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ECHR

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dev

001-111397

ENG

SRB

CHAMBER

CASE OF MILOSAVLJEV v. SERBIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

5. The applicant was born in 1947 and lives in Kikinda. 6. 7. In September 2000 the applicant bought a car (Mercedes 190D) from a person who lived in Germany. His intention was to use it as a taxi. Since the car was already more than six years old, the applicant was unable to have it directly registered in Serbia. Therefore, he first had the car registered in Bosnia and Herzegovina, in his relative’s name, and only registered the car in Serbia in December 2000, which was when the latter State adopted legislation making this arrangement possible. 8. On 21 January 2003 the Municipality of Kikinda issued a decision stating that the applicant, being a taxi driver since 20 September 2002, would from now on be using the car at issue as a taxi. 9. On 6 May 2004 the police seized the applicant’s car because of a customs violation (carinski prekršaj). 10. On 5 July 2004 the Customs Office (Komisija za carinske prekršaje Carinarnice Zrenjanin) discontinued the misdemeanour proceedings (prekšajni postupak) brought against the applicant, but decided nevertheless to confiscate his vehicle. The Customs Office explained that it was convinced that the applicant had committed the offence in question, i.e. that he had accepted to import a vehicle which could not have legally been imported and had not informed the competent customs authorities thereof, but noted that the misdemeanour proceedings could not be continued in view of the applicable “relative prescription” period (relativna zastarelost). The confiscation, however, was warranted since no “absolute prescription” (apsolutna zastarelost) had occurred (see paragraphs 23-25 below). 11. On 21 July 2004 the applicant filed an appeal against this decision, noting that the Customs Office had failed to properly establish the relevant facts, and had also come to “an erroneous legal conclusion” leading to the ultimate confiscation of his car. 12. On 18 February 2005 the Ministry of Finance (Ministarstvo finansija) rejected this appeal. In so doing, it stated, inter alia, that absolute prescription had not occurred and that the impugned confiscation was thus lawful. 13. On an unspecified date thereafter the Customs Office apparently sold the applicant’s car to a third person. The money thus obtained was deposited with the Ministry of Finance. 14. On 16 March 2005 the applicant filed an appeal on points of law (zahtev za vanredno preispitivanje pravosnažnog rešenja), re-stating his earlier arguments. 15. On 2 February 2007 the Supreme Court (Vrhovni sud Srbije) rejected the applicant’s appeal on points of law and upheld the impugned decision of the Ministry of Finance, as well as its reasoning. 16. The Government disagreed with some of the facts provided by the applicant and furnished additional details, which may be summarised as follows. 17. The applicant bought a second-hand car (Mercedes 190D) in August 2000 from a person who lived in Germany. The car’s former owner returned the licence plates to the competent German authorities. 18. At that time and given the vehicle age limitation requirement, the car in question could not have been legally imported to Serbia. In any event, even if this were possible, the applicant would have had to pay a significant sum for customs duties and taxes, i.e. a total of 44% of the catalogue value of the car. 19. At some point in 2000 the Government announced that it was considering a decree which would make it possible to import cars from one of the former Yugoslav republics free from any duties or taxes, and irrespective of the vehicle’s age. This decree was ultimately adopted in December 2000 (see paragraph 28 below). 20. The applicant then used forged documents to prove that the car had been registered in Bosnia and Herzegovina, in another person’s name, for the past three years. Thus he secured the enjoyment of the benefits provided by the said decree and succeeded in registering the car in Serbia on 12 December 2000. 21. On 23 March 2005 the Municipal Court (Opštinski sud) in Kikinda found the applicant guilty of having committed the crime of securing official certification of false information (navođenje na overavanje neistinitog sadržaja). In particular, the Municipal Court established that the applicant had submitted a forged document, i.e. a false Bosnian-Herzegovinian traffic permit, meant to indicate that the car in question was being imported from Bosnia and Herzegovina, rather than Germany, on the basis of which the competent Serbian authorities had issued him with a Serbian traffic permit (saobraćajna dozvola). The applicant, who had paid 5,000 German Marks (DEM) for the car, was sentenced to three months’ imprisonment, suspended for a period of one year. 22. On 1 June 2005 the District Court (Okružni sud) in Zrenjanin upheld this judgment on appeal, and it thereby became final. 23. Article 199 provides that customs-related misdemeanour proceedings may not be instituted if more than three years have elapsed as of the date of commission of the offence in question (relative prescription). 24. Article 204 § 2 provides, inter alia, that a vehicle used for the commission of a customs-related offence may be confiscated even when, for legal reasons, no proceedings may be brought against the perpetrator, except in cases of absolute prescription. 25. Article 48 provides, inter alia, that even if misdemeanour proceedings have been instituted absolute prescription shall occur when twice the time required for relative prescription has elapsed. 26. The Official Gazette of the Republic of Serbia no. 55/04 of 21 May 2004 published an amendment to this Act, whereby, inter alia, the Federal Misdemeanours Act 1977 was repealed in its entirety. 27. However, Article 69 § 7 of the Misdemeanours Act 1989, as amended, substantively corresponds to Article 48 § 1 of the former Federal Misdemeanours Act 1977. 28. In 1997 and 2000 two separate decrees were adopted by the Government (Uredba o registraciji vozila iz bivših republika SFRJ koje nisu u sastavu Savezne Republike Jugoslavije, published in OG FRY no. 32/1997, and Uredba o posebnoj naknadi za registraciju određenih vozila, published in OG RS nos. 49/2000, 51/2000 and 7/2001.) They set out the requirements for the registration of certain vehicles in Serbia, including those registered in one of the former Yugoslav republics. 29. Article 69 § 1 provides, inter alia, that objects used for the commission of a crime may be confiscated if they belong to the perpetrator. 30. Articles 84-87 provide, inter alia, that any pecuniary benefit obtained as a result of the commission of a crime shall be confiscated. The pecuniary benefit in question may include money, physical objects and any other valuables. Should confiscation in kind be impossible, the perpetrator may be obliged to pay a certain sum which shall be proportionate to his or her illegal gains.

dev

001-111372

ENG

LVA

ADMISSIBILITY

VAN DEILENA v. LATVIA

Inadmissible

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

1. The applicant, Mrs Diāna van Deilena, is a Latvian national who was born in 1975. According to the information provided by the applicant, she lives in the Valka district. 2. The facts of the case as submitted by the parties may be summarised as follows. 3. On 31 October 2001 a public prosecutor dismissed a request submitted by B.D.V. to institute criminal proceedings against the applicant, who had allegedly abused her powers as a bailiff. 4. B.D.V. appealed against the decision to the Prosecutor General. She also complained to the Head of the Clemency Board of the Chancery of the President Member of Parliament and to a member of parliament. The latter subsequently contacted the Prosecutor General, asking him to pay particular attention to the appeal. 5. On 21 February 2002 a prosecutor of the Prosecutor General’s Office initiated criminal proceedings against the applicant in response to B.D.V’s complaint. 6. On 24 January 2003 public prosecutor S.G. charged the applicant with abuse of her position as a bailiff. 7. On 12 November 2003 the same prosecutor finished drafting the bill of indictment (apsūdzības raksts) in the applicant’s case. 8. On 19 November 2003 the criminal case was transferred to Rīga Ziemeļu District Court for adjudication. 9. Information concerning the pre-trial investigation in the applicant’s criminal case appeared in a number of articles published in various Latvian newspapers and was broadcast on the radio and television before the first-instance court proceedings. According to the applicant, public statements made by public prosecutor D.K.V. on 26 February 2002, by prosecutors S.G. and D.K.V. on 3 February 2004, and by the judge of the Ziemeļu District Court, N.R., and prosecutor D.K.V. on 6 July 2004 had undermined her right to be presumed innocent. 10. On 30 September 2004 the applicant was found guilty of having abused her position as a bailiff and of fraud, and sentenced to two years and six months’ imprisonment. She was arrested in the courtroom. 11. The applicant appealed against the lower court’s judgment and requested, inter alia, that the preventive measure imposed on her pending the appeal proceedings be changed. The applicant indicated that she had suffered from bronchial asthma since childhood and therefore required special medication and adequate nutrition and living conditions, needs which would not be met in detention. 12. On 11 November 2004 the Rīga Regional Court lifted the detention order pending the outcome of the appeal. 13. On 19 December 2005 the Rīga Regional Court upheld the judgment of the first-instance court and ordered the applicant’s imprisonment. The court noted that although the applicant’s state of health was to be regarded as a mitigating circumstance, it did not warrant changing the sentence to a more lenient one. 14. On 22 May 2006 the Criminal Chamber of the Supreme Court dismissed the applicant’s appeal on points of law. 15. On 28 July 2006 the applicant applied to the Ziemeļu District Court, requesting postponement of the execution of the prison sentence due to her poor state of health. 16. Between 14 and 25 August 2006 the applicant was hospitalised. She was diagnosed as suffering, inter alia, from persistent bronchial asthma of moderate severity, emphysema and dermatitis. Medical treatment was recommended. 17. On 16 August 2006 the Ziemeļu District Court established that since 14 August 2006 the applicant has been hospitalised because of the exacerbation of her bronchial asthma, and postponed the execution of the sentence until the applicant’s discharge from hospital. 18. The applicant appealed against the decision, arguing that her state of health had deteriorated and that it would be necessary to continue rehabilitation and physical therapy even after her discharge from the hospital. 19. On 8 September 2006 the Rīga Regional Court examined the applicant’s ancillary complaint. The public prosecutor participating in the hearing stated that the applicant had suffered from bronchial asthma since birth, and that, according to him, although the illness could not be completely cured it would be possible to provide the applicant with the recommended inhalation treatment and medication in prison. 20. The court dismissed the applicant’s complaint, establishing that the applicant had been discharged from hospital on 25 August 2006 and that there was no evidence that her state of health would preclude the execution of the sentence. It also noted that the applicant had not claimed that she could not receive the recommended medication in prison. 21. On 17 October 2006 the applicant requested that the Ziemeļu District Court postpone the execution of the sentence because of a rehabilitation course she had to undergo between 23 November and 23 December 2006. 22. On 13 November 2006 the Ziemeļu District Court dismissed the request. 23. From 23 November to 23 December 2006 the applicant underwent the planned rehabilitation course. 24. On 11 January 2007 the applicant started serving her sentence in Iļğuciema Prison. 25. In her initial complaint of 17 November 2006 the applicant alleged that during the period from 30 September 2004 until 11 November 2004 she spent in Iļģuciema Prison pending trial (see paragraphs 10 and 12 above), her state of health had deteriorated due to the poor detention conditions and absence of adequate medical assistance. 26. From January to May 2007 the applicant was detained in Iļģuciema Prison under a partly closed imprisonment regime. 27. In her complaint of 26 February 2007 the applicant described her cell as small, insufficiently ventilated and dusty. She alleged that as a result in addition to two types of asthma medication she also had to take other medication on a daily basis, such as painkillers for headaches. Intensive use of her inhaler had had an adverse effect on her already ailing stomach. 28. As to access to emergency medical assistance, the applicant noted that when another detainee had called for emergency help, it had arrived only after an hour. The applicant was thus not sure whether the same would happen to her. 29. The applicant further stated that the doctor was available only once a week on appointment. 30. As to the access to medication, the applicant submitted that she had had to wait two weeks to receive a gel for back pain. Since medication was distributed by the medical personnel twice a day, at 10 a.m. and 6 p.m., and had to be used immediately, the applicant had problems in following the doctor’s recommendations that she take her medication before or after meals. She also complained that she did not have access to physiotherapy, and that she could not follow the principles of ergonomics owing to the lack of appropriate furniture in her cell. 31. On 29 March 2007, after the applicant’s complaint had been communicated to the Government, the applicant’s husband wrote on behalf of the applicant to inform the Court that the applicant wished to complain about the fact that she had not been separated from her fellow inmates. He also referred to a letter she had sent him in which she mentioned that her back pain and asthma had worsened, but that over the last few weeks the prison medical personnel had been trying to take care of her. In particular, she was visiting the doctor on a weekly basis and had received vitamin injections in order to ease her back pain. She had also received herbal treatment to avoid excessive use of her inhalers, and was receiving additional pills for asthma on a weekly basis. 32. On 21 December 2007, in reply to the Government’s observations, the applicant submitted further information which, according to her, demonstrated the poor quality of medical assistance in prison. The applicant stated that once a week she could visit the head doctor and a general practitioner, but that the latter had left the office in September 2007. She further contended that the doctors had done nothing to prevent her from increasing the use of inhalers, and that her lungs had only been checked a couple months after her arrival. She admitted having refused to have an x-ray because she had had two before her imprisonment. The applicant also referred to the fact that if she wished to consult a doctor of her choice in Iļģuciema Prison, it would take about two months to arrange. 33. The applicant admitted that the medical unit of Iļģuciema Prison had some medication and vitamins, and that she received several types of medicine for asthma. She complained, however, that the purchase of medication was a lengthy procedure and therefore she usually purchased hers in advance; however due to the above procedure once she had had to wait several weeks to have a regular injection of vitamin B. She also mentioned that even though the head doctor had authorised the purchase of food supplements in May 2007 she had only obtained them in October 2007, when tests carried out outside the prison showed that she was hepatitis C positive. With respect to the latter condition, the applicant noted that in accordance with the instructions of her doctor, she was taking special medication and refraining from using painkillers. 34. She also complained that her medical card did not contain complete records of the medication she had received from the nurses of the prison medical unit, such as painkillers and medication for an allergy. 35. The applicant further contended that she had had to resolve the problem of a worn out bed herself by obtaining a wooden plank from her fellow inmate, and that she did not go on her daily walks because she was afraid of the other inmates who, according to her, considered her as a member of the law-enforcement institutions. 36. In May 2007 the applicant was transferred to a more lenient regime in Iļģuciema Prison and in January 2008 she was transferred to the Vecumnieki open prison. It appears that in August 2008, at the latest, she was released from prison. 37. Relying on the information provided by the Prison Authority, the applicant’s cell, which she shared with another inmate, measured 7.95 sq m. The cell was renovated five years ago, and provided access to daylight, ventilation and toilet facilities. The applicant had an hour of outdoor exercise a day. On 30 May 2007 the applicant was transferred to another regime under which time outside was not limited and she had access to an equipped gym. 38. Pursuant to the information provided by the Prison Authority, the applicant could make an appointment with any of the prison doctors (two generalists, a gynaecologist, a psychiatrist, an ear, nose and throat specialist and a dentist) once a week. For emergencies the doctors were on call from 8:30 a.m. to 5 p.m., and medical personnel were on duty in the prison twenty-four hours a day. 39. According to the medical records kept during the applicant’s imprisonment in Iļģuciema Prison (which at the time of submitting the Government’s observations had lasted almost five months) the applicant had been examined by the prison doctors eighteen times; on fifteen of those occasions she was examined at her own request. Throughout her stay the applicant had had all the necessary medication for her bronchial asthma, and had had her own inhaler. 40. At the Government Agent’s request, on 14 May 2007 the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”) assessed the adequacy of the medical assistance in Iļģuciema Prison. The conclusion stated that the inmates could have consultations with various certified medical doctors according to a schedule, and that the assistance of certified medical personnel was available twenty-four hours a day, including a certified nurse specialised in respiratory diseases. In cases of necessity inmates were admitted to a public hospital, and they could receive out-patient medical treatment at the medical unit of the prison. The latter was certified and supplied with the necessary medication. 41. From 13 May to 1 June 2007 the MADEKKI assessed the adequacy of the applicant’s medical treatment in Iļģuciema Prison. The MADEKKI report noted that the applicant suffered from moderate asthma, the treatment of which did not require permanent medical supervision. It also noted that, if necessary, the applicant could receive medical assistance in the medical unit of the prison, which was supplied with the necessary medication, including for bronchial asthma. The report concluded that the applicant’s medical treatment in Iļģuciema Prison had been adequate, and that treatment had been prescribed according to objective assessment of the applicant’s health. The conclusion of the report was not contested. 42. In September/October 2007 the applicant had a week’s leave from Iļģuciema Prison during which she underwent various out-patient medical examinations, including a comprehensive blood test and a tomography, and consulted her practitioner and neurologist. A CT analysis showed that the applicant had a spinal disc hernia. She was prescribed various medicines and physiotherapy. She was also diagnosed as hepatitis C positive. 43. In letters of 5 and 23 February 2007 the applicant asked for the assistance of the Ombudsman’s Office in obtaining a transfer to an open-type prison. The applicant contended that as a former bailiff she was entitled to separation from other inmates, but that in Iļģuciema Prison she could not avoid contact with other prisoners during walks, while shopping at the prison shop, during workshops and doing laundry or other activities. 44. On the basis of that complaint the Ombudsman’s Office launched an investigation in the framework of which he requested information from Iļģuciema Prison and arranged for a representative from the Office to visit the prison. On 14 August 2007 the Ombudsman informed the applicant that there were sufficient safeguards in place concerning the security of inmates in the prison, and that the applicant’s health and life were not under threat. 45. Pursuant to section 638(1) of the Law on Criminal Procedure (Kriminālprocesa likums), if deprivation of liberty has been imposed on a convicted person who has fallen ill with a serious condition that hinders the execution of a sentence, a court may suspend it until he or she recovers. “4. Iļģuciema Prison ... 122. The material conditions of sentenced prisoners, who were located in Blocks 1 and 2, could be considered as globally acceptable. The prisoners were accommodated in well-equipped dormitories measuring from 24 to 40 m², holding from 4 to 12 persons each. Access to natural light, artificial lighting, ventilation and heating were adequate. Moreover, as a rule, the dormitories were in a satisfactory state of repair and cleanliness. Prisoners had easy access to outside toilets and showers, and had at their disposal a small kitchenette where they could prepare their own meals. Although of a relatively outdated design and presenting some signs of wear-and-tear, the detention units gave a pleasant - even homely - impression, with many plants and colourful decorations. 123. The regime of activities varied slightly according to the category to which the prisoners concerned belonged (based on the length of the sentence). Differences consisted essentially in the degree of freedom of movement and access to privileges, such as extended visiting time. However, all prisoners benefited from a wide range of activities - sport in the well-equipped gym, education (tailors vocational school programme, Latvian and English courses, and a computer class), games, TV room, library”. 48. The report of 15 December 2009 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 27 November to 7 December 2007 notes: “73. At the outset, the CPT welcomes the fact that the old Prison hospital on the premises of Rīga Central Prison has been withdrawn from service, following the opening of a new Prison hospital at Olaine on 1 August 2007. Further, it wishes to place on record the good quality of the health-care services provided to female prisoners at Iļģuciema Prison (including to mothers and their children)”.

dev

001-84317

ENG

AUT

CHAMBER

CASE OF LUCKHOF and SPANNER v. AUSTRIA

No violation of Art. 6-1

Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides

6. The first applicant was born in 1955 and lives in Dillenburg, a town situated in the Federal Republic of Germany. The second applicant lives in Weissenburg, also situated in the Federal Republic of Germany. 7. On 7 August 1998 at 10.30 a.m. the car of which the applicant is the registered keeper was recorded by a radar speed detector as exceeding the speed limit by 17 k.p.h. 8. On 12 October 1998 the Deutschlandsberg District Administrative Authority (Bezirkshauptmannschaft) ordered the applicant to disclose within two weeks the full name and address of the person who had been driving his car at the material time and place on 7 August 1998. It noted that an administrative offence had been committed by the driver of the car. The order referred to section 103(2) of the Motor Vehicles Act (Kraftfahrzeuggesetz) as its legal basis. 9. On 25 October 1998 the applicant replied that, on the date at issue, he had been on holiday with some friends and could not remember who had been driving the car at the material time. 10. On 9 November 1998 the District Administrative Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103(2) and 134(1) of the Motor Vehicles Act to pay a fine of 1,500 Austrian schillings (ATS) with two days’ imprisonment in default. It found that the applicant had failed to give the requested information. 11. The applicant filed an objection against this decision. 12. On 29 December 1998 the District Administrative Authority dismissed the applicant’s objection and issued a penal order (Straferkenntnis) confirming its previous decision. 13. The applicant appealed on 20 January 1999, submitting in particular that he had not given any false information but had replied as best as he could. In any case, the obligation under section 103(2) of the Motor Vehicles Act to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by Article 6 of the Convention. 14. On 1 March 1999 the Styria Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant’s appeal. It noted in particular that the registered car keeper did not only act contrary to section 103(2) of the Road Traffic Act if he gave false information, but also if he provided incomplete information or no information at all. If need be he was obliged to keep records of the names and addresses of persons who had been driving his car. The applicant had failed to give the information requested by the District Administrative Authority’s order of 12 October 1998. As to the applicant’s complaint that the obligation to disclose the identity of the driver of his car at a given time violated his right not to incriminate himself, the Panel observed that the relevant sentence in section 103(2) had constitutional rank. In this connection it referred to the Constitutional Court’s judgment of 29 September 1988 (see paragraph 32 below). 15. On 8 June 1999 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant’s complaint. Referring to its judgment of 29 September 1988, it considered that the applicant’s complaint about an alleged violation of his right not to incriminate himself did not offer sufficient prospects of success. 16. On 5 August 1999 the Administrative Court (Verwaltungs-gerichtshof) refused to deal with the applicant’s complaint pursuant to section 33a of the Administrative Court Act since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake. This decision was served on the applicant on 26 August 1999. 17. No proceedings for speeding were brought against the applicant. 18. On 25 August 1998 at 3 p.m. the car of which the applicant is the registered keeper was parked illegally in a street in the seventh district of Vienna. 19. On 3 November 1998 the Vienna Municipal Authority (Magistratsabteilung der Stadt Wien) issued a provisional penal order against the applicant for parking contrary to the provisions of the Vienna Parking Meter Act (Wiener Parkometergesetz) and sentenced him to pay a fine of ATS 500 Austrian schillings with twelve hours’ imprisonment in default. 20. The applicant filed an objection against this decision. Consequently, the provisional penal order became invalid in accordance with section 49(2) of the Act on Administrative Offences (Verwaltungsstrafgesetz). However, the criminal proceedings against the applicant relating to the offence of illicit parking remained pending. 21. On 28 December 1998, the Vienna Municipal Authority ordered the applicant pursuant to section 1a of the Vienna Parking Meter Act to disclose within two weeks the full name and address of the person who had parked his car on 25 August 1998 at the above-mentioned place. It noted that an offence under the said Act, namely illicit parking in a short-term parking area, had been committed. The order informed the applicant that failure to provide the information or any incomplete or belated giving of information constituted an offence by virtue of section 1a taken in conjunction with section 4(2) of the Vienna Parking Meter Act. The applicant did not reply. 22. On 3 March 1999 the Vienna Municipal Authority issued a provisional penal order sentencing the applicant under section 1a taken together with Section 4 § 2 of the Vienna Parking Meter Act to pay a fine of ATS 500 with twelve hours’ imprisonment in default for failure to disclose the identity of the driver of his car. 23. The applicant lodged an objection against this decision. 24. On 10 June 1999 the Vienna Municipal Authority dismissed the applicant’s objection and issued a penal order confirming its previous decision. 25. The applicant appealed on 6 July 1999 submitting, in particular, that the imposition of a fine for failure to disclose the identity of the driver of his car violated his right not to incriminate himself as guaranteed by Article 6 of the Convention. 26. On 6 September 1999 the Vienna Independent Administrative Panel dismissed the applicant’s appeal. It noted in particular that the registered car keeper’s obligation to disclose the identity of the driver of his car pursuant to section 1a of the Vienna Parking Meter Act had to be read in conjunction with Article II of Federal Law no. 384/1986, which provided that the authority’s right to require information shall take precedence over the right to refuse to give information. This provision had constitutional rank and was comparable to the last sentence of section 103(2) of the Motor Vehicles Act. 27. On 1 February 2000 the Vienna Municipal Authority informed the applicant that the criminal proceedings against him for illicit parking had been discontinued. 28. On 6 March 2000 the Constitutional Court refused to deal with the applicant’s complaint. Having regard to its case-law relating to section 103(2) of the Motor Vehicles Act, it found that the applicant’s complaint did not offer sufficient prospects of success. 29. On 15 May 2000 the Administrative Court refused to deal with the applicant’s complaint pursuant to section 33a of the Administrative Court Act since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake. 30. Section 103(2) of the Motor Vehicles Act, as amended in 1986, (Kraftfahrgesetz) provides as follows: “The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car keeper ... must provide such information, which must include the name and address of the person concerned; if he or she is unable to give such information, he/she must name a person who can do so and who will then be under an obligation to inform the authority; the statements made by the person required to give information do not release the authority from its duty to verify’s right to require such information shall take precedence over the right to refuse to give information.” 31. The last sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985, quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits, inter alia, that a suspect be obliged on pain of a fine to incriminate himself. 32. In its judgment of 29 September 1988 (VfSlg. 11.829) the Constitutional Court found that the first to third sentences of section 103(2) of the Motor Vehicles Act, as amended in 1986, were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the last sentence of that provision, which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the last sentence of section 103(2) was contrary to the guiding principles of the constitution, but had found that this was not the case. 33. Section 134(1) of the Motor Vehicles Act, in the version in force at the material time, provided that a fine of up to ATS 30,000, or up to six weeks’ imprisonment in default, could be imposed on a person who violates the regulations of that Act. 34. The Vienna Parking Meter Act regulates the levying of parking fees in specified “short-term parking areas”. 35. The relevant part of section 1a of the Vienna Parking Meter Act reads as follows: “(1) The registered keeper of a motor vehicle ... has, if the motor vehicle has been parking in a short-term parking area liable to a fee, to inform the Municipal Authority to whom he has left the motor vehicle ... at a certain time. (2) The information, which must include the name and address of the person concerned, is to be provided immediately or, in case of a written request, within two weeks after the request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept.” 36. According to section 4(2) of the Vienna Parking Meter Act, in the version in force at the material time, a fine of up to ATS 3,000 could be imposed for a failure to comply with the obligation laid down in Section 1a. 37. The relevant part of Article II of Federal Law no. 384/1986 reads as follows: “Where the Länder, in regulating the levying of fees for the parking of motor vehicles ... oblige the registered keeper ... to inform the authority upon its request to whom he has left the motor vehicle ... at a certain time, the authority’s right to require such information shall take precedence over the right to refuse to give information.” This provision was enacted as a provision of constitutional rank. 38. Pursuant to section 5 of the Act on Administrative Offences (Verwaltungsstrafgesetz) any administrative criminal offence may be committed by negligence, unless provided otherwise. 39. Pursuant to section 16 of that Act an administrative fine is to be accompanied by a default prison term of up to fourteen days’ imprisonment, unless provided otherwise. The enforcement of a default prison term is regulated by section 54b of the Act on Administrative Offences. It is only admissible if it is established that the fine is not recoverable. The competent authority has to conduct enforcement proceedings, in which the person concerned has the possibility to request a stay of the payment or payment by instalments. Only if the enforcement of the fine proves to be unsuccessful can an order for the enforcement of the default prison term be made. The order must inform the person concerned that payment of the fine can be made at any time in order to avert the execution of the default prison term.

dev

001-59096

ENG

POL

CHAMBER

CASE OF JABLONSKI v. POLAND

Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Georg Ress

7. On the night of 23 April 1992 the applicant went to a doctor, asking him to come to the aid of J.C. He alleged that the latter had been seriously battered by unknown persons. J.C., who suffered serious injuries to his head, was immediately taken to hospital. His life was saved. On 21 May 1992 the Białystok Regional Prosecutor (Prokurator Wojewódzki) charged the applicant with aggravated theft, armed robbery and attempted homicide, and detained him on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature. The investigation was completed on 12 August 1992. 8. Shortly after that date, the applicant asked for an order referring the case for a further investigation. In particular, he asked for evidence to be obtained from certain witnesses. The prosecutor dismissed his request for witnesses to be called but ordered that an expert report be obtained from psychiatrists in order to ascertain the applicant’s mental state. 9. On 12 October 1992 the Białystok Regional Prosecutor lodged a bill of indictment with the Białystok Regional Court (Sąd Wojewódzki). The applicant was indicted on charges of attempted homicide, armed robbery and aggravated theft. 10. From October 1992 until the end of 1993 the applicant, who was at the material time detained in Białystok Remand Centre, was on hunger strike. On 26 October 1992 he apparently intentionally injured his left hand. 11. On 1 September 1993 the Białystok Regional Court rejected the applicant’s request for release made on an unknown date. The court held that the reasons originally given for his detention, that is to say, the reasonable suspicion that he had committed the offences with which he had been charged and the serious nature of those offences, were still valid. On the other hand, the court found no reason to release the applicant on health grounds or on any of the grounds listed in Article 218 of the Code of Criminal Procedure (see also paragraph 60 in fine below) because it considered that the applicant’s continued hunger strike was aimed at compelling the court to make a “favourable decision” on his detention. 12. On 9 December 1993 the applicant was admitted to the hospital of the Faculty of Gastrology of the Białystok Academy of Medicine. He received treatment until 17 December 1993. An entry in the relevant medical record made on 17 December 1993 read, in so far as relevant: “[the applicant] was admitted to our hospital in a state of extreme exhaustion..., he complained about general weakness, pain in his chest and heart palpitations. Subsequent tests showed that there was an extremely low level of haemoglobin in his blood ... [4.1% and 6.7% according to the tests] ... resulting from a chronic deficiency of iron and vitamins. During the treatment he was given two transfusions and iron compounds were administered ... as a result his condition improved ... Recommendations: good food and further treatment. From the medical point of view, he should not now be kept in prison.” 13. On 17 December 1993 the applicant was taken to and redetained in Barczewo Prison. He was placed in a ward for internal diseases, where he remained until 24 December 1993. He was diagnosed as having anaemia and gastritis. Since the applicant had not consented to any further medical tests and had refused to take medicaments, he was again placed in a prison ward. 14. In the meantime, the trial court had listed hearings for 27 November 1992, 20 January, 2 June and 24 September 1993 but had cancelled all of them on the ground that the applicant had been on hunger strike. On 1 December 1993 the trial was adjourned because the applicant had refused to leave his cell. 15. On 4 January 1994 the applicant wrote a letter to the Minister of Justice, requesting that he release him in view of the very bad state of his health. That letter was deemed to be an application for release under Article 214 of the Code of Criminal Procedure, referred to the Białystok Regional Court and dismissed by that court on 31 January 1994. The court found that the applicant’s detention should continue because there was a reasonable suspicion that he had committed the serious offences with which he had been charged. The court agreed that from the medical point of view the applicant should not be kept in prison. It stressed, however, that his poor health resulted from his behaviour, especially his hunger strike, and therefore refused to release him. 16. On 14 February 1994, on an appeal by the applicant, the Białystok Court of Appeal (Sąd Apelacyjny) upheld that decision and the grounds given for it. 17. On 13 March 1994 the applicant inserted several pieces of metal into his right eye. On 20 and 27 March 1994 he inserted pieces of metal into his left eye. On 23 March 1994 he was examined by a psychiatrist who concluded that those acts of self-harm were a form of his protest against the prolongation of the criminal proceedings against him and his detention. Later, the applicant was placed in an ophthalmic ward of Bytom Prison Hospital where he received treatment from 25 April to 23 June 1994. After that treatment, three pieces of metal were left in the applicant’s eyes. 18. On 29 April 1994 the Białystok Regional Court dismissed a subsequent application for release, originally addressed by the applicant to the State Council of Judiciary (Krajowa Rada Sądownictwa) and referred by the Council to the trial court. The court considered that the applicant should be held in detention for the following reasons: “... In the light of documentary evidence, it is beyond any dispute that the state of [the applicant’s] health is not the best one. However, he himself is responsible for that because he has brought himself [to this state] by his several-week long hunger-strikes, acts of self-harm and his further refusal to undergo medical treatment. ... The court cannot lift the detention order because of the nature of the offences charged, the serious social danger created by them and the fact that [the applicant] is tried as a recidivist within the meaning of Article 60 § 1 of the Criminal Code, militate against it. It must, however, be noted that the state of [the applicant’s] health, although not a good one, does not constitute a danger to his life within the meaning of Article 218 of the Code of Criminal Procedure because he is under medical care and [his condition] has resulted from his own acts. ...” 19. On an unknown date in June 1994 the applicant again asked the Białystok Regional Court to release him on health grounds. The application was dismissed on 29 June 1994. On 15 July 1994 the applicant made a further application for release, submitting that, in the meantime, he had received a letter from a civil hospital in Katowice confirming that he could be admitted to that hospital in order to undergo ophthalmic treatment. The application was dismissed at first instance on 15 July 1994 and, on appeal, by the Białystok Court of Appeal, on 11 August 1994. Both courts held that there was no valid reason to release the applicant as his condition, even though serious, had been aggravated by the injuries which he had inflicted on himself. The courts also relied on the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature. 20. On 31 August 1994 the applicant asked the Białystok Regional Court to obtain evidence from an expert in ophthalmology. He maintained that he was suffering from an unbearably severe pain in his eyes. The court referred the matter to the authorities of Białystok Remand Centre. On 28 September 1994 the Deputy Governor dealt with that application and refused to call an ophthalmologist on the grounds that in the opinion of the doctors who had previously examined the applicant there had been no need to treat him in a civil hospital and that the Chief Prison Doctor of Białystok Region did not consider it appropriate to call such an expert. 21. On 5 October 1994 a hearing was to take place but was cancelled since, in the meantime, the applicant had inflicted certain unspecified injuries on himself. On 22 November 1994 the Regional Court cancelled the next hearing because the applicant, when leaving his cell had injured himself by hitting his head against a wall. He was then taken to Białystok Hospital and examined by a neurologist. 22. On 5 December 1994 the court adjourned the trial hearing because it found that the applicant had again inflicted injuries on himself (he had injected saliva into his leg and had an abscess and boil on his knee). 23. On 17 January 1995 the trial was adjourned because the applicant had taken an overdose of an unspecified medicine. 24. From 17 to 22 February 1995 the applicant received treatment in Barczewo Prison Hospital. In view of that, the court cancelled a hearing listed for 21 February 1995. 25. Subsequently, on an unknown date, the applicant swallowed two metal rods and three pieces of wire. He did not consent to undergo an operation in the prison hospital. Since he was not fit to be brought to trial, the court cancelled a hearing fixed for 27 April 1995. 26. On 28 April 1995 the court asked the Governor of Barczewo Prison about the applicant’s health and when the applicant would be transferred to Białystok Remand Centre. On 10 May 1995 the Director of Barczewo Prison Hospital replied that the applicant had repeatedly inflicted injuries on himself (that is to say, he had swallowed pieces of metal) and had refused to undergo an operation. It was therefore impossible for the prison services to transfer him to Białystok Remand Centre (Białystok is some 150 kilometres distant from Barczewo). 27. On 6 June 1995 the trial court again asked the authorities of Barczewo Prison about the state of the applicant’s health. The Director of Barczewo Prison Hospital replied on 23 June that the applicant should stay in the hospital because he had pieces of metal both in his eyes and in his alimentary canal. 28. Later, the Białystok Regional Court asked the Supreme Court (Sąd Najwyższy) to transfer the applicant’s case to another regional court, a court closer to the prison in which the applicant was being held in custody. The Supreme Court rejected that request on 17 August 1995. 29. On 5 September 1995 the Deputy Governor of Barczewo Prison informed the Regional Court that the applicant was still unfit for a transfer because he had again swallowed a piece of metal. 30. On 25 October 1995 the court asked the authorities of Barczewo Prison about the state of the applicant’s health. The Director of Barczewo Prison Hospital replied on 20 November 1995 that the applicant did not have to undergo on operation on his eyes but that it was recommended that he undergo an operation on his stomach. 31. On 24 November 1995 the Białystok Regional Court dismissed a subsequent application for release made by the applicant on an unspecified date. In its decision, the court relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and their serious nature. Finding that there were no special circumstances that might justify releasing him on health grounds, the court also took into account a medical certificate which stated that the applicant could receive medical treatment in prison. 32. In the meantime, at the beginning of November 1995, the applicant had complained to the prison authorities about various ailments, in particular a cyst in his kidney and urinary problems. Several ultrasound examinations carried out at that time showed that the applicant had a cyst of a diameter of twenty millimetres in his kidney. He refused to undergo a kidney operation in the urological ward of Łódź Prison Hospital and requested to be released so as to enable him to receive medical treatment in a civil hospital. 33. On 15 December 1995 the Białystok Regional Court asked the Governor of Barczewo Prison whether the applicant could be transferred to Białystok Remand Centre. The Governor replied on 15 February 1996. He stated that prison doctors considered that the applicant was unfit for a transfer. 34. On 20 December 1995 the applicant made an application for release to the Supreme Court. 35. On 29 December 1995 the Białystok Regional Court decided to apply to the Supreme Court for the applicant’s detention on remand to be prolonged until 30 December 1996. That application was made in view of the fact that an amendment to Article 222 of the Code of Criminal Procedure (setting maximum statutory time-limits for detention on remand) was to take effect on 1 January 1996 (see paragraph 61 below) and at the time the applicant’s detention had already exceeded the relevant time-limit. In that application, the court relied on the following, principal reasons: “The trial was set for 27 November 1992 but it did not take place because the accused went on hunger strike for several months. When the accused finished his hunger strike, he deliberately inflicted injuries on himself in order to compel [the court] to make a favourable decision to vary the preventive measure imposed on him. ... That made it impossible for that court to continue, or even to start, the trial. In view of the state of his health, a state resulting from his own behaviour, [the applicant] was on several occasions examined by doctors of various specialities and was admitted to hospital for several months. It did not (and does not) emerge from the expert opinions that his state would endanger his life or health, especially as [the applicant] is under permanent medical care. At present, he is held in Barczewo Prison Hospital. For these reasons the application for his detention to be prolonged is justified. His detention should be prolonged until 30 December 1996 because, given his acts of self-harm, it is not known when the accused will be brought to trial.” Since the relevant amendment did not come into force until 4 August 1996, that application was never lodged with the Supreme Court. 36. On 30 December 1995 the Supreme Court transferred the applicant’s application for release of 20 December 1995 to the Białystok Regional Court. On 15 January 1996 the President of the Białystok Regional Court transferred it to the Chief Judge of the Criminal Division of that court. 37. On 19 January 1996 the panel of three judges, sitting as the Białystok Regional Court dismissed that application, holding that there were no circumstances concerning the applicant’s health which might militate in favour of his release and that the bad state of his health had been caused entirely by his own conduct. The court considered that the applicant wanted to compel it to “make a favourable decision on his detention” and that the “impossibility of bringing him to trial had diminished the chances of resolving his complaints”. 38. In the meantime, on an unknown date, the applicant had complained to the Supreme Court about the length of his detention, which had already exceeded three years. On 25 January 1996 his complaint was referred to the Białystok Court of Appeal. On 8 February 1996 the Vice President of that court replied to the complaint. He stated that hearings in the applicant’s case had been cancelled five times because the applicant had gone on hunger strike and then on the ground that he had inflicted injuries on himself. He also stressed that there had been no indication that the applicant should have been released on health grounds because he was, and had been, under medical care in prison. 39. On 8 March 1996 the court asked the authorities of Barczewo Prison about the applicant’s health. The Director of Barczewo Prison Hospital replied on 19 March 1996. He stated that the applicant had some of the metal objects he had swallowed in his stomach but he had refused to undergo an operation in the prison hospital. In the Director’s opinion, the applicant was fit to participate in his trial but unfit to be transferred to Białystok. 40. Later, the applicant asked the Białystok Regional Court to release him in view of his state of health. That application was dismissed on 29 March 1996. The applicant appealed against the refusal, arguing that his detention on remand had meanwhile exceeded four years and that his state of health was desperately bad. 41. On 19 April 1996 the Białystok Court of Appeal dismissed that appeal, finding that even though the applicant had been held in custody for nearly four years, the prolongation of his detention had been attributable to his behaviour alone. The court considered that the grounds originally given for his detention were still valid. It pointed out that the further course of the proceedings exclusively depended on the applicant’s behaviour. It suggested that a change in the applicant’s attitude would result in the immediate examination of his case and that such a change might in turn have resulted in the court’s “altering its view on whether the detention should be continued”. 42. On 24 April 1996 the court asked the authorities of Barczewo Prison whether the applicant could be transferred to Białystok. On 8 May 1996 the Director of Barczewo Prison Hospital informed the court of, inter alia, the following: “... [the applicant] repeatedly inflicts injuries on himself. The last instance of such behaviour took place on 7 February 1996. For that reason, he is unfit for a transfer. He can participate in his trial.” 43. On an unknown date in May or June 1996 the applicant made a subsequent application for release. On 11 June 1996 the Białystok Regional Court dismissed it in view of the high probability that he had committed the offences with which he had been charged and their serious nature. The court also found no circumstances militating in favour of releasing the applicant on health grounds, as defined in Article 218 of the Code of Criminal Procedure. In that context, it pointed out that the applicant’s health depended on himself, especially as its current state had resulted from his hunger strike and self-inflicted injuries. Finally, the court stressed that it emerged from medical evidence that his continued detention did not constitute a danger to his life or health. 44. On 10 July 1996 the court asked the authorities of Barczewo Prison whether the applicant could be transferred to Białystok Remand Centre. They replied on 16 July 1996, stating that the applicant had refused to undergo an operation on his stomach. It was recommended that he be detained in a prison hospital ward. No obstacles to transferring the applicant to Białystok were mentioned. 45. On 6 August 1996 the Białystok Regional Court requested the Supreme Court to prolong the applicant’s detention on remand until 30 July 1997 in view of the fact that he had attempted to obstruct the proper conduct of the proceedings. The court also stated: “... detention should be prolonged until 30 July 1997 ... since the accused has inflicted injuries on himself and therefore, it is not known when he will be fit to be brought to trial.” 46. On 5 September 1996 the Supreme Court, sitting in camera, prolonged the applicant’s detention until 1 March 1997, finding that the applicant had in an exceptional manner obstructed the proper conduct of the proceedings and had intentionally contributed to their length. The court also held that it was not necessary to prolong his detention until 30 July 1997 and that by 1 March 1997 the Regional Court should be able to order an additional medical examination of the applicant, to list hearings and to give judgment. On 18 September 1996 a copy of the decision of the Supreme Court was served on the applicant. 47. On 13 September 1996 the applicant complained to the Minister of Justice about the length of his detention and the conduct of the proceedings in his case. This complaint was transferred to the Białystok Regional Court and, on 3 October 1996, the President of that court replied to it. He found that there had been no irregularities in the conduct of the proceedings. He stated that all the twelve hearings listed in the period from 27 November 1992 to 27 April 1995 had been cancelled because the applicant had inflicted injuries on himself. 48. On an unknown date – apparently in September 1996 – the applicant again requested his release on health grounds. On 24 September 1996 the Białystok Regional Court dismissed his application, holding that there was a reasonable suspicion that he had committed the offences in question and that the need to ensure the proper conduct of the proceedings militated against his release. The court also held that there was no reason to release the applicant on health grounds because the ailments from which he suffered did not constitute a danger to his life or health and had resulted from his own deliberate acts of self-harm. 49. On 10 October 1996, on the applicant’s appeal, the Białystok Court of Appeal upheld that decision and held, inter alia: “It is true that the accused is sick, although most of his ailments result from self-inflicted injuries. For that reason he is under constant medical observation in prison. He also consults doctors. The prison authorities have not indicated that his condition worsened so significantly as to result in his detention in the prison hospital being a danger to him. As to the second argument adduced by the accused, an argument which in reality amounts to his objection to evidence [against him], it has to be noted that the trial court has at its disposal evidence gathered by the prosecution but has been unable to scrutinise it because the accused has been obstructing the conduct of the trial. It would therefore be in the accused’s best interest to endeavour to have his case heard. ...” 50. On 21 November 1996 the applicant was transferred to Białystok Remand Centre. On 9 December 1996 the Białystok Regional Court listed a hearing for 31 December 1996; however, that hearing was adjourned to 10 January 1997. On 24 February 1997 the trial was adjourned as most of the witnesses and the victim had failed to appear. 51. During the hearings of 27 and 28 February 1997 the Regional Court heard evidence from witnesses and dismissed the applicant’s request for further evidence to be obtained. On 28 February 1997 the court gave judgment. It convicted the applicant of aggravated theft and attempted homicide and sentenced him to fifteen years’ imprisonment, deprivation of his civil rights for eight years and a fine of 400 Polish zlotys. 52. The applicant appealed. Subsequently, on an unspecified date, he challenged J.D.-S. and J.Z.-L., two judges of the Białystok Court of Appeal assigned to sit on the appeal panel, submitting that both of them had previously dealt with his applications for release and that they did not, therefore, offer sufficient guarantees of impartiality. His challenge was dismissed by the Białystok Court of Appeal on 9 September 1997 as being ill-founded. 53. On the same day the court held an appellate hearing and gave judgment dismissing the applicant’s appeal. 54. On 18 September 1997 a copy of the judgment of the Białystok Court of Appeal was served on the applicant. On 1 October 1997 he filed a notice of cassation appeal, requesting the court to serve the statement of the reasons for the judgment on him. He submitted it to the authorities of Barczewo Prison on 3 October 1997. 55. On 20 October 1997 the Białystok Court of Appeal rejected the applicant’s notice of cassation appeal because he had lodged it outside the seven-day time-limit provided for by Article 464 § 3 of the Code of Criminal Procedure. 56. On 1 November 1997 the applicant requested the Minister of Justice to lodge a cassation appeal on his behalf. The request was dismissed on 22 January 1998. Later, the applicant – also unsuccessfully – asked the Ombudsman (Rzecznik Praw Obywatelskich) to lodge a cassation appeal on his behalf. That application was rejected on 11 December 1998. 57. During the entire period of the applicant’s detention the Polish prison authorities kept detailed medical records concerning his state of health. His records contained, among other things, entries relating to the injuries that he inflicted on himself. An entry made on 16 May 1996 contains a doctor’s note, which read, in so far as relevant: “Objects in [the] stomach?” An entry made on 20 November 1996 read: “refusal to undergo an X-ray examination; no confirmation as to the objects in his stomach.” A doctor’s note of 28 December 1996 read, in so far as relevant: “Complaints by a detainee, previous ailments and operations: objects in eyes: no complaints at present; objects in his stomach: on 25 October and 20 November 1996 [the applicant] refused to undergo an X-ray examination; on 23 December 1996 [he] claimed that there were no further objects. ... I administer a further X-ray examination. [He] complains about a pain in his stomach. ... Psychiatric examination of 4 November 1996 disclosed an abnormal personality... Diagnosis: objects in eyes; [as regards the] objects in the stomach, [to date] in the absence of results of the X-ray examination there is no confirmation that, as [the applicant] states, there are no such objects ... General condition: good; some peritoneal symptoms ... Conclusions: [the applicant] can be detained in prison. Doctor [name and signature illegible].” A subsequent X-ray examination made in January 1997 did not disclose any objects in the applicant’s stomach; it confirmed a diaphragm hernia. 58. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (Kodeks postępowania karnego) – entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. 59. The Code listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 set out the general grounds justifying imposition of the preventive measures. This provision read: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” Article 217 § 1 defined grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, stipulated: “1: Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of the proceedings by any other unlawful means; or (3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or (4) an accused has been charged with an offence which creates a serious danger to society. ...” On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read: “(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or (2) [as it stood before 1 January 1996].” Paragraph 2 of Article 217 provided: “If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to ensure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.” 60. The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate. Article 213 § 1 provided: “A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.” Article 225 stated: “Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of those measures, are considered adequate.” The provisions for “mandatory detention” (for instance, detention pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. Finally, Article 218 stipulated: “If there are no special reasons to the contrary, detention on remand should be quashed, in particular when: (1) it may seriously jeopardise the life or health of the accused, or (2) it would entail excessively burdensome effects for the accused or his family.” 61. Until 4 August 1996, i.e. the date on which the relevant provisions of a new Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set out any time-limits concerning detention on remand in the court proceedings. Originally, the provisions setting out time-limits for detention were to enter into force on 1 January 1996; however, their entry into force was eventually postponed until 4 August 1996. Article 222 of the Code of Criminal Procedure in the version applicable after 4 August 1996, insofar as relevant, provides: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person is liable to a sentence of a statutory minimum of at least three years’ imprisonment] this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, on the application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set out in paragraphs. 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also: “... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...” 62. The Supreme Court’ decision on an application under Article 222 § 4 constituted a separate legal basis for continued detention. No appeal lay in law against such a decision. In cases where the Supreme Court dismissed such an application, a detainee had to be released. As long as it had not reached a decision, an application under Article 222 § 4 was treated as a basis for the continued detention. 63. As from 1 January 1996, a party to criminal proceedings could lodge a cassation appeal (kasacja) with the Supreme Court against any final decision of an appellate court which had terminated the proceedings. Under Article 467 § 2 of the Code of Criminal Procedure, the court which gave the decision to be appealed against was competent to decide whether the formal requirements of a cassation appeal had been complied with. If an accused’s appeal had not been filed and signed by a lawyer, it had to be rejected. If an appeal had complied with the formal requirements, the case was forwarded to the Supreme Court. According to paragraph 4 of Article 467, if the Supreme Court found that the appeal was inadmissible, it gave a decision on “not taking cognisance of the merits of the cassation appeal” (postanowienie o pozostawieniu kasacji bez rozpoznania).

dev

001-66772

ENG

POL

ADMISSIBILITY

MAZUREK v. POLAND

Inadmissible

Nicolas Bratza

The applicants, Mrs Maria Mazurek and Mr Tadeusz Mazurek, are Polish nationals who were born in 1932 and 1927 respectively. They live in Rumia, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants shared an apartment with a certain married couple, J.K. and U.K. On 2 November 1992 the applicants requested the Gdynia District Court (Sad Rejonowy) to order eviction of J.K. and U.K. (“the defendants”) from the apartment. They claimed that the defendants had no legal title to occupy the premises. On 2 February 1993 the Gdynia District Court gave judgment, in which it ordered eviction of the defendants from the applicants’ apartment. The judgment became final. On 27 April 1993 the District Court issued a writ of enforcement. The case was transferred to the Rumia Municipal Office (Urzad Miasta Rumia) which was charged with enforcement of the judgment by providing the defendants with an alternative dwelling (lokal zastepczy). On 15 January 1997 the applicants lodged with the Gdańsk Governor (Wojewoda) a complaint about the inactivity of the Rumia Municipal Office. The complaint was transferred to the Gdańsk SelfGovernment Board, which ordered the Rumia Municipal Office to submit the applicants’ casefile. Subsequently, the Rumia Municipal Office informed the Gdańsk Self-Government Board that no decision had yet been made in the case. Following several complaints made by the applicants to the Municipal Office, the MPs and the Ombudsman, on 19 May 1999 the Rumia Mayor informed them that it was not possible to give an exact date when the proceedings would end because the municipality did not have available a sufficient number of alternative dwellings. On 3 January 2001 the applicants turned to the Pomorskie Governor complaining about the inactivity of the administrative authorities. On 5 January 2001 the Pomorskie Governor requested the Rumia Mayor to deal with the case as soon as possible. On 20 February 2001 the Rumia Mayor provided the defendants with an alternative dwelling. According to the Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych), enforcement of a final court’s judgment concerning the provision of an alternative dwelling should be dealt by the municipalities in accordance with the provisions of the Code of Administrative Procedure. Article 35 of the Code of Administrative Procedure lays down timelimits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new timelimit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent future such delays. Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge with the Supreme Administrative Court a complaint about the fact that an administrative authority had failed to issue a decision. On 1 October 1995, when a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) took effect, Article 216 of the Code of Administrative Procedure was repealed. Under section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint against inactivity on the part of an authority obliged to issue an administrative decision. Section 26 of the Law provides: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” Moreover, the Court notes that pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question. Pursuant to section 31 of the Law, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under Article 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code. Such a claim should be first lodged with that authority. A decision on the compensation claim should be taken by that administrative authority within three months. If the authority concerned fails to give a ruling in this respect within this timelimit, or if the party is not satisfied with the compensation granted, a compensation claim against the administrative body can be lodged with a civil court. Section 34 of the 1995 Act sets out the requirement of the exhaustion of available remedies before lodging a complaint with the Supreme Administrative Court. Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the abovementioned Article 37 of the Code of Administrative Procedure.

dev

001-67982

ENG

BGR

CHAMBER

CASE OF KEHAYOV v. BULGARIA

Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award

Christos Rozakis

9. The applicant was born in 1971 and lives in Plovdiv. 10. On 27 December 1997 the applicant was arrested, brought before an investigator and detained on rape charges. A prosecutor confirmed the detention on the same day. Later in the course of the investigation he was also charged with abduction. 11. Between 27 December 1997 and 5 January 1998 the investigator conducted searches in the applicant's apartment, ordered an expert analysis of various traces and objects and questioned the applicant. 12. On 5 January 1998 the applicant appealed to the Plovdiv District Court against the detention order. 13. In accordance with the established practice, the appeal was submitted through the investigation authorities, which transmitted it to the District Court on 15 January 1998. The matter was listed for a hearing on 19 January 1998. 14. On 19 January 1998 the applicant's lawyer requested access to the case file, which was refused by the judge on the same day. 15. At the hearing on 19 January 1998 the applicant's lawyer requested the withdrawal of the president of the bench as she had recently sought his prosecution for alleged defamatory statements. The lawyer was concerned that the judge's hostility towards him might prejudice his client's interests. The request for the judge's withdrawal was granted and the case adjourned. 16. On 21 January 1998 the case was assigned to another bench and listed for hearing on 23 January 1998. 17. On 21 January 1998 the applicant's lawyer reiterated his request for access to the case file. The request was refused on the same day. 18. The applicant's appeal against his detention was eventually heard on 23 January 1998. 19. At the opening of the hearing the judge refused to allow the participation of the applicant's lawyer, considering that his written authority form was invalid. The judge stated that the authority had only been signed by the applicant's wife and not by the applicant, that it bore no indication of the lawyer's fees and that it had not been made on a sheet from the usual lawyers' receipt-books. 20. Thereupon, the applicant, who was also present, handed to the judge another written authorisation, signed by him. The court refused to accept it as the case file number had not been marked on it. As a result, the applicant had to present his case without legal representation. 21. Having heard the applicant, the court dismissed his appeal against detention, stating that he was charged with a serious criminal offence. The court went on to conclude that the fact that the applicant had refused to sign the minutes of his first interrogations and to comment on the charges right away had demonstrated that he lacked critical judgment of his behaviour, which in turn revealed a danger that he would abscond and re-offend. 22. On 13 April 1998 the applicant filed a new appeal against detention, referring to passages in a psychiatrists' report concerning his mental state (see paragraph 41 below). On 13 April 1998 the applicant also filed a request for the replacement of the president of the bench, arguing that his partiality had been demonstrated by his behaviour at the hearing on 23 January 1998. The lawyer did not enclose a power of attorney and did not indicate his address and telephone number. 23. On 27 April 1998 the appeal was forwarded by the prosecution authorities to the District Court, where it was registered on 6 May 1998. A hearing was listed for 11 May 1998. The applicant, but not his lawyer, was summoned. 24. At the hearing on 11 May 1998 the applicant requested an adjournment as his lawyer was not present. The District Court, sitting in a new composition, noted that the applicant's lawyer had not been summoned as he had not indicated his address. It nevertheless decided to adjourn the case in view of the applicant's request. A second hearing was listed for 21 May 1998. 25. On 12 May 1998 the applicant's lawyer requested to be given access to the case file. 26. On 21 May 1998 the Plovdiv District Court heard the prosecutor, the applicant and two lawyers acting for him. The District Court dismissed the lawyers' request for an adjournment to allow consultation of the case file, referring to “the practice” and endorsing the prosecutor's view that it was for the investigator to decide what material should be provided to lawyers. 27. As to the merits, the applicant argued that his health was unstable, that the conditions of detention were unacceptable and that he had to help his parents, one of whom was ill, in their seasonal agricultural work. 28. The District Court dismissed the applicant's appeal against detention noting the psychiatrists' conclusion that the applicant was mentally healthy and that other relatives had been taking care of the applicant's sick mother. The court also had regard to the fact that the charges concerned a serious offence, allegedly committed during the operational period of the applicant's suspended sentence for a previous conviction, and concluded that there was a danger that he might obstruct the course of justice and reoffend. As to the conditions of the applicant's detention, the court stated that a transfer to another detention facility could be recommended. 29. On 8 June 1998, before completing the investigation, the investigator gave the applicant and his lawyer access to all the material in the case. On 11 June 1998 the investigator drew up a report proposing that the applicant be indicted. 30. The indictment on charges of rape and abduction was prepared by a prosecutor and submitted to the District Court on 28 July 1998. 31. At the first hearing, held on 1 October 1998, the District Court examined the applicant's renewed appeal against his detention and dismissed it, noting that he was charged with a serious wilful offence which required his remand in custody and that, in any event, the charges concerned an offence allegedly committed during the operational period of the applicant's previous suspended sentence for another offence. This latter fact left no doubt that there was a danger that the applicant would commit further offences. Finally, the court also endorsed the prosecutor's position that there was a reasonable suspicion against the applicant and that the fact that the charges concerned a violent offence should be taken into account. 32. At the hearing held on 23 November 1998 the applicant submitted another application for release on the grounds that his detention was unreasonably long, that the court failed to conduct a prompt trial and that there was no convincing evidence against him. Ms D., the victim, stated that she feared that if released the applicant may hurt her. She had learned that the applicant's parents had been asking others about her new address. The court ruled against the applicant's release. It noted that under the relevant law remand in custody was required in all cases where the charges concerned serious offences. It further stated that there was a danger that the applicant would obstruct the course of justice in view of the fact that he had been charged with more than one offence and that he had a criminal record. Therefore, the applicant's statements about his good character and family circumstances did not warrant release. 33. On 18 December 1998 the Plovdiv District Court found the applicant guilty of rape, sentenced him to two years' imprisonment and acquitted him of the charges of abduction. On 30 April 1999 the Plovdiv Regional Court upheld the conviction and sentence. 34. The applicant produced copies of correspondence in January and March 1998 from the presidents of the Plovdiv District Court and of the Plovdiv Regional Court to the local Bar Association, apparently in reaction to complaints made by lawyers about an existing practice of barring access to case files in cases concerning appeals against pre-trial detention. 35. The president of the District Court acknowledged that the complaints were well-founded and stated, inter alia, that, “[r]egrettably, District Court judges rely on the hitherto prevailing practice and do not share my opinion ...” 36. The president of the Regional Court informed the Bar Association that the matter had been discussed at length and that the judges had agreed that, contrary to the opinion of the Chief Public Prosecutor's Office and the Regional Prosecutor's Office in Plovdiv, there were no legal grounds for refusing access to case files in appeals against detention proceedings. 37. Between 25 December 1997 and 16 June 1998 the applicant was kept in a lock-up at the Regional Investigation Office in Plovdiv. 38. The cell, where the applicant was detained together with three other people, measured 3 x 3.5m (a surface of 10.5 m²). Since there were no beds, the detainees slept on mattresses on the floor. According to the applicant, the blankets were not washed regularly. The Government disputed that allegation. The cell did not have access to daylight and was equipped with a 100W electric lamp. There was a ventilation system. According to the applicant the ventilation system was only installed “in 1998”. He also submitted that in winter the temperature in his cell did not rise above 1012 Co. According to the Government, the cell was centrally heated and the temperature therein was normal. 39. The applicant and the other detainees were allowed to leave the cell twice a day, at 6.30 a.m. and 6.30 p.m., for toilet purposes and washing. To relieve themselves outside the time earmarked for toilet visits, the detainees had to use a bucket. They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities. They were provided with detergents. Once per week the buckets were disinfected chemically. No possibility for spending time in the open or physical exercise was provided. The detainees could also leave the cell when they received visits or were brought for questioning or taken to court. They showered once per week in winter and twice per week in summer. Apparently hot water was available. 40. Food was provided three times per day in the cell. It was served in pots or mugs which the detainees had to wash after every meal and which were collected and disinfected periodically. For security reasons, no forks or knives were provided. According to the applicant, the food was of bad quality. The Government stated that meat was available at least once per day. 41. In April 1998 psychiatry experts who had examined the applicant with a view to verifying his legal capacity to stand trial submitted their report. They noted that a year or two earlier the applicant had undergone periods of depression and violent or inadequate behaviour. He had been admitted for a day to a psychiatric hospital on suspicion of suffering from paranoid schizophrenia. However, the experts concluded that the applicant's mental condition was sound. 42. On 16 June 1998 the applicant was transferred to the Plovdiv prison where the conditions were better. 43. The CPT visited Bulgaria in 1995 and again in 1999 and 2003. The Plovdiv Investigation Service detention facility was visited in 1999 and 2003. All reports included general observations about problems in all Investigation Service facilities. 44. In this report the CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were better, the conditions were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light, the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a toilet and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in the cell bucket; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to 5-10 minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained. 45. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or khalva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery - not even a spoon was provided. 46. The CPT also noted that family visits were only possible with permission and that as a result detainees' contact with the outside world was very limited. There was no radio or television. 47. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities had agreed that the [CPT] delegation's assessment had been “objective and correctly presented” but had indicated that the options for improvement were limited by the country's difficult financial circumstances. 48. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for 30 minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees should be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency. 49. The CPT noted that new rules, providing for better conditions, had been enacted but had not yet resulted in significant improvements. 50. In most places visited in 1999 (with the exception of a newly opened detention facility in Sofia), the conditions of detention in Investigation Service premises had remained generally the same as those observed during the CPT's 1995 visit, including as regards hygiene, overcrowding and outof-cell activities. In some places the situation had even deteriorated. 51. In the Plovdiv Investigation Service detention facility, as well as in two other places, detainees “still had to eat with their fingers, not having been provided with appropriate cutlery”. 52. In the same detention facility medical supervision was provided by a medical doctor on the premises. 53. The CPT noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done. The cells remained generally overcrowded. 54. In Plovdiv, only a third of the cells had benefited from a refurbishment which involved making windows in the cell doors, improving the artificial lighting and installing wash basins in the cells. However, the majority of the cells remained in the same inadequate condition as in 1999. The sanitary facilities were not in a satisfactory state of repair. 55. Despite the CPT's recommendations in the report on their 1999 visit, no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities. Those facilities did not have areas for outdoor exercise. At some of the establishments (e.g. Botevgrad), attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day. The CPT stated that “in this respect, the situation remain[ed] of serious concern”. 56. Article 69 § 2 of the Code of Criminal Procedure provides that a power of attorney shall be prepared in writing and signed by the defendant and his legal counsel. 57. The relevant provisions of the Code of Criminal Procedure concerning the powers and functions of investigators and prosecutors are summarised in the Court's judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, §§ 25-29, ECHR 1999-II).

dev

001-99877

ENG

RUS

CHAMBER

CASE OF GELAYEVY v. RUSSIA

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

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

5. The applicants are: (1) Mr Vakhit Gelayev, born in 1949, (2) Ms Amint (also spelled as Aminat) Gelayeva, born in 1952, (3) Ms Zarema Gelayeva, born in 1983, (4) Ms Pakanat Gelayeva, born in 1928, (5) Mr Shakhit Gelayev, born in 1925 and (6) Mr Akhmat Gelayev, born in 1951. 6. The applicants live in Gikalo, Chechnya. The first and second applicants are the parents of Murad Gelayev (also known as Murat or Edik Gelayev), who was born in 1976. The third applicant is his sister, the fourth applicant is his grandmother, the fifth applicant is his grandfather and the sixth applicant is his uncle. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. At the material time the settlement of Gikalo in the Grozny district of Chechnya was under the full control of the Russian federal forces; checkpoints of the Russian military were located on the roads leading to and from the village. On 26-27 February 2000 the Russian federal forces conducted a special operation in the village. The operation was carried out with APCs (armoured personnel carriers) and Ural vehicles. 9. In the morning of 27 February 2000 Murad Gelayev and the second and third applicants were at home at 20, Mira Street, Gikalo. The fourth applicant lived nearby. 10. At about 7 a.m. the second applicant heard some noise and looked out of the window. She saw armed military servicemen jumping over the fence. Some of the men were wearing masks. When the second applicant went outside, one of the men ordered her to stand up against the wall and pointed his machine gun at her. 11. Then a large group of the servicemen broke into the house. The second applicant went back inside. There she saw her son, Murad, and her daughter, the third applicant, standing against the wall. The intruders, who were of Slavic appearance and spoke unaccented Russian, demanded that the second applicant give them her son's passport; while she was looking for it, they kept hitting her in the back with rifle-butts and saying: “Hurry up, search faster”. After the second applicant found the passport and handed it over to the men, one of them took it outside, to an APC which was parked next to the house. Shortly after that the man brought Murad Gelayev's passport back. The second applicant attempted to put clothing on Murad, but the servicemen started beating her, Murad Gelayev and his sister with rifle-butts. 12. After that the servicemen dragged Murad Gelayev outside. The second and third applicants asked the servicemen to release Murad saying that his identity documents had already been checked by them. The servicemen told the applicants that they would release him after a check; the applicants kept begging the men to release their relative and the servicemen beat them with rifle-butts. Then the third applicant ran to the neighbours screaming for help and the second applicant kept following the servicemen. One of them pressed his machine gun against her chest and ordered her to get out of the way. 13. Meanwhile the fourth applicant, who had been told by her neighbours that the servicemen were raiding her son's house, arrived at the yard and joined the second applicant in attempts to prevent the abduction of Murad Gelayev. A crowd of neighbours started gathering and the servicemen began shooting above the crowd's heads to disperse it. Continuing the beating of the second and fourth applicants in front of the neighbours, the servicemen put Murad Gelayev in a Ural vehicle which was parked next to the house; its registration numbers were covered with mud. A dog, which had arrived with the servicemen, jumped after Murad Gelayev into the body of the vehicle and sat next to him. 14. When the second applicant attempted to get into the Ural, one of the servicemen pushed her over and she fell to the ground and lost consciousness. As a result of the fall, the second applicant was hospitalised on the same day and stayed in the Gikalo hospital from 27 February to 17 March 2000; she was diagnosed with brain concussion and chest contusion. The fourth applicant was beaten with rifle-butts, dragged aside by two soldiers and shoved into a gap between a wall and a block of concrete. 15. According to a resident of Gikalo, Mr Sh.Ts., at around 7.20 a.m. on 27 February 2000 he was at home when an APC pulled over next to his house. About ten armed military servicemen, some of them in masks, rushed into his yard. They put him and his brother, Mr V.Ts., against the wall and ordered their female relatives to bring over their passports. After the documents were brought over, one of the men read out the passport information to someone via a portable radio set; a few minutes later Mr Sh.Ts. was told that the passports were in order. After that the witness and his brother were taken in the APC to the village centre and transferred into an “Avtozak” vehicle (GAZ-53 lorry equipped for transportation of detainees). The Avtozak took the two brothers and a number of other male residents of Gikalo to the Oktyabrskiy district military commander's office in Grozny. 16. According to another resident of Gikalo, Ms Z.S., on the morning of 27 February 2000 she was woken up by the noise of vehicles and dogs' barking. She went outside and saw a group of armed men in camouflage uniforms. They spoke unaccented Russian and were searching the courtyard. Then the men took her brothers, Mr Sul.S. and Mr Sup.S., outside, searched them and put them in a large military vehicle. The servicemen told her that they would take her brothers for an identity check. After that they took the two brothers to the Oktyabrskiy temporary district department of the interior (the Oktyabrskiy VOVD). 17. According to another resident of Gikalo, Mr V.Ts., at about 7.20 a.m. on 27 February 2000 he arrived at his brother's house. There he saw a military vehicle with about fifteen armed servicemen in camouflage uniforms on it; some of them were wearing masks. The servicemen had specially trained German shepherd dogs with them. The majority of these men were of Slavic appearance, but two of them looked Asian. The servicemen checked the passports; after that one of them spoke with someone via a portable radio set. After that the witness and his brother were taken by the military vehicle to the village centre. There they were transferred to an Avtozak vehicle in which the witness found a number of his fellow villagers, including Murad Gelayev. From there the detainees were taken to the Khankala for one night and then to the Oktyabrskiy district military commander's office. 18. According to the applicants, as a result of the special operation fourteen residents of Gikalo were detained, and at some point all of them, except for Murad Gelayev and Mr Sul. S., returned home. 19. Some time later one of Ms Z.S.'s. brothers, Mr Sup.S., returned home and told her that after the sweeping-up operation on 27 February 2000 they had been taken to the Oktyabrskiy VOVD. From there the group of detainees from Gikalo had been taken to Chernokozovo detention centre, and only Murad Gelayev and Mr Sul.S. had remained in the Oktyabrskiy VOVD. According to Mr Sup.S., Murad Gelayev and Mr Sul.S. had been subjected to torture by the investigators in the VOVD; during an interrogation one of the officers had cut off an ear from each of them. 20. According to Mr V.Ts., after being detained he and his fellow villagers from Gikalo, including Murad Gelayev, were taken in the Avtozak vehicle to Grozny. At about 9 a.m. on 27 February 2000 the men were taken to a building with a basement. There the witness and his fellow villagers were subjected to continued beatings by their abductors, who used shovels and iron pipes. At some point he fainted; he regained consciousness when two military servicemen were dragging him into a basement. In the basement he and all the other detainees from Gikalo, including Murad Gelayev, were stripped naked and subjected to another round of beatings with iron pipes and steel rods, and dogs were set on them. After that the villagers were allowed to put their clothes back on and were taken to Khankala in a Ural vehicle. There the detainees spent the night in the vehicle, handcuffed to a bar and being beaten by military servicemen. In the morning the detainees were taken to the Oktyabrskiy military commander's office, but Murad Gelayev and another detainee were not there as they had probably stayed behind. 21. According to the sixth applicant, early in the morning of 27 February 2000 he was at home when a large group of military servicemen in masks and camouflage uniforms rushed into his yard. The servicemen dispersed throughout the applicant's household and searched his house, barn and shed. The servicemen forced the applicant into an APC and took him to the outskirts of Gikalo, where he was transferred to an Avtozak vehicle. In the Avtozak the sixth applicant saw thirteen other men from the village, including his nephew Murad Gelayev. The vehicle took the detainees to the Oktyabrskiy VOVD, where the men were forced to stand against the wall and were subjected to beatings by shovels, bludgeons and steel rods. At about 12 p.m. a senior officer arrived at the site and personally kicked each detainee between the legs. After a short break a serviceman with a dog arrived and set the dog on the detainees. Then the detainees were ordered to run to the basement. In the basement they were ordered to take off their clothes; meanwhile Murad Gelayev and Mr Sul.S. were seated at a table and questioned. The applicant heard one of the guards ordering Murad Gelayev to put his hands on the table and hitting Murad's fingers with a truncheon. Next the officer asked the other servicemen if they had a knife. He could not find one in the basement and went outside. Having found a knife, which looked like that of a hunter, he cut off Murad Gelayev's ear, wrapped it in a bandage and put it in his pocket saying: “It's a souvenir for me”. After that he cut Mr Sul.S.'s ear off and gave it to another officer saying: “And here is a souvenir for you”. The latter also put it in his pocket. According to the applicant, after continued beatings he and other detainees were taken to Khankala whereas Murad Gelayev and Mr Sul.S. remained in the Oktyabrskiy VOVD. 22. The applicants further submitted that at the beginning of May 2000, Mr R.Ya., the head of the criminal search division of the Oktyabrskiy VOVD, had suggested to their fellow villager, Mr Sh.Kha., that he could show him Murad Gelayev who was detained in the building of the VOVD. In addition, around 25 June 2000, a woman who lived in the Lutch neighbourhood in the Oktyabrskiy district of Grozny had visited the Chernokozovo detention centre and had seen two young men being brought there in APCs. One of these men had been Murad Gelayev. 23. At the material time the Oktyabrskiy VOVD was staffed by officers from the Khanty-Mansiysk Autonomous Region of Russia. From the documents submitted it follows that the Oktyabrskiy VOVD and the district military commander's office were located either in the same building or around the same yard. 24. In support of their statements, the applicants submitted the following documents: a statement by the second applicant (the date is illegible); a statement by the third applicant dated 23 August 2006; a statement by the sixth applicant (undated); a statement by the fourth applicant (undated); a statement by Mr Sh.Ts. dated 21 September 2006; a statement by Ms Z.S. dated 23 August 2006; a statement by Mr V.Ts. dated 14 August 2006; a statement by Mr U.V. dated 14 August 2006; a copy of the medical certificate issued by the Grozny district hospital confirming the second applicant's hospitalisation from 27 February to 17 March 2000 in the Gikalo hospital dated 14 August 2006, and copies of documents received from the authorities. 25. The Government did not dispute the facts as presented by the applicants. At the same time they stated that no special operation had been carried out in Gikalo on 27 February 2000 and that the federal forces had not been involved in the abduction of the applicants' relative. 26. According to the applicants, they complained about Murad Gelayev's abduction to the authorities immediately after the events. However, no reply to their complaints was received. 27. On 28 August 2001 the Grozny district department of the interior (the Grozny ROVD) refused to open a criminal investigation into the abduction of Murad Gelayev for the lack of corpus delicti. 28. On the same date, 28 August 2001, the Grozny ROVD opened search file no. 39/01 in connection with the disappearance of Murad Gelayev. 29. In November 2001 the first applicant spoke with the deputy Chairman of the Representative of the Russian President in the Southern Federal Circuit, Mr V.B., and the latter informed him that his son was alive and detained somewhere in Central Russia. 30. On 15 June 2001 the Chechnya Ministry of the Interior (the Chechnya MVD) forwarded the fifth applicant's complaint about his grandson's abduction to the Oktyabrskiy VOVD for examination. 31. On 29 March 2002 the Department of Lawfulness, Law and Order of the Chechnya Administration requested that detention centre IZ-61/1 in Rostov-on-Don inform them whether Murad Gelayev, who had been taken away from his home by a group of federal servicemen, was listed among their detainees. In April 2002 the detention centre replied in the negative. 32. On 3 April 2002 the first applicant complained to the Chechnya prosecutor about his son's abduction. He stated that Murad Gelayev had been abducted with thirteen other residents of Gikalo during a special operation conducted by a group of federal servicemen in military armoured vehicles; that the servicemen had beaten the detainees and their relatives with rifle-butts; that shortly after the abduction the applicant had found out that his son had been detained in the basement of the Oktyabrskiy VOVD where, in the presence of many witnesses, one ear had been cut off as a souvenir from both Murad Gelayev and Mr Sul.S.; that the men had subsequently been thrown into different pits and beaten in the presence of the head of the Oktyabrskiy VOVD, Major R.E.; that, according to eyewitnesses, on 8-9 May 2000 Murad Gelayev had still been detained in the basement and that in June or July 2000 he had been taken to the Chernokozovo detention centre. The applicant requested the authorities to assist him in the search for his son and to prosecute the perpetrators. 33. On 4 April 2002 the Grozny prosecutor's office forwarded the first applicant's complaint about his son's abduction to the Oktyabrskiy VOVD for examination. 34. On 11 April 2002 the Chechnya prosecutor's office forwarded the first applicant's complaint about his son's abduction by federal servicemen during a special operation on 27 February 2000 to the Grozny prosecutor's office for examination. 35. On 12 July 2002 an investigator from the Gikalo department of the Grozny ROVD questioned the first applicant, who stated that on 27 February 2000 a group of Russian military servicemen had arrested fourteen residents of Gikalo, including Murad Gelayev. According to the witness, Murad Gelayev had been taken to the Oktyabrskiy VOVD, where his ear had been cut off as a souvenir and he had been beaten in the presence of the head of the Oktyabrskiy VOVD, officer R.E; that in July 2000 Murad Gelayev had been taken to the Chernokozovo detention centre and that the applicant had visited a number of detention centres in Chechnya but could not find his son. 36. On 16 August 2002 the Prosecutor General's office in the Southern Federal Circuit forwarded the first applicant's complaint about the abduction to the Chechnya prosecutor's office. On 4 September 2002 the latter forwarded this complaint to the Grozny prosecutor's office for examination. 37. On 13 July 2005 the Grozny district prosecutor's office (the district prosecutor's office) instituted an investigation into the abduction of Murad Gelayev under Article 105 § 1 of the Criminal Code (murder). The case file was given number 44065. The decision stated, inter alia, as follows: “...on 27 February 2000 a group of unidentified armed men in camouflage uniforms in APCs and a UAZ vehicle took Murad Gelayev away to Grozny; after that he disappeared... In this connection, on 28 August 2001 the Grozny ROVD refused to institute a criminal investigation owing to the lack of corpus delicti.... This decision was unlawful as Murad Gelayev has not returned home and, therefore, there are sufficient grounds to presume that he was killed...” 38. On 30 July 2005 the first applicant was granted victim status in the criminal case. 39. On 21 September 2006 the applicants' representatives wrote to the district prosecutor's office and requested to be informed about the investigative measures taken by the authorities and their results. They also requested to be provided with access to the investigation file. On 31 October 2006 the district prosecutor's office replied they were taking operationalsearch measures to establish the whereabouts of Murad Gelayev. 40. On 21 June 2001 the sixth applicant complained to the Oktyabrskiy VOVD about the disappearance of Murad Gelayev from Gikalo on 27 February 2000. 41. To verify the applicant's complaint, the VOVD conducted an inquiry into the allegations and in that context the following steps were taken (see paragraphs 42-45 below). 42. On 30 July 2001 police officers questioned the sixth applicant, who stated that on the morning of 27 February 2000 he had been taken away from home by a group of armed men in camouflage uniforms. The men had put him into an APC and taken him to the outskirts of Gikalo, where he had been transferred into another vehicle in which he had found fourteen of his fellow villagers including Murad Gelayev. The detainees had been taken first to the VOVD and then to Khankala, Murad Gelayev had not been among those transferred to Khankala. From Khankala the sixth applicant had been taken to the village of Chervlyenaya, then to Chernokozovo, Chechnya, and subsequently, along with three other residents of Gikalo, Mr A.G., Mr L.G. and Mr M.V., to the town of Pyatigorsk in the Stavropol Region. The applicant had been released six weeks after the arrest. 43. On an unspecified date the police investigators also questioned the second applicant, who stated that she did not know the whereabouts of her son since 27 February 2000. 44. The police investigators obtained a report of a police officer dated 24 June 2001 according to which Murad Gelayev had not been listed as a detainee in the Oktyabrskiy VOVD in 2000. 45. On 28 August 2001 the VOVD opened operational-search file no. 39/01-BP and took other measures to establish the whereabouts of Murad Gelayev. 46. On 28 August 2001 the VOVD refused to initiate a criminal investigation into the matter stating that “as a result of the inquiry it was not established that a crime had been committed against Murad Gelayev”. 47. On 13 July 2005 the above refusal was overruled by the supervising prosecutor and criminal case no. 44065 was opened under Article 105 § 1 (murder). 48. On 29 July 2005 the investigators questioned Mr S.B., who at the material time worked as the district police officer. He stated that in February 2000 Murad Gelayev had been taken away by armed men in camouflage uniforms who had driven around in APCs. Thirteen other residents of Gikalo had been taken away on the same morning. All of them save for Murad Gelayev and Mr Sul.S. had returned home at some point later. 49. On 30 and 31 July 2005 the investigators granted the first applicant victim status in the criminal case and questioned him. He stated that on the morning of 27 February 2000 a group of armed masked men had broken into his house and taken away his son Murad Gelayev. He further stated that his son had been abducted with thirteen or fourteen other residents of Gikalo, including the sixth applicant, who at some point later had been released from a detention centre in Pyatigorsk. According to the witness, the abductors had taken Murad and other detainees to the Oktyabrskiy VOVD, where the guards, Mr A. nicknamed “Uzbek”, Mr G., Mr D., Mr V. and Mr I., together with a UAZ driver Mr R., had ill-treated Murad Gelayev and the other detainees. The witness further stated that the sixth applicant had been taken from the Oktyabrskiy VOVD to Khankala and then, on 28 or 29 February 2000, had been brought back to the VOVD where he had seen Murad Gelayev for the last time. The witness provided investigators with all the names and ranks of the senior officers of the Oktyabrskiy VOVD who had served there at the material time and with a phone number of one of them. 50. On 5 August 2005 the investigators requested the Chechnya FSB to inform them whether any special operations had been carried out by them on 27 February 2000 in Gikalo. The Chechnya FSB replied that no such operations had been conducted and that they had not arrested Murad Gelayev. 51. On 11 August 2005 the investigators questioned Mr Sh.Ts., who stated that on the morning of 27 February 2000 a group of armed men in camouflage uniforms had broken into his house. The intruders had taken him and his brother Mr V. Ts. and had put them in a vehicle with Murad Gelayev and Mr Sul.S. in it. After that, the detainees had been taken in the direction of Grozny to a building which looked like a gym. There they had been questioned by unidentified men; in the evening of the same day, the witness had noticed that Murad Gelayev and Mr Sul.S. had not been among the rest of the detainees. 52. On 11 August and 13 August 2005 the investigators questioned Mr V.Ts. and Mr U.V., whose statements about the events were similar to that given by Mr Sh.Ts. The investigators questioned Mr U.V. again on 11 August 2009 and he stated that he had been abducted from home by armed men in camouflage uniforms and masks, who had searched his house and taken him and his brother to the VOVD where they had been subjected to beatings and questionings. He also stated that in his presence one of the abductors had cut off an ear from Murad Gelayev and Mr Sul.S. and that on the same day all the detainees from Gikalo, except for Murad Gelayev and Mr Sul.S., had been transferred to Khankala. 53. On 12 August 2005 the investigators questioned Mr Sup.S. who stated that on 27 February 2000 he and fourteen other residents of Gikalo had been taken to the Oktyabrskiy district military commander's office, then to Khankala, then to the SIZO (the detention centre) in Chernokozovo where he had been detained until 19 May 2000. According to the witness, his brother Mr Sul.S. and Murad Gelayev had not been taken to these detention places as they had remained in the basement of the district military commander's office. 54. On 13 September 2005 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. 55. On 21 June 2006 the above decision was overruled by the supervising prosecutor and the investigation was resumed. 56. On 14 August 2006 the investigators questioned the sixth applicant, who stated that on the morning of 27 February 2000 he had been at home when he had seen a group of armed men in camouflage uniforms surrounding his house. He had heard them communicating with someone via a portable radio and then someone's order to “take one Gelayev and get out as the locals have started gathering around”. After that the intruders had put him in an APC and taken him to the outskirts of Gikalo, where he had been transferred to another vehicle with fourteen other residents of the village already inside, including Murad Gelayev. Then all the detainees had been taken to the Oktyabrskiy VOVD; Murad Gelayev had been taken out of the vehicle first and had been immediately subjected to beating. After that all the detainees had been taken to a room where they had been beaten with bludgeons and steel rods; as a result the applicant's ribs had been broken. Then the applicant had been taken to a basement, where he had found Murad Gelayev and Mr Sul.S. The intruders had forced the detainees to put their hands on the table and had hit them with bludgeons. After that the applicant had been taken to Khankala, whereas Murad Gelayev and Mr Sul.S. had stayed behind. From Khankala the applicant had been taken to Chervlyenaya, then to Chernokozovo, then to Pyatigorsk in the Stavropol Region. In the remand prison in Pyatigorsk the applicant had met his fellow villagers Mr A.G., Mr L.G. and Mr M.V., who had been taken away from Gikalo on the same date, then two weeks later the applicant had been released. 57. On 14 August 2006 the investigators again questioned Mr V.Ts., who stated that on 27 February 2000 he had been taken from home by military servicemen who had arrived in an APC. The witness and his neighbour Mr Sh.Ts. had been transferred from the vehicle to an Avtozak lorry, in which they had met a number of their fellow villagers, including Murad Gelayev. The Avtozak had taken the detainees to the Oktyabrskiy VOVD, where they had been subjected to beatings and put into a basement. There the men had been stripped naked and subjected to further beatings by abductors who had kept taking turns to beat the detainees. On the second day of the detention the men had been taken to the military commander's office where they had been made to sign documents by a woman of Asian appearance, with a short haircut, called Tanya. She had taken samples of the detainees' nails and hair, put them in envelopes and sent them for expert evaluation. After that the detainees had been taken in a Ural vehicle to the Avtozak and then to Chervleynaya, where all the men, except for Murad Gelayev and Mr Sul.S., had been detained until 20 March 2000. On the latter date the detainees had been transferred to the Chernokozovo detention centre from which the twelve residents of Gikalo had been released on 18 May 2000. 58. On 14 August 2006 the investigators again questioned another resident of Gikalo who had been detained on 27 February 2000, Mr U.V., who stated that he could not recall the details of his detention because as a result of the beatings to which he had been subjected in Chernokozovo and other detention centres he suffered from memory problems. On 5 November 2006 the investigators again questioned the witness, but the Government did not furnish a copy of this statement to the Court. 59. On 15 August 2006 the investigators requested the MVD of Russia to provide information about the officers from the Khanty-Mansiysk Region who had served on 27 February 2000 in the Oktyabrskiy VOVD. 60. On 15 August 2006 the investigators requested information from various detention centres in the Northern Caucasus concerning the detention of seven residents of Gikalo, including Murad Gelayev and the sixth applicant, who had been apprehended on 27 February 2000. The investigators also requested various prosecutors' offices in Chechnya to inform them whether they had initiated a criminal investigation against any of these residents of Gikalo. On 6 September 2006 the Chechnya Department of the Execution of Punishment replied that the six applicants and four other residents of Gikalo had been detained in detention centre IZ20/2 in Chernokozovo between 20 March and 18 May 2000 and that they had been released as a result of an amnesty. Murad Gelayev had not been detained in this prison. From the replies received from the prosecutors' offices, no criminal proceedings were pending against any of these men. 61. On 20 August 2006 the investigators questioned the applicants' neighbour Mr A.A., who stated that on the morning of 27 February 2000 a special operation had been carried out in Gikalo; as a result his neighbour Murad Gelayev and thirteen other village residents had been taken away. All of them except for Murad Gelayev and Mr Sul.S. had subsequently been released. 62. On 20 August 2006 the investigators questioned the applicants' neighbour Ms A.A., who stated that on 27 February 2000 a special operation had been conducted in their settlement, as a result of which Russian-speaking federal servicemen had arrested and taken away Murad Gelayev along with thirteen other residents of Gikalo. The witness stated that the second applicant had tried to prevent the soldiers taking away her son and that the servicemen had subjected her to a beating, as a result of which she had lost consciousness. 63. On 20 August 2006, and subsequently on 10 August 2009, the investigators questioned Mr Sh.Ts., who stated that on the morning of 27 February 2000 a group of about twelve to nineteen armed Russian military servicemen had arrived at this house on an APC. The soldiers had run an identity check and verified the passport information by calling someone via portable radio. Then they had taken him and his brother Mr V.Ts. in the APC to the Avtozak. In the vehicle he had found several of his fellow villagers, including Murad Gelayev. Then the detainees had been taken to the Oktyabrskiy VOVD. After their arrival at the police station the fourteen detainees had been taken from the vehicle one by one and beaten; then they had been taken to a basement and questioned. After that all the detainees save for Murad Gelayev and Mr Sul.S. had been taken to Khankala. The rest of the witness statement was identical to that given by Mr V.Ts. (see paragraph 57 above). 64. On 23 August 2006 the investigators questioned Ms Z.S., who stated that her brothers Mr Sa.S. and Mr Sul.S. had been abducted by Russian military servicemen on 27 February 2000 during a 'sweeping-up' operation. She further stated that her brothers had been detained for some time and that one of them, Mr Sa.S., had managed to return home at some point later. He had told her that after the abduction the brothers had been taken to the Oktyabrskiy VOVD, where Mr Sul.S. and Murad Gelayev had been subjected to torture, and that their ears had been cut off by the abductors. 65. On 23 August 2006 the investigators questioned the third applicant, whose statement about the events of 27 February 2000 and the subsequent development was similar to that given by Ms Z.S. In addition, the applicant stated that during the abduction the intruders had subjected her and the second applicant to insults and beatings and that as a result of it the second applicant had lost consciousness. She stated that she had not sought medical help after the events of 27 February 2000, but that her mother, the second applicant, had spent some time in hospital in Gikalo. 66. On 4 November 2006 the investigators questioned Mr S.-S.S., who stated that he had been taken away from home on 26 February 2000 by Russian federal servicemen who had been conducting a special operation in his village of Ulus-Kert, and that according to the information received by him from the residents of Gikalo, a similar special operation had been conducted in Gikalo on 27 February 2000 as a result of which two Gikalo residents had disappeared. 67. On 4 November 2006 the investigators questioned Mr L.G., who stated that on the morning of 27 February 2000 he had been taken away from home by servicemen from the OMON (the special police task force). He had been brought with other detained residents of Gikalo to the Oktyabrskiy VOVD where they had been beaten. According to the witness, at the VOVD he had been questioned by unidentified persons, one of whom had the rank of Major and had been of Asian appearance. The witness and other detainees, except for two young men from Gikalo, had been taken to Khankala. A day or two later they had been returned to the Oktyabrskiy VOVD, but the young men had not been there. The rest of the witness statement concerning his further detention is similar to those given by Mr V.Ts. and Mr Sh.Ts. (see paragraphs 57 and 63 above). 68. On 6 November 2006 the investigators questioned Mr Sh.Kha., who stated that in April 2000 he had been searching for his brother, who had been arrested in the Oktyabrskiy VOVD on 17 April 2000 and had subsequently disappeared. A few days after his brother's disappearance, the witness had had a conversation with the head of the criminal police department of the Oktyabrskiy VOVD, Mr R.Ya., who told him that “...I have got the right hand of Gelayev [a leader of illegal armed groups]” and suggested to the witness to have a look at the detainee. The witness had refused. He further stated that the police officers who had served in the Oktyabrskiy VOVD at the material time had been there on mission from the police department of the Khanty-Mansiysk Region. He submitted that currently [at the time of the questioning] the police officers who had been in charge of the Oktyabrskiy VOVD in February-April 2000 were working in various Russian cities and provided the investigators with information concerning their current ranks and positions, as well as their places of work. 69. On 25 November and 2 December 2007 the investigators questioned Mr Sa.S. and Ms L.Z., who stated that on the morning of 27 February 2000 two of their male relatives had been taken away from home by armed men in camouflage uniforms. The intruders had conducted an identity check, then put their two relatives in a lorry and taken them away to an unknown destination. Three months later one of them had returned home, whereas another one, Mr Sul.S., had disappeared. 70. On 2 December 2007 the investigators questioned Mr B.D., whose statement about the events was similar to those given by Mr Sa.S. and Ms L.Z. 71. On 3, 4 and 8 December 2007 the investigators questioned Mr R.G., Mr M.A., Ms Z.E., Ms L.D. and Mr I.E., all of whom provided similar statements to the effect that on the morning of 27 February 2000 Murad Gelayev and Mr Sul.S. had been abducted from their homes by armed masked men in camouflage uniforms, who had arrived in armoured military vehicles and conducted an identity check. 72. On 12 December 2007 the investigators conducted the crime scene examination at the household from which Murad Gelayev had been abducted on 27 February 2000. In that connection no evidence was collected from the scene. 73. On 5 September 2008 the investigators questioned Mr A.S., who stated that in March 2000 he had been abducted and taken to the Oktyabrskiy VOVD where he had been detained for 81 days and subjected to regular beatings. During his detention in the VOVD he had not seen Murad Gelayev. 74. On 17 September 2008 the investigators questioned Ms Kh.S., who stated that on 27 February 2000 her neighbour Murad Gelayev had been abducted by officers of law-enforcement agencies. According to the witness, the abductors had been armed and wearing camouflage uniforms; one of them had been of Slavic appearance, had two golden teeth and a short grey moustache. She and the second applicant had tried to stop the officers taking Murad away, but the abductors had started beating the women with rifle-butts. After that the officers had put Murad Gelayev in a military vehicle and taken him away. About fifteen other residents of Gikalo had been abducted around the same date; some of them had later returned home. 75. On 19, 25 February and 11 April 2009 the investigators questioned two operational-search officers of the Grozny ROVD, Mr M.L. and Mr K.M., and the head of the criminal search division of the Grozny ROVD, Mr V.K. All of the officers stated that according to the information received during the investigation of Murad Gelayev's abduction it had been established that in February 2000 local law-enforcement agencies had been taking steps to identify members of illegal armed groups and that after the abduction Murad Gelayev had been taken to the Oktyabrskiy VOVD. 76. On 11 March 2009 the Department of the Ministry of the Interior (the UVD) in the Khanty-Mansiysk Region replied to the investigators stating the following: “... According to order ... no. 750, any information disclosing personal data of the police officers who are participating or participated in the carrying out of counterterrorist or special operations is a secret. Therefore, it is impossible to provide you with lists and photographs of the officers of the UVD of the KhantyMansiysk Region who were on service mission in Chechnya in February 2000.” 77. Between 21 May and 3 June 2009 the investigators questioned 22 former and acting officers of the UVD of the Khanty-Mansiysk Region who had been on mission in Chechnya in 2000 and had been serving in the Oktyabrskiy VOVD at the material time. All of the witnesses stated that they did not recall the details of their service in the Oktyabrskiy VOVD, that they had not participated in special operations and that they had not detained Murad Gelayev. 78. On 10 August 2009 the investigators questioned Mr Sh.Ts., who confirmed his previous statements (see paragraph 63 above) and added that after the abduction, in the basement of the Oktyabrskiy VOVD, he had seen Murad Gelayev and that his face had been covered in blood. 79. The Government submitted that the investigating authorities had sent a number of queries to various State bodies between 2005 and 2009 concerning the possible whereabouts of Murad Gelayev, his criminal record, discovery of his body, his detention in custodial institutions, medical treatment in hospitals and any criminal proceedings against him. As a result, a number of negative replies had been received and the whereabouts of the applicants' relative had not been established. The law enforcement authorities had never arrested or detained Murad Gelayev on criminal or administrative charges and had not carried out a criminal investigation concerning him. No special operations had been carried out against the applicants' relative. 80. According to the documents submitted by the Government, the investigation was suspended on eight occasions: on 13 September 2005, 28 September and 6 November 2006, 23 December 2007, 3 October 2008, 16 March, 6 May and 28 August 2009. Each decision to suspend the investigation was subsequently overruled by the supervising prosecutors as unlawful and premature. The prosecutors criticised the investigation and ordered that a number of necessary steps be taken. For example, such orders were given to the investigators on eight occasions: on 21 July and 6 October 2006, 23 November 2007, 3 September 2008, 16 February, 2 April, 28 July and 31 August 2009. 81. The Government further stated that even though the investigation had failed to establish the whereabouts of Murad Gelayev, it was still in progress and all measures envisaged under domestic law were being taken to solve the crime. The investigation had found no evidence to support the involvement of State servicemen in the abduction of Murad Gelayev. 82. Despite specific requests by the Court, the Government did not disclose the entire contents of the investigation file in criminal case no. 44065, providing only copies of “the main documents” from the file of up to 370 pages. 83. The applicants complained to the investigators about the illtreatment to which the second and fourth applicant had been subjected by the abductors (see paragraphs 32 and 65 above). 84. On 24 August 2006 the investigators decided to conduct a forensic medical examination of the second applicant. The text of the decision included the following: “...The investigators questioned the mother of the disappeared Murad Gelayev- Amint Gelayeva [the second applicant], who stated that ... she had tried to stop the abductors from taking away her son, but she could not stop them as she had been hit several times on the head by a rifle-butt and as a result she had lost consciousness. Subsequently she had been treated at the outpatient department of the Gikalo hospital... ... [it is necessary] to put the following questions to the experts: - Are there any injuries on the head and the body of A. Gelayeva and if so, how they could have been received, and what is their location, mechanism and the time of their origin? -What is the degree of the injuries suffered [by the applicant]? - How could these injuries have been caused? - Was it possible for the injuries to be received under the above circumstances?” 85. On 10 October 2006 the investigators refused to initiate a criminal investigation into the applicants' complaints of ill-treatment by the abductors. The text of the decision included the following: “... the investigators questioned Aminat Gelayeva [the second applicant], who stated that ... when she had attempted to prevent the abductors from taking away her son, the abductors had beaten her and her daughter Zarema [the third applicant], and had hit them several times with rifle butts, as a result of which she had lost consciousness. Subsequently she had been treated at the Gikalo hospital. The investigators questioned Zarema Gelayeva [the third applicant], who stated that... she and her mother [the second applicant] had attempted to stop the abductors, but they had been subjected to beatings as a result of which her mother [the second applicant] had lost consciousness. ...According to the medical statement provided by the Gikalo hospital, on 27 February 2000 medical assistance had been provided to A. Gelayeva [the second applicant] as no [other] treatment had been possible at the time owing to the military actions... ... According to the forensic medical examination report no. 1086 of 4 October 2006... no bodily injuries or spots on the head or neck of A. Gelayeva [the second applicant] were found... Thus, the investigation did not establish that A. Gelayeva had received bodily injuries...” 86. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).

