. The Turkish Criminal Code (Türk Ceza Kanunu) makes it a criminal offence, inter alia: – to deprive someone unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); – to coerce through force or threats (Article 188) – to issue threats (Article 191) – to subject someone to torture and ill-treatment (Articles 243 and 245); – to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450); – to commit arson (Articles 369, 370, 371, and 372), or aggravated arson if human life is endangered (Article 382); – to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); and – to damage another's property intentionally (Articles 526 et seq.). 47. 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 the security forces as well as to 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). Pursuant to Article 135a of the Turkish Code of Criminal Procedure, evidence obtained by way of torture or ill-treatment is not admissible in criminal proceedings. 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 exercise of his duty is 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). A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 48. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey. An appeal against a conviction of a terrorist offence by a State Security Court lies with the Court of Cassation (Yargitay). 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. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the relevant local administrative council (for the district or province, depending on the suspect's status). That council will appoint an investigator (muhakik) to conduct the preliminary investigation, on the basis of which the council will decide whether to prosecute. These councils are made up of civil servants, chaired by the governor. If a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. A decision not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. 50. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285, the 1914 Law on the prosecution of civil servants 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 to 14 of Law no. 353). 52. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage because of an act of the authorities may file a claim for compensation within one year after the alleged act was committed. 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.” 54. 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. 55. However, Article 8 of Legislative Decree no. 430 of 16 December 1990 (see paragraph 44 above) provided: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by 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.” 56. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 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). 57. 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). 58. Article 19 of the Turkish Constitution provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ... The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days... These time-limits may be extended during a state of emergency... A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful. Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.” 59. Article 168 of the Turkish Criminal Code reads as follows: “Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.” 60. Article 169 of the Turkish Criminal Code provides: “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years' imprisonment...” 61. Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”. Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections 3 and 4 of the Act are increased by one half. 62. Under section 9(a) of Law no. 2845 on procedure in the State Security Courts, only these courts can try cases involving the offences defined in Articles 168 and 169 of the Criminal Code. 63. At the material time, section 30 of Law no. 3842 of 18 November 1992 provided that, with regard to offences within the jurisdiction of the State Security Courts – including those mentioned in paragraph 61 above – any arrested person had to be brought before a judge within fortyeight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively. 64. Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides: “Compensation shall be paid by the State in respect of all damage sustained by persons (1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or (7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...” 65. On 6 August 1990 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation: “1. The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to [amount] to a threat to the life of the nation in the meaning of Article 15 of the Convention. During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces. 2. The threat to national security is predominantly [occurring] in provinces of South East Anatolia and partly also in adjacent provinces. 3. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights. 4. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10 1990 the decrees with force of law [nos.] 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention [on] Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13. A descriptive summary of the new measures is attached hereto...” 66. A descriptive summary of the contents of the Legislative Decrees nos. 424 and 425 was annexed to this notice. 67. According to a note in the notice of derogation, “the threat to national security [was] predominantly occurring” in the provinces of Elazığ, Bingöl, Tunceli, Van, Diyarbakır, Mardin, Siirt, Hakkari, Batman and Şırnak. 68. In a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Legislative Decree no. 424 had been replaced by Legislative Decree no. 430, promulgated on 16 December 1990. A descriptive summary of the decree was appended to this letter. 69. On 5 May 1992 the Permanent Representative of Turkey wrote to the Secretary General in the following terms: “As most of the measures described in the decrees which have the force of law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention, are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention only. The derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention is no longer in effect; consequently, the corresponding reference to these Articles is hereby deleted from the said Notice of Derogation.” 70. On 1 February 2002 the Turkish Government informed the Secretary General that its Notice of Derogation in respect of Article 5 of the Convention had been withdrawn. 71. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) of the Council of Europe has carried out sixteen visits to Turkey between September 1990 and September 2002. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of illtreatment of persons deprived of their liberty, in particular, relating to those held in police custody. A third periodic visit took place at the end of 1992. Further visits took place in October 1994, August and September 1996 and October 1997. The CPT's report on its visit in October 1997 was made public on 23 February 1999 with the authorisation of the Turkish Government. 72. In a public statement of 15 December 1992, the CPT reported that on its first visit to Turkey in 1990 it had reached the conclusion that torture and other forms of severe ill-treatment were important characteristics of police custody. It noted that the following types of illtreatment had been alleged time and time again - inter alia, Palestinian hanging, electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. It emphasised that its medical examinations had disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and a psychological nature. The on-site observations in police establishments had revealed extremely poor material conditions of detention. It stated that on its second visit in 1991 it had found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons had made complaints of similar types of ill-treatment. An increasing number of allegations had been heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims had been found on examination to display marks or conditions consistent with their allegations. The CPT stated that on its third visit (a periodic visit) from 22 November to 3 December 1992 its delegation had been inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. In Ankara police headquarters and Diyarbakır police headquarters, it found equipment which was consistent with use for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”. 