dev

001-110806

ENG

RUS

CHAMBER

CASE OF BEZRUKOVY v. RUSSIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - award;Non-pecuniary damage - award

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

6. The first applicant was born in 1950. The second applicant is the first applicant’s daughter, born in 1976. They live in Voronezh. 7. In July and August 1998 the applicants made various monetary deposits with the Voronezh branch of the SBS-Agro Bank (“СБС-Агро”). In September 1998, during a financial crisis in Russia and rapid currency devaluation, they requested the bank to refund the capital with interest, but the bank refused. On 4 August 1999 the Zheleznodorozhniy District Court of Voronezh (“the District Court”) allowed the applicants’ claim against the bank. The first and second applicant were awarded 24,490 and 32,931 United States dollars (USD) respectively. 8. The bailiffs started enforcement proceedings on 22 August 2000. Meanwhile, the bank became insolvent. On 10 July 2001 the enforcement proceedings were discontinued. The judgment of 4 August 1999 remained unenforced. 9. On 16 August and 15 September 1999 the Central Bank of Russia (“the Central Bank”) declared a moratorium until 17 November 1999 on the execution of all creditors’ demands against the SBS-Agro Bank (“the bank”). The moratorium was later prolonged. On 16 November 1999 the management of the bank was taken over temporarily by the “Agency on Restructuring of Lending Agencies” (“ARKO”), set up by the State in accordance with the Law on Restructuring of Lending Agencies. 10. On 9 November 2001 the applicants sued the Central Bank and the ARKO for damages on the ground that the bank remained under the ARKO’s effective control since 16 November 1999. The District Court held a hearing in the applicants’ case on 5 December 2001. The ARKO filed written observations but was not represented at the hearing. The Central Bank did not file observations, nor was it represented at the hearing. In its judgment delivered on the same date the District Court noted that the bank was being managed by the ARKO at the material time and found the latter responsible for the bank’s obligations, including its debt owed to the applicants. It held that the ARKO was to pay the first and second applicants USD 24,490 and USD 32,931 respectively. 11. The Voronezh Regional Court (“the Regional Court”) allowed the ARKO’s appeal on 12 March 2002 and set aside the District Court’s judgment of 5 December 2001. 12. Following another remittal, on 20 December 2004 the District Court again found for the applicants, in terms similar to those of its judgment of 5 December 2001. The applicants were awarded the same amounts, payable by the ARKO. The judgment also held that the ARKO had to pay an amount of USD 20,841.68 to another plaintiff, Mr Kravchenko. The judgment specified that it was subject to appeal before the Voronezh Regional Court within ten days. 13. The ARKO lodged an appeal against the judgment of 20 December 2004. The Central Bank joined the appellate proceedings. On 25 February 2005 the ARKO was closed. 14. On 19 July 2005 the Regional Court heard the ARKO’s appeal against the District Court’s judgment of 20 December 2004. The representative of the Central Bank took part in the hearing as a codefendant. The Regional Court observed that the ARKO had been closed and discontinued the appellate proceedings. The District Court’s judgment of 20 December 2004 in the applicants’ favour accordingly became binding and enforceable. 15. On 2 August 2005 the District Court issued a writ of execution in respect of its judgment of 20 December 2004, which had acquired legal force on 19 July 2005. 16. On 6 December 2005 the Central Bank lodged an appeal with the Regional Court against the judgment of 20 December 2004. They also requested that the ten-day time-limit for appeal be extended on the ground that they had been deprived of the opportunity to have the lawfulness of the judgment of 20 December 2004 reviewed by the Regional Court. 17. On 2 March 2006 the Regional Court extended the time-limit for appeal as requested by the Central Bank. It noted that the Central Bank “had joined” the ARKO’s appeal against the judgment of 20 December 2004 which had been dismissed without being considered on its merits. The Regional Court concluded that the Central Bank had been deprived of its statutory right to appeal against the judgment of 20 December 2004. 18. On 9 March 2006 the Regional Court considered the Central Bank’s appeal against the District Court’s judgment of 20 December 2004. It heard the same representative of the Central Bank who took part in the hearing held by the same court on 19 July 2005 to consider the ARKO’s appeal which was then joined by the Central Bank. The court observed that both the ARKO and the Central Bank were co-defendants in the case and that the ARKO had been closed. The Regional Court concluded that its earlier decision of 19 July 2005 was based on an incorrect application of the relevant legal provisions, set aside the judgment of 20 December 2004 in the applicants’ favour and discontinued the proceedings. 19. On 2 April 2009 the European Court of Human Rights delivered a judgment in respect of Mr Kravchenko (Kravchenko v. Russia, no. 34615/02, 2 April 2009), who was at a certain stage the applicants’ coplaintiff in the domestic proceedings (see paragraph 12 above). In February 2002 he had obtained a separate judgment awarding him an amount of 30,919.40 Russian roubles (RUB), payable by the ARKO (see Kravchenko, cited above, §§ 44-49). The Court found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 in that the Regional Court had quashed in May 2002 the binding and enforceable judgment in Mr Kravchenko’s favour by way of supervisory review. 20. Following the Court’s judgment of 2 April 2009, the applicants lodged an application for review of the Regional Court’s judgment of 9 March 2006, relying on Articles 392-394 of the Code of Civil Procedure. On 15 June 2011 the Presidium of the Voronezh Regional Court dismissed their application. 21. Under the Russian Code of Civil Procedure (“the CCP”), a competent court may extend an expired time-limit for procedural actions, such as lodging an appeal, if the court finds that a party has a valid excuse for failure to comply with that time-limit (Article 112). 22. An appellate court shall set aside the judgments and discontinue the proceedings if a legal entity which is a party to the proceedings has been liquidated (Article 365 in conjunction with Article 220 of the CCP). 23. A final judgement in a case may be reviewed, inter alia, on the ground that the European Court of Human Rights found a violation of the Convention on account of the domestic judicial proceedings or decisions taken in that case (Article 392 of the CCP). Articles 393-394 set out a procedure for reopening of domestic judicial proceedings in any such case. 24. The ARKO was a State corporation (Article 28 of the Law No. 144FZ of 8 July 1999 on Restructuring of Lending Agencies), that is, a non-commercial organisation established by the Russian State in order to exercise certain social, administrative or other socially beneficial functions (Article 7.1 of the Law No. 7-FZ of 12 January 1996 on NonCommercial Organisations, as amended by the Law No. 144-FZ of 8 July 1999).

dev

001-115642

ENG

FIN

ADMISSIBILITY

PUTTONEN v. FINLAND

Inadmissible

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

1. The applicant, Mr Matti Antero Puttonen, is a Finnish national, who was born in 1953 and lives in Vantaa. He was represented before the Court by Mr Esko Sydänmäki who was granted leave to represent the applicant by the President of the Chamber (Rule 36 § 2 of the Rules of Court). 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 21 January 1974 the applicant became a civil servant employed by the Bank of Finland (Suomen Pankki, Finlands Bank; henceforth “the Bank”) where he worked until his retirement on 1 August 2008. 5. On 3 May 1977 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) introduced an equal retirement age of 60 years for all men and women who entered the service of the Bank on that date or later. The retirement age for women was thereby raised from 55 years to 60 years while for men the retirement age remained unchanged. As the rule was not retroactive, the different retirement ages for men and women still applied to those persons who had started employment before 3 May 1977. 6. On 17 June 1998 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) amended the pension rules of the Bank so that men who had joined the Bank prior to 3 May 1977 and who continued their employment until retirement were also granted an opportunity to lower their retirement age from 60 to 55-59. For each month the retirement age was lowered, and the pension accrued prior to 1 January 1994 was reduced by 0.33%. At its highest the early retirement reduction was 19.8% for five years. Under the pension rules of 13 December 1966 the retirement age for women who had joined the Bank prior to 3 May 1977 was 55 and no reductions applied to pension accrual. 7. Since 10 March 1994 the pension rules of the Bank had provided that a civil servant who applied for early retirement, who had been employed by the Bank prior to 3 May 1977 and who had 30 years of service behind him, had a right to a pension guarantee (takuueläke, garantipension) which was 60% of the salary. This pension guarantee was increased by 1.5% for each year the person’s personal retirement age (henkilökohtainen eläkeikä, individuell pensionsålder), which was 60 years for men and 55 years for women, fell short of 63 years (the personal retirement age before 1 December 1993). This guarantee was significantly reduced as from 1 January 2005. 8. On 12 June 2008 the applicant was granted a pension, which was calculated with a 47.53% pension guarantee which included the increase of 4.5% as his personal retirement age was 60 years. This method of calculation was chosen as it was more beneficial to the applicant than the method by which the pension was reduced by 18.81%, or 163.44 euros (EUR) per month, on the ground that he had retired at the age of 55. The pension so calculated amounted to EUR 1,426.15 per month, starting from 1 August 2008. 9. On an unspecified date the applicant submitted a letter of appeal to the Bank, requesting that his pension be recalculated so that the years 55-63 would bring him an additional pension of 1.5% per year, thus altogether 12%. He claimed that the amendments made to the pension guarantee on 1 January 2005 had led to discrimination between men and women due to the fact that the theoretical personal retirement age for men was 60 years, even if they retired earlier, whereas for women it was always 55 years. In the applicant’s situation the percentage for accrued pension was 4.5% while for a woman in the same situation it would be 7.5% higher, namely 12%. He also complained about the fact that his pension had been reduced by 18.81%, or EUR 163.44 per month, on the ground that he had retired at the age of 55. As the Bank could not rectify the pension decision, it referred the case on appeal to the Insurance Court (Vakuutusoikeus, Försäkringsdomstolen). 10. On 18 May 2010 the Insurance Court partly accepted, partly rejected the applicant’s appeal. As concerned the percentage for accrued pension, the court accepted the applicant’s appeal and ordered that the percentage be 12% instead of 4.5%. It found that in this respect the pension was not calculated in an equitable manner with regard to men and women, and that women were placed in a more favourable position than men. The applicant’s personal retirement age should also have been 55 years, as was the case for women in the same position. As this inequality affected also the time after 1 January 1994, the date on which the EU rules on equal pay became applicable in respect of Finland, the applicant’s pension had been calculated in a manner contrary to EU law during the period from 1 January 1994 until 31 December 2004. In this respect the case was referred back to the Bank for a new decision. As to the rest of the applicant’s complaints, they were rejected. As concerned the reduction of 18.81% due to early retirement, the court found that as the reduction concerned the time before 1 January 1994, it was not contrary to EU law. 11. On 2 August 2010 the Bank issued a new pension decision to the applicant. The percentage for accrued pension was now 12%, increasing his personal pension guarantee percentage to 55.03%. The pension calculated in this manner amounted thus to EUR 1,622.81 per month. 12. By letter dated 3 September 2010 the applicant submitted an appeal to the Bank, requesting that the pension decision of 2 August 2010 be recalculated as his pension guarantee still remained at 55.03% when it should have been 30/30 x 60% = 60% on the ground that he had over 30 years of service. He noted that the Insurance Court had already on 25 October 2005 amended a similar pension decision in the case of Mr K.H. and granted him a pension right amounting to 60% on the ground that he had fulfilled the pension guarantee requirement as he had completed 30 years of service. Moreover, the applicant complained about the amendment to the Pension Regulations on 17 June 1998 which introduced the reduction system in cases of early retirement. He claimed that it was discriminatory and unconstitutional and that therefore it should be declared null and void or at least left unapplied. Such practice was not in use in the State pension system and under the State Pension Act (valtion eläkelaki, lagen om statens pensioner), which the Pension Regulations of the Bank were intended to follow. The applicant also pointed out that the European Commission had also found in this respect that the Finnish system was contrary to EU law. Finally, the applicant complained about lack of transparency in the Bank’s decision. 13. As the Bank could not rectify the pension decision, it referred the case on appeal to the Insurance Court on 6 October 2010. These proceedings are still pending before the Insurance Court. 14. Article 6 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that: “No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.” 15. Article 15 of the Constitution provides that the property of everyone is protected. 16. Section 7 of the Act on Equality between Women and Men (laki naisten ja miesten välisestä tasa-arvosta, lagen om jämställdhet mellan kvinnor och män; Act no. 609/1986) prohibits both direct and indirect discrimination based on gender. According to its section 7, subsection 2, direct discrimination means, inter alia, putting women or men in an unequal position on the basis of gender. Section 8, subsection 1, point 3, of the same Act provides that: “An employer’s conduct constitutes discrimination prohibited under the Act if the employer applies the pay or other terms of employment in such a way that one or more employees, because of their gender, find themselves in a less favourable position than one or more other employees performing the same work or work of equal value in the employer’s service.” 17. Section 11 of the Act on the Bank of Finland (laki Suomen Pankista, lagen om Finlands Bank; Act no. 214/1998) provides, inter alia, that: “The Trustees of the Bank shall confirm the Bank of Finland’s Pension and Survivors’ Pension Regulations and issue regulations concerning the management of the Bank’s pension liability, upon proposal of the Directorate.” 18. Section 9 of the Act on Officials of the Bank of Finland (laki Suomen Pankin virkamiehistä, lagen om Finlands Banks tjänstemän; Act no. 1166/1998) provides the following: “The Bank of Finland shall treat all officials in its service equally to ensure that no-one is unjustifiably treated differently because of his origin, citizenship, gender, religion, age, political or union activities, or on other comparable bases. The Bank of Finland shall not forbid an official to join or belong to an association or pressure him to join a particular association, nor forbid him to resign from such.” 19. Section 33, subsections 1-3, of the same Act provide the following: “An official who considers that the Bank of Finland has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to the Board. No request for rectification can be made in a matter that falls within the jurisdiction of the Labour Court, unless the Labour Court has decided not to settle the matter under section 1, subsection 2, of the Act on the Labour Court (646/1974). Rectification of a decision by which the Bank of Finland has issued an official with a warning, laid him off or given him notice, cancelled the service relationship, suspended him from office or decided on a matter concerning his pension contribution or secondary occupation, as well as a decision referred to in paragraph 6 on a request for rectification referred to in paragraph 1 can be requested by appealing to the Supreme Administrative Court in accordance with the provisions of the Administrative Judicial Procedure Act (586/1996). A matter referred to in this paragraph shall be treated as urgent by the Supreme Administrative Court. Decisions of the Board concerning pensions can be appealed against to the Insurance Court. Otherwise, as regards a request for rectification on pension, the applicable provisions of the Act on State Pensions (280/1966) shall apply.” 20. Section 58, subsection 1, of the same Act provides that “[t]he right of an employee of the Bank of Finland to a pension paid from the Bank’s funds is determined, to the extent applicable, on the same grounds as state pension cover. State pension cover refers to the right to pensions, survivors’ pensions and other benefits which are payable from the state’s funds and the content of and eligibility for which are regulated by the State Pensions Act and the related legislation. Pensions and survivors’ pensions are granted by the Directorate of the Bank.” 21. More detailed provisions on the payment of pensions and survivors’ pensions and pension cover in other respects are contained in the Bank’s Pension and Survivors’ Pension Regulations (Suomen Pankin eläke- ja perhe-eläkesäännöt; pensionsstadgan och familjepensionsstadgan för Finlands Bank). The Trustees of the Bank of Finland, elected by the Parliament, adopt the Regulations on the basis of the Directorate of the Bank’s proposals. 22. Section 3, subsection 1, of the Pension Regulations with its earlier wording, as amended on 14 March 1972, read as follows: “Eligibility for old age pension requires that the beneficiary has completed his or her service and reached the age of 65 years, or 60 years if the beneficiary, immediately before retirement, has been serving the Bank of Finland or its Security Printing House for at least one month, and 55 years in the case of a female employee. A beneficiary who retires as a member of the Directorate is entitled to old age pension irrespective of age.” 23. The lower retirement age of 55 years for women was applied until 3 May 1977, when the amendment of section 3, subsection 1, of the Pension Regulations entered into force. With this amendment the retirement age for women was raised from 55 to 60 years but the retirement age for men remained unchanged at 60 years. The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the Bank began on 3 May 1977 or thereafter. 24. For the equalisation of the retirement ages, men were granted the right to opt for a lower retirement age. On 17 June 1998 the Trustees of the Bank amended the entry into force provision of the Pension Regulations in the following manner: “However, as of 1 January 1994, the earlier provision is applicable both to women who entered service in the Bank prior to 3 May 1977 and to men who entered service in the Bank before that date. The beneficiary has the right to choose between the lower retirement age, based on the earlier provision, or the higher retirement age. If a man chooses the lower retirement age, the amount of his pension accrued on the basis of the duration of his service is, in respect of the service prior to 1 January 1994, reduced by 0.33 percentage units per month of earlier retirement.”

dev

001-58275

ENG

TUR

GRANDCHAMBER

CASE OF ERDOGDU AND INCE v. TURKEY

Preliminary objection rejected (out of time);Violation of Art. 10;No violation of Art. 7;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Luzius Wildhaber;Paul Mahoney

8. At the material time, the first applicant, Mr Ümit Erdoğdu, was the responsible editor of the monthly review Demokrat Muhalefet! (“Democratic Opposition!”), published in Istanbul. In the January 1992 issue of the review, an interview which the second applicant, Mr Selami İnce, had conducted with a Turkish sociologist, Dr İ.B., was published. 9. A translation of the relevant parts of the interview is as follows: “Q: How and to what extent will Demirel accept the ‘Kurdish reality’? Can his understanding of the ‘reality’ be deemed to represent State policy? A: … The government is forced to accept certain facts now that there is armed resistance in Kurdistan. ... Violence by the Turkish forces could not stop the escalation and progress of the PKK [Workers’ Party of Kurdistan] ... Q: How will the State shape its new official policy on Kurdistan? Which aspects of the official ideology will be changed and how will they be changed? What effects can this have on the daily lives of the Kurdish people? A: … In Turkey, the government and the State are two very different things. The State functions through institutions and bodies, members of which are designated by appointment. These institutions and bodies represent the power of the State. The government, i.e. the political power, carries very little weight against the power of the State. That is why governments can be overthrown by the State authority so often. Official ideology can only be changed in the long term and the forces which are capable of changing it are non-governmental political and social forces and their struggle. The essence of the ideas and action of the PKK, for example, is such as can change the official ideology, reduce the influence of the appointed bodies of Turkey’s political scene, and increase the weight of parliaments elected by the people. In my opinion, de facto, the influence of the Kurds and, in particular, that of the PKK, will grow further. The influence of the PKK in both the Kurdish and the Turkish societies will spread and deepen. And, as that influence grows, more serious steps will be taken by governments in their policies towards recognising the ‘Kurdish reality’. It is evident that the State will try to obstruct the government in that process and will try to distort certain ideas and policies. And it is also manifest that the government will be able to survive so long as it can resist the power of the State and control the appointed institutions and bodies, i.e. so long as it has real power. These changes will be reflected in the daily lives of the Kurds. Investigations and research will develop in fields such as the Kurdish language, history and folklore. Kurdish culture will be revived. The specificity of a Kurdish society will be emphasised more amongst the Kurdish masses. National awareness and desire for liberation will become stronger and will spread further. The idea and feelings for independence will develop. Q: It is now observed that Kurds who, until now, would never have said ‘I am Kurdish and I am engaging in politics for my present life and for my future’ are now clearly beginning ‘to get into politics for their own interests’ throughout Kurdistan and Turkey. What sort of developments have brought about this situation? Do Kurds need a political subject in the legal sphere? If so, what form should it take? A: Without any doubt, the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years. The guerrilla warfare has brought about major social and political changes in traditional Kurdish society. Traditional values are in turmoil. There has been very widespread support amongst the people for Kurdish guerrilla fighters ever since 15 August 1984. National awareness is now growing in Kurdish society and this process is spreading rapidly. And we see that, within this process, the political establishment has been used for Kurdish interests, for the move towards autonomy and independence. Kurds, who have always been engaged in politics for others and in order to serve other nations, are now engaged in politics in order to serve the Kurdish people. Healthy national awareness is now developing in response to Turkish racism and colonialism. It would no doubt be over-simplifying to say that all this began after the onset of Kurdish guerrilla warfare on 15 August. This process has roots that go further back into the past but what has been decisive is the new process launched by the PKK. ... Who is illegal in Kurdistan? The guerrillas or the special team of the Turkish armed forces? ... Q: What should be done to counteract the wave of chauvinist Turkish nationalism encouraged by the right-wing press and the MCP [Nationalist Workers’ Party]? Is there a possibility of a confrontation between the Turkish and Kurdish peoples? How could that be prevented? A: … Kurds are dying for their nation. What are the Turks dying for? What are they doing in Kurdistan? Q: It has been under discussion for some time that the PKK hegemony in Kurdistan has reached a stage where one can now talk of a ‘double power’. Öcalan has mentioned in his writings an orientation towards the ‘formation of a Government-State’ in the Botan-Behdinan region. Are there any signs of what the future interventions of the PKK will be in Kurdistan and in Turkish politics? A: … The Turkish State has already withdrawn its soldiers and evacuated police stations in some regions such as Botan. ... This could be perceived as the beginning of the formation of a State ...” 10. In an indictment dated 23 March 1992 the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) charged the applicants with having disseminated propaganda against the indivisibility of the State by publishing the above interview. The charges were brought under section 8 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act” – see paragraph 19 below). 11. In the proceedings before the National Security Court, the applicants denied the charges. They pleaded that the incriminated interview was a mere transcript of Dr. İ.B.’s statements. They maintained that the publication of an interview could not constitute an offence and that similar views had been expressed by the highest authorities in Turkey. 12. In a judgment dated 12 August 1993 the Istanbul National Security Court found the applicants guilty of offences under section 8 of the 1991 Act. The first applicant was sentenced under the second paragraph of section 8 to five months’ imprisonment and a fine of 41,666,666 Turkish liras (TRL). The second applicant was sentenced under the first paragraph of section 8 to one year and eight months’ imprisonment and a fine of TRL 41,666,666. 13. In its reasoning, the court relied on certain extracts from the interviewee’s statements as published. It held that the following phrases amounted to propaganda against the indivisibility of the State: “... the government is forced to accept certain facts now that there is armed resistance in Kurdistan ...”; “... Violence by the Turkish forces could not stop the escalation and progress of the PKK ...”; “... The essence of the ideas and action of the PKK ... can change the official ideology ...”; “... the influence of the Kurds and, in particular, that of the PKK, will grow further. The influence of the PKK in both the Kurdish and the Turkish societies will spread and deepen ...”; “... National awareness and desire for liberation will become stronger and will spread further. The idea and feelings for independence will develop ...”; “... the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years ...”; “... Who is illegal in Kurdistan? The guerrillas or the special team of the Turkish armed forces? ...”; “... Kurds are dying for their nation. What are the Turks dying for? What are they doing in Kurdistan? ...”; “... The Turkish State has already withdrawn its soldiers and evacuated police stations in some regions such as Botan ...”; “... This could be perceived as the beginning of the formation of a State ...”. 14. The applicants appealed against their conviction. On 1 February 1994 the Court of Cassation dismissed the appeals. It upheld the National Security Court’s assessment of the evidence and its reasons for rejecting the applicants’ defence. The judgment was served on the applicants on 21 February 1994. 15. Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraphs 19 and 20 below), the Istanbul National Security Court ex officio re-examined the applicants’ cases. On 15 December 1995 the court sentenced the first applicant to five months’ imprisonment and a fine of TRL 41,666,666 and the second applicant to one year, one month and ten days’ imprisonment and a fine of TRL 111,111,110. The court ordered that the execution of the sentences be suspended on probation. 16. The applicants appealed against these sentences. On 7 April 1997 the Court of Cassation quashed the National Security Court’s judgment. Concerning Mr Erdoğdu, the Court of Cassation pointed out that he had been prosecuted in his capacity as responsible editor and, therefore, the prison sentence imposed on him should have been converted into a fine in default of which the sentence was unlawful. Concerning Mr İnce, the Court of Cassation found that his lawyer had not been properly notified about the date of the hearing before the National Security Court. 17. On 9 September 1997 the National Security Court held a hearing. Having regard to the provisions of Law no. 4304 which had entered into force on 14 August 1997, the court decided to defer the imposition of a final sentence on Mr Erdoğdu, pursuant to section 1 of that Law. This decision remained subject to the conditions laid down under section 2 (see paragraph 21 below). The court maintained Mr İnce’s conviction and the sentence imposed on him, the execution of which was, however, suspended in the light of his good conduct during the trial. 18. 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.” 19. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: (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 … …” (before amendment by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” (as amended by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8[].” “Persons convicted of the offences contemplated in the present Law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct. … The first and second paragraphs of section 19[] … of the Execution of Sentences Act (Law no. 647) shall not apply to the convicted persons mentioned above.” 20. The following amendments were made to the Prevention of Terrorism Act 1991 after the enactment of Law no. 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.” 21. The following provisions are relevant to sentences in respect of offences under the Press Act: “The execution of sentences passed on those who were convicted under the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred. The provision in the first paragraph shall also apply to editors who are already serving their sentences. The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.” “If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence. … Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment. Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.” 22. The Execution of Sentences Act provides, inter alia: “The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits. … If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor. … The sentence of imprisonment thus substituted for the fine may not exceed three years …” “… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...” 23. 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; …” 24. 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 19 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision 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. 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 (no. 1998/87) and 17 June 1998 (no. 1998/133). 25. 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 objective nature of the words used.

dev

001-87213

ENG

POL

CHAMBER

CASE OF BORYSIEWICZ v. POLAND

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

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

5. The applicant was born in 1947 and lives in Pabianice. She owns a semidetached house located in a residential area. A tailoring workshop employing about 20 people was located in the other half of the building. 6. On 14 September 1993 the applicant made an application to the City Council for a ban on the operation of the workshop or at least for measures to be taken to reduce the level of noise it generated. 7. On 11 June 1994 the Director of the Pabianice District Office, to which the application of 14 September 1993 must have been transferred, issued a decision in which it found that the workshop was operating without the required permission. He obliged the owner of the workshop to take steps to remedy the situation, inter alia by obtaining an environmental impact assessment of the workshop and by carrying out adaptation works. 8. On 30 January 1995 the Governor of Łódź approved a “[t]echnical project on protection of the environment against noise”, and obliged the owner to comply with the project and to submit an evaluation of the noise level. 9. On 7 February 1995 the Governor of Łódź approved the location of the workshop on condition that the owner complied with the requirements set out in the decision of 30 January 1995. 10. On 15 March 1995 the Director of the Construction Supervision Department of the Town Office gave instructions as to the way in which the works to adapt the workshop should be conducted. The applicant appealed. 11. On 4 April 1995 the applicant lodged an appeal with the Governor of Łódź in which she complained that she had not been allowed to participate in the proceedings. She submitted that she should have been treated as a party to them and that she had not received an answer to her application of 14 September 1993. 12. On 11 May 1995 the applicant made an application to the Minister of Environment for the proceedings – which must have been discontinued on an unspecified earlier date – to be reopened in order to enable her to participate as a party to the proceedings in order to have her arguments taken into consideration. 13. On 17 May 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995 until the request for reopening of 11 May 1995 had been considered. The workshop’s owner appealed. 14. On 7 August 1995 the General Inspector of Construction Supervision quashed the decision of 17 May 1995. 15. On 20 October 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995. The workshop’s owner appealed. 16. On 15 December 1995 the General Inspector of Construction Supervision upheld the decision of 20 October 1995. The applicant appealed. 17. On 25 February 1997 the applicant made an application to the Governor of Łódź requesting, inter alia, that the decisions of 7 August 1995 and 15 December 1995 be quashed and that the operation of the workshop be stayed until a decision was made on the merits of her request of 1993. 18. On 14 November 1997 the Minister of Environment quashed the decisions of 7 August 1995 and 30 January 1995. In the written grounds he stated that the noise pollution inside the applicant’s home was not a matter of environmental protection, so that there was no legal basis for the proceedings to be instituted. The applicant appealed to the Supreme Administrative Court. 19. In a letter of 12 January 1998 to the Director of the Pabianice District Office the applicant requested that the appeal proceedings against the decision of 15 March 1995 be stayed until the appeal against the decision of 14 November 1997 lodged with the Supreme Administrative Court had been decided. On 30 January 1998 the Governor of Łódź, to whom this request must have been transmitted, stayed the proceedings as requested. The applicant’s neighbour appealed. 20. On 18 March 1998 the General Inspector of Construction Supervision quashed the decision of 30 January 1998 and remitted the case for reconsideration. 21. On 26 August 1998 the Governor of the Town of Łódź upheld the decision of 15 March 1995 and set a new time-limit for the workshop’s owner to comply with the imposed obligations. 22. On 25 November 1998 the Director of the Pabanice District Office granted permission for the operation of the workshop. The applicant appealed. On 23 March 1999 the Governor of Łódź quashed the decision of 25 November 1998 and remitted the case for reconsideration. The workshop’s owner appealed. 23. On 13 November 2001 proceedings were instituted to determine whether the operation of the workshop was lawful. On the same day the applicant was informed that on 13 December 2001 an inspection of the building would be carried out. On the same day the Supreme Administrative Court dismissed the owner’s appeal against the decision of 23 March 1999. 24. On 29 November 2001 the Mayor of Pabianice stayed the proceedings concerning the granting of permission until the Pabianice District Inspector of Construction Supervision had given a decision as to whether the operation of the workshop complied with the applicable legal requirements. The applicant appealed. 25. On 8 March 2002 the Mayor of Pabianice issued an operation permit for the workshop. The applicant appealed. On 26 April 2002 the Governor of Łódź informed the applicant that the time-limit set by law to decide on her appeal had been extended because of the need for checks to be done by the building inspection authorities. 26. On 7 June 2002 the Governor of Łódź upheld the decision of 8 March 2002. The applicant lodged a complaint with the Supreme Administrative Court. 27. By a decision of 29 October 2002 the Pabianice District Inspector of Construction Supervision authorised the operation of the workshop. The applicant appealed. 28. On 25 February 2003 the Supreme Administrative Court quashed the decision of 7 June 2002 and the preceding decision of 8 March 2002. It observed that noise evaluation tests were necessary for a decision allowing the operation of the workshop. Such tests had already been carried out in the case, but not in an appropriate manner. They should have been carried out during the working hours of the workshop and at different times and should have allowed for the applicant’s involvement to enable her to put forward her arguments to the person conducting the tests. 29. On 18 March 2003 the Pabianice Inspector of Construction Supervision stayed the proceedings concerning the permission to operate the workshop. The applicant appealed and they were resumed at an unspecified later date. 30. On 3 July 2003 the Mayor of Pabianice issued a decision obliging the workshop’s owner to supplement the submitted documentation by, inter alia, submitting an evaluation of the noise level before 30 September 2003. 31. On 29 October 2003 the District Inspector of Construction Supervision gave permission to operate the workshop on the basis of noise evaluation tests carried out by a certain S.K. The applicant appealed, challenging the soundness of the outcome of the tests and the way they had been carried out. 32. On 28 January 2004 the Łódź Regional Inspector of Construction Supervision quashed the decision of 29 October 2003, finding that the applicant had not been given an opportunity to be sufficiently involved in the noise evaluation tests. 33. On 22 October 2004 the applicant lodged a complaint with the Łódź Regional Inspector of Construction Supervision about inactivity on the part of the Pabianice District Inspector of Construction Supervision, to whom the case had been remitted for reconsideration on the strength of the decision of 28 January 2004. 34. On 20 October 2004 the Łódź Regional Inspector of Construction Supervision gave a decision in which it found inactivity on the part of the Pabianice District Inspector of Construction Supervision and obliged him to give a decision by 20 February 2005. 35. On 14 January 2005 the applicant lodged a complaint with the General Inspector of Construction Supervision about the administration’s failure to act in her case. 36. By a decision of 7 March 2005 the General Inspector of Construction Supervision stated that no inactivity on the part of the Łódź Regional Inspector of Construction Supervision had been found. 37. On 18 March 2005 the Pabianice District Inspector of Construction Supervision stayed the proceedings concerning the request for permission to operate, pending the outcome of noise tests to be carried out by the Regional Inspector of Environmental Protection. The applicant appealed. On 23 June 2005 the Łódź Regional Inspector of Construction Supervision allowed her appeal, quashed the decision staying the proceedings and ordered that they should be conducted further. 38. On 27 July 2005 the applicant complained to the administrative court about the District Inspector’s failure to take any steps to have a proper noise evaluation carried out and to give a decision on the merits of the case. In his reply of 25 August 2005 the Regional Inspector summarised the developments in the proceedings since the applicant’s complaint of 22 October 2004 and reiterated that the proceedings were, after its decision of 23 June 2005, pending before the first-instance authority. It noted that the applicant’s appeal against the decision of 18 March 2005 to stay the proceedings was fully justified. 39. By a judgment of 20 October 2005 the Łódź regional administrative court partly allowed the applicant’s complaint and set a one-month timelimit for the District Inspector to give a decision. It summarised the conduct of the proceedings since its judgment of 25 February 2003. It further observed that the proceedings had been conducted exceedingly slowly and that no valid justification for this unreasonable delay had been adduced by the administrative authorities. 40. The proceedings are pending. 41. Under domestic law inactivity on the part of authorities is open to challenge. Firstly, a party to administrative proceedings can make a complaint to a hierarchically higher authority under Article 37 § 1 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the timelimits fixed in that Code. 42. If unsatisfied with the outcome of the proceedings initiated by a complaint under Article 37 of the Code of Administrative Procedure, up to 1 January 2004 a party could have lodged a complaint about inactivity on the part of the administrative authorities with the Supreme Administrative Court under Article 17 of the Act of 1995 on the Supreme Administrative Court. This provision was repealed with effect from 1 January 2004. 43. On 1 January 2004 the 1995 Act was replaced by the Act on Proceedings before Administrative Courts of 30 August 2002, which provides for similar remedies.

dev

001-4977

ENG

POL

ADMISSIBILITY

TROJANOWSKI AND ROGOSZ v. POLAND

Inadmissible

Nicolas Bratza

The applicants are Polish citizens, born in 1967 and 1959 respectively and living in Gliwice, Poland. s, may be summarised as follows. In 1993, on the basis of a licence issued by the Ministry of Internal Affairs, the applicants founded a company specialising in the protection of property. On 31 March 1994 the Katowice District Court convicted the applicants of one count of misappropriation and sentenced them to one year’s imprisonment and a fine of 20.000.000 (old) Polish zlotys, with two hundred days of imprisonment in default, and conditionally stayed enforcement of this sentence for a period of one year. The court further discontinued criminal proceedings concerning a charge of attempted misappropriation. Finally, the court imposed on the applicants an order prohibiting them from running, for a period of one year, the property protection business. The court found that the applicants had first assisted the K. brothers in assigning to a certain J.C. the brothers’ claim against T.Z., which allegedly arose out of a civil law contract but one which had not been certified by any judicial decision. Subsequently, they had obtained from J.C. an authorisation to secure realisation of this claim against T.Z. On 22 March 1993 they went to a warehouse located in S., owned by T.Z., and stated that they wished to purchase a substantial amount of merchandise. After they had chosen the merchandise, the seller asked them what form of payment they propose. When she was informed that they did not propose to pay because their intention was to set off the claim which J.C. had acquired against T.Z. against the price due for the merchandise, the seller called the police. After the police arrived and told the applicants that they should have recourse to civil proceedings, they left the warehouse. They subsequently went to two other shops owned by T.Z., located in K., where they declared their intention to buy certain merchandise and, after it had been loaded on their van, they again refused to pay for it, stating that the payment due would be set off against the claim J.C. had against T.Z. The court noted that there had been no dispute as to the facts. The accused had not called in question the facts as established on the basis of testimony given by the witnesses, but they had disagreed with the legal assessment of the facts by the prosecuting authorities. They had stressed that their actions fell within the scope of a civil law contract of assignment of claims and the setting off of claims. The court considered that the accused had failed to take note of Article 58 of the Civil Code which provided for a legal act to be null and void if effected in order to circumvent the law, or if it was contrary to the law, or contrary to good faith. The court considered that, although the applicants were conversant with civil law, their actions could not be construed as the mutual setting off of contractual claims. Their intention had been to conclude a contract of purchase and to refuse payment, invoking the assignment of claims to J.C.. The court considered that their acts amounted to an offence of misappropriation punishable under Article 204 of the Criminal Code. The court further held that the applicants had abandoned, of their own will, their intention to proceed with the purchase of merchandise in S. and thus considered that the part of the criminal proceeding relating to this incident should be discontinued. The applicants appealed. They alleged that their defence rights had been breached in that the legal qualification of the charges against them had been changed after the court had closed the trial. They complained that after the trial had been closed, T. R. had not been given a possibility to address the court, that the court had made it impossible for them to lodge an appeal and that the proceedings had lasted too long. They also complained that B.Z., the wife of T.Z., had been questioned only on the last day of the trial and that the court had wrongly applied substantive law by considering that their acts could have amounted to offences punishable under criminal law, whereas they had only resorted to a well-established civil law contract of assignment of claims which could be effected regardless of the creditor’s lack of knowledge and of his approval thereof. The Prosecutor likewise lodged an appeal, claiming that the District Court had wrongly applied substantive criminal law in that it had assessed the applicant’s offence as misappropriation, whereas it should have been qualified as fraud. He further argued that the part of the proceedings relating to the applicants’ acts committed in S. should not have been discontinued because, in fact, the applicants had not abandoned their intention of their own will, but only after the seller had called the police. On 8 July 1994 the Katowice Regional Court quashed the judgment under appeal and ordered that the case be reconsidered by the lower court. The court first examined the complaints submitted by the applicants to the effect that the procedural law had been breached in the proceedings. The court considered that the lower court had in fact informed the applicants about the possibility of reassessing the offences with which they had been charged before the trial had been closed. The court further found that after the trial had been closed, the accused, including T.R., had had an opportunity to address the court orally. The court considered the complaint about the impossibility of appeal to be incomprehensible because they had in fact lodged an appeal. The fact that B.Z. had been questioned on the last day of the trial did not amount to an irregularity, as the lower court had been under no obligation to question witnesses in any given order. As to the legal argument on mutual setting off allowed under civil law, the court noted that the only document purporting to be evidence of the existence of the claims of the K. brothers against T.Z. merely showed that the latter had had certain obligations towards the A. company, of which the brothers had been shareholders, whereas the assignment of claims had purportedly been concluded between the K. brothers and J.C. The court concluded that there had been no credible evidence to prove the existence of T.Z.’s original contractual obligation towards the K. brothers. The court observed that the applicants had requested J.C. to allow their company to secure the payment of claims arising out of various contractual obligations for a commission of five per cent. Subsequently J.C. had signed a blank claim assignment form which was subsequently to be used by the applicants’ company. The court considered that such an assignment, in the absence of any details establishing the claims on which the applicants could seek payment, could not be regarded as valid under the applicable provisions of civil law. The court noted that the civil law allowing for the setting off of claims is only applicable when the persons concerned were mutual debtors and creditors in relation to each other. The court considered that the legal assessment of the offences at issue by the first instance court had been wrong in that they had been qualified as misappropriation. However, this offence requires that the perpetrator had the objects concerned in his or her possession and then refused to return them to their rightful owner. As this had not been the case, the legal assessment of the offences had to be amended. Accordingly the court quashed the judgment of the lower court. On 20 February 1995 the Katowice District Court convicted the applicants of two charges qualified as a continuous offence of fraud, sentenced them to eighteen months’ imprisonment and a fine with imprisonment in default, and conditionally stayed enforcement of the sentence for a period of two years. The court reiterated that, as the applicants had not called into question the facts of the case, the essence of the matter lay in the legal assessment of their acts. The court considered that during the material events the applicants had pretended that they wanted to purchase merchandise and that by doing so they had misled the sellers. However, their genuine intention was, first, to enter into possession of the merchandise and, after this had been attained, to refuse payment and to declare that they intended to set off the price due against the claims against T.Z. which had purportedly been assigned to J.C. The court considered that in the light of the evidence given by the sellers, they would not have concluded such a contract with the applicants had they been informed of their real intentions. Thus the court considered that the setting off of the claims had been null and void and that the applicants’ acts met the statutory requirements of the offence of fraud, as set out in Article 205 of the Criminal Code applicable at the material time. The applicants lodged an appeal, complaining that the judgment was in breach of substantive law, in that the court had accepted that their acts amounted to a criminal offence punishable under Article 205 of the Criminal Code, whereas in fact they had acted in conformity with the law. The applicants did not reiterate the complaint they had raised in their appeal against the judgment of 31 March 1994 that the legal qualification of the charges against them had been changed after the first-instance court had closed the trial. On 23 May 1995 the Katowice Regional Court amended the first instance judgment of 20 February 1995, reducing the sentence to a fine of 1.000 new PZL, with one hundred days’ imprisonment in default, whilst upholding the remainder. The court first noted that the applicants did not call into question the findings of fact made by the lower court. The court noted that T.Z. had never been asked by the A. company to pay his alleged debt. Thus, the claim could not be considered as due. The court considered that, for contractual claims to be validly set off against each other, the law required that the claims should not only be undisputed but also due, which conditions did not obtain in the present case. Moreover, the applicants, when purchasing merchandise owned by T.Z., had acted with a fraudulent intent, because their real intention was to take possession of the merchandise and then to refuse payment. Thus, the applicants’ argument that they had validly concluded a purchase contract with T.Z. and subsequently set off J.C.’s assigned claim could not be accepted. Given the invalid purchase contract, there were no legal grounds on which the claims could be lawfully set off against each other.

dev

001-100139

ENG

HUN

COMMITTEE

CASE OF GYARFAS AND HUNAUDIT KFT. v. HUNGARY

Violation of Art. 6-1

András Sajó;Kristina Pardalos

4. The applicant was born in 1956 and lives in Budapest. 5. On 28 December 1994 the predecessor of the second applicant, represented by the first applicant, filed an action for damages against a company before the Budapest Regional Court. On 17 October 1995 the Regional Court ordered intermission of the proceedings for six months at the joint request of the parties. On 11 April 1996 the plaintiff requested continuation of the proceedings and extended its action to involve another respondent. 6. On 6 March 1997 the Regional Court delivered a judgment dismissing the action. 7. On appeal, on 17 November 1997 the Supreme Court's appellate bench quashed the first instance judgment and remitted the case to the Regional Court. 8. On 31 August 1998 the plaintiff extended the action to include a claim of invalidity of a contract. On 10 November 1998 the plaintiff stated its intention to extend the action to involve further respondents including a company based in Japan. It was therefore instructed to advance the costs of translation but complied with this order only on 4 November 1999. 9. On 20 April 2000 the Regional Court held a hearing and delivered a judgment dismissing the action. The plaintiff appealed on 5 June 2000. 10. On 27 September 2000 the plaintiff was struck out of the register of companies and ceased to exist as a legal entity. Its successor was the second applicant. However, neither itself nor its attorney, the first applicant, informed the courts or the parties of this fact. 11. On 24 September 2001 the Supreme Court quashed the first instance judgment for deficient facts and remitted the case. 12. In the resumed proceedings, a respondent notified the Regional Court on 22 May 2002 that the plaintiff had been struck out of the register of companies. On 23 May 2002 the first applicant, representing the second one, declared that he could not make a statement on the legal succession of his client. He was ordered to do so within 15 days. On 17 July 2002 he informed the court that, by way of a deed of cession, the successor of the plaintiff was his own mother, a pensioner eligible for exemption from court fees. 13. At the hearing of 26 September 2002 the first applicant produced a contract of 2 January 1996 by which part of the claims of the original plaintiff had been ceded to himself. He also submitted another document of 31 October 1998 by which he had further ceded some of those claims to his mother. He stated that he wished to enter the proceedings as party. 14. On 15 October 2002 the Head of the Economic College of the Budapest Regional Court informed the President of the Budapest Bar Association of the first applicant's conduct, deemed profoundly unethical. The applicant was subsequently reprimanded. 15. On 9 September 2003 the parties were heard as to the first applicant's claim to become a plaintiff. On 7 October 2003 the first applicant was granted leave to become a plaintiff in the proceedings. However, on the respondents' appeal against the leave, the Budapest Court of Appeal quashed the order on 1 June 2004. 16. On 13 July 2004 the Budapest Regional Court declared interruption of the proceedings on the ground that the plaintiff had ceased to exist. On 30 May 2005 the court quashed this order finding that the second applicant was the legal successor. On 28 June 2005 the first applicant stated that he did not wish to become a party to the proceedings. However, on 23 February 2006 he stated that he nevertheless joined the proceedings. 17. On the same date the Budapest Regional Court delivered a judgment dismissing the applicants' action. On appeal, the Court of Appeal held a hearing on 5 December 2006 and delivered a judgment on 13 December 2006 upholding in essence the first-instance. 18. On 12 November 2007 the Supreme Court delivered a judgment dismissing the applicants' petition for review and upholding the judgment of the Budapest Court of Appeal.

dev

001-93265

ENG

CHE

GRANDCHAMBER

CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v. SWITZERLAND (No. 2)

Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (lack of jurisdiction);Violation of Art. 10

Alvina Gyulumyan;András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giorgio Malinverni;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Ledi Bianku;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mihai Poalelungi;Päivi Hirvelä;Renate Jaeger;Snejana Botoucharova

12. The applicant association is dedicated to animal protection, campaigning in particular against animal experiments and battery farming. 13. In response to various advertisements produced by the meat industry, the applicant association made a television commercial lasting fifty-five seconds, consisting of two scenes. The first scene showed a sow building a shelter for her piglets in the forest. With soft music playing in the background, the voiceover referred, among other things, to the pigs’ sense of family. The second scene showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars. The voiceover compared the conditions in which pigs were reared to concentration camps, and added that the animals were pumped full of medicines. The advertisement concluded with the exhortation: “Eat less meat, for the sake of your health, the animals and the environment!” 14. Permission to broadcast the commercial on the channels of the Swiss Radio and Television Company (Schweizerische Radio- und Fernsehgesellschaft) was refused on 24 January 1994 by the company responsible for television advertising (the Commercial Television Company (AG für das Werbefernsehen), now called Publisuisse SA) and, at final instance, by the Federal Court, which dismissed an administrative-law appeal by the applicant association on 20 August 1997. In respect of the applicant association’s complaint under Article 10 of the Convention, the Federal Court found that the prohibition of political advertising laid down in section 18(5) of the Federal Radio and Television Act pursued various aims; in particular, it was designed to prevent financially powerful groups from obtaining a competitive political advantage, to protect the formation of public opinion from undue commercial influence, to bring about a certain equality of opportunity among the different forces of society, and to contribute towards the independence of radio and television broadcasters in editorial matters. 15. On 13 July 1994 the applicant association lodged an application with the European Commission of Human Rights under former Article 25 of the Convention. 16. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 17. In a decision of 6 April 2000, the Court declared the application partly admissible. 18. In a judgment of 28 June 2001, the Court held that the refusal by the relevant Swiss authorities to broadcast the commercial in question infringed the right to freedom of expression guaranteed by Article 10 of the Convention (see VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001VI). The Court found that the measure taken had been “prescribed by law” and had pursued a legitimate aim for the purposes of Article 10 § 2. As to whether the measure had been “necessary in a democratic society” within the meaning of that provision, the Court noted, in particular, that it had not been established that the applicant association itself constituted a powerful financial group pursuing the aim of restricting the broadcaster’s independence, unduly influencing public opinion or endangering equality of opportunity among the different forces of society. On the contrary, it had simply intended to participate in an ongoing general debate on the protection and rearing of animals. Accordingly, in the Court’ The Court also found that there had been no violation of Articles 13 and 14 of the Convention. As to the application of Article 41, it ordered Switzerland to pay the sum of 20,000 Swiss francs (CHF) (approximately 13,300 euros (EUR) today) for costs and expenses. However, it made no award to the applicant association for non-pecuniary damage. 19. On 31 October 2001 the applicant association again applied to Publisuisse SA for permission to broadcast the same commercial with the addition of a comment referring to the Court’s judgment and criticising the conduct of the Swiss Radio and Television Company and the Swiss authorities. 20. In a letter of 30 November 2001, Publisuisse SA refused the application. 21. On 1 December 2001, on the basis of the Court’s judgment, the applicant association applied to the Federal Court for the final judgment given at domestic level to be reviewed, in accordance with section 139(a) of the former Federal Judicature Act (see paragraph 28 below). The application was worded and substantiated as follows: “In the case of Verein gegen Tierfabriken Schweiz (VgT), 9546 Tuttwil, v. Swiss Radio and Television Company, Publisuisse SA and the Federal Department of Environment, Transport, Energy and Communication (DETEC): I hereby request on behalf of VgT that the Federal Court’s judgment of 20 August 1997 be reviewed and that the administrative-law appeal of 18 June 1996 be allowed. Reasons: In its judgment of 28 June 2001, the European Court of Human Rights upheld an application challenging the Federal Court judgment of which I am seeking a review (see Annex 1). The judgment was served on 25 October 2001 (see Annex 2); this application for review has therefore been lodged in time. Yours faithfully ...” 22. The Federal Department of Environment, Transport, Energy and Communication and the Swiss Radio and Television Company submitted in their respective observations of 10 January and 15 February 2002, which were duly transmitted to the applicant association, that the application to reopen the proceedings should be dismissed. 23. In a judgment of 29 April 2002, the Federal Court dismissed the application to reopen the proceedings. It held that the applicant association had not provided a sufficiently detailed explanation of the nature of “the amendment of the judgment and the redress being sought”, a formal requirement imposed by section 140 of the former Federal Judicature Act (see paragraph 29 below). It observed, in particular, that the applicant association had been unable to show that redress was possible only through the reopening of the proceedings. It further noted that the association had not sufficiently shown that it still had an interest in broadcasting the original commercial, which now appeared out of date almost eight years after it was initially intended to have been broadcast. Lastly, the Federal Court considered that the fresh refusal by Publisuisse SA, the competent authority in such matters, to sign a new agreement to broadcast the commercial should have formed the subject of separate proceedings. The relevant passages of the judgment read as follows: “... 3.1 Section 140 of the Federal Judicature Act provides that an application for review must indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it has been raised in due time. It is not enough simply to claim that the ground exists; it is also necessary to explain why, and to what extent, the operative provisions must be amended as a result (Elisabeth Escher, ‘Revision und Erläuterung’, note 8.28, in Geiser/Münch, Prozessieren vor Bundesgericht, 2nd ed., Basle 1998). 3.2 The application to reopen the proceedings in the instant case does not meet these formal requirements. The applicant association has sought the review of the Federal Court’s judgment without explaining the extent to which this is necessary following the European Court’s judgment of 28 June 2001. VgT evidently assumes that the Strasbourg Court’s decision against Switzerland in itself makes the reopening of the proceedings necessary, but that is not the case. The mere fact that the Court, ruling on an individual application, has found a violation of the Convention does not mean that the Federal Court judgment in issue must automatically be reviewed in accordance with domestic law (see judgment 2A.363/2001 of 6 November 2001 in the Boultif case, point 3a/cc; Martin Philip Wyss, ‘EMRK-Verletzung und bundesrechtliche Revision nach Art. 139a OG’, in recht 1999, p. 100; Schürmann, op. cit., p. 100; Hottelier, op. cit., p. 749; BBl 1991 II 465, p. 529). Being a subsidiary remedy, reopening is justified only if it appears to remain necessary notwithstanding the compensation awarded by the European Court of Human Rights and constitutes the only means of obtaining redress (see Schürmann, op. cit., p. 102; Wyss, op. cit., p. 99). The application to reopen the proceedings must give at least a broad indication of how redress may be obtained only by this means (see judgment 2A.363/2001 of 6 November 2001 in the Boultif case, point 3b/cc). 3.3 ... Publisuisse SA evidently once again refused to conclude an advertising agreement with VgT, which appealed against the refusal to the Federal Office of Communication; the proceedings are still pending. By taking this action, VgT itself proves that it is not continuing to suffer any practical adverse effects that can only be redressed by reopening the proceedings. It does not claim that it still has an interest in having the original commercial broadcast; it is, moreover, unlikely that this is the case, since VgT’s primary objective is no longer (solely) to encourage a decline in meat consumption and to denounce the conditions in which animals are reared (which are also likely to have changed in the almost eight years since the commercial was intended to have been broadcast), but to publicise the Court’s finding of a violation of its freedom of expression. It is thus no longer the same commercial that is under discussion today. The consequences of the Convention violation committed at the time were redressed as a result of the judgment against Switzerland and the award of just satisfaction under Article 41 of the Convention; the new agreement which VgT now wishes to conclude must form the subject of separate proceedings. ... 4.2 In its judgment of 20 August 1997, the Federal Court held that VgT’s commercial was subject to the public-law prohibition on political advertising set forth in section 18(5) of the Federal Radio and Television Act and could provide the Swiss Radio and Television Company, or rather Publisuisse SA, with a valid reason for not concluding the advertising agreement. The European Court of Human Rights did not share this view and held that there was no justification in a democratic society for refusing to broadcast a commercial on the ground that it constituted political advertising, which was banned on television. The Court did not express an opinion on whether and to what extent Switzerland, by not ensuring that the commercial could be broadcast, had breached any positive obligations resulting from the extension of the Convention safeguards to relations between private entities (see paragraph 46 of the Court’s judgment). The subject of the Federal Court’s judgment was the finding by the authorities that VgT’s commercial could be considered ‘political’ within the meaning of the Radio and Television Act and that the refusal to broadcast it could be justified on this public-law ground alone. The judgment did not deal with the question whether the Swiss Radio and Television Company had boycotted VgT, whether the company dominated the advertising market and whether, on that account, it would have been under an obligation to conclude an advertising agreement. These (civil law) aspects of an obligation to contract must be addressed in the appropriate form of civil proceedings (concerning cartel law, competition law or the general law relating to personality rights) and not under the law governing trading licences. This argument, which Switzerland put forward, was not contested by the European Court. 4.3 In this connection, by enacting the relevant (civil) legislation and establishing judicial remedies to implement it, Switzerland has complied with its positive obligation under Article 10 of the Convention to ensure the appropriate realisation among private entities of the rights guaranteed by the Convention. The rules of competition and cartel law or the possibility of asserting a civil-law obligation to contract are intended to encourage a means of implementing fundamental rights that is fair and strikes a balance between the various interests at stake in the sphere of economic relations between private entities. VgT is free to use this legal remedy in seeking to have its commercial broadcast, provided that, contrary to what has been said above, it still has a real interest in the broadcast; in that eventuality, due regard will have to be had in the proceedings to its constitutional rights and the principles enshrined in Article 10 of the Convention (see Article 35 of the Federal Constitution). The judgment of the European Court of Human Rights does not conflict with this view; however, all that can be inferred from the judgment is that the classification of the commercial as ‘political advertising’ did not justify refusing to broadcast it, or that the broadcasting of the commercial by the Swiss Radio and Television Company, on the basis of Article 10 of the Convention, should not have had any consequences for the broadcaster under the law relating to trading licences. The Swiss Radio and Television Company rightly points out that the judgment cannot be construed as requiring it to broadcast the commercial in issue in breach of the existing legal rules (such as the provisions of the Federal Unfair Competition Act), since the European Court did not address the corresponding questions, limited itself to examining the issue of ‘political’ advertising and did not state any position on the Swiss Radio and Television Company’s ‘negative’ freedom of expression. Since the Court’s judgment simply finds that the prohibition of political advertising on television must not stand in the way of broadcasting the commercial, VgT must seek to have it broadcast through recourse to the civil courts and not through the reopening procedure, should the Swiss Radio and Television Company, or rather Publisuisse SA, still refuse to broadcast it (see Ulrike Preissler, Die Zulässigkeit ideeller Werbung im Fernsehen, dissertation, Bonn 1994, pp. 113 et seq.; Martin Dumeruth, ‘Rundfunkrecht’, in Koller/Müller/Rhinow/ Zimmerli (eds.), Schweizerisches Bundesverwaltungsrecht, Basle 1996, note 126; Rolf H. Weiss, ‘Rechtliche Grundlagen für Werbung und Sponsoring’, in SMI 1993, pp. 213 et seq., in particular p. 226, footnote 58). 4.4 The Swiss Radio and Television Company cannot be directly ordered to broadcast the commercial in issue, since the Federal Court has no power in public law to give such an order. The applicant association had requested the Federal Office of Communication to issue a declaratory order to the effect that, under Article 10 of the Convention, VgT was entitled to have its commercial broadcast (‘right to broadcast advertising’). The Federal Court acknowledged from a procedural point of view that a right to have such an order issued existed (section 25 of the Federal Administrative Procedure Act in conjunction with Article 13 of the Convention) but ruled in the instant case – wrongly in the European Court’s view – on the basis of section 18(5) of the Federal Radio and Television Act that there was no right of access to television for political advertising. If the Federal Court had decided in the same way as the European Court, it would have had to limit itself to finding that the Swiss Radio and Television Company had not been entitled to refuse to broadcast the commercial on the ground that it was political in nature, or rather that reliance on this ground for the refusal was contrary to Article 10 of the Convention. On the other hand, given the lack of legal basis, the Federal Court could not have ordered the Swiss Radio and Television Company to broadcast the commercial in the context of proceedings governed by broadcasting legislation (see Dumermuth, op. cit., note 491). VgT is now seeking such an order solely by way of the reopening procedure, but it cannot obtain it in relation to the decision to be reviewed. The Federal Court cannot make an order, following a judgment of the Strasbourg Court, that it was not empowered to make in the original proceedings (see judgment 2A.232/2000 of 2 March 2001 in the Amann case, point 3b/bb, published in EuGRZ 2001, p. 322). ...” 24. On 3 March 2003 the Federal Office of Communication dismissed an appeal by the applicant association against Publisuisse SA’s decision of 30 November 2001 refusing permission to broadcast the commercial featuring the additional comment. 25. The Committee of Ministers of the Council of Europe, which had not been informed either by the applicant association or by the Government that the Federal Court had dismissed the application for review, concluded its examination of application no. 24699/94 on 22 July 2003 by adopting Resolution ResDH(2003)125, the relevant parts of which read: “... Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46 § 2 of the Convention; ... Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution; ... Declares, after having taken note of the information supplied by the Government of Switzerland, that it has exercised its functions under Article 46 § 2 of the Convention in this case. Appendix to Resolution ResDH(2003)125 Information provided by the Government of Switzerland during the examination of the VgT Verein gegen Tierfabriken case by the Committee of Ministers As regards individual measures, the judgment was transmitted to the applicant, who was entitled to request the revision of the Federal Court’s judgment of 20 August 1997. Concerning general measures, the judgment has been sent out to the Federal Office of Communication, the Federal Department for Environment, Transport, Energy, and Communication and to the Federal Court. In addition, the Court’s judgment has been published in the journal Jurisprudence des autorités administratives de la Confédération no. 65/IV(2001), and can be consulted on the following website: ... The judgment has also been mentioned in the Federal Council Annual Report on the Swiss activities at the Council of Europe in 2001, which has been published in the Feuille fédérale no. 8/2002. The Government of Switzerland considers that, given the information mentioned above, there will no longer exist a risk of a repetition of the violation found in the present case and, consequently, Switzerland has satisfied its obligations under Article 46 § 1 of the Convention.” 26. In a letter of 12 December 2003, the applicant association informed the Council of Europe’s Directorate General of Human Rights of the Federal Court’s refusal to review the judgment of 20 August 1997 following the Court’s finding of a violation of Article 10. 27. On 12 January 2005 the Council of Europe’s Directorate General of Human Rights informed the applicant association that it did not consider it advisable to conduct a fresh examination of the matter alongside the Court’s consideration of the application lodged in July 2002 in the present case. 28. Sections 136 et seq. of the former Federal Judicature Act, which was in force until 31 December 2006, concerned, inter alia, the review of judgments of the Federal Court. Section 139(a) provided: “1. A decision of the Federal Court or of a lower court may be reviewed if the European Court of Human Rights or the Committee of Ministers of the Council of Europe has granted an individual application on account of a breach of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and redress is possible only through such a review. 2. If the Federal Court determines that a review is called for, but a lower court has jurisdiction, it shall refer the case to the lower court to reopen proceedings in the matter. 3. The cantonal court shall then decide on the application for a review even if cantonal law does not envisage such a ground for the reopening of proceedings.” 29. Section 140 of the Act provided: “The application for review must indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it has been raised in due time; it must also state the nature of the amendment of the judgment and the redress being sought.” 30. Thus, on the basis of section 140, the Federal Court on 2 March 1999 partly revised one of its judgments after the Court had found a violation in Hertel v. Switzerland (25 August 1998, Reports of Judgments and Decisions 1998VI). It held, in particular: “... The judgment of the European Court of Human Rights may afford the applicant satisfaction and, through the award of CHF 40,000, financial compensation for the cost of the proceedings. But it does not remove the restrictions imposed on the applicant by the Commercial Court and confirmed by the Federal Court in its judgment of 25 February 1994. These restrictions may be upheld only within the bounds of necessity as defined by the European Court. Since those restrictions may be lifted or limited only by means of an appeal to the Federal Court, the requirement of section 139(a) of the Federal Judicature Act is met ...” 31. Section 122 of the Federal Court Act of 17 June 2005, in force since 1 January 2007, reproduces the content of section 139(a) of the former Federal Judicature Act. It provides: “An application for review of a judgment of the Federal Court on account of a violation of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms may be submitted if the following conditions are satisfied: (a) the European Court of Human Rights, in a final judgment, has found a violation of the Convention or its Protocols; (b) compensation cannot remedy the effects of the violation; (c) the review is necessary to remedy the effects of the violation.” 32. In a judgment of 18 July 2008 the Federal Court granted an application to reopen the proceedings following the Court’s finding of a violation of Article 8 of the Convention in Emonet and Others v. Switzerland (no. 39051/03, 13 December 2007), and set aside its judgment of 28 May 2003. The relevant parts of the Federal Court’s judgment read as follows: “As to the law: 1. By virtue of section 122(a) of the Federal Court Act, an application for review of a judgment of the Federal Court on account of a violation of the Convention may be submitted if the European Court, in a final judgment, has found a violation of the Convention or its Protocols. In such an event, the application for review must be lodged with the Federal Court no later than 90 days after the European Court’s judgment has become final within the meaning of Article 44 of the Convention (section 124(1)(c) of the Federal Court Act). Having been parties to the proceedings that resulted in the impugned judgment, the applicants have locus standi. The judgment became final on 13 March 2008; the application has therefore been lodged in time. The application also states the ground relied on for reopening the proceedings and the nature of the amendment of the judgment being sought; it should therefore be considered on the merits. The submission that the Confederation should be ordered to pay the applicants the sums awarded by the European Court in respect of non-pecuniary damage and costs and expenses cannot, however, be dealt with in the present review proceedings. Accordingly, it is inadmissible. 2. The basis in section 122 of the Federal Court Act for reopening the proceedings is subject to several conditions. Thus, an individual application must have been upheld by the European Court in a final judgment finding a violation of a right guaranteed by the Convention (subsection (a)); compensation cannot remedy the effects of the violation (subsection (b)); and the review must be necessary to remedy the effects of the violation (subsection (c)). The conditions laid down in this provision are similar to those which applied under the Federal Judicature Act (section 139(a)), with the result that, in principle, the case-law under the previous legislation retains its full force. 2.1 In the instant case the European Court found that the severing of the mother-child relationship following the child’s adoption by her mother’’ right to respect for family life and, on that account, a violation of Article 8 of the Convention. The European Court’s judgment has, moreover, been final since 13 March 2008 (section 122(a) of the Federal Court Act). Furthermore, it is clear that no award of compensation can afford redress for the loss of the mother-child relationship as a result of the adoption (section 122(b) of the Federal Court Act). The first two conditions in section 122 of the Federal Court Act are therefore satisfied. 2.2. It remains to be ascertained whether a review of the Federal Court’s judgment is necessary to remedy the effects of the violation of Article 8 of the Convention (section 122(c) of the Federal Court Act). The mere fact that there has been a breach of the Convention does not mean that the decision referred to the European Court has to be reviewed. This follows from the very nature of the reopening procedure, which is an extraordinary remedy. Accordingly, if there is another ordinary remedy that could afford redress, that remedy should be used first. The answer to this question depends on the nature of the Convention violation that has been found. Where only material interests remain at stake, the proceedings cannot in principle be reopened. However, where the unlawful situation persists despite the European Court’s finding of a violation of the Convention, a review is possible. The proceedings are then reopened within the limits of the relevant ground (see, with reference to the Federal Judicature Act, judgment 2A.232/2000 of 2 March 2001, point 2b/bb, published in: Pra 2001 no. 92, p. 538, and the judgments cited; and, with reference to the Federal Court Act, Elisabeth Escher, in Basler Kommentar BGG, Basle 2008, note 6 on section 122; judgment 1F_1/2007 of 30 July 2007, point 3.2). The European Court held on this point that the annulment of the adoption for lack of consent would not be able to remedy the effects of adoption at the origin of the dispute. An action to that end could not, according to the European Court’s case-law, be regarded as an effective remedy on the basis of which a plea of inadmissibility could be raised against the applicants for failure to exhaust domestic remedies. The European Court also held that the adopter and the adopted person’s mother could not be required to marry in order to restore the adopted person’s relationship with her mother. In the Court’s view, it is not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wish to adopt. The concept of family under Article 8 of the Convention is, moreover, not confined to marriage-based relationships. Accordingly, unless the mother-daughter relationship is restored and an amendment to that effect is made to the civil-status register, it must be acknowledged that the unlawful situation will persist. Accordingly, the application for review should be allowed and the judgment of 28 May 2003 should be set aside. ...” 33. On 19 January 2000, at the 694th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to bring about a closer union between its members; Having regard to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’); Noting that under Article 46 of the Convention ... the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights (‘the Court’) in any case to which they are parties and that the Committee of Ministers shall supervise its execution; Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum); Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system; Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum; I. Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum; II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of. Explanatory memorandum ... 8. Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist. ...” 34. Paragraph 35 of the Report by the Parliamentary Assembly of the Council of Europe on execution of judgments of the European Court of Human Rights (doc. 8808, 12 July 2000) reads as follows: “Since the Court does not tell States how to apply its decisions, they must consider how to do so themselves. The obligation to comply with judgments is an obligation to produce a specific result – to prevent further violations and repair the damage caused to the applicant by the violation. ...” 35. On 10 May 2006, at the 964th meeting of the Ministers’ Deputies, the Committee of Ministers adopted Rules for the supervision of the execution of judgments and of the terms of friendly settlements: “Rule 1 1. The exercise of the powers of the Committee of Ministers under Article 46 §§ 2 to 5 and Article 39 § 4 of the European Convention on Human Rights is governed by the present Rules. ... Rule 6: Information to the Committee of Ministers on the execution of the judgment 1. When, in a judgment transmitted to the Committee of Ministers in accordance with Article 46 § 2 of the Convention, the Court has decided that there has been a violation of the Convention or its Protocols and/or has awarded just satisfaction to the injured party under Article 41 of the Convention, the Committee shall invite the High Contracting Party concerned to inform it of the measures which the High Contracting Party has taken or intends to take in consequence of the judgment, having regard to its obligation to abide by it under Article 46 § 1 of the Convention. 2. When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46 § 2 of the Convention, the Committee of Ministers shall examine: (a) whether any just satisfaction awarded by the Court has been paid, including as the case may be, default interest; and (b) if required, and taking into account the discretion of the High Contracting Party concerned to choose the means necessary to comply with the judgment, whether: (i) individual measures have been taken to ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention; (ii) general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations. Rule 7: Control intervals 1. Until the High Contracting Party concerned has provided information on the payment of the just satisfaction awarded by the Court or concerning possible individual measures, the case shall be placed on the agenda of each human rights meeting of the Committee of Ministers, unless the Committee decides otherwise. 2. If the High Contracting Party concerned informs the Committee of Ministers that it is not yet in a position to inform the Committee that the general measures necessary to ensure compliance with the judgment have been taken, the case shall be placed again on the agenda of a meeting of the Committee of Ministers taking place no more than six months later, unless the Committee decides otherwise; the same rule shall apply when this period expires and for each subsequent period. Rule 8: Access to information 1. The provisions of this Rule are without prejudice to the confidential nature of the Committee of Ministers’ deliberations in accordance with Article 21 of the Statute of the Council of Europe. 2. The following information shall be accessible to the public unless the Committee decides otherwise in order to protect legitimate public or private interests: (a) information and documents relating thereto provided by a High Contracting Party to the Committee of Ministers pursuant to Article 46 § 2 of the Convention; (b) information and documents relating thereto provided to the Committee of Ministers, in accordance with the present Rules, by the injured party, by non-governmental organisations or by national institutions for the promotion and protection of human rights. ... Rule 9: Communications to the Committee of Ministers 1. The Committee of Ministers shall consider any communication from the injured party with regard to payment of the just satisfaction or the taking of individual measures. 2. The Committee of Ministers shall be entitled to consider any communication from non-governmental organisations, as well as national institutions for the promotion and protection of human rights, with regard to the execution of judgments under Article 46 § 2 of the Convention. 3. The Secretariat shall bring, in an appropriate way, any communication received in reference to paragraph 1 of this Rule, to the attention of the Committee of Ministers. It shall do so in respect of any communication received in reference to paragraph 2 of this Rule, together with any observations of the delegation(s) concerned provided that the latter are transmitted to the Secretariat within five working days of having been notified of such communication. ... Rule no. 16: Interim resolutions In the course of its supervision of the execution of a judgment or of the terms of a friendly settlement, the Committee of Ministers may adopt interim resolutions, notably in order to provide information on the state of progress of the execution or, where appropriate, to express concern and/or to make suggestions with respect to the execution. Rule no. 17: Final resolution After having established that the High Contracting Party concerned has taken all the necessary measures to abide by the judgment or that the terms of the friendly settlement have been executed, the Committee of Ministers shall adopt a resolution concluding that its functions under Article 46 § 2 or Article 39 § 4 of the Convention have been exercised.” 36. Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (adopted by the General Assembly of the United Nations at its 53rd session (2001), and reproduced in Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10)) is worded as follows: “A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.” 37. Article 26 of, and the third paragraph of the Preamble to, the Vienna Convention of 23 May 1969 on the Law of Treaties, which entered into force in respect of Switzerland on 6 June 1990, sets forth the principle of pacta sunt servanda: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

dev

001-83413

ENG

NLD

CHAMBER

CASE OF VOSKUIL v. THE NETHERLANDS

Violation of Art. 10;Violation of Art. 5-1;Remainder inadmissible;Costs and expenses (Convention proceedings) - claim dismissed

David Thór Björgvinsson;Wilhelmina Thomassen

6. The applicant was born in 1975 and lives in Amsterdam. 7. On 30 March 2000 the Amsterdam Regional Court (arrondissementsrechtbank) convicted three accused, Messrs K., Van S. and H., of arms trafficking. In the criminal investigation into the offences at issue, the Amsterdam police had stated that an arsenal of weapons had been found by chance: the caretaker of a building situated on the Nachtwachtlaan in Amsterdam had contacted the police when water was leaking from one of the flats in the building, whose occupants were absent. With the aid of two locksmiths, the police had gained entry to the flat and in the subsequent search for the source of the leak, the weapons had been found. 8. The accused lodged an appeal against the judgment of the Regional Court. 9. On 12 and 13 September 2000 the daily newspaper Sp!ts published two articles, written by the applicant and his colleague Ms S., in which doubts were expressed about the amount of coincidence allegedly involved in the finding of the weapons. The article of 13 September 2000, entitled “Chance Hit or Perfect Shot?” (“Toevalstreffer of loepzuiver schot?”), quotes an unnamed policeman of the Amsterdam force as commenting in respect of the flooding, “That is what we made out of it. Sometimes you just need a breakthrough in an investigation” (“Dat hebben we er maar van gemaakt. Soms heb je net even een doorbraak nodig in je onderzoek”). 10. In the proceedings on appeal against K., Van S. and H., the applicant and Ms S. were summonsed to appear as witnesses at the request of the defence. At the first hearing before the Amsterdam Court of Appeal (gerechtshof) on 22 September 2000 in the cases against Van S. and K., the applicant – who was assisted by counsel – stated inter alia that he knew that the policeman, whom he had quoted verbatim in the article of 13 September 2000, had been involved in a previous investigation against K. When the applicant was asked whether that policeman was also involved in the investigation of the flat or was aware of that investigation, he invoked his right of non-disclosure (verschoningsrecht). Counsel for the defence argued that both the individual interest of the accused – on whom a custodial sentence had been imposed as a result of the investigation carried out by the police – and the interest of criminal justice in the Netherlands outweighed the applicant's interest in not disclosing his source. The Advocate General also expressed as his opinion that the applicant could not invoke a right of non-disclosure. He stated in addition that the source, if his name was made known, had nothing to fear from either the police or the public prosecution service. 11. After having deliberated, the Court of Appeal considered that, if the statement made by the police officer to the applicant was correct, this might affect the conviction of the accused. It also affected the integrity of the police and judicial authorities. For these reasons, the Court of Appeal held that the applicant was to reply to the question whether his source had been involved in the investigation of the flat and had been aware of that investigation. The President of the court further reminded the applicant that the court was empowered to order his detention for failure to comply with a judicial order (gijzeling). Upon this, the applicant replied that his source had both been aware of, and involved in, the investigation of the flat. 12. Asked by counsel for the accused to reveal the identity of his source, the applicant once again invoked his right of non-disclosure. Counsel for the applicant submitted that he was justified in so doing, given that disclosing the identity of his source would render it impossible for the applicant to work as a journalist in the future since sources would no longer approach him. The interests of the journalist and of freedom of expression outweighed other interests. Moreover, as the criminal charges at issue concerned only arms trafficking and not, for example, a multiple homicide, it was disproportionate to require the applicant to name his source. It also went against the principle of subsidiarity, since there were other ways in which the identity of the source could be discovered. 13. In reply, the Advocate General stated that journalists exposed obvious wrongs (kennelijke misstanden) in society. Where they chose to do so, they should also face the consequences. The applicant was the only witness who could clarify whether or not the three accused had been wrongly convicted. In the present case, where official records, drawn up on oath of office (ambtseed) by police officers, and the integrity of the judicial authorities were at stake, the applicant must reveal the identity of his source. It could not be the case that, in order to trace this identity, every member of the Amsterdam police force should be heard, bearing in mind that all officers in the case against K. had already been heard by the investigating judge (rechter-commissaris). 14. Having deliberated, the Court of Appeal decided that the applicant was to reveal the identity of his source, for the same reasons as it had held that he had to reply to the question of his source's involvement in the investigation. The applicant invoked his right to remain silent (zwijgrecht), upon which the court ordered his immediate detention for a maximum of 30 days. No legal remedy lay against the decision to detain the applicant (Article 294 § 3 of the Code of Criminal Procedure – Wetboek van Strafvordering, “CCP”). 15. When questioned by counsel for the accused, the applicant's colleague, Ms S., stated that she was aware of the identity of the source, but that she had never met him in person. Having regard to this last fact, as well as to the fact that the journalist who had had direct contact with the source – i.e. the applicant – had already been placed in detention, the Court of Appeal considered that Ms S. was not obliged to reveal the identity of the source. 16. The applicant was served with an unreasoned decision on 25 September 2000. On 27 September 2000 he was handed a copy of the record of the hearing of 22 September, containing the decisions made by the Court of Appeal at that hearing and the reasons for them. 17. Late on 22 September 2000 the applicant lodged a request with the Court of Appeal to be released from detention. Prior to the examination of this request on 27 September 2000, the applicant was able to consult his lawyer only once, namely in the evening of 25 September. Requests to visit the applicant on 22, 23, 24, (the afternoon of) 25, 26 and 27 September were refused. The request for release was dealt with by the Court of Appeal in chambers (raadkamer), by the same judges who had ordered his detention. 18. At the hearing in chambers on 27 September 2000, the Advocate General reported that, following the applicant's statements at the hearing on 22 September, a police inspector had carried out an internal investigation, which had revealed that only eight police officers had been involved in both the first and the second investigation into the accused K. All these officers had made sworn affidavits to the effect that they had never been in contact with the applicant. 19. Informed of the outcome of the internal police investigation, the applicant insisted that he did not want to reveal the identity of his source. He stated that he was a journalist and that he might as well give up on that career if he started revealing his sources; no sources wanting to remain anonymous would any longer be willing to provide him with tip-offs. The applicant was informed by the President of the Court of Appeal that the right of non-disclosure was not absolute, and that more weighty interests could be at stake. In the present case, long prison sentences had been imposed on the three accused, partly on the basis of official records drawn up by police officers. The applicant replied that he was willing to state only that his source was not one of the police officers who had made sworn affidavits in the internal police investigation. 20. Counsel for the applicant argued that the journalist should be the last, rather than the first, means of arriving at the truth. The witnesses, whose examination had been requested by the three accused, ought to be heard first. Those witnesses could be confronted with the articles published in Sp!ts as well as with the article which had appeared in the weekly news magazine Vrij Nederland on 8 January 2000. This latter article had also suggested that the flooding of the flat had been staged, and the author had informed counsel for the applicant that the information contained in the article had not come from the same source as the one relied on by the applicant. Counsel for the applicant further posited that the State Criminal Investigation Department (Rijksrecherche) could carry out an investigation of the police force. Finally, it was for the Court of Appeal to assess the value of the article written by the applicant – that court could also decide to disregard it. 21. By decision of 28 September 2000, the Court of Appeal refused the applicant's request for his detention to be lifted. It repeated that the interests of the accused and of the integrity of the police and the judicial authorities outweighed the interest of the applicant in not having to disclose the identity of his source. Having regard to the outcome of the internal police investigation, as well as to the fact that an appeal made by the police commissioner for the applicant's source to come forward had not produced any results, the Court of Appeal considered it unlikely that an investigation by the State Criminal Investigation Department would clarify, within a reasonable time, the cause of the flooding, quite apart from the fact that such an investigation would seriously delay the criminal proceedings against K., Van S. and H. The Court of Appeal similarly rejected the suggestion to hear the witnesses proposed by the defence first, given that those witnesses had already been heard extensively about the point in issue. For these reasons, it could not be held that the detention of the applicant breached the principles of proportionality and subsidiarity. 22. The Court of Appeal further considered that the applicant's objections against the order for his detention as given at the hearing of 22 September 2000 did not require examination since no appeal lay against such order. It also rejected the argument that the order had not been served on the applicant within 24 hours, since – as appeared from the record of that hearing of 22 September – he had been informed of the order orally. Finally, the Court of Appeal held that the possibilities for contact between the applicant and his counsel were laid down in penitentiary legislation. It was not for the Court of Appeal to assess the application of that legislation. 23. The applicant lodged an appeal on points of law to the Supreme Court (Hoge Raad) against the decision of the Court of Appeal. 24. A second hearing before the Court of Appeal in the criminal proceedings against Van S. and H. took place on 9 October 2000. The applicant once again refused to reveal the identity of his source. Upon this, the Court of Appeal decided to lift the order for the applicant's detention. It considered that no support for, or confirmation of, the applicant's statement that he had received information from a police officer who had been involved in both investigations against the accused K. could be found in statements made by other persons and/or in the contents of documents. On the contrary, the applicant's statement had been contradicted by ten police officers. Therefore, no credence could be attached to his statement. This being the case, the applicant's detention no longer served any purpose. 25. At the same hearing on 9 October 2000, and following the Court of Appeal's decision to lift the applicant's detention, counsel for the accused K. challenged (wraken) the Court of Appeal. A different chamber of the Court of Appeal upheld that challenge, also on 9 October 2000. It held that the opinion that the applicant's statement was not credible, as expressed by the Court of Appeal in the criminal proceedings against Van S. and H., might have a bearing on decisions which that court would be called upon to take in the criminal proceedings against K. This constituted an exceptional circumstance, providing an important indication for the conclusion that the accused's fear of a judge being prejudiced against him was objectively justified. 26. The criminal proceedings against the three accused continued on 30 October 2000 before the Court of Appeal in a new composition. The applicant was again heard as a witness, as were seven other journalists who had also published articles about the case against K. and the possibility of the flooding having been staged. The Court of Appeal also heard two plumbers and the caretaker of the building. 27. Subsequent to the decision to lift the order for his detention, the applicant withdrew his appeal on points of law as his release had rendered that appeal devoid of interest. 28. According to the Government, the criminal proceedings against K., Van S. and H. have been brought to a conclusion. 29. The applicant has submitted photocopies of two cuttings from print media. 30. The first is of a report in the mass circulation daily newspaper De Telegraaf, dated 24 September 1999. It is therein stated that following reports of flooding from a second flat in Amsterdam, police had found another large quantity of weaponry. Messrs K., Van S. and H., the accused in the applicant's case, were not at that time suspected of involvement; the weapons were thought to belong to a terrorist organisation. The report drew attention to the similarity between the Nachtwachtlaan case and this new case as regards the circumstances in which the weapons were found. It cited “police sources” as suggesting that intelligence services, possibly foreign, had engineered events in order to protect their informants. 31. The second, which is incomplete, is of an article that appeared on 8 January 2000 in the weekly magazine Vrij Nederland. It links the two events and cites an unnamed source as stating that they had in fact been engineered by the then Netherlands National Security Service (Binnenlandse Veiligheidsdienst – “the BVD”). 32. It appears that the report in De Telegraaf and the article in Vrij Nederland were both written by journalists other than the applicant. 33. The applicant has also submitted a printout of a page taken from the internet web site of the Amsterdam daily newspaper Het Parool, dated 27 September 2000. It quotes the two plumbers who were called in to repair the water leak as dismissing as nonsense all allegations that the damage had been caused deliberately; in actual fact, such leaks were very common in older buildings. 34. Provisions of the Code of Criminal Procedure relevant to the case provide as follows: Article 218 “Persons who, by virtue of their position, their profession or their office, are bound to secrecy may ... decline to give evidence or to answer particular questions, but only in relation to matters the knowledge of which is entrusted to them in that capacity.” Article 294 “1. If during the interrogation the witness refuses, for no lawful reason, to answer the questions put to him or to take the required oath or affirmation, the court shall, if the investigation urgently so requires, order his detention (gijzeling). 2. The witness and his counsel shall be heard about the reasons for his refusal before the order is given. 3. The detention order shall be valid for no more thirty days; the court shall at the same time order the time at which the witness is to be presented before it anew. No remedy shall lie against the order. 4. The court shall order the witness released from detention as soon as he has fulfilled his obligations or the investigation at the hearing is closed. It shall however have competence to order the witness released from detention whatever the state of the investigation, including at the request of the witness. Article 223 § 3 shall apply. 5. Articles 224 and 225 shall apply.” 35. Articles 223, 224 and 225, which are thus declared applicable to witnesses at the trial hearing, per se apply to witnesses heard by an investigating judge. 36. Article 223 § 3 provides, in relevant part, that the detained witness may appeal within three days after the official notification in writing of the decision against any refusal to order his release from detention and may appeal on points of law to the Supreme Court against any such refusal given on appeal. 37. Article 224 provides that the witness shall receive notification in writing within twenty-four hours of all decisions to order or extend his detention or to refuse his release from detention. 38. Article 225 provides that the witness shall have the right to consult counsel. His counsel shall have unrestricted access (vrije toegang) to him, be allowed to see him in private and exchange confidential correspondence with him, subject to detention rules and provided that the criminal investigation in which his evidence was sought not be delayed. Counsel shall also have access to any official records relating to the questioning of the witness and, if the criminal investigation admits of it, the remainder of the case file. 39. Although these provisions by their wording apply to proceedings at first instance before the Regional Court, by virtue of Article 415 they apply by analogy to appeal proceedings before the Court of Appeal. 40. The 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). ...” 41. This section of the Guidelines was replaced with effect from 1 April 2002 by the “Directive on the application of coercive measures to journalists” (Aanwijzing toepassing dwangmiddelen bij journalisten), issued by the Board of Procurators General (College van procureursgeneraal). This directive makes extensive reference to the Court's case-law. If the protection of a journalist's source is at issue, the use of coercive measures must be in accordance with Article 10 § 2 with due regard to requirements of proportionality and subsidiarity. 42. In a civil case – brought by persons named in connection with alleged bribery against two journalists who had allegedly made use of information leaked by officials – the Supreme Court, reversing earlier case-law, held (judgment of 10 May 1996, Nederlandse Jurisprudentie (Netherlands Law Reports) 1996, no. 578): “It follows from the said judgment [i.e. Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996prima facie case must be made out by the person who calls the journalist as a witness. ... It is apparent from the decision of the Court of Appeal and the other documents contained in the case file that the present case is characterised in that, as stated by [the plaintiffs], the 'leaked' information relates to a criminal investigation into alleged bribery of a number of local government officials in the province of Limburg, in that information relating to the supposed involvement of [the plaintiffs] in such cases of bribery has already been made public and that [the plaintiffs] have sued [the newspaper] De Limburger for damages which they claim resulted therefrom (...). Accordingly, [the plaintiffs] have claimed no other interest in the disclosure of [the defendants'] sources than that they wish to know who has 'leaked', because they wish eventually to sue the State and the persons concerned themselves for damages and also to obtain an injunction against the persons concerned to restrain them from any further 'leaking'. However, the said judgment of the European Court of Human Rights compels the Supreme Court to find that this interest in itself is insufficient to counterbalance the weighty public interest which belongs to the protection of [the defendants'] sources.” 43. 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. It states, in relevant part: “[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, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 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.” 44. For the precise application of the Recommendation, the explanatory notes clarify the meaning of certain terms. As regards the term “sources” the explanation reads as follows: “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.”

dev

001-103319

ENG

MDA

CHAMBER

CASE OF IGNATENCO v. MOLDOVA

Remainder inadmissible;No violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - award

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

5. The applicant was a security guard who was born in 1969 and lived in Bălţi. 6. The applicant, together with Messrs Nicolae Ninescu and Anatolie Tripăduş who have also lodged applications with the Court, was involved in a series of complex commercial arrangements concerning the building of eighteen blocks of flats in Chişinău by a construction company (“the company”). 7. On 29 March 2004 S.F. and L.B. created the above-mentioned company with a capital of 5,400 Moldovan lei (MDL). Each of the parties was the holder of 50% of the company's shares. On 17 December 2004 L.B. sold 10% of her shares to S.F. and on 11 February 2005 the remaining 40% of her shares were sold to F.M., a German national. The relevant documents were registered by the State Registration Chamber. 8. On 14 February 2006 Mr Nicolae Ninescu, on behalf of F.M., brought an action against S.F., seeking the exclusion of the latter from the company on the ground that S.F. had not paid his part of the shares since 29 March 2004. 9. On 15 March 2006 the Bălţi District Court upheld F.M.'s action and ordered the exclusion of S.F. from the company. F.M. thus became the sole shareholder. On 31 March 2006 the judgment became final and enforceable. The court issued an enforcement warrant and on the same date the State Registration Chamber registered the changes in the company's statutory documents. 10. On 2 April 2006 F.M. sold 10% of his shares to the applicant and 70% of his shares to V.S., who in turn sold them to three other persons, who were represented by the applicant in these transactions. 11. On 3 April 2006 the Bălţi Territorial Office of the State Registration Chamber added 3,024,000 euros (EUR) to the company's capital. This corresponded to the value of the project documentation for the construction site which had been estimated at EUR 3,024,358.80 in an audit report dated 9 December 2005. 12. Later in 2006, on an unspecified date, S.F. appealed against the judgment of 15 March 2006. He asked the Bălţi Court of Appeal to strike the case out of its list on the grounds that Mr Nicolae Ninescu did not have the powers to bring an action on behalf on F.M. The Court of Appeal examined the appeal despite the fact that the appealed decision was final, since it found that the merits of the case had been examined by the Bălţi District Court in F.S.' absence, who had not been legally summoned to that hearing. On 30 May 2006 the Bălţi Court of Appeal dismissed the appeal and rejected the request to strike the case out of its list of cases. S.F. lodged an appeal on points of law. 13. On 11 July 2006 the Supreme Court of Justice upheld the appeal on points of law. It quashed the judgment of the Bălţi District Court of 15 March 2006 and the Bălţi Court of Appeal's decision of 30 May 2006 and ordered that the case be remitted to the first-instance court. 14. On 2 August 2006 the Chişinău Court of Appeal joined F.M.'s action to a counter action filed by S.F. against F.M. and the State Registration Chamber, seeking the annulment of all documents which had led to his exclusion from the founding members of the company and for an acknowledgement of his sole ownership of the company's shares. 15. By a final judgment of 19 October 2006 the Supreme Court dismissed F.M.'s action and upheld in full the action lodged by S.F. 16. Meanwhile, on 16 May 2006, the Prosecutor General's Office ordered the opening of a criminal investigation into the alleged forgery of the power of attorney whereby the applicant had represented the above-mentioned three individuals (see paragraph 10 above). A criminal investigation was also opened in relation to the alleged smuggling of the project documentation for the construction site, since it had not been drafted in Moldova and had to be registered with the customs when introduced into Moldova. The investigation revealed that the project documentation had been brought into Moldova by the applicant on 27 February 2006. It further appeared that the applicant had declared the value of the project documentation as being MDL 19,665 whereas it had been estimated at EUR 3,024,358.80 (see paragraph 11 above). 17. On 26 May 2006 S.F. filed a criminal complaint with the Prosecutor General's Office about having been excluded from the founders of the company and about being illegally dispossessed of his shares. 18. On the same date, the Buiucani police office opened a criminal investigation against Mr Nicolae Ninescu into the alleged misappropriation of S.F.'s assets. 19. On 9 June 2006 an officer of the Centre for Fighting Economic Crimes and Corruption (“CFECC”) ordered the opening of a criminal investigation into the allegations made by S.F. The CFECC only relied on S.F.'s allegations that following the judgment of the Bălţi District Court of 15 March 2006 S.F. had been excluded from the founders of the company and that F.M. had subsequently sold the company's shares to third parties, including the applicant. 20. On 26 June 2006 both criminal investigations instituted against Mr Nicolae Ninescu were joined. 21. On 17 July 2006 the criminal investigation started by the Prosecutor General's office on 16 May 2006 into the acts of smuggling and forgery was joined to the criminal investigation started by the CFECC on 9 June 2006. 22. On 8 August 2006 all the above-mentioned criminal investigations were joined in a single criminal investigation. 23. On 18 December 2006 an expert report commissioned by the CFECC concluded that it could not firmly establish whether the power of attorney whereby the applicant had represented the above-mentioned three individuals (see paragraph 10 above) had properly been signed by the director of the company or whether the signature had been forged. 24. On 3 May 2007 an investigating judge of the Buiucani District Court granted the CFECC's application for a search warrant to search the applicant's domicile in Bălţi. The search was conducted on 4 May 2007. 25. On 19 June 2007, at 12.15 p.m., the applicant was arrested and placed in the remand centre of the CFECC. 26. On 22 June 2007, at 8.55 a.m., the prosecutor applied to the Buiucani District Court for an arrest warrant for the applicant. The application recorded that the applicant lived in Bălţi. It further noted that on 31 March 2006 F.M. had asked the State Registration Chamber urgently to enforce the judgment of 15 March 2006, i.e. as soon as it had become final and enforceable. This request had been made without notice to S.F. and, in the prosecutor's view, in order to erase all evidence of an offence. Relying on “investigative information” (măsuri operativ-investigative) that the applicant, together with F.M. and Mr Nicolae Ninescu, had executed the orders of Mr Anatolie Tripăduş against S.F., the prosecutor alleged that the applicant had committed the offence of misappropriation of another's property. The prosecutor's application did not refer to any other evidence in support of a reasonable suspicion that the applicant had committed the offence. Nor did it refer to any reasons for his detention or that he might abscond or put pressure on witnesses. 27. Later on the same day, at 2.40 p.m., the applicant's lawyer lodged an application for the applicant's release on the ground that the period of his detention had ended at 12.15 p.m. earlier that day. 28. At 4 p.m., however, an investigating judge of the Buiucani District Court ordered the applicant's remand for a period of 10 days. The judge gave the following reasons for the applicant's detention: “[the court] takes into consideration the character and the degree of the alleged offence ... its seriousness, the necessity to protect public order, the sense of shock which may be caused to society by the applicant's release, ... the existence of a danger of absconding from law enforcement authorities, the risk of influencing the outcome of the investigation and collusion between the accused and the creation of exculpatory evidence, which result from the nature of the offence ... and the personality of the accused and his conduct during the criminal proceedings. ... the court dismisses the argument that the applicant had to be released after 72 hours ... because the delay in the opening of the hearing was due to the examination of other remand warrants and the delay in examining the prosecutor's request was due to the courts' efforts to observe the procedural rights of the defence party. ... at this stage, the court considers that the relevance of the prosecution's reasoning has priority and will contribute to the normal conduct of the criminal proceedings. ... The court orders the prosecutor to ensure ... the applicant's proper medical care.” 29. The applicant appealed on 25 June 2007. The applicant did not, however, complain in his written submissions about the delay in releasing him on 22 June 2007. 30. On 26 June 2007 the police informed the CFECC that the applicant had not been living at his given address in Bălţi for four years. 31. On 28 June 2007, at 9.30 a.m., the applicant was officially indicted on charges of misappropriation of another's property and forgery. The indictment stated that S.F.'s 60% shares in the company were worth MDL 20,165,034 (EUR 1,327,083) on 1 January 2006. 32. On the same day, at 10 a.m., the Chişinău Court of Appeal examined the appeal against the decision of 22 June 2007 and dismissed the applicant's appeal. It did not consider the applicant's arguments about the lack of a reasonable suspicion against him or deal with other submissions in favour of release. However, the court endorsed the reasons given by the investigating judge of the Buiucani District Court for remanding the applicant in custody and stated that he could abscond through the uncontrolled territory of Transdniestria. 33. Still on 28 June 2007, at 10.40 a.m., the prosecutor applied to the Buiucani District Court for an extension of the applicant's detention for another 30 days. The grounds for the extension were similar to those relied upon in the initial application for a remand warrant. It further stated that the identity of all the persons who could have been aware of the offence were unknown. An investigating judge of the Buiucani District Court ordered the extension of the applicant's detention for another 20 days for the reasons given by the prosecution later on that day. Relying on Article 186 § 3 of the Code of Criminal Procedure (“the CCP”) the judge further stated that in exceptional circumstances, depending on the complexity of the case, the severity of the offence and the risk of the applicant's absconding, the detention could be prolonged. He further noted that the criminal investigation was still ongoing and that several other measures had to be taken in order to complete it. The judge however did not consider any of the arguments put forward by one of the applicant's lawyers that the applicant's wife was eight months' pregnant, that he would not abscond and that he did not intend to influence witnesses. The applicant appealed. 34. On 10 July 2007 the Chişinău Court of Appeal rejected the appeal lodged against the decision of 28 June 2007 and found that the investigating judge of the Buiucani District Court had observed the correct procedure. It did not adduce any new reasons for the applicant's detention. 35. On 12 July 2007 the applicant's lawyer made a fresh habeas corpus application, submitting that there was no reason for the applicant's further detention on remand. He stated that there was no risk of collusion between the accused or of influencing witnesses, since the criminal proceedings had been instituted on 9 June 2006 and during that period the prosecution had done enough to obtain evidence. 36. On 16 July 2007 the prosecutor filed a new application with the Buiucani District Court for the prolongation of the applicant's detention for an additional 30 days. The prosecutor also relied on the risk that the applicant would forge identity papers and documents in order to hinder the investigation and that the identity of all the persons who could have been aware of the offence was unknown. 37. On 18 July 2007 an investigating judge of the Buiucani District Court upheld the prosecutor's request and relying on Article 186 § 3 of the CCP prolonged the applicant's detention for 20 days. The investigating judge endorsed the reasons given by the prosecutor in favour of the applicant's further detention. As to the habeas corpus application, the investigating judge found that the reasons put forward by the prosecution for extending the applicant's detention outweighed the reasons put forward by the defence. Again, the applicant's lawyer's argument that his wife was pregnant and that therefore he was unlikely to abscond was ignored. Similarly, the investigating judge did not heed the argument that the applicant was willing to give up his passport as an assurance that he would not leave the country. The applicant appealed. 38. On 25 July 2007 the Chişinău Court of Appeal dismissed the appeal without adducing any new reasons. It noted however that the identity of the persons who could have been aware of the offence were unknown. 39. On 7 August 2007 an investigating judge of the Buiucani District Court upheld a new request of the prosecution for a prolongation of the applicant's detention and ordered a further 20 days' detention. In particular, the investigating judge dismissed the argument that the applicant's wife was pregnant on the ground that she was on maternity leave and that there was no evidence that she required any assistance or medical treatment. The applicant appealed, invoking again his wife's poor health. On 9 August 2007 the Chişinău Court of Appeal dismissed the appeal. Neither the prosecution nor the courts adduced new reasons for the applicant's further detention. 40. On 17 August 2007 the investigation ended and the criminal file was referred to the Buiucani District Court. 41. On 22 August 2007 the prosecutor applied for a further extension of the applicant's detention for 90 days on the ground that the applicant would hinder the proceedings before the court and would commit other offences. 42. On 28 August 2007, at 4 p.m., the Buiucani District Court upheld the prosecutor's request in full without relying on any new reasons for the applicant's further detention. It did not examine the applicant's contention that the prosecutor had failed to submit any evidence to substantiate his request. 43. The applicant appealed and argued that the decision had been issued at 4 p.m., after the expiry of the previous remand warrant at 12.15 p.m. Relying on Boicenco v. Moldova (no. 41088/05), Şarban v. Moldova (no. 3456/05) and Becciev v. Moldova (no. 9190/03) he argued that the domestic courts had failed to provide relevant and sufficient reasons for his detention. 44. On 30 August 2007 the applicant's lawyer was given the annex with the prosecution's list of evidence. It included, inter alia, addresses of witnesses, copies of documents related to the company and the construction site, verbatim records of the examination of compact discs with recordings of telephone conversations of A.T. with other co-accused and minutes of searches. 45. On 10 September 2007 the Chişinău Court of Appeal dismissed the appeal. Besides the reasons outlined in the prosecutor's request, the court stated that although a search had been conducted of the applicant's domicile, there was no proof that he had been permanently residing there. The applicant's application for release was considered as an attempt to influence the investigation. As to the applicant's detention after 12.15 p.m. on 28 August 2007, the court found that he had been lawfully detained, since the hearing had been opened at 10 a.m. that day. Finally, the court stated: “Moreover, [the applicant's] intention to undermine the normal conduct of the proceedings ... is highlighted by the fact that constant reference is made to cases examined by the European Court of Human Rights, and which are not related to the present case. Those cases are totally different from the present case and therefore the declarations are designed to indirectly influence the courts to release the applicant.” 46. On 17 September 2007 the applicant's lawyer made a fresh habeas corpus request, submitting that there was no reason for his further detention on remand. On the same date the Buiucani District Court dismissed it without providing any relevant reasons. 47. On the same day, the Buiucani District Court ordered an official medical examination of the state of health of Mr Anatolie Tripăduş, who was one of the applicant's co-accused in the criminal proceedings. The court also suspended the criminal proceedings pending the medical examination and the delivery of a report. 48. On 23 November 2007, without resuming the suspended proceedings, the Buiucani District Court upheld a fresh request of the prosecution for a prolongation of the applicant's detention and ordered a further 30 days' detention. It also dismissed a new habeas corpus request made by the applicant. On 4 December 2007 the Chişinău Court of Appeal dismissed the appeal. Neither the prosecutor nor the courts adduced new reasons for the applicant's further detention. 49. On 14 December 2007 the Buiucani District Court resumed the criminal proceedings which had been suspended on 17 September 2007 and the prosecutor requested a further prolongation of detention for 90 days. 50. On 20 December 2007, the Buiucani District Court ordered the extension of the applicant's detention for 60 days. The applicant appealed. 51. On 29 December 2007, the Chişinău Court of Appeal quashed the extension order. In particular, the Court of Appeal stated that the applicant had his permanent residence in Chişinău, that there was no risk that he would abscond or that he would undermine the conduct of the criminal proceedings by influencing witnesses. However, the Court of Appeal prohibited the applicant from leaving the city for 60 days. 52. On 6 March 2008 the Buiucani District Court granted the prosecutor's request that one of applicant's co-accused be examined by a doctor. Accordingly, the criminal proceedings were suspended. 53. The relevant domestic law has been set out in Şarban v. Moldova (no. 3456/05, §§ 51-56, 4 October 2005) and Muşuc v. Moldova (no. 42440/06, § 22, 6 November 2007). 54. In addition, the relevant provisions of the Code of Criminal Procedure ('the CPP') read as follows: “(1) A person may be arrested and taken into police custody for a short period of time not exceeding 72 hours and under the conditions established by law. (2) The following persons may be arrested and taken into police custody: a) persons suspected of having committed a criminal offence punishable by a sentence of imprisonment of over 1 year...” “(1) The criminal investigation body shall be entitled to arrest and take into custody a person suspected of having committed a crime for which the law prescribes a punishment of deprivation of liberty of over a year, only in the following cases: 1) when he or she has been caught in the act; 2) if the eye witness, including the injured party, indicates that the person has committed the crime; 3) if obvious traces of the crime are discovered on his body or clothes, or in his home or vehicle; (2) If a person is suspected of having committed a crime in other circumstances, the person can be arrested and taken into custody only if he or she tried to abscond; or if he or she does not have a permanent residence; or if his or her identity could not be established. ... (5) The arrest and detention in police custody of a person in accordance with the present article shall not exceed 72 hours from the moment of his deprivation of liberty. ... (7) A person who has been detained under this article shall be brought promptly, and before the expiry of the 72-hour period, before the investigating judge, who will decide whether he or she should be remanded in custody or, if appropriate, whether he or she should be released. The application for pre-trial detention of such a person must be lodged by the prosecution at least three hours before the expiry of the 72-hour detention period.” “(1) A person who has been arrested and detained in police custody shall be released in the following circumstances: 1) the suspicion that the person has committed a crime is not confirmed; 2) there are no grounds for his or her continued deprivation of liberty; 3) the criminal investigation body establishes that the person was arrested and detained in police custody in flagrant breach of the law; 4) the 72-hour detention period has expired; 5) the 72-hour detention period has expired and the court has not authorised the person's arrest...” “... (3) Any criminal investigation action shall not be allowed after the suspension of the criminal investigation.” “... (2) The application for pre-trial detention or house arrest shall be examined without delay by the investigating judge in a closed hearing with the participation of the representative of the criminal prosecution, counsel for the defence and the suspect. In presenting his application in court, the representative of the criminal prosecution shall ensure the participation of the suspect at the court hearing; he shall notify counsel for the defence and the suspect's legal representative of the hearing. If defence counsel so notified does not appear at the hearing, the investigating judge shall ensure that an ex officio counsel is appointed to defend the interests of the suspect...” “(1) The court shall suspend the proceedings if an accused suffers a serious illness which prevents his participation at the hearing. The court shall issue a decision to suspend or to resume the proceedings. (2) If there are several co-accused and one of them is seriously ill, the court shall suspend the proceedings only in respect of the latter, but will continue the proceedings in respect of the others. The lawyer of the accused, in respect of whom the proceedings have been suspended, shall attend with his clients the proceedings in respect of the other co-accused, if the offence had been committed by participation.”

dev

001-78884

ENG

LTU

CHAMBER

CASE OF PUZINAS v. LITHUANIA (No. 2)

No violation of Art. 8;Not necessary to examine Art. 10 and 11

6. The applicant was born in 1952 and lives in Panevėžys. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 12 December 1991 the Supreme Court sentenced the applicant to 13 years’ imprisonment for aggravated murder. He served the sentence in the Rasų Prison in Vilnius. The applicant was released on licence on an unspecified date in 2002. 9. The applicant is the President of the organisation for prisoners’ mutual assistance and support “Freedom” (“Laisvė”). On 9 July 1999 the applicant signed a letter, on behalf of this organisation and certain other prisoners, complaining about the conditions of detention at Rasų Prison and about various allegedly unlawful acts of the prison administration. The complaint was addressed to 10 persons, five of whom were State officials and the five others representatives of the private media. According to the applicant, the complaint was not sent through the prison administration, but rather through an inmate who had been released from the prison, in order to avoid censorship. 10. On 20 July 1999 the Prison Department Director punished the applicant by prohibiting him from receiving a parcel during a personal visit, having found that the sending of the complaint of 9 July 1999 through channels other than the prison administration had breached Article 50 § 6 of the Prison Code. It was also established that the Prison Interim Rules (fifth addendum) prohibited a prisoner from using a personal computer, as had been the case with this letter. The Director held that the applicant could only send the complaint to the State authorities, not to other organisations or persons (Article 50 § 1). The Director further stated that Article 50 § 6 of the Prison Code prohibited complaints “on behalf of other prisoners”. 11. Upon the applicant’s appeal, on 8 December 1999 the Ombudsman established that the provisions of the Prison Code had not properly protected prisoners’ rights of association. The Ombudsman did not express her opinion as to the lawfulness of the penalty. 12. The applicant applied to the administrative courts, claiming that the penalty had been unlawful. On 6 March 2000 the Vilnius Regional Administrative Court disallowed the claim for want of jurisdiction. 13. On 30 March 2000 the Supreme Administrative Court upheld the decision on appeal. Upon the applicant’s further appeal, on 10 May 2000 the Court of Appeal quashed the lower court decisions. It held inter alia that the prison administration was part of the Executive, and that the administrative courts were consequently competent to examine the applicant’s action concerning its allegedly unlawful acts. 14. As the applicant subsequently submitted the claim in accordance with the requirements of the Code of Administrative Procedure, his action was examined by the Vilnius Regional Administrative Court on 29 May 2001, in the presence of the applicant, transported to the hearing directly from the prison. 15. The court rejected the action as unsubstantiated, finding that the penalty of 20 July 1999 had been lawful. It held inter alia: “Pursuant to Article 50 § 1 of the Prison Code, convicted persons are guaranteed the right to submit applications, proposals and complaints to the State authorities, public organisations and officials. When needed, the prison administration can attach their observations [thereto]. However, convicted persons are prevented from applying to these institutions through channels other than the prison administration (Article 50 § 6 of the Prison Code). The applicant admitted that the application [of 9 July 1999] was sent to 10 addressees illegally, through a person who had completed his sentence and had been released from the prison. The prison administration was therefore deprived of the right to submit their comments as to the issues set out in the application.” 16. On 11 July 2001 the Supreme Administrative Court rejected the applicant’s appeal against the judgment, holding inter alia: “The applicant’s claims that the [relevant] provisions of the Prison Code contradict the Constitution are unsubstantiated. The applicant must acknowledge that he has been convicted and sentenced to imprisonment, and that his legal situation is different from that of persons who have not breached the law... . As appears from the case file, the applicant was punished [on 20 July 1999] not for corresponding with representatives of the media, but for a breach of the requirement under Article 50 of the Prison Code to conduct [such correspondence] through the prison administration. The same can be said regarding the applicant’s claims that, by way of the impugned penalty, he was punished for making criticisms, holding opinions or imparting information.” 17. Article 49 § 1 of the Prison Code, as then in force, stipulated that convicted prisoners were not restricted in the amount of their outgoing letters. The third paragraph of Article 49 required the prison administration to send a prisoner’s letter to the addressee within three days of receipt or its presentation by the prisoner. 18. Article 50 § 1 of the Prison Code applicable at the material time provided that convicted prisoners could send “proposals, applications and complaints to the State authorities, public organisations and officials.” The provision also entitled the prison administration to attach its own explanations in relation to such matters. 19. Until 25 June 1999, Article 50 § 2 of the Prison Code provided that convicted prisoners’ correspondence with the prosecutor could not be subject to censorship (cenzūra). Following a legislative amendment effective since 25 June 1999, convicted prisoners’ correspondence with the State authorities and the European Court of Human Rights could not be censored. 20. According to the then Article 50 §§ 5 and 6 of the Prison Code, convicted prisoners were not allowed to send “collective complaints and applications” or complain “on behalf of other convicts”. 21. Under Article 50 § 6 as then in force, convicted prisoners were not allowed to send proposals, applications and complaints addressed to the State authorities through channels other than the prison administration. 22. Rule 7.3.2 of the Prison Interim Rules, applicable at the material time, read as follows: “Proposals, applications and complaints [by a convicted person] raising questions within the competence of the prison administration shall not be sent to the addressee, but shall be examined on the spot. Having examined [such a] proposal, application, or complaint, a prison official shall write a report and ... include it in the convicted person’s prison file. Should there be disagreement, the proposal, application or complaint shall be sent to the addressee together with the report. If there is a repeated proposal, application or complaint with the same content, the prison administration will note its previous reply in the report ... If the authority, organisation or official addressed by the convicted person is not competent to decide the questions raised, the prison administration shall advise [the prisoner] to re-address the proposal, application or complaint. Should [the prisoner] refuse to do so, the proposal, application or complaint shall be sent to the addressee.” 23. The Prison Interim Rules (fifth addendum) applicable at the material time prohibited a detainee from using a computer. 24. The new Prison Code applicable since 18 July 2001 does not allow any screening of convicted prisoners’ correspondence with the State authorities and the European Court of Human rights. Under Article 41 of this Code, all other correspondence may be censored (cenzūruojama) on the basis of a decision by a competent authority (a prosecutor, prison director or court) taken on a case-by-case basis. 25. In its ruling of 24 March 2003, the Constitutional Court held that the domestic statutes were in breach of the Constitution insofar as they allowed unjustified censorship of prisoners’ correspondence. The Constitutional Court also held that specific grounds should have been indicated for any particular instance of censorship. 26. Certain other domestic provisions concerning the censorship of convicted prisoners’ correspondence have been summarised in the judgments of Valašinas v. Lithuania (no. 44558/98, 24.7.2001 §§ 94-97, ECHR 2001-VIII) and Puzinas (no. 1) v. Lithuania (no. 44800/98, 14.3.2002, §§ 15-17).

dev

001-22316

ENG

GBR

ADMISSIBILITY

DANCY v. THE UNITED KINGDOM

Inadmissible

Georg Ress;Nicolas Bratza

The applicant, Terence Dancy, is a United Kingdom national, born in 1957 and currently serving a sentence of life imprisonment in HM Prison Full Sutton. He is represented before the Court by Mr E. Abrahamson, a solicitor practising in Liverpool. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant had a history of psychiatric illness. On 28 May 1992, he went to the police station where he confessed that he had attacked a man, Mr M., in the building where he lived as he thought the man had accused him of stealing his television. Mr M. was found dead with multiple depressed skull fractures consistent with use of a hammer. On 23 September 1993, the applicant pleaded guilty to manslaughter on grounds of diminished responsibility and was sentenced by the judge to a term of life imprisonment. The judge declined to set a relevant period for deterrence and retribution (the “tariff”). His sentencing remarks were “... you have pleaded guilty to the crime of manslaughter on the basis of diminished responsibility. It was a horrendous crime committed with great violence. I bear in mind everything which I have read about you in the reports. I accept that your distress when you realised what you had done was genuine and that your remorse for it is genuine. Nevertheless, it is a very serious crime indeed and your mental state is such that though you are not a mentally sick person you present a continuing danger to the public because of your liability to fits of explosive temper unless you take regularly your proper medication. I am satisfied therefore that a sentence longer that would be necessarily appropriate to punish you having regard to the seriousness of the offence, is necessary to protect the public from serious harm. The sentence of the court upon you therefore is one of life imprisonment. [Addressing leading counsel for the applicant] I have considered the question of making it a discretionary life sentence under Section 34. I do not consider that appropriate for the reasons which I have explained.” By letter of 28 May 1998, the applicant was informed by the Home Office that as a tariff had not been set under section 34 of the Criminal Justice Act 1991 by the trial judge he was to be treated as a mandatory life prisoner and the Secretary of State would proceed to fix his tariff. He was informed of the trial judge’s view, given in a recent report, that five years was an appropriate period and was given an opportunity to make written representations to the Secretary of State. In or about November 1998, the Secretary of State set the applicant’s tariff at five years. He had been advised that the applicant should originally have been treated as a discretionary life prisoner by the trial judge who should himself have fixed as tariff at trial. For that reason, he regarded himself as bound to follow the trial judge’s view. On 22 December 1998, the applicant was informed of this decision and told that as his tariff had already expired (in May 1997) it was no longer a factor in his continued detention. On 12 July 1999, the applicant lodged an appeal against sentence, alleging that the trial judge should have specified the five year tariff at the time the sentence was passed and that had the period been so specified he would have been treated as a discretionary life prisoner and not a mandatory life prisoner. Permission to appeal was granted on 5 October 1999. In its judgment of 8 November 1999, the Court of Appeal upheld the appeal. Lord Justice Rose said: “It seems to this Court, from the sentencing observations of the learned judge, that, although he referred to the gravity of the offence and the danger then presented by the appellant, he was not seeking to say that, in this case, life should mean life. Indeed, his recent recommendation to the Home Secretary that a period of five years would be appropriate for retribution and deterrence is quite inconsistent with such having been his intention at that time. It is not clear whether the judge’s attention was drawn to the Practice Direction and, in any event, he certainly did not have the advantage of the observations of this Court in Hollies, which was decided in August 1994, after the learned judge passed sentence. Had he had that advantage, it seems to us very unlikely that he would have expressed himself quite as he did in his sentencing remarks. The consequence, in our judgment, is that a period of five years ought to have been expressed by the learned judge at the time sentence was passed, in accordance with the Practice Direction and in accordance with what now appears in the judgment of this Court, in Hollies. Accordingly, this appeal will be allowed, to the extent that a five year tariff period will be specified... The consequence of this is, for the avoidance of doubt, that he will become a discretionary life prisoner and can and should be treated by the Parole Board accordingly.” The applicant was immediately re-categorised as a discretionary life prisoner by the Prison Service and Parole Board. On 1 December 1999, the applicant’s case was reviewed by the Parole Board, at an oral hearing. He appeared in person and was represented by his solicitor. He was entitled to adduce evidence and to cross-examine witnesses. It did not direct release, finding that the applicant remained a risk. It did recommend to the Secretary of State that his case be reviewed in twelve months as he had nearly completed the recommended offence related programmes and as he had been disadvantaged in not obtaining a review two years before the expiry of the tariff as his tariff had only been fixed recently. The applicant’s case was reviewed by the Parole Board at an oral hearing held on 29 November 2000. By decision dated 30 December 2000, the Parole Board declined to direct the applicant’s release as it concluded that the applicant remained a danger to the public. It recommended that the next review take place in 24 months as considerable further offence-related, treatment/work programmes still needed to be undertaken e.g. further work on anger management and relationship issues as well as attendance on an Extended Sex Offender Treatment Programme. It noted that the applicant had acknowledged during the proceedings that neither release nor transfer to open conditions was appropriate at this stage. It did recommend that he be transferred to a Category C prison (lower security) to facilitate further treatment work and this was implemented. The applicant’s next review was scheduled for November 2002. On 1 March 2002, the applicant signed the annual review board summary setting out proposals for further treatment, indicating that he fully agreed with the recommendations. The applicant has now been transferred to a Category C prison. English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of 18 known as detention during Her Majesty’s pleasure (section 53(1) of the Children and Young Persons Act 1933); in respect of offenders between the age of 18 and 20 years, custody for life (section 8(1) of the Criminal Justice Act 1982), and in respect of offenders aged 21 and over, life imprisonment (section 1(1) of the Murder (Abolition of Death Penalty) Act 1967). Mandatory life sentences are fixed by law, in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences (e.g. manslaughter, rape or robbery). The principles underlying the imposition of a discretionary life sentence are: Discretionary life sentences are indeterminate in order that “the prisoner’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large” (R v. Wilkinson [1983] 5 Cr. App. Rep. 105, p. 108). Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a ‘tariff’ set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change, most notably following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (“the 1991 Act”), which was in force at the relevant time. The provisions of the 1991 Act were replaced by the Crime (Sentences) Act 1997 (the 1997 Act) from 1 October 1997. Pursuant to section 34 of the 1991 Act, the trial judge in sentencing a person to a term of discretionary life imprisonment in open court after a trial was given the power to fix the tariff. The role of the trial judge in this respect was clarified by the Court of Appeal in a Practice Direction (Crime – Life sentences) [1993 1 WLR 223]. Paragraph 3 stated: “The judge is not obliged by statute to make use of the provisions of section 34 when passing a discretionary life sentence. However the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence.” In August 1994, the case of R v. Hollies (16 Cr App R(S) LJ Stuart Smith said concerning the Practice Direction and the 1991 Act: “The scheme of the Act is that the judiciary should specify the period which the prisoner should serve, and that period should be appropriate to the punishment or retribution required and the need to deter the prisoner and others from committing similar grave offences. This period is usually referred to as the tariff period. Once that period has expired the prisoner can expect to be released on licence if the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (see section 34(4)b). There is thus a clear division of function. The judges are to decide the period which the prisoner is to serve by way of punishment and deterrence. The Board must decide whether he still presents a danger to the public and, if he does not, he must be released. That means, save in cases of most exceptional gravity, where the judge thinks that a prisoner should remain a prisoner for the rest of his normal life, he should specify a period under the Act.” In cases of mandatory life sentences, it is for the Secretary of State to fix the tariff after consulting the trial judge and the Lord Chief Justice. He is entitled to depart from the judicial view. Pursuant to section 32 (2) of the 1991 Act, the Parole Board had a duty to advise the Secretary of State with respect to any matter referred to it by him which was connected with the early release or recall of prisoners. The Parole Board’s Chairman appointed three members of the Parole Board to consider discretionary life cases. They comprised the Discretionary Lifer Panel (“DLP”). Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a discretionary life prisoner was entitled to, amongst other things, an oral hearing, disclosure of evidence before the Parole Board and legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who had written reports about him. A reasoned decision by the DLP was delivered within seven days of the hearing. Prior to 1 October 1997, the duty to release discretionary life prisoners was dealt with by section 34, which provided that where a discretionary life prisoner had served his tariff and the Board had directed his release, it was the duty of the Secretary of State to release him on licence. Section 34(4) provided: “The Board shall not give a direction ... unless – (a) the Secretary of State has referred the prisoner’s case to the Board; (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.” A discretionary life prisoner may require the Secretary of State to refer his case to the Parole Board, after the end of the period of two years beginning with the disposal of a previous reference to the Board (section 34 (5) (b) of the 1991 Act, now section 28 (7) (b) of the 1997 Act). The regime applicable to mandatory life prisoners was, however, preserved within section 35 of the 1991 Act. Section 35 of the 1991 Act provided insofar as relevant: “(2) If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.” The provisions concerning oral hearings and the requirement for regular reviews were not extended to mandatory life prisoners and the Parole Board was not given any power to direct their release.

dev

001-97854

ENG

DEU

COMMITTEE

CASE OF WETJEN v. GERMANY

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

Karel Jungwiert;Mark Villiger;Renate Jaeger

4. The applicant was born in 1951 and lives in Hildesheim. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In January 2000 the Magdeburg Public Prosecutor received two anonymous reports. The applicant, who acted as a court-appointed liquidator, a judge and two other liquidators were accused of collaborating to the detriment of other liquidators and creditors. 7. On 31 January 2000 the Magdeburg Public Prosecutor opened preliminary investigations against the applicant and six other persons. The applicant was suspected of having granted an undue benefit (Vorteilsgewährung) and of embezzlement (Unterschlagung). The investigations concerned, inter alia, the judge's alleged free stay at the applicant's ski lodge and benefits in connection with the purchase of two cars and two computers. By a letter dated 7 February 2000 the applicant was informed of the investigations. 8. In the following months, the Magdeburg Public Prosecutor (and also the Sachsen-Anhalt State Office of Criminal Investigations) questioned numerous witnesses and public officials of the court – partly, moreover, with the help of Vienna Interpol –, and searched, inter alia, the applicant's business premises, seized documents and computers and requested information from the Credit Control Company. The applicant and his co-defendants, on their part, including after the submission of an interim report by the Sachsen-Anhalt State Office of Criminal Investigations in August 2000, made rather extensive submissions and repeatedly requested access to the files. The Magdeburg District Court also decided on an appeal against the search of premises; proceedings against one of the co-defendants were stayed. 9. On 23 October 2000 the applicant requested the public prosecutor not to close the investigations and announced further submissions, which he submitted on 5 December 2000. In the meantime, further information on insolvency proceedings in respect of the applicant over the previous years had been obtained. 10. On 16 January 2001 the Magdeburg Public Prosecutor brought charges against the applicant, the judge and two more lawyers. The applicant was accused of having granted undue benefits to a public official, namely, the accused judge. 11. On 23 January 2001 two judges of the Magdeburg Regional Court indicated possible grounds for bias. 12. In February 2001, and also three times in March 2001, the applicant requested an extension of the time-limit set. Two of his co-defendants changed their legal representatives; further access to the files was also granted. 13. In April 2001 the Magdeburg Public Prosecutor challenged one of the judges on the grounds of bias. In May 2001 the Magdeburg Regional Court rejected this request. In June 2001 the Naumburg Court of Appeal quashed that decision and found that the judge was biased. In July 2001 two more judges indicated that there were grounds for bias on their part. In August 2001 the Magdeburg Regional Court decided that one of the judges was to be excluded on the grounds of bias. 14. In August 2001 it decided to obtain an expert opinion and heard other witnesses. On 3 September 2001 it commissioned the expert. In October 2001 it further amended its decision. On 13 November 2001 the expert submitted his report. 15. Between November 2001 and March 2002 a number of memorandums, a report on the state of the investigations and further submissions by the accused were obtained. 16. On 12 March 2002 the Magdeburg Regional Court decided to open the trial against the applicant as regards one offence; it refused to open a trial against the applicant as regards the five other offences. 17. On 13 March 2002 the Magdeburg Public Prosecutor lodged an appeal against that decision in the part refusing to open proceedings. In May 2002, when the reasoning was complete and the accused had made further submissions, the files were transferred to the Naumburg Court of Appeal. 18. On 21 June 2002 that court considered that a trial should also be opened as regards three of the other offences. It also decided that the main hearing was to be held before the Stendal Regional Court. 19. In July 2002 and September 2002 the applicant appointed two new legal counsel – both were also granted access to the files. Hereinafter, the parties agreed that hearings should take place as of mid January 2003. 20. In February 2003 the Magdeburg Public Prosecutor laid new charges with the Stendal Regional Court against the applicant and the judge. 21. Between 5 March 2003 and 14 May 2003 eleven hearings took place. More than 20 witnesses and also experts were heard. On 3 April 2003 the Stendal Regional Court acquitted one of the lawyers. 22. On 14 May 2003 it convicted the judge of tax evasion and acquitted the applicant and the co-defendants of all other charges. The written judgment, comprising 59 pages, was sent to the parties in July 2003. 23. On 18 August 2003 the Magdeburg Public Prosecutor appealed. In October, following submissions by the accused, the files were transferred to the Federal Court of Justice. 24. On 25 February 2004 the Federal Court of Justice quashed the judgment in the part acquitting the applicant and the others of the offences of granting an undue benefit and of taking a bribe (Bestechlichkeit) and remitted the case to the Dessau Regional Court. 25. In April 2004 the Dessau Regional Court received the files. In July 2004 the court and the parties agreed upon the dates of the hearings. In September 2004 the witnesses to be heard and the experts to be involved were designated. 26. Between October 2004 and January 2005 altogether eleven hearings took place – five of them in January – and more than 20 witnesses were heard. Initially, the applicant had requested the court not to hold more than one hearing per week. 27. On 19 January 2005 the Dessau Regional Court convicted the applicant of two counts of granting undue benefit and the judge of two counts of taking a bribe. Shortly afterwards, the applicant's legal counsel ceased taking instructions from the applicant; his newly appointed lawyer then requested access to the files. On 2 March 2005 the Dessau Regional Court submitted the written judgment. 28. On 6 April 2005 the applicant, as one of his co-defendants had already done, lodged an appeal on points of law (comprising more than a hundred pages); he also appointed another legal counsel; proceedings against one of his co-defendants were stayed. 29. In May 2005 the Magdeburg Public Prosecutor decided not to file further submissions and transferred the files to the Naumburg Regional Court. In June the applicant filed further observations; in July 2005 he again requested access to the files. On 8 September 2005, following a remittal of the files on account of a reputedly missing approval, the General Public Prosecutor made his submissions. 30. On 12 January 2006 the Federal Court of Justice quashed the judgment and remitted the case to the Halle Regional Court. It found that it could not be established that the applicant and his co-defendant had intentionally collaborated. On 8 March 2006 the court delivered the written judgment. 31. In March 2006 the Halle Regional Court contacted the parties' legal representatives in order to arrange the hearings. In June 2006 the case was assigned to the Halle Public Prosecutor; in July 2006 the Halle Public Prosecutor informed the court thereof. In September 2006, at the applicant's renewed request, the Halle Regional Court decided that three judges and two lay judges should decide upon the case. 32. From 22 September 2006 to 19 October 2006 seven hearings took place. On 19 October 2006 one of the lay judges died. On 25 October 2006 the Halle Regional Court therefore cancelled all further hearings. 33. On 13 November 2006, after having been granted access to the files, the applicant requested that the proceedings be stayed on account of their excessive length pursuant to section 206 (a) of the Code of Criminal Procedure, which presupposes a procedural impediment. On 13 December 2006, following submissions by all the parties, the Halle Regional Court rejected this request as unfounded. 34. By a letter dated 16 January 2007 the applicant lodged a constitutional complaint against the refusal. The same day, the Halle Regional Court decided that another chamber should decide on the case. 35. On 6 February 2007 the Federal Constitutional Court refused to admit the case for adjudication as being inadmissible on the ground that the decision under section 206 (a) of the Code of Criminal Procedure was an interlocutory decision which could not be challenged. 36. On 4 April 2007, following further submissions, the Halle Regional Court rejected the applicant's objection (Gegenvorstellung) against the refusal to stay the proceedings. 37. In June 2007 – the applicant had twice requested the court to schedule a hearing – it turned out that hearings could only be scheduled as of 12 September 2007. Thereafter, the applicant and his co-defendant were granted access to the files. The applicant's request to appoint a supplementary judge was rejected on 18 October 2007. A further appeal was to no avail. 38. Between 25 October 2007 and 17 March 2008 15 hearings took place. More than 20 witnesses were heard and expert reports were obtained. 39. On 17 March 2008 the Halle Regional Court acquitted the applicant and the co-defendants of both charges. It also found that he was entitled to compensation on the merits on account of the searches and the seizures and also ordered that the Treasury bear the costs of the proceedings and the applicant's necessary expenses. 40. On 9 June 2008 the judgment became final, the Halle Public Prosecutor having withdrawn an appeal on points of law. 41. On 5 November 2008 the applicant requested the Halle Regional Court to cover the costs of his legal representation in the amount of EUR 61,388.27.

dev

001-59075

ENG

AUT

CHAMBER

CASE OF ENTLEITNER v. AUSTRIA

No violation of Art. 6-1 as regards independency and impartiality;Violation of Art. 6-1 as regards lack of a public hearing

Nicolas Bratza

7. The applicant is a farmer living in Piesendorf, Salzburg. 8. On 12 June 1991 the applicant applied to the Salzburg District Agricultural Authority (Agrarbezirksbehörde, the "District Authority") for declarations (1) that the share in an agricultural association (Agrargemeinschaft) represented by a certain parcel of land ("the share") belonged to him, and (2) that grazing rights in that parcel ("the grazing rights") also belonged to him. On 24 June 1991 the District Authority found that the applicant had not made out his claims, and it declared that the share and the grazing rights belonged to a third person. The applicant appealed to the Regional Land Reform Board (Landesagrarsenat, the "Regional Board"). 9. The Regional Board dismissed the applicant's appeal on 8 May 1992. After an oral hearing, it found, so far as relevant, that the share had passed with a transfer of the land to a third party in 1949 (as rectified in 1952). The question of the grazing rights had to be determined by reference to the ownership of the land on 29 April 1868, as that was the last time they were officially mentioned. In the absence of any express alienation of the grazing rights since then, the grazing rights passed with the land - that is, the applicant did not own them. 10. The Constitutional Court (Verfassungsgerichtshof) declined to deal with the applicant's constitutional complaint on 14 October 1992. It remitted the case to the Administrative Court (Verwaltungsgerichtshof). 11. On 14 March 1995 the Administrative Court dismissed the applicant’s complaint rejecting at the same time, in accordance with section 39(2) no. 6 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the applicant’s request for an oral hearing. The judgment was served on the applicant’s representative on 31 March 1995. 12. A summary of the rules concerning the composition and procedure before the regional land reform boards, and hearings before the Administrative Court may be found in the Stallinger and Kuso v. Austria judgment (23 April 1997, Reports of Judgments and Decisions 1997-II, pp. 674-675, §§ 23-27).

dev

001-84266

ENG

TUR

CHAMBER

CASE OF ERİŞ v. TURKEY

Violation of Art. 6-1

András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

4. The applicant was born in 1932 and lives in Istanbul. “Sensitivity on the left lumbar region and on the lower part of the left hemithorax has been observed.”

dev

001-57913

ENG

GRC

CHAMBER

CASE OF STRAN GREEK REFINERIES AND STRATIS ANDREADIS v. GREECE

Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

C. Russo;N. Valticos;R. Pekkanen

6. Stran Greek Refineries ("Stran") is a company currently in liquidation. Its registered address is in Athens and Mr Stratis Andreadis was its sole shareholder. 7. Under the terms of a contract concluded on 22 July 1972 with the Greek State, which at the time was governed by a military junta, Mr Andreadis undertook to construct a crude oil refinery in the Megara region, near Athens. The refinery was to be built, at an estimated cost of 76,000,000 US dollars, by a company which it was proposed to form, Stran Greek Refineries, of which the second applicant was to be the sole owner. All the latter’s rights and obligations were to be automatically transferred to the company upon its incorporation. The Government ratified the contract by Legislative Decree no. 1211/1972, published in the Official Gazette of 26 July 1972. Under Article 21 of the contract, the State undertook to purchase, not later than 31 December 1972, a plot of land in Megara suitable for the construction of the refinery. On 27 July 1972, by a Royal Decree (no. 450), issued pursuant to Legislative Decree no. 2687/1953 on "the Investment and Protection of Capital Funds from Abroad", the State authorised Mr Andreadis to import 58 million US dollars to finance the scheme. 8. However, the project stagnated because the State failed to fulfil its obligation. On 28 November 1973 the Ministers of Industry and Agriculture announced at a press conference in Megara the Government’s decision to return to the proprietors the land which had already been expropriated in accordance with Article 21 of the contract. The following day the Megara police ordered that the work should cease. In December 1973 Stran protested to the relevant authorities and sought permission to proceed with the work. On 27 February 1974 it even issued an extra-judicial summons inviting the State to ratify the purchase of the land in question, but the State refused to revoke the police order prohibiting the continuation of the work. 9. Once democracy had been restored, the Government took the view that the contract and Decree no. 450 were prejudicial to the national economy; they relied on Article 2 para. 5 of Law no. 141/1975 on the termination of preferential contracts (kharistikes symvasseis) concluded under the military regime (1967-74). This Law, which was enacted by special authorisation under the 1975 Constitution (Article 107 - see paragraph 24 below), possessed superior force. The applicants did not respond to a proposal addressed to them by the Minister for Co-ordination on 19 November 1975 inviting them to enter negotiations for the revision or termination of the contract. Accordingly, a ministerial committee on the economy terminated the contract on 14 October 1977. The applicants did not challenge this decision in the courts. 10. Prior to the termination of the contract, Stran had incurred expenditure in connection with the scheme. In particular, it had concluded contracts for the supply of goods and services with foreign and Greek undertakings and had taken out loans. A dispute then arose between Stran and the State. On 10 November 1978 Stran brought an action (anagnoristiki agogi) in the Athens Court of First Instance for a declaration that the State should pay it compensation in the amounts of 251,113,978 drachmas, 22,799,782 US dollars and 877,466 French francs. It argued that the State had been in breach of its obligations during the period of validity of the contract, in particular in so far as it had, since 27 November 1973, prohibited the continuation of work on the construction of the refinery at Megara and had not, since 9 February 1974, taken any steps to expropriate the land required for that construction. It also sought the return of a cheque for 240 million drachmas which it had lodged with the Ministry of the National Economy as security for the proper performance of the contract; it further claimed reimbursement of the commission and the fiscal stamp fee paid to the Commercial Bank of Greece. The State challenged the jurisdiction of the court. It contended that the dispute should be referred to arbitration in accordance with Article 27 of the contract, the relevant paragraphs of which were worded as follows: "1. Any difference, dispute or disagreement arising between the State and the Concessionaire as to the application of this Agreement and relative to the interpretation of the terms and conditions thereof and the extent of the rights and obligations deriving therefrom shall be resolved exclusively by arbitration by three arbitrators according to the following procedure, no other arbitration agreement being required. ... 9. The arbitration award shall be definite, final and irrevocable, and shall constitute an enforceable instrument requiring no further action for enforcement or any other formality. It shall be liable to no ordinary or extraordinary judicial remedies, nor shall it be subject to cancellation or suspension before ordinary courts of justice. The party failing to comply with the provisions of the arbitration award shall be obligated to make good any and all damage (damnum emergens or lucrum cessans) caused to the other party." 11. In a preliminary decision (no. 13910/1979) of 29 September 1979, the Athens Court of First Instance rejected the State’s main submission. It held that the arbitration clause concerned solely the settlement of disputes arising from the performance of the contract and not the failure of one of the parties to perform the contract. It found further that the ministerial committee on the economy had terminated the contract in issue in its entirety (see paragraph 9 above) which had the effect of rendering the arbitration clause void as it was not an autonomous provision. In addition, the court dismissed the State’s argument that two of the conditions subsequent contained in the contract, namely the lodging of a cheque as security and the payment of the second part of the minimum capital, had not been satisfied. Finally, the court ordered additional investigative measures, including the hearing of five witnesses, in order to determine the existence and extent of the damage alleged by Stran. 12. On 12 June 1980 the State filed an arbitration petition and appointed an arbitrator. It requested the arbitration court to declare that all the claims for compensation against the Greek State lodged by Stran in the Athens Court of First Instance (see paragraph 10 above) were unfounded. In its memorial of 28 June 1980 Stran - which had appointed a professor of law at Athens University as arbitrator - maintained primarily that the arbitration court lacked jurisdiction and requested that the arbitration be stayed until the proceedings instituted on 10 November 1978 had been concluded; in the alternative and in order to rebut the State’s arguments on the merits, it referred the arbitrators to its pleadings in the Athens Court of First Instance. 13. The arbitration court was constituted on 3 July 1980; its president was chosen jointly by the two other arbitrators (Article 27 para. 3 of the contract). It made its award on 27 February 1984. It found that it had jurisdiction in that, in its view, the disputes arising from the total failure to perform the contract were also subject to arbitration, which was not restricted to those deriving from non-performance of individual clauses as had been argued by the State. The wording of the arbitration clause in Article 27 (see paragraph 10 above) was sufficiently general and clear to rule out such distinctions. On the merits, the arbitration court relied on the evidence adduced by the parties before the Athens Court of First Instance on 10 November 1978 (see paragraph 10 above). It found that responsibility for the losses sustained by Stran was shared - 70% for the State and 30% for the company. The latter had commenced work on land which had been the subject of a contested expropriation order and without first obtaining the necessary planning permission. It therefore held Stran’s claims to be well-founded in an amount not exceeding 116,273,442 drachmas, 16,054,165 US dollars and 614,627 French francs, plus interest at 6% from 10 November 1978; however, this reference to interest did not appear in the operative part of the decision. Finally, the court declared that the State was unlawfully retaining the cheque lodged as security (see paragraph 10 above). 14. On 24 July 1984 the applicant company sought an order from the Athens Court of First Instance requiring the State to return the security, but the court stayed the proceedings pending the conclusion of those instituted on 10 November 1978 (see paragraph 10 above). 15. On 2 May 1984 the State had asked the Athens Court of First Instance to set aside the arbitration award of 27 February 1984. It argued that the arbitration court had lacked jurisdiction to hear disputes arising from the contract in issue and Stran’s financial claims against the State. In the alternative, it affirmed that the contracting parties had intended to limit the jurisdiction of the arbitration court to disputes concerning the performance and interpretation of the clauses of the contract and the scope of the rights and duties deriving therefrom; its jurisdiction could not therefore extend to disputes relating to the total failure to perform the contract. It followed that the dispute in question was a matter for the ordinary civil courts, as the Athens Court of First Instance had recognised in its judgment no. 13910/1979. In the further alternative, the State argued that the arbitration court’s lack of jurisdiction was confirmed by the fact that Stran’s claims against it had become statute-barred following the termination of the contract. Finally, it stressed the declaratory nature of the action brought by Stran on 10 November 1978 (see paragraph 10 above). 16. In a judgment (no. 5526/1985) of 21 April 1985 the Athens court dismissed the State’s application, holding that the decision terminating the contract had not rendered the arbitration clause void. That clause continued to produce its effects in relation to disputes which had arisen during the period of validity of the contract. 17. On 19 December 1986 the applicant company withdrew its first action in the Athens Court of First Instance (see paragraph 9 above), but sought to pursue its action for the return of the cheque lodged as security (see paragraph 14 above). When this action was heard in the Athens Court of First Instance, on 6 February 1987, the State, relying on Article 294 of the Code of Civil Procedure, opposed the discontinuance of the first action. It maintained that the latter action would have resulted in a finding unfavourable to Stran and that the State thus had a legitimate interest in seeking a final decision. However, the court again stayed the proceedings (decision no. 2877/1987) on account of the appeal on points of law which was pending (see paragraph 19 below). 18. In a judgment (no. 9336/1986) of 4 November 1986, the Athens Court of Appeal, basing its decision on the same grounds, upheld the judgment of 21 April 1985. It ruled, inter alia: "In modern Greek legislation the principle of the autonomy of an arbitration clause in relation to the contract prevails. The termination of the contract, for whatever reason, does not bring an end to the power of the arbitrators designated to hear disputes which have arisen during the period of validity of the contract ... The decision of the ministerial committee on the economy did not annul the arbitration clause contained in Article 27 of the contract and, accordingly, it does not preclude the arbitrators from examining the merits of the dispute." 19. On 15 December 1986 the State appealed to the Court of Cassation. The hearing was initially set down for 4 May 1987, but on that date it was postponed to 1 June 1987 at the State’s request, on the ground that a draft law concerning the case in question was before Parliament. In reply to a question put by the European Court at the hearing on 19 April 1994, the applicants’ lawyer maintained that the Court of Cassation’s judge-rapporteur had sent his opinion, which had been favourable to the applicants’ arguments, to the parties before 4 May and this affirmation was not disputed by the Government. 20. On 22 May 1987 Parliament enacted Law no. 1701/1987 on "the compulsory participation of the State in private undertakings ... and the redemption of shares", which entered into force upon its publication in the Official Gazette of 25 May 1987. This Law dealt principally with the renegotiation of a concession for the prospecting for and extraction of oil and natural gas in an area of the Sea of Thrace. However, Article 12 of the Law was worded as follows: "1. The true and lawful meaning of the provisions of Article 2 para. 1 of Law no. 141/1975 concerning the termination of contracts entered into between 21 April 1967 and 24 July 1974 is that, upon the termination of these contracts, all their terms, conditions and clauses, including the arbitration clause, are ipso jure repealed and the arbitration tribunal no longer has jurisdiction. 2. Arbitration awards covered by paragraph 1 shall no longer be valid or enforceable. 3. Any principal or ancillary claims against the Greek State, expressed either in foreign or local currency, which arise out of the contracts entered into between 21 April 1967 and 24 July 1974, ratified by statute and terminated by virtue of Law no. 141/1975, are now proclaimed time-barred. 4. Any court proceedings at whatever level pending at the time of the enactment of this statute, in respect of claims within the meaning of the preceding paragraph, are declared void." 21. On 10 July 1987, after hearing the opinion of the judge-rapporteur calling for the appeal to be dismissed, the First Division of the Court of Cassation delivered its judgment (no. 1387/1987). It held that Article 12 was unconstitutional on the following grounds: "... Not only does [Article 107] of the Constitution confer superior force on Law no. 141/1975, but it also prohibits subsequent amendments or additions thereto, or even authoritative interpretation thereof, in the form of ordinary legislation. The purpose of that superior force and of the provision in the Constitution requiring that a single law be enacted once and for all within three months of the entry into force of the Constitution was to ensure legislative stability and international confidence for investments in Greece. This opinion is based on the only possible meaning to be attributed to the expression ‘single law to be enacted once and for all’ and on the ease with which the said provision would be flouted if amendments, additions or authoritative interpretation of that law were allowed ... It follows that ... the provisions of Article 12 of Law no. 1701/1987 which purport to provide an authoritative interpretation of and to amend and supplement Article 2 para. 1 of Law no. 141/1975 and which were enacted after the expiry of the time-limit laid down in Article 107 para. 2 of the Constitution are contrary to that instrument. In accordance with Article 93 para. 4 of the Constitution the court is therefore precluded from applying them. The Division refuses to apply unconstitutional provisions and, pursuant to Article 563 para. 2 of the Code of Civil Procedure, holds that it is bound to refer the case to the Court of Cassation sitting in plenary session ..." 22. The hearing in the Court of Cassation sitting in plenary session opened on 19 November 1987, but as a result of the death of one of its members Stran sought a new hearing, which was held on 25 February 1988. The Court of Cassation delivered its judgment (no. 4/1989) on 16 March 1989. It observed, inter alia: "... [The Constitution] provides for the enactment of ‘a single law to be enacted once and for all’ which by definition possesses superior force inasmuch as it may be neither supplemented nor amended by ordinary legislation ... However, the prohibition on supplementing or modifying the content of [such] laws does not mean that they may never be interpreted. The fact that they are sui generis, which gives them precedence over ordinary legislation, ... does not preclude their interpretation where the circumstances so require. The purpose of such interpretation is not to amend the substance of the law interpreted, but to clarify its original meaning and to resolve disputes that have arisen in connection with its application or which may do so in the future. [The need for such interpretation] will ultimately be determined by the court which will have to ascertain whether the meaning of the law interpreted actually gave rise to doubts justifying the intervention of the legislature ... Accordingly, the interpretation of Law no. 141/1975 is not contrary to the Constitution merely because it is a law of superior rank. It must nevertheless be determined, on the one hand, whether the interpretation was necessary in the specific case and, on the other, whether the non-interpretative provisions of this Law, which have a bearing on the solution of the case in issue, are contrary to the Constitution ... The wording [of Article 2 para. 5 of Law no. 141/1975] lacks clarity and creates doubt as to whether the arbitration clause survives the termination of the contract ... and as to the jurisdiction of the arbitration court. In the instant case doubt first arose in the course of the proceedings brought by [the applicants] in the ordinary civil court and again - following the preliminary decision of the Athens Court of First Instance - when those proceedings had been discontinued and recourse was had to arbitration, where diametrically opposed arguments were put forward ... Irrespective of those doubts, the main issue is the acceptance or rejection of the principle of the autonomous character of the arbitration clause and of its scope. For a long time this matter has been the subject of significant differences of opinion in international case-law and among legal writers. In some countries the principle of the survival of the clause to resolve disputes arising prior to the termination of contracts ... prevails. In other countries the dominant view is that termination of the contract entails the annulment of the clause and therefore the referral of all the disputes to the ordinary courts. In other countries again, the accepted view is that the autonomous character of the arbitration clause operates only in respect of certain types of dispute. It was therefore necessary to provide an interpretation of Law no. 141/1975 and that interpretation resolved the problem for the purposes of Greek law by opting for the annulment of arbitration clauses ... and the removal of jurisdiction from the arbitration court. The fact that the intervention of the legislature occurred ... five days before the hearing in the First Division of this Court and following a previous adjournment does not mean that it was not necessary and does not render it contrary to Article 26 paras. 1 and 3 and Articles 77 and 87 of the Constitution. The dispute in question provided the opportunity to resolve a problem which had already arisen. Consequently, it cannot be concluded that, in giving such an interpretation in this case, the legislature interfered with the jurisdiction of the ordinary courts and usurped that jurisdiction. It follows that, contrary to the finding of the First Division, Article 12 para. 1 of Law no. 1701/1987 is not in breach of the Constitution ..." The Court of Cassation took the view that paragraph 2 of Article 12 was not unconstitutional as it essentially supplemented paragraph 1 and sought to deprive of effect any arbitration awards that were made after the termination of contracts and that would not have been made if the meaning of Law no. 141/1975 had been clarified in time. In addition, the court refused to examine the constitutionality of paragraph 3, finding that it had no bearing on the case before it. Finally, it held that the adoption of paragraph 4 shortly before the hearing purported to remove from the courts the possibility of determining the validity of the contested award. That provision therefore violated the principle of the separation of powers. 23. The Court of Cassation remitted the case to the First Division which, on 11 April 1990, quashed the Court of Appeal’s judgment of 4 November 1986 (see paragraph 18 above) and declared void the arbitration award of 27 February 1984 (see paragraph 13 above). 24. The following provisions of the 1975 Constitution are relevant here: "1. The authentic interpretation of the laws shall rest with the legislative power. 2. A law which is not truly interpretative shall enter into force only as of its publication." "The courts shall be bound not to apply laws, the contents of which are contrary to the Constitution." "1. Legislation of higher formal rank enacted before 21 April 1967 pertaining to the protection of foreign capital shall continue to possess such rank and shall be applicable to capital imported henceforth. 2. A single law to be enacted once and for all within three months of the date of the entry into force of this Constitution shall specify the terms and the procedure for the termination or revision of preferential administrative agreements or measures concluded or promulgated between 21 April 1967 and 23 July 1974 pursuant to Legislative Decree no. 2687/1953, in so far as such agreements or measures concern the investment of foreign capital ..." According to legal writers, the reference in Article 107 of the Constitution to Legislative Decree no. 2687/1953 - which provides, inter alia, that arbitration is to constitute the sole means of resolving disputes concerning foreign investment - confers constitutional status on such arbitration (Introduction to Greek Law, edited by K.D. Kerameus and P.J. Kozyris, Deventer/Athens, Kluwer/Sakkoulas, 1988, p. 263). 25. The Code of Civil Procedure provides, inter alia, as follows: "The plaintiff may withdraw the action without the consent of the defendant before the latter has filed pleadings on the merits of the case. He may not so withdraw at a later stage if the defendant objects to the withdrawal on the ground that he has a legitimate interest in the proceedings being concluded by a final decision." "The effect of the withdrawal of the action is that it shall be deemed never to have been brought ..." The VIIth section of the Code of Civil Procedure (Articles 867-903) deals with arbitration. The relevant provisions are as follows: "The arbitrator ... shall, unless stipulated otherwise in the arbitration clause, file the original of the arbitration award with the registry of the Court of First Instance within whose jurisdiction the decision was given ..." "1. The ordinary remedies do not lie against arbitration awards. 2. The arbitration agreement may specify an appeal against the arbitration award before different arbitrators ..., but it must at the same time define the conditions, the time-limit and the procedure to be followed for the exercise of such a remedy and for the decision thereon." "If the arbitration agreement does not specify the appeal provided for in Article 895 para. 2 or if the time-limit for filing such an appeal has expired, the arbitration award shall become final ..." "The arbitration award may be annulled, in whole or in part, only by judicial decision and on the following grounds: (1) where the arbitration agreement is void; (2) where it was made after the arbitration agreement had ceased to be valid; (3) where the arbitrators were designated in breach of the terms of the arbitration agreement or of the statutory provisions ...; (4) where the arbitrators exceeded the powers attributed to them under the arbitration agreement or by statute; (5) where the provisions of Articles 886 para. 2, 891 and 892 have been infringed; (6) where it is contrary to public policy and morality; (7) where it is incomprehensible or where it contains contradictory provisions; ..." "1. Enforcement may be effected solely pursuant to an enforceable decision. 2. The following decisions shall be enforceable: ... (b) arbitration awards; ..." "1. Enforcement may be effected solely on the basis of the copy of the enforceable decision bearing the stamp conferring authority to execute ... 2. Endorsement with the stamp conferring authority to execute shall be effected: ... (d) in respect of arbitration awards by the judge of the First Instance Court ...; ..." 26. Law no. 141/1975, which was enacted pursuant to Article 107 para. 2 of the Constitution, made possible the revision or revocation of any administrative measure of ratification, issued between 21 April 1967 and 23 July 1974, and any contract concluded by the State during that period with a legal or a natural person and concerning the investments governed by Legislative Decree no. 2687/1953. Such measures or contracts were to be revised or terminated where they were incompatible with the Constitution or other laws or contrary to morality, and prejudicial to the interests of the State, consumers and the national economy. The contracts were to be terminated where it proved impossible to revise them in their entirety. Termination could be effected at the written request of the person concerned or unilaterally by the ministerial committee on the economy. Article 2 para. 5 of the Law described the consequences of termination in the following terms: "Following the termination of a contract ... the special privileges and agreements shall cease to have effect and the undertaking or investment shall be subject to the ordinary laws governing ordinary undertakings and investments ..."

dev

001-88385

ENG

AUT

CHAMBER

CASE OF MULLER v. AUSTRIA (No. 2)

Violation of Article 6 - Right to a fair trial

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

5. The applicant was born in 1968 and lives in Vienna. He is the owner and managing director of M, a building company. 6. On 10 October 1997 a worker employed by the M company mounted a scaffold (which was owned, however, by another building firm) at one of the company’s building sites at M. Street in Vienna. He fell and died a few days later. 7. Subsequently the Vienna District Public Prosecutor (Bezirksanwalt) started preliminary inquiries (Vorerhebungen) against the applicant on suspicion of having caused death by negligence (fahrlässige Tötung), an offence under Article 80 of the Criminal Code. On 27 March 1998 he discontinued the inquiries. 8. On 31 March 1998 the Vienna Municipality issued a penal order (Straferkenntnis) against the applicant as manager of the M company, imposing a fine for an administrative offence under section 130(1), no. 16, of the Industrial Safety Act (Arbeitnehmerschutzgesetz) read in conjunction with several provisions of the Construction Worker Safety Regulations (Bauarbeiterschutzverordnung). It found that the applicant had disregarded the duties of an employer concerning the properties, conditions, use, inspection or maintenance of equipment (Verpflichtungen betreffend die Beschaffenheit, die Aufstellung, die Benutzung, die Prüfung oder die Wartung von Arbeitsmitteln) as, on 10 October 1997, a scaffold used at the building site at M. Street, Vienna, had lacked protective barriers on three sides at head, chest and foot level and the protective barriers on the fourth side had not been properly secured. 9. On 31 March 1998 the applicant, assisted by counsel, appealed to the Vienna Independent Administrative Panel (“the IAP” – Unabhängiger Verwaltungssenat). He submitted that at the building site at M. Street in Vienna 25 scaffolds owned by different construction companies had been in use. While the one belonging to the M company had all the necessary protective elements, the defective scaffold used by the employees of the M company, which had led to the industrial accident, was owned by another company. On 29 May 2000 the applicant submitted further that the IAP should quash the penal order as the administrative criminal proceedings had been conducted in breach of the principle of ne bis in idem. 10. On 20 June 2000 the IAP quashed the penal order of 31 March 1998. Referring to the Constitutional Court’s case-law on Article 4 of Protocol No. 7, the IAP found that criminal proceedings for causing death by negligence under Article 80 of the Criminal Code and proceedings under section 130(1), no. 16, of the Industrial Safety Act, read in conjunction with the Construction Worker Safety Regulations, concerned essentially the same conduct as in both cases the authorities and courts had to examine whether the provisions for the protection of construction workers had been complied with. In such circumstances, the person responsible for compliance with these rules was also criminally liable under Article 80 of the Criminal Code in the event of an accident at work leading to the death of the victim. Therefore the IAP was prevented from conducting administrative criminal proceedings against the applicant even though finally the District Public Prosecutor had discontinued his inquiries into the charge of causing death by negligence against the applicant. 11. On 25 August 2000 the Federal Minister for Economy and Labour (Bundesminister für Wirtschaft und Arbeit) filed a complaint with the Administrative Court against the IAP’s decision. The Federal Minister pointed to the Constitutional Court’s case-law, according to which a conviction under Article 80 of the Criminal Code concerned essentially the same punishable conduct as the offence under section 130(1), no. 16, of the Industrial Safety Act. Thus, to conduct two sets of criminal proceedings concerning these offences would be in breach of Article 4 of Protocol No. 7. The IAP had, however, overlooked the fact that in the present case no proceedings had been conducted against the applicant before a criminal court. The inquiries by the District Public Prosecutor, an employee of the Public Prosecutor’s Office, had the purpose of verifying whether or not a charge should be brought against a person and whether proper criminal proceedings should be opened. As a result the District Public Prosecutor had discontinued the preliminary inquiries since he had not found sufficient reasons to prosecute the applicant. That being so, it could not be said that an act had been committed which fell within the scope of Article 80 of the Criminal Code. The ne bis in idem principle did not therefore apply. 12. On 26 April 2002 the Administrative Court quashed the IAP’s decision of 20 June 2000. The Administrative Court found that the ne bis in idem principle was not at stake if a public prosecutor discontinued preliminary inquiries on a criminal information pursuant to Article 90 of the Code of Criminal Procedure, as in such a case the public prosecutor – either immediately or after conducting inquiries – arrived at the conclusion that the criminal information was unfounded, and that the act to which it referred was not punishable or did not justify prosecution. Such a case must be distinguished from the material facts in the Constitutional Court’s decision to which the IAP had referred, as that case had not concerned the termination of investigations under Article 90 of the Code of Criminal Procedure. 13. On 11 February 2003 the IAP gave a fresh decision on the applicant’s appeal and this time upheld the Municipality’s penal order after having held oral hearings on 16 October and 13 December 2002. The IAP noted that the workers present at the building site had used a scaffold belonging to another building company. The applicant, as the person responsible, had not installed a properly functioning control system, verifying that the scaffolds and other materials used by the workers complied with safety regulations and that the workers had been trained in complying with these regulations. The applicant had therefore been responsible for the non-compliance with the safety regulations. 14. On 11 June 2003 the applicant lodged a complaint with the Constitutional Court, alleging, inter alia, that the impugned decision disregarded the principle of ne bis in idem. 15. On 23 September 2003 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospect of success, and on 19 December 2003 the Administrative Court also declined to deal with the applicant’s complaint for lack of prospect of success in accordance with section 33a of the Administrative Court Act. 16. Sections 84 to 115 of the Code of Criminal Procedure (Strafprozeβordnung) concern the conduct of preliminary inquiries (Vorerhebungen) and preliminary investigations (Voruntersuchungen). 17. In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a criminal information, the public prosecutor may first have preliminary inquiries carried out by the investigating judge, the District Court or the police authorities (Section 88 § 1). 18. Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he or she must either request the institution of preliminary investigations or file a formal indictment (Anklageschrift, Strafantrag; Section 90 § 1). Section 91 § 2 provides that preliminary investigations pursue the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit the person for trial and prepare the taking of evidence at the trial. 19. Section 93 § 1 provides that preliminary investigations are in principle conducted by the investigating judge personally and directly. 20. Section 5 § 1 of the Code of Administrative Offences provides: “Unless a provision of administrative law states otherwise, negligent behaviour is sufficient to establish guilt. Negligence is to be assumed in the case of failure to observe a prohibition or a prescription where damage or danger is not an element of the administrative offence, and the defendant does not convincingly show that no fault lies with him for the contravention of the provision of administrative law.”

dev

001-98773

ENG

MKD

ADMISSIBILITY

TRPESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Inadmissible

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

The applicants, Mr Zoran Trpeski (“the first applicant”), Mr Blagoja Nikolovski (“the second applicant”), Mr Dragan Trpevski (“the third applicant”) and Mr Miroljub Trpevski (“the fourth applicant”), are Macedonian nationals who were born in 1955, 1951, 1963 and 1951 respectively, and live in Skopje. They were represented before the Court by Mr Z. Gavriloski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 July 1992 the National Bank issued an operating licence to Ljubljanska Banka - Makedonska Banka a.d. Skopje. Under the latter's Act of Incorporation (Договор за основање и работење), its shareholders were Ljubljanska Banka d.d. Ljubljana, a bank incorporated in Slovenia (“the majority shareholder”), possessing 51% of the share capital (главница), and eighty-one companies from the former Yugoslav Republic of Macedonia. The case originated at the domestic level in events dating back to 1992 and 1994, which took place before the entry into force of the Convention in respect of the respondent State on 10 April 1997. On 30 September 1994 a general meeting of shareholders of Ljubljanska Banka - Makedonska Banka a.d. Skopje, which was attended by a representative of the National Bank, adopted the following changes to its Statute (“the Statute”) (Статут): it changed the name to “Makedonska Banka a.d. Skopje” (“the Bank”); it specified that the first class of shares could be bearer shares (акции на доносител) and registered shares (акции на име); it decided that shareholders could ask the Bank to convert registered shares into bearer shares; and it agreed that bearer shares could be transferred merely by a handover (предавање). The National Bank had already approved these amendments on 27 September 1994. According to a stamp affixed to it, this latter decision was received by the Bank on 3 October 1994. On 30 September 1994 the majority shareholder asked the Bank, under its amended Statute, to convert its shares into bearer shares and to register them as such in the shareholders' register (акционерска книга) (“the register”). On the same day, the majority shareholder concluded three separate agreements (“agreements transferring shares and the corresponding rights (a full endorsement”) договор за пренос на акција и права од акција (полн индосамент)) transferring its shares in the Bank to three companies incorporated in the former Yugoslav Republic of Macedonia (“the buyers”). Under the agreements, the majority shareholder undertook to transfer title to the shares, as well as the corresponding rights and obligations, to the buyers in exchange for payment. The majority shareholder also authorised the first applicant, who had meanwhile become Chief Executive of the Bank, to collect its bearer shares on its behalf and to execute the transfer in accordance with the above agreements. The buyers concluded further agreements of the same type (“the first set of agreements”, договор за пренос на акција и права од акција (полн индосамент)), valid from 30 September 1994, transferring to the first applicant the title to the shares obtained from the majority shareholder. The second, third and fourth applicants stated that the first applicant had paid for the bearer shares on their behalf. Finally, the first applicant transferred a part of these shares under other agreements for full endorsement (“the second set of agreements”, договор за пренос на акција и права од акција (полн индосамент)) to the remaining applicants and Mr D.G. This became valid on 30 September 1994. On 27 October 1994 the Bank received the bearer shares in hard copy from the then authorised printing company. On the same day, the first applicant collected the printed shares from the Bank. He did so under the authorisation described above. He handed over the printed shares to the buyers. The statements of the buyers' managers attested to that fact. On 28 October 1994 the buyers handed over the bearer shares to the applicants and Mr D.G. That fact was supported by statements from the buyers' managers. After these transactions, the applicants' individual share in the Bank's capital was in the following proportion: the first applicant had 10%; the second applicant 5.5%; the third applicant 10%; and the fourth applicant 10%. The applicants did not seek registration of their shares. According to extracts from the register dated 31 December 1994, 31 October 1995 and 31 December 1996 respectively, the structure of the Bank's shareholders remained unchanged during that period, namely the majority shareholder possessed 51% of the Bank's capital. On 23 and 26 September 1997 respectively, the National Bank carried out a supervisory control of the Bank in order to determine its shareholder structure. The supervisory report stated, inter alia, that: “ ... According to the Bank's register of shareholders, the largest shareholder remains Ljubljanska Banka d.d. Ljubljana possessing 51% of the Bank's share capital. Under Article 8 of the Bank's [Statute] adopted on 30 September 1994, Ljubljanska Banka d.d. Ljubljana asked for its shares to be issued as bearer shares ... In October 1994 the shares were printed. Ljubljanska Banka d.d. Ljubljana authorised Mr Zoran Trpeski, the Bank's Chief Executive, to collect its shares (once printed) ...It can therefore be concluded that 51% of the (Bank's) share capital consists of bearer shares which makes it impossible to precisely determine the Bank's share capital ... It is like this because bearer shares can be owned by anyone who physically possesses them. The owner of such shares is, for all practical purposes, unknown ... “ Relying on the above control, on 10 December 1997 the Governor of the National Bank concluded that the majority of the Bank's shares were bearer shares and that consequently, the Bank's shareholder structure could not be determined. He therefore asked the Bank to comply with the then Act on Banks and Savings Institutions of 1996 (see “Relevant domestic law” below) and to convert its bearer shares into registered shares. The Bank was asked to comply within two years of the date that the above Act came into force, that is by 30 April 1998. At the applicants' request, on 15 April 1998, the Bank converted their bearer shares into registered shares and registered them as shareholders. According to the entry in the register, the applicants had obtained possession of the shares on 30 September 1994 on the basis of a (sales) transaction of the same date. It also provided them with registered share certificates (потврда за обична акција на име). The National Bank noted the change of title to 51% of the Bank's capital made under the sales agreements of 30 September 1994 described above. It stated that the Bank had not sought approval for that change, as required under the then Act on Banks and Savings Institutions (see “Relevant domestic law” below). The Bank also failed to notify it about the sales agreements although the senior management had been aware of them. The report also stated that the majority shareholder's request of 30 September 1994 for conversion of its registered shares had been received by the Bank on 3 October 1994. In such circumstances, the majority shareholder had no right to seek conversion given that it had already transferred the title to its registered shares to the buyers, under the sales agreements of 30 September 1994. On 19 July 1999 the Solicitor General (Јавен правобранител) brought a civil action against the applicants, the buyers and Mr D.G. (“the defendants”) asking the Skopje Court of First Instance (“the first-instance court”) to declare null and void the first and second sets of agreements. He also asked the court to issue an interim measure (времена мерка) preventing the applicants and Mr D.G. from disposing of the shares. The Solicitor General claimed that the first applicant, under the first set of agreements, had unlawfully obtained possession of 41% of the Bank's capital without having sought the approval of the National Bank, as required under the then Act on Banks and Savings Institutions; that the amended version of the Statute, under which the shares had been transferred, was unlawful since the National Bank's approval had been received by the Bank on 3 October 1994; and that the first applicant could not have disposed of the shares under the second set of agreements. On an unspecified date, several companies, the Bank's shareholders, (“the other shareholders”) joined the Solicitor General's claim. On 28 July 1999 the first-instance court issued an interim order preventing the applicants and Mr D.G. from disposing of the shares. This decision was upheld by a decision of the Skopje Court of Appeal dated 8 October 1999. On 27 January 2000 the first-instance court declared the first and second sets of agreements null and void (ништoвни). It also granted a pre-emptive right (право на првенствено купување) to the other shareholders, claimants in these proceedings, to purchase the shares under the price set in the agreements. It decided not to grant such right to the State. The first-instance court established that on 30 September 1994, the majority shareholder had transferred to the buyers, under three separate agreements, part of its shares amounting to 41% of the Bank's capital. On the same date, the buyers and the first applicant concluded the first set of agreements, transferring these shares to him. Under the second set of agreements, the first applicant transferred part of these shares to the remaining applicants and Mr D.G. The court ruled that, given the absence of a notification or approval by the National Bank, as required under the then banking rules, the first applicant, under the first set of agreements, had unlawfully obtained possession of 41% of the Bank's capital. It further held that these transactions had been carried out under the amended Statute, which could not be regarded as having been in force at the relevant time, since the Governor's approval of 27 September 1994 had been received by the Bank on 3 October 1994. The National Bank had not been provided with the decision amending the Statute, but only with a consolidated version (пречистен текст). On 11 July 2000 the Skopje Court of Appeal upheld the first-instance court's decision in respect of the first and second sets of agreements. It dismissed the other shareholders' claim for a pre-emptive right to purchase shares. It also dismissed the applicants' arguments that bearer shares were to be regarded as having been transferred by a mere handover and that a written agreement had not been required. It reiterated the first-instance court's finding that the first applicant, under the first set of agreements, had unlawfully obtained 41% of the Bank's capital. On 12 June 2002 the Supreme Court dismissed appeals by the applicants on points of law (ревизија). It reiterated the facts established by the lower courts: that the sales transactions described above had been carried out under the amended Statute which, due to the late receipt of the Governor's approval, had not been in force at the relevant time; that the first applicant, under the first set of agreements, had obtained title to 41% of the Bank's capital; and that the National Bank had not been notified by the Bank or first applicant nor, as required under the then banking rules, sought approval for that fact. This decision was served on the applicants on 11 September 2002. On 11 December 2000 the Bank announced a public call to its shareholders requiring them to convert share certificates into ordinary shares with a different nominal value. On 28 and 29 December 2000 respectively, the applicants asked for their shares to be converted in accordance with the public announcement described above. On 9 January 2001 the Bank refused their requests, relying on the following: i) the Appeal Court's decision of 11 July 2000, ii) the National Bank's approval of 24 October 2000 to one of the buyers to obtain possession of 15% of the Bank's capital and iii) submissions by the Stock Exchange Commission (Комисија за хартии од вредност) dated 30 November 2000 according to which the Bank, under the court decision of 11 July 2000, should register the buyers as shareholders. On 23 April 2001 the applicants brought a civil action against the Bank asking for recognition of title to the shares as noted in the share certificates of 15 April 1998. They claimed that the first and second sets of agreements had not been a legal ground for obtaining title to the bearer shares, as the first class of shares issued by the Bank. They argued that the bearer shares had been transferred to them by a mere handover, as specified under the then applicable rules, after 27 October 1994, the date of their production. The bearer shares therefore had not existed at the time when the agreements had been concluded. On 15 April 1998, the date when they had been provided with the share certificates, none of the applicants' individual share in the Bank's capital had exceeded the statutory threshold which would have required approval by the National Bank. They also asked the court to issue an interim measure preventing the Bank from disqualifying them as shareholders. On 12 June 2001 the first-instance court inspected the Bank's register. According to the record, the buyers and not the applicants were registered in the register as the Bank's shareholders. Under the Court of Appeal's decision of 11 July 2000, the dates of entry in the register were indicated as 24 October and 6 December 2000 respectively. On 5 July 2001, after it had established the facts concerning the agreements of 30 September 1994, the first-instance court dismissed the applicants' claim arguing that shares were to be regarded as movable assets (подвижна телесна ствар) and that there was a close link between shares and corresponding rights attached thereto. It held that the substantive property law (стварно право) applied to the acquisition, possession and transfer of shares and that contract and tort law (облигационо право) applied to the corresponding rights and obligations. It ruled, accordingly, that the lawfulness of possession of a share depended on the existence of a valid legal ground and the subjective conviction of the holder. The court held that the applicants did not have lawful possession of the bearer shares because the first and second sets of agreements had been declared null and void. They had not acted in good faith when obtaining possession of those shares because the first applicant had collected them from the Bank on 27 October 1994 on behalf of the majority shareholder after they had been printed. Finally, in the absence of a valid legal ground, the applicants could not have obtained possession of the shares by a mere handover. The court rejected the applicants' request for an interim measure, deeming it to have been withdrawn. It further advised the applicants to seek reopening of the proceedings if they were successful in the first proceedings. On 14 March 2002 the Skopje Court of Appeal dismissed the applicants' appeal, finding no grounds to depart from the established facts and the reasons given by the first-instance court. It reaffirmed that on 30 September 1994 the applicants did not have actual possession of the bearer shares. The court concluded that the applicants had obtained title to the shares under the agreements which had been declared null and void. On 14 May 2003 the Supreme Court dismissed the applicants' appeal on points of law of 15 May 2002, stating that, given the absence of a valid legal ground for their transfer, they did not have lawful possession of the shares. In this connection, it referred to the first and second sets of agreements being declared null and void. This decision was served on the applicants on 2 September 2003. In June 1998 the Governor of the National Bank revoked the first applicant's licence as a bank manager. That decision was subject to review and was finally superseded by a decision of the Supreme Court of 6 February 2002 limiting the prohibition to exercise his profession at the Bank. On 28 February 2001 the Constitutional Court declared section 28 § 1 of the then valid Act on Political Parties (Закон за политичките партии), under which political parties could earn income from their own assets (приходи, од сопствен имот), unconstitutional. The court found that that provision was imprecise and contrary to the rule of law and worked against the market and entrepreneurship and the functions and objectives of political parties. That decision was given in response to a request by a political party (U.br.45/2000 and 61/2000, published in the Official Gazette no. 23/2001). Section 236 of this Act, as valid at that time, provided that securities (хартии од вредност) could be issued, inter alia, as registered or bearer. Section 237 of this Act provided that an obligation attached to securities was to be regarded as transferred with the transfer of the securities. In accordance with section 239 § § 1, 2 and 4, the rights attached to securities could be obtained by their lawful holder. Any holder of a bearer share was to be regarded as lawful. A diligent holder of a bearer share would lawfully possess it even if the company or its former holder had yielded procession of it unwillingly. Under section 241 the right of a bearer share is transferred by a mere handover. Section 250 § 1 provided that the company, in response to a request and at the holder's expense, can convert the bearer share into a registered share. This act was valid until 2001 when the new Obligations Act came into force. In accordance with section 2 of this Act, as valid at that time, registered or bearer written certificates would be regarded as securities. Section 5 § 2 of this Act provided that corresponding rights and obligations could be obtained by transferring the securities from the company to the buyer or his or her representative. Section 6 § § 1 and 2 provided that a registered share was regarded as having been transferred by a full endorsement (полн индосамент) unless it was explicitly stated that it could not be transferred. A bearer share was regarded as having been transferred by a mere handover. This Act was replaced by the Securities Trading Act of 1997 (see below). In accordance with section 4 of the then valid Securities Trading Act, securities could be registered or bearer. Under section 5 § 2, bearer securities were transferred by a mere handover. In accordance with section 12 § § 2 and 3, there were only registered shares. Bearer shares were null. This Act was replaced by the then Securities Act of 2000 and the current Securities Act of 2005. Section 18 of this Act required that the Governor of the National Bank must approve any acquisition of an individual share of more than 25% of a bank's capital. Pursuant to section 19, a bank was required to notify the National Bank if an individual share exceeded 20%. In case of non-compliance, the bank may be fined (section 126). Under section 4 § 2 of this Act, banks could only issue registered shares. In accordance with section 131-b, banks were required to adjust their operation within two years of the Act entering into force. Section 83 provided that that Act would enter into force eight days after being published in the Official Gazette. Section 289 § § 1 and 2 of this Act provided that registered shares were to be recorded in the register of shareholders. Every person registered in the register of shareholders was to be regarded as a shareholder.