73. In its second public statement issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe illtreatment by the police. A considerable number of persons examined by the delegations' forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police, and in particular of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the Anti-Terror Department at İstanbul Police Headquarters, cases which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. The persons examined showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible. It concluded that recourse to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey. 74. In the CPT report on its visit in October 1997, it noted that the existence and extent of the problem of torture and other forms of ill-treatment of criminal suspects by law-enforcement officials – and, more particularly, by police officers – had been established beyond all doubt in the course of previous CPT visits to Turkey between 1990 and 1996. Further, in recent times, senior political figures had openly recognised the realities of the situation. During the CPT's visit in October 1997, a considerable number of allegations were once again heard of torture and ill-treatment by law-enforcement officials. Those allegations emanated from both ordinary criminal offenders and persons detained in respect of offences falling under the jurisdiction of the State Security Courts. Further, medical evidence of recent ill-treatment by the police was obtained by the CPT delegation. 75. The CPT further observed that several of the police establishments visited still possessed interrogation rooms of a highly intimidating nature and stressed that facilities of this kind had no place in a modern police service. 76. In the CPT report on its visit in September 2001, published on 24 April 2002 with the authorisation of the Turkish Government, the CPT expressed concerns about the continued use in the eastern part of Turkey of interrogation rooms with a highly intimidating character, such as those seen in the Anti-Terror Departments at Ağrı, Elazığ, Erzurum and Van Police Headquarters and in Van Provincial Gendarmerie Headquarters. According to the CPT, such oppressive facilities had no place in a modern police service. 77. The CPT further stated in this report that the findings made in the September 2001 visit indicated that the blindfolding of persons in police/gendarmerie custody remained common practice throughout Turkey and that persons suspected of narcotics or terrorist offences were apparently particularly prone to this practice. It noted that blindfolds were usually applied at the “preliminary questioning” stage prior to the taking of a formal statement, i.e. at the time when ill-treatment was most likely to occur. It could further not be ruled out that blindfolds were also applied at later stages. The CPT had been told by certain persons that they had been obliged to sign statements attributed to them whilst blindfolded. After the CPT delegation had discovered a blindfold in an interrogation room inspected, the delegation was informed by a senior officer that it would be applied to certain suspects undergoing questioning in order to prevent them from seeing the interrogating officers. In its report the CPT stated that it was clear from the information gathered by it over the years that in many, if not most, cases, persons were blindfolded in order to prevent them from being able to identify law-enforcement officials who inflicted ill-treatment upon them. As a result of this practice, legal proceedings against those who tortured and illtreated could be severely hampered. 78. As regards the medical examination of persons held in custody, as already addressed in considerable detail in previous CPT visit reports, the CPT noted that dialogue with the Turkish authorities on this point had focused on two issues: the principle that law-enforcement officials should not be present during the medical examination, and possible exceptions to that principle; and the need to ensure that doctors carrying out the medical examination used the standard forensic medical form approved by the Turkish authorities. The CPT delegation that carried out the visit in September 2001 found that there remained much room for progress as regards both these issues, in particular in the eastern part of Turkey, where interviews with detained persons suggested that it was very rare for lawenforcement officials not to be present during medical examinations. Numerous persons stated that they had been warned prior to the examination not to say anything to the doctor about the treatment they had received, and that the presence of law-enforcement officials during the examination had ensured that they heeded that warning. Some persons interviewed stated that when the doctor had inquired as to the origin of injuries they bore the law-enforcement official present had protested. Doctors at the Primary Health Care Centre in Elazığ acknowledged that the examination always took place in the presence of police officers or members of the gendarmerie. In discussion with doctors at Van State Hospital, it was indicated that it was common for two or more persons to be examined simultaneously and that lesions observed might not be recorded “in order to avoid problems with the police”. The CPT further concluded that it was clear that, instead of using the “General Judicial Medical Examination Form” approved by the Turkish authorities, the old practice of very brief findings set out on a piece of paper without any headings, and often covering several detained persons, remained common. 79. Reiterating that no legal safeguard against ill-treatment was more fundamental than the requirement that the fact of a person's deprivation of liberty be recorded without delay, the CPT indicated in its report that the current practice concerning the recording of detention required improvements in certain respects. It appeared that the trigger for making an entry in the book of admissions was the fact of placing someone in a cell. As a person could be deprived of his liberty for several hours in a lawenforcement establishment before being placed in a cell, this initial period of detention often appeared to go unrecorded. 80. In the preliminary observations made by the CPT delegation on its visit carried out in March 2002, it was noted that prison staff were still present during medical examinations. The CPT delegation further indicated that it had gathered compelling evidence of severe ill-treatment of several persons held by the gendarmerie in Diyarbakır in late 2001. This illtreatment had apparently begun during the initial period of custody and had continued during the period spent in the custody of the gendarmerie. The delegates' visit to the Provincial Gendarmerie Command, where the illtreatment was said to have occurred, reinforced the credibility of the allegations made. It was of an oppressive and intimidating nature, not unlike the facilities criticised in the CPT report on its September 2001 visit. 81. The CPT delegates further discovered that, in Diyarbakır, lawenforcement officials were systematically present when suspects were medically examined at the outset and at the end of their custody. Many prisoners interviewed told the CPT delegates that they had been warned not to make any complaints to the doctor about how they had been treated, and that the presence of law-enforcement officials had deterred them from making complaints. Some doctors spoken to indicated that, despite their objections, law-enforcement officials had been present during medical examinations. Moreover, some doctors mentioned cases in which reports which they had drawn up recording injuries had been torn up by law-enforcement officials.