dev

001-5348

ENG

GBR

ADMISSIBILITY

SALAMAN v. THE UNITED KINGDOM

Inadmissible

Elisabeth Palm;Gaukur Jörundsson;Nicolas Bratza

The applicant is a British citizen born in 1956 and residing in Meopham, Kent, England. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was appointed an executor and beneficiary under the will of the deceased B, a freemason, who died in November 1992. This professionally drawn will, dated 5 June 1991, left a large part of the estate to the applicant subject to a life interest in the residuary estate to B’s brother, P. The applicant states that B told him that P was also a freemason. The Government have provided a letter from the United Grand Lodge of England stating that they had no trace of P as a member. On 6 August 1991, B made a manuscript codicil endorsed on the back of a photocopy of the will by which he purported to revoke the will without making any other will in its place. It was purportedly witnessed by two persons present at the time. The applicant complained to the police about the codicil after B’s death but the police did not find any evidence of criminal conduct. P applied to the High Court for a declaration that the will had been validly revoked. The applicant states that he wished to produce in evidence tape recordings of a phone conversation between, amongst others, B and a friend. Although the tapes were not produced, a transcript of one tape appears in one of the police statements which was before the judge. Two of P’s witnesses were freemasons. The evidence before the court made reference to B’s involvement in freemasonry. In his application, the applicant alleged that P’s counsel and solicitor were also freemasons. The Government have provided letters from both in which they stated that they were not, and never had been, freemasons. On 12 December 1994, the deputy High Court judge, Mr Roger Kaye, declared that the will had been validly revoked by the codicil, ordered that letters of administration be granted to P and ordered the applicant to pay P’s costs. The result of this order was that B died intestate and the entirety of his estate passed to P. The applicant had been legally represented until shortly before the trial when he dispensed with legal assistance and conducted his case in person before the judge. P died on a date unspecified in 1995, leaving no surviving children or spouse. The applicant appealed to the Court of Appeal, claiming inter alia that the evidence as to the attestation of the will was inconsistent, that the judge disallowed the admission of tapes in evidence, that P failed to disclose documents or did so at a late stage, that the judge did not explain why he made a costs order and that the judge erred in concluding that the codicil was validly executed, that B knew what he was signing and that he was not the victim of undue influence. In its decision of 22 November 1995, the Court of Appeal (Lord Justice Rose, Lord Justice Millett and Lord Justice Thorpe) found that there were no flaws in the judge’s essential findings or conclusion. Further it was noted that the applicant had not made any formal application for the admission of the tapes in evidence but that in any event it appeared unlikely that this would have influenced the trial judge one way or the other. The Court of Appeal unanimously held that there was no substance to the appeal and made an order for costs against the applicant. On 18 December 1995, the Court of Appeal refused leave to the applicant to appeal to the House of Lords. On 22 July 1997, the applicant petitioned the House of Lords for leave to appeal upon similar grounds. This was rejected by the House of Lords on 13 January 1998. The applicant alleges that he subsequently learnt that the trial judge was a freemason, and received confirmation that one of the Court of Appeal judges Lord Justice Millett was also a freemason. At the time of the hearing the applicant states that there would have been no means of discovering this. A letter provided by the Government indicates that the applicant was aware of Lord Justice Millett’s membership by 2 December 1996 at the latest. In his letter dated 18 May 1999, Lord Millett (now a Law Lord in the House of Lords) did not recall being aware that either the deceased or plaintiff was a freemason but even if it was mentioned in the papers it would have made no impression on him. He pointed out that there were 1,000 lodges in the United Kingdom and over 300,000 masons, the overwhelming majority of whom were complete strangers. As masons, they shared common interests, as did those who played golf or collected stamps. They owed each other no special obligations that they did not owe to others. They acknowledged the claims of charity but beyond this the notion that masons were obligated to support each other or protect each other’s property was a complete myth. In his letter dated 24 May 1999, Roger Kaye Q.C. recalled that he was aware during the proceedings that B had been a freemason as it had received fleeting mention. He also recalled that there were references in the documents to one or two witnesses being freemasons. He was not aware that P was alleged to be a freemason. However, this aspect was never an issue of feature in the case. At no time did it appear to him to have such a bearing or connection with the case as to call for a declaration of interest. B. Relevant domestic law and practice Freemasonry in the United Kingdom According to a Parliamentary Home Affairs Select Committee report (see below), freemasonry is a predominantly social organisation which plays a significant role in charitable activities, donating about £13 million per year to charitable causes. In their evidence to the Committee, the United Grand Lodge estimated their active lodge membership as 349,213. Freemasons belong to a lodge, each lodge having on average 40 members. Lodge meetings typically consist of a social dinner and the acting out of a series of one-act plays by members. Members take an oath to abide by particular principles, including obedience to God and the law, the practice of morality and charity and basic principles of good citizenship. Members also take oaths of mutual support. In its written evidence to the Select Committee, the United Grand Lodge stated that a Freemason’s duty as a citizen must always prevail over any obligation to other Freemasons. Although in the past, freemasons adopted an attitude of secrecy, since 1984 there has been a change. Freemasonry now publishes leaflets, its rule book and year book. Nor is there any obligation on a freemason to keep his membership of the organisation secret. Freemasonry and the judiciary In a Memorandum from the Lord Chancellor’s Department to the Home Affairs Committee entitled “Freemasonry in the Judiciary” dated December 1996 it was stated: “2.1. Judges ... are bound by the judicial oath which they take on appointment ... 2.2. In honouring this oath, a judge can be expected to have full regard to the law on disqualification on grounds of interest or bias. Recent authority on this area of the law can be found in the judgment of the House of Lords case of R v. Gough [1993] AC 646. 2.3. The law as elucidated in R v. Gough disqualifies a person automatically from taking a judicial decision if she or he has any pecuniary or proprietary interest in the outcome of the proceedings. Where a judge has an interest other than a pecuniary or proprietary one, the law disqualifies him or her from adjudicating in any cases where circumstances point to a “real danger”... of bias in relation to a party or an issue involved in the case, each case falling to be considered on it own facts. 2.4. If a judge finds that he is acquainted with, or has any other sort of relationship with, a person involved in a case or with the subject matter of the case, then the judge must consider whether the nature of the relationship would ... be such as to create a real danger of bias. This would apply to an acquaintance or relationship resulting from membership of the freemasons just as it would to any other sort of relationship. If the judge sitting decides that the relationship would be regarded as creating a real danger of bias, then the judge should disqualify himself from adjudicating on the matter ... 2.8. The judicial oath overrides any commitment which might be made as part of a person’s membership of the freemasons, and the Lord Chancellor has no reason to believe that freemasons who take the judicial oath cannot be relied upon to honour it.” In March 1997, the Parliamentary Home Affairs Select Committee published a report entitled “Freemasonry in the Police and the Judiciary” which concluded, inter alia: “The Committee conclude that, when the oaths are read in context, there is nothing in them that would appear sinister; and nothing in the evidence we have heard that would show a conflict between the oath taken by a judge or policeman and that taken by a freemason. We do not believe that there is anything sinister about freemasonry, properly observed, and are confident that freemasonry itself does not encourage malpractice.” (paragraph 32) “It is obvious that there is a great deal of unjustified paranoia about freemasonry and we have no wish to add to it ...We believe however that nothing so much undermines public confidence in public institutions as the knowledge that some public servants are members of a secret society one of whose aims is mutual self-advancement - or a column of mutual support to use the masonic phrase ... The solution is disclosure. We recommend that police officers, magistrates, judges and crown prosecutors should be required to register membership of any secret society and that the record should be available publicly. However, it is our firm belief that the better solution lies in the hands of freemasonry itself. By openness and disclosure, all suspicion would be removed and we would welcome the taking of such steps by the United Grand Lodge.” (paragraph 56) The Government responded to the Report by announcing on 17 February 1998 the setting up of a voluntary register. New recruits to the judiciary would be required to register their membership of the Freemasons. The Home Secretary stated that he would be requesting existing judges to join voluntary registers. The Government would address the need for legislation having regard to the extent of compliance with voluntary registers. According to the Government’s provisional figures, 96% of the professional judiciary have responded to the invitation to declare whether they were freemasons or not. Of those that responded, 5% declared themselves to be freemasons.

dev

001-57574

ENG

SWE

CHAMBER

CASE OF SCHMIDT AND DAHLSTRÖM v. SWEDEN

No violation of Art. 11;No violation of Art. 14+11

8. The applicants are Swedish citizens. Mr. Folke Schmidt is a professor of law at the University of Stockholm and Mr. Hans Dahlström is an officer in the Swedish Army. 9. The applicants are members of trade unions affiliated to two of the main federations representing Swedish State employees, namely the Swedish Confederation of Professional Associations (Sveriges Akademikers Centralorganisation, abbreviated to SACO) in the case of Mr. Schmidt and the National Federation of State Employees (Statstjänstemännens Riksförbund, abbreviated to SR) in the case of Mr. Dahlström. In 1971, after expiry of one collective agreement and during negotiations for a new agreement, the applicants’ unions called selective strikes not affecting the sectors in which worked the applicants, who thus did not come out on strike. Mr. Schmidt and Mr. Dahlström complain that on conclusion of the new agreement, they, as members of the "belligerent" unions, were denied certain retroactive benefits paid to members of other trade unions and to non-union employees who had not participated in the strikes. General background 10. For more than a hundred years, workers and employers in the private sector in Sweden have traditionally enjoyed the right to form and join trade unions and associations and to take action in defence of their occupational interests without interference by the State. Certain principles of labour law which had evolved in practice were codified in 1928 and 1936 by the following legislation: (i) the 1928 Collective Agreements Act (lag om kollektivavtal); (ii) the 1928 Labour Court Act (lag om arbetsdomstol); and (iii) the 1936 Act on the Right to Organise and Negotiate (lag om förenings-och förhandlingsrätt). 11. The 1928 Collective Agreement Act deals with collective labour agreements between employers or employers’ associations and trade unions. It specifies in particular the legal effects of such agreements. For example, the parties may not take strike or lock-out action in regard to an issue regulated by a collective agreement in force between them. 12. The 1928 Labour Court Act contained rules governing the composition, jurisdiction and procedure of the Labour Court. The Labour Court was competent to hear cases of alleged violation of the 1936 Act on the Right to Organise and Negotiate. It also had jurisdiction in disputes relating to the interpretation or application of collective agreements, but proceedings could only be brought by a party to the agreement in issue. Unions or non-union employees to whom such an agreement had been made applicable (paragraph 17 below) were obliged to bring their disputes before the ordinary courts or administrative courts, as the case might be. 13. The above-mentioned Act of 1936 guarantees two distinct rights to the parties on the labour market, namely the right to organise and the right to negotiate. The right to organise is defined in Section 3 of the Act as being the right of employers and employees to belong to an employers’ organisation or a trade union, to exercise their rights as members of that organisation or union, and to work for an organisation or a union or for the formation of an organisation or a union, without interference or pressure by the other party. The Act specifies that the right to organise shall be considered as being violated "if measures are taken either by employers or by employees to constrain any employee or employer, as the case may be, to refrain from becoming a member of, or to resign from, an association, to refrain from exercising his rights as a member of an association, or to refrain from working for an association or for the formation of an association, and likewise if measures are taken either by employers or by employees calculated to cause prejudice to an employee or employer, as the case may be, on the ground that such employee or employer is a member of an association, exercises his rights as a member of an association or works for an association or for the formation of an association". The only way in which such associations enjoy the protection of the Act is that they may be awarded damages if the other party violates the right to organise of an individual member in such a way that the violation is to be regarded as intervention in the affairs of the association. The right to negotiate is defined in Section 4 of the 1936 Act as being "the right to institute negotiations regarding conditions of employment or relations between employers and employees in general". It imposes on the other party an obligation to enter into negotiations, to attend meetings for negotiations and, where necessary, to make proposals for the settlement of the issues involved. This provision is applicable to all trade unions. 14. Prior to 1966, the State determined the wages and conditions of employment of its employees in the event of a breakdown of the negotiations between the State and the employees. As from 1 January 1966, the 1965 State Officials Act (statstjänstemannalag) has virtually assimilated State employees to employees in the private sector as regards trade union rights, strikes, lock-outs, etc. The Act made the 1928 Collective Agreement Act, the 1928 Labour Court Act and the 1936 Act on the Right to Organise and Negotiate applicable in the public sector. Furthermore, the Act provided for collective agreements to be concluded, subject to certain exceptions, between the National Collective Bargaining Office (Statens Avtalsverk, hereinafter referred to as "the Office"), representing the State as employer, and the organisations of State employees. The Ministry of Finance has a nominee on the governing board of the Office. 15. The 1965 legislative reform was facilitated by the centralised structure of the Swedish trade union movement; one factor which greatly contributed to its adoption was the conclusion in December 1965 of a Basic Agreement on Negotiations’ Procedure (slottsbacksavtalet) between the Office and the four main trade union organisations of State employees, namely: (i) the State Employees’ Union (Statsanställdas Förbund, abbreviated to SF and known prior to 1 July 1970 as Statstjänarkartellen), (ii) the National Federation of State Employees (SR), (iii) the Swedish Confederation of Professional Associations (SACO), (iv) the Civil Servants Section of the Central Organisation of Salaried Employees (Tjänstemännens Centralorganisations Statstjänstemannasektion, abbreviated to TCO-S). According to the information at the disposal of the Court, these federations represent the large majority of Swedish State employees: more than 450,000 out of the 500,000 whose terms of employment are negotiated by the Office. About forty trade unions are affiliated to these organisations. The few independent trade unions represent only about 2,000 State employees in all. Insofar as they are union members at all, university teachers and army officers generally belong to SACO and SR respectively. These two organisations, which are respectively open to staff possessing a university degree or the school leaving certificate (the equivalent of the baccalauréat), recently merged after the case had been brought before the Commission. According to the trade unions’ own published figures, the number of SACO members in respect of whom the Office conducts collective negotiations was about 48,800 in 1971 and 1972; it rose to 51,800 in 1973 and was between 53,600 and 53,700 at the end of 1974. The university teachers’ union affiliated to SACO had between 1,800 and 1,900 members in 1971, between 1,900 and 2,000 in 1972, between 2,100 and 2,200 in 1973 and between 2,300 and 2,400 at the end of 1974. SR had 19,200 members in 1971, 19,800 in 1972 and about 20,000 at the end of 1973. The army officers’ union affiliated to SR had between 6,900 and 7,000 members in 1971, 7,300 in 1972 and between 7,400 and 7,500 at the end of 1973; it would appear that in August 1975 its membership had fallen to about 7,100 or 7,200. 16. Clause 4 of the above-mentioned Basic Agreement provides that negotiations with a view to concluding a collective agreement shall be conducted on the employees’ behalf by the "main organisation" concerned, unless the Office and the "main organisation" agree otherwise. 17. The Royal Order of 30 June 1965 relating to Certain Public Collective Agreements (KK om vissa statliga kollektivavtal m.m.) includes the following provisions: "Collective agreements as to such conditions of employment or service as are determined by the King-in-Council or by Parliament shall be concluded conditionally on the agreement being sanctioned by the King-in-Council." "An Authority which is bound by a collective agreement shall apply the provisions of the agreement to any employee within the occupational group and region to which the agreement refers, notwithstanding that the employee is not covered by the agreement or by any other applicable collective agreement." 18. Collective agreements in Sweden are normally concluded for a period of two or three years. For various reasons, however, the new collective agreement is often concluded some time after the previous agreement has expired. In such cases, the new agreement has often specifically provided that its terms shall apply retroactively as from the date of expiry of the previous agreement. In the case of a strike during the bargaining period, on the other hand, employers - both in the public and private sector - have customarily refused to grant retroactive benefits in order to deter unions from taking industrial action in the future (application of the principle that "a strike destroys retroactivity"). 19. Negotiations in the public sector of the labour market are centralised in that they are conducted by the federations on behalf of their member unions. Moreover, strikes and other collective action may not be taken by the different trade unions independently but rather on the basis of a decision by, or after receiving the approval of, the federation concerned, which chooses and designates in accordance with its pre-arranged policy or tactics those of its members who are to take part in the action. According to the present practice, the negotiations between the Office and the federations result in one single agreement which regulates the increase in salaries, the grading of different categories of employees, working hours, various salary allowances, etc., and which applies, as a result of Article 4 of the Order referred to above (paragraph 17), to all categories of State employees, including those who are not represented by the federations. The agreement is normally signed by all the federations. The question whether an individual employee has any means of challenging his union’s decision to go on strike is a matter exclusively governed by the internal rules of the union concerned. These may provide for a right to ask for a secret ballot or for other rights to object to the union’s decisions to take industrial action. 20. The law described above at paragraphs 10 to 17 has in recent years undergone various changes which, being subsequent to the facts at issue, are not relevant for the present case. Facts of the particular case 21. In 1969 a global agreement for the years 1969 and 1970 was concluded by the Office and the four federations. When this period expired on 31 December 1970, the parties were still engaged in negotiations regarding the new global agreement. No agreement was reached and a Commission of Conciliation was appointed, but negotiations before it broke down as well. Consequently, SACO and SR proclaimed selective strikes which became effective on 5 February 1971 and involved about 4,000 members. This resort to strike action, which was quite lawful (see paragraphs 11 and 14 above), did not apply to university teachers or the Army so that neither Mr. Schmidt nor Mr. Dahlström took any part in the strikes. The Office retaliated and, on 19 February 1971, about 30,000 members of SACO and SR were locked out. This affected all university teachers belonging to SACO, including Mr. Schmidt, and some officers belonging to SR, but not Mr. Dahlström. New strikes and lock-outs were proclaimed, but did not become effective. On 12 March 1971, an Act was promulgated which gave the King-in-Council power to order the prolongation of certain collective agreements for a period of six weeks, but not extending beyond 25 April 1971, provided that collective industrial action threatened vital public interests. By virtue of this Act the previous collective agreement was reinstated on 13 March 1971 for a period of six weeks and all strikes and lock-outs terminated forthwith. 22. Subsequent negotiations before the Commission of Conciliation resulted in June 1971 in a new global agreement for the years 1971 to 1973. According to this agreement, certain posts were upgraded and the salary scales were generally increased retroactively as from 1 January 1971. Clause 18, however, provided for an exception in this respect: "Officials who were members between 1 January and 12 March 1971 (or any part of this period) of organisations that organised industrial action for any part of this period, shall not be entitled from 1 January to 12 March 1971 to the increased wage benefits applicable under the agreement, unless the Collective Bargaining Office decides otherwise. This declaration also concerns other officials if they took part in any such industrial action." 23. The agreement was only signed by TCO-S and SF. SACO and SR refused since they considered the terms unacceptable. The agreement, and in particular clause 18, was nevertheless applied to their members by virtue of Article 4 of the above-mentioned Royal Order (paragraph 17). According to the applicants, during the negotiations SF and TCO-S had urged that the non-retroactivity clause should not be included in the agreement and expressed the opinion that it properly belonged to an agreement between the State and the two organisations concerned, SACO and SR. SF and TCO-S declared this expressly and inserted a reservation in the record before putting their signatures to the agreement. TCO-S had, however, attempted to entice to itself some members of SACO, which was in its opinion a purposeless organisation, and had in fact written to the applicant Schmidt in this vein. 24. As a result of the agreement, members of SACO and SR, insofar as they were upgraded, did not receive the higher salary for the period from 1 January 1971 to 12 March 1971, nor did they benefit from the general increase in the salary scales during the same period, regardless of whether or not they had been on strike. State employees who were not members of SACO or SR but who had all the same participated in the strike, were also refused the benefit of retroactivity. The exception clause applied to both applicants as members of SACO and SR, even though they themselves had not gone on strike at all. Mr. Schmidt was affected for the period from 1 January to 19 February 1971, being the date when he was locked out and thus deprived of his salary. Mr. Dahlström, who was upgraded under the new agreement, was affected for the whole period up to 12 March 1971. During these periods the applicants performed work for a lower salary than that paid to other employees who were in the same salary brackets but not members of SACO or SR. Their financial losses amounted to Kr. 300 and Kr. 1,000 respectively. 25. Mr. Schmidt, following the conclusion of the collective agreement, gave notice to the Office that, through his special treatment in regard to wages, his right to organise had been violated. When the Office nevertheless refused him the benefit of retroactivity, SACO and SR brought an action against the State before the Labour Court under the 1936 Act on the Right to Organise and Negotiate, seeking on behalf of the applicants (and a third person who was also a member of SR), inter alia: (i) a declaration that the measures taken by the Office constituted a violation of the applicants’ right to organise and that this involved an interference with the affairs of SACO and SR; (ii) a declaration that clause 18 of the agreement of June 1971 was of no effect in regard to the applicants; (iii) an order that the State pay compensation to the applicants for financial loss and infringement of their right to organise. SACO and SR asserted that the State had infringed their members’ right to organise as guaranteed in Section 3 of the 1936 Act since, with regard to retroactive wage benefits, they were subjected to special treatment in comparison with members of TCO-S and SF and non-union officials. The Office denied any such infringement since members of SACO and SR had been refused the benefit of retroactivity only for the reason that the State wanted to maintain the principle that "a strike destroys retroactivity". A comparison between SACO and SR members, on the one side, and members of TCO-S and SF and non-union officials, on the other, did not provide any basis for the conclusion that the State acted on such a basis or with such a purpose as was envisaged by Section 3 of the 1936 Act. 26. In its judgment of 22 December 1971, the Labour Court unanimously rejected the claim of the applicants’ unions. The Court first confirmed the parties’ common view that the right to organise did not exclude the possibility for the State to enforce the principle that a strike destroys retroactivity. The adoption of such a position, and its enforcement after a conflict, were not to be regarded in themselves as an attack on the right to organise. Furthermore, the employer’s duty to respect this right did not include any obligation in principle to pay equal wages to union and non-union employees or to members of different organisations. The mere fact that different wages were accorded to different groups of employees did not by itself lead to the conclusion that a measure violating Section 3 had been employed. However, any favouring either of members of the organisation which reached agreement or of non-union employees, with the aim of exercising against the members of the other organisation the type of pressure envisaged in Section 3, would constitute a violation of that provision. The Court then found that no such purpose on the part of the State could be established. In particular, no support had appeared for the idea that the State intended to induce members of SACO and SR to switch over to TCO-S and SF. In this context, the Court assumed that the latter organisations would also have been refused retroactivity if they had organised industrial action during the process of negotiations. With respect to non-union employees the Court found that the reason why they were granted a special benefit had nothing to do with their position as being non-union. Any procedure designed to refuse the benefit of retroactivity generally to non-union employees in sectors where SACO and SR were dominant or representative obviously could have become very complicated and time-consuming. Moreover, no recognised norms existed for determining such sectors, and the concept of representation was ambiguous and disputed. The Court then referred to the State’s failure to negotiate an agreement which would exclude retroactivity to all non-union employees within the sectors in which SACO and SR were representative. In this respect the Court considered that the facts of the case did not support the conclusion that this failure showed any intention on the part of the State to violate the right to organise. Otherwise, the State would, as soon as one federation organised industrial action, be barred from upholding the principle that a strike destroys retroactivity in any other way than by refusing retroactive validity for agreements concluded with respect to all employee organisations. Such a general limitation of the State’s possibilities of upholding the principle could not be based on Section 3 of the 1936 Act. In the case before it, the Court did not consider the granting of retroactive benefits to non-union employees who had not been on strike as proof of any purpose to violate the right to organise. In the Court’s opinion, the parties had not been able to present anything more than quite uncertain information on the total number of non-union officials or on their field of employment. The Court indicated that the plaintiffs’ view concerning the State’s purpose in its treatment of non-union officials might have appeared more reasonable if it had been possible to show that the large majority of non-union officials were active within the main field of activity of SACO and SR. Conversely, it would be less reasonable to take notice of the treatment of the group of non-union officials if these could primarily be classified within the field of recruitment of SF and TCO-S. The uncertainty in regard to these circumstances argued, in the Court’s conclusion, in favour of the States declaration that its purpose did not extend beyond upholding the principle that a strike destroys retroactivity. 27. In their application, lodged with the Commission on 9 June 1972, the applicants complained that in the particular circumstances the implementation of the Government’s policy regarding payment of retroactive benefits had amounted to preferential treatment, in particular in comparison with non-union employees, and had consequently violated Article 11 (art. 11) of the Convention. The Commission declared the application admissible by a decision of 18 October 1972. During the examination of the merits, the applicants relied on Article 11 (art. 11) and also Article 14, read in conjunction with Article 11 (art. 14+11). 28. In its report of 17 July 1974, the Commission: (i) confirmed its opinion, previously expressed in the report in the Swedish Engine Drivers’ Union case, that Article 11 para. 1 (art. 11-1) may legitimately extend to cover State responsibility in the field of labour-management relations and thus to provide some protection for unions against interference by employers; (ii) expressed the opinion: - by nine votes to one with one abstention, that the Government’s policy of denying retroactive benefits to non-striking members of belligerent unions did not in the circumstances infringe the applicants’ right, under Article 11 para. 1 (art. 11-1), to form and join the trade unions; - that in view of the preceding finding, the Commission was not called upon to examine whether the action complained of was justified under Article 11 para. 2 (art. 11-2); - by eight votes to one with two abstentions, that the differential treatment complained of was in the circumstances justified as an industrial relations policy and that there had been no violation of Article 14 read in conjunction with Article 11 para. 1 (art. 14+11-1). The report contains a separate concurring opinion.

dev

001-110461

ENG

POL

COMMITTEE

CASE OF TOMCZYKOWSKI v. POLAND

No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

George Nicolaou;Ledi Bianku;Vincent A. De Gaetano

5. The applicant was born in 1962 and lives in Lublin. 6. By a judgment of 19 November 2003 the Lublin Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision of 25 March 2003 by which the second-instance authority had refused to acknowledge that the applicant’s ailment was of an occupational character. 7. This judgment was served on the applicant on 27 January 2004. 8. On 27 February 2004 the applicant requested to be granted legal aid. 9. On an unspecified date the Lublin Bar Association refused to assign a lawyer to the case. Subsequently, on 26 March 2004 it allowed the applicant’s request after the Supreme Administrative Court had instructed it that it had no right to refuse. 10. On 19 November 2004 the lawyer assigned to the case had effective access to the case-file. On 1 December 2004 the lawyer lodged a cassation appeal together with a request for retrospective leave to appeal out of time with the Lublin Administrative Court. 11. By a decision of 1 April 2005 that court rejected the cassation appeal. It noted that the seven-day time-limit for lodging a request for leave to appeal out of time had started, at the latest and if counted in a manner most advantageous to the applicant, on the day when the legal-aid lawyer had had an opportunity to have effective access to the case file. In the present case that time-limit had started to run on 19 November 2004, while the request had been lodged with the court on 1 December 2004. It had therefore to be rejected for failure to comply with the time-limit. 12. The lawyer appealed. On 1 April 2005 the Supreme Administrative Court upheld the contested decision and shared the legal view expressed by the regional court. 13. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 1221, 14 September 2010. 14. In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination. 15. When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legallyaided party to submit the appeal together with a request for leave to appeal out of time made under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007). 16. In a number of its recent decisions the Supreme Administrative Court acknowledged the difficulties which legally-aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed relevant caselaw of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case. The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legalaid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009).

dev

001-5957

ENG

GBR

ADMISSIBILITY

REID v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicant, Michael Reid, is a United Kingdom national, born in 1969 and living in Romford, Essex. He is represented before the Court by Mr S. Marine, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. In his statement of 16 February 1988, taken by the police, R. had stated that a gold chain had been stolen from him by a person who he knew as Michael Reid. He described Michael Reid as “about 5’ 10’’ he has got a flat top afro hair and is slim”. On 17 February 1988, the applicant was arrested and charged with robbing R. of his gold chain. In an interview with the police the same day, he had admitted that he had been at the premises known as “Bee-Jays” when the incident occurred on 7 February 1988. He alleged that another man called “Blue” had taken the chain and that he had talked to R., saying that he would try to get it back for him. On 18 February 1988, the applicant was remanded in custody. On 29 March 1988, the committal proceedings took place before the Ilford Magistrates Court. The charges were read and explained to the applicant, who was represented. R. gave evidence and described the person who robbed him as being black, pretty tall and having a flat-top hair cut. He however stated that, “At the time I didn’t know the person who robbed me; I’d never seen him before at that time.” Questions were put to R. in cross-examination by the applicant’s counsel. The applicant was asked whether he wished to say anything in answer to the charge, to which he made no reply. The applicant was also given an opportunity to give evidence and to call witnesses. He did not do so. The applicant was committed for trial and detained on remand by order of the magistrates. On 4 July 1988 at the trial at Snaresbrook Crown Court, prosecuting counsel from the Crown Prosecution Service (“CPS”) offered no evidence in support of the prosecution. According to the statement of claim issued by the applicant in later civil proceedings, prosecuting counsel informed the court that he had only just received the papers and that there were problems with them, referring to the identification of the applicant. After a short adjournment he asked for time to take a further statement from the victim R. He then returned to the court and offered no evidence against the applicant. The applicant was released from custody. On 6 June 1994, the applicant issued proceedings against the CPS claiming damages for negligence. He alleged that the prosecution had failed to take reasonable care in assessing whether there was, at the committal proceedings on 29 March 1988, sufficient evidence against the applicant. On 3 January 1995 the CPS issued an application to strike out the applicant`s claim on the ground that it disclosed no reasonable cause of action. On 9 June 1995 a Deputy High Court Judge struck out the applicant`s statement of claim as disclosing no reasonable cause of action, following the Court of Appeal`s case-law to the effect that there was no general duty of care owed by the Crown Prosecution Service in relation to its prosecutions (Elguzouli-daf v. the Commissioner of Police for the Metropolis [1995] QB 335, see below in Relevant Domestic Law and Practice). The judge was of the opinion that the applicant`s case involved "a point of law of general importance" and issued a certificate, pursuant to Section 12(3)(b) of the Administration of Justice Act 1969 entitling the applicant to "leapfrog", i.e. to petition the House of Lords directly. On 24 July 1995 the applicant petitioned the House of Lords for leave to appeal. Leave to appeal was refused on 30 November 1996. In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing that: – damage to the claimant was foreseeable; – the claimant was in an appropriate relationship of proximity to the defendant; and – it is fair, just and reasonable to impose liability on the defendant. These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. In the case of Elguzouli-daf v. the Commissioner of Police for the Metropolis [1995] QB 335, the Court of Appeal decided that no duty of care in negligence was owed by the Crown Prosecution Service (“CPS”) to defendants in fulfilling its statutory duty in prosecuting crime. The case concerned two plaintiffs, who had been arrested, charged and arrested in custody for serious offences and after periods of 22 and 85 days respectively the CPS had discontinued the proceedings against them. They had instituted proceedings against the CPS claiming inter alia that the CPS had been negligent in failing to act with reasonable diligence in concluding that they were either innocent/or the prosecution bound to fail. The claims were struck out by the judge on the basis that they disclosed no reasonable cause of action. Their appeals to the Court of Appeal were dismissed. In the leading judgment, Lord Justice Steyn referred to the three criteria laid down in Caparo (cited above) and had regard to the considerations as to whether the CPS should be treated differently in tort from private citizens and corporations. He noted that the CPS was a public law enforcement agency acting for the public as a whole and that, having regard to the torts of malicious prosecution and misfeasance in public office, a citizen aggrieved by a prosecutor’s decision had potentially extensive private law remedies for a deliberate abuse of power. “That brings me to the policy factors which, in my view, argue against the recognition of a duty of care by the CPS to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors of their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. It would generate a great deal of paper to guard against the risks of law suits. The time and energy of CPS lawyers would be diverted from concentrating on their prime function of prosecuting offenders. That would be likely to happen not only during the prosecution process but also when the CPS is sued in negligence by aggrieved defendants. The CPS would be constantly enmeshed in an avalanche of interlocutory civil proceedings and civil trials. That is a spectre that would bode ill for the efficiency of the CPS and the quality of our criminal justice system. … Recognising that individualised justice to private individuals or trading companies who are aggrieved by careless decisions of CPS lawyers militates in favour of the recognition of a duty of care, I concluded that there are compelling considerations, rooted in the welfare of the whole community, which outweigh the dictates of individualised justice. I would rule that there is no duty of care owed by the CPS to those it prosecutes. In so ruling I have considered whether a distinction between operational and discretionary lapses, with potential liability in the former but not the latter, should be made. Whatever the merit of such a distinction in other areas of the law, I would reject it in regard to the CPS as impractical and unworkable and not capable of avoiding the adverse consequences for the CPS on which I have rested my decision. Subject to one qualification, my conclusion that there is no duty of care owed by the CPS to those it prosecutes is intended to be of general application. The qualification is that there may be cases of which Welsh v. the Chief Constable for the Merseyside Police [1993] 1 All E.R. 692 was an example, where the CPS assumes by conduct a responsibility to a particular defendant… And it is trite law that such an assumption of responsibility may generate legal duties. …” At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”. In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action. The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law. The CPS is a statutory public law enforcement agency set up by the Prosecution of Offences Act 1985 to prosecute criminal offences. It is an autonomous and independent body which reviews police decisions to prosecute and conducts prosecutions on behalf of the Crown. The CPS is headed by the Director of Public Prosecutions (“the DPP”) and is answerable to Parliament through the Attorney General. The conduct of Crown Prosecutors is regulated by the Code for Crown Prosecutors, issued under section 10 of the 1985 Act. Paragraph 10 provides that review of the police decision to prosecute is a continuing process, so that Crown prosecutors are required to take into account any change in circumstances. Before bringing a prosecution, a Crown prosecutor had, at the relevant time, to be satisfied that it fulfilled two sets of criteria set out in the code, firstly concerning evidential sufficiency and, secondly, concerning the public interest. The first required that that a Crown Prosecutor be satisfied that there was enough evidence to provide a “realistic prospect of conviction”. This involved an assessment whether a jury or bench of magistrates, properly directed in accordance with law, would be more likely than not to convict the defendant of the charge alleged. The Crown Prosecutor was required to draw on his experience of how the evidence was likely to “stand up” (paragraph 6). Under the public interest criteria, the Crown Prosecutor had, inter alia, to consider the very serious harm the stigma of a conviction could cause very young adults and take into account any change in the complainant/victim’s attitude, e.g. the expression of a wish, after the initial complaint, that no action should be taken (paragraphs 8(iii), 8(vii) and 20ff).

dev

001-22517

ENG

FRA

ADMISSIBILITY

ABRIAL and OTHERS v. FRANCE

Inadmissible

The applicants are French nationals. They are all members of the French Association of Holders of Russian Bonds (“AFPER”), which has more than 15,000 members. They were represented before the Court by Mr M. de Guillenchmidt, a lawyer practising in Paris. Between 1822 and 1914 some two million French families purchased bonds issued by the Russian State for a total sum of approximately twelve billion gold francs, which represented a capital of 3,480 tons of gold. In 1892 the French Government allowed the bonds to be listed on the Paris stock exchange. In a decree of 14 January 1918 the Soviet Central Committee decided to cancel all the bonds issued by the tsarist regime. As soon as the Soviet Government took power – and over the following years – the French Government promised on a number of occasions to press the bondholders’ claims. After the signing of the Treaty of Versailles France secured the re-assignment to itself of forty-seven tons of gold, which was part of the gold paid by Russia to Germany under the Treaty of Brest-Litovsk. In a statement made to the Senate on 9 April 1924 the Prime Minister declared that the said gold had been definitively made over to France in reduction of Russia’s debt. In 1929 the French State held 648,000,000 gold francs worth of Russian bonds in France. In 1963 the above-mentioned forty-seven tons of gold were officially assigned to reducing Russia’s debt to France. In a treaty of 29 October 1990 the French and Soviet Governments undertook to solve their financial dispute quickly. That treaty was not ratified, however. In 1992, when the Russian regime changed, the French authorities initiated negotiations again. An agreement of 7 February 1992, which was ratified but not applied, set out a solution to the dispute relating to the financial and material aspects of the property and interests of individuals and legal entities in both countries. In a memorandum signed 26 November 1996 the Government of the Federation of Russia undertook to pay 400,000,000 dollars (approximately 2.4 billion francs) in eight six-monthly instalments. Under the terms of that agreement “The Government of the French Republic and the Government of the Federation of Russia agreed the following: The Government of the Federation of Russia shall pay the Government of the French Republic the sum of 400,000,000 US dollars in full and final settlement of mutual debts between France and Russia accumulated prior to 9 May 1945. The sum shall be paid as follows: eight six-monthly instalments of 50,000,000 US dollars payable on 1 February and 1 August 1997, 1998, 1999 and 2000. Neither the French party nor the Russian party shall, on their own behalf or on behalf of French or Russian natural and legal persons, present to each other or support in any way any financial debts or debts in rem whatsoever accumulated prior to 9 May 1945. All the debts shall be deemed to have been fully and finally settled by payment of the entire sum referred to in the present memorandum. The parties agree that, on the basis of the present memorandum, they shall reach an agreement as soon as possible on the payment of France and Russia’s mutual debts.” According to the applicants, that sum was less than 1% of the debts converted to current value. By Decree no. 97-134 of 12 February 1997 a “monitoring commission” was set up within the Conseil d’Etat with the task of proposing to the Government a means of identifying the qualifying bondholders according to the Franco-Russian basis and agreements, a method of assessing the value of the qualifying bonds and arrangements for paying compensation. On 27 May 1997 a supplementary agreement was signed between the French Government and the Russian Government. Article 1 of that agreement listed the Russian debts which France agreed to waive and Article 2 listed the French debts in respect of which Russia undertook to make no further claim. Article 3 set out the arrangements for repayment by Russia of its debts as established in the 1996 memorandum. Article 4 added that all the debts would be deemed to have been fully and finally settled by the payment of the entirety of the sum referred to. Article 5 provided that on the date of entry into force of the agreement neither of the parties would take action against the other on the basis of any financial debts or debts in rem whatsoever accumulated prior to 9 May 1945. On 11 June and 1 August 1997, Russia paid the first two instalments provided for in the agreement in a total sum of 100,000,000 dollars. Further instalments were sent to France in 1998, on 3 February and 4 August 1999 and, lastly, in February 2000, amounting to seven instalments in all. In a government Bill (no. 229) filed on 24 September 1997, the Prime Minister acknowledged, in the statement of reasons, that the Franco-Russian agreements of 26 November 1996 and 27 May 1997 did not include any provision for others and produced no effects for the rights of third parties. On 20 November 1997 the National Assembly adopted a Bill, which was also adopted by the Senate on 10 December 1997, authorising approval of the above-mentioned agreements. In a Law of 19 December 1997 (no. 97-1160) Parliament authorised the ratification of those agreements. Section 73 of Law no. 98-546 of 2 July 1998 and the Implementing Decree no. 98-552 of 3 July 1998 provided that the number of bondholders should be identified. This was done over a period of six months from the date of entry into force of the decree. On 9 February 1999 the provisional results obtained by the Ministry of the Economy, Finance and Industry showed 132,440 declarations in respect of a total of 3,760,98 bonds. On 23 March 1999 the Minister for the Budget stated that the number of bondholders was, to be more precise, 135,620 and the number of bonds 3,822,549. On 9 July 1999 the Ministry of the Economy, Finance and Industry declared that the number of bondholders stood at 300,000 and that there were more than 9,000,000 bonds. According to the applicants, those figures were inaccurate. Their attempts to obtain clarification of this point remained fruitless. On 13 October 1999 the association representing the applicants (the AFPER) served official notice on the Minister for the Economy, Finance and Industry to publish, département by département, a monthly breakdown of the results of the survey, the number of bonds per category, a breakdown of the four thousand types of qualifying bonds taken into account and justification for the increase in the number of holders and bonds as compared to the figures given at the end of March. On 2 May 2000 an identical notice was served on the new Minister for the Economy, Finance and Industry. On 26 July 1999 the AFPER served formal notice on the Federation of Russia to pay the sum of nine billion francs in honour of its debt plus interest. On 27 August 1999 the embassy of the Russian Federation replied as follows: “In accordance with the memorandum of agreement of 26 November 1996 between the Government of the French Republic and the Government of the Federation of Russia regarding final settlement of mutual financial debts and debts in rem accumulated before 9 May 1945, the French party undertook not to submit to its Russian counterpart, either on its own behalf or on the behalf of French natural or legal persons, or to support in any other manner financial debts or debts in rem of any kind accumulated prior to 9 May 1945. The legal summons ... and service thereof on the embassy of the Federation of Russia constitute a breach of the above-mentioned undertakings. It is for the French party to explain the above-mentioned provisions to the natural and legal persons concerned and to the courts in order to prevent any further misunderstandings in future.” Various other legal actions instituted in France were equally unsuccessful. On 18 December 1998 various bondholders applied to the judge of the Versailles tribunal de grande instance responsible for the execution of judgments for registration of a legal charge on real property situated in France belonging to the Russian State. In an order of 23 April 1999 the judge found that the bondholders’ claims were valid in theory. He considered that the debt subsisted and “was of undeniable public interest” despite payment of the sum of 400,000,000 dollars. However, he refused to charge the property in question because it was protected by diplomatic immunity. On 19 September 1999 some members of the APFER lodged an application with the judge of the Paris tribunal de grande instance responsible for the execution of judgments for registration of a provisional interim legal charge on shares of the Banque commerciale pour l’Europe du Nord. However, that application was also dismissed on the ground that “the principle of the applicant’s claim cannot be considered valid ... it cannot be inferred from the Russian State’s inertia that recovery of the debt is in jeopardy”. In a judgment of 30 March 1966 the Conseil d’Etat acknowledged that the public authorities were liable for the loss which international agreements to which the State was a party might occasion for individuals. In the Compagnie générale d’énergie radio-électrique case, the applicant, whose property had been requisitioned by the German army, claimed to be entitled to compensation from the French State on the basis that there had been a breach of equality vis-à-vis public burdens as a result of the signing by the French Government of international agreements which prevented it until an unspecified date from pursuing its claim against the German State. The Conseil d’Etat held that “the responsibility of the State is liable to be engaged on the basis of equality of citizens vis-à-vis public burdens to ensure that loss arising from agreements signed by France with other States and lawfully incorporated into domestic law is compensated, on condition that neither the Convention itself nor the Act authorising its ratification may be construed as having intended to exclude any compensation and that the loss in respect of which compensation is claimed is sufficiently serious and is individual in nature”. The Conseil d’Etat concluded that the condition relating to individuality had not been fulfilled “having regard to the generality of the above-mentioned agreements and the number of French citizens who were victims of damage analogous to the damage alleged by the applicant company” (Recueil du Conseil d’Etat, p. 257). On 18 May 1992 the National Group for the Defence of Holders of Russian bonds (“GNDPTR”), which was a different association of holders of Russian bonds from the one of which the applicants were members, had sued the French State in the Paris Administrative Court for compensation for bondholders. On 17 December 1993 the Administrative Court dismissed the application for the following reasons: “The applicant association seeks to establish responsibility on the part of the State on account of the conduct of the French authorities, who allegedly refused to engage in negotiations with the Soviet State and the succeeding States with a view to compensating its members; the Government’s decisions in that area are inextricably linked to the conduct of international relations between the two Governments; accordingly, the pleadings referred to above raise a question which, by its nature, is not a subject for contentious proceedings. The provisions of Article 1 of Protocol No. 1 to the European Convention on Human Rights cannot usefully be relied upon where the interference or compliance with the right guaranteed by that Article are not imputable to the French State; similarly, a breach of the provisions of Article 14 of the said Convention combined with Article 1 of Protocol No. 1 cannot usefully be relied upon... Lastly, the loss in respect of which the applicants seek compensation arises as a result of an act of a foreign State and cannot engage the responsibility of the French State even in the sphere of equality vis-à-vis public burdens; in any event, having regard to the risks attached to the realisation of financial operations with a foreign State, the damage in respect of which compensation is sought cannot be deemed to be abnormal or special...”

dev

001-73067

ENG

RUS

ADMISSIBILITY

KOLOTKOV v. RUSSIA

Inadmissible

Christos Rozakis

The applicant, Mr Mikhail Anatolyevich Kolotkov, is a Russian national who was born in 1972 and lives in Moscow. The respondent Government were represented by Mr P.A. 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 was a civil servant in the Federal Ministry of Foreign Affairs. From 1998 to May 2001 he was assigned to the Russian embassy in the Republic of Uganda as an attaché. By an order of 17 July 2001 he was dismissed from the Ministry of Foreign Affairs on the ground of expiration of the term of his labour contract. On 30 July 2001 the applicant brought proceedings for reinstatement. On 19 October 2001 the Presnenskiy District Court of Moscow found that the applicant had been employed for an indefinite period and that his dismissal had, therefore, been unlawful. It ordered the respondent Ministry to reinstate him in his post of an attaché at the Russian embassy in Uganda and update his labour records accordingly. It stated that the judgment was subject to immediate enforcement. The Ministry appealed against the judgment. On 18 December 2001 the Moscow City Court rejected the Ministry’s appeal and upheld the judgment which came into force on the same day. On 9 November 2001 the Ministry ordered the applicant’s reinstatement in his post in accordance with the judgment of 19 October 2001. However, as the three-year term of his assignment in Uganda had been expired and no extension was possible the applicant was offered, in January 2002, posts of an attaché available in the central office of the Ministry in Moscow. He refused to accept the offers and requested the continuation of his work in the capacity of an attaché at the embassy in Uganda. On 25 April 2002 he applied to the bailiff requesting the enforcement of the judgment. On 6 May 2002 the bailiff brought enforcement proceedings. By an order of 16 May 2002 the applicant was appointed an attaché at the historical and documentary department of the central office of the Ministry as of 15 January 2002. He refused to assume his office. By letters of 16, 22 and 28 May 2002 the Ministry informed the bailiff of their efforts to enforce the judgment and to settle the situation with the applicant’s employment. They explained, inter alia, with reference to the applicable legislation and the rules of rotation of diplomatic staff that there was no legal basis for the applicant’s continued service in the embassy in Uganda. By an order of 15 August 2002 the Ministry dismissed the applicant on the ground of his refusal to work. On 3 October 2002 the bailiff imposed a fine on the head of the personnel department of the Ministry for his failure to enforce the judgment. The Ministry challenged the bailiff’s decision in the District Court which on 28 November 2002 stayed the enforcement proceedings pending its decision. The applicant’s request to join the proceedings and his appeal against the decision to stay the enforcement were rejected. On 3 June 2003 the District Court found the bailiff’s decision imposing the fine lawful. On 15 August 2003 the Ministry quashed their order of 15 August 2002 on the applicant’s dismissal and ordered his reinstatement with his place of work in the central office of the Ministry. The applicant was paid remuneration for the preceding period and compensation for the late payment. On 29 August 2003 the Ministry fixed the applicant’s remuneration which included an allowance for his diplomatic rank of an attaché and an allowance for work with information involving State secret. By a decision of 11 September 2003 the bailiff discontinued the enforcement proceedings in view of the enforcement of the judgment. On 15 September 2003 the applicant appealed against the bailiff’s decision to discontinue the proceedings. On 31 October 2003 the District Court rejected the applicant’s appeal and upheld the bailiff’s decision. It found that the term of the applicant’s assignment to the embassy in Uganda had expired on 10 May 2001 and that thereafter the Ministry had provided him with work in its central office in accordance with the labour law requirements. It held that the judgment of 19 October 2001 as upheld on 18 December 2001 had been fully enforced. On 2 March 2004 the Moscow City Court upheld the judgment of 31 October 2003. On 2 December 2002 the applicant brought an action challenging the Ministry’s order of 15 August 2002 by which he had been dismissed on the ground of his refusal to work. On 22 September 2003 the Presnenskiy District Court of Moscow found for the applicant. The enforcement proceedings were brought on 3 October 2003 and discontinued on 14 October 2003 in view of the applicant’s actual reinstatement. The applicant’s appeal to the District Court against the termination of the enforcement proceedings is pending. The judgment of 22 September 2003 was upheld on appeal by the Moscow City Court on 26 January 2004. On 3 November 2003 the applicant was dismissed from the Ministry on the ground of his absence from work. On 20 November 2003 he brought proceedings in the Presnenskiy District Court of Moscow to challenge his dismissal. On 15 June 2004 the District Court found for the Ministry. The applicant lodged an appeal against the judgment. The proceedings are pending. On 29 July 2001 the applicant brought proceedings claiming pecuniary and nonpecuniary damages caused by his dismissal in July 2001. On 19 November 2001 the Presnenskiy District Court of Moscow stayed the proceedings pending the outcome of the first set of proceedings concerning the applicant’s reinstatement. On 8 July 2002 the District Court granted the applicant’s claims in part and ordered the Ministry of Foreign Affairs to pay the applicant 12,548 roubles (“RUR”) in damages, including the applicant’s salary for the period between the date of his dismissal in July 2001 and 19 October 2001. On 10 July 2002 the District Court corrected the judgment stating that the amount awarded to the applicant was RUR 12,595.11. On 22 August 2002 the Moscow City Court dismissed the applicant’s appeal and upheld the judgment. On 10 October 2002 the applicant applied for the enforcement of the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002. On 24 October 2002 the bailiff brought enforcement proceedings. The Ministry considered that the applicant should have submitted the writ of execution to the Federal Treasury in accordance with the procedure provided by the applicable legislation. On 17 June 2003 the bailiff ordered that the Ministry’s money on their bank account be seized in order to enforce the judgment. Following the Ministry’s appeal against the bailiff’s decision, on 7 July 2003 the District Court stayed the enforcement proceedings. By a decision of 18 March 2004 the District Court quashed the bailiff’s decision of 17 June 2003 as unlawful. On 3 March 2003 the applicant lodged a request for reopening the case in view of newly-discovered circumstances. On 3 September 2003 the Presnenskiy District Court of Moscow granted the applicant’s request, quashed the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002, and ordered a fresh examination of the case. On the same day the District Court granted the applicant’s request for withdrawing the writ of execution issued in respect of the judgment of 8 July 2002, as amended on 10 July and upheld on 22 August 2002. Hearings listed for 17 September and 12 October 2004 did not take place since the applicant, who had been duly notified of the hearings, had failed to appear. On the latter date the Presnenskiy District Court of Moscow ordered that the case not be examined on the ground of the applicant’s failure to appear in court. The applicant did not appeal and the decision became final on 22 October 2004. On 14 March 2002 the applicant brought proceedings claiming his remuneration and damages for the period after 19 October 2001. On 25 July 2002 the District Court granted his claims in part and ordered the Ministry to pay him RUR 13,478.56 covering the salary arrears for the period between 19 October 2001 and 25 July 2002. Following the applicant’s appeal the Moscow City Court quashed the judgment on 26 September 2002 and remitted the case to the firstinstance court for a fresh examination. In November 2002 the applicant submitted new claims for the payment of his salary until then. In January 2003 he requested to seize the Ministry’s bank accounts. The request was dismissed by a final decision of the Moscow City Court of 18 February 2003. In October 2003 the applicant submitted new claims concerning his salary arrears. The proceedings are pending. The applicant also brought other proceedings concerning his disputes with his employer. Thus, on 23 August 2002 the applicant lodged an application with the Constitutional Court of Russia challenging the constitutionality of the Government’s regulations which laid down terms and conditions of service for State employees abroad. On 16 September 2002 the secretariat of the court informed the applicant that the court did not have jurisdiction to examine the constitutionality of by-laws, that it dealt exclusively with the issues of the constitutionality of laws, and that therefore his application could not be examined. On 19 September 2002 the applicant lodged an application before the Supreme Court of the Russian Federation challenging the lawfulness of the same regulations. On 22 January 2003 the Supreme Court terminated the proceedings because the Government had quashed the regulations in issue. The applicant’s appeal was dismissed on 3 April 2003.

dev

001-82580

ENG

TUR

CHAMBER

CASE OF HASAN AND EYLEM ZENGİN v. TURKEY

Violation of P1-2;No separate issue under Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

6. Hasan Zengin, who was born in 1960, and his daughter Eylem Zengin, who was born in 1988, live in Istanbul. At the time Mr Zengin lodged the application on his own and his daughter's behalf, she was attending the seventh grade of the state school in Avcılar, Istanbul. 7. Hasan Zengin stated that his family were adherents of Alevism. 8. Alevism originated in central Asia but developed largely in Turkey. Two important Sufis had a considerable impact on the emergence of this religious movement: Hoca Ahmet Yesevi (12th century) and Haci Bektaşi Veli (14th century). This belief system, which has deep roots in Turkish society and history, is generally considered as one of the branches of Islam, influenced in particular by Sufism and by certain pre-Islamic beliefs. Its religious practices differ from those of the Sunni schools of law in certain aspects such as prayer, fasting and pilgrimage. 9. According to the applicant, Alevism is a belief or philosophy influenced by other cultures, religions and philosophies. It represents one of the most widespread faiths in Turkey after the Hanafite branch of Islam. It advocates close contact with nature, tolerance, modesty and love for one's neighbour, within the Islamic faith. Alevis reject the sharia (code of laws in orthodox Islam) and the sunna (forms of behaviour and formal rules of orthodox Islam) and defend freedom of religion, human rights, women's rights, humanism, democracy, rationalism, modernism, universalism, tolerance and secularism. Alevis do not pray by the Sunni rite (in particular, they do not comply with the obligation to pray five times daily) but express their devotion through religious songs and dances (semah); they do not attend mosques, but meet regularly in cemevi (meeting and worship rooms) for ritual ceremonies. Equally, Alevis do not consider the pilgrimage to Mecca as a religious obligation. They believe that Allah is present in each person. According to Alevism, Allah created Adam in his image and all his manifestations in this world are in human form. Allah is neither in the sky nor in paradise, but in the centre of the human heart. 10. On 23 February 2001 the applicant submitted a request to the Provincial Directorate of National Education (“the Directorate”) at the Istanbul Governor's Office, seeking to have his daughter exempted from religious culture and ethics classes. Pointing out that his family were followers of Alevism, he stressed that, under international treaties such as, for example, the Universal Declaration of Human Rights, parents had the right to choose the type of education their children were to receive. In addition, he alleged that the compulsory course in religious culture and ethics was incompatible with the principle of secularism. 11. On 2 April 2001 the Directorate replied that it was impossible to grant the exemption request. In particular, it stated: “... Article 24 of the Constitution states that 'Education and instruction in religion and ethics shall be conducted under State supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual's own desire, and in the case of minors, to the request of their legal representatives.' Article 12 of the State Education Act (Law no. 1739) ... provides that 'secularism shall be the basis of Turkish national education. Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools, and in schools of these levels.'” For these reasons, your request cannot be granted.” 12. Following the Directorate's refusal, the applicant applied to the Istanbul Administrative Court for judicial review. He alleged that the compulsory classes in religious culture and ethics were essentially based on the fundamental rules of Hanafite Islam and that no teaching was given on his own faith. He challenged, inter alia, the compulsory nature of this school subject. 13. In a decision of 28 December 2001, the Administrative Court dismissed the applicant's request, holding, inter alia: “Article 24 of the Constitution has established that religious culture and ethics are among the compulsory subjects taught in primary and secondary schools, and section 12 of Law no. 1739 [states] that religious culture and ethics are among the compulsory subjects taught in primary and upper secondary schools of the equivalent level. In this context, the dismissal of the plaintiff's request is not contrary to the law...” 14. The applicant appealed on points of law against that judgment, relying, inter alia, on the Convention. 15. In a judgment of 14 April 2003, served on 5 August 2003, the Supreme Administrative Court dismissed his appeal and upheld the first-instance judgment, holding that the latter complied with the procedural rules and the legislation. 16. Article 24 of the Constitution, in so far as relevant, provides: “1. Everyone has the right to freedom of conscience, religious belief and conviction. 2. Acts of worship, religious services, and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14. 3. No one shall be compelled to worship, or to participate in religious ceremonies and rites, to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions. 4. Education and instruction in religion and ethics shall be conducted under State supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual's own desire, and in the case of minors, to the request of their legal representatives. 5. No one shall be allowed to exploit or abuse religion or religious feelings, or things held sacred by religion, in any manner whatsoever, for the purpose of personal or political influence, or for even partially basing the fundamental, social, economic, political, and legal order of the State on religious tenets.” 17. Section 12 of the State Education Act (Law no. 1739) provides: “Secularism is the basis of Turkish state education. Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools and in schools of an equivalent level.” 18. On 9 July 1990 the Supreme Council for Education adopted a decision on religious culture and ethics classes and pupils who were entitled to exemption from them. It stated: “Following the proposal by the Ministry of Education, pupils of Turkish nationality who belong to the Christian or Jewish religions and who attend primary and secondary schools, with the exception of schools for minorities, are not obliged to follow the classes in religious culture and ethics, provided they affirm their adherence to those religions. If, however, such pupils wish to attend such classes, they must submit a written request from their legal representative.” 19. At the hearing the Government explained that this exemption procedure could be extended to other religious or philosophical convictions, such as atheism, without however producing specific examples. 20. Since 1997 compulsory state education has lasted eight years (instead of the previous five) for children aged 6 to 14; the first five years correspond to primary school (1st to 5th grade) and the following three to secondary school (6th to 8th grade). 21. In decision no. 373 of 19 September 2000, the Minister of Education approved the guidelines for classes in religious culture and ethics (taught in grades 4, 5, 6, 7 and 8). The principles adopted in this connection are as follows: “... today, when intercultural influence is increasing, it has become necessary, in order to foster a culture of peace and a context of tolerance to know about other religions. For this reason, the school syllabus...; ... includes teaching [to the effect] that the aim of all religions is to educate upright individuals. [Religious instruction also aims to educate people] who are informed about the historical development of Judaism, Christianity, Hinduism and Buddhism, their main features and the content of their doctrine, and to be able to assess, using objective criteria, the position of Islam in relation to Judaism and Christianity... A. The principles to be observed during the teaching and learning experience... 1. Always bear in mind the principle of secularism. There should be no infringement of freedom of religion, conscience, thought and expression. 2. Emphasise that differences in religious understanding and practice are of value. 3. Take advantage, in so far as possible, of pupils' feelings and behaviour in order to socialise them and to educate them as good citizens through religious and ethical knowledge. 4. Seek to ensure that pupils internalise the principles of love, respect, fraternity and friendship, which strengthen national unity and union, and national concepts and values such as the homeland, the nation, the flag, the martyr... 5. Emphasise that religion is one of the important principles of the national culture. ... 9. Teach the concept of worship in the wide sense; that work, cleanliness and high moral standards are ways of worshipping... 10. Make pupils aware that acts of worship, as well as being demonstrations of love, respect and gratitude towards Allah, enable the individuals in a group to bond in love and respect, to help each other, to show solidarity... 11. When studying subjects related to the prophet Mohammed, provide examples concerning his morality. ... 13. Base lesson material on verses [from the Koran] and relevant sayings and traditions [of Mohammed]..., the passages for reading should be illustrated by stories and images. 14. Throughout the entire teaching process, make a careful distinction, in covering topics and the choice of examples, between those from the Koran and those developed subsequently. To this end, taking into account public and community events, emphasise those which have their source in the Koran and those which result from habit, customs, tradition, beliefs, lifestyles and cultural influence. ... Using different examples, explain that, far from being a myth, Islam is a rational and universal religion. ... 7th grade... Units: Unit 1 – Knowledge of the Koran. Unit 2 – Religion is good morals. Unit 3 – Pilgrimage and sacrifice. Unit 4 – Angels and other invisible beings. Unit 5 – Belief in the other world. Unit 6 – Our family. Unit 7 – Knowledge of religions...” 22. The applicants submitted five textbooks, for grades 4, 5, 6, 7 and 8, on religious culture and ethics. They are used in schools, having been authorised by the Ministry of Education. In the 4th grade textbook, instruction moved from the concept of religion to examine the relationship between morality and religion, the Creator and the creature, the family and religion, and knowledge of the life of the prophet Mohamed. The 5th grade textbook begins by explaining the meaning of the expression “I believe in God”. It focuses particularly on teaching the fundamental concepts of Islam: the profession of faith, prayer, the mosque as the place of worship, the nature of the prayers recited during the month of Ramadan, the prophet Mohammed's family life. A general overview is given of the prophets whose names appear in the Koran. The 6th grade textbook begins by covering the different daily prayers. It is explained that every Muslim is obliged to pray five times daily. The corresponding rituals are illustrated in the book, which then deals with subjects such as charity, love for the homeland and the nation, harmful behaviour, friendship and brotherhood, and the four holy books, namely the Torah, the Zabur (psalms), the Gospels and the Koran. The 7th grade textbook emphasises knowledge of the Koran, the link between religion and high moral standards, pilgrimage and sacrifice, angels and invisible creatures, belief in the other world and the family. In addition, the main religions, namely Judaism, Christianity, Islam, Hinduism and Buddhism, are presented over fifteen pages. The 8th grade textbook discusses the prophet Mohammed's high moral standards, culture and religion, the concepts of religion, reason and science, belief in fate and the link between faith and conduct. Subjects such as “differences in approach in religion”, “advice of religions and of Islam”, “secularism”, “freedom of religion and conviction” are also covered in this book. It appears from reading these textbooks that the pupils are also required to learn several suras from the Koran by heart. 23. For their part, the Government submitted the textbook for the 9th grade (the first year of upper secondary school). This textbook begins by dealing with man's place in the universe. It subsequently covers topics such as human nature and religion, the role of religion in human life and the various forms of belief, namely monotheism, polytheism, Gnosticism, agnosticism and atheism. Explanations are also provided for various concepts, such as prayer and the link between prayer and cleanliness; this chapter illustrates the rituals surrounding the partial and total ablutions in Islam (gusul and abdest). In addition, certain essential elements, such as the life of Mohammed, the Koran and fundamental concepts (interpretation, the suras, etc.), are described with the aim of providing information on Islam. The rest of the textbook deals primarily with the concepts of “values and family”, “the homeland, flag, freedom, independence, human rights, secularism, the secular State, Ataturk and secularism, etc”. Finally, it deals with the subject of “the Turks and Islam” in the context of Turkish history; this chapter examines the Turks' former beliefs, such as the concept of “God-heaven”, Manichaeism, Buddhism, the Christian religion and Judaism. Individuals who influenced the Turks' understanding of Islam are also discussed, in particular Ebu Hanife (born 699, died 767, founder of the Hanafite school) and Imam Şafii (born 767, died 820, founder of the Shafite School), as well as Hoca Ahmet Yesevi and Haci Bektas Veli (see paragraph 8 above). 24. The Government also explained that pupils were assessed in this subject only by written examinations. 25. The relevant passage of Article 18 of the International Covenant on Civil and Political Rights provides: “4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” 26. In Recommendation 1396 (1999) on religion and democracy, adopted on 27 January 1999, the Assembly recommended that the Committee of Ministers invite the governments of the member States, inter alia: “13. ... (ii) to promote education about religions and, in particular, to: (a) step up the teaching about religions as sets of values towards which young people must develop a discerning approach, within the framework of education on ethics and democratic citizenship; (b) promote the teaching in schools of the comparative history of different religions, stressing their origins, the similarities in some of their values and the diversity of their customs, traditions, festivals, and so on; ... (e) avoid – in the case of children – any conflict between the state-promoted education about religion and the religious faith of the families, in order to respect the free decision of the families in this very sensitive matter...” 27. In Recommendation 1720 (2005), adopted on 4 October 2005, the Assembly recommended that the Committee of Minsters encourage the governments of member States to ensure that religious studies were taught at the primary and secondary levels of state education, on the basis, inter alia, of the following criteria: “14.1. the aim of this education should be to make pupils discover the religions practised in their own and neighbouring countries, to make them perceive that everyone has the same right to believe that their religion is the “true faith” and that other people are not different human beings through having a different religion or not having a religion at all; 14.2. it should include, with complete impartiality, the history of the main religions, as well as the option of having no religion; 14.3. it should provide young people with educational tools that enable them to be quite secure in approaching supporters of a fanatical religious practice; 14.4. it must not overstep the borderline between the realms of culture and worship, even where a country with a state religion is concerned. It is not a matter of instilling a faith but of making young people understand why religions are sources of faith for millions; 14.5. teachers on religions need to have specific training. They should be teachers of a cultural or literary discipline. However, specialists in another discipline could be made responsible for this education; 14.6. the state authorities should look after teacher training and lay down the syllabuses which should be adapted to each country's peculiarities and to the pupils' ages. In devising these programmes, the Council of Europe will consult all partners concerned, including representatives of the religious faiths.” 28. The European Commission against Racism and Intolerance has already given its view on the teaching of religion in schools in General policy recommendation no. 5 on “Combating intolerance and discrimination against Muslims” (CRI (2000) 21, 27 April 2000). After reiterating the principles of respect for equality and non-discrimination between religions and recognising the great diversity intrinsic in the practice of Islam, it recommended that the governments of member States “ensure that religious instruction in schools respects cultural pluralism and make provision for teacher training to this effect”. 29. In its third report on Turkey (CRI (2005), the ECRI also considered, in particular, that: “The syllabus covers all religions and is chiefly designed to give pupils an idea of all existing religions. However, several sources have described these courses as instruction in the principles of the Muslim faith rather than a course covering several religious cultures. ECRI notes that only Muslim pupils are required to follow these courses, while pupils belonging to minority religious groups can be exempted. ECRI considers the situation unclear: if this is indeed a course on the different religious cultures, there is no reason to make it compulsory for Muslim children alone. Conversely, if the course is essentially designed to teach the Muslim religion, it is a course on a specific religion and should not be compulsory, in order to preserve children's and their parents' religious freedom.” In consequence, ECRI urged the Turkish authorities: “... to reconsider their approach to instruction in religious culture. They should take steps either to make this instruction optional for everyone or to revise its content so as to ensure that it genuinely covers all religious cultures and is no longer perceived as instruction in the Muslim religion.” 30. In Europe, religious education is closely tied in with secular education. Of the 46 Council of Europe member States which were examined, 43 provide religious education classes in state schools. Only Albania, France (with the exception of the Alsace and Moselle regions) and the former Yugoslav Republic of Macedonia are the exceptions to this rule. In Slovenia, non-confessional teaching is offered in the last years of state education. 31. In 25 of the 46 member States (including Turkey), religious education is a compulsory subject. However, the scope of this obligation varies depending on the State. In five countries, namely Finland, Greece, Norway, Sweden and Turkey, the obligation to attend classes in religious education is absolute. All pupils who belong to the religious faith taught in the classes are obliged to follow them, partially or fully. However, ten States allow for exemptions under certain conditions. This is the case in Austria, Cyprus, Denmark, Ireland, Iceland, Liechtenstein, Malta, Monaco, San Marino and the United Kingdom. In the majority of these countries, religious education is denominational. 32. Ten other countries give pupils the opportunity to choose a substitute lesson in place of compulsory religious education. This is the case in Germany, Belgium, Bosnia and Herzegovina, Lithuania, Luxembourg, the Netherlands, Serbia, Slovakia and Switzerland. In those countries, denominational education is included in the curriculum drawn up by the relevant ministries and pupils are obliged to attend unless they have opted for the substitute lesson proposed. 33. In contrast, 21 member States do not oblige pupils to follow classes in religious education. Religious education is generally authorised in the school system but pupils only attend if they have made a request to that effect. This is what happens in the largest group of States: Andorra, Armenia, Azerbaijan, Bulgaria, Croatia, Spain, Estonia, Georgia, Hungary, Italy, Latvia, Moldova, Poland, Portugal, the Czech Republic, Romania, Russia and Ukraine. Finally, in a third group of States, pupils are obliged to attend a religious education or substitute class, but always have the option of attending a secular lesson. 34. This general overview of religious education in Europe shows that, in spite of the variety of teaching methods, almost all of the member States offer at least one route by which pupils can opt out of religious education classes (by providing an exemption mechanism or the option of attending a lesson in a substitute subject, or by giving pupils the choice of whether or not to sign up to a religious studies class).

dev

001-58276

ENG

TUR

GRANDCHAMBER

CASE OF BAŞKAYA AND OKÇUOGLU v. TURKEY

Lack of jurisdiction to examine complaint under Art. 3;Lack of jurisdiction to examine complaint under Art. 14;No violation of Art. 7 (first applicant);Violation of Art. 7 (second applicant);Violation of Art. 10;Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1 (independence and impartiality);Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-2;Not necessary to examine Art. 14+10;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

9. The applicants, Mr Fikret Başkaya and Mr Mehemet Selim Okçuoğlu, are Turkish citizens. The first applicant was born in 1940 and lives in Ankara. He is a professor of economics and a journalist. The second applicant was born in 1964 and lives in Istanbul. He is the owner of a publishing house, Doz Basin Yayin Ltd Sti. 10. In April 1991 Doz Basin Yayin Ltd Sti published a book written by the first applicant and entitled Batılılaşma, Çağdaşlaşma, Kalkınma – Paradigmanın İflası/Resmi İdeolojinin Eleştirisine Giriş (“Westernisation, Modernisation, Development – Collapse of a Paradigm/An Introduction to the Critique of the Official Ideology”). The book was an academic essay of 219 pages, containing 370 references, which involved a description of the socio-economic evolution of Turkey since the 1920s and the analysis and criticism of the “official ideology” of the State. According to the titles listed in the table of contents, the author dealt with the following topics: Intelligentsia and Official Ideology; The Characteristics of the National Struggle; The Question of the National Character of the National Struggle; The Comintern and whether the National Struggle was Anti-Imperialist; Mustafa Kemal and the Individual’s Role in History; The Characteristics of the Kemalist Regime: an Original Form of Bonapartism; Productive Forces and Economic Policies; Bonapartist Regime and Accumulation of Capital; A Classless, Privilegeless, Populist Dictatorship; The Evolution of Socio-Economic Formation in the Neo-Colonialist Era; The Eighties: Strengthening of the Satellitisation Process; The Collapse of the Paradigm and the Science of Economics: Means to Legitimise Existing Tendencies. 11. The impugned chapter of the book included the following passages: “The Kurdish problem plays a significant role in the analysis of the evolution of Milli Mücadele [Turkish National Independence War (1919-1922)] and Turkish social formation. The Kurdish problem and the process of the colonisation of Kurdistan are indeed very important and, as such, should be the subject-matter of another book. Moreover, the problem is not only related to Turkey. The formation of the domestic politics of four States in the region (Turkey, Iran, Iraq, Syria) (type of political regimes) as well as the ‘unique’ nature of relationships between these four neighbouring States make it a complicated issue. We have two reasons why we wish to discuss the problem, even if in limited form, within the plan and scope of this book. These are to indicate the ‘irrationality’ of official ideology and the real nature of Milli Mücadele. In other words, [we wish] to discuss whether what is presented as ‘Kurtuluş Savaşı’ [Independence War] is in reality an ‘Independence Movement’ or not. Without any doubt, the imprisonment of Kurdistan (if the small area within the borders of the Soviet Union is omitted) within the borders of four different States gives the imperialists too easily ‘control’ over these four States. Although the Kurdish problem is of great importance with regard to the protection of the imperialist status quo in the region, we shall not here go into an analysis of this aspect of the problem. [page 51] ... On the other hand, the racist policy of denial which has been followed with regard to the Kurds since the foundation of the Republic [1923] has also been an important factor in the development of the fascist movement in Turkey. As a contradiction, even though ‘the assumption of non-existence’ of the Kurdish Nation constitutes an important element of the official ideology, this is at the same time the weakest point of the ideology in question. It is not possible ‘to eliminate with the mind’ a nation which exists and the objective reality continues to exist regardless of the nonsense and unfounded suspicions of the people. Of course, this does not mean that the nonsense, unfounded suspicions have no effect! There is never a lack of those who profit from it, acquire bureaucratic, academic careers, receive high salaries, go up the step ladder of the political arena ... [page 52] ... It was believed that colonialism would come to an end with the abolishment of direct political-military-police control in the colonies. Today, however, the [natural] resources of the Third World are carried to imperialist countries in volumes which are much higher than those of the colonial period. Therefore, the relationship between the Turkish State and Kurdistan is not of an imperialist devouring category. One can speak of a situation which also directly embodies a political, military, cultural, ideological oppression. Thus, a direct colony status is in force. [page 59]” 12. It appears that the publication of the book came to the notice of the prosecution authorities on 3 May 1991. 13. On 2 August 1991 the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi), having regard to the contents of the book in question, issued an indictment against the applicants. The first applicant, as the author of the book, was charged under section 8(1) of the Prevention of Terrorism Act 1991 (“the 1991 Act”) with disseminating propaganda against the indivisibility of the State. The second applicant, as the owner of the publishing company, was charged under section 8(2) of the 1991 Act. In the bill of indictment, the public prosecutor quoted extracts from the chapter of the book reproduced at paragraph 11 above. 14. In the proceedings before the National Security Court, the applicants denied the charges and sought their acquittal. The first applicant submitted that his book had been an academic work that could not be viewed as propaganda. Being a professor he had had the duty to conduct research and publish his conclusions and could not be forced to accept the “official version of reality”. His book might be judged by academics, but not by the courts. It could not be permissible to try and convict someone for the expression of his or her opinion. The second applicant submitted, inter alia, that it was not possible to make an assessment of the book as a whole solely on the basis of extracts from a single chapter. He alleged that section 8 of the 1991 Act was inconsistent with the Turkish Constitution and Turkey’s international obligations. There was a “Kurdish problem” in Turkey and commenting or expressing ideas on this problem could not constitute an offence. 15. In a final statement dated 18 March 1992, the public prosecutor requested the conviction of the first applicant under section 8(1) of the 1991 Act and that of the second applicant under section 8(2), as well as the confiscation of all copies of the book. The public prosecutor considered that the offence had been committed on 3 May 1991. 16. On 14 October 1992 the court acquitted the applicants. It held that the book as a whole was an academic work containing no elements of propaganda. 17. The public prosecutor appealed. He submitted that the book alleged that a certain part of Turkish territory had belonged to “Kurdistan” which the Turks had annexed and colonised. Concluding that the book did indeed disseminate propaganda against the indivisibility of the State, he requested that the verdict be set aside. 18. On 4 February 1993 the Court of Cassation quashed the decision of the trial court and referred the case back for retrial. It gave the following reasons: “In the writings on pages 51 to 59 of the book … it is stated that a part of the territory within the borders of the Turkish Republic is a part of Kurdistan which belongs to the Kurdish nation, and that this territory has been annexed by the Turks and is subject to colony status. The Istanbul National Security Court, without considering that [the above] statement, as such, exceeds the limits of criticism and constitutes dissemination of propaganda against the indivisible integrity of the State of the Turkish Republic with its territory and nation, found [both] accused ‘not guilty’. The judgment … is contrary to the law and thus, the public prosecutor’s grounds of appeal are upheld. Accordingly, it is unanimously decided that the judgment be reversed …” 19. In a judgment dated 5 August 1993, the Istanbul National Security Court found the applicants guilty of the offences with which they had been charged. It sentenced the first applicant to two years’ imprisonment and a fine of 50,000,000 Turkish liras (TRL) and the second applicant to six months’ imprisonment and a fine of TRL 50,000,000. Considering the applicants’ good conduct during the trial, the court reduced the first applicant’s sentence to one year and eight months’ imprisonment and a fine of TRL 41,666,666 and the second applicant’s sentence to five months’ imprisonment and a fine of TRL 41,666,666. On the other hand, the court dismissed the public prosecutor’s request for an order of confiscation of the book. In its reasoning supporting the convictions, the court stated: “After the examination of the book which is the subject of the offence, it is understood that the [following] statements on page 51 that ‘The Kurdish problem plays a significant role in the analysis of the evolution of Milli Mücadele [Turkish National Independence War (1919-1922)] and Turkish social formation. The Kurdish problem and the process of the colonisation of Kurdistan are indeed very important and, as such, should be the subject-matter of another book. Moreover, the problem is not only related to Turkey. The formation of the domestic politics of four States in the region (Turkey, Iran, Iraq, Syria) ...’, ‘to discuss whether what is presented as “Kurtuluş Savaşı” [Independence War] is in reality an “Independence Movement” or not. Without any doubt, the imprisonment of Kurdistan (if the small area within the borders of the Soviet Union is omitted) within the borders of four different States gives the imperialists too easily “control” over these four States ...’, on page 52 that ‘the racist policy of denial which has been followed with regard to the Kurds since the foundation of the Republic [1923] has also been an important factor in the development of the fascist movement in Turkey... It is not possible “to eliminate with the mind” a nation which exists ...’ and on page 59 that ‘the relationship between the Turkish State and Kurdistan is not of an imperialist devouring category. One can speak of a situation which also directly embodies a political, military, cultural, ideological oppression. Thus, a direct colony status is in force.’ identify a certain part of the Turkish Republic as Kurdistan, declare that the Turkish Republic rules this region with colony status and thus aim to disseminate propaganda against the indivisible integrity of the State of the Turkish Republic with its territory and nation. Therefore, the following sentence shall be drafted under the provisions of Law no. 3713 which is applicable to the proven acts of the accused.” 20. The applicants appealed to the Court of Cassation, which held a hearing in the case. The applicants, while reiterating the defence made before the National Security Court, emphasised that the latter had failed to consider the book as a whole and had erroneously based its decision on an assessment of one chapter. The first applicant maintained that section 8 of the 1991 Act was inconsistent with the Turkish Constitution and the Convention, and he could not therefore be tried and convicted under that provision. He also referred to his previous arguments concerning the lack of clarity of the relevant provisions of the 1991 Act. The second applicant asserted that his sentence to imprisonment had been unlawful in that section 8(2) only authorised the imposition of a fine. 21. In its decision of 16 December 1993, delivered on 22 December 1993, the Court of Cassation upheld the National Security Court’s findings and dismissed the appeals. 22. As of 18 March 1994 the first applicant was dismissed, under section 98(2) of the Civil Servants Act (Law no. 367), from his post as lecturer at the University of Ankara. The relevant decision referred to his conviction under the 1991 Act and to his being sentenced to twenty months’ imprisonment. 23. On 3 October 1997 the National Security Court granted a request by the prosecution for an order of seizure in respect of the sixth edition of the impugned book. 24. The applicants served their sentences in prison and paid the fines. After the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act, the Istanbul National Security Court re-examined the second applicant’s case. On 19 April 1996 the court held that these amendments could not be applied to his case as he had already served his sentence. 25. The relevant provisions of the Criminal Code read as follows: “Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.” “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 …” 26. 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.” 27. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: (before amendment by Law no. 4126 of 27 October 1995) “[(1)] 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. [(2)] 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) “[(1)] 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. [(2)] 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. [(3)] 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 … …” The Government have submitted case-law concerning the application of section 8, details of which may be found in Karataş v. Turkey [GC], no. 23168/94, § 22, ECHR 1999-IV. (before amendment by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” (as amended by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8.” 28. A summary of the relevant domestic law governing the organisation and procedure of the National Security Courts is contained in Karataş cited above, §§ 24-29.

dev

001-5638

ENG

ITA

ADMISSIBILITY

NARDELLA v. ITALY

Inadmissible

The applicant [Mr Costantino Nardella] is an Italian national who was born in 1962 and lives in Foggia. He was represented before the Court by Mr G. Di Mattia, a lawyer in Foggia. While he was a first-year law student at the University of Urbino, Mr Nardella applied to the Student Services Office for a bursary (assegno di studio) for the academic year 1981/82 following a competition notice issued in conformity with Law no. 54/79. He stated that he was a member of a family whose income did not exceed the ceiling of four million Italian lire (ITL) above which the bursary, which amounted to ITL 500,000, could not be granted. In a decision of 21 December 1981, of which the applicant was notified on 28 January 1982, the governing body of the Urbino University Student Services rejected Mr Nardella’s application on the ground that his family’s income exceeded the prescribed limit. The Director of Student Services informed the applicant that he could challenge the decision in the Regional Administrative Court. On 15 February 1982 the applicant served notice on the governing body of the Student Services that he was appealing to the President of the Republic. On 27 September 1989 he asked the governing body for information as to progress of the proceedings. On 13 October 1989 the Student Services Office replied that they had none and advised him to address his enquiry to the President of the Republic. On 4 June 1992, in reply to a letter from the applicant received on 2 June 1992, the office of the President of the Republic informed the applicant that the procedure in question was governed by Presidential Decree no. 1199 of 1971 and that his letter had been forwarded to the Ministry for the Universities and Research Studies, which would be dealing with it. According to information provided by the applicant, the proceedings were still pending on 12 December 1998. Special appeals to the President of the Republic (ricorso straordinario al Presidente della Repubblica) are governed by Presidential Decree no. 1199 of 24 November 1971. They are non-contentious administrative appeals by which final decisions can be challenged. They are lodged by the appellant directly with the head of State and are limited to a review of the lawfulness of the decision being challenged. A special appeal precludes bringing an action in the administrative courts. It follows that once an appellant challenges an administrative decision by way of a special appeal to the President of the Republic, he or she can no longer bring an action in the courts. Since an action in the courts offers better guarantees than a special appeal, the other party (controinteressato) can, within sixty days of receiving notice of such an appeal, request that it be heard in the administrative courts. A special appeal must be lodged within 120 days of service, communication or knowledge of the decision being challenged. It must, within the same time period, be served on the authority which made the decision and be lodged with the relevant ministry (or the authority which made the decision, which must then forward it to the relevant ministry). The relevant ministry investigates the case and must complete its investigation within 120 days of the expiry of the time allowed to the other party to submit their observations. When that time has expired, the appellant can ask the relevant ministry whether the appeal has been forwarded to the Consiglio di Stato for an opinion, as is compulsory, and, if no reply or a negative reply is received, can himself file a copy of the appeal with the Consiglio di Stato. On a proposal by the appropriate minister, the President of the Republic makes a ruling by decree. An application can be made for review of that decree. An appeal could also be lodged with the administrative courts even if there is no express legal provision to that effect.

dev

001-86452

ENG

BGR

CHAMBER

CASE OF SADAYKOV v. BULGARIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

5. The applicant, who was born in Grozny, Chechnya, settled in Varna, Bulgaria, in 1994, after finishing his university studies. Between 24 September 1995 and 3 November 1999 he was prosecuted and tried on charges of attempted murder and illegal possession of explosives, contrary to Articles 116 § 1 (6) and 339 § 1 of the Criminal Code of 1968. In a final judgment of 3 November 1999 he was acquitted of the first charge and found guilty of the second, and sentenced to two years’ imprisonment. As he had already spent a longer period of time in pretrial detention, on 8 November 1999 he was released from prison (for a detailed description of these events, see the admissibility decision Sadaykov v. Bulgaria (dec.), no. 75157/01, 20 March 2007). 6. On 8 November 1999 the applicant was rearrested on his way out of prison. This happened because in a letter of 5 November 1999 the Varna deputy regional prosecutor had informed the Regional Department of the Ministry of Internal Affairs (“the RDMIA”) that during his trial the applicant had threatened prosecutors and judges that he would “deliver justice” after his release. Apart from that, the validity of the applicant’s Russian passport and of his permit to reside in Bulgaria had expired. As a result, on 8 November 1999 the head of the RDMIA ordered that the applicant be brought immediately to the border by force and that he be banned from entering Bulgaria until 1 November 2009. The order was based on sections 41(2) and 10(3) and (6) of the 1998 Aliens Act (see paragraphs 9 and 10 below) and was reasoned as follows: “[the applicant] threatens public order and has been charged under Articles 116 and 339 § 1 of the [1968] Criminal Code”. The order also stated that it was to be enforced immediately and was subject to appeal in accordance with the provisions of the 1979 Administrative Procedure Act (see paragraphs 13 and 14 below). 7. Upon his arrest the applicant was informed about the order: he signed it, and stated in writing that he had familiarised himself with its contents. The applicant alleged that he had not been given a copy of it, whereas the Government averred that he had been provided with one. The applicant also alleged that after his arrest he had not been allowed to contact a lawyer. The Government denied this, stating that the applicant’s brother was apparently well aware of his situation, as on 11 November 1999 he had managed to bring a complaint in this regard to the attention of a nongovernmental organisation, the Human Rights Committee, which had enquired of the Minister of Internal Affairs about the applicant’s case. 8. After his arrest the applicant was brought to a detention facility in Varna, where he was kept until 13 November 1999. On that day he was provided with a provisional passport and escorted to Ruse, on the Danube River, where he was supposed to board a train to Moscow. However, during passport control at the border checkpoint it turned out that since September 1995 the applicant had been under a prohibition order not to leave Bulgaria, which was still in force. He was then taken back to the detention facility in Varna, where he spent three more days, until the prohibition was lifted. On 15 November 1999 he wrote to the head of the RDMIA, asking for his assistance in clearing the obstacles to his leaving Bulgaria. On the same day the authorities bought the applicant a new train ticket to Moscow. On the following day, 16 November 1999, he was deported to the Russian Federation. 9. Under section 41(2) of the 1998 Aliens Act („Закон за чужденците в Република България“), as in force at the relevant time, the Minister of Internal Affairs or an official authorised by him or her could issue an order for the taking of an alien to the border by force in the event that he or she had not left the country after the expiry of his or her residence permit. By section 42a(1) (presently section 42h(1)) of the Act, a ban on entering the country had to be ordered if the grounds under section 10 were met. 10. The ground under section 10(1)(3) of the Act, as in force at the material time, was the existence of information that the alien was a “member of a criminal gang or organisation, or [was] engaged in terrorist activities, smuggling, or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies with a possible dual use, or in the illicit trafficking of intoxicating and psychotropic substances or precursors or raw materials for their production”. The ground under section 10(1)(6) of the Act was that the alien had “committed, on the territory of the Republic of Bulgaria, a wilful offence punishable by more than three years’ imprisonment”. 11. Section 44(3) of the Act, as in force at the relevant time (presently, with slightly modified wording, section 44(5)), provided that if there were impediments to the deported alien’s leaving Bulgaria or entering the destination country, he or she was under a duty to report daily to his or her local police station. Under section 44(4) of the Act, as in force at the material time (presently, with slightly modified wording, section 44(6)), aliens who were being deported could be placed in holding facilities if this was deemed necessary by the Minister of Internal Affairs or officials authorised by him or her. The new subsection 8 of section 44, added in April 2003, explicitly states that the placement of aliens in holding facilities pending their deportation is to be done pursuant to a special order, separate from the one for taking them to the border by force. The order has to moreover specify the need for the placement and its legal grounds. In addition, the new subsection 9, also added in April 2003, provides that the procedure for the temporary placement of aliens in holding facilities is to be laid down in a regulation issued by the Minister of Internal Affairs. The Minister issued such a regulation on 29 January 2004 („Наредба № І-13 от 29 януари 2004 г. за реда за временно настаняване на чужденци, за организацията и дейността на специалните домове за временно настаняване на чужденци“, обн., ДВ, бр. 12 от 13 февруари 2004 г.). 12. Section 49(1) of the regulations for the application of the Act, adopted in May 2000, provides that an alien may be placed in a holding facility until being taken out of the country if this is expressly stated in the order for his or her taking to the border by force or his or her expulsion. Section 49(2) of the Regulations states that the procedure for the placement of aliens in these facilities until their deportation is to be ordained by the Minister of Internal Affairs. 13. Section 46 of the Act, as in force at the relevant time, provided that orders made under sections 40 to 44 thereof could be challenged in accordance with the provisions of the 1979 Administrative Procedure Act, that is, they were subject to an appeal before the higher administrative authority and judicial review. 14. According to the 1979 Administrative Procedure Act, as in force at the relevant time, an administrative appeal had to be made within seven days from the notification of the person concerned of the administrative decision (section 22(1) of the Act). The higher administrative authority had to rule within two weeks (section 29(1) of the Act). If it failed to do so, or if the ruling was negative, the aggrieved person was entitled to lodge an application for judicial review (sections 29(2) and 35(2) of the Act). The aggrieved person could alternatively skip this step and directly seek judicial review of the original decision. However, this was only possible if the timelimit for lodging an administrative appeal – minimum seven days – had already lapsed (section 35(2) of the Act).

dev

001-112588

ENG

LTU

CHAMBER

CASE OF DRAKSAS v. LITHUANIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

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

5. The applicant was born in 1956 and lives in Vilnius. 6. At the relevant time, the applicant was a founding member of the Liberal Democrats political party, led by Mr Rolandas Paksas. The applicant was also a member of the Vilnius City Municipal Council. 7. On 16 March 2003 the State Security Department (“the SSD”) intercepted a telephone conversation between the applicant and Jurij Borisov (“J.B.”) (see Borisov v. Lithuania, no. 9958/04, § 15, 14 June 2011), a major contributor to the electoral campaign of the State President, Rolandas Paksas. The tapping of J.B.’s telephone had been authorised by a court. The conversation was as follows: “Jurij Borisov (J.B.): So. He [the State President R. Paksas] said on television that Borisov isn’t on the list of his advisers and won’t be included. Algirdas Drakšas (A.D.): Won’t be on the list of his advisers? But I don’t understand. After all, you always said that [he would]. J.B.: A week ago he and I agreed that from Monday I would be on the list [of advisers to the President]. A.D.: I don’t know anything about this. J.B.: I am telling you – that was his promise. So he has been stressed for two days, because he has already betrayed me. You understand? He has already sold me. And he is stressed, he is afraid to meet. So I have told him, if by Monday he doesn’t fulfil any of his promises - not a single one for what I have done for him - I will begin to recover my money. I will have to go public, do you understand?... A.D.: I don’t know. I don’t know. I haven’t heard that, I don’t know. J.B.: Algis, I have recorded everything on tape, the tape will be ready tomorrow. A.D.: Damn, I don’t know that. I don’t know that. I know that you declared that you would act differently, that you wouldn’t go to the President’s Office because the salary is low there, that you wouldn’t manage to earn a living there. I know only that. J.B.: That was in the press. At his [the State President’s] request: “Jura, tell that in the meantime you won’t go [to work at the President’s Office]. And on Monday you will be [working] there”....That’s why he has already been suffering for two days, because he has lied on television. And I don’t know how he is going to walk away from this... Death to him as to the President. Tomorrow this lie will surface... That’s why he is restless... A.D.: I don’t know these facts, how can I give you an answer. J.B.: Algis, I am not asking you for an answer, I am just emotional, because I don’t know ... how I should go and talk to him. Because I have to go public and say everything now. Rolandas is such-and-such... We have agreed with him... And now: he went to Dalia [D.K.G. - adviser to the President], and [the President] has said that Borisov won’t harass you. I don’t know what she has told him. So the President, you understand, is a corpse already. A.D.: If it is easier for you, but you’re behaving improperly. J.B.: Algis, I haven’t done anything yet, so far I’ve done nothing. But he has sold me publicly already. A.D.: Calm down. He hasn’t sold you publicly; he is not that kind of person ... I don’t know that you are not going to be an adviser. That wasn’t discussed openly, there was no such idea, I haven’t heard about that. He hasn’t sold you publicly; I can’t imagine he would do that. He is not like that. J.B.: You see. Such is the fact... A.D.: Such fact can’t [be]... J.B.: Maybe you want to see the agreement with his signature? I’ll show it [to you] tomorrow. A.D.: I can only repeat what I’ve said. J.B.: Okay, Algis, have you called him? A.D.: What? I have called him, but he isn’t picking up his telephone.” 8. On 17 September 2003 the SSD applied to the Attorney General’s Office with a request for the applicant’s telephone to be tapped. The request was based on operational information that the applicant maintained contact with J.B. and A.Z., both of whom had contributed to the electoral campaign of Mr Rolandas Paksas. A.Z. worked for a Russian public relations company. Subsequently, J.B. was convicted of having threatened the State President so that the latter would appoint him as an adviser, grant him Lithuanian citizenship and grant other favours, failing which J.B. threatened to disclose certain information which could damage the President’s reputation (see Borisov, cited above, § 30). The monitoring of the applicant’s telecommunications also had the goal of establishing the nature of his relationship with a Russian citizen, V.F., who, according to the SSD, had been expelled from Spain in 1982 for spying for the former USSR. 9. Later that day the Attorney General requested the Vilnius Regional Court to authorise the tapping of the applicant’s telephone. The court order was classified as secret, and was not disclosed to the applicant. The Attorney General based his request on the applicant’s “possible participation in smuggling strategic goods and other crimes”. The court granted the request, authorising the measure for a period of three months. The court order reads: “on the basis of the material in the case file of the operation it is reasonable to [tap the applicant’s telephone] in order to verify his involvement in the criminal activities described in the request: the information in the case file (the operative information and other data) confirms that [the applicant] could be linked to criminal acts which qualify as serious crimes; in order to establish all the relevant circumstances other operative measures had already been [exhausted], therefore a supplementary investigative measure [tapping of the applicant’s telephone] is to be authorised, pursuant to the rules of the Law on Operational Activities”. 10. As came to light later on, the request by the SSD was also based on the applicant’s allegedly unlawful involvement in attempts to take over the shares of the road-building company “Žemaitijos keliai”. 11. On 1 November 2003 the SSD declassified the recording of the telephone conversation of 16 March 2003 between the applicant and J.B. It sent the recording to the Attorney General’s Office. The following day, the latter began a pre-trial investigation into threats to the State President. 12. On 2 November 2003 the recording of the telephone conversation of 16 March 2003 between the applicant and J.B. was aired by the State-run and private national television channels LTV and LNK. The SSD denied any involvement in leaking the conversation to the media. 13. Having intercepted the applicant’s telephone conversations between 18 September and 11 November, the SSD obtained recordings of his communications with the State President, the President’s advisers and the applicant’s business partners. It can be seen from the transcripts of those recordings that the SSD intercepted five conversations between the applicant and the head of State. At least one of these telephone calls was from the State President to the applicant. The transcripts also reveal that the conversations between the applicant and his interlocutors contained some swearing. 14. On 11 November 2003 the Attorney General wrote to the director of the SSD. The Attorney General noted that on 10 and 11 November the media had made known the fact that the SSD had obtained recordings of telephone conversations between the applicant and the State President. Such recordings, if they existed, were unlawful, given that Article 6 § 3 of the Law on Operational Activities prohibited any operational activities in respect of the head of State (see “Relevant domestic law” below). The SSD was ordered to make sure that the recordings were not made public and were destroyed the same day. The letter of the Attorney General does not specify whether by that time the content of the applicant’s conversations with the State President had already been disclosed to the public. 15. The letter also read that “noting the illegal practice, which began on 30 October 2003, of transfer and making public operational information, the SSD is ordered to adhere strictly to the requirements of the Law on Operational Activities and the Law on State Secrets, as well as those concerning Criminal Procedure”. On this point the Attorney General emphasised that classified information obtained during operational activities, as well as data concerning a person’s private life and/or demeaning to his or her honour or dignity should not be disclosed. Furthermore, once the operational investigation had been terminated and where the information concerning the target of the surveillance activities had not proved to be true, such information had to be destroyed. Lastly, the information collected during a pre-trial investigation was to remain confidential, unless a prosecutor decided otherwise. 16. On 12 November 2003 the applicant lodged a complaint with the Attorney General, alleging that the tapping of his telephone had been unlawful. He also complained that his telephone call with the State President had been intercepted. The applicant alleged a breach of privacy. 17. On 20 November 2003 the Attorney General requested information from the SSD regarding the leak. 18. On 11 December 2003 the SSD informed the Attorney General that neither recordings nor transcripts of the applicant’s conversation with J.B. of 16 March 2003 had been given to the media. It noted that on 1 November 2003 the transcripts of that recording had been declassified and submitted to the Attorney General’s Office for the purpose of a pre-trial investigation. 19. By a letter of 15 December 2003, the Attorney General requested the SSD to conduct an inquiry into the leak, as a result of which the applicant’s and J.B.’s telephone conversation of 16 March 2003 had been aired on television (paragraph 12 above). 20. On 15 December 2003 the Attorney General’s Office informed the applicant that his telephone conversations had been monitored in accordance with the law. The applicant’s conversations with the State President had been recorded while the SSD had been tapping the applicant’s telephone, and not that of the President. The operational investigation in respect of the applicant had been terminated on 11 November 2003. The applicant was advised to address the SSD in order to obtain the information held on him. To the extent that the applicant complained about the damage he had allegedly sustained by the disclosure of his telephone conversation [of 16 March 2003] to the media, he was advised to bring an action before the civil courts. 21. On 16 December 2003 the SSD wrote to the Attorney General’s Office that the information gathered pointed to the conclusion that the applicant and other persons were attempting to unlawfully acquire the shares of the “Žemaitijos keliai” company. The behaviour of the applicant and his interlocutors could be characterised as extortion of property. 22. In February 2004 the applicant attempted to challenge the lawfulness of the court order authorising the tapping of his telephone. On 18 February 2004 the Vilnius Regional Court informed the applicant by letter that the law did not provide for an appeal against court orders of that type. 23. The applicant also wrote to the SSD, requesting it to disclose the results of its inquiry into the leak. He explained that such information was necessary in order to enable him to prepare a civil action for damages. The applicant also requested access to the information on him held by the SSD. 24. On 9 March 2004 the SSD replied that the information recorded by the SSD had been declassified and transferred to the prosecutors as evidence in two sets of criminal proceedings unrelated to the applicant (namely, the proceedings against J.B. for blackmailing the State President and the proceedings relating to the influence of civil servants in the management decisions of the “Žemaitijos keliai” company). The applicant was advised that he could obtain access to that evidence with a prosecutor’s authorisation. 25. On 10 March 2004 the applicant lodged a complaint with the Court of Appeal, again challenging the court order of 17 September 2003. He argued that there had been no lawful grounds for the tapping, and that his rights under Article 8 of the Convention had been breached. The applicant was also critical of the fact that the SSD had intercepted and made public his telephone conversations with the State President and J.B. He further complained about the absence of a domestic remedy against the court order authorising telephone tapping, alleging a violation of Article 13. By a letter of 6 April 2004, the President of the Court of Appeal returned to the applicant his complaint without examination. The President stressed that to grant a person the right of access to court orders authorising operational measures and to allow him to challenge such court orders would deprive the secret investigative actions of their meaning. He also noted that Article 8 of the Convention did not prohibit secret investigative measures as such, provided that the interference involved was necessary in the interests of national security or for the prevention of crime. Well-reasoned court orders were to guarantee that the investigating authorities acted within the law. 26. On 15 March 2004 the SSD informed the Attorney General that in September and October 2003 the applicant and a Russian citizen, V.F., had organised visits by Lithuanian civil servants to the Russian Federation and visits by Russian officials to Lithuania. The applicant had acted in cooperation with the advisers to the Lithuanian President. The applicant also had business dealings with V.F. According to the SSD, the applicant had ceased to organise such visits once the Lithuanian media had made public the SSD report “On negative tendencies posing a threat to national security”. The SSD also reiterated that the above facts could be linked to [unlawful] attempts to take over the shares of the “Žemaitijos keliai” company. The SSD asked the Attorney General to verify the information by way of criminal proceedings. 27. On 15 March 2004 the recordings and transcripts of the applicant’s telephone conversations with Russian businessman V.F., J.B. and the State President were deposited with the registry of the Constitutional Court, which was about to hear the State President’s impeachment case. The prosecutors did not impose any restrictions on the disclosure of those recordings. 28. At the hearing of the Constitutional Court on 19 March 2004, some of the recordings were played. Given that the hearing was public and directly broadcast by national television, the conversations were aired. 29. On 22 March 2004 the applicant requested the opening of a criminal investigation in relation to the disclosure of the contents of his conversations at the Constitutional Court’s hearing. He argued that after the disclosure “none of his foreign partners would want to do business with [him] or [his] company”. 30. On 25 March 2004 the prosecutors refused to open criminal proceedings. They noted that the information had been disclosed during a public hearing at the Constitutional Court and in accordance with domestic law. A further complaint by the applicant was dismissed by the Attorney General, who observed that disclosure of the applicant’s conversations during the proceedings in the Constitutional Court was a normal part of the judicial process. Furthermore, the disclosed materials contained no information about the applicant’s private life. By a final decision of 7 May 2004 the Vilnius City Second District Court upheld the prosecutors’ decisions. 31. On 31 March 2004 the Constitutional Court found that the State President had committed gross violations of the Constitution and a breach of his constitutional oath on account of, inter alia, exploiting his official status to influence decisions by the “Žemaitijos keliai” company concerning the transfer of shares with a view to defending the property interests of certain private individuals close to him. He was also found guilty of having knowingly hinted to J.B. that the law-enforcement institutions were investigating him and tapping his telephone conversations (see Paksas v. Lithuania [GC], no. 34932/04, § 27, 6 January 2011). 32. The applicant lodged an administrative complaint against the refusal by the SSD to grant him access to the recordings of his telephone conversations. 33. On 21 May 2004 the Vilnius Regional Administrative Court dismissed the applicant’s action as unsubstantiated. The court accepted that pursuant to the domestic legislation a person had a right to obtain information of a private nature held on him by the State institutions (see paragraphs 39 and 40 below). Nonetheless, the information the applicant sought access to had much wider implications; therefore it could not be regarded as concerning his private life. Furthermore, that information had in the meantime been given to the prosecutors as evidence in criminal proceedings (paragraph 24 above). Disclosure of such information was explicitly prohibited by Article 177 of the Code of Criminal Procedure. The court also noted that citizens’ rights, as established in [Article 25 § 5 of] the Lithuanian Constitution, could be restricted only when this was provided for by law, necessary in a democratic society and with the aim of protecting rights and freedoms of others. In the applicant’s case, such a restriction had been established by law. There was no proof that by refusing the applicant access to the transcripts of his telephone conversations the SSD had acted arbitrarily. It followed that the applicant’s right to receive information had not been infringed. 34. On 12 October 2004 the Supreme Administrative Court dismissed the applicant’s appeal, upholding the reasoning of the lower court. 35. In reply to an inquiry by the applicant’s lawyer, on 25 May 2005 the Deputy Attorney General wrote that to that day the SSD had not informed the prosecutors about the results of an internal investigation into the circumstances how the media had got hold of the applicant’s telephone conversation with J.B. (paragraphs 12 and 19 above). 36. By a letter of 15 July 2005, the SSD informed the applicant that, given that there was no ground for an internal investigation into the lawfulness and reasonableness of the tapping of his phone, as sanctioned by the court on 17 September 2003, no inquiry had ever taken place at the level of the SSD. 37. The Law on Operational Activities (Operatyvinės veiklos įstatymas), adopted by the Lithuanian Parliament and published in the State Gazette (Valstybės žinios) on 28 June 2002, in force at the relevant time, provided: “1. Operational activities are overt and covert intelligence activities by operational entities conducted in accordance with the procedure established by this Law. 2. Targets of operational activities are crimes being planned, being perpetrated, or already committed, persons engaged in planning or committing crimes or persons who have committed a crime, vigorous actions of these individuals in neutralising operational activities or by infiltrating law enforcement, national defence, or other government and administrative institutions, and activities of foreign intelligence services and other persons and events linked with State security matters.” “The tasks of operational activities shall be as follows: 1) crime prevention; 2) solving crimes and establishing the identity of the individuals who are planning, are engaged in or have already committed criminal acts; 3) protection of individuals from criminal influence; (...) 5) actions posing a threat to the constitutional order, its independence, economic safety of the State, or other important interests of national security (...); (...) 7) protection of State secrets; 8) investigation of the activities of the intelligence services of other States; 9) ensuring the safety of the entities of operational activities.” 1. The individual and citizens’ rights and freedoms may not be violated in the course of operational activities. Individual restrictions on these rights and freedoms shall be temporary and may be applied only in accordance with the procedure established by laws, striving to defend another person’s rights and freedoms, property and the security of the State and society (...). 3. It shall be prohibited to apply operational activities to the President of the Republic. (...) 6. In case the rights and freedoms of an individual and citizens have been violated, the entities of operational activities must restore the rights which have been violated and compensate the damage according to the procedure established by legal acts. 7. The classified information obtained in the course of operational activities, as well as that about a person’s personal and family life and information demeaning his or her honour or dignity may not be disclosed, with the exception of ... situations stipulated in Article 17 of this Law. 8. Within three months of the completion of the operational investigation and provided that the operational information about the target of the operational activities did not prove to be true, information about a person’s private life must be destroyed (...). 9. A person who considers that the activities of the entities of operational activities have violated his rights and freedoms may appeal against those actions to the chief of the entity of operational activities, a prosecutor or a court.” “An operational investigation shall be conducted, when: 1) information is held with respect to a serious crime being planned (...); 2) information is available regarding the activities of the special services of other States; (...) 6) protection of State secrets is being implemented; 7) information is available concerning actions which are endangering the constitutional system of the State, its independence, economic security ... or other important interests of national security.” “1. The covert monitoring of ... telegraph and other communications and the use of technical equipment in accordance with special procedure shall be authorised by the chairman of a regional court or the chairman of the criminal cases division of that court, on the basis of a reasoned recommendation by the Attorney General, the Assistant Attorney General, or ... a recommendation by the chief prosecutor of the regional prosecutor’s office or ... assistant regional chief prosecutor, that recommendation being based on the information submitted by the chiefs of the entities of operational activities or their authorised deputy chiefs. (...) 3. The implementation of actions recommended for aims of conspiracy concerning the actions indicated in paragraph one of this Article, may be authorised by any district court. 4. The request for covert monitoring shall indicate: 1) the name, surname and position of the officer who submitted the request; 2) a description of the target or the name and surname of the person in respect of whom operations shall be conducted; 3) facts (grounds) warranting a request to employ the operational activities; (...) 6) an estimate how long the operational measures will be applied; 7) the aim of the investigation. 5. The covert monitoring ... and the use of technical equipment according to special procedure shall be authorised for no longer than three months. This period may be extended (...).” “1. Classified operational information may be declassified according to the procedure established by laws and used as evidence in a criminal case (...). 2. Classified operational information may be used for other purposes in cases determined by the laws (...).” 38. The Code of Criminal Procedure reads: “1. Information about a pre-trial investigation shall not be made public. It may be made public only subject to a prosecutor’s authorisation and only to such an extent as is determined as permissible (...).” 39. Article 25 § 5 of the Lithuanian Constitution stipulates that citizens have the right to receive, according to the procedure established by law, any information concerning them which is held by the State institutions. 40. The Law on the Right to Obtain Information from State and Local Authorities (Teisės gauti informaciją iš valstybės ir savivaldybių įstaigų įstatymas), in force as of 1 June 2000, provided that a person had a right to obtain information of a private nature held on him by the authorities (Article 7 § 1). Nonetheless, the authorities could refuse to reveal information, the disclosure of which could damage the interests of State security, defence, foreign policy, or hinder a criminal investigation. A refusal to disclose information had to be necessary in a democratic society and based on reasons more weighty than a person’s right to obtain information. The authorities’ refusal to reveal information held on a person could be appealed against to the administrative courts (Article 13).

dev

001-23054

ENG

TUR

ADMISSIBILITY

KINSIZ v. TURKEY

Inadmissible

Georg Ress

The applicant, Osman Kinsiz, is a Turkish national, who was born in 1949 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 Istanbul. 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 22 October 1996, following the applicant’s request for increased compensation, the Pendik Civil Court of General Jurisdiction awarded him an additional compensation of 451,254,848 Turkish liras (TRL) plus an interest at the statutory rate of 30% per annum. On 31 March 1998 the Court of Cassation upheld the decision of the first-instance court. The due amount which was 837,196,000 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

001-99816

ENG

CYP

ADMISSIBILITY

ORAMS v. CYPRUS

Inadmissible

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

The applicants, Mr David Charles Orams and Mrs Linda Elizabeth Orams, are British nationals who were born in 1944 and 1946 respectively and live in East Sussex. They were represented before the Court by Mr Z. Necatigil and Ms Ş. Karabacak, lawyers practising in Nicosia, in the northern part of Cyprus. and as derived from the documents submitted by the parties, may be summarised as follows. The applicants, a British couple, purchased a plot of land in 2002 in the “Turkish Republic of Northern Cyprus” (“TRNC”) from a private vendor who was the registered owner under the law of the “TRNC”. The land is situated in the village of Lapithos, in the district of Kyrenia. The applicants built a villa there and regularly use the property as their holiday home. Mr M.A. (“the plaintiff”), a Greek-Cypriot, claimed ownership of the above land and brought proceedings against the applicants before the District Court of Nicosia (“the District Court”) seeking damages for trespass to his property. He also applied for a demolition order of the villa, swimming pool and fence and for the return of the property. On 26 October 2004 two writs were issued in Greek by the District Court and served on the second applicant in person at the applicants' holiday home. She did not sign them. The writs stated that in order to prevent a default judgment an appearance had to be entered before the District Court within 10 days of service, namely by 8 November 2004. The applicants obtained the assistance of a lawyer, Mr G. M., who agreed to enter an appearance on their behalf on 8 November 2004. However, the lawyer did not enter an appearance on that day. No explanation for this has been given. On 8 November 2004 the plaintiff filed an application for judgment to be entered in default of appearance. On 9 November 2004, as no one had entered an appearance for the applicants, the District Court gave a default judgment on the plaintiff's claim. The applicants' lawyer attended the District Court on the above date in order to enter an appearance on behalf of the applicants but judgment had already been entered. The order of the District Court required immediate demolition of the villa and other constructions which the applicants had erected on the land and delivery to the plaintiff of free possession of the land. It further required the applicants to refrain from continuing the unlawful intervention on the land. Orders for damages (special and mesne profits) and costs were also made. On 15 November 2004 the applicants' lawyers, Mr G.M. and Mr M.A., entered an appearance on behalf of the applicants and filed an application to have the judgment set aside. On 19 April 2005, after hearing evidence and arguments from the parties, the District Court delivered a judgment dismissing the application. In its judgment the District Court held, firstly, that it had jurisdiction to try the case as the land in question was situated in the district of Kyrenia which came under its jurisdiction following the merger of that district with the district of Nicosia in 1974 (relying on/ referring to sections 3 (4) and 21 (2) of the Courts of Justice Law 1960 - Law 14/1960, as amended; and Notification No. 1383 in the Official Gazette of the Republic of 13 September 1974). The District Court relied on the Court's judgment in the case of Loizidou v. Turkey ((merits), 18 December 1996, Reports of Judgments and Decisions 1996VI) as authority that ownership of land in the northern part of Cyprus remained with its original Greek-Cypriot owners. It noted that the argument that the court should take into account the de facto situation in the north had been put forward and dismissed by the Court in its judgment in the case of Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey (no. 16163/90, 31 July 2003). The District Court then considered the merits of the application. Relying, inter alia, on the Court's judgments in the cases of Loizidou v. Turkey (cited above) and Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001IV), it held that the plaintiff had not lost his right to his land. It further found that the conduct of the applicants towards the property amounted to trespass and neither “local custom” nor the claim that the applicants had acted in good faith could provide a defence. It noted that Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Regulation No. 44/2001”) was not applicable in the case as it concerned exclusively the question of the recognition and enforcement of judgments in other jurisdictions and was irrelevant to the question of setting aside the judgment obtained by the plaintiff. The District Court concluded that the applicants had failed to show that they had a prima facie or arguable defence and dismissed the application on that ground. Costs were awarded to the plaintiff. It appears that due to difficulties faced in serving the applicants' lawyers, whose offices were in the northern part of Cyprus, with documents and/or notices of hearings, on 14 March 2006, one of the applicants' lawyers, Mr M.A., informed the Supreme Court that he would appoint an office of a colleague in Nicosia as an office for service and would notify the Registrar of this. According to the applicants, on 15 November 2006, a bailiff of the Supreme Court telephoned the office of one of the applicants' lawyers and asked them to contact the court to pick up the date for the appeal before the Supreme Court. According to the applicants a message was left with the secretary. The applicants submit that no written notification was sent to their lawyers and that, on 13 December 2006, one of their lawyers, Mr M.A., happened to be at the Supreme Court representing other clients and was called in by a Supreme Court judge to appear for the applicants at the hearing. The applicants state that this was the first time that Mr M. A. had heard of the date of the appeal. The appeal was heard on the above date. The verbatim record of the hearing reports the following submissions by the applicant's lawyer (translation): “Mr M.A.: please there is no need for translation as I understand and speak the Greek language. It would therefore be a waste of time. Your honour Mr President, your honours, at this stage I do not wish to waste the Court's time and I will simply adopt the outline of my address. The only thing I wish to add is that the Court, the District Court, had this case at an unfortunate time when there was no arrangement as to whether the retainers would be in the Greek, English or Turkish (language). As you will see in the file before us, we asked for the same facility in this Court too. In the end we agreed that it would be in the Greek language. It was a time immediately after the opening of the roadblocks when cases of such a nature came before the Courts in Nicosia and the Registrar had his doubts. I remember asking whether the retainer would be in English and they told us that the authorities of the Republic use only the Greek and Turkish language. I brought a retainer before 1974 in English, those we had in our Court and consequently there was a period of confusion. And I am sure that this confusion led to the decision that the Court gave in these circumstances in the wrong exercise of its discretion. All this case is based on the case of Wella and I argue and submit that her honour the judge in the lower Court approached it wrongly. Thank you.” Following the submissions of the plaintiff's lawyer, the Supreme Court reserved judgment. Subsequently, on 19 December 2006 the applicants' lawyers sought to file an amended notice of appeal before the Supreme Court. In particular, in a letter dated 18 December 2006, the applicants requested the Supreme Court to hold a two to three day hearing so that all relevant principles of European Community law could be examined; reminded the Supreme Court that it had a duty, under Article 10 of the Treaty establishing the European Community to consider all relevant principles of European Community law; and, lastly, relying on Article 6 § 1 of the Convention expressed the view that the hearing of 13 December 2006 had not afforded sufficient time for the examination of the complicated questions of European Community law that arose in the case. To their letter the applicants attached a detailed memorial and a copy of the judgment of the High Court of the United Kingdom. The applicants stated that they had not been permitted to file the aforementioned documents. On 20 December, however, the clerk at the Registry informed them that although the documents would not be formally accepted they would be shown to the judges. In the meantime the court had fixed the case for judgment for 21 December 2006. On that date, immediately before judgment was delivered, the verbatim record reports the following exchange as having taken place (translation): “Court: Today we fixed the case for judgment. Mr M.A., you are submitting an application, which has not been of course translated but you have made a letter in English. If I understand correctly you wish to file amended grounds of appeal and reopen the case? The case has finished and has been reserved. Will you file an application for amended grounds of appeal at this stage? Mr M.A.: We will withdraw this application. Court: There are decisions that at this stage after judgment has been reserved the case is not reopened unless the Court itself requires any clarification. We will ignore this application and proceed to deliver judgment. The judgment is unanimous. The judgment will be given by Judge Nikolatos. Mr M.A.: We do not need a translator. We waive the right for translation in Turkish.” The Supreme Court then delivered its judgment dismissing the appeal. With regard to the issue of jurisdiction the court noted the following: “At the beginning of the address of learned counsel for the appellants, argumentation was put forward which aimed to show that the first instance court did not have jurisdiction or territorial competence to try the case before it. The issue of the jurisdiction of the first instance court was raised before us also by learned counsel for the respondent, who indeed invited this court to refer the issue of jurisdiction to the Court of the European Communities as a preliminary legal point. Following the observation made by our Court that the issue of jurisdiction is not raised in the present appeal as it does not constitute any of the grounds of appeal, learned counsel for the respondent abandoned in essence his original suggestion. We do not intend to examine the question of jurisdiction or territorial competence of the first instance court as this matter is not raised in the appeal and is not a ground of appeal. It is correct that the matter of jurisdiction can be raised at any stage of the proceedings and can be raised ex proprio motu by the Court, but in the present case it is not raised in the grounds of appeal and our Court does not consider it useful to raise it on its own initiative.” In the meantime, on 18 October 2005, the plaintiff applied under Regulation No. 44/2001 for recognition and enforcement in the United Kingdom of the judgments of the Nicosia District Court; namely, (i) the default judgment of 9 November 2004 and (ii) the judgment of 19 April 2005. On 21 October 2005 Master Eyre ordered that the above judgments be registered in and be declared enforceable pursuant to the above Regulation. The applicants brought a successful challenge against that order before the High Court under Article 43 of Regulation No. 44/2001. By order dated 6 September 2006 Mr Justice Jack allowed the appeal and set aside the registration of the two judgments. The applicants were successful on two grounds. The first was that Mr Justice Jack considered that the effect of Protocol No. 10 to the Act of Accession, was that the acquis, and therefore Regulation No. 44/2001, were of no effect in relation to matters which related to the northern part of Cyprus. Hence, the plaintiff could not rely on the acquis in order to secure the recognition of the judgments he had obtained. In this respect, he noted, however, that the land was within the territory of the Republic of Cyprus and that the case law of the Court showed that the “TRNC” laws could not be relied on by the applicants to deprive the plaintiff of his title to the land. The second ground arose from the circumstances in which service of the original proceedings was effected and the time that was permitted for entry of an appearance to the proceedings. He granted permission to appeal to the Court of Appeal. The plaintiff lodged an appeal under Article 44 of Regulation No. 44/2001 to the Court of Appeal (Civil Division) (England and Wales). By order dated 26 June 2007 the Court of Appeal referred to the European Court of Justice (“ECJ”) for a ruling on the issues raised, five questions being specified in the schedule to the order. The questions, in sum, concerned, firstly, the application of Regulation No. 44/2001 to a judgment relating to claims to the ownership of land situated in the northern area of Cyprus, in view of suspension of the application of the acquis communautaire in that area pursuant to Article 1 (1) of Protocol No. 10; and, secondly, the interpretation of Articles 35 (1) and 34 (1) and (2) of Regulation No. 44/2001 with regard to the possible grounds for non-recognition and non-enforcement within the meaning of these provisions. Following an oral hearing before the ECJ, Advocate General Kokott delivered an opinion on 18 December 2008. In her view Article 1 (1) of Protocol No. 10 and Articles 34 (1) and (2) and 35 (1) of Regulation No. 44/2001 did not constitute grounds for refusal of recognition or enforcement of the default judgment. With regard to Article 34 (2) Advocate General Kokott concluded as follows: “123. Article 34(2) of Regulation No. 44/2001 is to be interpreted as meaning that recognition and enforcement of a default judgment may not be refused by reference to irregularities in the service of the document which instituted the proceedings, if it was possible for the defendant, who initially failed to enter an appearance, to commence proceedings to challenge the default judgment, if the courts of the State where the judgment was given then reviewed the judgment in full and fair proceedings, and if there are no indications that the defendant's right to a fair hearing was infringed in those proceedings.” On 28 April 2009, the Court (Grand Chamber) gave judgment. It ruled as follows: “1. The suspension of the application of the acquis communautaire in those areas of the Republic of Cyprus in which the Government of that Member State does not exercise effective control, provided for by Article 1(1) of Protocol No. 10 on Cyprus to the Act concerning the conditions of accession [to the European Union] of ... the Republic of Cyprus ... and the adjustments to the Treaties on which the European Union is founded, does not preclude the application of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to a judgment which is given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot Government, but concerns land situated in areas not so controlled. 2. Article 35(1) of Regulation No. 44/2001 does not authorise the court of a Member State to refuse recognition or enforcement of a judgment given by the courts of another Member State concerning land situated in an area of the latter State over which its Government does not exercise effective control. 3. The fact that a judgment given by the courts of a Member State concerning land situated in an area of that State over which its Government does not exercise effective control, cannot, as a practical matter, be enforced where the land is situated does not constitute a ground for refusal of recognition or enforcement under Article 34(1) of Regulation No. 44/2001 and it does not mean that such a judgment is unenforceable for the purposes of Article 38(1) of that regulation.” Further, the ECJ found, unlike the High Court, that Article 34 (2) of Regulation No. 44/2001, could not legitimately be relied upon to refuse recognition or enforcement of a default judgment as the applicants had been able and did commence proceedings to challenge the default judgment of the District Court. In particular, the ECJ stated as follows: 4. The recognition or enforcement of a default judgment cannot be refused under Article 34(2) of Regulation No. 44/2001 where the defendant was able to commence proceedings to challenge the default judgment and those proceedings enabled him to argue that he had not been served with the document which instituted the proceedings or with the equivalent document in sufficient time and in such a way as to enable him to arrange for his defence.” The Court of Appeal then gave judgment on 19 January 2010 in favour of the plaintiff. It first noted that the answers of the ECJ to the questions put were such that, subject to the further issues raised before it, the appeal should be allowed and the orders of Master Eyre registering and declaring enforceable the Cypriot judgments reinstated. It then went on to examine the two issues raised by the applicants for determination. These concerned the denial of enforcement on the basis of public policy and the possibility that the ruling of the ECJ was affected by the apparent bias of the President of that court and whether further questions on these matters should be referred to the ECJ. The Court of Appeal found firstly, that there was no public policy applicable in the United Kingdom to which the recognition and enforcement of the judgments of the Cypriot court would be manifestly contrary and secondly, that there was no appearance of bias on the part of the President of the ECJ. It therefore considered that no reference on the above issues should be made to the ECJ. From a letter dated 9 February 2010 sent to the Court by the applicants' lawyers it appears that the applicants have filed an appeal before the Supreme Court of the United Kingdom and that their application for stay of execution of the District Court's judgments was refused. “4. The appellant may, by his notice, appeal from the whole or any part of any judgment or order, and the notice shall state whether the whole or part only of the judgment or order is complained of, and in the latter case shall specify such part. The notice shall also state all the grounds of appeal and set forth fully the reasons relied upon for the grounds stated. Each ground of appeal shall be set out in a separate paragraph. After each ground of appeal the reasoning thereof shall be set out separately Any notice of appeal may be amended at any time as the Court of Appeal may think fit.” “8. The Court of Appeal shall have all the powers and duties as to amendment and otherwise of the Trial Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court. The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exercised by the said Court notwithstanding that the notice of appeal may be that a part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may be just.” “15. (2) Where the appeal is only from part of a judgment or order, the hearing shall be confined to that part. Further, the hearing shall be confined to the grounds stated and the reasons set forth in the notice of appeal. But these provisions shall be subject to the discretion of the Court of Appeal”. Pursuant to Article 21(2) of Law 14/60 (as amended) where an action concerns any matter relating to real property that action shall be brought before the District Court of the district in which such property is situated. By order of the Supreme Court published on 13 September 1974 in the Official Gazette of the Republic of Cyprus with Notification No. 1383 following the invasion of Cyprus, the territories of the districts of Kyrenia and Nicosia were reorganised. The power for merging of districts is granted to the Supreme Court by Section 3 (4) of Law 14/60 (as amended by Law 136/91). Under domestic law if the defendant does not enter an appearance in the 10 days following service of writ of summons instituting proceedings the plaintiff may apply for a default judgment. Entering an appearance is an act which does not require the defendant to set out the nature of any defence. Under Order 17 r. 10 of the Civil Procedure Rules: “Where judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the Court in a proper case to set aside or vary such judgment upon such terms may be just”. In proceedings to set aside a default judgment the claimant is required to establish the existence of a prima facie arguable defence concerning the merits of the case. The claimant is not required to prove his defence. Further, the claimant will be required to put forward an explanation concerning his/her failure to enter an appearance (see, for example, the Supreme Court's judgment of 25 October 2006 in the case of Elenitsa Constantinides v. Nur Habib Hissin, (2004) 1 C.L.R.1774; the Supreme Court's judgment of 18 September 2001 in the case of Bush and others v. Yiannis (2001) 1 C.L.R. 1432, relying on the case of Evans v. Bartlan (1937) 2 All ER 646). 1. The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control. 2. The Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1. Regulation No. 44/2001 lays down rules governing the jurisdiction of courts in civil and commercial matters. The relevant provisions of the Regulation provide as follows: “(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute. (17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation. (18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.” “The following courts shall have exclusive jurisdiction, regardless of domicile: “1. In proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. ... .” “A judgment shall not be recognised: 1. If such recognition is manifestly contrary to public policy in the Member State in which recognition is sought; 2. Where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;....” “1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72. 2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction. 3. Subject to ... paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.” “1. A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there. ....” “1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay. 2. Under no circumstances may the foreign judgment be reviewed as to its substance.” Article 43 of the Regulations provides for an appeal against the decision on the application for a declaration of enforceability. Article 44 provides for a further appeal.

dev

001-113719

ENG

RUS

CHAMBER

CASE OF MAKHMUDZHAN ERGASHEV v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Non-pecuniary damage - finding of violation sufficient

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

6. The applicant was born in 1972 and lives in St Petersburg, Russia. 7. The applicant is an ethnic Uzbek. He was born and lived in the town of Osh in the south of Kyrgyzstan. From 1999 until June 2006 the applicant worked at the South Warehouse of the State Reserves Fund in Jalal-Abad. The majority of the Kyrgyzstani nationals of Uzbek origin – around 14% of Kyrgyzstan’s overall population – live in the south of the country, in particular, in Osh and Jalal-Abad. 8. On 11 July 2006 the applicant arrived in St Petersburg, Russia, in order to accompany his wife’s father who was having medical treatment in a clinic in St Petersburg. According to the applicant, he has not returned to Kyrgyzstan since then. He stayed in Russia and worked as a taxi driver. According to records of the traffic police for St Petersburg and Leningrad region, he committed minor traffic violations on 16 August, 17 and 22 September and 9 November 2006, as well as in 2007-2010. From 17 October 2006 to 12 January 2007 he was officially registered as residing at a certain address in St Petersburg. His wife and two children joined him in 2008. His wife obtained Russian citizenship in March 2011. His other two children and his parents stayed in Osh. 9. On 16 March 2007 the Jalal-Abad regional prosecutor’s office brought criminal proceedings against the applicant on suspicion of embezzlement of State funds. The decision stated that the applicant had been appointed a warehouse supervisor at the South Warehouse of the State Reserves Fund on 30 December 2006 and that while in that post he had misappropriated, during the period from November 2006 to January 2007, goods stored at the warehouse in Jalal-Abad for which he was responsible at the time, had sold them and used the money so received for his personal needs. 10. On 22 May 2007 an investigator at the Jalal-Abad regional prosecutor’s office charged the applicant in absentia, issued an order for him to be remanded in custody, declared him a wanted person and stayed the investigation until he had been arrested. On 1 October 2010 the investigator rectified the charges against the applicant, following the amendment of the Criminal Code, to embezzlement under Article 171 § 4 of the Code, which is punishable in particular by imprisonment of five to eight years. 11. On 25 March 2011 the applicant sent an application to the JalalAbad prosecutor’s office, seeking to have the criminal proceedings against him terminated. To demonstrate lack of grounds for suspicion he argued that a government audit carried out in June 2006 had not revealed any violations at his place of work and that he had been living in Russia at the time of the alleged offence, as confirmed, inter alia, by his passport and his residence registration. Decisions to dismiss his application and to stay the criminal proceedings against him until he had been extradited were communicated to his representatives orally. 12. On 30 August 2010 the applicant, who had been placed on an international wanted list, was arrested in the Leningrad region and placed in a temporary detention facility at the Gatchina district police department. 13. On 31 August 2010 the Gatchina Town Court allowed the Gatchina district prosecutor’s request for the applicant to be remanded in custody pending a decision on his extradition. The Town Court decision was upheld on appeal by the St Petersburg City Court on 20 October 2010. All subsequent applications by the prosecutor’s office for extension of the applicant’s detention pending the extradition proceedings were allowed, except for an application of 5 July 2011 which was refused by the Town Court on 7 July 2011 (upheld on appeal by the Leningrad Regional Court on 24 August 2011) and the applicant’s release on bail was ordered. The bail was set at 600,000 Russian roubles (RUB). The Town Court held that if the money was not deposited the applicant should remain in custody until the maximum time-limit for detention had been reached, that is until 30 August 2011, and should then immediately be released. 14. The applicant’s family failed to deposit the sum required and the applicant remained in custody until 30 August 2011, when his release was ordered by a deputy prosecutor of the Leningrad region, subject to an undertaking not to leave his place of residence, appear on summons before the Leningrad regional prosecutor’s office and abide by the legislation of the Russian Federation. The applicant gave the undertaking and was released on 31 August 2011. 15. On 29 September 2010 a deputy Prosecutor General of Kyrgyzstan lodged a request with a deputy Prosecutor General of the Russian Federation, seeking the applicant’s extradition to Kyrgyzstan for prosecution on charges of embezzlement. The request stated, inter alia, that in accordance with Article 66 of the Minsk Convention, the Kyrgyz Republic Prosecutor General’s Office guaranteed that the applicant would not be extradited to a third State without the Russian Prosecutor General’s consent, that he would not be prosecuted or sentenced for any other crime committed before his extradition, that he was being prosecuted for a general criminal offence which was not of a political nature, and that he was not being discriminated against on any ground, including that of his ethnic origin. After the trial or, if convicted, after serving his sentence, the applicant would be free to leave the territory of Kyrgyzstan. 16. On an unspecified date the Prosecutor General’s Office of the Russian Federation made enquiries of the Russian Ministry of Foreign Affairs on the issue of extradition to Kyrgyzstan. On 22 November 2010 the Ministry of Foreign Affairs replied as follows: “... the Ministry of Foreign Affairs has no information which prevents the extradition of the national of Kyrgyzstan M.M. Ergashev to the law-enforcement authorities of the Kyrgyz Republic. At the same time, when taking the ultimate decision on extradition of nationals of Kyrgyzstan, it is necessary to take into account the difficult internal political situation which has emerged in Kyrgyzstan at the present time, as well as the aggravation of inter-ethnic tension, which predetermines a possibility of biased examination of cases against citizens of this country not belonging to the titular ethnic group. In particular, the Ministry of Foreign Affairs has information concerning serious breaches in a number of court proceedings against Kyrgyz nationals of Uzbek origin; cases of intimidation of witnesses and assaults on lawyers are not infrequent.” 17. On 30 December 2010 the deputy Prosecutor General of the Kyrgyz Republic provided additional assurances to the deputy Prosecutor General of the Russian Federation, stating that the request for the applicant’s extradition had no connection with the events in Osh in June 2010 and earlier, that the applicant would not be subjected to torture, violence or other inhuman or degrading treatment or punishment, that he would not be sentenced to death, and that he would be provided with every opportunity to defend himself, including legal aid. 18. On 3 March 2011 the deputy Prosecutor General of the Russian Federation approved the request of the Prosecutor General’s Office of the Kyrgyz Republic for the applicant’s extradition. The decision noted that the acts of which the applicant was accused were punishable under the Criminal Code of the Russian Federation with a penalty exceeding one year’s imprisonment, that the prosecution was not time-barred, that the applicant was a national of Kyrgyzstan, that he had not acquired Russian nationality, and that his extradition was not in breach of international agreements or domestic law. 19. The deputy Prosecutor General of the Russian Federation requested the Special Representative of the President of the Russian Federation on international cooperation in the fight against terrorism and transnational organised crime to provide assistance, via the Foreign Affairs Ministry, in ensuring the observance of the applicant’s rights after his transfer to Kyrgyzstan (letter 81/2-1864-10 of 2 March 2011). 20. On 19 December 2010 the applicant lodged a request with the Federal Migration Service (FMS) for refugee status. He stated that if returned to Kyrgyzstan he, as an ethnic Uzbek, would be in real danger of his life because of the inter-ethnic conflict in the country. 21. On 7 February 2011 his application was rejected by the FMS for St Petersburg and Leningrad region. The FMS noted, in particular, that according to its records, after his entry to Russia on 11 July 2006 the applicant had gone abroad only once from 29 May to 3 June 2008, to Uzbekistan. There were cancelled stamps in his passport certifying his exits from and entries to Russia, and also stamps which were not authentic, according to an expert opinion of 4 February 2011. Two pages of his passport were missing. According to the FMS, the applicant’s lengthy fouryear stay in Russia without returning to Kyrgyzstan, where his family had been living, had apparently shown that he had been avoiding entering his country because he was wanted by the law-enforcement bodies, and the fact that he had applied for asylum six months after the June 2010 events meant that he had not felt himself to be in any danger. The FMS found that the applicant had come to and stayed in Russia not because he wished to receive asylum but in order to find employment and improve his financial situation. He was not therefore eligible for refugee status. 22. The FMS reviewed the situation in Kyrgyzstan after the June 2010 events, including the constitutional referendum and the parliamentary elections. It noted reports by Human Rights Watch and The Jamestown Foundation, as well as the UN’s development programmes carried out in cooperation with the Kyrgyz authorities which were aimed, first of all, at building peace and democratic governance, fighting poverty and working with local communities, and were financed by grants which had doubled during the last five years and totalled 21,000,000 US dollars in 2011. It further noted that 2011 had been declared the Year of Inter-Ethnic Concord and Friendship, with various programmes organised by local authorities, and national and international trade fairs. The FMS considered that the situation in Kyrgyzstan had significantly changed, there had been no interethnic incidents and the Government had been undertaking enhanced measures to ensure the security of its citizens and to improve the social, economic and political situation in the country. 23. The applicant appealed against the decision of the FMS of St Petersburg and Leningrad region to the FMS of the Russian Federation, which upheld the decision on 24 May 2011, noting that the applicant’s fears of persecution on the ground of his ethnic origin had not been justified. 24. The applicant lodged a court appeal against the Prosecutor General’s extradition order. He submitted that, in view of the unstable political situation in Kyrgyzstan and ethnic unrest between the Kyrgyz majority and the Uzbek minority, the decision in question entailed for him a serious risk that he would be subjected to torture. He referred to statements by the Russian Ministry of Foreign Affairs of 22 November 2010, The Independent International Commission of Inquiry into the events in southern Kyrgyzstan, Human Rights Watch and other sources. 25. On 9 June 2011 the St Petersburg City Court examined the applicant’s appeal at an open hearing in the presence of the applicant, his lawyer and the prosecutor. The applicant argued, in particular, that Uzbeks were oppressed and discriminated against in Kyrgyzstan and that he might therefore be subjected to torture or other ill-treatment. The City Court noted that the decision for the applicant’s extradition complied with the requirements of Article 56 of the Minsk Convention and the Code of Criminal Procedure of the Russian Federation. The decision had been taken by the appropriate authority. The applicant was a national of Kyrgyzstan and had not obtained Russian nationality. There were no criminal proceedings against him in Russia in connection with the acts imputed to him. There was no court decision about the existence or otherwise of impediments to his extradition. Therefore the City Court did not find any grounds for refusal of his extradition. It examined the assurances of the Prosecutor General’s Office of the Kyrgyz Republic and stated that it had no reasons to doubt that they would be observed. It took into account that, according to the information the FMS for St Petersburg and the Leningrad region had when it made its decision in the applicant’s case, which was upheld by the FMS of the Russian Federation, the social, economic and political situation in Kyrgyz Republic had normalised since the interethnic clashes in June 2010. It also took into account that the applicant was accused of an ordinary crime which had no political or ethnic character, and that it had been committed in 2006-07, long before the inter-ethnic clashes. The applicant had not claimed that he was being persecuted for political reasons, stating that he had moved to Russia to find employment. Therefore, the fears that he might be subjected to ill-treatment or discrimination on the ground of his ethnic origin or other grounds had not been objectively justified. 26. The City Court further stated that a court appeal against the FMS’s decisions in the applicant’s case to refuse him refugee status could not suspend or block the applicant’s extradition. It noted that while the applicant had arrived in Russia more than three years previously for material gain he had applied for refugee status only after his detention, thereby pursuing the aim of delaying his extradition. It further noted that the applicant’s guilt was beyond its scope of examination. It held that the extradition decision was lawful and dismissed the appeal. 27. On 7 November 2011 the Supreme Court of the Russian Federation examined the applicant’s appeal against the City Court’s judgment in which he argued, in particular, that if extradited he would run a real risk of torture because he belonged to the Uzbek minority, as confirmed by, inter alia, The Independent International Commission of Inquiry into the events in southern Kyrgyzstan, and that the Kyrgyz Republic’s official assurances would not prevent that risk. Having heard the applicant’s counsel and the prosecutor, the Supreme Court endorsed the lower court’s findings, noting also that the applicant had left Kyrgyzstan for Russia in order to find employment and not because of persecutions on the ground of his ethnic origin, and that the decision to extradite him had been taken in accordance with Article 61 of the Agreement between the Russian Federation and Kyrgyzstan On Legal Aid and Legal Relations in Civil, Family and Criminal Cases of 14 September 1992, and that the request for extradition had complied with Articles 1 and 12 of the European Convention on extradition of 13 December 1957 and Article 58 of the Minsk Convention. The Supreme Court rejected the applicant’s appeal and upheld the lower court’s decision. 28. On 25 November 2011 the St Petersburg Dzerzhinskiy District Court rejected the applicant’s appeal against the FMS’s decisions. It stated in its judgment that the applicant had submitted at the hearing that he did not fear for the life and health of his children and parents who had stayed in Osh, that he had not been persecuted on account of his ethnic origin, political or religious grounds, though there had always been tensions between Uzbeks and Kyrgyz in everyday life, and he had known about the harassment of Uzbeks in Kyrgyzstan from his friends and brother who had been beaten up during the events in June 2010. The District Court found that it did not follow from the materials before it that the applicant had left his country and did not wish to return there because of some real events menacing him personally. The absence of a real threat was confirmed, in particular, by the fact that his family, which included minor children, living in Osh had never been discriminated against. He had failed to submit any evidence that he or his family had been persecuted on the ground of their ethnic origin, or any evidence for such fears. He had referred in general to the situation in the country, without giving any details. 29. An appeal against the District Court’s judgment lodged by the applicant’s counsel did not comply with the relevant procedural requirements and on 20 January 2012 the District Court refused the applicant’s request for an extension of the time-limit for lodging a proper appeal. Proceedings in which the applicant challenged that finding are pending. 30. On 7 April 2010 President Bakiyev was overthrown after popular demonstrations and a Provisional Government headed by Roza Otunbayeva assumed power. 31. On 10 June 2010 and the days which followed inter-ethnic clashes erupted in the south of the country in Osh and Jalal-Abad, in which ethnic Kyrgyz and ethnic Uzbeks committed violence against each other. 32. Kyrgyzstan adopted a new Constitution via a 27 June 2010 referendum. According to the Organization for Security and Co-operation in Europe’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Limited Referendum Observation Mission Report, the authorities succeeded in creating the necessary conditions for the conduct of a peaceful constitutional referendum despite challenging circumstances. 33. On 10 October 2010 Kyrgyzstan held parliamentary elections. The OSCE/ODIHR provided a cautiously optimistic assessment of the elections, despite some shortcomings. 34. On 30 October 2011 Kyrgyzstan held presidential elections. According to the OSCE/ODIHR Election Observation Mission Final Report, “the election was conducted in a peaceful manner, but shortcomings underscored that the integrity of the electoral process should be improved to consolidate democratic practice in line with international commitments. Candidate registration was inclusive, giving voters a wide choice, and the electoral campaign was open and respected fundamental freedoms. These elements, however, were overshadowed by significant irregularities on election day, especially during the counting and tabulation of votes.” The inauguration of the newly-elected President Mr Atambayev took place on 1 December 2011. 35. The Independent International Commission of Inquiry into the events in southern Kyrgyzstan (“KIC”) was established with a support by the Kyrgyz authorities. After broad consultation with numerous international bodies, including the UN, the OSCE, the EU, the CIS and the office of the UN High Commissioner for Human Rights, the terms of reference were established and endorsed. The KIC was mandated to investigate the facts and circumstances relevant to incidents that took place in southern Kyrgyzstan in June 2010, qualify the violations and crimes under international law, determine responsibilities and make recommendations, particularly on accountability measures, so as to ensure the non-repetition of the violations and to contribute towards peace, stability and reconciliation. The KIC acknowledged the excellent cooperation of the authorities of Kyrgyzstan. It published its report in May 2011. The executive summary of the report states, inter alia, as follows: “2. ... The events must be viewed in the context of the historical and political background of the region, particularly the relationship between the communities of ethnic Kyrgyz and ethnic Uzbeks. In this regard the KIC notes the underrepresentation of ethnic Uzbeks in public life and the rising force of ethnonationalism in the politics of Kyrgyzstan. The KIC notes further the power vacuum and consequent political rivalries, fragile state institutions and the weak rule of law in southern Kyrgyzstan in the wake of the 7 April overthrow of the Bakiyev government. 3. The events resulted in significant loss of life and injury, of which the majority of victims were ethnic Uzbeks. In total about 470 people died. It is expected that this figure will grow but not substantially. About 1,900 people received medical assistance at hospitals. Many thousands of people were displaced. About 111,000 people were displaced to Uzbekistan and a further 300,000 were internally displaced. There was also significant property damage, again to a disproportionately high number of ethnic Uzbek owned properties. In total about 2,800 properties were damaged. The KIC notes that ethnic Kyrgyz also suffered very significant losses, in terms of life, health and property. The KIC has found that both communities suffered loss. 8. In addition to the documented international and domestic criminal acts, the KIC has found that there have been and still are serious violations of international human rights law committed by the State in the aftermath of the events. There is a consistent and reliable body of material which tends to show that acts of torture were committed in detention centres by the authorities of Kyrgyzstan in the aftermath of the June events. Of particular concern to the KIC is that such acts of torture are ongoing and that the response of the authorities to allegations of torture has been grossly inadequate. 9. Criminal investigations and trials which have resulted from the June events have been marked by breaches of the ICCPR fair trial rights. Large scale sweep operations conducted in Uzbek mahallas on 21 to 23 June and the smaller scale search operations which then followed have involved ill-treatment and arbitrary arrest and detention. There has been selective prosecution targeting the ethnic Uzbek minority. Defence lawyers representing ethnic Uzbek defendants have been subject to improper interference and intimidation. 10. ... The Provisional Government, which had assumed power two months before the events, either failed to recognize or underestimated the deterioration in interethnic relations in southern Kyrgyzstan. ... 14. As to conflict prevention and reconciliation, the KIC recommends measures on inclusive state building; ... Kyrgyzstan should take a strong public stand against extreme nationalism and ethnic exclusivity. ... 15. ... The government should ensure the conduct of thorough, independent and impartial investigations into crimes or other human rights violations without reference to ethnicity and should consider seeking international assistance to do so. ... The Government should immediately stop all arbitrary arrests, torture in detention and other human rights violations. ...” 36. In their June 2012 report “Kyrgyzstan: Dereliction of Duty” Amnesty International stated, in particular, as follows: “Despite the acknowledgment by a number of officials that torture and other illtreatment in detention continues to be a problem and despite repeated efforts, including issuing decrees and instructions, by the former President and the new Prosecutor General to stop the routine use of beatings and other ill-treatment in order to extract confessions, there appears to be little commitment at regional and local levels to effectively and decisively address and prevent these serious human rights violations. ... While human rights monitors report fewer arbitrary arrests, nevertheless, two years on from the June violence, torture and other ill-treatment, including beatings, by law enforcement officers unfortunately appear to continue to be routine ... There are serious concerns that while investigating crimes police officers have continued to target Uzbeks and Uzbek neighbourhoods, threatening to charge them with serious crimes, such as murder, in relation to the June violence in order to extort money from them. Those who have returned from seasonal work in Russia or Kazakhstan or families who have relatives working outside the country are particularly vulnerable to arbitrary detention, intimidation and extortion since they are assumed to have ready access to money and foreign currency. ... Impunity for law enforcement officers who have perpetrated torture and other illtreatment has long been a serious problem in Kyrgyzstan, especially at the local and regional levels. Since the June 2010 violence this has become ever more apparent but despite a number of positive initiatives and concrete measures in 2011 by the former President and the current Prosecutor General on the prohibition of torture, regrettably only a handful of prosecutions for torture or other ill-treatment in police custody appear to have taken place. ... Given the admissions by the Prosecutor General and the current and former Presidents that torture and other ill-treatment is widespread the extremely low number of prosecutions of security officers for torture and the absence of any convictions for torture casts doubt on the commitment of the authorities to seriously and effectively redress these crimes and human rights violations.” 37. In their report ‘Distorted Justice’, published in June 2011, Human Rights Watch noted an impact which the June 2010 events had had on the problem of torture: “Lawyers and other observers noted that the problem of torture and illtreatment worsened significantly after the June events, and was routine in cases involving ethnic Uzbek suspects detained on charges unrelated to the June 2010 violence. In an interview about the use of torture in Kyrgyzstan in 2010, a human rights defender who has researched police torture in Kyrgyzstan for four years noted: The June events [exacerbated] the situation regarding torture and completely untied the hands of the police officers and the security service. We even heard about the use of torture by the tax police. ... Many are convinced that if torture is used against, for example, Uzbeks, then that is normal.” 38. Human Rights Watch World Report 2012: Kyrgyzstan (Events of 2011) contains the following findings concerning the situation in Kyrgyzstan: “In 2011 Kyrgyzstan continued to grapple with the consequences of the June 2010 violence that erupted between ethnic Kyrgyz and Uzbeks in the country’s south, killing more than 400 people. Four commissions of inquiry were completed and thousands of criminal investigations continued in 2011, with the justice process skewed to scapegoat ethnic Uzbeks for the violence. Torture and arbitrary detentions in the context of investigations into the June 2010 violence are rampant and go largely unpunished. Ethnic Uzbeks in the south are particularly vulnerable to police torture. Violations of international fair trial standards plagued the administration of justice in the south. ... The authorities opened more than 5,000 criminal cases into the June 2010 violence. Although most of those killed were ethnic Uzbek, 83 percent of those facing prosecution for homicide were also ethnic Uzbek. In 2011 trials in connection with the June 2010 violence continued to be held with violations of international fair trial standards. Defendants, mostly ethnic Uzbeks, are found guilty and sentenced to prison terms ranging from several years to life primarily based on confessions that many allege were coerced under torture. ... While local human rights NGOs report that incidents of arbitrary detentions and torture in police custody decreased in 2011 in the south, these abuses remain rampant and unpunished, particularly in the context of investigations into the June 2010 violence. Most judges in such cases dismiss, ignore, or fail to order investigations into torture allegations. In at least nine cases police also arbitrarily detained and tortured ethnic Uzbek men and threatened to charge them in relation to the June 2010 violence if they did not pay large sums. Human Rights Watch research found at least two ethnic Uzbeks died in 2011 due to injuries sustained when detained in police extortion schemes. Given the routine use of torture by the country’s law enforcement officials, efforts by the prosecutor’s office to investigate allegations of torture were inadequate. ...” 39. International Crisis Group Asia report no. 222 of 29 March 2012 “Kyrgyzstan: widening ethnic divisions in the south” reads, inter alia, as follows: “Kyrgyzstan’s government has failed to calm ethnic tensions in the south, which continue to grow since the 2010 violence, largely because of the state’s neglect and southern leaders’ anti-Uzbek policies. Osh, the country’s second city, where more than 420 people died in ethnic clashes in June of that year, remains dominated by its powerful mayor, an ardent Kyrgyz nationalist who has made it clear that he pays little attention to leaders in the capital. While a superficial quiet has settled on the city, neither the Kyrgyz nor Uzbek community feels it can hold. Uzbeks are subject to illegal detentions and abuse by security forces and have been forced out of public life... The nationalist discourse that emerged after the Osh violence unnerved the interim government that had replaced President Kurmanbek Bakiyev in April 2010. Until the end of its term in late 2011, it was largely ignored, and sometimes openly defied, by Osh Mayor Melis Myrzakmatov, the standard-bearer of an ethnic Kyrgyz-first policy and the most successful radical nationalist leader to emerge after the killings. This did not change when President Almazbek Atambayev, a northerner, took office in December 2011. Senior members of his administration express dismay at tensions in the south but say they have no way of influencing the situation there. Uzbeks are increasingly withdrawing into themselves. They say they are marginalised by the Kyrgyz majority, forced out of public life and the professions; most Uzbek-language media have been closed; and prominent nationalists often refer to them as a diaspora, emphasising their separate and subordinate status. International organisations report continuing persecution of Uzbeks by a rapaciously corrupt police and prosecutorial system, almost certainly with the southern authorities’ tacit approval. The flight of many Uzbek business people and the seizure of Uzbekowned businesses have sharply diminished the minority’s once important role in the economy. The sense of physical and social isolation is breeding a quiet, inchoate anger among all segments of the community – not just the youth, who could be expected to respond more viscerally to the situation, but also among the Uzbek elite and middle class. ... The views of southern Kyrgyz have also hardened since the violence. Many feel that Uzbeks brought disaster on themselves with an ill-advised power grab in June 2010. This version of history has not been proven; it is privately doubted even by some senior Kyrgyz politicians, but hardly ever challenged by them. Myrzakmatov enjoys considerable approval among broad segments of southern Kyrgyz society – including among the younger, better educated and urbanised social groups that might have been expected to take a more liberal and conciliatory position. Ominously, he re-stated and strengthened his tough anti-Uzbek approach in late 2011 in a book on the June 2010 violence. Depicting Uzbeks as an essentially separatist force that threatens Kyrgyzstan’s survival, he stressed the need for nonKyrgyz ethnic groups to understand their future role would be as subordinates.” 40. The International Crisis Group states that the police in Kyrgyzstan are currently almost exclusively ethnically Kyrgyz. “The wave of abusive detentions, extortion and torture directed at the Uzbek community since soon after June 2010 is widely referred to simply as ‘impunity’. If police abuse and torture are unexceptional, the extent, duration and the clear target of this campaign has been highly unusual. Most long-time observers feel that senior southern politicians and officials continue to countenance abuses in order to ensure police support. With rare exceptions the victims have all been Uzbek, some as young as fourteen. They range from migrant workers, often thought to have large amounts of cash on their return from Russia or elsewhere, to businessmen.” “The government acknowledges the problem of torture and has taken steps to address it, but these have proven almost completely ineffectual. The prosecutor-general issued three decrees in 2011 aimed at checking and punishing the use of torture and ill treatment of detainees. There have, however, been no successful prosecutions. Three memorandums of understanding between prosecutors and southern human rights organisations have likewise had little effect.” 41. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, visited Kyrgyzstan from 5 to 13 December 2011 at the invitation of the Government, which provided him with unrestricted access to detention facilities. The purpose of the visit was to assess the situation as regards torture and ill-treatment in the country, including conditions of detention, and to identify measures needed to prevent torture and ill-treatment in the future. The report on that mission was presented at the 19th session of the United Nations Human Rights Council and states, inter alia, as follows: “9. Kyrgyzstan is a party to the main United Nations human rights treaties prohibiting torture and ill-treatment, including the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. Kyrgyzstan acceded to the Optional Protocol to the Convention against Torture in 2008. The State is also a signatory to the Rome Statute of the International Criminal Court. 35. ... pursuant to Presidential Decree No. 41, various public advisory councils were established within the Ministry of the Interior and Prosecutor General’s office in Bishkek, Osh and Jalal-Abad, entrusted with monitoring places of detention. In addition, public monitoring councils, which comprise representatives from civil society, were created under the Ministry of the Interior, the State Service for the Execution of Punishments and the State Committee of National Security to monitor detention facilities and other closed institutions. Furthermore, a draft law on the police force and the prospect of reforming the Ministry of the Interior are both under discussion. The draft bill on the national centre for the prevention of torture had been finalized and was to be submitted to Parliament for discussion early in 2012. Since May 2011, three memorandums of understanding had been signed by prosecutors and civil society organizations – for Jalal-Abad province, for Osh City and for Osh province – providing for public councils to identify solutions and building confidence in the prosecutorial authorities. The first initiative of the public councils was the installation of closed-circuit cameras in some temporary detention facilities in JalalAbad province. 37. The Special Rapporteur received numerous accounts and eyewitness testimonies suggesting that torture and ill-treatment had been historically pervasive in the law enforcement sector. This practice has been intensified by the turbulence of the past two years with the ousting of President Bakiev in April 2010, followed by the violence that took place in the South in June 2010. During the violence in June 2010 and its aftermath, reports consistently highlighted the frequency and gravity of arbitrary detention, torture and ill-treatment by law enforcement bodies. 38. Throughout the mission, testimonies of victims and their lawyers pointed to general patterns of torture and ill-treatment committed by police officers after arrest and during the first hours of informal interrogation. During interviews with victims, the Special Rapporteur heard multiple allegations of torture that shared the same pattern: asphyxiation with plastic bags and gas masks with no flow of oxygen; punches and beatings with truncheons; the application of electric shock and the introduction of foreign objects into the anus, or the threat of rape. ... The Special Rapporteur was told that the use of torture by the criminal investigation police was exacerbated by the heavy reliance on confessions in the judicial system. 39. The Special Rapporteur has concluded that, in the immediate aftermath of the violence of June 2010, there was a significant increase of continued arbitrary arrests and detentions, incidents of forced confession under the use of torture and illtreatment during arrest and while in detention, denial of access to a lawyer of one’s choosing, denial of independent medical aid, threats and extortion of money in exchange for dropping or mitigating charges. These incidents, usually committed by the operative-investigating officers of the Ministry of the Interior during the first hours of apprehension and interrogation, continued to be widespread throughout 2011. 46. The Special Rapporteur received reports according to which, in practice, confessions obtained under torture are not expressly excluded as evidence in court. Moreover, the majority of verdicts in criminal cases are mostly based on voluntary confessional statements made during the investigation or at the time of surrender. In addition, the courts encourage this practice by giving undue weight to confessions when evaluating evidence. If a defendant claims during trial that the confession was obtained through torture, the courts either ignore such statements altogether or conduct a superficial inquiry by simply questioning the police officers in court. After the officers deny the use of torture, the judge concludes that the defendant’s allegations are not substantiated and should be treated as an effort to avoid justice. 42. The Special Rapporteur noted that in contrast to the open recognition of the existence of torture and ill-treatment by the current and former President, the deputy Speaker, the Head of the Parliamentary Committee and the Prosecutor General, he had heard of no “such instructions communicated by the responsible officials of the Ministry of the Interior to condemn torture and ill-treatment or to declare unambiguously that torture and ill-treatment by police officers would not be tolerated”, and that it remains to be seen how the Prosecutor General’s instructions “will be implemented at the city and provincial levels”. 43. A report of the United Nations High Commissioner for Human Rights, Navanethem Pillay, on technical assistance and cooperation on human rights for Kyrgyzstan covering the period from June 2010 to February 2011, which was examined by the Human Rights Council at its 17th session, stated, in particular, as follows: “5. Despite the efforts of the Government to address human rights issues, a number of serious concerns persist, such as the increase in reports of discriminatory practices by government bodies towards minorities, and the ongoing use and practice by law enforcement bodies of ill-treatment and torture while detainees are in custody. 6. Deficiencies in the administration of justice pose a major impediment to the reestablishment of the rule of law. The judicial system must maintain its impartiality irrespective of the ethnicity of victims, lawyers and defendants. ... 36. Further to the June 2010 violence, the authorities took steps to investigate and bring to justice those suspected of involvement in the events. The Office of the Prosecutor in Osh and Jalal-Abad reportedly initiated investigations into more than 5,000 cases. In cases which have come to trial, most defendants have been ethnic Uzbek. Scores of individuals wanted for involvement in the June 2010 violence reportedly remain at large. 37. Trials of defendants accused of involvement in the June 2010 violence have failed to uphold basic standards for fair trial, in courts both of first and second instance. Alleged violations of fair trial standards include torture and ill-treatment ... 43. On 11 January 2011, the National Commission of Inquiry established by President Otunbaeva in July 2010 presented its report. According to the Commission, the violence was instigated by ethnic Uzbek community leaders and supporters of former president Bakiyev. The Commission states that members of the provincial government and the security forces failed to respond promptly and prevent the violence. The Commission also found that members of law enforcement tortured detainees, most of whom were ethnic Uzbeks. 44. On 13 January 2011, the Ombudsman of Kyrgyzstan presented his report on his investigation into the June events, stating that his office supports the conclusions of the National Commission of Inquiry, in particular that the conflict was initiated by ethnic Uzbek provocateurs. According to the conclusion of the Ombudsman’s investigation, the conflict was due to the socio-economic situation in the southern region that originated in the Soviet time, when ethnic Uzbeks enjoyed better living standards than ethnic Kyrgyz. 45. There have been concerns about the lack of independence and impartiality of both investigations. At least three members of civil society, who were among members of the National Commission of Inquiry, expressed concerns about the modalities, composition and the terms of reference of the National Commission. Both reports largely reflected views held among some ethnic Kyrgyz politicians and the majority of the public. Debates in Parliament on the findings of the National Commission were characterized by numerous provocative nationalistic statements and biased remarks regarding the role of ethnic Uzbeks in the violence. ... 47. In the aftermath of the June 2010 violence, OHCHR received numerous reports of arbitrary detention in Osh and Jalal-Abad. In the majority of the cases documented by the Office, the victims were ethnic Uzbek. ... There were numerous reports of extortion by police in such cases of detention. ... 48. During the period under review, OHCHR documented cases of torture or illtreatment. The frequency and gravity of allegations raised serious concern. While most cases involved various forms of beatings, the Office also documented cases of torture in which victims described being subjected to electro-shock, including to the genitals; suffocation; sustained beatings; and death threats. Torture was reportedly often accompanied by ethnicity-based harassment and humiliation. 49. Concerns about frequent allegations of torture and ill-treatment were compounded by the failure of the authorities to take steps to investigate such allegations, bring to justice perpetrators and provide victims with redress. During the period under review, the Office of the Prosecutor in Osh did not pursue investigations into allegations of torture, despite the numerous cases in which significant evidence was available and in which complaints had been filed. 50. ... To date, the police, prosecutors and members of the judiciary have not acted upon allegations of torture in the aftermath of the June 2010 violence. 67. Since the April 2010 unrest and particularly following the June 2010 interethnic violence, there has been growing concern at the rise in discriminatory practices faced by members of minorities at the institutional level. This is increasingly reflected in attitudes within the public at large. In particular, ethnic Uzbeks have faced ongoing discrimination in the aftermath of the June 2010 inter-ethnic violence. 68. In recent months, concern has increased at the growing inter-ethnic tensions in the country, which are contributing indirectly to the rise in internal migration and emigration. Statements by a few officials in various regions of the country have often fuelled the nationalistic discourse and contributed to feelings of vulnerability within the minority communities. 69. Reports of cases where ethnic minorities are subjected to the illegal seizure of their land, unlawful takeover of their businesses, or physical or verbal threats, are becoming more commonplace. Due to a pervasive fear among victims of such ethnically motivated acts, there is a general reluctance to file complaints with the law enforcement bodies. To date, no criminal case has been brought by the law enforcement authorities under article 299 of the Criminal Code, which proscribes “incitement to inter-ethnic hatred”. 78. On administration of justice: (b) ... In case of retrials related to the June 2010 events, the hearings should not take place in courts in the south of the country in order to ensure impartiality of judges. Judges should maintain their impartiality irrespective of the ethnicity of victims, lawyers and defendants. To ensure such impartiality, provincial rotation mechanisms of judges and other participants in judicial processes should be adopted. 79. On torture and detention: (b) The Government, prior to the establishment and commencement of functions of the national preventive mechanism under the Optional Protocol to the Convention against Torture, should guarantee unrestricted access by civil society monitoring groups to all places of deprivation of liberty ... 82. On minority rights: (a) Utmost attention should be paid to building trust and confidence among communities throughout the country and to ensure the prevention of hate speech, which could fuel further tensions. The Government, at the highest levels, should emphasize that promotion and protection of minority rights are an integral part of and a main priority for peace and reconciliation and a central pillar of the country’s political, economic and security strategies; ...” 44. Following the examination of the report the Human Rights Council adopted, in June 2011, a resolution in which it, inter alia, urged “the Government of Kyrgyzstan to ensure that progress is made in improving the human rights situation in the areas of administration of justice, torture and arbitrary detention, the right to adequate housing, the rights of women, minority rights and human rights mechanisms” and “to promote and protect human rights and fundamental freedoms for all, in particular, to address ongoing arbitrary detentions, torture and corruption by law-enforcement and Government officials”. 45. A report of the United Nations High Commissioner for Human Rights on technical assistance and cooperation on human rights for Kyrgyzstan covering the period from June 2011 to February 2012, which was examined by the Human Rights Council at its 20th session in July 2012, notes that “serious institutional deficiencies have hampered the delivery of justice and undermined the rule of law, and points out that the lack of progress in addressing these matters impacts on reconciliation and peacebuilding efforts between the ethnic communities, as well as between civil society and authorities, with serious risks for the long-term stability of the country. The report further describes the ongoing practice of arbitrary detention and torture and continued discriminatory patterns based on ethnic grounds. In this context, it highlights institutional shortcomings, lack of capacity and, in some instances, lack of political will to take necessary measures.” It notes that ten months after the signature of the memorandums of understanding between prosecutors and human rights organisations in Osh Province, Osh City and Jalal-Abad Province setting out mechanisms for regular dialogue and cooperation on the prevention and prosecution for torture within the framework of public councils, little substantial progress has been made, due in part to the lack of trust on the part of human rights NGOs in the prosecutorial authorities and the overall lack of strategic engagement by all parties, posing challenges to the effective functioning of the public councils. As regards the installation of closed circuit television cameras in the temporary police detention centres in Jalal-Abad, the report notes that while they “can be an additional measure to prevent torture, it is not a panacea for the human rights violations observed in detention centres, given the potential ease with which the system can be bypassed or disabled.” The report also stated as follows on the minorities’ issue: “69. There is a wide gap between the authorities’ view of inter-ethnic relations and those of ethnic minority communities themselves. Authorities paint a positive picture, while communities raise concerns including: (i) the need to stop any police misconduct, in particular arbitrary arrest, extortion, ill-treatment and torture; ...” 46. In her opening remarks at a press conference on 10 July 2012 during her visit to Kyrgyzstan, UN High Commissioner for Human Rights, Navanethem Pillay, stated, inter alia, as follows: “... The most serious problem lies in the failure to implement laws and reforms in line with international standards, as well as to act in accordance with Kyrgyzstan’s new Constitution. Take torture as an example: under international law there is an absolute prohibition of torture. This is reflected in the Kyrgyz Constitution, Article 22 of which categorically prohibits torture and all other forms of cruel, inhuman and degrading treatment and punishment. The Criminal Code also recognizes torture as a crime. Yet we continue to receive evidence of torture being committed by state authorities, including 68 cases of alleged torture or ill-treatment between August 2010 and February 2012 in the context of criminal investigations into the June 2010 violence in Osh and neighbouring regions. This is believed to be only a fraction of the real total. I was encouraged to hear from the Minister of Interior that in recent months the process of establishing accountability for police officers is starting to produce results, with internal investigations launched in 286 cases, resulting in 38 officers being subjected to criminal investigation, and 47 others being fired from their jobs. It is important that the full details of such cases become known both as a deterrent to other police officers thinking of carrying out acts such as torture or extortion, and as reassurance to the general public who, by the Ministry of Interior’s own candid admission, have largely lost trust in what should be a key state institution. I have congratulated Kyrgyzstan on the adoption on 7 June of the Law on National Center for the Prevention of Torture and Other Cruel, Inhuman and Degrading Treatment – a result of four years of concerted efforts by the Ombudsman, the Parliament, the Ministry of Justice, civil society and the international community. I hope that this important law will soon be signed by the President, and that subsequent steps will ensure that the new torture prevention body it creates will be impartial, independent and effective. Those who order or commit torture should be investigated, arrested and charged. I have urged the President to lead the effort to eradicate this intolerable and illegal practice by making clear public statements stressing there will be zero tolerance for torture from now on. I also note the strong position the Prosecutor-General has taken on preventing torture, issuing three decrees on the subject since taking up office in April 2011. I have recommended that authority over police detention facilities be transferred from the Ministry of Interior to the State Service on Execution of Sentences, and that all detention facilities be opened to independent monitoring. Discrimination, especially on ethnic, religious and gender grounds, remains a deeply problematic issue with ethnic and national minorities significantly underrepresented in the executive government and bureaucracy, law enforcement bodies and judiciary. Discrimination is particularly evident in Osh, where around 50 percent of the population is of Uzbek origin, but there is not a single Uzbek judge among the judiciary. I have myself heard the cries for justice from members of the affected communities who have been victimized twice – while the violence was taking place, and in its aftermath.” This imbalance is reflected in many key national and local institutions including the police ...” “2. No one shall be subject to torture, violence or other severe or humiliating treatment or punishment.” “3. Foreign nationals and stateless persons shall enjoy in the Russian Federation the rights and bear the obligations of citizens of the Russian Federation, except for cases envisaged by federal law or international agreements entered into by the Russian Federation.” “2. In the Russian Federation it shall not be allowed to extradite to other States those people who are persecuted for political convictions, as well as for actions (or inaction) not recognised as a crime in the Russian Federation. The extradition of people accused of a crime, and also the handover of convicts to serve sentences in other States shall be carried out on the basis of federal law or international agreements entered into by the Russian Federation.” 47. According to the Russian Criminal Code, foreign citizens and individuals with no citizenship residing in Russia who have committed a crime outside its borders can be extradited to a State seeking their extradition with a view to criminal prosecution or execution of a sentence (Article 13 § 2). 48. The Russian Federation can extradite a foreign national or a stateless person to a foreign State on the basis of either a treaty or the reciprocity principle to stand trial or serve a sentence for a crime punishable under Russian legislation and the laws of the requesting State. An extradition on the basis of the reciprocity principle implies that the requesting State assures the Russian authorities that under similar circumstances they would grant a Russian request for extradition (Article 462 §§ 1 and 2). 49. Extradition can take place where (i) the actions in question are punishable by more than one year’s imprisonment or a more severe sentence; (ii) the requested individual has been sentenced to six months’ imprisonment or a more severe punishment; and (iii) the requesting State guarantees that the individual in question would be prosecuted only for the crime mentioned in the extradition request, that upon completion of the criminal proceedings and the sentence he or she would be able to leave the territory of the requesting State freely and that he or she would not be expelled or extradited to a third State without the permission of the Russian authorities (Article 462 § 3). 50. The Russian Prosecutor General or his or her deputy decides on extradition requests (Article 462 § 4). A decision by the Russian Prosecutor General or his or her deputy may be appealed against before a regional court within ten days of receipt of the notification of that decision (Article 463 § 1). 51. The regional court, sitting in a composition of three judges, confirms or otherwise the lawfulness and well-foundedness of the extradition decision within one month of the receipt of the appeal, in a public hearing at which the prosecutor, the person whose extradition is sought and his or her counsel (if the latter has participated in the earlier proceedings) may participate (Article 463 § 4). The court does not examine issues of the individual’s guilt, and is limited to establishing whether the extradition decision is compatible with Russian laws and treaties (Article 463 § 6). The court decides either to declare the extradition decision unlawful and to quash it, or to dismiss the appeal (Article 463 § 7). The regional court’s decision can be appealed against before the Russian Supreme Court within seven days of its delivery (Article 463 § 9). The 1993 CIS Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases (“the Minsk Convention”), to which Russia and Kyrgyzstan are parties, provides as follows: “1. The Contracting Parties shall ... at each other’s request extradite persons who find themselves in their territory, for criminal prosecution or to serve a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” “1. A person being extradited may not – other than with the consent of the requested Party – be held criminally responsible or punished for any crime committed before the extradition, unless such crime constitutes the reason for such extradition. 2. Nor may such person be extradited to any third State other than with the consent of the requested Party ...”

dev

001-5688

ENG

CHE

ADMISSIBILITY

MARTI AG, CELLERE AG, GEBR. BRUN AG and STUAG AG v. SWITZERLAND

Inadmissible

Georg Ress

The applicants are four companies involved in building and construction works and registered in Switzerland. Before the Court they are represented by Mr E. Rüegg, a layer practising in Baden (Switzerland). A. The Official Journal (Kantonsblatt) of the Canton of Lucerne published on 24 February 1996 an invitation for tenders by the Building Department (Baudepartement) of the Canton of Lucerne in respect of “preparatory work on the N2/6 [motorway] extension constructions for the north feeder”. In the same issue, a further invitation for tenders was published by the Kriens municipality in respect of “canalisation and water construction works to be constructed in connection with the N2 extension works for the north feeder”. The date for submitting the tenders was fixed for 25 March 1996. Offers had to state any construction works to be outsourced to other companies. The applicants submitted three tenders, i.e. for the construction of the north feeder, the canalisation and the water construction works. On 27 March 1996 the tenders were examined by the authorities. The applicants were not awarded any construction works. According to notes prepared by representatives of the applicants present upon the occasion, the tenders had been as follows: in respect of the north feeder: of the three tenders made, A. AG had offered a lower and L. AG a higher price than the applicants; in respect of the canalisation and water construction works: of the two tenders made, A. AG had offered a lower price than the applicants. Shortly afterwards a meeting was held between the administration and the applicants at which it apparently transpired that A. AG was not in fact in a position to undertake the entire construction works itself and that L. AG eventually rose to the second position of bidders in view of an alleged calculation error of 400,000 Swiss Francs in their tender. As a result, the applicants, pursuant to Section 6 of the Tenders Act (Submissionsgesetz, see below, Relevant domestic law) filed a complaint with the Government (Regierungsrat) of the Canton of Lucerne. They maintained that there had been procedural defects and breaches of the Tenders Act, inter alia, in that A. AG, in its tender, had omitted to specify which constructions would be outsourced to other companies; and that the tender of L. AG contained elements of unfair competition. The Government of the Canton of Lucerne dismissed the complaint on 14 June 1996, pointing out that the award had found that A. AG would be in a position to undertake substantial parts of the construction works itself, and that the tender of L. AG had contained an error in that one particular price had been multiplied by 100. The applicants filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Administrative Court (Verwaltungsgericht) of the Canton of Lucerne in which they complained that they had not had access to a court within the meaning of Article 6 § 1 of the Convention. They further complained that they had not been able to consult the case-file and that the law had been incorrectly applied. On 16 July 1996 the Court found that it had no jurisdiction to entertain the appeal. In particular, Article 6 of the Convention was inapplicable as the applicants had not demonstrated the existence of a “right” within the meaning of that Article. The applicants’ further administrative law appeal was dismissed by the Federal Court (Bundesgericht) on 12 November 1996, the decision being served on 22 November. In its decision, that court found that the applicants had no standing in view of its constant case-law according to which decisions on tenders did not concern legally protected rights, as would be required when filing an administrative law appeal. In respect of the applicants’ complaint about lack of access to a court within the meaning of Article 6 § 1 of the Convention, the court considered that this provision did not itself grant new substantive rights but was applicable only if a “right” arose under domestic law. No such right existed if it could not be claimed before a court. The court then referred to Sections 18 and 19 of the Ordinance (Verordnung) completing the Tenders Act (see below, Relevant domestic law). These provisions envisaged, in principle, that tenders with lower prices would prevail, though, according to Section 18 § 2 of the Ordinance, the lowest offer is not always the cheapest. As a result, domestic law did not grant a “right” to be awarded a particular offer upon tender, for which reason Article 6 § 1 of the Convention was not applicable. B. Relevant domestic law The 1973 Tenders Act (Submissionsgesetz) of the Canton of Lucerne deals with invitations for tenders and with the award of construction works by the Canton of Lucerne and its municipalities. Section 3 determines that construction works shall as a rule be awarded following a competitive invitation for tenders. Section 6 provides for an appeal to the Government (Regierungsrat) for those applicants whose personal interests worthy of protection are at issue (in ihren persönlichen schützenswerten Interessen beeinträchtigt). The Ordinance (Verordnung) completing the Tenders Act provides, insofar as relevant: “Section 18 Principles governing award. (a) General 1. Construction works and supplies are to be awarded, based on the principle of economy, to the candidate who has made the cheapest offer (günstigstes Angebot). 2. The cheapest offer will be the one with the lowest price (tiefster Preis) as long as the implementation of the construction works or supplies corresponds to the substantive requirements and the time-limit. The lowest tender (niedrigstes Angebot) will not, therefore, always be the cheapest. Section 19 (b) In case of equal or similar tenders 1. In case of equal or similar tenders, the following criteria shall be considered: (a) proof of good performance; (b) variety among the candidates; (c) degree of employment when implementing the construction works; (d) tax domicile in the Canton of Lucerne or in the municipality concerned; (e) payment of taxes in the Canton of Lucerne or in the municipality concerned; (f) use of local construction materials and products; (g) professional qualifications of the head of enterprise (e.g. master craftsman) and of the employees; (h) training of apprentices; (i) securing and maintaining employment in the Canton of Lucerne or the municipalities concerned. 2. The order of relevance when employing the criteria mentioned in § 1 shall be determined by the awarding authority individually and according to the situation concerned, in particular in the light of the economic situation.” According to Section 22 of the Ordinance, the authority concerned is not obliged to give reasons to candidates whose tender has not been considered. Meanwhile, Section 9 of the Federal Act on a Common Market (Binnenmarktgesetz) provides for an appeal to a court in case of alleged restricted access to the common market, but this provision entered into force only on 1 July 1998.

dev

001-70283

ENG

FIN

CHAMBER

CASE OF PETRI SALLINEN AND OTHERS v. FINLAND

Violation of Art. 8;Not necessary to examine under Art. 6;Not necessary to examine under Art. 13;Non-pecuniary damage - financial award (one applicant);Finding of violation sufficient (others);Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Nicolas Bratza