dev

001-70863

ENG

UKR

CHAMBER

CASE OF KECHKO v. UKRAINE

Violation of P1-1;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

7. The applicant was born in 1945 and resides in the city of Donetsk, Ukraine. 8. The applicant has worked as an English teacher in a secondary school since 1984. 9. On 23 March 1996 the Ukrainian Parliament adopted a new wording for the Education Act that provided for, in particular, the payment of certain benefits to teachers. 10. On 2 April 1999 the applicant instituted civil proceedings in the Leninsky District Court of Donetsk against the Leninsky District Department for Education, claiming entitlement to those benefits. The applicant maintained that he had more than 10 years’ of service and was thus entitled to a 20% increase in his salary as from 1 January 1997. However, the defendant had not paid him this increase. He further maintained that the defendant had not paid him annual bonuses for excellent work and recreation. The defendant stated that the claimed amounts could not be paid because the State budgets for 1997-1999 did not make any provision for such expenditures. 11. On 5 October 1999 the court found in part for the applicant. The court rejected the applicant’s claim for an excellent work bonus as such a payment required an assessment of the applicant’s work which was outside the court’s competence. The court also rejected the applicant’s claim for unpaid benefits in 1997 and 1998 as being out of time, according to the law on employment disputes. The court further rejected the applicant’s claim for benefits after 1 June 1999 as the Secondary Education Act, adopted in May 1999, had suspended them. The court, however, awarded the applicant the claimed increase in salary for the period between 1 January and 1 June 1999. 12. The applicant appealed against this decision to the Donetsk Regional Court. 13. On 4 November 1999 the regional court quashed the decision of the first instance court and remitted the case for a fresh consideration. The court noted, in particular, that the Secondary Education Act had entered into force on 23 June 1999; therefore the first instance court had erroneously overlooked the period between 1 and 23 June 1999. 14. On 24 February 2000 the Leninsky District Court of Donetsk ruled against the applicant. The court found that, under the transitional clauses of the Secondary Education Act, the provision entitling the applicant to benefits would only resume force on 1 September 2001. Thus, at the time of the examination of the claim, there was no legal basis for it. 15. On 30 March 2000, the Donetsk Regional Court upheld the decision of the first instance court. It observed that the claims of the applicant for the periods prior to the adoption of the Secondary Education Act could not be satisfied, since at the time of the consideration of the case the relevant provisions of the Education Act had been suspended by the Secondary Education Act. This decision was final. 16. At the material time, Article 233 of the Labour Code of Ukraine provided that employees could institute proceedings in respect of an employment dispute within three months from the date on which they learned or could have been expected to learn that there had been an infringement of their rights. By an Act of 11 July 2001, this article was supplemented by a provision repealing time-limits for disputes concerning salary arrears. 17. Article 57 of the Education (Amendment) Act 1996 provided for a 20% increase in salary for teachers who had worked in the education system for more than 10 years. The same article provided for an annual payment for recreation and an annual bonus for the performance of excellent work. Between 23 June 1999 and 1 September 2001 these provisions were suspended by the Secondary Education Act mentioned below. 18. The second paragraph of Article 43 of the Secondary Education Act of 13 May 1999 provided that teachers of State and municipal secondary schools would be paid their salaries and benefits under Article 57 of the Education Act out of the State Budget of Ukraine. The transitional clause of the former Act stipulated that Article 43 would enter into force on 1 September 2001.