7. The first applicant was born in 1968 and lives in Joensuu. He is a member of the Finnish Bar. The other 17 applicants were his clients at the relevant time (“the client applicants”). 8. On 26 January 1999 the police conducted a search – it is not entirely clear of which premises – based on the suspicion that the first applicant's clients X and Y (not client applicants before the Court) had committed aggravated debtor's fraud. In the course of that search X managed to destroy the original of a promissory note which the police had attempted to seize and which may have been relevant to the financial arrangements underlying the suspected offence. 9. At the time the first applicant's status in the investigation had been that of a witness. On 22 February 1999 the police requested him to attend for questioning in this capacity. This request was apparently cancelled before he had taken any action thereon. 10. A police officer in charge of the criminal investigations granted a search warrant and on 2 March 1999 seven officers of the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), assisted by a tax inspector and an enforcement official (ulosottomies, utmätningsman), searched the first applicant's law office, flat and vehicles. This search warrant was likewise based on the suspicion that X and Y had committed aggravated debtor's fraud but the first applicant was now indicated as a suspect, namely that he had aided and abetted the offences by drafting certain documents. 11. Under the terms of the warrant the search aimed at examining “the documents, computers and archives of the law office” as well as the first applicant's flat and vehicles “so as to investigate the share transactions by the limited liability company [H.] in 1998 and to find material relating to those transactions”. 12. During the search of his law office all of the first applicant's client files were allegedly perused. The police also examined all floppy disks and examined his note books pertaining to his meetings with clients. In addition, the hard disks in the office computers were copied: two were copied on the spot and two computers, including the one used by the first applicant himself, were seized for later disk-copying on police premises. Those computers were returned on 4 March 1999. 13. The first applicant's computer also contained software for electronic mail, including his private and professional messages. 14. A fellow member of the Bar assisted the first applicant during part of the search. 15. On 4 March 1999 the first applicant requested the District Court (käräjäoikeus, tingsrätten) of Joensuu to revoke the seizure as being unlawful. On 24 March 1999 the court nevertheless maintained it, noting that the first applicant was suspected of aiding and abetting aggravated debtor's dishonesty. 16. On 11 May 1999 the Court of Appeal (hovioikeus, hovrätten) of Eastern Finland upheld the District Court's decision and on 25 November 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the first applicant leave to appeal. 17. On 4 May 1999 the police certified the return of three of the four hard disks and that they had destroyed any copies thereof. They stated however that they would retain a copy of the fourth hard disk until the lawfulness of the seizure had been finally decided or until the material could be destroyed for any other reason. 18. In June 1999 three of the applicants (nos. 2-3 and 8) requested the District Court to revoke the seizure of the copy of the fourth hard disk (which contained material relating to their instructions to the first applicant) and to order the police to compensate their costs. They argued that the seizure had been unlawful from the outset. At any rate, the copy in question was of no relevance to the pre-trial investigation concerning X and Y. 19. In its rejoinder the National Bureau of Investigation referred to the Court of Appeal's decision of 11 May 1999 in which the seizure had been found lawful. Moreover, the hard disks had only been subjected to a targeted search and they were able to search information concerning only relevant companies and individuals. Only the potentially relevant client files in the law office had been perused. The search and seizure had thus not been of wholesale nature. The tax and enforcement officials who had witnessed the search had been – and remained – under a duty to keep secret any information thereby obtained. 20. On 17 June 1999 the District Court agreed with the three client applicants and ordered that the copy of the fourth hard disk be returned. It rejected, as not being based on law, the applicants' claim for compensation in respect of their costs. The applicants appealed on this point, whereas the police appealed against the revocation order. 21. In its submissions to the Court of Appeal the National Bureau of Investigation listed the contents of the copied hard disk. For example, specific mention was made of what appears to have been the promissory note which the police had been looking for (and had found). The submissions indicated the debtor's and the creditor's names as well as the amount of the debt. The National Bureau of Investigation furthermore explained that the material on the relevant hard disk had been copied to a so-called optical disk which could in any case not be returned as it also contained internal police data. The submissions by the Bureau were apparently not ordered to be kept confidential. 22. On 27 January 2000 the Court of Appeal declined to examine the parties' appeals, considering that the matter had been resolved res judicata in the first set of proceedings ending with the Supreme Court's decision of 25 November 1999. The Supreme Court granted leave to appeal to the three client applicants in question. 23. On 3 March 2000 the public prosecutor charged, among others, X and Y with aggravated debtor's dishonesty but decided to press no charges against the first applicant, having found no evidence of any crime. 24. On 20 April 2001 the Supreme Court ruled that although a final decision had already been rendered in respect of another appellant, it did not prevent the courts from examining similar appeals filed by other parties. The case was referred back to the Court of Appeal which, on 4 October 2001, revoked the District Court's decision on the basis that the seizure had been lawful. 25. The three client applicants in question were again granted leave to appeal to the Supreme Court. On 18 October 2002 it revoked the seizure in so far as it pertained to information which those applicants had given to the first applicant. 26. The Supreme Court found it undisputed that the copied hard disk contained information relating to the three client applicants' instructions to the first applicant. It had not been argued that this information was not protected by counsel's secrecy obligation under Chapter 17, section 23 of the Code of Judicial Procedure. Nor did the information in question pertain to any suspicion that the first applicant or any one else had committed a crime. 27. The Supreme Court accepted that the police had been entitled by Chapter 4, section 1 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen 450/1987) to seize the first applicant's hard disk and make a copy thereof. Technical reasons and practical needs (the fact that the police had been obliged at the time of the search to copy the whole hard disk) did not however permit any deviation from the prohibition on seizure of privileged material. The police should therefore have returned the computer files immediately or destroyed them. The appellants were awarded reasonable compensation for their costs and expenses. 28. On 11 November 2002 the Chief Enforcement Officer of Vantaa confirmed that the copy of the hard disk had been destroyed on that day. 29. On 22 August 2003 the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, justitiekansleradjointen i statsrådet) issued his decision in response to a petition by the Finnish Bar Association concerning, inter alia, the alleged unlawfulness of the coercive measures against the first applicant. He found it established that the tax inspector and the enforcement official had attended the search in their respective capacity as a witness and expert. He nevertheless concluded, inter alia, that from the point of view of foreseeability of domestic law, as required by Article 8 of the Convention, the relationship between the Coercive Measures Act (Chapter 4, section 2, subsection 2), the Code of Judicial Procedure (Chapter 17, section 23, subsection 1 (4)) and the Advocates Act (section 5 c) was somewhat unclear and permitted very diverging interpretations as to the extent to which privileged material could be subject to search and seizure. The Deputy Chancellor therefore requested the Ministry of Justice to consider whether there was a need to amend the relevant legislation. 30. Under the Coercive Measures Act (450/1987) the police may conduct a search, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months' imprisonment (Chapter 5, section 1). The search warrant is issued by the police themselves. 31. A search may also be conducted on the premises of a person other than the one who is under reasonable (todennäköinen, sannolik) suspicion of having committed an offence of the aforementioned nature, provided the offence was committed on those premises or the suspect was apprehended there or if there are very strong reasons for assuming that a search of those premises will produce an object to be seized or other information pertaining to the offence (Chapter 5, section 2). In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in the criminal proceedings, that it may have been removed from someone by a criminal offence or that the court may order its forfeiture (Chapter 4, section 1). 32. A sealed letter or other private document which has been seized may only be opened by the head of investigation, by the prosecutor or by the court. In addition, only the investigators of the offence in question may examine such a document more closely. However, an expert or other person whose assistance is used in investigating the offence or who is otherwise heard in the case may examine the material, as directed by the head of investigation, by the prosecutor or by the court (Chapter 4, section 8). 33. Whenever possible, the officer in charge shall call a witness to attend the search. If deemed necessary, the officer may also seek the assistance of an expert or other person (Chapter 5, section 4, subsection 1). 34. The officer in charge may allow a complainant or his representative to attend a search in order to provide necessary information. The responsible officer must nonetheless ensure that a complainant or representative does not obtain any more information than necessary through the search (Chapter 5, section 4, subsection 3). 35. According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be placed on record. 36. As regards other evidence, it is the respondent Government's view that a police officer is under an obligation to respect the confidentiality requirement stipulated by section 17 of the Civil Servants Act (valtion virkamieslaki, statstjänstemannalagen 750/94). 37. Section 8 of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen 449/1987) stipulates that in an investigation no one's rights shall be infringed any more than necessary for the achievement of its purpose. No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily. 38. Chapter 7, section 1 a, of the Coercive Measures Act provides that only such measures may be used which can be deemed justified in light of the seriousness of the offence under investigation, the importance of the investigation and the degree of interference with the rights of the suspect or other persons subject to the measures, as well as in light of any other pertinent circumstances. 39. According to Chapter 4, section 11, a seizure shall be lifted as soon as it is no longer necessary. If charges have not been brought within four months of the seizure the court may extend it at the request of a police officer competent to issue arrest warrants. 40. Chapter 4, section 2, subsection 2 of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, section 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2 of the Pre-Trial Investigation Act, a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document. 41. Under Chapter 17, section 23, subsection 1 of the Code of Judicial Procedure counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years' imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused. 42. Under section 5 c (626/1995) of the Advocates Act (laki asianajajista, lagen om advokater) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, section 1 or 2, of the Penal Code (rikoslaki, strafflagen), unless the law provides for a more severe punishment on another count. 43. In their book “Pre-trial investigation and coercive measures” (Esitutkinta ja pakkokeinot, Helsinki, 2002) Klaus Helminen, Kari Lehtola and Pertti Virolainen state (at page 742) that in the legal literature and in police practice a principle has been consistently followed whereby a search may not be performed in order for investigators to obtain documents that are subject to a seizure prohibition. 44. The Ministry of Justice appointed a Working Group on Internet Aided Crimes (tietoverkkorikostyöryhmä, arbetsgruppen för IT brottslighet) which also considered the question of searches and seizures of computer files and computers by the police. On June 2003 the Working Group issued a report, which was sent out for comments to various interest groups and experts. On the basis of the working group's report and the comments given, the Ministry of Justice is expected to prepare a government bill. 45. Chapter 4, section 13, of the Coercive Measures Act provides that at the request of a person whom the case concerns the court shall decide whether the seizure shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. The court shall provide those with an interest in the matter an opportunity to be heard, but the absence of anyone shall not preclude a decision on the issue. A decision reviewing a seizure is subject to a separate appeal. 46. According to section 118, subsection 3 of the Constitution (perustuslaki, grundlagen 731/1999) everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act. This section is equivalent to section 93 of the repealed Constitution Act of Finland of 1918 (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time. 47. Until 31 December 1998, Chapter 24, section 2 of the Penal Code provided that if a search of premises was carried out by someone lacking the authority to do so, or if someone having such authority carried it out in an unlawful manner, he or she was to be sentenced to a fine or to imprisonment for a maximum of one year. According to Government Bill no. 6/1997, the provision was proposed to be repealed as “in cases where the above-mentioned act is committed by a public official in the performance of his or her official duties, Chapter 40, section 10 is applicable”. 48. Chapter 40, section 10, subsection 1 of the Penal Code provides that if a public official, when acting in his office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year. 49. Chapter 40, section 11 of the Penal Code provides that if a public official, when acting in his office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for a negligent violation of official duties to a warning or to a fine. 50. According to Chapter 1, section 14 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål 689/1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges. 51. Under the 1974 Damage Compensation Act (vahingonkorvauslaki, skadeståndslagen 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (Chapters 3 and 4). 52. Recommendation (2000) 21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer provides, inter alia, as follows: “Principle I - General principles on the freedom of exercise of the profession of lawyer ... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ” 53. The Finnish Bar Association (Finlands Advokatförbund, Finlands Advokatförbund) noted that the case did not meet a single criterion for the lawful execution of search and seizure as set out in the case law of the Court. Further, under Finnish legislation, there are no provisions affording a legal remedy against a search warrant issued by the police. A search may be carried out on the premises of a person to whom a confidentiality obligation applies provided that the object to be seized may be found there. The threshold for the execution of a search is low in the extreme and the execution of a search in and of itself interferes with the right and obligation of secrecy of a person to whom a confidentiality obligation applies. 54. The wording of the instructions pertaining to the search in the present case was rather expansive and no attempt was made to attend to the advocate's confidentiality obligation. Disregard of this obligation is particularly manifest in the participation of a tax inspector and an enforcement official in the search. The confidentiality obligation of advocates was also disregarded in respect of the seizures executed in connection with the search. The hard disks of the law office's computers, floppy disks and several notebooks pertaining to meetings with clients were seized in connection with the latter search, in addition to which data on the office secretary's computer was copied. Subsequent to the seizure, the material was not e.g. sealed and consigned for safekeeping until a court could rule on the lawfulness of the seizure. 55. In terms of the confidentiality obligation, the possibility of submitting the issue of a seizure to the court for review as provided for in the Coercive Measures Act had in this case remained a dead letter. All the information deemed confidential by the advocate and his clients had been disclosed prior to the court proceedings, as the authorities examined the seized material without waiting for a court to rule on the issue. 56. The Association further maintained that the police could have availed themselves of the procedure provided for in the Advocates Act, wherein the searched material would have been examined by an outside advocate who would have determined which material was related to the pre-trial investigation being conducted by the police and which was not. This procedure would have allowed for the upholding of the advocate's confidentiality obligation as well as the client's right to confidentiality.

dev

001-57607

ENG

BEL

CHAMBER

CASES OF DE WILDE, OOMS AND VERSYP ("VAGRANCY") v. BELGIUM (ARTICLE 50)

Preliminary objection rejected (non-exhaustion of domestic remedies);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

10. The Court is called upon to rule only on the question of the application of Article 50 (art. 50) in the present cases. Thus, as regards the facts the Court will confine itself here to giving a brief outline and for the rest it refers to paragraphs 15 to 43 of its judgment of 18 June 1971. 11. That judgment concerned the detention of De Wilde, Ooms and Versyp ordered by decisions of the magistrates at Charleroi, Namur and Brussels on 19 April 1966, 21 December 1965 and 4 November 1965 respectively under Sections 13 (in the cases of De Wilde and Versyp) and 16 (in the case of Ooms) of the Act of 27 November 1891 for the suppression of vagrancy and begging. De Wilde regained his freedom after a little less than seven months (three of which he spent serving a prison sentence), Ooms after one year and Versyp after one year, nine months and six days. 12. In the course of the proceedings before the Commission, the applicants each claimed 500 Belgian francs (BF) damages per day of detention. Their counsel, Me. Magnée, now relies on the judgment of 18 June 1971 to claim, on behalf of each of them, damages of 300 BF per day of "unlawful detention". With that object, Me. Magnée began by addressing to the Belgian Minister of Justice, on 22 and 30 June 1971, two letters of which the first related to Versyp and the second to Ooms. On 12 July, the Minister replied that the Government could only apply the law as it stood while waiting for the Bill on "social misfits" - which it had introduced even before the judgment of 18 June 1971 - to be passed. Considering this reply to amount to a refusal contrary to the principle of the supremacy of international treaty law over national law, Me. Magnée informed the Minister, on 14 July that he proposed to bring the matter before the "competent authorities" and to notify the Commission. Counsel for the applicants did in fact write first to the Committee of Ministers - 16 July - to inform them of the Minister of Justice’s refusal which implied, he alleged, a violation of the Court’s judgment; he later wrote, on 23 July, to the Commission referring to Articles 5 (5), 48 and 50 (art. 5-5, art. 48, art. 50) of the Convention and requested the Commission to bring before the Court the claim made by each of his three clients. On 2 August, he addressed to the Minister of Justice a letter concerning De Wilde which was worded in the same terms as the letters of 22 and 30 June. The Minister acknowledged its receipt on 12 August, noting that along with the other two it had been communicated by Me. Magnée to the Commission. 13. In its memorial of 27 October 1971, the Government pointed out to the Court that on 17 June 1971 it had tabled in Parliament a Bill on "social misfits" intended to replace the 1891 Act. The Government added that, desiring to comply with the judgment of 18 June 1971 without awaiting the passage of this Bill, it had voted by Parliament an Act of 6 August 1971 amending the 1891 Act and containing two sections. The first, which inserted a new section, numbered 16 bis, in the 1891 Act, provides that decisions taken under Sections 13 and 16 are henceforth made subject to the remedies available under the Code of Criminal Procedure, including appeal. Section 2 was a transitional provision: it specified that vagrants or beggars held in detention on the entry into force of the 1971 Act (4 September 1971) in execution of a decision taken under Section 13 or Section 16 of the 1891 Act, could exercise for a period of one month the remedy provided for at Section 16 bis.

dev

001-93598

ENG

CYP

CHAMBER

CASE OF CHRISTODOULOU v. CYPRUS

Violation of Article 6 - Right to a fair trial

Christos Rozakis;Costas Pamballis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Pamballis;Sverre Erik Jebens

5. The applicants were born in 1964 and 1936 respectively and live in Paphos. 6. The applicants rented a souvenir shop together in Paphos. On 2 March 2001 they filed an application (K2/01) before the Rent Control Tribunal (”the RCT”) challenging the amount of rent they paid the respondents and seeking its reduction. 7. On 22 March 2001 the RCT ordered that the application be served abroad on the respondents in Athens. 8. On 11 April 2001 the respondents filed their defence. 9. Upon completion of the pleadings, the applicants, on 27 April 2001, requested the RCT to list the application for mention. 10. The application was listed for directions six times between 21 June 2001 and 20 December 2001. No court records are available for this period. 11. On 25 February 2002 the respondents filed an application for discovery and inspection of documents. 12. On 28 February 2002 the respondents requested that the RCT carry out a local survey. With the applicants’ agreement, this was carried out on the same day. 13. The case was listed for a directions hearing to be held on 7 March 2002 with a view to setting a hearing date after the parties’ lawyers had the opportunity to inform the court of their decision regarding the manner in which the court’s expert would testify. 14. On the above date the respondents requested leave to amend their valuation. 15. The application was set down to be heard on 25 April 2002 and the court directed that its expert would testify and be cross-examined on that day. 16. The hearing started on the above date. Following the expert’s testimony, the respondents requested that cross-examination take place on another date to allow their expert to assess the evidence given and prepare their cross-examination. The applicants’ lawyer objected. 17. The court granted the adjournment and set the case down for 23 May 2002 after discussing the suitability of that date for the lawyers. Costs were ordered against the respondents. 18. The hearing continued on the above date with the cross-examination of the RCT’s expert by the respondents’ lawyer. When this finished the hearing was adjourned to 13 June 2002 at the applicants’ request. 19. The hearing continued on 13 June 2002 with the cross-examination of the RCT’s expert by the applicants’ lawyer. At the end of the hearing the respondents requested the court to join the application with another three applications (K10/00, K12/00 and K13/00) as they all concerned the determination of the rental value of shops which were situated in the same complex. The parties agreed and the court issued an order joining the applications. As the lawyers considered there was not enough time for the testimony and cross-examination of the respondents’ expert the hearing was fixed for 19 September 2002, following the summer vacation. 20. On the above date the court accepted the parties’ request that the evidence of the expert be given at the same time for all the cases followed by separate cross-examination by each lawyer. After the examination-in-chief of the first witness, the examination-in-chief of the second witness was interrupted due to that witness’s ill health. 21. The hearing continued on 24 October 2002 and was then adjourned to 12 December 2002. It was further adjourned, however, on that date, as the respondents’ expert could not attend due to a health problem. 22. The hearing was then listed for 20 February 2003. It continued on that date and then on 22 April 2003. The hearing was initially due to continue the next day but was instead adjourned to 19 and 24 June 2003 in order to allow the lawyer in one of the applications to prepare his client’s defence. 23. On 12 June 2003, however, the court cancelled the first session as one of the trial judges would be abroad. It further issued an order separating the applications (see paragraph 18 above) and stated that separate decisions would be delivered. 24. On 24 June 2003 the parties’ lawyers addressed the court. 25. On 27 November 2003 the court rejected the evidence given by the respondents’ expert and, on the basis of the evidence of the expert it had appointed, ordered a reduction in the rent paid by the applicants. Costs were awarded in favour of the applicants. 26. On 7 January 2004 the respondents lodged an appeal before the Supreme Court. 27. By letter dated 9 January 2004 the Registrar of the RCT of Paphos informed the Chief Registrar of the Supreme Court that the records of the proceedings would be transcribed and sent to the Supreme Court by 31 March 2004. 28. By a letter dated 9 March 2004 the Supreme Court informed the appellants that their appeal had been entered in the register (appeal no. 11939). 29. By letter 12 May 2004 the Registrar of the RCT of Paphos sent the case file, the court records, the judgment and the list of exhibits to the Supreme Court. 30. The appeal was listed for a preliminary hearing on 22 October 2004. On that date directions were given for the submission of written outlines of submissions to be made at the appeal hearing. 31. These were filed on 6 December 2004. 32. On 14 January 2005 the applicants informed the court that they had appointed a new lawyer. 33. On 15 April 2005 the appeal was submitted to the Supreme Court but in the absence of an available date it was not set down for hearing. 34. On 23 August 2005 the Chief Registrar of the Supreme Court informed the parties that the appeal had been set down for hearing on 22 November 2005. Following an exchange on the matters raised between the court and the parties the hearing was adjourned at the parties’ request until 20 December 2005. 35. On the latter date the parties addressed the court and judgment was reserved. The applicants’ lawyer stated that he was in complete agreement with the first-instance judgment. 36. On 27 January 2006 the Supreme Court upheld the appeal and set aside the RCT’s decision. It ordered a retrial of the case. The Supreme Court found that the RCT had erred in its assessment of the evidence that had been put before it. In this connection, it noted that the RCT had failed to take into account the average rental rate of the shops in the area and relevant factors such as the age, condition and facilities of those shops when assessing the rental value of the shop in question. Secondly, it found substantial errors in the valuation made by the RCT’s expert which included the failure to make the necessary adjustments when comparing different properties and to determine the advantages and disadvantages of the properties compared. The court considered that the valuation given by the RCT’s expert had been ill-founded and unreliable and that therefore the RCT should not have relied on it. Similarly, the court found that the valuation of the respondents’ expert (the appellants at the appeal stage) had been unsound. In this connection, it noted that this valuation had defined the area in question very narrowly and as a result had not taken into account other nearby shops which should have been considered for comparison purposes. The Supreme Court therefore concluded that overall no evidence had been put forward which would enable the determination of a fair rent in respect of the applicants’ shop. 37. Finally, the Supreme Court ordered that the costs of both the first instance and appeal proceedings be paid by the applicants (the respondents at the appeal stage). 38. Following a request by the Registrar of the RCT of Limassol- Paphos, the Supreme Court, in a letter dated 16 March 2006, gave directions for the retrial of the application. 39. On 6 April 2006 the application was brought before a newly composed RCT and was listed for a directions hearing on 16 May 2006 in view of the possibility of a friendly settlement. 40. On the latter date the application was fixed for hearing on 21 September 2006. On that date the respondents requested that they be given time to consider the court’s proposals with regard to a settlement. With the applicants’ agreement the application was set down for hearing on 19 October 2006. On the latter date the parties informed the court that they accepted its proposals concerning determination of the rent. The applicants’ lawyer claimed his costs [for the retrial] and the respondents’ lawyer claimed the costs of the first trial and appeal. 41. On that date the court determined the rent as agreed and ordered that the respondents pay the retrial costs, as assessed by the Registrar and approved by the court, unless the parties reached a different agreement. 42. During the retrial proceedings, by letter dated 24 May 2006, the applicants’ lawyer requested the Attorney-General to consider whether it would be possible for the State to pay the costs of the proceedings in view of the fact that the errors for which the case was sent back for retrial had not been committed by the applicants. 43. By letter dated 31 May 2006 the Attorney-General replied that this was not possible since the proceedings in question concerned a trial between private parties and, further, that it was for the courts to take into account all relevant circumstances when determining the matter of costs. 44. Section 43 of the Courts of Justice Law 1960 (Law no. 14/1960, as amended) provides as follows: “The costs of, and incident to, any civil proceedings, in any court, shall, unless otherwise provided by any law in force for the time being, or any subsidiary legislation, be in the discretion of the court and the court shall have full power to determine by whom and to what extent such costs shall be paid”. 45. Order 59 of the Civil Procedure Rules sets out the rules concerning costs. Rule 1 of this Order provides as follows: “Subject to the provisions of any law or Rules, the costs of, and incident, to any proceeding shall be in the discretion of the Court or Judge, who may authorise an executor, administrator or trustee who has not unreasonably instituted, or carried on, or resisted any proceeding, to have his costs paid out of a particular estate or fund.” 46. Regulation 13 (a) of the Rent Control Rules of 1983 provides: “The award of costs is a matter in the discretionary power of the court. The outcome of the case is not the sole factor for the award of costs but all the circumstances of the case must be taken into account.” 47. Section 5 of the Rent Control Law 23/1983 (as amended) provides that the procedure before the Rent Control Tribunal is a summary procedure not bound by the rules of evidence.

dev

001-66664

ENG

SWE

ADMISSIBILITY

A.B. v. SWEDEN

Inadmissible

Nicolas Bratza

The applicant, Mr. A.B., is an Iranian national, who was born in 1962 and lives in Sweden. He is represented before the Court by Mrs. B. Bruks, a University lecturer in Law Science at the Mid-Swedish University in Östersund. The applicant belongs to an ethnic minority in Iran called the Baluchis. On 9 November 1988 the applicant arrived in Sweden with his family, his wife and their two sons, born in 1985 and 1987 respectively, and applied for political asylum under the name of A.D., born in 1960. On the same day, the Immigration Board (Invandrarverket) held a first interview with the applicant in which he stated that he had fled from Baluchistan in Iran due to political problems. He claimed that he was an opponent of Khomeini and the Iranian regime and that he was politically active within the PAYKAR (a leftist movement). Further, he alleged that he had been imprisoned due to his political activities on two occasions, first in 1981 during two months and then again in 1984 for two years. In September 1988 he and his family had fled to Pakistan where, through smugglers, they had bought forged Pakistani passports and visas and tickets for Sweden. They travelled to Sweden on 7-8 November 1988 and, upon arrival, they threw away the passports since they were forged. On 29 November 1988 the Immigration Board held a second interview with the applicant where he told about his life and political activities in more detail. He claimed that he had become politically active when the Shah was ousted in 1979 and that as a student he had been involved in an organisation called Sazmane Paykar (a communist party) for which he sold the organisations newspaper, handed out leaflets and painted slogans on walls. He had been arrested for the first time in 1980 and, after a trial, he had been sentenced to six months deportation to another region of Iran, Jahrom. In 1984 he had married and, between 1984 and 1988 he had worked as a driver, delivering products for different stores. He stated that he was not religious, although his parents were Sunni Muslims, but that it had been particularly difficult for him to be politically active since he was a Baluch and the central regime under Khomeini had had several conflicts with the Baluchis. At this point the interview was interrupted and it was not resumed until 5 December 1988 when he continued his account of events. He stated that after he had returned from Jahrom he had resumed his political activities, although not so openly anymore. In October 1981 he had again been arrested and during the interrogations he had been whipped and placed in very painful positions. He never admitted to anything and, in January 1985, he was released. At that time his political organisation had ceased to exist but he had soon joined another organisation, Baluch Raje Zorombersh (Baluchistan National Movement), which fought for the independence of Baluchistan from Iran. The applicant claimed that he had transported newspapers and leaflets for the organisation in his car while working as a delivery man for various stores. In August 1988 a close associate of his in the organisation had been arrested and the applicant had then decided to flee with his family to avoid being arrested as well. He stated that if he was returned to Iran he would be arrested and imprisoned and probably executed due to his political activities. On 18 January 1989 the Immigration Board granted the applicant political asylum and a permanent residence permit. In March 1996 the applicant was arrested and charged with having murdered his wife. He admitted that he had stabbed her but claimed that it should be considered as manslaughter (dråp). He stated that his wife had wanted a divorce and that she had moved to another apartment with the children. He knew that she was seeing other men. He further asserted that his wife’s family in Iran had repudiated her when she demanded the divorce and that her father had told him that he was not a man if he did not kill her. He claimed that he had regretted the act immediately and had called the emergency services. On 26 May 1996 the Malmö District Court (tingsrätten) convicted the applicant of murder and sentenced him to ten years’ imprisonment and lifetime expulsion from Sweden. When deciding the ten years’ imprisonment the District Court took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence, which would have been life imprisonment, accordingly. As concerned the expulsion, the District Court had requested that the Immigration Board submit its observations on the matter. In its observations, the Immigration Board stated that the reasons invoked by the applicant at the time when he was granted asylum were not such that, according to the current practice, he would have been granted asylum. However, in line with the Immigration Board’s practice and the provisions in the Aliens Act, there was no reason to recall his refugee status. On the other hand, the Immigration Board found that there were no impediments to enforcing a possible order to expel the applicant. The District Court also heard a witness called by the applicant who stated that he would be executed in Iran due to his political activities. The court considered that due to the very serious nature of the crime, there were particular reasons for expelling the applicant. The applicant did not appeal against the judgment. Following the conviction, the applicant lost custody of his sons and they were taken into care by the social authorities and placed in a foster home. They then had no contact with their father for some years. In December 2000 the applicant was granted permission to call them once a month and to visit them when they were visiting his brother, who lived in Gothenburg. The children allegedly had a close relationship with their uncle. On 5 December 2001 the applicant requested the Government, through the Ministry of Justice, to revoke the expulsion order. He informed the Government of his true identity, A.B., and gave an account of what he stated was his true life story. He maintained that he had been politically active within the PAYKAR, distributing newspapers and leaflets, organising demonstrations and writing slogans on walls, and that he had been arrested in 1980 and detained for two months before he was sentenced by a revolutionary court to six months’ deportation to the city of Jahrom. When he returned home, he married and resumed his political activities. During the autumn of 1981 he was again arrested and this time he was tortured during the interrogations. He claimed that he had been whipped, beaten, kicked and placed in very painful positions. After roughly two years’ detention, he had been released but had to report to the police once a week. His relatives had helped him to buy a small lorry to enable him to work and support his wife. During the summer of 1984 he had decided to flee from Iran and, after careful planning, he had fled with his wife to Pakistan where he was recognised as a refugee by the UN High Commissioner for Refugees. In November 1985 his first son was born. The applicant alleged that many refugees were killed in Pakistan for which reason he and his family, in February 1986, had travelled to the Netherlands where he had applied for asylum. In October 1987 his second son was born and, in 1988, his request for asylum was refused by the Dutch authorities. On 8 November 1988, to avoid being sent back to Iran, the applicant had travelled to Sweden with his family, on forged documents, where he had applied for asylum under the name of A.D. Before the Government the applicant submitted that he had continued his political activities in Sweden where he had joined the Baluchistan National Movement (BNM) and had become a board member and a member of the editorial board of “Zrombech”, the organisation’s newspaper. The applicant requested that the Government examine his reasons for asylum based on the information he had submitted. In particular, because of his family situation, an expulsion would mean that his sons would become parentless in Sweden. Last, he claimed that the Iranian authorities were aware of his political activities and that he would be executed because of this if forced to return to his home country. He submitted several documents to support his claims about his political activities, both in Iran and in Sweden, inter alia, of which he submitted the following to the Court: A fax from the BNM in London, dated 17 May 1996, in which it was stated that the applicant was a former member of the central committee of the BNM and a member of the editorial board of the movement’s news paper, “Zrombesh”. It further stated that the applicant would face torture and execution if returned to Iran due to his political activities. One further letter from the BNM, dated 20 December 2003, in which it renewed its concerns for the applicant’s safety if expelled to Iran due to his active opposition to the Iranian regime and that country’s lack of respect for human rights. A fax from the Spanish Catholic Migration Commission, dated 22 May 1996, which drew attention to Article 3 of the Convention and noted that to expel the applicant to Iran would imply serious danger to his life and freedom. A copy of his certificate issued in July 1984 by the UN High Commissioner for Refugees in Pakistan, stating that the applicant was recognised as a refugee by the UN. His date of birth was noted to be 1958. On 21 May 2002, after a request by the Government, the Migration Board (Migrationsverket) submitted its observation regarding the matter. It considered that there were no obstacles to expelling the applicant to Iran. During the summer of 2002 the applicant published a book about his life, in Swedish, which included information about his political activities, experiences from Iranian prisons and criticism of the Iranian regime. He claimed that the content of the book would automatically lead to a very harsh sentence for him if he were returned to Iran since he was convinced that the Iranian Embassy in Sweden would have obtained a copy of the book. One thousand copies of the book had been printed. Based on this new information, the Government requested that the Migration Board submit supplementary observations. On 26 August 2002, the Migration Board maintained that the applicant’s political activities in his home country as well as the political activities he had performed in Sweden before his imprisonment were not such that they could constitute an impediment to the enforcement of his expulsion to Iran. However, it stated that some of the statements made by the applicant in his book were of such a character that it could not be excluded that the Iranian authorities had noted them and that the applicant might be apprehended as a result if forced to return. The Migration Board therefore considered that there could be an impediment against enforcing the expulsion for this reason. On 12 October 2002 the applicant was conditionally released from prison but placed in detention awaiting expulsion following a decision, two days earlier, by the Minister of Justice. However, on the same day, the Minister of Justice had also decided that the applicant should not be expelled until the Government decided otherwise. On 1 December 2002 the Minister of Justice decided that the applicant should be released from detention. Apparently, on 28 April 2003, the applicant participated in a Swedish radio programme which discussed the topic of honour-related murders. In June 2003 the Government requested the Swedish Embassy in Iran to investigate whether the applicant would be at risk if returned to Iran and to submit its assessment on the matter. On 27 July 2003 the Embassy submitted its answer to the Government. It stated that it was possible that the Iranian authorities were aware of the BNM’s activities outside Iran but that it did not appear that the organisation had any activities or contacts within the country. As concerned the applicant’s book, the Embassy made the assessment that it did not contain any information which could be considered as offensive by the Iranian authorities. It noted that the prison conditions in Iran were discussed in the Iranian media and that the applicant’s experiences and descriptions of the prisons were outdated. Moreover, the political activities described by the applicant in his book were not current and were depicted in a vague and summary manner. Thus, the Embassy concluded that the applicant would not risk being punished if returned to Iran, neither because of his political activities nor because of his book. The applicant claimed that the Embassy had not seriously read and considered the content of his book. He had also participated in more radio programmes where he had made critical comments against the Iranian regime and culture. Moreover, he stated that his wife’s relatives would kill him if he returned as revenge for having murdered her. Last, he stated that his relationship with his sons was improving all the time and that he met with them and spoke with them on the phone frequently. In particular, his relation to his younger son was getting stronger and his son had asked to be allowed to live with the applicant. On 25 September 2003 the Government rejected the applicant’s request to have the expulsion order revoked. The Government found that there was neither any impediment against the enforcement of the expulsion nor any other special reason, as set forth in the Aliens Act, to revoke the expulsion order. In November 2003 the applicant lodged a new application with the Government, requesting that the expulsion order be revoked. He stated that his younger son had had a severe crisis as a result of the Government’s rejection since he did not want to lose his father. The younger son spent every other weekend with his father and had expressed the wish to be allowed to live with him. The older son kept his distance from his father but did not want him to be expelled. He submitted a medical certificated written by a Chief Physician at the Children and Youth Psychiatric Clinic in Östersund which stated that consideration should be taken of the children’s difficult situation and need of their father. On 11 December 2003 the Government rejected the request, finding no reason to change its previous decision. In January 2004 the applicant lodged yet another application with the Government to have the expulsion order revoked. He primarily invoked his younger son’s deteriorating psychological status which was caused by the fear of losing his father and becoming parentless. The applicant and his younger son had developed a very close relationship and it would cause irreparable damage to the son if his father were to be expelled expelled. On 12 February 2004 the Government rejected the application on the same grounds as previously. On 17 August 2004, after a request by the applicant, the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of Court, to indicate to the Swedish Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Iran until the Chamber had had the opportunity to examine the application on 31 August 2004. Pursuant to Chapter 1, Article 8 of the Penal Code (Brottsbalken), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence. Provisions on expulsion on this ground are laid down in the Aliens Act. According to Chapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. Firstly, he or she must be convicted of a crime that is punishable by imprisonment. Secondly, he or she may only be expelled if he or she is in fact sentenced to a more severe punishment than a fine and if (1) it may be assumed, on account of the nature of the crime and other circumstances, that he or she will continue his or her criminal activities in Sweden or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he or she ought not to be allowed to remain in the country. Furthermore, under Chapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account his or her links to Swedish society. As regards aliens who are considered to be refugees and in need of protection in Sweden, they may be expelled only if they have committed a particularly serious crime and it would entail serious danger for public order and safety to allow them to remain in Sweden. An alien with refugee status shall be considered as a refugee in need of protection in Sweden unless it is evident that he or she no longer is a refugee with such a need. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 8, section 1 of the Act, there is an absolute impediment to expelling an alien 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. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision. According to Chapter 7, section 16 of the Act, if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision by the court. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen) grant clemency or reduce a penal sanction or other legal effect of a criminal act.

dev

001-84768

ENG

TUR

ADMISSIBILITY

BALCI v. TURKEY

Inadmissible

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre

The applicant, Mr Remzi Balcı, is a Turkish national who was born in 1934 and lives in Samsun. He had been granted legal aid and was represented before the Court by Mr C. Balcı, a lawyer practising in Samsun. The Turkish Government (“the Government”) did not designate an Agent for the Convention proceedings. The facts of the case, as submitted by the parties, may be summarised as follows. In 1971 the applicant bought a plot of arable land from a fellow villager. The seller had held the land in his possession for over thirty years without a title deed. The transaction took place unofficially and the parties did not execute a written sale agreement. In 1974 the authorities conducted regional cadastral works in the area. As a result, the plot in question was registered in the land register as two separate parcels, numbered 370 and 590. Parcel no. 370 was registered in the name of the applicant as an arable field based on witness statements confirming that he had had taken it over from its previous possessor and had been exploiting it without interruption ever since. Parcel no. 590 however was classified as part of an adjacent forest. As the legislation permitted no private ownership of forest land, this parcel was registered in the name of the Treasury as a State property. According to the applicant, he was uninformed about this registration and continued to cultivate not only parcel no. 370 but no. 590. He only became aware of the situation in 1983, when the authorities discovered the cultivation and fined him for illegal utilisation of State property. On 26 December 1983 the applicant initiated civil proceedings before the Samsun Civil Court, requesting parcel no. 590 to be registered in his name. A court-appointed expert conducted an inspection and concluded that parcel no. 590 could not be characterised as forest land. Agreeing with the expert, the Samsun Civil Court ruled in favour of the applicant on 8 December 1995. The court also established that the applicant had been holding the parcel in his uncontested and uninterrupted possession for long enough to entitle him to claim title under the applicable legislation. Accordingly, the court recognised him as the lawful owner of the parcel. On 6 February 1997, however, the Court of Cassation quashed this judgment. It established that older land inventories proved that the disputed parcel was on the outer limits of a neighbouring forest. The court reasoned that many years of intensive cultivation must have removed the natural flora. Despite such a transformation, the court considered that the land should be considered as despoiled forest which had never belonged to the applicant. Accordingly, it directed the civil court to re-examine the facts of the case and pass judgment accordingly. On 13 March 1998 the Samsun Civil Court adhered to this ruling. It held that the revision of the local plan served the general interest given that parcel no. 590 was a forest area and that the applicant had illegally occupied it by expanding the boundaries of his lawfully possessed land, i.e. plot no. 370. On 8 July 1998 the Court of Cassation dismissed the applicant’s appeal. On 29 May 2000 the Treasury sold the plot of land in question to a third party as an arable field. Article 713 of the Turkish Civil Code provides that, persons who hold in their possession an unregistered immovable property without interruption or legal challenge for a minimum period of 20 years, are entitled to request its registration in their names.

dev

001-122655

ENG

SVN

ADMISSIBILITY

MAJCEN v. SLOVENIA

Inadmissible

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant, Mr Drago Majcen, is a Slovenian national, who was born in 1958 and lives in Murska Sobota. He is represented before the Court by Odvetniška Družba Matoz D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) are represented by their Agent, Mrs N. Pintar Gosenca, State Attorney. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant has been serving his sentence in the closed section of Dob Prison from 4 October 2002. As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 and 6893/10, 27 September 2011. Between 9 October 2002 and 4 October 2004 the applicant was held in cell no 3, Block 4 which measured 59.25 square metres and held fifteen inmates (3.95 square metres of personal space available to each inmate). Subsequently, he was transferred to a single cell in Block 1, which measured 7.14 square metres. On 7 December 2004 he was, due to his health problems, transferred into one of the smaller shared cells in Block 1 that serve as patients rooms, measuring approximately 32 square metres and accommodating four inmates (approximately 8 square metres of personal space available to each inmate). On 28 September 2007 the applicant was transferred into cell no 7, Block 4 which measured 58.94 square metres and held 15 inmates (3.93 square metres of personal space available to each inmate). On 17 June 2010 he was placed in cell no 37, Block 1 that served as patient room and measured approximately 15.83 square metres and accommodated 3 inmates (5.28 square metres of personal space available to each inmate). On 21 June 2010 the applicant was, upon his request, transferred back to a regular room. From October 2002 until August 2010 the applicant was on 258 occasions treated for different health problems in the prison clinic. He has inter alia been undergoing a methadone-maintenance treatment and has been treated by the prison psychiatrist. Between 19 July 2008 and 21 July 2008 the applicant was hospitalised in the Novo mesto General Hospital in connection to a problem with appendicitis. On 29 October 2008 the applicant was diagnosed with hepatitis C. After the infection had been diagnosed, the applicant was referred to an infectologist for the first examination but he initially refused to be examined. He was then examined on 27 March 2009 in the Novo mesto General Hospital by an infectologist who, due to seriousness of the applicant’s condition, referred him to the University Medical Centre in Ljubljana for a second opinion. The applicant refused to undergo the aforementioned examination in the University Medical Centre in Ljubljana. Between 26 March 2010 and 30 March 2010 the applicant was hospitalised in the Novo mesto General Hospital due to the deterioration of his condition. According to the reports drawn up by a prison doctor dated 13 August 2010 and 7 December 2010 the applicant had on several occasions also refused to be examined whereas the applicant’s hepatitis C has been treated according to the medical practice. For the relevant domestic law and practice, see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), Lalić and Others, cited above, as well as Mešić v. Slovenia (no. 5767/10, 22 November 2011).

dev

001-88269

ENG

DEU

ADMISSIBILITY

LAHR v. GERMANY

Inadmissible

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

The applicant, Mr Timo Lahr, is a German national who was born in 1977 and lives in Welzheim. He was represented before the Court by Ms G. Pahl, a lawyer practising in Hamburg. The applicant is an electrical engineering technician and a member of the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, hereafter, “the NPD”). In 1998 he was a local chairperson of that party. The NPD was considered right-wing extremist and populist and was under scrutiny by the Federal Office for the Protection of the Constitution and those of various German States (Länder). The NPD has not been declared unconstitutional by the Federal Constitutional Court in accordance with Article 21 § 2 of the Basic Law. On 1 March 1998 the applicant commenced his compulsory military service, which was to end on 31 December 1998. To serve one’s compulsory military service is an obligation imposed by the Basic Law without conferring a right to the conscript to be enlisted. A conscript receives approximately EUR 300 net allowance a month. On 21 April 1998 the applicant’s superior notified the Military Counter-Intelligence Service of his membership of and functions in the NPD. On 1 June 1998 he was appointed as a Private First Class. The applicant performed his duties within the army conscientiously and without any disciplinary reprimand. He did not carry out any political activities within the army. On 27 August 1998 the applicant’s military service was terminated with effect from 31 August 1998. His presence in the army was found to endanger its integrity and order within the meaning of section 29 § 1 No. 6 of the Compulsory Military Service Act (Wehrpflichtgesetz) on account of his membership of and functions in the NPD, a party considered to be right-wing extremist and populist. Moreover, the toleration of an NPD functionary within the army would harm its reputation. On 1 October 1998 the objection he filed was rejected on the ground that his membership of and functions in the NPD were in breach of a soldier’s special duty of loyalty to the Constitution. His membership of and functions in the NPD, a party that pursued unconstitutional aims, manifested his lack of readiness to defend the free democratic order within the meaning of the Basic Law, which posed a danger to military order. On 12 November 2002 the Augsburg Administrative Court rejected a claim lodged by the applicant, finding that the order of 27 August 1998 gave sufficient reasons to consider that his continuing military service would pose a serious danger to military order. Section 29 § 1 No. 6 of the Compulsory Military Service Act gave the authorities no discretion where conduct posing a serious danger to military order was established. Military order within the meaning of that provision embraced the readiness to defence which was guaranteed, inter alia, by the army’s bond to the constitutional order of which it was a guarantor. Relying on the 1998 annual reports on the protection of the Constitution of the Federal Ministry of the Interior and the Bavarian State Ministry of the Interior the court established that at the relevant time the NPD aimed at the – if need be violent – subversion of the democratic order. It referred to several statements by the party leader who pursued the political aim to “install the NPD in absolute power”. Moreover it referred to the speech given by a convicted neo-Nazi at the party congress, who appealed for a “revolution which could not be achieved without blood and victims”. The court found that the above statements by party functionaries had to be attributed to the applicant in his function as a local chairperson at the relevant time. Therefore, his further presence in the German army posed in itself a danger to military order even though his behaviour within the army did not give rise to any complaints. The court clarified that his dismissal did not result in the loss of his rank. On 7 July 2004 the Federal Administrative Court rejected an appeal lodged by the applicant. It endorsed the reasons given by the lower instances and observed that the applicant’s holding of functions in the NPD during his military service was in breach of a soldier’s special duty of loyalty to the Constitution, which was manifested in section 8 of the Soldiers’ Act and was a requisite for the functioning of the army. The NPD’s anti-constitutional attitude, which was expressed by the party leader, had to be attributed to the applicant, who held functions in the party and failed to dissociate himself from those statements. The court referred to the Federal Constitutional Court’s settled case-law that it was not contrary to Article 21 of the Basic Law that the German army drew consequences from the applicant’s membership of a party which had not been declared unconstitutional, as that provision merely protected the political activity of the party members. On 21 January 2005 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant. It found the arguments given by the lower instances sufficient to justify the termination of his military service, which was therefore in line with the German Constitution and particularly with the prohibition of discrimination. “2. Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anti-constitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.” §1 [...] Furthermore [military service] shall be terminated, if [...] No.5. based on his previous conduct [the conscript’s] continued presence in the army would pose a serious danger to military order or to the security of the troops, [...] “A soldier must recognise the free democratic order within the meaning of the Basic Law and must act at all times in such a way as to uphold it.”

dev

001-115144

ENG

SVN

CHAMBER

CASE OF VOLK v. SLOVENIA

No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

5. The applicant was born in 1966 and lives in Prem. She is the mother of Simon Volk, who was born in 1983. 6. On 14 January 2008 the applicant’s son was convicted of rape, grievous bodily harm and deprivation of liberty. He was sentenced to three years and four months in prison. On 11 November 2008 he started serving his prison sentence in Dob Prison. 7. The applicant’s son had been dependent on drugs since 2001. As a part of his medical treatment in prison he received substitutes for opiates, such as Suboxon, Sanval, which is a hypnotic, Serguel, which is an antipsychotic drug, and Zoloft, which is an anti-depressant. Before beginning his sentence, the applicant’s son made an appointment at a drug dependency treatment centre at a psychiatric hospital. Its report, dated 7 October 2008, shows that he had stated that he wished to be hospitalised, but had failed to meet the conditions, namely abstinence. On 6 November 2008 the applicant’s son was examined privately by a psychiatrist, who noted that he had no sign of abstinence and was referred to his general practitioner for treatment for drug dependency. 8. As regards the facilities available to the applicant’s son in the cells and common areas in Dob Prison, as well as the health care regime in the prison and the conditions imposed on him regarding activities outside the cells and contact with the outside world, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), no. 5711/10 etc., 27 September 2011. 9. As regards drug users, the prison offers medical (including methadone substitution) treatment and therapeutic help in accordance with a specialised drug treatment programme. Prisoners who successfully undergo methadone substitution treatment are able to undergo detoxification, which normally takes three to four weeks. Further rehabilitation of previous drug users is provided in the drug-free sections of the prison, to which only those prisoners who are no longer dependent on drugs and who are no longer undergoing opiate replacement therapy may be assigned. 10. When he arrived in Dob Prison, the applicant’s son underwent an admission interview, conducted by a social worker, which, apart from his dependency problem, did not show anything giving rise to particular concern. On 12 November 2008 he was examined by a doctor, who prescribed him substitution therapy for drug dependency. On the same day he was seen by a drug abuse therapist. 11. The applicant’s son was initially placed in a seven-square-metre cell, which he shared with another prisoner. Between 17 November 2008 and 12 February 2009 he was accommodated in cell 1, Block 2. The cell, in which fifteen prisoners were held, measured about 60 square metres. 12. On 20 November 2008 the applicant’s son developed an infection in his right arm and underwent surgery on 24 November 2008. Between 25 November and 2 December 2008 his wound was cleaned and dressed daily. 13. On 12 and 26 November 2008 the applicant asked the Dob Prison authorities to move her son to Koper Prison. She stated that the latter prison was closer to their home and had better living conditions. She also stated that her son was often ill and was in hospital at the time of the request. Her request was rejected on the grounds that proper medical assistance could also be provided in Dob Prison. 14. In the meantime, the prison psychologist saw the applicant’s son on 25 November 2008. He noted, inter alia, that no serious mental difficulties or suicidal tendencies could be observed. On 5 December 2008 a prison social worker N.B., held a meeting with the applicant, her son and his sister. The applicant inquired about the prison regime and repeated her requests for a transfer for her son. 15. On 1 December 2008 the applicant told the drug abuse therapist that he was in crisis with his drug dependency and that he had stopped taking his substitution medication. The therapist informed him of the possible treatments for his drug dependency in the prison. On 8 December 2008 the applicant had a consultation with the psychologist. On 9 December 2008 the general practitioner noted in the report that the applicant had stopped taking the substitution medication. 16. On 10 December 2008 a “personal plan” (osebni načrt) was set up for the applicant’s son. Referring to the judgment by which he had been convicted and the report from the drug abuse therapist, the plan noted that the applicant’s son’s substitution therapy should be monitored and that he should be encouraged to deal with his drug dependency. It was envisaged that a urine test be regularly taken; that he have special psychological therapy with regard to the criminal offence he had committed; and that he be given the opportunity to continue his primary education. It was also noted that social worker N.B. was the officer responsible for his case. 17. On 11 December 2008 the applicant’s son had a consultation with the drug abuse therapist. On the same day he was also introduced to leisure activities provided by the prison. It was agreed that he would attend such activities for three hours every Wednesday. However, he attended only three times and after 7 January 2009 he gave up the enrolment. 18. On 22 December 2008 a meeting was held with the applicant’s son. The report prepared by the head of Block 2 following the meeting does not reveal anything untoward. 19. On 15 January 2009 the applicant’s son told the psychiatrist that he had started taking heroin again. He told the drug abuse therapist, whom he saw the same month, the same thing. During January 2009 the applicant’s son also had two consultations with the psychologist. 20. On 5 February 2009 the applicant’s son was seen by a social worker, following an “urgent request” in which he complained about extortion by his co-inmate, S.B., from other inmates, including himself. The applicant’s son gave a statement on the record in which he alleged that S.B. had taken money from him, as well as clothes and slippers. On 6 February 2009 S.B. was moved to Block 1 (high-security regime). 21. In the evening of 9 February 2009, two guards entered the cell and found the applicant’s son using a wet towel to cool his face. He told them that he had been attacked by D.M. because of a dispute over a USB network key. The operative head of the prison then talked to both prisoners, who reached agreement. After the incident, the applicant’s son’s personal belongings were searched. It was discovered that his computer was connected to the internet and drugs were found in his cupboard. The computer and the drugs were seized. Following the search, the applicant’s son repeatedly said that he would cut or hang himself and that he would not survive the night. The applicant’s son was then transferred to a special cell with video surveillance, where he remained from 10.55 p.m. On 10 February 2009 a report noting these events was prepared by the prison guard who was on duty that evening. 22. At 10.55 a.m. on 10 February 2009 the applicant’s son was returned to an ordinary regime. Before this transfer he was seen by the head of Block 2. According to the report prepared by the head, the applicant’s son had said that he had had no intention of committing suicide and that he had calmed down. It was also noted that he had refused to be examined by a doctor, as he had not sustained any injuries. Lastly, the report noted that the psychologist had talked to the applicant’s son and that the prison guards had been informed that they needed to pay special attention to him. 23. On 11 February 2009 the head of Block 2 and the prison psychologist held a meeting with the applicant, her son and his sister. The report of the meeting notes that the applicant alleged that her son was in danger and that it was no surprise that he was on drugs. They also discussed the incident of 9 February 2009 and the applicant’s transfer request. As regards the latter, the prison officers explained to the applicant that her son could not simply be moved to Block 3 or 4, and informed her that the prisoner who had extorted money from the applicant (presumably S.B.) was now being held in a high-security block (i.e. Block 1). The next day, 12 February 2009, the applicant was transferred to Block 1. The decision referred to his drug problem, refusal to give urine samples and possession of illegal items. His transfer to Block 1 implied that he could only have two hours of outdoor exercise and was not allowed to spend time in the recreation room. He was allowed to receive visits of an hour’s duration, and to use the telephone in accordance with the daily schedule. When leaving the cell he was accompanied by a guard and he could spend time outdoors only in the Block 1 yard. Two prisoners were allowed to be in the same area of the yard, under supervision. the applicant’s son was held in cells 32, 21 and 41. 24. On 18 February and 4 March 2009 social worker N.B. invited the applicant’s son for a consultation, but he refused. He also refused to have a consultation with the drug abuse therapist on 25 March and 15 April 2009. However, in February 2009 the applicant’s son had one consultation with the drug abuse therapist and three with the psychologist. In March 2009 he saw the drug abuse therapist once and the psychologist twice. Moreover, between 19 January and 23 March 2009 the applicant’ son had six consultations with the psychiatrist, in which they discussed his drug dependency and substitution therapy. 25. The applicant made further requests for a transfer for her son, which were refused on 18 March 2009. 26. On 23 March the team of officers dealing with the applicant’s son’s case decided that he should be moved to Block 3. 27. On 25, 27 and 31 March 2009 social worker N.B. held meetings with the applicant’s son. They discussed transferring him to an ordinary regime, where he would be able to participate in a drug treatment group and attend school as well as take part in leisure activities. They also discussed his problem with debt. The applicant’s son said that he had a debt of 200 euros (EUR) but he did not fear the person to whom he owed the money. He had more concern about a certain I.N., to whom he owed EUR 130 and whom he might meet on the yard if transferred. He added that he would not provoke I.N. When reminded, on 31 March 2009, that it was planned to transfer him to Block 3, the applicant’s son requested that this be delayed for at least a month. He said he did not feel strong enough to reject drugs if they were offered to him. He was reminded that he was continuing to refuse to give urine samples, which was an indication that he was taking drugs while in Block 1. 28. Following the meeting with social worker N.B. on 31 March 2009 (see paragraph 27 above), at which he had opposed the idea of being transferred to an ordinary regime, a decision was taken that he should stay in Block 1. 29. Following unsuccessful attempts to reach the Head of the Administration for the Execution of Prison Sentences (“the Administration”) by email or telephone, the applicant sent him a letter on 26 March 2009. She complained about the refusal of her request for transfer, stating that it was clear from the documentation available to the prison authorities that her son had lodged a complaint against S.B. and that she had asked for him to be transferred out of the cell following the attack by D.M. She also complained that the applicant’s son had previously been in a cell with sixteen prisoners, although the statutory limit was eight prisoners, and that, unlike in Koper Prison, in Dob Prison he was not provided with the opportunity to study or work. She also stated that of 510 prisoners 470 were taking drugs and that one psychiatrist was employed for less than six hours a day and was not sufficiently accessible. This letter was treated as an appeal and rejected by the Administration on 16 April 2009. The latter reiterated that Koper Prison did not provide any special psychological treatment targeted at her son’s drug abuse and the offence he had committed, and that Dob Prison had sufficient means at its disposal to ensure his safety. 30. It would appear that on 8 April 2009 the governor of Dob Prison requested, of his own motion, that the applicant’s son be transferred to Koper Prison, stating that this would have a positive effect on his motivation for realisation of his “personal plan”. 31. On 6, 14 and 16 April 2009 the applicant’s son saw the psychologist. 32. On 15 April 2009 it was ordered that the applicant’s visits to her son should be held behind a glass partition. The decision referred to the fact that following visits from his sister and the applicant on 4 and 15 April 2009 he was found to be in possession of a presumably illegal substance. 33. On 16 April 2009, during a conversation with a psychiatrist, the applicant’s son became very upset and threatened to harm himself. The prison governor ordered that he be placed in a single cell under supervision and afterwards remain in Block 1. 34. On 20 April 2009 the psychiatrist had a discussion with the applicant about her son’s situation. The applicant’s son was also examined by the psychiatrist. At that examination he said that he wished to reduce substitution therapy. He also confirmed that he had had suicidal thoughts twice before. The physiatrist prescribed him substitute therapy and anti-stress medication. The applicant’s son saw the psychologist the same day. 35. On 24 April and 6 May 2009 social worker N.B. invited the applicant’s son for a consultation, but he refused to attend. 36. On 12 May 2009 social worker N.B. and the prison governor held a meeting with the applicant and her son. The applicant stressed that her son was in danger and referred to her requests that he be transferred. 37. In the meantime, on 4 May 2009 the applicant’s son reported to the prison authorities that he had been attacked by an inmate from the same cell and asked to be transferred to another cell. 38. On 11 May 2009 the Head of the Administration issued a decision refusing the request by the governor of Dob Prison on the grounds already given in the previous decisions (see paragraphs 13 and 29 above), but ordered of his own motion a temporary placement of the applicant’s son in Koper Prison for the period between 20 May and 20 November 2009. 39. On 14 May 2009 a report was sent to Koper Prison, which noted the applicant’s son’s addiction problem and his fear of fellow inmates to whom he owed money. It was also mentioned in the report that officers from Dob Prison had noticed that a certain prisoner was putting pressure on the applicant and was demanding that he return money. 40. On 22 and 27 May 2009 the applicant’s son was examined by a general practitioner in Koper Prison, who noted that he had not been taking substitution medication. 41. On 5 July 2009, after a visit from his mother and sister, the applicant’s son was found to be in possession of a bag containing forty-nine tablets, which had been hidden in a shampoo bottle. Because of this incident, as well as because of his lack of interest in education and drug rehabilitation, the applicant’s son was returned to Dob Prison on 20 July 2009. 42. Following his return to Dob Prison, the applicant’s son was interviewed by a prison officer, who noted in a special questionnaire that he had a history of drug abuse and attempted suicide. The doctor who examined him noted that his medical condition remained unchanged. The applicant’s son was placed in a single cell 20 (7.4 square metres) in Block 1. The electric light in this cell was not functioning. 43. On 23 July 2009 the drug abuse therapist held a consultation with the applicant’s son. The latter said that he wished to discontinue the substitution therapy, but did not want to participate in drug therapy or give urine samples. He also alleged that he had intended to use the tablets he had been found to possess in Koper Prison to “clean himself”. 44. On 7 August 2009 the psychologist discussed a “personal plan” with the applicant’s son. 45. On 9 August 2009 the applicant’s son lodged a request to be given leave to bring into his cell certain objects, such as an electric extension cable, a USB key and so on, which was granted on 10 August 2009. 46. On 13 August 2009 the applicant was transferred to single cell 21 in Block 1, which was identical to cell 20 but had functioning electricity. 47. During his stay in Dob Prison the applicant’s son sent thirty-seven letters and received nineteen packages. He had telephone contact with his father, his sister and the applicant. He was visited regularly by the applicant and by his sister. He was allowed to bring in his computer, radio, headphones, boxing equipment and so on. In the period between 15 December and 23 March 2009 the applicant’s son participated in the “Bridge to education” programme. He attended forty-eight hours of this course. 48. On 14 August 2009, the technical facilities in the cell were inspected and the applicant’s son was given a DVD player, a night light and some other items for personal use brought in by his mother. Between 11.40 a.m. and midday the applicant telephoned his mother. Beforehand, while waiting for the telephone in the corridor, he was attacked by prisoner S.B. The security camera footage from the staircase area at the time of the attack, which was submitted to the Court, show that S.B. and the applicant’s son met at the stairs and that the former swung his hand towards the latter and grabbed or attempted to grab him, possibly around the neck. S.B. is then seen leaving, being followed by the guard who was rushing after him. These events took fourteen seconds. 49. At 6.50 p.m., in the context of regular supervision when the guard changed, two guards on day duty entered cell no. 20 and saw the applicant’s son sitting smoking. They later said that the applicant’s son looked at them and greeted them and that he seemed normal, as he had earlier in the day. At 7.25 p.m. two guards from the night shift opened cell 20 for a nurse to deliver the prescribed medication. They found the applicant’s son hanging from a water pipe by his bed sheet. The nurse examined him and concluded that he was dead. At 7.40 p.m. a doctor arrived. Officers from a local police station arrived at the scene at around 8 p.m. The investigating judge on duty was informed of the incident but declined to attend. According to a report dated 15 August 2009 the doctor found that the applicant’s son had died as a result of suicide, that there were no signs of violence and that the cause of suicide was a depressive syndrome and drug addiction. The remains were taken to a hospital, where an autopsy was carried out. 50. Immediately after the death of her son, the applicant requested the police to seize the applicant’s son’s personal file kept in the prison, which they did. 51. Following the death of the applicant’s son, one report was prepared by M., head of security at Dob Prison, and another by a three-member commission formed within the Administration. 52. The first report, which is dated 15 August 2009, concluded: “We regret the incident. The prisoner was a known drug addict when he started serving his sentence. Due to his drug addiction, the enforcement of the prison sentence was very difficult ... Due to his drug addiction, [the applicant’s son] soon got into trouble with other inmates and suffered mental difficulties. It is our assessment that the treatment of the prisoner was lawful, respectful and professional ... We believe that the prisoner’s suicide could not have been prevented, due to the complexity of his problems.” 53. On 17 August 2008 the Head of the Administration appointed a three-member commission to investigate the circumstances of the applicant’s son’s death. The commission held interviews with the two prison guards who were on duty on the day of the suicide, the prison psychologist, certain prisoners, the nurse who was present at the scene of the suicide, the governor, and the Head of Unit 1, S.Ž,, and examined documents which remained available after the seizure. It issued a report on 28 August 2009. According to the report, the prison doctor and S.Ž. stated that the applicant’s son had not shown any suicidal tendencies. It noted that the applicant’s son had not reported the conflict he had with S.B. on the day of his death, which was only observed when the video recordings were inspected after the suicide. The commission concluded: “According to the assessment made by the commission, the treatment [of the applicant’s son] was lawful, respectful and professional. However, by his conduct and actions the prisoner contributed to several conflict situations, which the authorities could not entirely prevent. The fact that the prisoner was often transferred within the establishment as well as to Koper Prison demonstrates that efforts were made to ensure his safety....The commission also notes that the deceased never reported maltreatment by or conflicts with the prison staff. It was also denied by the prisoners heard by the commission that the deceased was maltreated, threatened or intimidated by prison staff. On the basis of the established facts, the commission concludes that the [authorities of] Dob Prison could not have prevented the suicide of the deceased.” 54. On 22 September 2009 the governor of Dob Prison sent the Administration an additional report, focusing on the conflict between the applicant’s son and S.B. It noted that the contact between the applicant’s son and S.B. took six seconds. Having regard to the statements of prison staff and a prisoner who were near the staircase at the time in question and did not observe or hear anything, as well as to the fact that the applicant’s son sustained no injuries, it was unlikely that S.B. had hit the applicant. The report also noted that the prison staff was of the opinion that there had been much more conflict going on than had actually been observed by them, and that some inmates claimed that the applicant’s son had debts amounting to a total of around EUR 5,000. According to the report, the telephone booths were situated near the staircase and inmates often encountered each other there. This was a known problem, and efforts to change the system were under way. The report suggested that it would have been easier for the applicant’s son to serve a sentence in a smaller prison and that a systemic solution to cases such as his would have been isolation from other inmates, which was legally and practically impossible at the material time. 55. Previously, on 23 March 2009, the applicant had lodged a criminal complaint against the prisoners who had allegedly intimidated and beaten her son on several occasions. Her statement given to the police read, as far as relevant, as follows: “Simon started serving his sentence in 2008. He was placed in Building 2. There, he was intimidated by a prisoner called ... [S.B.], who would take his things (money and other things) and beat him (for example, every day he would wait for him outside the bathroom, slap him and demand that Simon give him everything he had). This was confirmed by another prisoner ... who shared a cell with Simon. [Further to complaints from Simon and another prisoner]... [S.B.] was transferred to Building 1 ... Simon was then beaten by a prisoner ... [D.M] on 9 February 2009 ... Immediately after that attack, Simon reported the incident to the prison guards and told them that he would cut his throat (this is what the administration told me). For that reason, Simon was put under video surveillance for twelve hours in a special room ... On 12 February 2009 Simon was moved to Building 1 and since then he has been afraid to leave the room ... He is afraid of ... [S.B and D.M.], who were also moved to this building ... so that now all three of them are there ... I asked for a transfer for my son ... but was unsuccessful on the grounds that I failed to bring evidence showing that Simon was in danger. I am very afraid for the safety of my son ... Simon is also very very afraid. I wish they would transfer him anywhere, just away from here, as he still has eighteen months to serve ...” 56. The police forwarded the above criminal complaint to the Novo Mesto District Prosecutor (“the Prosecutor”). On 6 April 2009 the Prosecutor requested the police to collect evidence and requested that the case be examined as a priority. Subsequently, the police forwarded to him a report which included a statement by the applicant’s son. The latter told the officers that he had no interest in pursing the proceedings and that it was his father who had started them. On 14 August 2009 the Prosecutor again requested the police to collect evidence, in particular as regards the allegations concerning D.M. and a certain I.N., who was also mentioned by the applicant at some point. He instructed them to question the suspects as well as prison staff, and also to investigate what measures were being taken by the prison staff to monitor the applicant’s son and what the prison authorities’ findings were as regards the applicant’s son’s endangerment and debts. 57. Following the applicant’s son’s death, on 14 August 2009 the police secured the evidence at the scene and ordered an autopsy. They took statement from, inter alia, the inmates who had had contact with the applicant’s son and seized the video recordings of his contact with S.B. on the day of the suicide. On 15 August 2009 the police interviewed the applicant. On the same day a hospital autopsy report was issued. It stated that there were no signs of violence on the applicant’s son’s body and found that the death had been caused by hanging. 58. On 15 August 2009 the applicant complained to Trebnje Police Station about the conditions of her son’s detention, and alleged that she had not been taken seriously by prison officers, in particular the governor, J.P. 59. On 17 August 2009 the applicant told Novo Mesto Police that a prisoner from Dob Prison had called her the previous day to tell her that her son had been attacked by another prisoner shortly before his suicide and that the prison officers had done nothing to stop the attack. She also alleged that her son had died in suspicious circumstances and that the head of Block 1, S.Ž., had intimidated her son. She further alleged that the authorities had not adequately responded to her warnings about the fragile mental state of her son and his risk of suicide. On the same day the applicant also went to Trebnje Police Station, where she alleged that her son had been beaten up prior to his death, that the head of Block 1, S.Ž., had threatened her son and had moved him to a cell with no amenities on 13 August 2009. She also alleged that governor J.P. performed his duties in a negligent manner. On the same day the investigating judge on duty ordered a new autopsy to be carried out by the Institute for Forensic Medicine to establish the exact cause of death, whether there were injuries on the body, and whether prompt help could have prevented the death. 60. An autopsy report was prepared by the Institute for Forensic Medicine on 28 August 2009. It showed no injuries on the body which could have been caused by the use of violence; it noted suicide as the certain cause of death. It also noted that the applicant’s son was not under the influence of drugs and that the death could have been prevented only if he had been found no more than five minutes after the hanging. 61. On 14 September 2009 the applicant alleged at the Novo Mesto District Prosecutor’s office that her son’s suicide had been caused by the extortion by S.B. and his attack on the day of her son’s death. She also alleged that the prison guards should be held responsible for the attack, which they could have prevented. 62. On 15 September 2009 the Prosecutor ordered the police to collect evidence concerning the suspects referred to by the applicant, to conduct interviews with the prison guards and relevant inmates and to prepare a report concerning the video recordings. 63. On 23 September 2009 the applicant reported to Ilirska Bistrica Police her suspicion that her son had been murdered in the prison. She said that her son took a large number of tablets, then lost consciousness and was hanged by the prison guards. 64. On 8 October 2009 the Prosecutor sent a letter to police urging them to collect evidence, as previously requested by him. He emphasised the need for an extensive and thorough investigation of the allegations made by the applicant. He also stated that the investigation should be based on direct taking of evidence by police, and gave them certain instructions in this regard. 65. On 23 October 2009 a forensic report was issued. It found that the fingerprints at the scene of the suicide were those of the applicant’s son. 66. On 2 November 2009 the police submitted their report concerning the applicant’s allegations. It transpires from the report that the police had questioned, among others, the head of Block 1 S.Ž., the social worker N.B. and nine inmates. The report referred also to the findings of autopsy reports, the toxicological report, the applicant’s son’s prison file and his diary. It noted that the time of death was sometime between 6.50 p.m. and 7.25 p.m. 67. On 19 November 2009 the Prosecutor requested that a criminal investigation be opened against S.B. concerning the criminal offence of extortion. His request was upheld by the investigating judge. A number of witnesses, including prisoners who knew the applicant’s son and the applicant, were heard. S.B. stated in those proceedings that the applicant’s son had sold everything he had for drugs and had borrowed money from co-inmates, but not from him. According to S.B., the applicant’s son, in order to get more money from his family, falsely reported to authorities that he and D.M. had been extorting money from him. This had had consequences for S.B. as he had been moved to Block 1 for eleven months. S.B. also admitted that he had met the applicant’s son at the staircase on the day of his death. He said that the applicant’s son had greeted him and that he in response had pushed him, saying that he did not have the right to greet him as he had been the reason for his transfer to Block 1. As there was insufficient evidence that S.B. had extorted money from the applicant’s son, and in particular there was insufficient proof that the applicant’s son had owed anything to S.B., the prosecutor eventually discontinued the proceedings (on 24 March 2010). The applicant subsequently took them over in her capacity as a subsidiary prosecutor. The proceedings are currently pending trial. 68. On 19 November 2009 the Prosecutor requested the police to take further measures to investigate the allegations concerning the alleged lack of protection of the applicant’s son by prison staff and ill-treatment by fellow inmates, in particular I.N. and D.M. He also requested that the role of the prison governor J.P. be explored. 69. On 16 December 2010 the police obtained a forensic report which indicated that the handwriting on the letter found next to the body was that of the applicant’s son. 70. On 30 December 2009 and 1 and 25 February 2010 the applicant lodged further criminal complaints against named prisoners and prison officials, including the governor J.P. and the head of Block 1, S.Ž. She alleged, inter alia, that they had committed the criminal offence of negligence by denying her son access to psychiatric care. The Prosecutor subsequently requested the police to question the relevant prison staff with regard to these allegations. 71. On 20 May 2010 the Prosecutor rejected the applicant’s criminal complaints concerning the criminal offences of extortion, endangering the security of a person, murder, abuse of office, violation of human dignity by abuse of power, and theft allegedly committed against the applicant’s son by fellow inmates or prison staff. The written reasons given for the Prosecutor’s decision, which is eighteen pages long, refer to, inter alia, statements by prisoners. While most of them did not indicate anything which would attract particular attention, two of them testified that the applicant’s son prior to his death had mentioned to them that he was unhappy about not having a television, and that he had said he did not feel well, but did not mention suicide. One also said that the applicant’s son had told him that he wanted to sue the Head of Block 1, S.Ž. Prisoner I.N. said that the applicant’s son had been addicted to heroin and spent EUR 40 to 50 on drugs per day. I.N. said that he had lent him EUR 470, and had taken his jacket as EUR 200 of it. The decision further refers to the analysis of the video recordings and to the limited contact between the applicant’s son and S.B. It also notes that S.B. was sanctioned in disciplinary proceedings for an attack on the applicant’s son. The decision moreover refers to statements by S.Ž., who said during questioning by the police that he had been in daily contact with the applicant’s son in the days preceding his death. After his return from Koper Prison, S.Ž. had not noticed any changes in his behaviour which would indicate that he was a suicide risk. According to S.Ž., the applicant’s son wished to stay in a single cell and the fact that there was no light in cell 20 did not appear to bother him. Moreover, he seemed content on 13 August 2009, after being moved to a new cell. S.Ž. also said that the applicant called the prison authorities on an almost daily basis, in particular before the applicant’s son’s transfer to Koper Prison, requesting her son’s transfer and claiming that he felt unsafe. On the basis of the evidence in the file, the Prosecutor concluded that S.B.’s behaviour had not caused the applicant’s son’s suicide. The Prosecutor also found that there was not the slightest indication that the applicant’s son had been murdered. Furthermore, he noted that his accommodation had been determined in the standard procedure and not at the discretion of S.Ž., that the prison staff had acted within their competences, and that S.Ž. and J.P. had tried to make the applicant’s son’s accommodation as comfortable as possible in the circumstances. He established that the applicant’s son had never been denied medical or psychiatric assistance. There was also no evidence of other acts alleged by the applicant, including the alleged extortion by I.N. 72. The applicant, in the capacity of a subsidiary prosecutor, subsequently took over the prosecution in the above cases and lodged an indictment. The proceedings appear still to be pending. 73. On 17 December 2010, the Prosecutor also rejected the applicant’s remaining criminal complaints (see paragraph 70 above), in particular those concerning alleged negligence at work aimed at certain prison personnel. 74. For the relevant domestic law and practice see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), and Lalić and Others, cited above, as well as paragraphs 42-46 of Butolen v. Slovenia (no. 41356/08, 3 April 2012).

dev

001-102757

ENG

GRC

COMMITTEE

CASE OF TSIVELIS v. GREECE

Violation of Art. 6-1

Anatoly Kovler;Elisabeth Steiner;Sverre Erik Jebens

4. The applicant was born in 1963 and he is currently imprisoned in Korydallos. 5. On 22 October 2004 criminal complaints were brought against him by the Athens First Instance Prosecutor for procuring and repeated rape. 6. In 2006, on an unspecified date, the Indictment Division of the Athens Court of Appeal decided to prosecute the applicant and remitted the case to the Athens First Instance Criminal Court (decision no. 303/2006). 7. On 19 July 2006 the Athens First Instance Criminal Court convicted the applicant and sentenced him to ten years' imprisonment (judgment no. 2439/2006). 8. On 21 July 2006 the applicant lodged an appeal with the Athens Criminal Court of Appeal challenging the First Instance court's findings and its evaluation of the evidence. 9. By judgment dated 4 May 2009 the Court of Appeal dismissed the applicant's allegations (judgment no. 1245/2009). 10. On an unspecified date the applicant lodged an appeal on points of law with the Court of Cassation. The appeal was set for hearing on 3 February 2010. It transpires from the case file that these proceedings are still pending.

dev

001-80455

ENG

UKR

CHAMBER

CASE OF BOCHAN v. UKRAINE

Remainder inadmissible;Violation of Art. 6-1;Not necessary to examine P1-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed

Peer Lorenzen

4. The applicant was born in 1917 and lives in the town of Ternopil. 5. In 1989 her husband and son, Mr B.P. and Mr B.I., became members of the Cooperative Society for Construction and Repair “Kooperator” (the “Society”). On 22 May 1990 the Ternopil Town Executive Committee (the “Committee”) transferred two plots of land in Ternopil to the Society for the construction of three houses. By decision of 14 November 1990, the Committee transferred a part of that land to the applicant's husband and son for the erection of a two-flat house. On 27 November 1990 the general assembly of the Society adopted a decision similar to the Committee's decision of 14 November 1990. On an unspecified date the Committee transferred the land, with which Mr B.P. and Mr B.I. had been provided, back to the Society. 6. On 2 December 1991 the general assembly of the Society, headed by Mr B.I., decided to terminate the Society's activity. It further decided to transfer the Society's property to its members. In particular, Mr B.P. was granted the left side of a house and Mr B.I. was granted its right side. As it was later established by the domestic courts, in 1991 there was only the foundation of the future house. In December 1991 the Society closed its bank account. The Society's state registration was annulled in September 1995. 7. The house was erected by autumn 1994. 8. Between 1995 and 1997 Mr B.P. unsuccessfully lodged with the Ternopil Town Council (the “Council”) a number of applications, requesting the Council to grant him a right to use the plot of land on which the left part of the house had been constructed. 9. On 17 February 1997 Mr B.P. died. The applicant inherited all his possessions. 10. On 8 April 1997 the Council granted Mr B.I. a right to use the plot of land on which the right side of the house had been built. 11. In June 1997 the applicant lodged with the Ternopil Town Court an administrative law complaint against the Council for failure to consider the request to grant her a right to use the plot of land on which the left part of the house had been constructed. On 9 July 1997 the court found in favour of the applicant and ordered the Council to consider the merits of the applicant's request at its next session. 12. On 23 July 1997 the Council granted Mr M. a right to use the plot of land, on which the left side of the house had been built, for construction purposes. 13. In 1996 Mr M. lodged with the Ternopil Regional Prosecutor's Office a criminal law complaint against Mr B.I., accusing the latter of fraud. Mr M. alleged that Mr B.I. had unlawfully attempted to take possession of the left part of the house, which Mr M. had bought from him according to a sales contract of 18 March 1993. On 9 July 1996 the prosecutors initiated criminal proceedings against Mr B.I. 14. In 1997 Mr B.I. lodged with the Ternopil Regional Security Service Department a criminal law complaint, accusing Mr M. of fraud. Mr B.I. alleged that Mr M. had falsified the official documents in respect of the left part of the house in order to become its owner. On 13 March 1997 the department initiated criminal proceedings against Mr M. 15. On 25 May 1997 both criminal cases were joined. On 15 July 1997 the Ternopil Town Police Department terminated the criminal proceedings on the ground of absence of corpus delicti in the actions of Mr B.I. and Mr M. The police established that Mr M. had not been a member of the Society in 1991. It also found that there were two different copies of the decision of the general assembly of the Society of 2 December 1991, one of which confirmed the membership of Mr M. and contained his name instead of the name of Mr B.P., the latter being mentioned in the other copy of that decision. The police held that the existence of two different versions was of no importance, as none of the copies had been duly certified by a notary. It further stated that, according to the expert examination of the sales contract of 18 March 1993, the contract had been forged by way of combination of two printed texts. The police also found that the contract had no binding force, as it had not been certified by a notary or by the Society. 16. In July 1997 the applicant instituted proceedings in the Ternopil Town Court against the Council, seeking the annulment of the latter's decision of 23 July 1997 to grant Mr M. a right to use the plot of land, on which the left side of the house had been built. She further requested the court to oblige the Council to grant her a right to use the plot of land under the left side of the house for an indefinite period of time. The applicant was represented in the proceedings by her son, Mr B. I. Mr M. joined the proceedings as a third party. 17. In the course of the proceedings, the applicant submitted that her late husband had been the owner of the left part of the house, which had been constructed on the plot of land at issue, as he had been granted that part of the house pursuant to the decision of the Society of 2 December 1991. After her husband's death she inherited his property, including the left part of the house. The construction works were carried out at her and her late husband's expense. She further argued that, although her son had initially agreed to sell the part of the house to Mr M., the latter had refused to pay the price, upon which they had agreed. Thus, the left part of the house was not sold to Mr M. 18. Mr M., in his turn, argued that in 1993 he had bought from Mr B.I. the foundation of the left part of the house and some construction materials, which formally belonged to Mr B. P. Mr M. further argued that they had agreed that Mr B. I. would complete the construction works. The latter having failed to do so, Mr M. built the left part of the house at his own cost. Between 1993 and 1994, Mr M. paid Mr B. I. around USD 10,000 by instalments. Following this, Mr M. refused to pay Mr B. I. higher amounts, as he had completed the construction works himself. Mr M. submitted copies of two documents dated 20 January 1995, according to which Mr B. I. had received from Mr M. 1,550,000,000 karbovanets (the former transitional currency of Ukraine before September 1996) for the left part of the house and that the latter had built that part of the house and reimbursed the money, which Mr B. I. had paid for the construction materials. Mr M. alleged that Mr B. I. had signed these documents as the head of the Society. 19. The applicant, in reply, contended that the documents, submitted by Mr M. in support of his claim that he had constructed the house and that he had purchased it, including the contract of 1993, had been forged. Referring to the general interpretation of the relevant domestic law given by the Plenum of the Supreme Court of Ukraine, she further argued that, even assuming that Mr M. had participated in the construction of the left part of the house, he could not claim ownership rights in its respect. 20. The Council submitted that its decision of 23 July 1997 was lawful, as Mr M. had provided it with the documents which had proved that he had constructed the left part of the house. 21. On 27 August 1997 the Ternopil Town Court found for the applicant and quashed the Council's decision of 23 July 1997. It further ordered the Council to grant the applicant the right to use the land at issue for an indefinite period of time. The court held that Mr M. had not qualified to be granted that right, as he had not been a member of the Society and there was no information in the notary's register that the Society had transferred the plot of land in question to him. 22. The Council appealed in cassation. 23. On 29 September 1997 the Ternopil Regional Court informed the Supreme Court of Ukraine about the Council's request for the case to be transferred to another court. The Council alleged that the applicant's son was a member of the family of one of the judges of the Ternopil Regional Court. On 7 October 1997 the Supreme Court ordered that the appeal in cassation against the first instance court's decision was to be heard by the Khmelnytsk Regional Court, instead of the Ternopil Regional Court. The applicant was not informed either about the Council's request or about the decision of the Supreme Court to reassign the case. 24. On 20 November 1997 the Khmelnytsk Regional Court upheld the decision of 27 August 1997. 25. On 10 April 1998 the Deputy Prosecutor of the Khmelnytsk Region lodged a protest with the Presidium of the Khmelnytsk Regional Court, seeking initiation of supervisory review proceedings in the applicant's case. On 27 April 1998 the Presidium allowed the protest, quashed the decisions of 27 August and 20 November 1997, and remitted the case for a fresh consideration to the Ternopil Town Court. It also noted that there had been no building at the time when the Society had decided to transfer its part to Mr B. P. Moreover, the parties failed to submit documentary evidence in support of their claims for ownership rights. 26. On 22 June 1998 the Supreme Court ordered the Ternopil Town Court to transfer the case to the Khmelnytsk Regional Court, the latter being responsible for selecting a first instance court to reconsider the case. According to the Government, the Ternopil Town Court did not comply with the instructions of the Supreme Court and did not transfer the case. 27. On 3 July 1998 the Ternopil Town Court found for the applicant. On 25 August 1998 the Ternopil Regional Court upheld the decision of the first instance court. The courts of both instances held that there was enough evidence that Mr B.P. had been a member of the Society. This fact had been established by the Ternopil Town Court in its judgment of 9 July 1997, which had not been appealed against and had become final, and the applicant could not be held responsible for the absence of other documents proving the membership of her deceased husband. The courts also held that the decision of the general assembly of the Society of 2 December 1991 had, in fact, provided for the transfer of certain objects situated on the plot of land at issue, i.e. the foundation and some construction materials, erroneously referring to them as a building. With regard to the sales contract of 1993, the courts stated that Mr B.I. had not been entitled to sell the left part of the house, irrespective of whether he had acted in his capacity as the head of the Society or as a private person. They also referred to the findings of the police of 15 July 1997 that the contract had been falsified. Similarly, they found that the documents submitted by Mr M., in particular a copy of the decision of the general assembly of the Society of 2 December 1991, stating that he had been one of its members and had been granted the left part of the building, and the receipts in respect of the construction expenses were not valid. In any event, a contribution to the construction expenses could not be a valid ground for an ownership claim. 28. By letter of 12 October 1998, the Deputy President of the Supreme Court requested the Ternopil Town Court to send the case file to the Supreme Court for supervisory review. By the same letter, he informed the Ternopil Town Court and Mr M. that the execution of the judgment of 3 July 1998 was suspended. 29. On 22 December 1998 the Deputy President of the Supreme Court lodged a protest with the Chamber in Civil Cases of that court, seeking the initiation of supervisory review proceedings in the applicant's case. On 24 March 1999 the panel of three judges of the Supreme Court allowed the protest, quashed the decisions of 3 July and 25 August 1998, and remitted the case for a fresh consideration. It held that there was no evidence that the left part of the house was owned by either the Society or Mr B.P. Moreover, there was no information as to the latter's membership of that Society, and the lower courts had not verified whether the house had been erected by him in compliance with relevant regulations. The panel further stated that the first instance court had failed to take into consideration the written testimonies of the persons, who had participated in the construction of the house. It stressed that its findings should be taken into account in the new consideration of the case. 30. On 25 August 1999 the Ternopil Town Court found for the applicant. The court for the most part reiterated the findings contained in the decision of 3 July 1998. It also held that the Society had been the owner of every construction object on the land at issue before it transferred the title to these objects to its members, including Mr B.P. On 28 September 1999 the Ternopil Regional Court upheld the decision of 25 August 1999. 31. On 6 June 2000 the Deputy President of the Supreme Court lodged a protest with the Chamber in Civil Cases of that court, seeking again the initiation of supervisory review proceedings in the applicant's case. On 5 July 2000 the panel of three judges of the Supreme Court allowed the protest, quashed the decisions of 25 August and 28 September 1999, and remitted the case for a fresh consideration. It held that the lower courts had failed to take into account the instructions contained in its decision of 24 March 1999. The panel reiterated that the first instance court had failed either to verify whether the Society had been the owner of the objects in question; whether the Society had been in fact liquidated and, if so, when it had been liquidated; whether the Society had been granted a construction permit; or to establish who had actually constructed the part of the house at issue. The panel found that the Society had not had authority to transfer the land to third parties and its members had not had rights to build houses on that land. It finally held that Mr M. had in fact obtained the plot of land at issue as well as all the documentation in respect of the left part of the house, which remained in his actual possession. 32. On 9 October 2000 the Supreme Court, following the request of Mr M., invited the Khmelnytsk Regional Court to assign the case to one of the first instance courts in the Khmelnytsk region. On 1 November 2000 the regional court transferred the case to the Chemerovetsk Town Court. 33. In November 2000 Mr M. lodged a counter claim, seeking recognition of his ownership rights in respect of the left part of the house. 34. On 19 January 2001 the Chemerovetsk Town Court ruled in favour of Mr M. and rejected the applicant's claims. It held that Mr M. had lawfully bought the foundation of the left part of the building and had completed the construction himself, which was supported by the evidence examined in the proceedings. In particular, the court stated that the contract of 1993 was valid, as it had been seized by the police from the flat of Mr M. in 1997, and the two documents of 20 January 1995 were, according to the expert's conclusions, also valid. The court further noted that the written testimonies, certified by a notary, of 16 witnesses, who had carried out construction works, and Mr D., who had been heard by the court as a witness, confirmed that Mr M. had built the left part of the house at his own cost. The court also relied on the letter of 28 February 1996, submitted by Mr M., in which the Ternopil Regional Prosecutor's Office stated that, according to the conclusions of its inquiry into the matter, the left part of the house was built by Mr M. The court also found that the latter was in actual possession of that part of the house, as he had been paying all the communal charges in its respect. The court refused to admit as evidence copies of the bills of costs in respect of construction materials, submitted by the applicant, on the ground that it was not possible to establish whether these construction materials had been used to build the left part of the house. 35. On 16 February 2001 the applicant requested the Supreme Court to transfer the case to another court on the grounds that it would be difficult for her to participate in the hearings before the Chemerovetsk Town Court with regard to her age and state of health, on one hand, and the distance between her place of residence and the place of the hearing, on the other. On 25 February 2001 the Supreme Court rejected her request as unsubstantiated. 36. On 1 March 2001 the Khmelnytsk Regional Court upheld the decision of 19 January 2001. It also considered that Mr B.P. had not been a member of the Society, as there were no documents proving his membership and he had resided in another location. 37. In the course of the proceedings before the Chemerovetsk Town Court and the Khmelnytsk Regional Court, the applicant requested the courts to summon the witnesses, on whose written statements Mr M. had relied to show that he had constructed the left part of the building. She argued that these testimonies were false and that some of these witnesses could confirm her submissions that certain construction works had been carried out at her and her late husband's expense. The courts did not reply to her request. 38. In September 2001 the applicant lodged an appeal in cassation against the decisions of 19 January and 1 March 2001 under the new transitional cassation procedure. She complained of the lower courts' incorrect assessment of the evidence. The applicant also argued that the courts had refused to summon the witnesses on whose written testimonies they had relied in their decisions. She maintained that neither she nor her representative had had an opportunity to question these witnesses. 39. On 22 August 2002 the Chamber in Civil Cases of the Supreme Court considered the merits of the applicant's appeal in cassation and rejected it. The Supreme Court held that Mr M. had lawfully purchased a part of the foundation of the building and had valid grounds to use the plot of land on which the left part of the building had been constructed. The court also held that the written statements of the witnesses, confirming that Mr M. had completed the construction, had been lawfully admitted as evidence in the case. 40. In 2002 the applicant and Mr B. I. instituted another set of proceedings in the Ternopil Town Court against Mr M., two other members of the family of Mr M., and the Ternopil Town Council, seeking the annulment of the ownership certificate of Mr M. in respect of the house. The applicant and Mr B. I. also sought the annulment of certain other official documents, in which it was mentioned that Mr M. had built a part of the house. 41. On 12 November 2002 the court found against the applicant and Mr B. I. On 4 February 2003 and 26 May 2004, respectively, the Ternopil Regional Court of Appeal and the Supreme Court upheld the decision of the first instance court. 42. According to the applicant, the courts, which considered her second claim, based their decisions on the findings of the Chemerovetsk Town Court, the Khmelnytsk Regional Court and the Supreme Court of Ukraine made in the course of the first set of civil proceedings (see paragraphs 34, 36 and 39 above). 43. Under Article 133 § 1 of the Code, the President of the Supreme Court of Ukraine and his or her deputies, as well as the presidents of the regional courts were entitled to transfer a case from one court to another, upon request of the parties, other participants in the proceedings, the prosecutor, or on their own motion. Article 133 § 2 envisaged that the court, which was dealing with the case, could transfer it to another court, (a) if the former court found that it would be more expedient to examine the case in the court which enjoyed jurisdiction over the place of the principal events of the case, or in the court other than the one chosen by the plaintiff; (b) if the former court allowed the well-founded request of the defendant, whose place of residence had been previously unknown, to hear the case in the court which enjoyed jurisdiction over the place of the defendant's actual residence. No formal decision was adopted concerning the transfer of the case. 44. According to Article 135 of the Code, the case, which was transferred from one court to another pursuant to Article 133, should be accepted by the recipient court. No disputes between the courts over their jurisdiction were allowed. 45. Pursuant to Articles 327, court decisions, rulings and resolutions might have been reviewed in supervisory review proceedings. 46. Under Article 337 the court that considers a case in supervisory review proceedings had power: to leave a judgment, ruling, resolution without changes, and refuse a protest; to quash, in full or in part, a judgment, ruling, resolution and to remit a case for a fresh consideration to court of first or cassation instance; to quash, in full or in part, a judgment, ruling, resolution and to discontinue proceedings or leave a case without consideration; to uphold one of the judgments, rulings, resolutions in a case; 47. Article 341 provided that instructions of the court which had reviewed a case were binding on the court which later re-examined it. These instructions were binding within the limits envisaged by Article 319 of the Code. According to paragraph 2 of the latter provision, court of cassation had no competence to establish facts which had not been established or disproved by a contested judgment, to decide in advance on question of reliability of a particular piece of evidence, prevalence of certain evidence, and on questions as to which norm of substantive law was to be applied or which decision was to be made in the course of new consideration of the case. 48. According to Article 353 of the new Code, the parties to the proceedings are entitled to lodge with the Supreme Court of Ukraine an appeal against the court decisions, which were subject to review in cassation, in view of the exceptional circumstances. 49. Under Article 354, the court decisions in civil matters may be reviewed in view of exceptional circumstances if they are appealed against on the ground that an international judicial authority, whose jurisdiction was recognised by Ukraine, found that a decision in a civil case violated the international commitments of Ukraine. 50. Articles 356 and 357 provide that the appeal on the above ground shall be examined by the panel of at least two-thirds of judges of the Chamber in Civil Cases of the Supreme Court under the rules applicable to cassation proceedings. 51. Pursuant to Article 334, the panel has power to reject an appeal; to quash, in full or in part, the decision at issue and to remit the case for a fresh consideration to the court of first instance, the court of appeal or cassation; to quash the decision of the court of appeal or cassation and to uphold the decision which was wrongly quashed; to quash the decisions in the case and to discontinue the proceedings; to change the decision or to adopt a new decision on the merits of the case. The decision of the panel is final. 52. The relevant parts of the Law read as follows: “This Law regulates relations emanating from: the State's obligation to enforce judgments of the European Court of Human Rights in cases against Ukraine; the necessity to eliminate reasons of violation by Ukraine of the Convention for the Protection of Human Rights and Fundamental Freedoms and protocols thereto; the need to implement European human rights standards into legal and administrative practice of Ukraine; and the necessity to create conditions to reduce the number of applications before the European Court of Human Rights against Ukraine.” “1. For the purposes of this Law the following terms shall be used in the following meaning: ... the Convention – the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols thereto agreed to be binding by the Verkhovna Rada of Ukraine; the Court – the European Court of Human Rights; ... Creditor – a) an applicant before the European Court of Human Rights in a case against Ukraine in whose favour the Court rendered its judgment or in whose case the parties have reached a friendly settlement, or his representative, or his successor... Enforcement of a judgment – a) payment of compensation to the Creditor; b) adoption of individual measures; c) adoption of general measures; ...” “1. Individual measures shall be adopted in addition to the payment of compensation and are aimed at restoring the infringed rights of the Creditor. 2. Individual measures include: a) restoring as far as possible the legal status which the Creditor had before the Convention was violated (restitutio in integrum); ...” 2. The previous legal status of the Creditor shall be restored, inter alia, by means of: a) reconsideration of the case by a court, including reopening of the proceedings in that case; b) reconsideration of the case by an administrative body.” “1. The Office of the Government's Agent shall within three days from receipt of the Court's notification that the judgment has become final: a) send the Creditor a notification explaining his right to initiate proceedings on the review of his case and/or to reopen the proceedings according to the law in force...”

dev

001-75612

ENG

SVN

CHAMBER

CASE OF TREBOVC v. SLOVENIA

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

David Thór Björgvinsson;John Hedigan

5. The applicant was born in 1932 and lives in Šentjur. 6. On 26 January 1999 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. 7. On 30 September 1999 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,257,000 tolars (approximately 9,400 euros) for the injuries sustained. Between 6 April 2000 and 16 January 2003 the applicant lodged four preliminary written submissions and/or adduced evidence. Between 6 April 2000 and 1 October 2001 he made six requests that a date be set for a hearing. During the proceedings the court appointed a medical expert. Of the three hearings held between 28 May 2002 and 25 February 2003 none was adjourned at the request of the applicant. At the last hearing the parties settled the case and the court terminated the proceedings.

dev

001-82410

ENG

UKR

ADMISSIBILITY

BALYUK v. UKRAINE

Inadmissible

Peer Lorenzen

The applicant, Mr Leonid Ivanovich Balyuk, is a Ukrainian national who was born in 1957 and resides in the town of Mukachevo, Zakarpattya Region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. In April 2001 the applicant instituted proceedings in the Mukachevo Town Court against Mr S., a private person, seeking recovery of a debt. On 3 May 2001 the court restricted Mr S.’s right to dispose of his property in order to secure the applicant’s claim. However, on 17 May 2001 some of Mr S.’s property (part of an apartment) was sold to Mrs B. On 13 June 2001 the court found for the applicant and awarded him 7,027 Ukrainian hryvnas (UAH) against Mr S. On 23 October 2001 the Zakarpattya Regional Court of Appeal upheld this judgment and it became final. The judgment of 13 June 2001 was not enforced allegedly due to Mr S.’s lack of funds. In December 2001 the applicant instituted proceedings in the same court against Mr S., Mrs B. and the Mukachevo Notary Office No. 1, seeking to invalidate the apartment sales agreement. On 11 February 2002 the court found that the agreement was valid. In particular, the court found that the injunction on the sale of the disputed apartment had only been forwarded to the notary on 17 May 2001 and therefore, at the material time, the notary had acted in good faith. On 27 May 2002 the Supreme Court of Ukraine upheld this judgment. By letters of 24 May and 10 December 2002, the Zakarpattya Regional Prosecutor’s Office informed the applicant that, because of the court’s negligence, the decision of 3 May 2001 had only been received by the Bailiffs’ Service and the notary on 24 May 2001. In March 2002 the applicant instituted proceedings in the Mukachevo Town Court against the Bailiffs’ Service for an allegedly improper enforcement of the judgment of 13 June 2001. On 3 June 2002 the court rejected the applicant’s complaint for having been submitted out of time. On 3 September 2002 the Zakarpattya Appellate Court quashed this decision and remitted the case for a fresh consideration. On 3 December 2002 the court returned the applicant’s complaint without consideration because it did not comply with the procedural requirements prescribed by law. The applicant neither appealed against this decision, nor lodged his complaint anew. On 17 April 2002 the applicant revoked the writ of enforcement and the enforcement proceedings were closed. The applicant states that there was no sense in continuing the enforcement proceedings because the Bailiffs’ Service was inactive and Mr S. had no assets to seize. At the material time Article 156 of the Code provided that a decision to secure a claim should be enforced immediately in accordance with the procedure for the enforcement of judgments.

dev

001-91092

ENG

GBR

CHAMBER

CASE OF MITCHARD v. THE UNITED KINGDOM

Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)

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

5. The applicant was born in 1956 and lives in Oxford. 6. His wife died on 12 October 1996 leaving dependent children. His claim for widows’ benefits was made in March 2001 and on 2 May 2001 it was determined that he was entitled to Widowed Parent’s Allowance as from 10 April 2001. The applicant however requested that the claim be treated as from the date of his wife’s death, or alternatively that he be allowed to claim the equivalent widow’s benefit. On 22 October he made a formal application for widow’s benefit which was rejected on 27 February 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. 7. The relevant domestic law and practice are described in the Court’s judgment in the case of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV.

dev

001-91115

ENG

POL

CHAMBER

CASE OF KAUCZOR v. POLAND

Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

5. The applicant, Mr Adam Kauczor, is a Polish national who was born in 1967 and lives in Siemianowice Śląskie. 6. On 9 February 2000 the applicant was arrested. On 10 February 2000 the Katowice District Court (Sąd Rejonowy) remanded him in custody on suspicion of murder. That decision was upheld by the Katowice Regional Court (Sąd Okręgowy) on 1 March 2000. 7. The applicant’s pretrial detention was subsequently extended by the Katowice Regional Court’s decisions of 25 April 2000, 3 July 2000 (upheld by the Katowice Court of Appeal (Sąd Apelacyjny) on 2 August 2000), and 23 April 2001. 8. Meanwhile, on 21 June 2000 the applicant was indicted for murder and illegal possession of weapons. The Prosecutor requested that thirty-four witnesses be heard by the trial court and the testimonies of a further one hundred and four witnesses be read out at the trial. 9. The first hearing was scheduled on 28 December 2000. It was adjourned, however, due to the absence of a key witness. Subsequently the court held sixty hearings. Approximately twenty hearings were cancelled or adjourned either because of the absence of the applicant’s counsel or summoned witnesses, or because of the illness of a judge. 10. On 26 November 2001 the Katowice Regional Court decided to extend the applicant’s detention until 30 April 2002. However that decision was changed by the Katowice Court of Appeal’s decision of 19 December 2001. The Katowice Court of Appeal agreed to continue the applicant’s detention, but only until 9 February 2002. It was held that the firstinstance court was no longer competent to extend the preventive measure, since the length of the applicant’s detention was about to reach the statutory two-year timelimit laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego). 11. Between 2001 and 2003 the court held a hearing every two or three months. 12. During this time, the applicant’s detention was extended by the Katowice Court of Appeal’s decisions of 6 February 2002 (confirmed by the same court on 13 March 2002), 15 May 2002 (upheld on 23 October 2002), 23 October 2002 (upheld on 12 March 2003), 12 March 2003 (upheld on 23 April 2003). 13. On 21 May 2003 the applicant’s trial commenced de novo because the judge rapporteur had retired. 14. The first hearing scheduled on 5 July 2003 was adjourned due to the absence of a key witness and one of the lay judges. 15. From the beginning of 2004 until mid2005 the court held on average one hearing per month. 16. On 16 September 2005 the President of the Criminal Section (przewodniczący wydziału) ordered that hearings be scheduled more often than once a month. 17. In 2006 the court scheduled twenty-three hearings, of which eleven did not take place. It appears that between January and October 2007 the court scheduled nine hearings. 18. Meanwhile, the applicant’s detention was extended by the Katowice Court of Appeal decisions of 23 July 2003 (upheld on 27 August 2003), 26 November 2003 (upheld on 17 December 2003), 18 February 2004 (upheld on 17 March 2004), 11 August 2004 (upheld on 25 August 2004), 24 November 2004 (upheld on 5 January 2005), 16 March 2005 (upheld on 20 April 2005), 27 July 2005 (upheld on 10 August 2005), 19 October 2005 (upheld on 23 November 2005), 25 January 2006 (upheld on 22 February 2006), 19 April 2006 (upheld on 19 May 2006), 19 July 2006 (upheld on 23 August 2006), 25 October 2006 (upheld on 15 November 2006), and 24 January 2007. 19. The domestic courts justified the applicant’s pretrial detention in its initial phase by the existence of strong evidence against the applicant and the likelihood that a severe penalty would be imposed, as well as by the need to secure the proper course of the proceedings. The latter was derived from the fact that there was a suspicion that the applicant had been aided in committing the offence charged and that the alleged accomplices were being sought by the authorities. During that time numerous witnesses were heard and an identification parade was held. 20. At the later stage of the applicant’s detention, the authorities relied on the complexity of the case as the reason for extending the measure. It was also emphasised that many of the scheduled court hearings did not take place for various objective reasons, such as the illness of a judge, the applicant’s request for the withdrawal of a judge, the absence of witnesses or of the applicant himself, as well as difficulties in obtaining the report of ballisticforensic experts as requested by the applicant at an advanced stage of the proceedings. 21. On 11 December 2007 the Katowice Regional Court decided to lift the preventive measure and to release the applicant. On an unspecified date that decision was upheld by the Katowice Court of Appeal. 22. The case is currently pending before the Katowice Regional Court as the court of first instance. 23. On an unspecified date in 2006 the applicant lodged a complaint about unreasonable length of proceedings under 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”). 24. On 25 October 2006 the Katowice Court of Appeal dismissed the complaint. Although the court examined the entire length of the proceedings, it held that there had been no inactivity or undue delay on the part of the relevant court. It was observed that until April 2003 the court had been dealing with the case speedily and there had been no periods of inactivity. It was acknowledged that the proceedings had been obstructed when the case had had to be opened de novo and a new judge rapporteur had had to be assigned. The court emphasised that from the end of 2003 until the end of 2006 over fifty hearings had been scheduled. The fact that some of them were cancelled was attributable to objective factors such as the absence of a lay judge, illness of a presiding judge or absence of the applicant’s lawyer. Finally, it was pointed out that the case was of a complex nature and, moreover, that the applicant himself had contributed to the delay because of his multiple requests for new evidence to be admitted. 25. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines pre-trial detention (aresztowanie tymczasowe) one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” Article 258 lists grounds for pre-trial detention. It provides, in so far as relevant: “1. Pre-trial detention may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or codefendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” The provisions on pre-trial detention are based on the precept that pretrial detention, the most extreme among the preventive measures, should not be imposed if more lenient measures are adequate. Article 257 reads, in so far as relevant: “1. Pre-trial detention shall not be imposed if another preventive measure is sufficient.” Article 259 § 1 reads: “1. If there are no special reasons to the contrary, pre-trial detention shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” Article 259 § 3 provides: “Pre-trial detention shall not be imposed if an offence attracts a penalty of imprisonment not exceeding one year.” Article 259 § 4 specifies that the rule provided for in Article 259 § 3 is not applicable when the accused is attempting to evade justice, when he persistently fails to comply with summonses or when his identity cannot be established. A more detailed description of the relevant domestic law and judicial practice concerning the imposition of pre-trial detention, the grounds for its extension, release from detention and rules governing other “preventive measures” are stated 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. 26. On 24 July 2006 the Polish Constitutional Court, having examined jointly two constitutional complaints (skarga konstytucyjna) lodged by former detainees, declared Article 263 § 4 of the Code of Criminal Procedure unconstitutional in so far as it related to the investigation stage of criminal proceedings (No. SK 58/03). The provision in question provided that the detention measure might be extended beyond two years if the pretrial proceedings could not have been completed because of “important obstacles” which could not have been overcome. The provision in question did not set any statutory time-limit for extending the detention measure. The Constitutional Court considered that the impugned provision, by its imprecise and broad wording, could lead to arbitrary decisions of the courts on pre-trial detention and thus, infringe the very essence of constitutional rights and freedoms. The Constitutional Court ruled that the unconstitutional provision was to be repealed within six months from the date of the publication of the judgment in the Journal of Laws (Dziennik Ustaw). 27. As a result of the Constitutional Court’s judgment, Article 263 § 4 of the Code of Criminal Procedure was amended as follows: “The pre-trial detention shall be extended beyond the period specified in paragraphs 2 and 3, only by the court of appeal in whose jurisdiction the proceedings are conducted, upon a motion from the court before which the case is pending, and at the investigation stage, upon a motion from the appellate prosecuting authorities. This can be done if deemed necessary in connection with a suspension of criminal proceedings, in connection with actions aiming at establishing or confirming the identity of the accused, prolonged psychiatric observation of the accused, prolonged preparation of an opinion of an expert, conducting evidentiary action in a particularly intricate case or conducting them abroad, or intentional protraction of proceedings by the accused.” However, a new provision was added in § 4(a) of Article 263: “The court of appeal, in whose jurisdiction the proceedings are being conducted may also, on a motion from the court before which the case is pending, order the extension of the detention on remand for a fixed period, exceeding that specified in paragraph 3, because of other important obstacles whose removal has not been possible”. The above amendment was adopted on 12 January 2007 and entered into force on 16 February 2007 (Journal of Laws of 2007, No. 20, item 116). 28. In the framework of the procedure before the Committee of Ministers (see paragraph 34 below) the Polish Government supplied statistical data concerning the number and the length of pre-trial detentions ordered in a given year by the domestic courts. According to these statistics, in 2005 the total number of cases in which pre-trial detention was ordered by regional courts amounted to 3,833. That number comprised 30% of cases in which the measure lasted between twelve and twenty-four months, and 23 % of cases in which the measure exceeded two years. In 2006 the total number cases in which pre-trial detention was ordered by district courts was 4,000. It comprised over 33 % of cases in which the detention measure lasted between twelve and twentyfour months, and over 21 % of cases in which the measure exceeded two years. District courts ordered pre-trial detention in 7,635 cases in 2005 and 7,632 cases in 2006. In both years, approximately in 12% of cases the detention measure lasted between twelve and twenty-four months and in approximately 2.5 % over two years. 29. The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005V. 30. In addition to new Article 263 § 4 of the Code of Criminal Procedure (see paragraph 27 above) new amendments, designed to streamline criminal proceedings, entered into force on 20 June 2007 (Law of 9 May 2007 on amendments to the Code of Criminal Procedure; Journal of Laws of 2007, No. 99, item 664; Ustawa o zmianie ustawy - Kodeks postępowania karnego oraz niektórych innych ustaw). Those amendments strengthened the powers of the authorities to discipline the participants. In particular, newly added Article 285 § l (a), which applies in the investigative and judicial phase of criminal proceedings, empowers a trial court to impose a fine of up to 10,000 Polish zlotys (PLN) on a defence counsel or a representative of a party who has failed to obey the summons of the authority conducting the proceedings or who, without the approval of the competent authority, has left the venue of the proceedings before they were completed. A similar admonishing measure may be applied in respect of experts, witnesses, interpreters and other persons participating in the proceedings (see among others, Articles 285 § 1, 287 and 20 § 1 (a)). In addition, new Article 117 (a) entered into force on 20 June 2007. According to this provision it is sufficient if one of the defence lawyers or representatives of a party (who has more than one defence lawyer or representative) is present before the authority to proceed with the case. 31. Another amendment, preventing the obstruction of proceedings was introduced, to Article 378 § 1 of the Code of Criminal Procedure. According to the new provision a trial court shall appoint ex officio a defence counsel if the accused has dismissed his lawyer or the lawyer himself has resigned and the accused has not appointed a new defence counsel. Previously, in such a situation, the court had to fix a time-limit for the accused to choose a new defence counsel and only after this time had lapsed, could the court act ex officio. 32. According to the information supplied by the Polish Government to the Committee of Ministers (see paragraph 28 above and paragraph 34 below), in addition the Polish trial courts and prosecution authorities have undertaken a series of practical measures in order to organise criminal proceedings in a more efficient manner, i.e. by scheduling time-limits for hearings well in advance, holding hearings on Saturdays or severing charges against co-accused to separate proceedings under Article 34 § 3 of the Code of Criminal Procedure if the joint examination proves difficult and time-consuming. 33. On 17 May 2007 the Council of Ministers (Rada Ministrów) adopted the “Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland” (Program Działań Rzqdu w sprawie wykonywania wyroków Europejskiego Trybunału Praw Człowieka). By virtue of that document the Minister of Justice was obliged to disseminate among judges and prosecutors on a regular basis information on the standards concerning the length of pre-trial detention stemming from the Convention and the case-law of the Court in Polish cases and to include this topic in the programmes of workshops and seminars for judges. 34. On 6 June 2007 the Committee of Ministers adopted an Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). It reads, in its relevant parts, as follows: “... Having regard to the great number of judgments of the Court finding Poland in violation of Article 5, paragraph 3, of the Convention on account of the unreasonable length of detention on remand (...) Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations found as well as general measures to prevent new, similar violations of the Convention; Stressing the importance of rapid adoption of such measures in cases where judgments reveal structural problems which may give rise to a large number of new, similar violations of the Convention; Taking note of the steps taken so far by the authorities to remedy the structural problems related to detention on remand in Poland (...) Noting also that, although some courts have begun to refer to the Convention and the European Court’s case-law in rendering decisions on the use of detention on remand, this preventive measure still seems often to be ordered without taking into consideration the Convention’s requirements; Underlining that continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty; Recalling that the persistence of reasonable suspicion that a person arrested has committed an offence, although a condition sine qua non for the lawfulness of the continued detention, may no longer suffice after a certain lapse of time and that consequently other relevant and sufficient grounds must be presented in order to extend such detention; Noting that the number of cases in which the European Court has found similar violations is constantly increasing, ENCOURAGES the Polish authorities, in view of the extent of the systemic problem concerning the excessive length of detention on remand: - to continue to examine and adopt further measures to reduce the length of detention on remand, including possible legislative measures and the change of courts’ practice in this respect, to be in line with the requirements set out in the Convention and the European Court’s case-law; and in particular - to take appropriate awareness-raising measures with regard to the authorities involved in the use of detention on remand as a preventive measure, including judges of criminal courts and prosecutors; - to encourage domestic courts and prosecutors to consider the use of other preventive measures provided in domestic legislation, such as release on bail, obligation to report to the police or prohibition on leaving the country; - to establish a clear and efficient mechanism for evaluating the trend concerning the length of detention on remand; ...” 35. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland. It reads, in its relevant parts, as follows: “36. The European Court of Human Rights has repeatedly found violations of Article 5 § 3 of the Convention (right of a person subject to pre-trial detention to be tried within a reasonable time) in respect of Poland. Examples of cases brought to Strasbourg where pre-trial detention has lasted between 4 to 6 years are not uncommon. ... 40. The Commissioner urges the Polish authorities to review the application and functioning of pre-trial detention in Polish law. The training of judges and prosecutors as regards European standards and case-law of the Strasbourg Court is crucial. The general rule should be the release rather than the detention on remand and this message needs to be strongly underlined to national judges...”

dev

001-76317

ENG

GRC

CHAMBER

CASE OF AGGA v. GREECE (N° 3)

Violation of Art. 9;No separate issue under Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

Loukis Loucaides

8. On 17 August 1990 the applicant was chosen to be the Mufti of Xanthi by the Muslims who attended prayers at the mosques of that prefectural district. The Greek State appointed another mufti. However, the applicant refused to step down. 9. Fourth sets of criminal proceedings were instituted against the applicant under Article 175 of the Criminal Code for having usurped the functions of a minister of a “known religion” on the ground that on 11 February 1996 and 17 February 1996 he had issued and signed messages in the capacity of the Mufti of Xanthi. 10. The applicant was legally represented throughout the proceedings by lawyers of his own choice. The courts heard a number of prosecution and defence witnesses. 11. On 11 December 1997 the single-member first instance criminal court (monomeles plimmeliodikio) of Lamia found him guilty in the three first sets of proceedings on the ground that he had issued and signed messages in the capacity of the Mufti of Xanthi (decisions nos. 3913/1997, 3914/1997, 3915/1997). On 1 December 1999 the single-member first instance criminal court (monomeles plimmeliodikio) of Lamia found the applicant guilty in the fourth set of proceedings on the same ground (decision no. 4919/1999). The applicant appealed. 12. On 31 May 2000 the three-member first instance criminal court (trimeles plimmeliodikio) of Lamia upheld the applicant’s conviction in the four sets of proceedings. It imposed, as a whole, a sentence of eight months’ imprisonment converted into a fine (decisions nos. 1654/2000, 1655/2000, 1656/2000 and 1657/2000). He alleged that these convictions amounted to a violation of Articles 6, 9 and 10 of the Convention. 13. On 8 March 2002 the Court of Cassation rejected the applicant’s appeals concerning the four sets of proceedings. It considered that the offence in Article 175 of the Criminal Code was committed “when somebody appeared as a minister of a known religion and when he discharged the functions of the minister’s office including any of the administrative functions pertaining thereto”. The court considered that the applicant had committed this offence because he behaved and appeared as the Mufti of Xanthi. It further considered that the applicant’s conviction was not contrary to Articles 9 and 10 of the Convention, because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a Mufti. As regards Article 6 of the Convention, the Court of Cassation considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights (judgment no. 304/2002). 14. The relevant domestic law and practice are set out in the judgment of 17 October 2002 in the case of Agga v. Greece (no. 2), nos. 50776/99 and 52912/99, §§ 33-44.

dev

001-67961

ENG

BEL

CHAMBER

CASE OF CAPEAU v. BELGIUM

Violation of Art. 6-2;Not necessary to examine Art. 14

Christos Rozakis

8. The applicant was born in 1967 and lives in Ghent. 9. On 29 March 1994 he was arrested in connection with an investigation concerning a case of arson committed on 25 May 1993. 10. On 1 April 1994 the Committals Division of the Ghent Criminal Court refused to extend the validity of the arrest warrant. On appeal, the Indictment Division of the Ghent Court of Appeal overturned that decision and prolonged the applicant's pre-trial detention. 11. On 21 April 1994 the investigating judge rescinded the warrant concerned. 12. On 29 June 1994 and 2 June 1995 respectively the Committals Division and the Indictment Division, ruling on the action to be taken on the basis of the investigation to date, held that there was insufficient evidence to commit the applicant for trial and discontinued the proceedings. 13. On 25 October 1996 the applicant claimed compensation for unwarranted pre-trial detention, relying on the Law of 13 March 1973 (see “Relevant domestic law” below). 14. On 12 May 1997 the Minister of Justice refused the applicant's claim on the ground that he had not “established his innocence by adducing factual evidence or submitting legal argument to that effect”, as required by section 28(1)(b) of the Law of 1973. That requirement was justified, according to the Minister, in the case of an order or judgment discontinuing criminal proceedings, given that a discontinuation decision was not a bar to the reopening of the case if new information or evidence were to come to light. 15. On 4 July 1997 the applicant contested the Minister's decision by means of an application to the Unwarranted Pre-trial Detention Appeals Board. 16. On 1 December 1997 the applicant appeared before the Appeals Board, which upheld the refusal of his claim by a decision taken on the same day and served on the applicant on 29 March 1998. It noted that the grounds for presuming the guilt of the applicant, who had always denied committing the offence he stood accused of when appearing before the courts investigating the charge, had been held to be insufficient to justify committing him for trial. It observed that, although the applicant had announced his intention of submitting a pleading setting out the evidence in the file which “amply” proved his innocence, he had not done so and had not replied to the Government's submissions. Consequently, the Appeals Board found that he had not proved his innocence as the law required (dat verzoeker derhalve het bij de wet van hem vereiste bewijs van onschuld niet bijbrengt). 17. At the material time the relevant provisions of the Law of 13 March 1973 on compensation for unwarranted pre-trial detention read as follows: “(1) Any person deprived of his liberty in conditions incompatible with Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, approved by the Law of 18 May 1955, shall be entitled to compensation. (2) The action for compensation shall be brought in the ordinary courts in accordance with the formalities laid down in the Judicial Code and directed against the Belgian State in the person of the Minister of Justice.” “(1) A compensation claim may be lodged by any person held in pre-trial detention for more than eight days, provided the detention concerned or its prolongation were not provoked by his own conduct: (a) if he has been exculpated directly or indirectly by a judicial decision that has become final; (b) if after being discharged through an order or judgment discontinuing the proceedings he establishes his innocence by adducing factual evidence or submitting legal argument to that effect; (c) if he has been arrested or kept in detention after expiry of any statutory limitation period; (d) if he has been discharged through an order or judgment discontinuing the proceedings which expressly states that the act which gave rise to the pre-trial detention did not constitute a criminal offence. (2) The amount of compensation shall be determined equitably, and with regard to all the circumstances of public and private interest. (3) Where the person concerned is not able to bring compensation proceedings in the ordinary courts, compensation may be claimed by means of a written request to the Minister of Justice, who shall rule on it within six months. The compensation shall be awarded by the Minister of Justice from the Treasury account if the conditions set out in subsection (1) above are satisfied. Where compensation is refused, or the amount is considered insufficient, or the Minister of Justice has not replied within six months of the request, the person concerned may apply to the Board set up in accordance with subsection (4) below. In the case of prosecution for one of the offences defined in Articles 147, 155 and 156 of the Criminal Code, committed against the person detained, the six months mentioned in the preceding paragraph shall begin to run on the day when that prosecution is closed by a decision that has become final. (4) An Appeals Board is hereby instituted to hear appeals against decisions taken by the Minister of Justice, or rule on compensation claims where the Minister has not reached a decision in accordance with the conditions set out in subsection (3) above. The Appeals Board shall be composed of the President of the Court of Cassation, the President of the Conseil d'Etat and the President of the Belgian Bar Association or, where one or more of those persons are prevented from sitting, of the Vice-President of the Court of Cassation, the Vice-President of the Conseil d'Etat and the Vice-President of the Bar Association. The duties of secretary to the Appeals Board shall be performed by one or more members of the registry of the Court of Cassation appointed by its president. The rules of procedure of the Appeals Board shall be laid down by the Crown. (5) Appeals and claims shall take the form of applications in two copies signed by the claimant or his lawyer and lodged with the registry of the Court of Cassation within sixty days of the Minister's decision or of the expiry of the time within which he should have announced it. The Crown shall lay down the procedure before the Appeals Board sitting in closed session. The Appeals Board shall give its ruling on the opinion expressed at the hearing by Principal Crown Counsel attached to the Court of Cassation, after hearing the submissions of the parties. The Appeals Board's decisions shall be delivered at a public sitting. No appeal shall lie against them. At the parties' request, an extract from the Appeals Board's decision shall be published in the Moniteur belge, but the extract may not mention the amount awarded. The costs of publication shall be borne by the Treasury.”

dev

001-112138

ENG

GBR

ADMISSIBILITY

HEATHER MOOR & EDGECOMB LTD v. THE UNITED KINGDOM (NO. 2)

Inadmissible

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

1. The applicant, Heather Moor & Edgecomb Ltd (“HME”), was a company based in Wiltshire in the United Kingdom. According to information provided by the Government, the applicant was dissolved on 20 March 2012. The application was lodged on 5 August 2010 by Mrs A. D. Pickering, a director of the applicant company. The applicant was advised by Mr A. Speaight Q.C. and Ms. K. Livesey, barristers practising in London. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 2000 the applicant was contacted by a British Airways pilot, R., who was approaching the retirement age of 55 years and was seeking advice regarding his pension fund. R. had already been advised by a financial services company linked to the pilots’ association against leaving his employer’s occupational pension scheme, since this would entail “enormous risk”. There were several exchanges of correspondence between R. and HME in the following months as well as a long meeting at the company’s premises. R. indicated he was prepared to accept a “medium” degree of investment risk, and signed a checklist prepared by HME to indicate that he and his wife had been made fully aware of the risks associated with the income drawdown scheme being proposed. HME provided figures showing that by transferring his pension funds, R. could obtain an appreciably higher annual income. Also, the benefits payable in the event of R.’s death before the age of 60 would be much greater. For its assumed growth projections, HME used a central projection rate of 9%, rather than the 7% indicated by the regulator the previous year. R. acted on HME’s advice and transferred his pension fund. 5. By March 2003, R. had become dissatisfied with his investments and, taking new advice, transferred his funds elsewhere. In November of that year he made a formal complaint to HME that he had lost 27% (£278,000) of the amount originally transferred. He complained as well that the 9% assumed rate of growth had been presented to him as a “worst-case scenario”, and that HME had taken no action in response to the concerns he had expressed at the time about stock market movements. HME rejected the complaint, leading R. to file a complaint with the Financial Ombudsman Service (FOS) in December 2003. 6. The procedure followed by the Ombudsman was an entirely written one, with submissions from R. and from HME. The latter’s requests for an oral hearing and for the opportunity to cross-examine R. were refused. The Ombudsman considered this to be unnecessary in the circumstances, and observed that the complaints process was an inquisitorial one, not an adversarial one. 7. The Ombudsman gave a provisional decision on 17 February 2006. He considered that in view of the relative security provided by R.’s occupational pension scheme, HME should have demonstrated that transfer would be clearly advantageous. He observed that responsibility for advice rested completely with the adviser and was not diminished by recommendations or warnings given by other firms. The causal link was established here since HME had recommended transfer and R. had done so. Although the firm argued that there had been a respectable school of thought among financial advisers that would have agreed with their advice to R., the witness statement they relied on indicated the contrary. The Ombudsman considered that to be consistent with good industry practice, the firm should have assumed a growth rate of less than 9%. There was, however, no evidence in the file that the consequences of a lower growth rate had been explained to R. Instead, HME had made repeated references to higher growth rates achieved in previous years. He also took the view that HME had not explained the investment risk in terms that R. would have understood properly. He concluded that the overall risks associated with the income drawdown arrangement were greater than was advisable for R. in his circumstances, and that had this been given sufficient prominence in the firm’s advice R. would not have transferred his pension funds. The most suitable advice would have been to remain in his employer’s pension scheme. 8. HME made detailed submissions on these findings. Its arguments were considered and dismissed in the Ombudsman’s final decision of 9 February 2007. 9. The firm argued first that it had received legal advice that R.’s 10. HME maintained there was no causal link between its advice and R.’s decision to transfer his pension fund. The Ombudsman reiterated the position taken in the provisional decision. 11. Regarding R.’s attitude to risk, the Ombudsman held that R.’s pension fund, which constituted a very significant part of his overall wealth, should not have been placed at risk, there being no need to do so in the particular circumstances. The fact that R. had signed the checklist did not make the transfer more suitable, nor did it negate HME’s duty to explain very clearly the risks involved. 12. The Ombudsman reiterated that HME had not acted consistently with good industry practice when it used the rate of 9% for its projections. While this did not necessarily make the firm’s advice more or less suitable, it incorrectly made the option of transferring look more attractive than it would otherwise have been. Although R. was concerned to make adequate provision for his son in the eventuality of the untimely death of himself and his wife, the Ombudsman was not satisfied that this should have been given greater weight than the security of their retirement income. Other arrangements could have been made to ensure their son’s welfare, such as life insurance. In light of these considerations, he concluded that the appropriate advice should have been not to transfer his pension fund. He directed HME to arrange for a loss assessment to be carried out. R. accepted the decision, making it binding on HME. In August 2010 the firm paid out the statutory maximum amount (£100,000) to R. 13. HME applied to the High Court for judicial review of the Ombudsman’s decision. The application was rejected on the papers on 10 March 2009. The firm renewed its application, which was heard and dismissed by Judge Davis on 18 September 2009. Two grounds were relied on – the Ombudsman’s refusal to hold a hearing, and a lack of independence and impartiality on the part of the FOS. On the first ground, the judge noted that comprehensive written evidence of the parties’ dealings had been available to the Ombudsman. It would have been pointless to cross-examine R. on what action he would have taken had HME advised against transfer, it being probable that he would not have left his employer’s scheme. The procedure followed by the Ombudsman had been a fair one, allowing HME to put its case fully in writing. A hearing would not have added anything. Although the firm alleged that the Ombudsman’s decision contained errors, judicial review was essentially concerned with procedural fairness. Moreover, it did not appear that any facts had been plainly ignored. 14. On the second ground, the judge rejected HME’s arguments about the supervisory role of the Financial Services Authority (FSA) in relation to the FOS, and its reference to evidence in another case in which the FOS was found by an independent assessor to have effectively solicited complaints against companies. The judge was satisfied that the FOS scheme involved an independent and impartial tribunal. 15. HME applied for leave to appeal. This was refused on the papers by Stanley Burnton LJ, following which the firm renewed its application, which was dealt with orally and dismissed by Aikens LJ on 25 March 2010. He noted that Judge Davis had found both grounds to be without merit and agreed with that view. On the issue of an oral hearing, he stated that whether the facts were or were not as alleged by the firm was beside the point. Rather the issue was whether the refusal of a hearing before the Ombudsman was procedurally unfair or unreasonable. He did not consider it so, or that the will of Parliament had been subverted in this respect. Regarding the second ground, he found it to be without substance. 16. The relevant provisions of domestic law, as they stood at the material time, are set out in the Court’s decision in Heather, Moor and Edgecomb v. the United Kingdom (dec.), no 1550/09, 14 June 2011. 17. The following provision of the FOS dispute resolution rules (DISP), as formulated and numbered at the material time, is also relevant to the present case: “3.9.15 R The Ombudsman must maintain a register of each money award and direction made.”

dev

001-92891

ENG

POL

CHAMBER

CASE OF KRAWIECKI v. POLAND

Violation of Article 8 - Right to respect for private and family life

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

4. The applicant was born in 1966 and lives in Lubiąż. 5. On 6 January 2006 the applicant was remanded in custody. The grounds for this decision are unknown, since the applicant has not produced a copy of the order. 6. On 7 November 2006 the Swiebodzin District Court (Sąd Rejonowy) extended the applicant’s detention. On the same day the court decided to discontinue the criminal proceedings against him. The court held that the applicant at the time of the commission of the offence had been incapable of recognising its significance or controlling his conduct because of his mental illness. The applicant had been diagnosed with schizophrenia (paranoid subtype). 7. On 1 October 2007 the applicant was placed in a mental hospital. 8. On 22 April 2008 the Świebodzin District Court decided to extend the applicant’s detention at the mental hospital. The court held that he was still suffering from severe schizophrenia. 9. On 22 July and 20 November 2008 the Świebodzin District Court decided to discontinue the criminal proceedings against the applicant due to his mental illness. The applicant’s state of health was confirmed by a medical certificate of 1 October 2008. 10. In the light of the applicant’s submissions, it is impossible to establish the facts relating to his detention. 11. On 4 December 2006 the Court received a letter from the applicant dated 23 November 2006. The letter was sent while the applicant was detained in the Szamotuły Remand Centre (Areszt Śledczy). It bears the following stamp: “District Court in Świebodzin, censored” (Sąd Rejonowy Świebodzin, Cenzurowano), a handwritten date: “28.11.06” and an illegible signature. 12. The relevant domestic law concerning censorship of detainees’ correspondence is set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007.

dev

001-82728

ENG

POL

CHAMBER

CASE OF NIECKO v. POLAND

Violation of Art. 5-3

Nicolas Bratza

4. The applicant was born in 1957 and lives in Łęczna. 5. On 18 October 2000 the applicant was arrested on suspicion of having committed a number of offences in an organised criminal group. 6. On 20 October 2000 the Lublin District Court remanded the applicant in custody. The applicant's detention was subsequently prolonged by the courts on 16 January 2001, 17 March 2001, 7 August 2001, 10 October 2001 and 9 January 2002. 7. On 10 April 2002 the Lublin Court of Appeal ordered that the applicant and his 3 co-accused be kept in custody until 18 June 2002. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged. The Court of Appeal also found that there was a reasonable risk that the applicant would obstruct the proceedings, given the serious nature of the charges and the fact that they concerned an organised criminal group. It further relied on the severity of the anticipated penalty and the complexity of the case. 8. On 11 June 2002 the prosecution filed with the Lublin Regional Court a bill of indictment against the applicant. The applicant was charged, inter alia, with acting in and leading an organised armed criminal group, ordering murder, extortion and supplying drugs. 9. On 14 June 2002 the Lublin Regional Court extended the applicant's detention until 30 September 2002, referring to the severity of the anticipated penalty. 10. On 25 September 2002 the Lublin Court of Appeal prolonged the applicant's detention until 3 February 2003. In addition to the grounds invoked in the detention order of 14 June 2002, the Court of Appeal relied on the complexity of the case and the number of charges. 11. On 29 January 2003 the Court of Appeal ordered that the applicant and 3 of his co-accused be held in custody until 30 June 2003. It invoked the same grounds as in its earlier decision. 12. On 25 June 2003 the Court of Appeal prolonged the applicant's detention until 30 October 2003. In addition to the grounds previously invoked, it held that the volume of evidence and the need to proceed smoothly with the trial justified the applicant's continued detention. 13. On 22 October 2003 the Court of Appeal extended the applicant's detention until 31 January 2004. It observed that holding the applicant in custody was the only measure which could secure the proper conduct of the proceedings, having particular regard to the security of anonymous witnesses who had been heard in the proceedings. It also considered that the case was particularly complex within the meaning of Article 263 § 4 of the Code of Criminal Procedure. 14. The applicant's detention was subsequently prolonged by the Court of Appeal on 30 December 2003 (until 19 March 2004) and 17 March 2004 (until 5 June 2004). The court invoked the same grounds as in its earlier decisions. 15. On 2 June 2004 the Court of Appeal prolonged the applicant's detention until 5 September 2004. Having regard to the organised character of the alleged criminal activities, it held that the applicant's detention was necessary in order to prevent him and the other co-accused from interfering with the proceedings. On 11 August 2004 the Court of Appeal ordered that the applicant be held in custody until 5 December 2004. It relied on the same grounds as previously. 16. The trial court held about 59 hearings. On 3 December 2004 the Lublin Regional Court delivered a judgment. It convicted the applicant of most of the charges and acquitted him of one charge (ordering murder). It sentenced him to seven years' imprisonment and a fine. 17. The applicant appealed against the first-instance judgment. He remained in detention pending appeal. On 4 October 2005 the Court of Appeal upheld the Regional Court's judgment for the most part. It remitted the case only in respect of one charge of which the applicant had been acquitted. 18. In the course of the proceedings the applicant filed a number of applications for release on health grounds. However, the courts, having regard to the relevant expert reports, refused all those applications. He also unsuccessfully appealed against decisions prolonging his detention on remand. 19. The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.

dev

001-118668

ENG

CHE

ADMISSIBILITY

GAROFOLO v. SWITZERLAND

Inadmissible

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

1. The applicant, Mr Liborio Garofolo, is an Italian national, who was born in 1969 and lives in Liestal, Canton of Basel-Landschaft. He was represented before the Court by Mr A. Joset, a lawyer practising in Liestal. 2. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice. The Italian Government, who had been informed of their right to intervene under Article 36 of the Convention, did not make use of this right. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 2001 the Swiss Federal Gaming Board (Eidgenössische Spielbankenkommission – “FGB”) opened investigations against VSA AG (the “AG”), a stock corporation under Swiss law, on suspicion of having illegally installed gaming machines in establishments other than licensed casinos. On the occasion of a search of the AG’s business premises on 25 April 2001, FGB officials seized documents indicating that the gaming machines had been installed in agreement with the operators or tenants of such establishments who had shared the profits resulting from the machines’ illegal operation with the AG. 5. It followed from several of the documents seized during the search that two illegal gaming machines delivered by the AG had been operated in a club run by the applicant. For instance, according to two letter agreements addressed to the applicant’s club and dated 13 December 1999 and 9 June 2000 respectively it was stipulated that in each case a gaming machine of a type that was not authorised for use outside licensed casinos was to be installed by the AG at the applicant’s club. It was further agreed that the proceeds from the operation of the respective machines were to be equally split between the parties. The agreement dated 9 June 2000 was accompanied by a delivery note (Lieferschein) of the same date stating the type and serial number of the machine supplied to the applicant’s club. The seized documents further comprised three bills dated 26 February, 6 March and 26 April 2000 respectively, demonstrating that gaming machines installed at the applicant’s club by the AG had generated proceeds which had been divided equally between the AG and the club’s tenant. Each of the receipts carried the signature of R.A. who at the time had been an employee of the AG as well as of a representative of the club’s tenant or - as regards the receipt of 26 April 2006 - the applicant’s own signature. The authorities further seized a list dated 12 November 2000 setting out commissions collected by R.A. on behalf of the AG in connection with the operation of gaming machines installed by the AG at the applicant’s club. The list referred, inter alia, to machines of the type that had been the subject of the aforementioned agreements of 13 December 1999 and 9 June 2000. In addition, the FGB officials seized several computer-generated reports depicting revenues of the AG resulting from the operation of the said two gaming machines. 6. On 24 October 2001 an official of the FGB accompanied by a police officer carried out a control visit at the applicant’s club, where they discovered an unlicensed gaming machine. The machine carried several stickers indicating that it was for sale. After having verified that the machine, even though switched off, was nevertheless fully operational, the FGB officer ordered that it be confiscated. 7. On 21 August 2002, the applicant was heard as a witness (Auskunftsperson) in the administrative criminal proceedings (Verwaltungsstrafverfahren) instituted by the FGB against the AG and its management. While conceding that the AG had installed gaming machines at his club’s premises in the past which had included machines of the type appearing on the documents seized at the AG’s premises, the applicant maintained that he had not been aware that the use of such machines outside licensed casinos was prohibited. A machine of the type in question had been operated at his club for a period of two months but had been disposed of in February 2000. By contrast, the gaming machine confiscated by the authorities on 24 October 2001 had not been installed by the AG but had been bought by himself several years back in Italy for private use. The applicant explained that since the machine was no longer functioning he had brought it to the club for the purpose of selling it. The applicant further contended that he did not have any recollection of having been in contact with R.A. in the past. 8. On an unspecified date, the FGB also commenced an investigation against the applicant without the latter’s knowledge. 9. On 30 January 2004, R.A. was heard as a witness in the criminal administrative proceedings instituted against P.V., one the AG’s management board members. R.A. specified that as an employee of the AG at the time of the events at issue it had been his task to empty the cash registers of the gaming machines installed by the AG at a given establishment and to divide the proceeds between the AG and the respective tenant in accordance with the previously agreed ratio. R.A. testified in this context that he had also collected proceeds generated by gaming machines installed by the AG at the club run by the applicant, whom he knew personally. He further confirmed that he had drawn up and signed the aforementioned statements on the division of the related proceeds dated 26 February, 6 March and 26 April 2000 at the club’s premises and in the presence of its tenant but did not have any recollection who had signed the receipts on the tenant’s behalf. When presented with a photo of an illegal gaming machine of the type allegedly operated at the applicant’s club, R.A. recalled having seen a similar machine at the club’s premises. He pointed out that it followed from the information on the receipts dated 6 March and 26 April 2000 that proceeds had also been generated by such gaming machine. This clearly showed that the machine had been in use since otherwise its cash register would have been empty. R.A. further stated that he did not know who had drawn up the remainder of the seized reports on revenues generated by the two allegedly illegal gaming machines. In R.A.’s opinion it was unlikely that the applicant had been aware that the operation of these machines had been illegal. 10. On 26 August 2004 the FGB established the final record (Schlussprotokoll) of its investigations conducted against the applicant which was served on the latter the following day. The record informed the applicant that he was accused of having illegally organised games of chance in violation of Article 56 § 1 lit. a of the Federal Act pertaining to gambling and gambling houses (Bundesgesetz über Glücksspiele und Spielbanken – see Relevant domestic law below). According to the record, the information obtained in the course of the investigations, in particular the documents seized at the AG’s premises, had demonstrated that in the period from 1 April 2000 until 29 January 2001 the applicant had operated up to two unlicensed gaming machines at his club and that the resulting proceeds had been equally split between him and the AG. While the applicant when heard as a witness in the proceedings against the AG had admitted that an illegal gaming machine supplied by the AG had been operated at his club for a period of two months, he had denied that the machine seized at his club had been installed by the AG or operated for commercial purposes. Having regard to the fact that this machine showed the same serial number as indicated on the delivery note dated 9 June 2000, the FGB did, however, conclude that it had been delivered by the AG. It was further specified in the record that according to the documents seized, the profit realised by the applicant in the period at issue as a consequence of the illegal operation of the said machines amounted to a total of 4,405 Swiss francs (CHF 3,619 euros (EUR)). The final record further informed the applicant that, within a time-limit of ten days, he had the right to comment on the FGB’s findings, to apply for the investigations to be complemented and to inspect the investigation files. It was further specified that since the applicant had so far only been heard as a witness in the proceedings against the AG, he would have the right to request a further hearing in his capacity as accused in respect of the charges brought against him. 11. As the applicant did not submit any comments within the set time frame the FGB, by an order (Strafbescheid) of 2 November 2004, found him guilty as charged and imposed a fine of CHF 4,000 Swiss francs (EUR 3,286). It further ordered that the confiscated gaming machine be destroyed and sentenced the applicant to pay compensation to the State in the amount of CHF 4,405 corresponding to the profits he had generated by the machines’ illegal operation. He was further informed about his right to file an objection (Einsprache) against the order within a time-limit of thirty days, providing reasons and setting out possible means of evidence in its support. 12. On 6 December 2004 the applicant, now represented by counsel, objected to the order after having been granted access to the investigation files. He contended, in particular, that while he had been heard as a witness in the proceedings against the AG, he had not been informed that investigations had also been commenced with respect to him. He had thus not been granted an opportunity to defend himself. He further contested having exploited illegal gaming machines at his club for commercial purposes. The confiscated machine had not been in use at the club. As regards any other gaming machines installed by the AG these had been exclusively operated by and for the benefit of the latter. 13. By a penal order (Strafverfügung) of 3 March 2005 the FGB, endorsing its order of 2 November 2004, dismissed the applicant’s objection. It pointed out that Swiss administrative criminal law did not request a formal decision by the authorities on the opening of investigations against an individual but merely required that the initiation of such proceedings was apparent from the official files. In the instant case it followed from the final record of the investigations served on the applicant on 27 August 2004 that investigations had been opened against him. In accordance with Articles 37 and 38 of the Swiss Code on Administrative Criminal Law (see Relevant domestic law below) such final record could be drawn up even before the accused had been questioned. The record had further informed the applicant about his right to submit comments, to apply for further evidence to be taken and to be heard again by the FGB in his capacity as accused. The applicant had, however, not availed himself of these rights. The FGB further pointed out that the applicant’s allegations that the AG alone had been entitled to the profits resulting from the machines’ operation and that the gaming machine seized at his club had never been used for commercial purposes were clearly refuted by the content of the documents seized and the veracity of which the FGB had no reason to doubt. 14. Following the applicant’s appeal against the FGB’s penal order, the case was referred at his request to the Basel-Landschaft Criminal Court (Strafgericht Basel-Landschaft) for judicial review in accordance with Article 72 of the Swiss Code on Administrative Penal Law (see Relevant domestic law below). 15. In his written submissions to the Criminal Court the applicant reiterated his allegations that the proceedings before the FGB had disregarded basic rights of the defence on the grounds already set out in his objection of 6 December 2004 (see § 12 above). He complained that criminal proceedings had never been formally opened against him and he had not been informed in due course of the investigations instituted against him. Furthermore, he had never been heard in his capacity as accused in the course of the investigations but only as a witness in the proceedings against P.V. He further invoked that due to his insufficient command of the German language he had not understood the content of the FGB’s final protocol dated 26 August 2004. He finally maintained that the charges brought against him were time-barred. The applicant requested that the originals of the seized documents be produced at trial, that the signatures of the club’s representative on the receipts dated 26 February, 6 March and 26 April 2000 as well as the delivery order of 9 June 2000 be compared with his own handwriting and that the files in the proceedings against the AG’s management be included as evidence in his trial. He further requested that R.A., P.V. and two further employees of the AG, namely A.T. and M.S., who had allegedly supplied gaming machines to his club, be heard as witnesses. He argued that R.A. was a key witness in the proceedings since he was the author of several of the documents that had been used by the FGB as evidence against him and the accuracy of which he contested. 16. By a decision of 5 October 2006 the Criminal Court granted the applicant’s request to hear the aforementioned witnesses and to admit the investigation files against the AG’’s motion on the ground that he had not established why the taking of the requested evidence was relevant for the court’s finding of facts. On 6 November 2006 the Criminal Court decided to abstain from summoning M.S. The witness had informed the Court that he was currently residing in Italy and while he was ready to appear at trial against compensation of his travel expenses, he did in any event not know the applicant or have any recollection of events relating to the period at issue. Under the circumstances, the court concluded that his convocation would be disproportionate. 17. On 6 December 2006 the Criminal Court heard, inter alia, the applicant, who was represented by counsel and assisted by an interpreter, the FGB official who had seized the illegal gaming machine at the applicant’s club on 24 October 2001, P.V., one of the managing directors of the AG, as well as A.T., an employee of the AG who had been involved in the delivery of gaming machines to the applicant’s club. R.A. did not attend the hearing. 18. By a judgment of the same day, the vice-president of the Criminal Court (Strafgerichtspräsidium) found the applicant guilty as charged. While reducing the fine previously imposed by the FGB from CHF 4,000 to 2,000 (EUR 1,643) the Criminal Court upheld the remainder of the sentence imposed by the FGB. 19. The Criminal Court, relying in particular on the contents of the documents seized at the AG’s premises, found it established that the illegal gaming machines had been used at the applicant’s club for commercial purposes. The copy of the letter agreement dated 13 December 1999 on the supply of an illegal gaming machine by the AG to the applicant’s club had provided for the equal splitting of the proceeds resulting from the machine’s operation between the parties. By agreement dated 9 June 2000 it had been agreed that a gaming machine of the type that later was confiscated by the FGB at the applicant’s club was to be delivered by the AG and that the proceeds from its operation were also to be divided equally between the AG and the applicant. The related delivery note of the same date showed the serial number of the installed gaming machine which was identical with the serial number on the confiscated machine. Furthermore, the compilation of commissions collected by R.A. on behalf of the AG dated 12 November 2000 as well as the further reports on revenues obtained by the AG demonstrated that proceeds had been generated by both such machines during the period at issue and showed what proportion of such profits had been allocated to the AG. The related figures corresponded to statements on the amounts of payments credited to the AG’s accounts. The court further pointed out that the applicant’s allegations that the confiscated gaming machine had not been functioning was refuted by the testimony of the FGB official who had been present at the club on the occasion of the control visit on 24 October 2001 and, when heard as witness at trial, had confirmed that the machine had been accessible to the public and fully operational. 20. The Criminal Court further referred to the witness statement made by R.A. on 30 January 2004 in the proceedings against P.V. (see above § 9). The court explained that it had not been possible to hear the witness in person on the ground that the latter, according to information provided by the cantonal police, was hospitalised abroad. The court, while noting that the applicant had not had the opportunity to confront R.A. at any stage of the proceedings against him, held that R.A.’s statements could nevertheless be admitted as evidence in the instant proceedings since they were not decisive for the applicant’s conviction and the remaining available evidence was sufficient to prove the applicant’s guilt. 21. The Criminal Court specified in this context that in addition to the aforementioned documentary evidence, P.V. had testified at trial that as a rule the proceeds from the operation of gaming machines had been equally split between the AG and the tenants of the enterprises where the machines had been installed. A.T., who at the time had worked as commercial executive for the AG, had confirmed that the proceeds from the operation of gaming machines installed at the applicant’s club had also been divided equally. He had further confirmed that he had drawn up the documents dated 9 June 2000 in relation to the delivery of the machine that had later been confiscated at the applicant’s club. He had handed the documents over to the chauffeur who had been charged with delivering the machine to the applicant’s club. A.T. had further testified that the conclusion and implementation of agreements on the installation of gaming machines had been within the exclusive competence of P.V. and A.T. and it was inconceivable that machines had been delivered also by R.A. whose function had been limited to emptying the cash registers of machines installed by the AG. P.V. stated in this context that R.A. had been a reliable employee and the commission invoices established by him had always been accurate. In view of these testimonies the Criminal Court concluded that the applicant’s allegations that R.A. had regularly exchanged and replaced the machines installed at his club and that for this reason he had not been aware of the type of machines installed at a given moment, were not credible. 22. The applicant appealed against the judgment to the Basel-Landschaft Cantonal Court (Kantonsgericht Basel-Landschaft) and by written submissions dated 13 July 2007 requested to be acquitted. He invoked again that the proceedings had disregarded fundamental rights of the defence in violation of Article 6 of the Convention for the reasons already set out on the occasion of his previous appeals. He further argued that while he had been assisted by an interpreter on the occasion of the trial before the Criminal Court he had not disposed of such assistance at the pre-trial stage in the proceedings before the FGB. For this reason his statements on the occasion of his hearing as a witness in the proceedings against the AG on 21 August 2002 had been contradictory. The applicant further maintained that neither he nor his counsel had been granted an opportunity to examine R.A., the main witness against him, at any stage of the proceedings in breach of Article 6 § 3 (d) of the Convention. This witness had not only incriminated the applicant on the occasion of his hearing on 30 January 2004 in the proceedings against P.V. but had also produced several of the documents on which the Criminal Court had based his conviction and the veracity of which the applicant contested. In the instant case the national authorities could also not exceptionally dispense with a witness hearing on the ground that R.A. was not in a position to attend the trial due to his hospitalisation. In this context it was relevant that the FGB had failed to provide for a possibility to examine R.A. at the pre-trial stage where such confrontation could have been arranged without problems. The applicant consequently reiterated his request that R.A. be heard as a witness in the proceedings. He further repeated his request for an examination of M.S. at trial. 23. By a decision of 7 August 2007 the Cantonal Court granted the applicant’s request to hear R.A. and dismissed the remainder of his request for the taking of evidence. On 24 September 2007 the court was informed by the municipal police that R.A. was currently hospitalised in Singapore. This information was confirmed by e-mail messages from R.A. and a representative of the hospital. Furthermore, R.A.’s brother had explained over the phone that R.A. had undergone surgery and had to remain in hospital for further treatment. By a decision of 27 September 2007 the court, pointing out that a confrontation between the applicant and R.A. was not so important as to justify the postponement of the hearing scheduled for 30 October 2007, ordered that the trial be pursued without R.A. being questioned. 24. On the occasion of the hearing on 30 October 2007 counsel for the defence again requested that R.A. be examined at trial. The FGB, acting as joint plaintiff to the prosecution, moved that the application be dismissed since the court disposed of sufficient further means of evidence for a conviction. The Cantonal Tribunal dismissed the applicant’s request. 25. In its judgment rendered on the same day the Cantonal Court fully endorsed the Criminal Court’s findings at first instance. The court further took the view that the rights of the defence had been fully respected in the proceedings. 26. As regards the applicant’s request to hear R.A. as a witness the Cantonal Court, while noting that the applicant had not been granted an opportunity to confront R.A. at any stage of the proceedings, emphasised that by the FGB’s final record of 26 August 2004, the applicant had been informed of his right to request that the investigations be complemented and could thus have asked already at this point in time for R.A. to be examined. The Cantonal Court further pointed out that the courts at both instances had made efforts to enable R.A.’s examination at trial. The Criminal Court had summoned R.A. to appear at the hearing. The latter being hospitalised abroad, however, could not attend the trial. The witness had again been summoned to appear at the hearing on 30 October 2007 in the appellate proceedings. According to information obtained through the competent municipal police on 24 September 2007 and from the witness’s brother, the latter was subject to further treatment in a hospital in Singapore where he had to remain for some time. His examination had thus been objectively impossible. Another adjournment of the hearing would have further delayed the proceedings that had already lasted a considerable time and would have contravened the principle that criminal proceedings should be conducted expeditiously. 27. The Cantonal Court further stated that pursuant to Article 188 of the Code of Criminal Procedure evidence was only to be obtained to the extent this was necessary with a view to establishing the facts relevant for deciding on an appeal. The Court took the view that in the instant case it disposed of sufficient elements for its findings of fact and that R.A.’s testimony and the documents produced by him were not of significant importance in this respect. The fact that R.A. had not been examined had thus not violated the rights of the defence. The Criminal Court at first instance had based its assessment of the applicant’s guilt on the applicant’s submissions, the testimonies of the witnesses heard at trial as well as the agreements and delivery notes of 9 June 2000 and 13 December 1999 and the reports on profits allocated to the AG. The documents issued by R.A. had been taken into account to the extent they were consistent with and had corroborated these available pieces of evidence. 28. In the Cantonal Court’s view, on the basis of the whole body of evidence taken together, and even without taking into account R.A.’s testimony, it was established that the applicant had operated two illegal gaming machines at his bar which had been provided by the AG and that the latter and the applicant had equally shared the gains from their illegal operation. The applicant’s submissions to the contrary had all been refuted by the available evidence. The fact that at his hearing before the FGB on 21 August 2002 the applicant had stated that he did not recall having met R.A. in the past whereas in the proceedings before the Cantonal Court he had submitted that R.A. had regularly installed and replaced gaming machines at his club and had also been a good client provided a further indication that his testimony was not credible. 29. As regards the applicant’s additional complaint regarding the lack of a formal decision by the authorities with respect to the opening of criminal investigations against him and the fact that he had not been heard by the FGB in his capacity as accused, the Cantonal Tribunal reiterated the related explanations provided in the FGB’s penal order of 3 March 2005 (see § 13 above). It recalled that even though in the final record of the investigations established by the FGB the applicant had been informed about his defence rights and had disposed of sufficient time to avail himself of such rights he had failed to do so. The court specified in this context that although the applicant’s knowledge of the German language was limited it could have been expected of him to enquire about the record’s contents. 30. By a judgment of 20 June 2008 the Federal Supreme Court (Bundesgericht), endorsing the Cantonal Court’s decision, rejected the applicant’s related appeal lodged on 1 February 2008. The Federal Court’s judgment was posted on 2 July 2008 and served on the applicant on 3 July 2008. 31. Article 56 § 1 lit. a of the Federal Act pertaining to gambling and gambling houses (Bundesgesetz über Glücksspiele und Spielbanken) stipulates that the organisation or commercial offering of games of chance outside licensed gambling houses is subject to imprisonment or a fine of up to CHF 500,000. The Federal Gaming Board is the competent authority for the prosecution of illegal gambling. 32. The Federal Act on Administrative Criminal Proceedings (Bundesgesetz über das Verwaltungsstrafrecht) of 22 March 1974 as amended provides for the procedural rules to be observed in the event the prosecution of an offence falls within the competence of an administrative authority. Pursuant to Article 20 et seq. of the Act the relevant administrative authority is competent to rule on breaches of administrative criminal law unless a superior authority holds that the offence committed requires that a prison sentence be imposed, in which case the matter is referred to the criminal courts. Officers of the competent administrative authority who are specifically trained for this purpose may conduct the investigations with the support of the cantonal and municipal police. Article 38 of the Act requires that the opening of investigations, their conduct and their outcome shall be apparent from the official files. Articles 40 et seq. stipulate that the investigating officers may collect written and oral evidence and hear witnesses. The provisions further specify under which conditions the search of apartments or business premises and the confiscation of documents or objects be ordered within the scope of ongoing investigations. 33. According to Article 61 of the Act, once the investigating officer deems the investigations to be complete he or she draws up a final record (SchlussprotokollStrafbescheid), to discontinue the proceedings or to refer the case to the criminal courts. The convict may object to such a decision within 30 days from the date it was served on him. The objection has to be made in writing, contain a specific and reasoned request and set out any related means of evidence. The administrative authority, having re-examined the case, then renders a new decision. The convict may, within a period of ten days after the decision has been served on him, request that the case be referred for judicial review to the criminal courts (Article 72). In this case, the concerned administrative authority transfers the files to the prosecution authorities at the competent cantonal criminal court. Articles 73 to 81 contain rules regarding the ensuing proceedings before the criminal courts. The referral shall constitute the bill of indictment. The accused, the competent public prosecution authorities and the concerned administrative authority are parties to the court proceedings. The evidence gathered within the scope of the administrative criminal proceedings as set out in the investigation file established by the administrative authority shall form an integral part of such court proceedings. The criminal court may on its own motion or at the request of either party order the taking of further evidence. The rules of the Code of Criminal Procedure apply to the proceedings to the extent the Act on Administrative Criminal Proceedings does not contain specific regulations. Pursuant to Section 145 of the Code of Criminal Procedure (Strafprozessordnung) of the Canton Basel-Landschaft of 3 June 1999 the parties to proceedings before the criminal court may within a time-limit set by its president file an application for the taking of further evidence. The president may, inter alia, refuse a related request in the event the taking of the requested evidence is obviously not necessary or in the event it is impossible to obtain. As regards the proceedings before the Cantonal Court

dev

001-88880

ENG

GBR

ADMISSIBILITY

OWENS v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Richard Owens, is a British national who was born in 1944 and lives in London. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's wife died on 2 August 1999 leaving dependent children. In November 2000 the applicant applied for widows' benefits. On 8 November 2000 the applicant was informed that his claim had been disallowed. 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 in receipt of Incapacity Benefit at the relevant time, the amount of which exceeded the rate of Widowed Mother's Allowance. 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

001-111399

ENG

ITA

GRANDCHAMBER

CASE OF CENTRO EUROPA 7 S.R.L. AND DI STEFANO v. ITALY

Preliminary objection allowed (Article 35-3 - Ratione personae);Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award

András Sajó;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Jean-Paul Costa;Josep Casadevall;Kristina Pardalos;Linos-Alexandre Sicilianos;Nona Tsotsoria

8. The first applicant, Centro Europa 7 S.r.l. (“the applicant company”), is a limited liability company operating in the television-broadcasting sector, with its registered office in Rome. The second applicant, Mr Francescantonio Di Stefano, is an Italian national who was born in 1953 and lives in Rome. He is the statutory representative of the applicant company. 9. By a ministerial decree of 28 July 1999, the appropriate authorities granted Centro Europa 7 S.r.l. a licence for nationwide terrestrial television broadcasting in accordance with Law no. 249/1997 (see paragraphs 56-61 below), authorising it to install and operate an analogue television network. The licence specified that the applicant company was entitled to three frequencies covering 80% of national territory. As regards the allocation of the frequencies, the licence referred to the national frequency-allocation plan, adopted on 30 October 1998. It indicated that the installations should be brought into line with the requirements of the “assignment plan” (piano di assegnazione) within twenty-four months and that the measures taken to that end should conform to the adjustment programme (programma di adeguamento) drawn up by the Communications Regulatory Authority (Autorità per le garanzie nelle comunicazioni – AGCOM) in conjunction with the Ministry of Communications (“the Ministry”). It appears from the Consiglio di Stato’s judgment no. 2624 of 31 May 2008 (see paragraph 14 below) that, under the terms of the licence, the allocation of frequencies was deferred until such time as the authorities had adopted the adjustment programme, on the basis of which the applicant company should have upgraded its own installations. The adjustment programme should, in turn, have taken into account the requirements of the national frequency-allocation plan. However, the plan was not implemented. A succession of transitional schemes that benefited existing channels were applied at national level, with the result that, even though it had a licence, the applicant company was unable to broadcast until June 2009 as it had not been allocated any frequencies. 10. The applicant company, through its statutory representative, made a number of applications to the administrative courts. 11. In November 1999 the applicant company served formal notice on the Ministry to allocate frequencies to it. In a note of 22 December 1999, the Ministry refused its request. 12. In 2000 the applicant company lodged an application with the Lazio Regional Administrative Court against the Ministry and RTI (a network of Italian television channels controlled by the Mediaset group), complaining that the authorities had not allocated it any broadcasting frequencies. The application was also directed against RTI because the Retequattro channel had been authorised to broadcast on frequencies that should have been transferred to the applicant company. 13. On 16 September 2004 the Regional Administrative Court found in favour of the applicant company, holding that the authorities were required either to allocate the frequencies or to revoke the licence. Accordingly, it declared the note of 22 December 1999 void. 14. RTI appealed to the Consiglio di Stato. In judgment no. 2624 of 31 May 2008, the Consiglio di Stato dismissed the appeal and upheld the Regional Administrative Court’s judgment. It noted that no deadline had been set in the licence for the authorities to adopt the adjustment programme drawn up by AGCOM in conjunction with the Ministry, but that the applicant company had been given twenty-four months to make improvements to its installations. Accordingly, the Consiglio di Stato found that the adjustment programme should have been approved promptly. The Consiglio di Stato added that the Ministry had to give a decision on the applicant company’s request to be allocated frequencies, in accordance with a judgment delivered in the meantime by the European Court of Justice (ECJ – see paragraphs 33-36 below). 15. On 23 October 2008 the applicant company, because it had still not obtained the frequencies, brought proceedings against the Ministry in the Consiglio di Stato, complaining that the judgment of 31 May 2008 had not been executed. 16. On 11 December 2008 the Ministry extended the validity of the licence granted in 1999 until the analogue switch-off date and allocated Centro Europa 7 S.r.l. a single channel with effect from 30 June 2009. 17. The Consiglio di Stato consequently held in judgment no. 243/09 of 20 January 2009 that the Ministry had properly executed its judgment of 31 May 2008. 18. On 18 February 2009 the applicant company brought a further application in the Regional Administrative Court, arguing that the decree of 11 December 2008 by which the frequencies had been allocated was insufficient in that, contrary to the terms of the licence, it concerned a single channel that did not cover 80% of national territory. In its application the company sought the annulment of the decree and an award of damages. 19. On 9 February 2010 the applicant company signed an agreement with the Ministry of Economic Development (the former Ministry of Communications), which undertook to assign to it additional frequencies in accordance with the terms of the licence. 20. On 11 February 2010, pursuant to one of the clauses of that agreement, the applicant company asked for the proceedings pending before the Regional Administrative Court to be struck out. 21. On 8 March 2011 the applicant company applied to the Regional Administrative Court to restore the case to its list. It sought the annulment of the decree of 11 December 2008 by which the frequencies had been allocated, and an award of damages. It argued that the administrative authorities had not complied fully with their obligation to allocate additional frequencies and had failed to observe the agreement of 9 February 2010 and the decision of 11 December 2008. 22. Paragraph 6 of the agreement in question stated: “Centro Europa 7 S.r.l. undertakes to request, by 11 February 2010, the striking out of application no. 1313/09 pending before the Lazio Regional Administrative Court, to allow it to lapse for failure to submit a fresh application to schedule a hearing within the statutory time-limit and, by the same date, to waive the claims for compensation brought in that application, provided that, by the date on which the case lapses, this agreement, the decision allocating the additional frequencies and the decision of 11 December 2008 have not in the meantime become invalid. The Administration, for its part, undertakes to comply fully with its obligation to allocate additional frequencies, and with this agreement and the decision of 11 December 2008. Should it fail to do so, Centro Europa 7 and the opposing authorities shall regain full possession of their respective procedural prerogatives. In the event that the assignment of the additional frequencies becomes invalid, it is specified that Centro Europa 7 S.r.l. may reactivate application no. 1313/09 only if it would be impossible in this situation for Europa Way S.r.l. to operate one or more of the installations mentioned in Technical Attachment A.” 23. The proceedings are currently pending before the Regional Administrative Court. 24. In the meantime, on 27 November 2003, while its initial application was still pending before the Regional Administrative Court, the applicant company had lodged a further application with the same court, seeking in particular an acknowledgment of its entitlement to have the frequencies allocated and compensation for the damage sustained. 25. In a judgment of 16 September 2004, the Regional Administrative Court dismissed the application, holding in particular that the applicant company had only a legitimate interest (interesse legittimo), that is, an individual position indirectly protected as far as was consistent with the public interest, and not a personal right (diritto soggettivo) to be allocated frequencies for analogue terrestrial television broadcasting. 26. The applicant company appealed to the Consiglio di Stato, arguing that, since it had been granted a licence by the appropriate authorities, it did in fact have a personal right. In particular, it contended that Legislative Decree no. 352/2003 and Law no. 112/2004 did not comply with Community legislation (see paragraphs 65-67 below). 27. On 19 April 2005 the Consiglio di Stato decided to restrict its examination to the applicant company’s claim for damages and not to rule at that stage on the request for allocation of frequencies. 28. It nevertheless observed that the failure to allocate frequencies to Centro Europa 7 S.r.l. had been due to essentially legislative factors. 29. It noted that section 3(2) of Law no. 249/1997 (see paragraph 58 below) enabled the “de facto occupants” of radio frequencies authorised to operate under the previous system to continue broadcasting until new licences were awarded or applications for new licences were rejected, and in any event not after 30 April 1998. 30. It further noted that section 3(7) of Law no. 249/1997 (see paragraph 61 below) authorised the continuation of such broadcasts by entrusting AGCOM with the task of setting a deadline, on the sole condition that programmes were to be broadcast simultaneously on terrestrial frequencies and by satellite or cable. It pointed out that, in the event of failure by AGCOM to set a deadline, the Constitutional Court had set 31 December 2003 as the date by which programmes broadcast by the “over-quota channels” (that is, existing national television channels exceeding the concentration restrictions imposed by section 2(6) of Law no. 249/1997) were to be broadcast by satellite or cable only, with the result that the frequencies to be allocated to licence holders such as the applicant company would have been freed up. The Consiglio di Stato observed, however, that the deadline had not been complied with following the intervention of the national legislature: section 1 of Legislative Decree no. 352/2003, which had subsequently become Law no. 43/2004 (see paragraph 65 below), had prolonged the activities of the over-quota channels pending the completion of an AGCOM investigation into the development of digital television channels. It added that section 23(5) of Law no. 112/2004 (see paragraph 67 below) had subsequently, by a general authorisation mechanism, extended the possibility for over-quota channels to continue broadcasting on terrestrial frequencies until the national frequency-allocation plan for digital television was implemented, with the result that those channels had not been required to free up the frequencies intended for allocation to licence holders, such as the applicant company. 31. Law no. 112/2004 had therefore had the effect, according to the Consiglio di Stato, of blocking the frequencies intended for allocation to holders of analogue licences and of preventing new operators from participating in digital television trials. 32. That being so, the Consiglio di Stato decided to stay the proceedings and requested the ECJ to give a preliminary ruling on the interpretation of the provisions, in the EC Treaty, on freedom to provide services and competition, Directive 2002/21/EC (“the Framework Directive”), Directive 2002/20/EC (“the Authorisation Directive”), Directive 2002/77/EC (“the Competition Directive”) and Article 10 of the European Convention on Human Rights, in so far as Article 6 of the Treaty on European Union referred to it. 33. On 31 January 2008 the ECJ gave judgment. It declared two questions inadmissible, holding that it did not have sufficient information to give a ruling on them. 34. With regard to the question concerning Article 10 of the Convention, the ECJ concluded as follows: “By its first question, the national court asks the Court, essentially, to state whether the provisions of Article 10 of the [Convention], in so far as Article 6 EU refers thereto, preclude, in television-broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights, such as Centro Europa 7, to broadcast without the grant of broadcasting radio frequencies. ... By those questions, the national court is thus seeking to determine whether there are infringements of Community law for the purpose of ruling on an application for compensation for the losses flowing from such infringements. ... Article 49 EC and, from the date on which they became applicable, Article 9 § 1 of the Framework Directive, Article 5 § 1, the second sub-paragraph of Article 5 § 2 and Article 7 § 3 of the Authorisation Directive and Article 4 of the Competition Directive must be interpreted as precluding, in television-broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria. That answer, by itself, thus enables the national court to rule on the application made by Centro Europa 7 for compensation for the losses suffered. Consequently, regard being had to the Court’s answer to the second, fourth and fifth questions, it is not necessary to rule on the first and third questions.” 35. As to the merits, the ECJ observed that the existing channels had been authorised to pursue their broadcasting activities as a result of a series of measures by the national legislature, to the detriment of new broadcasters which nevertheless held licences for terrestrial television broadcasting. It noted that these measures had entailed the successive application of transitional arrangements structured in favour of the incumbent networks, and that this had had the effect of preventing operators without broadcasting frequencies, such as the applicant company, from accessing the television-broadcasting market even though they had a licence (granted, in the applicant company’s case, in 1999). The ECJ held: “... Law no. 112/2004 ... does not merely allocate to the incumbent operators a priority right to obtain radio frequencies, but reserves them that right exclusively, without restricting in time the privileged position assigned to those operators and without providing for any obligation to relinquish the radio frequencies in breach of the threshold after the transfer to digital television broadcasting.” 36. The ECJ added that the application of the transitional schemes was not in accordance with the new common regulatory framework (NCRF), which implemented provisions of the EC Treaty, in particular those on freedom to provide services in the area of electronic communications networks and services. It observed in that connection that several provisions of the NCRF stated that the allocation and assignment of frequencies had to be based on objective, transparent, non-discriminatory and proportionate criteria. In the ECJ’s view, such criteria had not been applied in the present case, since the status of the existing channels had not been amended under the transitional schemes and they had continued their broadcasting activities to the detriment of operators such as the applicant company, which, because it had not been allocated any broadcasting frequencies, had been unable to exercise its rights and make use of its licence. The ECJ therefore reached the following conclusions: “... it must be stated that, in the area of television broadcasting, freedom to provide services, as enshrined in Article 49 EC and implemented in this area by the NCRF, requires not only the grant of broadcasting authorisations, but also the grant of broadcasting radio frequencies. An operator cannot exercise effectively the rights which it derives from Community law in terms of access to the television-broadcasting market without broadcasting radio frequencies. ... Article 49 EC and, from the date on which they became applicable, Article 9 § 1 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), Article 5 § 1, the second subparagraph of Article 5 § 2 and Article 7 § 3 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), and Article 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services must be interpreted as precluding, in television-broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria.” 37. In decision no. 2622/08 of 31 May 2008, the Consiglio di Stato concluded that it could not allocate frequencies in the government’s place or compel the government to do so. It ordered the government to deal with the applicant company’s request for frequencies in a manner consistent with the criteria laid down by the ECJ. It made the following observations in particular: “The adoption by the authorities of a specific measure relates more to issues of performance and implementation than to damages: in cases involving an unlawful refusal to take an administrative measure that has been requested, the adoption of the measure does not amount to compensation, but rather to the performance of an obligation incumbent upon the authorities, unless the private party concerned has sustained any damage.” 38. With regard to the request for the allocation of frequencies, the Consiglio di Stato observed: “Where legitimate interests are at stake, however, it is not possible to envisage a specific means of redress because inaction, a delay or an unlawful refusal will always have an impact on a situation that was or remains unsatisfactory, with the result that there is nothing to restore; the issue in relation to such interests concerns the practical implementation of any ruling setting aside the measure complained of. ... Applying these principles to the present case, the Consiglio finds that the appellant’s request for an order requiring the authorities to allocate the network or frequencies is inadmissible.” 39. The Consiglio di Stato deferred until 16 December 2008 its final decision on the payment of compensation to the applicant company, holding that it was necessary to wait for the relevant regulations to be passed by the government before assessing the amount. 40. The Consiglio di Stato requested both parties to comply with the following requirements by 16 December 2008. The Ministry was, firstly, to specify what frequencies had been available following the public tendering procedures in 1999 and why they had not been allocated to the applicant company and, secondly, to justify its assertion that the licence granted to the applicant company had expired in 2005. 41. The applicant company, for its part, was asked by the Consiglio di Stato to submit a report on its activities between 1999 and 2008, and also to explain why it had not taken part in the 2007 public tendering procedure for the allocation of frequencies. 42. The Consiglio di Stato also asked AGCOM to explain why the national frequency-allocation plan for terrestrial television broadcasting had never been implemented. Lastly, it dismissed the applicant company’s request for the suspension of the provisional authorisation granted to a channel belonging to the Mediaset group (Retequattro) for the use of the frequencies. 43. In its reply, AGCOM explained to the Consiglio di Stato that the national frequency-allocation plan had been implemented only on 13 November 2008. According to AGCOM, this delay was due to several factors. Firstly, the legal situation was complicated because it was difficult to identify the available broadcasting frequencies as a result of the court decisions in which the over-quota channels had been allowed to continue broadcasting. In addition, the transitional arrangements introduced by Law no. 66/2001 (see paragraphs 63-64 below), which had allowed the channels in question to continue broadcasting in analogue mode, had prevented the plan from being implemented on account of the incompatibility between the interests of the channels likely to be allowed to broadcast under the plan and the interests of the channels that were legally entitled to continue their existing operations. 44. The applicant company submitted an expert valuation by the commercial bank Unipol assessing the damage sustained at 2,175,213,345.00 euros (EUR). The valuation was based on the profits achieved by Retequattro, the over-quota channel which should have relinquished the frequencies allocated to the applicant company. 45. In a judgment of 20 January 2009, the Consiglio di Stato, on the basis of Article 2043 of the Civil Code (see paragraph 69 below), ordered the Ministry to pay the applicant company the sum of EUR 1,041,418 in compensation. It observed that, over a period of ten years, the Ministry had acted negligently by having granted Centro Europa 7 S.r.l. a licence without assigning it any broadcasting frequencies. 46. The Consiglio di Stato found that there was a causal link between the conduct of the administrative authorities and the damage alleged, and that the award of the licence to Centro Europa 7 S.r.l. had not conferred on it the immediate right to pursue the corresponding economic activity; accordingly, the compensation should be calculated on the basis of the legitimate expectation of being allocated the frequencies by the appropriate authorities. 47. In the opinion of the Consiglio di Stato, the fact that the frequencies had not been allocated until 11 December 2008 was attributable to the authorities. Damage had thus been sustained as a result of an unlawful act for which the authorities incurred non-contractual liability, concerning both the breach of legitimate expectations and the delay in allocating the frequencies. The fact that the authorities had launched a public tendering procedure for the frequencies in 1999, although the situation in the broadcasting sector had not been clarified and there were outstanding technical issues, had been “risky”. The Consiglio di Stato considered that the question of redress for the damage sustained by the applicant company should take this context into account. The authorities’ conduct had not been characterised by “significant gravity” (notevole gravità) and the unlawful act was thus attributable to “negligent” and not intentional conduct on their part. 48. The Consiglio di Stato added that the pecuniary damage should be assessed with effect from 1 January 2004, since the Constitutional Court had ruled that the “transition period” after which legislation would have to be passed to allow licence holders to start broadcasting had expired on 31 December 2003 (see paragraph 62 below). As to the criteria for determining the damages to be awarded, the Consiglio di Stato pointed out that, as regards the losses sustained, the applicant company had been fully aware, at the time of the call for tenders,from being allocated had been largely foreseeable. Accordingly, the applicant company should have known that it was unlikely to obtain the frequencies, at least in the short term. In addition, it could have purchased the frequencies under section 1 of Law no. 66/2001 (see paragraph 64 below). Having regard to the above considerations, the Consiglio di Stato, without ordering an expert valuation, decided to award the applicant company EUR 391,418 for the losses sustained. As regards loss of earnings, it found that, from 1 January 2004, the applicant company could have achieved profits but had been unable to do so because of the delay in allocating the frequencies; the amount could be assessed at EUR 650,000. It refused to take into account the expert valuation submitted by the applicant company and held that it was unlikely that the company would have purchased shares in the market, even in the event that the over-quota channels had relinquished the frequencies. In the Consiglio di Stato’s view, the comparison between the applicant company and the two leading operators (Mediaset and RAI) was unjustified, especially as it did not take into account the other nationwide operator (La 7), which, although it had greater economic power than the applicant company, was nevertheless operating at a loss. 49. In judgment no. 225/1974 the Constitutional Court, on the basis of Article 43 of the Constitution, reaffirmed the principle of the monopoly enjoyed by the State television corporation RAI on public-interest grounds. It held that the technical limitations on the number of frequencies justified the monopoly, and also laid down the requirement of objectivity and impartiality in public-service broadcasting. 50. Law no. 103 of 14 April 1975 (Nuove norme in materia di diffusione radiofonica e televisiva) transferred control of public-service broadcasting from the executive to the legislature. A bicameral parliamentary committee was set up with responsibility for the general management and supervision of radio and television services. RAI’s board of management was then appointed by Parliament. A third channel of the RAI network was launched in 1979, with particular emphasis on regional programmes. 51. In judgment no. 202 of 15 July 1976, the Constitutional Court declared unconstitutional the provisions of Law no. 103/1975 establishing a monopoly or oligopoly on local broadcasting. In the light of that decision, commercial operators were authorised to run local television channels. 52. The allocation and voluntary redistribution of local frequencies subsequently encouraged the development of large regional or national operators, including the Mediaset group. The group’s first channel was Canale 5, which started broadcasting nationwide in 1980; by 1984, having taken over two other channels (Italia Uno and Retequattro), Mediaset had managed, together with RAI, to establish a “duopoly” of public and private operators. 53. Law no. 223 of 6 August 1990, entitled “Provisions governing the public and private broadcasting system” (Disciplina del sistema radiotelevisivo pubblico e privato), transferred the power to appoint members of RAI’s board from the parliamentary committee to the Speakers of the Chamber of Deputies and the Senate. 54. In judgment no. 420 of 5 December 1994, the Constitutional Court declared unconstitutional the provisions allowing the three channels controlled by the Mediaset group (Canale 5, Italia Uno and Retequattro) to occupy a dominant position. It held that the provision whereby the same operator could hold several television-broadcasting licences on condition that it did not exceed 25% of the total number of national channels – that is, three channels in all – was not sufficient to prevent concentration of television channels, and was accordingly in breach of Article 21 of the Constitution in that it did not make it possible to guarantee the plurality of information sources. The Constitutional Court considered that the existence of legislation to prevent dominant positions from being established was an essential requirement to justify the State’s relinquishment of its monopoly on broadcasting. The creation of such dominant positions in this sector would not only have had the effect of changing the rules on competition but would also have led to the emergence of an oligopoly and would have breached the fundamental principle of plurality of information sources. The Constitutional Court thus held that the mere coexistence of a State-owned company and private companies (a mixed system) within the broadcasting sector was not sufficient to secure respect for the right to receive information from several competing sources. As it had previously stated in decision no. 826/1988, it reaffirmed that a State-owned company could not by itself ensure a balance precluding the establishment of a dominant position in the private sector. 55. On 11 June 1995, in a referendum, the Italian electorate rejected by a majority (57%) a proposal to amend existing legislation by prohibiting a private entrepreneur from controlling more than one television channel. 56. Law no. 249 of 31 July 1997, which came into force on 1 August 1998, established AGCOM. Section 2(6) of the Law imposed concentration restrictions in the television-broadcasting sector, prohibiting the same operator from holding licences to broadcast nationwide on more than 20% of the television channels operating on terrestrial frequencies. 57. Section 3(1) provided that operators authorised to broadcast under the previous legal framework could continue to transmit their programmes at national and local level until new licences were awarded or applications for new licences were rejected, but in any event not after 30 April 1998. 58. Section 3(2) provided that AGCOM was to adopt, by 31 January 1998 at the latest, a national frequency-allocation plan for television broadcasting, on the basis of which new licences were to be awarded by 30 April 1998 at the latest. 59. In decision no. 68 of 30 October 1998, AGCOM adopted the national frequency-allocation plan; subsequently, in decision no. 78 of 1 December 1998, it adopted regulations on the conditions and procedure for awarding licences for analogue terrestrial television broadcasting. 60. Section 3(6) of Law no. 249/1997 introduced a transitional scheme whereby existing national television channels exceeding the concentration restrictions imposed by section 2(6) (known as “over-quota channels”) could continue broadcasting on a temporary basis on terrestrial frequencies after 30 April 1998, provided that they complied with the obligations imposed on channels holding licences and that their programmes were broadcast simultaneously on satellite or cable. 61. Section 3(7) of the same Law entrusted AGCOM with the task of determining the date by which, in view of the real and significant increase in viewers of cable or satellite television, the over-quota channels were to broadcast by satellite or cable only, thus relinquishing terrestrial frequencies. 62. On 20 November 2002 the Constitutional Court delivered a judgment concerning section 3(7) of Law no. 249/1997. It held that the transition period laid down in that provision was acceptable, given that at the time the law was passed the alternative means of transmission in Italy could not be said to have been competitive in relation to traditional analogue broadcasting, hence the need to introduce a transition period to encourage the development of digital broadcasting. However, the Constitutional Court declared unconstitutional the failure to specify a fixed deadline for the expiry of the transition period. Referring to the technical conclusions set out in AGCOM’s decision no. 346/2001, resulting from a study of the number of cable and satellite television viewers in Italy, it ruled that 31 December 2003 was a reasonable date for the expiry of the transition period. The Constitutional Court held, in particular: “... the present Italian private television system operating at national level in analogue mode has grown out of situations of simple de facto occupation of frequencies (operation of installations without licences and authorisations), and not in relation to any desire for greater pluralism in the distribution of frequencies and for proper planning of terrestrial broadcasting ... This de facto situation does not therefore guarantee respect for external pluralism of information, which is an ‘essential requirement’ laid down by the relevant constitutional case-law ... In this context, given the persistence (and aggravation) of a situation which was ruled illegal in judgment no. 420/1994 and the continued operation of channels considered ‘over quota’ by the legislature in 1997, a deadline must be set that is absolutely certain, definitive and hence binding, in order to ensure compatibility with constitutional rules ...” 63. Legislative Decree no. 5 of 23 January 2001, which, as amended, became Law no. 66 of 20 March 2001, authorised operators lawfully engaged in television broadcasting on terrestrial frequencies to continue broadcasting until the national frequency-allocation plan for digital television was implemented. 64. Section 1 provided that operators which were not currently broadcasting but had been awarded a licence could purchase broadcasting installations and connections that were in lawful use on the date on which the Legislative Decree came into force. Section 2 bis provides: “In order to ensure the opening of the digital terrestrial television market, operators that are lawfully engaged in digital television broadcasting, via satellite or cable, may conduct trials by means of simultaneous repeats of programmes that have already been broadcast on analogue frequencies.” 65. Section 1 of Legislative Decree no. 352 of 24 December 2003, which, as amended, became Law no. 43 of 24 February 2004, authorised the over-quota channels to continue broadcasting on analogue and digital television networks pending the completion of an investigation into the development of digital television channels. 66. Law no. 112 of 3 May 2004 (known as the “Gasparri Law”) specified the different stages for the launch of digital broadcasting on terrestrial frequencies. 67. Section 23 of the Law provides: “(1) Pending the implementation of the national frequency-allocation plan for digital television, operators engaged in television-broadcasting activities on any basis at national or local level which fulfil the conditions necessary to obtain authorisation for digital terrestrial broadcasting trials, in accordance with ... Legislative Decree no. 5 [of 23 January 2001], which, as amended, has become Law no. 66 [of 20 March 2001], may conduct such trials, including by simultaneous repeats of programmes already broadcast on analogue frequencies, until the conversion of the networks has been completed, and may apply, from the date of entry into force of this Law, ... for the licences and authorisations necessary for digital terrestrial broadcasting. (2) Digital broadcasting trials may be conducted using installations lawfully broadcasting on analogue frequencies on the date of entry into force of this Law. (3) In order to allow digital networks to be set up, transfers of installations or branches of undertakings between operators lawfully engaged in television broadcasting at national or local level shall be authorised, on condition that the acquisitions are intended for digital broadcasting. ... (5) With effect from the date of entry into force of this Law, a licence to operate a television channel shall be granted, upon request, to persons lawfully engaged in television broadcasting by virtue of a licence or the general authorisation provided for in subsection (1) above, where they can show that they have attained coverage of at least 50% of the population or of the local catchment area. ... (9) In order to facilitate the conversion of the analogue system to the digital system, the broadcasting of television programmes shall be carried on through installations lawfully operating on the date of entry into force of this Law ...” 68. AGCOM approved a “first level” frequency-allocation plan for national and regional channels on 29 January 2003, and the “integrated plan” – supplementing the “first-level plan” with a “second-level plan” (allocation of frequencies to local channels) – on 12 November 2003. 69. This provision reads as follows: “Any unlawful act which causes damage to another shall render the perpetrator liable in damages under civil law.” 70. The relevant parts of this Recommendation, adopted by the Committee of Ministers on 19 January 1999 at the 656th meeting of the Ministers’ Deputies, read as follows. “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, ... Stressing also that the media, and in particular the public-service broadcasting sector, should enable different groups and interests in society – including linguistic, social, economic, cultural or political minorities – to express themselves; Noting that the existence of a multiplicity of autonomous and independent media outlets at the national, regional and local levels generally enhances pluralism and democracy; Recalling that the political and cultural diversity of media types and contents is central to media pluralism; Stressing that States should promote political and cultural pluralism by developing their media policy in line with Article 10 of the European Convention on Human Rights, which guarantees freedom of expression and information, and with due respect for the principle of independence of the media; ... Noting that there are already some cases of bottlenecks in the area of the new communications technologies and services, such as control over conditional access systems for digital television services; Noting also that the establishment of dominant positions and the development of media concentrations might be furthered by the technological convergence between the broadcasting, telecommunications and computer sectors; ... Convinced that transparency as regards the control of media enterprises, including content and service providers of the new communications services, can contribute to the existence of a pluralistic media landscape; ... Recalling also the provisions on media pluralism contained in the Amending Protocol to the European Convention on Transfrontier Television; Bearing in mind the work conducted within the framework of the European Union and other international organisations in the area of media concentrations and pluralism, Recommends that the governments of the member States: i. examine the measures contained in the appendix to this Recommendation and consider the inclusion of these in their domestic law or practice where appropriate, with a view to promoting media pluralism; ii. evaluate on a regular basis the effectiveness of their existing measures to promote pluralism and/or anti-concentration mechanisms and examine the possible need to revise them in the light of economic and technological developments in the media field.” 71. The relevant parts of this Recommendation, adopted by the Committee of Ministers on 28 May 2003 at the 840th meeting of the Ministers’ Deputies, read as follows. “... Recalling that the existence of a wide variety of independent and autonomous media, permitting the reflection of diversity of ideas and opinions, as stated in its Declaration on the freedom of expression and information of 29 April 1982, is important for democratic societies; Bearing in mind Resolution no. 1 on the future of public-service broadcasting adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 78 December 1994), and recalling its Recommendation No R (96) 10 on the guarantee of the independence of public-service broadcasting; Stressing the specific role of the broadcasting media, and in particular of public-service broadcasting, in modern democratic societies, which is to support the values underlying the political, legal and social structures of democratic societies, and in particular respect for human rights, culture and political pluralism; ... Noting that in parallel with the multiplication of the number of channels in the digital environment, concentration in the media sector is still accelerating, notably in the context of globalisation, and recalling to the member States the principles enunciated in Recommendation no. R (99) 1 on measures to promote media pluralism, in particular those concerning media ownership rules, access to platforms and diversity of media content; ... Recommends that the governments of the member States, taking account of the principles set out in the appendix: a. create adequate legal and economic conditions for the development of digital broadcasting that guarantee the pluralism of broadcasting services and public access to an enlarged choice and variety of quality programmes, including the maintenance and, where possible, extension of the availability of transfrontier services; b. protect and, if necessary, take positive measures to safeguard and promote media pluralism, in order to counterbalance the increasing concentration in this sector; ...” 72. The relevant parts of this Recommendation, adopted by the Committee of Ministers on 31 January 2007 at the 985th meeting of the Ministers’ Deputies, read as follows. “... Recalling Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5), which guarantees freedom of expression and freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers; Recalling its Declaration on the freedom of expression and information, adopted on 29 April 1982, which stresses that a free flow and wide circulation of information of all kinds across frontiers is an important factor for international understanding, for bringing peoples together and for the mutual enrichment of cultures; Recalling its Recommendation Rec(2000)23 on the independence and functions of regulatory authorities for the broadcasting sector and its Explanatory Memorandum, which stress the importance of the political, financial and operational independence of broadcasting regulators; Recalling the opportunities provided by digital technologies as well as the potential risks related to them in modern society as stated in its Recommendation Rec(2003)9 on measures to promote the democratic and social contribution of digital broadcasting; Recalling its Recommendation No. R (99) 1 on measures to promote media pluralism and its Recommendation No. R (94) 13 on measures to promote media transparency, the provisions of which should jointly apply to all media; Noting that, since the adoption of Recommendations No. R (99) 1 and No. R (94) 13, important technological developments have taken place, which make a revision of these texts necessary in order to adapt them to the current situation of the media sector in Europe; ... Reaffirming that media pluralism and diversity of media content are essential for the functioning of a democratic society and are the corollaries of the fundamental right to freedom of expression and information as guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Considering that the demands which result from Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms will be fully satisfied only if each person is given the possibility to form his or her own opinion from diverse sources of information; Recognising the crucial contribution of the media in fostering public debate, political pluralism and awareness of diverse opinions, notably by providing different groups in society – including cultural, linguistic, ethnic, religious or other minorities – with an opportunity to receive and impart information, to express themselves and to exchange ideas; ... Reaffirming that, in order to protect and actively promote the pluralistic expressions of ideas and opinions as well as cultural diversity, member States should adapt the existing regulatory frameworks, particularly with regard to media ownership, and adopt any regulatory and financial measures called for in order to guarantee media transparency and structural pluralism as well as diversity of the content distributed; ... Bearing in mind that national media policy may also be oriented to preserve the competitiveness of domestic media companies in the context of the globalisation of markets and that the transnational media concentration phenomena can have a negative impact on diversity of content, Recommends that governments of member States: i. consider including in national law or practice the measures set out below; ii. evaluate at national level, on a regular basis, the effectiveness of existing measures to promote media pluralism and content diversity, and examine the possible need to revise them in the light of economic, technological and social developments on the media; iii. exchange information about the structure of media, domestic law and studies regarding concentration and media diversity. Recommended measures I. Measures promoting structural pluralism of the media 1. General principle 1.1. Member States should seek to ensure that a sufficient variety of media outlets provided by a range of different owners, both private and public, is available to the public, taking into account the characteristics of the media market, notably the specific commercial and competition aspects. 1.2. Where the application of general competition rules in the media sector and access regulation are not sufficient to guarantee the observance of the demands concerning cultural diversity and the pluralistic expressions of ideas and opinions, member States should adopt specific measures. ... 1.4. When adapting their regulatory framework, member States should pay particular attention to the need for effective and manifest separation between the exercise of political authority or influence and control of the media or decision-making as regards media content. ... 4. Other media contributing to pluralism and diversity Member States should encourage the development of other media capable of making a contribution to pluralism and diversity and providing a space for dialogue. These media could, for example, take the form of community, local, minority or social media. ... ... II. Measures promoting content diversity ... 3. Allocation of broadcasting licences and must carry/must offer rules 3.1. Member States should consider introducing measures to promote and to monitor the production and provision of diverse content by media organisations. In respect of the broadcasting sector, such measures could be to require in broadcasting licences that a certain volume of original programmes, in particular as regards news and current affairs, is produced or commissioned by broadcasters. 3.2. Member States should consider the introduction of rules aimed at preserving a pluralistic local media landscape, ensuring in particular that syndication, understood as the centralised provision of programmes and related services, does not endanger pluralism. 3.3. Member States should envisage, where necessary, adopting must-carry rules for other distribution means and delivery platforms than cable networks. Moreover, in the light of the digitisation process – especially the increased capacity of networks and proliferation of different networks – member States should periodically review their must-carry rules in order to ensure that they continue to meet well-defined general interest objectives. Member States should explore the relevance of a must-offer obligation in parallel to the must-carry rules so as to encourage public-service media and principal commercial media companies to make their channels available to network operators that wish to carry them. Any resulting measures should take into account copyright obligations.” 73. This resolution, adopted by the Parliamentary Assembly on 24 June 2004, reads as follows. “1. Italy is a founding member of the Council of Europe and strongly supports the ideals for which it stands. The Parliamentary Assembly is therefore concerned by the concentration of political, commercial and media power in the hands of one person, Prime Minister Silvio Berlusconi. 2. The Parliamentary Assembly cannot accept that this anomaly be minimised on the grounds that it only poses a potential problem. A democracy is judged not only by its day-to-day operations but by the principles the country upholds with regard to its own citizens and internationally. The Assembly recalls that, in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights, States have a duty to protect and, when necessary, take positive measures to safeguard and promote media pluralism. 3. The Assembly deplores the fact that several consecutive Italian governments since 1994 have failed to resolve the problem of conflict of interest and that appropriate legislation has not yet been adopted by the present Parliament. It disagrees that the leading principle of the Frattini Bill currently under consideration – that only managers, not owners, should be held responsible – provides a genuine and comprehensive solution to the conflict of interest concerning Mr Berlusconi. 4. Through Mediaset, Italy’s main commercial communications and broadcasting group, and one of the largest in the world, Mr Berlusconi owns approximately half of the nationwide broadcasting in the country. His role as head of government also puts him in a position to influence indirectly the public broadcasting organisation, RAI, which is Mediaset’s main competitor. As Mediaset and RAI command together about 90% of the television audience and over three quarters of the resources in this sector, Mr Berlusconi exercises unprecedented control over the most powerful media in Italy. 5. This duopoly in the television market is in itself an anomaly from an antitrust perspective. The status quo has been preserved even though legal provisions affecting media pluralism have twice been declared anti-constitutional and the competent authorities have established the dominant positions of RAI and the three television channels of Mediaset. An illustration of this situation was a recent decree of the Prime Minister, approved by Parliament, which allowed the third channel of RAI and Mediaset’s Retequattro to continue their operations in violation of the existing antitrust limits until the adoption of new legislation. Competition in the media sector is further distorted by the fact that the advertising company of Mediaset, Publitalia ’80, has a dominant position in television advertising. The Assembly deplores the continued exclusion of a potential national broadcaster, Europa 7, winner of a 1999 government tender to broadcast on frequencies occupied by Mediaset’s channel, Retequattro. 6. The Assembly believes that the newly-adopted ‘Gasparri Law’ on the reform of the broadcasting sector may not effectively guarantee greater pluralism simply through the multiplication of television channels in the course of digitalisation. At the same time, it manifestly allows Mediaset to expand even further, as it gives the market players the possibility to have a monopoly in a given sector without ever reaching the antitrust limit in the overall integrated system of communications (SIC). The Assembly notes that these concerns led the President of the Republic to oppose the previous version of the law. 7. The Assembly is particularly concerned by the situation of RAI, which is contrary to the principles of independence laid down in Assembly Recommendation 1641 (2004) on public-service broadcasting. RAI has always been a mirror of the political system of the country and its internal pluralism has moved from the proportionate representation of the dominant political ideologies in the past to the winner-takes-all attitude reflecting the present political system. The Assembly notes with concern the resignations of the President of RAI and of one of the most popular journalists in the country in protest against the lack of balanced political representation in the Council of Administration and against the political influence over RAI’s programming. 8. While the printed media in Italy has traditionally provided greater pluralism and political balance than the broadcasting sector, most Italians receive their news through the medium of television. The high cost of newspaper compared to television advertising is having a damaging effect on the Italian printed media. However, the Assembly wishes to record its approval of government measures to help small- and medium-sized newspapers and other measures to boost newspaper readership. 9. The Assembly is extremely concerned that the negative image that Italy is portraying internationally because of the conflict of interest concerning Mr Berlusconi, could hamper the efforts of the Council of Europe aimed at promoting independent and unbiased media in the new democracies. It considers that Italy, as one of the strongest contributors to the functioning of the Organisation, has a particular responsibility in this respect. 10. The Assembly points out that several international bodies, such as the OSCE representative on Freedom of the Media and, most recently, the European Parliament, have expressed concerns similar to its own. It welcomes the measures for safeguarding media pluralism proposed in the European Parliament resolution on the risks of violation, in the European Union and especially in Italy, of freedom of expression and information (Article 11 § 2 of the Charter of Fundamental Rights) of 22 April 2004, namely that the protection of media diversity should become a priority of European Union competition law. 11. The Assembly therefore calls on the Italian Parliament: i. to pass as a matter of urgency a law resolving the conflict of interest between ownership and control of companies and discharge of public office, and incorporating penalties for cases where there is a conflict of interest with the discharge of public office at the highest level; ii. to ensure that legislation and other regulatory measures put an end to the long-standing practice of political interference in the media, taking into account in particular the Committee of Ministers’ Declaration on freedom of political debate in the media, adopted on 12 February 2004; iii. to amend the Gasparri Law in line with the principles set out in Committee of Ministers’ Recommendation No. R (99) 1 on measures to promote media pluralism, in particular: a. by avoiding the emergence of dominant positions in the relevant markets within the SIC; b. by including specific measures to bring an end to the current RAI-Mediaset duopoly; c. by including specific measures to ensure that digitalisation will guarantee pluralism of content. 12. The Assembly calls on the Italian Government: i. to initiate measures to bring the functioning of RAI into line with Assembly Recommendation 1641 (2004) on public-service broadcasting, with the declaration of the 4th European Ministerial Conference on Mass Media Policy in Prague and with Committee of Ministers’ Recommendations No. R (96) 10 on the guarantee of the independence of public-service broadcasting and Rec(2003)9 on measures to promote the democratic and social contribution of digital broadcasting; ii. to give a positive international example by proposing and supporting initiatives within the Council of Europe and the European Union aimed at promoting greater media pluralism at European level. 13. The Assembly asks the Venice Commission to give an opinion on the compatibility of the Gasparri Law and the Frattini Bill with the standards of the Council of Europe in the field of freedom of expression and media pluralism, especially in the light of the case-law of the European Court of Human Rights.” 74. The Venice Commission’s opinion, adopted at its 63rd Plenary Session (10-11 June 2005), reads in its relevant parts as follows. “The Parliamentary Assembly of the Council of Europe has requested the Venice Commission to give an opinion on whether or not the two Italian laws on the broadcasting system (‘the Gasparri Law’) and on the conflict of interest (‘the Frattini Law’) are in conformity with the Council of Europe standards in the fields of freedom of expression and pluralism of the media. ... While the case-law of the European Court on Human Rights does not offer specific guidance on the matter, certain pertinent principles may nonetheless be derived from that case-law: in primis that freedom of expression has a fundamental role in a democratic society, in particular where, through the press, it serves to impart information and ideas of general interest, which the public is moreover entitled to receive, and that the State is the ultimate guarantor of pluralism, especially in relation to audio-visual media, whose programmes are often broadcast very widely. ... Media pluralism is achieved when there is a multiplicity of autonomous and independent media at the national, regional and local levels, ensuring a variety of media content reflecting different political and cultural views. In the Commission’s opinion, internal pluralism must be achieved in each media sector at the same time: it would not be acceptable, for example, if pluralism were guaranteed in the print-media sector, but not in the television one. Plurality of the media does not only mean, in the Commission’s view, the existence of a plurality of actors and outlets, it also means the existence of a wide range of media, that is to say different kinds of media. The Council of Europe instruments set out certain tools for promoting media pluralism, which include: – a legislative framework establishing limits for media concentration; the instruments for achieving this include permissible thresholds (to be measured on the basis of one or of a combination of elements such as the audience share or the capital share or revenue limits) which a single media company is allowed to control in one or more relevant markets; – specific media regulatory authorities with powers to act against concentration; – specific measures against vertical integration (control of key elements of production, broadcasting, distribution and related activities by a single company or group); – independence of regulatory authorities; – transparency of the media; – pro-active measures to promote the production and broadcasting of diverse content; – granting, on the basis of objective and non-partisan criteria, within the framework of transparent procedures and subject to independent control, direct or indirect financial support to increase pluralism; – self-regulatory instruments such as editorial guidelines and statutes setting out editorial independence. In respect of the provisions in the Gasparri Law aiming at protecting media pluralism, the Commission considers at the outset that the mere increase in the number of channels which will be brought about by digital television is not sufficient in itself to guarantee media pluralism. Newly available channels may have very small audiences but with similar amounts of output. Finally, larger companies will enjoy greater purchasing power in a wide range of activities such as programme acquisitions, and will thus enjoy significant advantages over other national content providers. The Commission considers therefore that the threshold of 20% of the channels is not a clear indicator of market share. It should be combined, for instance, with an audience share indicator. As regards the second threshold set out in the Gasparri Law, that is 20% of the revenue in the Integrated Communications Systems (SIC), the Commission considers that SIC certainly reflects a modern trend but should not, at least in this very broad definition, be used already at this stage instead of the ‘relevant market’ criterion, as its effect is to dilute the effectiveness of the instruments aimed at protecting pluralism. Indeed, it may allow an individual company to enjoy extremely high degrees of revenue shares in individual markets, whilst at the same time remaining below the 20% threshold for the whole sector. Indeed, the Commission notes that the combined effect of the new framework set out in the Gasparri Law has relaxed the previous anti-concentration rules whose maximum permissible levels had been exceeded by Mediaset and RAI. Retequattro has accordingly been allowed to continue to occupy analogue frequencies. The Commission considers therefore that the SIC criterion should be replaced by the previously used ‘relevant market’ criterion, as is the case in the other European countries. ... As regards the provisions on migration of radio and television broadcasters from analogue to digital frequencies, the Commission has the impression that the Gasparri Law has taken the approach of attempting to hold back on finding a real solution to the problem of media concentration in the television market until some future point in time and it relies heavily on the point when digitalisation will come into full effect. In the Commission’s view, this approach is not satisfactory, as, if the status quo is maintained, it is likely that Mediaset and RAI will remain the dominant actors in Italian television. In this respect, the Commission recalls that while general anti-trust measures [are aimed] against the abuse of dominant positions, in the media sector dominant positions are forbidden as such. ... In respect of the privatisation of RAI, which should lead to a lesser degree of politicisation of the public broadcaster, the Commission notes that change at RAI will allow for government control over the public broadcaster for an unforeseeable period of time. For as long as the present government stays in office, this will mean that, in addition to being in control of its own three national television channels, the Prime Minister will have some control of the three public national television channels. The Commission expresses concern over the risk that this atypical situation may even strengthen the threat of monopolisation, which might constitute, in terms of the case-law of the European Court of Human Rights, an unjustified interference with freedom of expression. ...” 75. The discussion paper of 6 December 2011 by the Commissioner for Human Rights reads in its relevant part as follows. “3.2 The case of Italy The history of the so-called ‘Italian anomaly’ is illustrative of how broadcast monopolisation (through over-consolidation and super-mergers) can pose an acute danger even in older democracies. Freedom of expression and press freedoms are in a healthy state in Italy. However, the television-broadcasting market is regularly referred to as the ‘Italian anomaly’. In the last two decades, no third force has been able to constrain the so-called duopoly: domination of the nationwide television channel market by the private owner, Mediaset, and the public owner Radiotelevisione Italiana, RAI. The duopoly was accompanied by a practical monopoly by Mediaset in the commercial television sector and the advertisement market. Before digitalisation, the duopoly’s audience share was around 90% (both owned three channels). Combined revenues and the advertisement market also provided evidence of the duopoly. Italy also has an ongoing record of control over public-service television by political parties and governments. As its Prime Minister Silvio Berlusconi co-owns Mediaset, the usual fears of governmental control of RAI are aggravated by worries of widespread governmental control of the nation’s most important source of information, television. The so-called Gasparri and Frattini Laws of 2004 were supposed to provide guarantees for future pluralism of the media, and outlaw ‘two­hat’ situations, respectively. However, neither universal digitalisation nor equal competition rules alone can guarantee cultural diversity and political pluralism in the media, especially if the already existing media concentration is practically maintained or even enhanced by the law. The Gasparri Law’s rules of transition from analogue to digital, despite their innovative force, allow the duopoly to use its acquired economic might to expand into new digital markets. European standards prohibit undue political or partisan ownership or control of private broadcasters in order to avoid government or political interference. Germany and the UK impose restrictions on direct ownership or control of broadcast media by political actors; EU countries also require broadcasters to maintain independence from political parties and politicians. Italy, despite its Frattini Law, does neither.” 76. The European Parliament’s resolution on the risks of violation, in the European Union and especially in Italy, of freedom of expression and information (Article 11 § 2 of the Charter of Fundamental Rights of the European Union (2003/2237(INI)) reads in its relevant parts as follows. “... Situation in Italy Notes that the level of concentration of the television market in Italy is currently the highest within Europe and that while Italian television offers twelve national channels and ten to fifteen regional and local channels, the market is characterised by the duopoly between RAI and MEDIASET where both operators together account for almost 90% of the total audience share and collect 96.8% of advertising resources, as against 88% for Germany, 82% for the United Kingdom, 77% for France and 58% for Spain; Notes that the Mediaset group is the largest private television and communications group in Italy and one of the largest in the world and controls (inter alia) television networks (RTI S.p.A.) and advertising franchise holders (Publitalia ’80), both of which have been formally found to hold a dominant position in breach of national law (Law no. [249/97]) by the Communications Regulatory Authority (decision 226/03); Notes that one of the sectors in which the conflict of interests is most obvious is advertising, given that in 2001 the Mediaset group was in receipt of two thirds of television advertising resources, amounting to a total of EUR 2,500 million, and that the main Italian companies have transferred much of their investment in advertising from printed matter to the Mediaset networks and from RAI to Mediaset; Notes that the President of the Italian Council of Ministers has not resolved his conflict of interests as he had explicitly pledged, but on the contrary has increased his controlling shareholding in the company Mediaset (from 48.639% to 51.023%), thereby drastically reducing his own net debt through a marked increase in advertising revenue to the detriment of competitors’ revenues (and ratings) and, above all, of advertising funding for the written press; Regrets the repeated and documented instances of governmental interference, pressure and censorship in respect of the corporate structure and schedules (even as regards satirical programmes) of the RAI public television service, starting with the dismissal of three well-known professionals at the sensational public request of the President of the Italian Council of Ministers in April 2002 – in a context in which an absolute majority of the members of the RAI board of governors and the respective parliamentary control body are members of the governing parties, with this pressure then being extended to other media not under his ownership, leading inter alia to the resignation of the editor of Corriere della Sera in May 2003; Notes, therefore, that the Italian system presents an anomaly owing to a unique combination of economic, political and media power in the hands of one man – the current President of the Italian Council of Ministers – and to the fact that the Italian Government is, directly or indirectly, in control of all national television channels; Notes that in Italy the broadcasting system has been operating in extralegal circumstances for decades, as repeatedly recognised by the Constitutional Court, and in the face of which the efforts of the ordinary legislator and the competent institutions have proved ineffective in re-establishing a legal regime; RAI and Mediaset each continue to control three terrestrial analogue television broadcasters, despite the fact that the Constitutional Court in its judgment no. 420 of 1994 has ruled it impermissible for one and the same entity to broadcast over 20% of the television programmes transmitted domestically on terrestrial frequencies (i.e. more than two programmes) and has found the regulatory regime under Law no. 223/90 to be contrary to the Italian Constitution, despite being a ‘transitional regime’; nor did Law no. 249/97 (establishing the Communications Guarantee Authority and rules on telecommunication and radio and television systems) abide by the prescriptions of the Constitutional Court which, in its judgment 466/02, declared the constitutional illegitimacy of Article 3 § 7 thereof, ‘in so far as it does not provide for the establishing of a hard-and-fast deadline, in any event not exceeding 31 December 2003, by which the programmes transmitted by broadcasters exceeding the limits referred to in paragraph 6 of Article 3 must be broadcast exclusively via satellite or via cable’; Notes that the Italian Constitutional Court declared in November 2002 (Case 466/2002) that the present Italian private television system operating at national level and in analogue mode has grown out of situations of simple de facto occupation of frequencies (operation of installations without concessions and authorisations), and not in relation to any desire for greater pluralism in the distribution of frequencies and proper planning of broadcasting ... This de facto situation does not therefore guarantee respect for external pluralism of information, which is an essential requirement laid down by the relevant constitutional case-law ... In this context, given the continued existence (and aggravation) of the situation which was ruled illegal by Judgment no. 420 in 1994 and of networks considered ‘surplus’ by the 1997 legislature, a final deadline must be set that is absolutely certain, definitive and hence absolutely binding in order to ensure compatibility with constitutional rules; notes that, nonetheless, the deadline for the reform of the audio-visual sector has not been respected and that the law for the reform of the audio-visual sector has been sent back by the President of the Republic for a new examination by the Parliament due to the non-respect of the principles declared by the Constitutional Court; ... Hopes that the legislative definition contained in the draft act for reform of the audio-visual sector (Article 2, point G of the Gasparri law) of the ‘integrated system of communications’ as the only relevant market does not conflict with Community competition rules within the meaning of Article 82 of the EC Treaty or with numerous judgments of the Court of Justice, and does not render impossible a clear and firm definition of the reference market; Hopes also that the ‘system for assigning frequencies’ provided for in the draft Gasparri law does not constitute mere legitimisation of the de facto situation and does not conflict, in particular, with Directive 2002/21/EC, Article 7 of 2002/20/EC or Directive 2002/77/EC, which specify, inter alia, that the assigning of radio frequencies for electronic communication services must be based on objective, transparent, non-discriminatory and proportionate criteria; Highlights its deep concern in relation to the non-application of the law and the non-implementation of the judgments of the Constitutional Court, in violation of the principle of legality and of the rule of law, and at the incapacity to reform the audio-visual sector, as a result of which the right of its citizens to pluralist information has been considerably weakened for decades; a right which is also recognised in the Charter of Fundamental Rights; Is concerned that the situation in Italy could arise in other member States and the accession countries if a media magnate chose to enter into politics; Regrets that the Italian Parliament has yet to adopt a regulation resolving the conflict of interests of the President of the Italian Council of Ministers, which, it was promised, would take place within the first hundred days of his government; Considers that the adoption of a general reform of the audio-visual sector could be facilitated if it were to contain specific and adequate safeguards to prevent actual or future conflicts of interest in the activities of local, regional or national executive members who have substantial interests in the private audio-visual sector; Hopes, moreover, that the draft Frattini law on conflict of interests will not stop at de facto recognition of the Premier’s conflict of interests, but will provide for adequate mechanisms to prevent this situation from continuing; Regrets that, if the obligations of the member States to ensure pluralism in the media had been defined after the 1992 Green Paper on pluralism, the current situation in Italy could possibly have been avoided; ... Invites the Italian Parliament: – to accelerate its work on the reform of the audio-visual sector in accordance with the recommendations of the Italian Constitutional Court and the President of the Republic, taking account of the provisions in the Gasparri Bill which are incompatible with Community law, as noted by those authorities; – to find a genuine and appropriate solution to the problem of a conflict of interest of the President of the Italian Council of Ministers who also directly controls the principal provider of private and, indirectly, public television, the main advertising franchise holder and many other activities connected with the audio-visual and media sector, – to take measures to ensure the independence of the public-service broadcaster.”

dev

001-58976

ENG

TUR

CHAMBER

CASE OF TAŞ v. TURKEY

Violation of Art. 2 with regard to death of applicant's son;Violation of Art. 2 with regard to failure to carry out effective investigation;No violation of Art. 3 in respect of applicant's son;Violation of Art. 3 in respect of applicant;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 13;Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Elisabeth Palm

9. The facts of the case, particularly concerning events from 14 October to 9 November 1993 when Muhsin Taş was held in custody by the security forces, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission heard witnesses in Ankara from 7 to 8 May 1998. These included the applicant; Atilla Ceyhan, the public prosecutor at Cizre who signed the request for the extension in detention of Muhsin Taş; Dr Zekeiye Palpas, doctor at Cizre State Hospital who treated Muhsin Taş for a bullet wound to the knee; Dr Ahmet Can who examined Muhsin Taş at the Şirnak Military Hospital; Major Cemal Temizöz, the Cizre district gendarme commander who apprehended Muhsin Taş; Sergeant Burhanettin Kiyak who was present at Muhsin Taş’s apprehension; Colonel Erol Tuna, who was in charge of transferring Muhsin Taş from Cizre to Şirnak; Sergeant-Major Kemal Kılıçlı, Sergeant Adem Akyüz and Sergeant Dursun Öztürk, who worked in Şirnak provincial gendarme interrogation department at the time of Muhsin Taş’s arrival at Şirnak; and Nedim Kaya, a “confessor”, who had previously joined the PKK and had later given himself up to the authorities. 10. The Commission’s findings of fact are set out in its report of 9 September 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B). 11. In October-November 1993, the Cizre region in the south-east corner of Turkey, close to the Iraq and Syrian borders, was the scene of intense terrorist activity. The town of Cizre was close to the Gabar mountains, where there were numerous PKK camps and shelters. The road between Cizre and Şirnak, the provincial centre, was subject to attack, necessitating military protection for convoys passing on the main road between the two towns. 12. The district gendarme commander in Cizre at the time was Captain Temizöz. The provincial gendarme headquarters, commanded by a colonel, was located in Şirnak, as was the 23rd gendarme border brigade. Though the two commands were distinct, it appeared from the evidence that the provincial gendarme command headed by a colonel was subordinate to the brigade command under a general. There was an interrogation centre at the provincial gendarme command, where the three interrogators Kemal Kılıçlı, Adem Akyuz and Dursun Özturk worked. 13. During an operation conducted in or around the Cudi district of Cizre by the police and district gendarmes early in the morning of 14 October 1993, Muhsin Taş was shot in the knee and taken into custody by gendarmes under Captain Temizöz’s command at about 05.00 hours. In the search report of 14 October 1993 detailing this incident, it was stated that Muhsin Taş had been found in possession of a Kalashnikov rifle, handgun and hand grenades. According to this report and the oral evidence of Captain Temizöz, Muhsin Taş immediately revealed to the gendarmes his name, that his code name was “Hanemir” and that he had come to Cizre to carry out actions for the PKK. Captain Temizöz considered that it was apparent from what Muhsin Taş told him that he was a commander. However, he did not recall that Taş made any offer to him to give assistance in finding PKK locations. Sergeant Burhanettin Kiyak, who was also on the scene at this time, heard Taş give his name and code name and say that he was from the mountain. He did not hear Taş volunteer any assistance to the security forces. 14. After this initial exchange with the gendarmes at the scene of his capture, Muhsin Taş was taken to the Cizre State Hospital where he was admitted for treatment by Dr Palpas at 05.50 hours. Dr Palpas had no recollection of Muhsin Taş but was of assistance in deciphering his report for the Commission Delegates. This recorded that Muhsin Taş had an entry and exit wound to the knee, with injury to the front lower right knee joint. He was conscious and at that point his life was not in danger. Due to the lack of equipment and orthopaedic expertise, Dr Palpas recommended his transfer to Mardin. 15. At a time unknown the same day, Muhsin Taş was handed over to Captain Erol Tuna, an officer from the Şirnak provincial gendarmerie who was in command of the convoys going between Cizre and Şirnak. 16. The Commission requested, on numerous occasions, the records which indicated the places and times of Muhsin Taş’s detention following his apprehension. No record was provided indicating where he was held in Cizre between his treatment in hospital and his transfer to the Şirnak convoy. Captain Temizöz thought that Taş must have been entered in the Cizre district gendarme records as he was detained pursuant to the authority of the Cizre public prosecutor. Records provided by the Government from Cizre district gendarmerie contained no entry concerning Muhsin Taş. 17. The decision to transfer Muhsin Taş to Şirnak was taken by the Şirnak 23rd gendarme border brigade. Captain Temizöz had reported the capture of Taş to the brigade command and they requested his transfer to Şirnak. The transfer record of 14 October 1993 also referred to the brigade’s request. The reason for the transfer was not expressed in that document. Captain Temizöz considered that Taş would have had to go to Şirnak as he was a commander with information about the Gabar mountains and it was the forces in Şirnak who conducted operations in that region. 18. The only record relating to Muhsin Taş’s detention after his arrival in Şirnak was an entry in the Şirnak Military Hospital polyclinic record. This was dated 14 October 1993, giving no time. Neither Captain Erol Tuna nor the doctor who gave treatment had any recollection of the incident, so were unable to provide any explanations as to exactly when he arrived or to whom he was delivered. Dr Can, who treated Muhsin Taş, considered on the basis of his entry in the hospital record that he would have treated the injury, placing a long leg splint or supervising an assistant in doing so. He was of the opinion that Taş would not have been admitted to the hospital as his notes made no reference to this step being taken or considered necessary. The follow up treatment which he stated would be necessary – antibiotics, which would most likely have been handed to the patient on the spot, and the requirement for the wound to be dressed at three day intervals – did not require continuous hospital care. 19. Of the three officers identified by the Government as having interrogated Muhsin Taş at the Şirnak provincial gendarme headquarters – Kemal Kılıçlı, Adem Akyüz and Dursun Öztürk – only one, Adem Akyüz, remembered interrogating Muhsin Taş. No logs or records were provided by the Government from the interrogation department recording Muhsin Taş’s interrogation, nor the interrogation notes which the witnesses said would have been taken. The Government denied that these documents existed. The only source of information about the interrogation of Muhsin Taş therefore was the oral evidence of Adem Akyüz and the brief comments which appeared in various gendarme reports following Taş’s alleged escape. 20. According to Adem Akyüz, he interviewed Muhsin Taş on one occasion, while Muhsin Taş was confined to bed either in the hospital or infirmary. He remembered taking notes which they gave to their superiors. He could recall that the information related to the area where the person had carried out activities but did not mention any alleged offer to assist the security forces by showing locations. The Delegates had also requested the infirmary records concerning Muhsin Taş’s presence and treatment. The Government stated the infirmary records contained no information about Muhsin Taş. 21. Though the Commission did not exclude that the hospital or infirmary records were inaccurate, it noted that in its experience it had found the records made by doctors to be generally reliable, if sometimes brief, whereas the inaccuracy of, and omissions from, gendarme records had been the subject of adverse findings in a number of cases. Further, it found the testimony of the interrogation officers to be unconvincing, giving the impression of being selective or piecemeal accounts. From their evidence, it was generally expected for the same officers to follow through a suspect’s interrogation to the stage when a statement was taken by the district gendarmerie who had the responsibility at the end of the custody period to deliver the suspect to the public prosecutor for judicial procedures to be followed. Adem Akyüz had no explanation however for why he only visited Muhsin Taş once. While Muhsin Taş’s removal from the interrogation process must have been unexpected or unusual, he apparently knew nothing about it – nor about Taş’s apparent involvement in an operation to locate shelters or his apparent escape afterwards. The Commission was not persuaded that a suspect in respect of whom the provincial gendarmerie had commenced interrogation would or could be transferred elsewhere without some information or explanation being provided to the officers involved in the interrogation. Furthermore, a single, apparently brief interrogation did not account for the two fifteen-day extended custody periods which were requested by the Cizre district gendarmerie on behalf of those holding Muhsin Taş. 22. The evidence of the interrogation officers was therefore unable to provide any approximate date as to when any interrogation took place or any reliable basis on which to reach any finding as to where Muhsin Taş was held after his examination by Dr Can. Though his wound should have been dressed every three days and Dr Can would have expected himself, or another doctor, to check the patient’s state after a week or ten days, there is no evidence that he received any follow-up medical care after 14 October 1993. 23. A custody period of 15 days from the date of apprehension was granted by the Cizre public prosecutor at the request of the district gendarme commander. A further period of 15 days was granted by him on 29 October 1993 on the request of the district gendarmerie. 24. According to a hand written incident report dated 9 November 1993, 16.30 hours, signed by a gendarme captain group commander Şeyhmuz Kara and gendarme first lieutenants Burak Bugra and Tarik Göktürk, both of whom were team commanders, Muhsin Taş escaped from the security forces while assisting them on an operation in the Gabar mountains to find PKK shelters. 25. According to the evidence of the doctors who treated him, it was probable that Muhsin Taş was not rendered completely immobile by the injury to his knee. With the long leg splint, he would have been able to hobble, with a crutch or assistance. In the early days after the injury, he would have been in considerable pain. By 9 November 1993, a period of 25 days after his injury, he would have been expected to have made some recovery. Dr Can, the orthopaedics expert, estimated that the splint would have had to stay on for three to six weeks and that a patient might be able to run as well as walk within the same range of time. He pointed out that with sufficient motivation a person could run, notwithstanding a high level of pain. In the absence of medical notes, the Commission was unable to reach any firm conclusions as to what state of fitness Muhsin Taş would have been in on 9 November 1993. It found it highly unlikely however that he was fully fit or able to walk or run normally at this date. 26. The Commission found that the incident report of 9 November 1993 was an unreliable document. The report stated that Muhsin Taş ran off after a clash broke out, under cover of the fading light, precipitation and rocky terrain. It did not mention how many gendarmes were involved in the operation, how many were guarding the suspect and whether – and if not, why not – the suspect was restrained or handcuffed in some way. No details were given of the steps taken to recover the suspect. The times given on the report were particularly implausible. It was stated that the clash broke out at 16.15 hours following which there was a sequence of events – the escape, the discovery of the escape, an unsuccessful search, the monitoring of various radio conversations between terrorist – culminating in the drawing of the report and its signing by the three officers at 16.30 hours. 27. In these circumstances, the Commission considered that it was of crucial importance that the three signatories of the report gave explanations of the document and what they in fact saw and did. The Delegates in requesting the Government’s assistance in summoning them to give evidence emphasised that the Government should at the same time identify the officers who personally witnessed Muhsin Taş’s escape as the Commission had experience that the signatories of reports did not necessarily have any direct knowledge of the contents. At the taking of evidence in May 1998, the Government Agent informed the Delegates that they had been unable to find three officers who signed the report and that they had recently received information that the names used were code names. In reply to the Delegates’ request for steps be taken to identify the officers who used these code names in November 1993, the Government stated that it was not possible to identify the three officers. The Delegates also requested the other operation records or details which could cast light on the incident. The Government stated that no other records existed. 28. No document was provided recording authorisation for the transfer of Muhsin Taş to any particular operational command at Şirnak. In particular, there was no contemporaneous document or record indicating that he was transferred from the provincial gendarme interrogation unit elsewhere. It had not been established by the written or oral evidence that Muhsin Taş had in fact offered to show locations during his interrogation. 29. The Government relied principally on the evidence of two ex-PKK members or “confessors” – the written statements taken from Nedim Kaya and Süleyman Fidan, and the oral evidence of Nedim Kaya – as substantiating the allegation that Muhsin Taş had escaped and rejoined the PKK in the Gabar mountains on 9 November 1993. The Commission however did not find this material to be reliable or, on certain crucial aspects, credible. It referred, inter alia, to the lack of any explanation as to how the two confessors came to be identified at the same time as persons with relevant information about Muhsin Taş; that Nedim Kaya’s and Süleyman Fidan’s statements of 4 November 1995 referred to injuries suffered by Taş in 1992 and made no reference to the injury which he had received in October 1993; and the fact that Nedim Kaya’s statement of 12 January 1996 stated that he joined the PKK in November 1993 becoming a friend of Muhsin Taş before his capture in Cizre, though that latter event occurred on 14 October 1993. The Commission also found that Nedim Kaya’s oral evidence was inconsistent and unconvincing. His story changed under questioning and gave the impression of embroidery. It was not reconciliable with uncontroverted facts. For example, Nedim Kaya was insistent that he spent a fifteen day training course with Muhsin Taş after he joined the PKK in October, which explanation formed the basis for his claim of forming a close friendship with Taş, whereas Muhsin Taş was apprehended in Cizre in the early hours of 14 October 1993. The Commission were accordingly not satisfied that he had seen Muhsin Taş after 9 November 1993 as asserted. It concluded that the Government’s claim that Muhsin Taş escaped while assisting the security forces on an operation was not substantiated by the evidence given and could not be regarded as established as a fact or a significant probability. There was accordingly no explanation for what happened to Muhsin Taş after he was treated by Dr Can at Şirnak Military Hospital on 14 October 1993. 30. The applicant was informed on 15 October 1993 that his son had been apprehended and injured in a clash in Cizre. Arriving in Cizre on 17 or 18 October, he went to see the public prosecutor immediately. He was told to come back after the fifteen day extended custody period. Meanwhile, the applicant sought to visit, or discover further information, about his injured son by approaching the gendarmerie in Şirnak and Cizre but was turned away. On the expiry of the fifteen day period, at the end of October or beginning of November, he returned to the public prosecutor handing in a written petition. The public prosecutor signed the petition and he took it to the district gendarme commander who referred him back to the public prosecutor. During the second fifteen day period to end, the applicant returned to the public prosecutor repeatedly seeking for news and on one occasion, the public prosecutor contacted the district gendarmerie by telephone. 31. On the expiry of the second period, the applicant returned to the public prosecutor. On 18 November 1993, he handed in a further written petition which stated that he had no news although a week had passed from the end of the second custody period. He requested information and stated that he feared for his son’s life. On or about this date, the public prosecutor informed him that it was reported that his son had escaped. The written report from the district gendarmerie to the prosecutor was dated 19 November 1993 but it was possible that the information was received by the public prosecutor prior to this date. The applicant informed the public prosecutor orally that he did not believe this story and that he believed his son had been tortured and killed. 32. The public prosecutor at Cizre took no steps to investigate the alleged escape of Muhsin Taş while in custody in reaction either to the applicant’s expressed fears or to the fact that a prisoner awaiting judicial procedures had somehow been permitted to escape. On 13 December 1993, the public prosecutor issued a decision of withdrawal of jurisdiction and transferred the file concerning Muhsin Taş as a suspected member of the PKK to the Diyarbakır State Security Court (SSC) public prosecutor. It stated as an apparent fact that he had escaped to rejoin the PKK. The steps taken by the SSC prosecutor were related to investigating his membership of PKK and not related to investigating his disappearance. 33. The applicant returned to Cizre in January 1994 to see the public prosecutor, who informed him that the case had been transferred to Diyarbakır. 34. Following the communication of the case to the respondent Government by the Commission in October 1994, it appears that an investigation was briefly pursued by the Cizre public prosecutor (file no. 1995/653) This was limited to an enquiry dated 27 November 1995 to the Cizre district gendarme command for the names of the officers who signed the report of 9 November 1993 to be identified. Following a letter dated 29 November 1995 from the Cizre district gendarmes which stated that enquiries should be addressed to the Şirnak gendarme border regiment command, and that the special operations group command were responsible, the Cizre public prosecutor declined jurisdiction in a decision of 7 December 1995, transferring his file to the Şirnak public prosecutor. 35. The Şirnak public prosecutor had meanwhile commenced an investigation (prel. 1995/665) under the prompting of Ankara. At this stage, the following steps were taken: – on 10 December 1995, a request was made to the Şirnak 23rd gendarme border regiment for the identities of the personnel of the special operations group involved in the operation of 9 November 1993 to be identified; – on 13 December 1995, a statement was taken from the applicant on 13 December 1995 by the Kastamonu public prosecutor; – on 12 January 1996, a statement was taken from Nedim Kaya by a public prosecutor; – on 4 April and 25 May 1996, an urgent reminder was sent requiring a response to the above request of 10 December 1995; – on 27 May 1996, a request for information about the identities of personnel was sent to Şirnak provincial gendarme command who replied on 29 May 1996 that it was the Special Operations Group Command who had taken Muhsin Taş; – following receipt of a letter on 14 June 1996, in which the Special Operations Group command denied knowledge of the three names on the report of 9 November 1993 but named three officers (Ozaricanlı, Tümöz and Çetin) as being group commander and team commanders at that time, a request was made for those three officers to be asked a list of four specific questions, namely, about whether they were serving in the Special Operations Group Command at the time, whether they or the Special Operations Group Command received Muhsin Taş, whether they knew the names on the report and where it would be possible to identify the names on the report; – on 8 July 1996, a request was made of the Cizre public prosecutor for the transfer record concerning Muhsin Taş. 36. On 28 August 1996, the Şirnak public prosecutor issued a decision of withdrawal of jurisdiction, stating that it had not been possible to identify the officers involved in the alleged incident. The decision concluded that the matter should be investigated under the Official Conduct Act as it concerned special operations teams and that the file was to be transferred to the Şirnak provincial administrative council. 37. The investigation was taken over by the Administrative Council who by letter of 3 September 1996 appointed Major Doğan, a gendarme officer from the provincial gendarme command to investigate the allegations that Muhsin Taş had been killed and to identify the perpetrators. This stage of the investigation lasted until February 1998. During this period, Major Doğan again asked the Special Operations Group Command specifically to identify the three persons who signed the report. He received the reply on 7 February 1997 that the names were not found in the records and that the records had been burned in 1993 with the result that the names of the personnel who were on operation in Gabar at the time could not be determined. Major Doğan requested medical records and transfer details about Muhsin Taş from the Cizre district gendarmerie. Via a rogatory request, he obtained statements from the applicant, Nedim Kaya, Captain Erol Tuna and the three officers previously named as having served in Şirnak special operations at the relevant time. They stated, inter alia, that Muhsin Taş had not been delivered to them and that code names were not permitted, though Captain Ozaricanlı was noted as recognising his signature on the incident report of 9 November 1993. On the basis of this information, Major Doğan found in his report of 12 February 1998, that it was established that Muhsin Taş had been taken to Gabar mountain to locate PKK shelters by teams from the 23rd gendarme border brigade special operations group command and that he had escaped on 9 November 1993. The statements of Nedim Kaya and Süleyman Fidan were referred to as supporting this. The report noted that there were no interrogation records concerning Muhsin Taş though it appeared that Captain Erol Tuna had transferred him to the Interrogation Unit. The report concluded that it was not possible to establish the identities of the suspects, the identities of the persons of the report not being ascertainable due to changes in military personnel, the failure to keep records properly and the destruction of records. In those circumstances, a prosecution could not be brought. The provincial governor accepted this conclusion and the proceedings were terminated. 38. The investigation documents concerning the enquiries by the Şirnak public prosecutor and Major Doğan, the gendarme officer appointed by the Şirnak Provincial Administrative Council were submitted to the Commission by the Government on 11 August 1998, after the Commission had closed the taking of evidence and invited the parties to submit their oral observations. These documents included information about the possible identification of special operations group officers involved in the Muhsin Taş incident. Though the names of three officers were known to the investigating authorities in 1996, the Government did not bring them to the attention of the Commission or its Delegates who could have taken the decision to call them to give oral evidence. The Commission found that in failing to provide it with this information during the taking of evidence, the Government had fallen short of its obligations under former Article 28 § 1 (a) of the Convention to furnish all the necessary facilities to the Commission in its task of establishing the facts of the case. 39. Muhsin Taş was apprehended on 14 October 1993 by the security forces during an armed clash with PKK terrorists. During interrogation, Mushin Taş said that he knew certain hideouts used by PKK members in the Gabar mountains. Upon this information, a search team went to the mountains with Muhsin Taş. This area was used frequently by the PKK. A clash started between the PKK and the security personnel. Benefiting from this clash, Muhsin Taş escaped and was lost immediately in the near darkness. He was not handcuffed and knew the area very well. It was very probable that he re-joined the PKK following his escape. He would have been able to run even though his leg was injured. 40. As Muhsin Taş escaped from the security forces, the Government stated that it was not for them to prove that he is still alive and they cannot give an explanation for his whereabouts. 41. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 42. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject some-one to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment) or to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants). 43. 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 prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the 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). 44. 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. 45. 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 (sometimes referred to as the Official Conduct Act), which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 46. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 45 above) also applies to members of the security forces who come under the governor’s authority. 47. 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). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 43 above) or with the offender’s superior. 48. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 49. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 50. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 49 above), provides: “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.” 51. 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). 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).

dev

001-4552

ENG

GBR

ADMISSIBILITY

VALMONT v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The first applicant, Michel Valmont, born in 20 March 1951, is a Seychelloise citizen, currently residing in the Seychelles. The second applicant is his wife, Shirley Valmont, who was born on 30 July 1936 and is a British citizen resident in Cardigan, Wales. The applicants are represented before the Court by Mr Barry J. Gawthorpe, a solicitor practising in Cardigan. The facts of the case, as submitted by the parties, may be summarised as follows. A. The first applicant arrived in the United Kingdom on 14 March 1976. When he arrived, he had the status of a citizen of the United Kingdom and the Colonies (CUKC) by virtue of section 14 of the British Nationality Act 1948, because the Seychelles was a British colony at the time of his birth. He was given leave to enter as a work permit holder for a period of 12 months. When the Seychelles became independent on 29 June 1976, he lost his CUKC status and became a citizen of the Seychelles only. However, since the Seychelles remained in the Commonwealth, he continued to hold the status of Commonwealth citizen, which status he retains. The first applicant met the second applicant, who is British, in 1976. They started to live together as man and wife and on 27 August 1977 their twin children, Roseanne and Michel, were born. On 27 April 1978 the couple married, and on 15 June 1979 the first applicant was granted indefinite leave to remain in the United Kingdom. On 5 December 1986, the first applicant returned to the Seychelles to attend to family affairs due to his father’s illness. On 2 March 1987 he returned to the United Kingdom and on 12 April 1987 he left for the Seychelles again. On 19 March 1988 he returned to the United Kingdom and on 17 July 1988 went back to the Seychelles. The first applicant then suffered a series of health and employment problems and found it difficult to save enough money for his flight back to the United Kingdom. He and his wife did, however, keep in contact, and he also kept in contact with his children. The first applicant’s father died in 1993. On 27 July 1996, the first applicant arrived in the United Kingdom. The second applicant had come to meet him at the airport. The first applicant told the immigration officer who interviewed him that he sought admission as a visitor for three months and that he intended to take employment on a farm owned by a friend. In addition, he told the immigration officer that he had a girlfriend in the Seychelles and to the customs officer he referred to that person as his “wife”. The immigration officer refused him leave to enter as a visitor because he was not satisfied that the first applicant intended to stay for the stated period since he had been unemployed in the Seychelles and he intended to work in the United Kingdom. Although the first applicant did not seek entry as a returning resident at the time, the immigration officer and the chief immigration officer who authorised the decision to refuse leave to enter considered his application on that basis and concluded that he did not qualify as a returning resident since he had not been resident in the United Kingdom within the last two years. Moreover, according to the Home Office there was no evidence that there had been any intervening devotion between the applicant and his family in the United Kingdom. Arrangements were made for his removal on 24 August 1996. The first applicant applied to the High Court for leave to apply for judicial review of the decision to refuse leave to enter. In the application the point was raised that he should be considered as someone having the right of abode in the United Kingdom under the Immigration Act 1971 (“the 1971 Act”). However, it was pointed out that under section 2(2) of the 1971 Act, as amended by the British Nationality Act 1981 (“the 1981 Act”), only a female Commonwealth citizen who was married to a British citizen would have the right of abode and that a male commonwealth citizen who was married to a British citizen did not. In addition, it was said that given that the case involved issues arising under Article 8 of the European Convention in conjunction with Article 14, the Secretary of State should have exercised his discretion in favour of protecting the relevant Convention rights. On 28 August 1996 the court refused leave to apply for judicial review on the grounds that the Secretary of State had exercised his discretion properly. The first applicant made a renewed application for leave to apply for judicial review to the Court of Appeal, raising the same points. On 4 September 1996 the Court of Appeal refused leave on the grounds that the facts of the case were not such as to suggest that the discretion should have been exercised in favour of the applicant and that the Secretary of State had acted lawfully since he had considered all material factors before him and had exercised his discretion reasonably. In connection with the argument that the Secretary of State had failed properly to exercise his discretion as he had not taken full account of Convention considerations, the Court of Appeal referred to the case of ex parte Brind ([1991] 1 AC 696) and a line of subsequent decisions, including R. v. Ministry of Defence ex parte Smith ([1996] QB 517). The first applicant was deported to the Seychelles on 7 September 1996. B. Relevant domestic law Between 1976 and at least 1980, section 2 of the Immigration Act 1971 was applicable. This section stated (as relevant): “(1) A person is under this Act to have the right of abode in the United Kingdom if – [four categories, (a) – (b), none of which applied to the applicant] (2) A woman is under this Act also to have the right of abode in the United Kingdom if she is a Commonwealth citizen and either – (a) is the wife of any such citizen of the United Kingdom and Colonies as is mentioned in subsection (1)(a), (b) or (c) above or any such Commonwealth citizen as is mentioned in subsection (1)(d); or (b) has at any time been the wife – (i) of a person then being such a citizen of the United Kingdom and Colonies or Commonwealth citizen; ... .” On 1 January 1983, the British Nationality Act 1981 (“the 1981 Act”) came into force. The 1981 Act replaced the concept of “citizenship of the United Kingdom and Colonies” with various categories of citizenship, including “British citizenship”. It also prospectively removed the distinction between men and women which had been contained in the old section 2(2) of the 1971 Act, whilst, however, retaining the right of abode for those who had obtained it under any provision in the old section 2, including subsection 2(2), which applied only to women. The new section 2, which is still in force, provides, so far as is material: “(1) A person is under this Act to have the right of abode in the United Kingdom if – (a) he is a British citizen; or (b) he is a Commonwealth citizen who – (i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and (ii) has not ceased to be a Commonwealth citizen in the meanwhile.” A person who does not have the right of abode requires leave to enter the United Kingdom. At all material times, a person who, like the first applicant, had been granted indefinite leave to remain and had then left the United Kingdom could be permitted to return as a “returning resident” provided he was not absent from the United Kingdom for a period of over two continuous years (Statement of Changes in Immigration Rules, HC 395, paragraphs 15 and 18-20).

dev

001-89371

ENG

CZE

ADMISSIBILITY

BLAHA AND BLAHOVA v. THE CZECH REPUBLIC

Inadmissible

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

The applicants, Mr Dalibor Blaha and Ms Marta Blahová, are Czech nationals who were born in 1969 and 1970 respectively and live in Zlín. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 November 1993 the applicants issued proceedings before the Zlín District Court (okresní soud) against a private company claiming damages in the amount of CZK 1,000,000 (EUR 41,038). On 21 December 1993 they paid court fees. On 24 March 1995 the District Court found that it lacked material competence to deal with the applicants' case and transmitted it to the Brno Regional Commercial Court (krajský obchodní soud). On 20 July 1994 the defendant filed a counterclaim requesting payment of CZK 275,000 (EUR 11,285). In a judgment of 17 February 2000 the Regional Court dismissed the action in respect of the second applicant. It granted, at the same time, the defendant's counterclaim ordering her to pay CZK 275,000 to the defendant. It further decided to split the first applicant's claim and the defendant's counterclaim brought in the first applicant's respect for a separated hearing. On 25 April 2000 the Regional Court found that the District Court was materially competent to deal with the action in respect of the first applicant as well as with the defendant's counterclaim, and remitted the case to it. On 2 November 2000 the District Court suspended the proceedings until the delivery of a final judgment in the proceedings concerning the second applicant's action. In a judgment of 21 November 2005 the District Court dismissed the applicant's action and partly granted the defendant's counterclaim. The applicant appealed. It appears that the proceedings are still pending. On 18 April 2000 the second applicant appealed to the Olomouc High Court (vrchní soud). On 21 March 2002 the District Court, upon the defendant's request of 18 March 2000, commenced execution proceedings ordering the applicant to pay CZK 150,000 (EUR 6,156) with interests on late payment to the defendant. On 10 November 2003 the District Court discontinued the execution proceedings in respect of the interests on late payment and ordered the enforcement of the Regional Court's judgment by sale of the second applicant's property. It dismissed the applicant's request to postpone the execution. On 21 December 2003 the first applicant filed an appeal against this decision. On 29 December 2003 the second applicant appealed. On 19 August 2005 the Brno Regional Court (krajský soud) rejected the first applicant's appeal on the ground that he was not a party to the proceedings before it. It discontinued the proceedings in respect of the second applicant's appeal, and upheld the first four grounds of the decision while quashing the District Court's dismissal to suspend the execution. The latter part of the case was therefore sent back to the District Court for further consideration. It appears that the execution proceedings are still ongoing. On 23 December 2003 the second applicant claimed material damages allegedly caused by activities of the organs of judicial power, pursuant to Act no. 82/1998 then in force. Subsequently, the Ministry informed the applicant that her claim had been rejected. According to the applicant, the Ministry had admitted that there had been delays in the proceedings before the Regional Commercial Court and the High Court but had denied any causal link between the material damage alleged by the applicant and delays in the proceedings. On 5 August 2004 the second applicant brought an action for damages against the Ministry of Justice pursuant to section 15(2) of Act no. 82/1998 then in force maintaining that the proceedings brought against the private company in 1993 had lasted an unreasonably long time. In a judgment of 27 March 2006 the District Court dismissed her action. On 25 October 2007 the Brno Regional Court (krajský soud) upheld the merits of the first instance court's judgment. Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages. On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention. Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.

dev

001-118503

ENG

FIN

ADMISSIBILITY

NIEMINEN v. FINLAND

Inadmissible

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney

1. The applicant, Mr Kalevi Ensio Nieminen, is a Finnish national who was born in 1952 and lives in Nokia. He was represented before the Court by Mr Jaakko Tuutti, a lawyer practising in Tampere. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 21 July 2009, in his own apartment, the applicant stabbed another person with a knife. The victim called the police. When the police patrol arrived, they found a person with a deep, bleeding wound in front of the applicant’s home who told them that he had been stabbed in the applicant’s home by the applicant. As it was not known whether other persons were in danger, the police officers entered the applicant’s home in order to prevent any possible further act or event which might seriously threaten another person’s life, personal liberty or health. In the apartment they found nobody but the applicant. He was severely intoxicated, a breathalyser showed a result of 4.00 per mill, and he was not able to give a statement. He was taken to the local police station. The police officers found and seized a knife with a 17 cm blade covered in blood. 5. On 22 July 2009 the applicant was questioned on suspicion of aggravated assault (törkeä pahoinpitely, grov misshandel). He was released on the same day. 6. On 1 October 2009 the applicant was charged with aggravated assault. 7. On 26 November 2009 the Tampere District Court (käräjäoikeus, tingsrätten) dismissed all charges against the applicant. It found that the applicant had not intentionally hurt the other person and that the latter’s injury could have been caused accidentally as both the applicant and the victim had been severely intoxicated. No motive for the act could be established. The applicant and the victim were still good friends and had even come to the oral hearing together. 8. No appeal was made against this judgment and it thus became final. 9. According to Article 10 of the Finnish Constitution (perustuslaki, grundlagen, Act no. 731/1999), the sanctity of everyone’s home is guaranteed. Measures derogating from this right, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, must be laid down by an Act. 10. Section 16 of the Police Act (poliisilaki, polislagen, Act no. 493/1995) provides the following: “On the order of a commanding police officer, and in urgent cases even without such an order, police officers have the right to enter a building, other domestic premises or a vehicle if there is good reason to assume that an act or event causing a serious threat to life, personal liberty or health, or notable damage to property or the environment is taking place or about to take place. A further precondition is that the measure is essential to prevent danger or to search and take possession of explosives, weapons or other dangerous substances or objects.” 11. Chapter 5, section 1, subsection 1, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 646/2003) provides that a search may be conducted, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months’ imprisonment. 12. In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in criminal proceedings, that it may have been removed from someone as a result of a criminal offence or that the court may order its forfeiture (Chapter 4, section 1, of the Coercive Measures Act). 13. A civil servant having the power to arrest a person may decide to conduct a search at a person’s home. A police officer may conduct a search even without a warrant if it is intended, inter alia, to locate a person to be apprehended, arrested or detained or for seizure of an object that has been used immediately before in a crime. A police officer may conduct a search without a warrant also on other occasions if the matter cannot wait (Chapter 5, section 3). 14. At the time of the events there was no access to a court as concerned a search but only in respect of a seizure (Chapter 4, section 16, subsection 1). 15. According to Chapter 21, section 6, subsection 1, of the Penal Code (rikoslaki, strafflagen, Act no. 578/1995 as modified by Act no. 654/2001), a person can be sentenced for aggravated assault to imprisonment for a minimum term of one year and a maximum of ten years.

dev

001-71944

ENG

TUR

CHAMBER

CASE OF SELÇUK v. TURKEY

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

Nicolas Bratza

4. The applicant was born in 1985 and lives in Izmir. 5. On 27 December 2001 the applicant, who was sixteen years old at the time, was arrested by police officers from the Karşıyaka Police Station in connection with an ongoing investigation concerning a robbery that had taken place in a primary school. In his police statement, the applicant confessed that he had been involved in a robbery on 26 November 2001 together with two of his friends. He explained that he had helped his friends in carrying a computer from the primary school. The same day he was brought before the public prosecutor, and the investigating judge at the Karşıyaka Magistrate’s Court, where he repeated his statement to the police. Having regard to the evidence in the file and considering that there was a risk of absconding, the investigating judge ordered that the applicant be detained on remand in a prison together with adults. 6. The applicant’s representative challenged this decision before the Karşıyaka Criminal Court and maintained that the evidence in the file did not suffice to keep her client in detention. Invoking Articles 5 and 6 of the Convention, she requested that the applicant be released. 7. On 10 January 2002 the Karşıyaka public prosecutor instituted criminal proceedings against the applicant in the Karşıyaka Criminal Court. He charged him with robbery under Article 493 of the Criminal Code. 8. On 14 January 2002 the Karşıyaka Criminal Court commenced the trial against the applicant. Taking into account the seriousness of the offence and the evidence in the case-file, it ordered that the applicant’s detention on remand be continued. 9. On 16 January 2002 the applicant’s representative challenged this decision. She invoked Articles 5 and 6 of the Convention and alleged that there was not sufficient evidence in the file to keep her client in detention. She further maintained that pursuant to Article 104 of the Criminal Procedure Code, a person could only be held in detention on remand if there were a risk of absconding and/or of tampering with evidence. She stated that the authorities knew where the applicant lived and there were no sufficient grounds to believe that the applicant would try to flee. Furthermore, according to the lawyer, as all the evidence relating to the case had already been gathered by the authorities, there was no risk of tampering with evidence. 10. On 30 January 2002 the Karşıyaka Assize Court refused the applicant’s request for release basing itself on the nature and seriousness of the accusation, and the evidence in the file. 11. During the hearing which was held on 8 February 2002, the Karşıyaka Assize Court heard the applicant’s testimony. Before the court, the applicant denied the charges and stated that he had not been involved in the robbery. Underlining that the applicant was a minor, the representative of the applicant asked the court for his release. Having regard to the nature of the crime, and taking into consideration the time spent in detention, the court decided that the applicant’s detention should be continued. 12. On 7 March 2002 the applicant’s representative asked the Karşıyaka Criminal Court to release her client. She maintained that he had been in detention since 27 December 2002 and stated that there was no sufficient evidence to keep him in detention. The court once again refused her request. 13. On 28 March 2002 the applicant’s representative further requested her client’s release referring to Article 5 of the Convention. She stated that the court was not examining their requests for release thoroughly. She contended that the applicant’s release would not in any way pose a danger to public order. She also stated that the applicant was ready give a guarantee to offset any risk of absconding. 14. On 29 March 2002 the Karşıyaka Criminal Court dismissed the applicant’s request relying on the evidence in the file and the seriousness of the offence. 15. On 5 April 2002 the Karşıyaka Criminal Court held another hearing, at the end of which it ordered that the applicant remain in detention on remand. 16. On 9 April 2002 the applicant’s lawyer challenged this decision before the Karşıyaka Assize Court. She maintained that her client was a minor and could not be kept in detention for such a long time. In this respect, she invoked Article 5 of the Convention and Article 37 (b) of the United Nations Convention on the Rights of the Child. 17. On 10 April 2002 the Karşıyaka Assize Court rejected the request for release basing itself on the evidence in the file, the time spent in detention and the nature of the offence. 18. On 1 May 2002, after spending almost four months in detention on remand, the applicant was released pending trial. 19. The proceedings against the applicant are still pending.

dev

001-83466

ENG

MDA

CHAMBER

CASE OF DAVID v. MOLDOVA

Violation of Art. 5-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award

Nicolas Bratza

5. The applicant was born in 1943 and lived in Chişinău. He did not have a family and lived alone. 6. In 1987 the applicant was found guilty of criticising the Soviet authorities and of expressing the view that Moldova had been occupied by the Soviet Union and that it should reunite with Romania. On the basis of a medical report ordered by the Soviet courts, he was declared mentally unsound and sent for forced treatment in a psychiatric hospital in eastern Ukraine. He was held there for one year, after which he was released and obliged to continue out-patient treatment in Chişinău. 7. In 1990 the sentence against the applicant was quashed and he was acquitted. 8. On an unspecified date the applicant learned that he could obtain compensation for his illegal conviction and detention in a psychiatric hospital and that there was no time-limit for filing such an action. 9. In September 2004 he initiated civil proceedings against the Ministry of Finance, claiming compensation. He argued, inter alia, that after the forced medical treatment administered to him in 1987-1988 he had started to experience health problems, in particular he had lost his memory, had become emotionally frozen and unstable and therefore had been forced to live on a very small disability allowance. 10. During the proceedings the Ministry of Finance questioned his fitness to plead before courts in view of his medical background. 11. The applicant disagreed with the defendant, but fearing that his action would not be examined, agreed to submit to a medical examination in order to prove the contrary. 12. On an unspecified date the applicant underwent a medical examination by a specialised commission; however, the commission could not reach a conclusion. In a document dated 25 February 2004 it concluded that it would be impossible to reach a conclusion without a thorough examination of the applicant under conditions of hospitalisation. 13. On 14 March 2005 Judge V.G. of the Râşcani District Court examined the possibility of committing the applicant for an in-patient examination. As the applicant agreed to be hospitalised, the court ordered on the same date an in-patient medical examination to be conducted by the Central Psychiatric Hospital, Department of Judicial Investigations. 14. On 4 April 2005 the applicant went to the hospital, where, to his surprise, he was deprived of all his belongings and hospitalised together with persons of unsound mind with limited freedom of movement. According to him, the hospital was no longer heated in April, and since the clothes he was provided with were too thin for the season, he caught a cold and developed acute bronchitis. Two days after his hospitalisation he asked to be released in order to go home, change clothes and buy medicines for his cold. However, the doctors did not authorise him to leave the ward in which he was hospitalised. 15. It appears from the applicant's medical record that during his stay in the hospital he was not visited by anyone. According to him he could not complain to anyone about his detention and could not even make a telephone call or complain by other means to persons outside the hospital. 16. He was seen by doctors for only several minutes per day, during the routine morning round. The rest of the day he was at the mercy of the paramedical staff who usually forced patients to carry out public utility work around the hospital. He was not obliged to work because of his age and poor physical condition. 17. On 29 April 2005 the applicant was released from the hospital. According to him, it took a long time to recover but he preferred not to complain immediately for fear of adverse consequences. He submitted that he feared being placed in detention again or that the results of the examination would be falsified. 18. On 16 May 2005 the psychiatric hospital issued a report in which it concluded that the applicant was suffering from a mental condition, but that his reasoning was unaffected and that he was fit to plead before courts. 19. On 9 June 2005 the applicant lodged a criminal complaint with the Prosecutor's Office of the Centru District, asking it to prosecute the doctors who had held him in detention against his will. He described the conditions in which he had been detained and named two doctors who had refused his requests to be allowed to leave the hospital. He argued that those doctors had committed an offence under Article 166 of the Criminal Code – illegal deprivation of liberty – and asked for compensation. 20. On 30 June 2005 the Prosecutor's Office dismissed the applicant's complaint. The applicant challenged the dismissal before the Centru District Court. 21. On 21 July 2005 Judge A.B. of the Centru District Court upheld the applicant's appeal and found, inter alia, that the Prosecutor's Office had failed to clarify the conditions under which the in-patient medical examination was initially intended to be carried out, and also the conditions in which it had in fact been carried out. The Prosecutor's Office had also failed to examine the applicant's written request by which he had expressed his consent to be hospitalised and the manner of hospitalisation to which he had consented. Judge A.B. ordered a new investigation into the applicant's complaint. 22. On 12 October 2005 the Prosecutor's Office dismissed the applicant's complaint, again without giving any new arguments. It only stated that the instructions of the Centru District Court had been followed, but that this did not influence the initial decision not to institute criminal proceedings. The applicant again challenged the dismissal. 23. On 9 November 2005 Judge A.B. of the Centru District Court dismissed the applicant's appeal, finding that his detention had been carried out in accordance with the court order of 14 March 2005. 24. The Code of Civil Procedure provides for only one possibility for a person to be submitted to a psychiatric examination against his or her will. Chapter 28 of the Code deals with the proceedings intended to limit the legal capacity of a person. According to Article 302 such proceedings can be initiated by the State, by a prosecutor or by the family of a person of unsound mind or who makes abusive use of alcohol or drugs. Article 305 provides that a judge examining an action to limit a person's legal capacity can order the person concerned to undergo a psychiatric medical examination. If the person does not comply with the order, the judge can decide, during a hearing at which a psychiatrist is present, to oblige the person to undergo a psychiatric examination despite his or her opposition. 25. Section 11 of the Law on Psychiatric Assistance provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of the Criminal Code or in accordance with the provisions of section 28 of that law. In both cases, except for reasons of urgency, the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists. Section 28 of the same law sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will. It provides that a person suffering from a mental disorder can be hospitalised against his or her will, before a court judgment for that purpose has been issued, when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others, when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone, and if left untreated, the mental disorder could cause serious harm to the health of the individual concerned. Pursuant to section 32 of the law the compulsory hospitalisation for treatment of a person in accordance with section 28 must be decided by a court. The hospital must apply to the court for permission, indicating in the application the reasons for which the hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists. Pursuant to section 33, the court examining the application must take a decision within three days from the date on which the application was lodged and the person concerned has the right to participate in the hearing. If the person's condition is serious and he or she cannot come to the court, the judge is obliged to hold the hearing at the hospital. The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation. Section 39 of the same law provides, inter alia, that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request. On the other hand, a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment.

dev

001-82905

ENG

FIN

CHAMBER

CASE OF KAJARI v. FINLAND

No violation of Art. 6-1;No violation of Art. 8

Nicolas Bratza

6. The applicant was born in 1944 and lives in Tallinn. He and another Estonian national have a daughter born out of wedlock in 1992. On 31 July 1994 mother and daughter arrived in Finland. On 17 February 1995 their residence there was officially registered. In 1994-1998 the daughter lived both with her father in Estonia and with her mother in Finland in accordance with an agreement between the parents. 7. According to the Government, on 18 January 1995 the applicant gave his written consent to the child's temporary stay in Finland and on 5 February 1995 he gave his consent that she stay permanently in Finland, presupposing that his visiting rights would not be affected. 8. According to the applicant, he and the mother agreed in writing on 3 February 1995 that they would participate equally in the care of their daughter and that she would spend an equal amount of time, about one month at a time, with each parent. 9. On 8 December 1995 the applicant and the mother agreed that neither of them would pay the other maintenance in respect of their daughter. On 19 December 1995 the agreement was confirmed by the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Harjavalta, Finland. 10. On 17 August 1998 the mother removed the child from day care in Tallinn and brought her to Finland. 11. On 12 November 1998 the mother instituted custody proceedings in the District Court (käräjäoikeus, tingsrätten) of Kokemäki, Finland, following which the court made an interim order awarding her sole custody. 12. The court received the Social Welfare Board's of Harjavalta and the Social Welfare and Health Care Department's (Sotsiaal- ja Tervishoiuamet) of Tallinn written opinions on the assessment of the parents and their living conditions. The Finnish authority had interviewed the mother, the child and her brother, the mother's partner and the child's day care teacher. It did not interview the applicant nor did its Estonian counterpart interview anyone other than the applicant. It appears that the authorities did not contact each other before submitting their opinions. 13. The District Court held two hearings, on 17 May and 4 June 1999, during which the parents with counsel were present. It received evidence from the parties and several witnesses. In its decision of 9 June 1999 the court found that the Finnish courts had jurisdiction and that Finnish law was applicable to the case. The court held that as the parents were unable to agree on matters relating to custody, custody should be awarded to the mother alone. The court reached its decision having had regard to all the circumstances and evidence submitted to it and having assessed the case also in the light of the written opinions of the relevant social welfare authorities. 14. On 10 December 1999 the Turku Court of Appeal (hovioikeus, hovrätten), having held a hearing, rejected the applicant's appeal. It held that the Finnish courts had jurisdiction because the child resided in Finland and had a close connection with the country. It also agreed with the lower court that Finnish law was applicable. As the parents' agreement of February 1995 had not been confirmed by the Social Welfare Board, the custody had not been settled prior to the proceedings in question. Further, the court found that the child's living conditions with the mother were balanced and solid. As the parents were unable to make decisions together relating to their daughter's custody, the court saw no reason to amend the lower court's decision. 15. On 12 June 2000 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. In 2002 the applicant lodged an application with the Finnish Ministry of Justice (oikeusministeriö, justitieministeriet) in order to have the child returned to Estonia under the Hague Convention on the Civil Aspects of International Child Abduction. The application was rejected, since it had already been confirmed by the above-mentioned courts that the child's habitual residence was in Finland. Thus, the Hague Convention did not operate. 16. Meanwhile, on 28 August 1998 the applicant instituted custody proceedings before the Tallinn City Court (Tallinna Linnakohus). In June 1999 the proceedings were suspended “until clarification of the issue of proper forum”. 17. On 26 January 2000 the applicant instituted access proceedings before the District Court of Kokemäki. He requested that the child be allowed to visit him once a month from Friday evening until Sunday evening and during some of the holidays. 18. On 9 June the court received a written opinion from the Social Welfare Board of Harjavalta, which had interviewed the mother and her partner on several occasions. Also the daughter had been interviewed at her home. The applicant had been interviewed over the telephone and he had submitted some documents in support of his access claim. 19. On 6 July 2000 the court held a hearing during which the parents with their counsel were present. It received written and oral evidence. 20. On 14 July 2000 the court ordered that the child should have the right to meet with the applicant every other Friday from 12 noon to 6 p.m. under the supervision of a social worker at the child's domicile. The mother was to assume responsibility for transporting their daughter to these meetings and for bearing the transportation costs. The court considered that the visits should be supervised owing to the fact that the applicant and the child had not met regularly for two years. One of the factors that contributed to this conclusion was that the applicant had allegedly tried to abduct the child. Further, as to the view of the Social Welfare Board that access should be granted twice a month for three hours at a time, the court found that three hours was too short a period in order to develop a trusting relationship between the applicant and his daughter and accordingly, it ordered that the visits should last six hours at a time. Lastly, the court emphasised that the access arrangements could be altered in the future, if need be. 21. On 9 March 2001 the Turku Court of Appeal rejected the applicant's appeal without an oral hearing. As to the allegedly unfair District Court proceedings, it found that the applicant had been able to submit evidence, which fact transpired from the decision. In its decision the District Court had stated what evidence had been submitted to it. As to the merits, the Court of Appeal found no reason to amend the lower court's decision. 22. On 30 July 2001 the Supreme Court refused leave to appeal. 23. Custody and right of access may be organised either by an agreement that is confirmed by the Social Welfare Board or by a court decision. The parents can have joint custody, custody can be awarded to one of the parents or to some one else who has consented thereto. The child has the right to maintain contact and meet with the parent with whom he or she no longer resides (sections 7, 8 (186/1994) and 9) of the Child Custody and Right of Access Act (laki lasten huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt; 361/1983). When making a decision relating to custody and right of access, the best interests and the wishes of the child must be taken into account (sections 10 and 11). 24. When a child has domicile in Finland at the time of conclusion of an agreement on his or her custody, the agreement has to be made in accordance with Finnish law, even if all the parties are of a foreign nationality. In order for the agreement to be valid, it has to be confirmed by the Social Welfare Board (section 8). Alternatively, the question of custody may be decided by a court. An agreement concluded without the confirmation of an authority may upon request be recognised and enforced in Finland as a decision given in a foreign State, if the measure is legally valid and enforceable in the State where the child had habitual residence at the time of conclusion of the agreement (section 23). 25. In order to have an agreement enforced in Finland it must first be recognised by the Helsinki Court of Appeal (section 25; 186/1994). 26. A parent may at any time institute proceedings in a case relating to custody or right of access (section 14). An agreement or a court order may be amended if the circumstances have changed (section 12). 27. 's opinion on how custody or rights of access could be arranged (section 16; 186/1994). 28. In cases where the parents are unable to reach an agreement on custody or rights of access, the case will be decided by the court. The guiding principle is the best interests of the child. Special attention shall be paid to the manner in which custody or right of access may best be realised (section 10). 29. The child's wishes and views must be ascertained as far as possible in view of the child's age and stage of development. The views of the child shall be ascertained tactfully, taking his or her stage of development into account, and in a manner not detrimental to the relationships between the child and the parents (section 11). 30. In normal circumstances a twelve-year-old is considered mature enough to express his or her views. The interview of a child is usually conducted by the social welfare authorities and at the child's home. However, the court may decide to hear the child in person, if there are important reasons for doing so, the child does not object to it and it causes no harm to the child (section 15).

dev

001-57947

ENG

GBR

CHAMBER

CASE OF TOLSTOY MILOSLAVSKY v. THE UNITED KINGDOM

Violation of Art. 10;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings;Lack of jurisdiction (injunction to State)

C. Russo;John Freeland;R. Pekkanen

7. Count Nikolai Tolstoy Miloslavsky, a British citizen, lives in Southall, Berkshire, in the United Kingdom. He is a historian. 8. In March 1987 a pamphlet written by the applicant and entitled "War Crimes and the Wardenship of Winchester College" was circulated by Mr Nigel Watts to parents, boys, staff and former members of the school as well as to Members of Parliament, Members of the House of Lords and the press. Mr Watts bore a grievance against the Warden of Winchester College, Lord Aldington, at the time Chairman of an insurance company, concerning an insurance claim. The pamphlet included the following statements: "Between mid-May and early June 1945 some 70,000 Cossack and Yugoslav prisoners-of-war and refugees were handed over to Soviet and Titoist communist forces as a result of an agreement made with the British 5 Corps administering occupied Austria. They included a large proportion of women, children, and even babies. The majority of Cossack officers and their families handed over held League of Nations passports or those of the Western European countries in which they had found refuge after being evacuated from Russia by their British and French Allies in 1918-20, and were hence not liable to return under the terms of the Yalta Agreement, which related only to Soviet citizens. ... As was anticipated by virtually everyone concerned, the overwhelming majority of these defenceless people, who reposed implicit trust in British honour, were either massacred in circumstances of unbelievable horror immediately following their handover, or condemned to a lingering death in Communist gaols and forced labour camps. These operations were achieved by a combination of duplicity and brutality without parallel in British history since the Massacre of Glencoe. Outside Lienz may be seen today a small Cossack cemetery, whose tombstones commemorate men, women and children shot, clubbed, or bayoneted to death by British troops. ... The man who issued every order and arranged every detail of the lying and brutality which resulted in these massacres was Brigadier Toby Low, Chief of Staff to General Keightley's 5 Corps, subsequently ennobled by Harold Macmillan as the 1st Baron Aldington. Since 1979 he has been Warden of Winchester College, one of the oldest and most respected of English public schools. Whether Lord Aldington is an appropriate figure for such a post is primarily a matter for the College to decide. But it is also surely a legitimate matter of broader public concern that a man responsible for such enormities should continue to occupy a post of such honour and prominence within the community, in particular one which serves as exemplar for young people themselves likely one day to achieve high office and responsibility. The truth is, however, that Lord Aldington knows every one of his pleas to be wholly or in large part false. The evidence is overwhelming that he arranged the perpetration of a major war crime in the full knowledge that the most barbarous and dishonourable aspects of his operations were throughout disapproved and unauthorised by the higher command, and in the full knowledge that a savage fate awaited those he was repatriating. Those who still feel that a man with the blood of 70,000 men, women and children on his hands, helpless charges whom the Supreme Allied Commander was making every attempt to protect, is a suitable Warden for Winchester might care to ask themselves (or Lord Aldington, if they can catch him) the following questions: ... Lord Aldington has been repeatedly charged in books and articles, by press and public, with being a major war criminal, whose activities merit comparison with those of the worst butchers of Nazi Germany or Soviet Russia ..." 9. Lord Aldington instituted proceedings against Mr Watts for libel in the High Court of Justice (Queen's Bench Division). The applicant was subsequently joined to these proceedings at his own request. The defendants pleaded "justification" and "fair comment". 10. Lord Aldington asked that the case be heard by a single judge without a jury. However, the applicant exercised his right to trial by jury. 11. The trial began on 2 October 1989 and lasted until 30 November when the jury of twelve returned its verdict. In the course of the trial Lord Aldington gave evidence for some six and a half days and was cross-examined. The applicant gave evidence for more than five days and a number of witnesses were called. Mr Justice Michael Davies devoted some ten pages of his summing-up to the question of the assessment of damages if defamation were to be established. He directed the jury, inter alia, as follows: "... Let us now, members of the jury, ... deal with the aspect of damages ... I have to give you this direction in law because damages may arise ... If the plaintiff wins, you have got to consider damages. Some would say that the only direction on damages necessary in this particular case was to say: [the applicant] says that if damages are to be payable he agrees they should be enormous. Mr Rampton [defence counsel], I do not think, in his final speech could quite bring himself to utter that word, but he said they will be very generous - and I could stop there. But that is not the way, you see, because the parties do not dictate (even if they are making concessions) how you should approach damages. You do it in accordance with the law, and that is what I am now going to tell you. You have to accept my directions about it, and you will apply them of course as you think fit. ... the means of the parties - the plaintiff or the defendant - is immaterial ... Neither, as I think I said earlier but I say it now, is the question whether Lord Aldington or [the applicant], or for that matter Mr Watts, have been or will be financially supported by any well wishers as to damages relevant at all. Nor is it relevant the undoubted fact that legal aid is not available in libel cases to a plaintiff or a defendant. All irrelevant, and if it is to be changed it is up to Parliament to do something about it ... ... what you are seeking to do, what a jury has to do, is to fix a sum which will compensate the plaintiff - to make amends in financial terms for the wrong done to him, because wrong has been done if you have got to the stage of awarding damages. It is not your duty or your right to punish a defendant ... What [Lord Aldington] does claim, of course, is for 'general damages', as lawyers call it, a sum of money to compensate him. First of all, you have to take into account the effect in this case, as in every case where there is libel, on the position, standing and reputation of the successful plaintiff ... ... If they [the allegations made in the pamphlet] were untrue and not fair comment, where it is suggested that they were comment, he is entitled to be compensated for that, so that that will register your view of that. Then you have got to consider ... the injury to his feelings. I told you that he cannot, of course, claim on behalf of his wife or any member of his family, although the affect on them may have had an affect on him which is a reaction, which you are entitled to take into account. It is not just his feelings when he read this ... It is his feelings during the time whilst awaiting the trial ... and the publicity ... ... you have to consider ... what lawyers call `vindication' ... You may think - it is a matter for you - that in this particular case vindication - showing that he was right - is the main reason for Lord Aldington bringing this action - that is what he says anyway - to restore his character and standing ... 'An award, an enormous award', to use [the applicant's] words - 'a very generous award' to use Mr Rampton's words, will enable him to say that put the record straight. Members of the jury, of course, you must not, as a result of what I have just said, just bump and bump the damages up. You must, at all times, as they say, keep your feet on the ground. ... You have to take into account the extent and nature of the publication. ... whilst you must leave aside any thought of punishing the defendants if you find for the plaintiff, juries are always entitled, as I have hinted already, to take into account any conduct of the defendant which has aggravated the damages - that is to say, made the damage more serious and the award higher - or mitigated them - made the damage done less serious and the award smaller. ... Now, two general remarks which I make in every case: nobody asks you how you arrive at your verdict, and you do not have to give reasons like a Judge does, so it is exceedingly important that you look at the matter judicially, and that means that you should not be outrageously or unreasonably high, or outrageously or unreasonably low. The second matter I say to every jury is: please, I beg you, if you come to damages, do not pay the slightest attention to any other case or the result of any other case you may have read about or heard about. The facts and the legal considerations are like[ly] to have been completely different. There is no league of damages in defamation cases. There is no first division, there is no fourth division, there is no Vauxhall conference, if any of you are interested in football. So, members of the jury, please forget other cases. Use your own common sense about it. How do you translate what I have said into money terms? By our rules and procedure, members of the jury, counsel can use, and a judge can use, words like 'very substantial' or 'very small', but we do not either of us, counsel or judges, mention figures. Some people again, who have not really considered the matter very carefully, wonder about that, and they say juries should be given guidance, and I say to you what I say to every jury in these cases, it would not be a great deal of help for you, because inevitably, it is human nature and it would be their duty - counsel for the plaintiff would be at the top end of the scale and perhaps in some cases, I do not suggest this one, off the clock, and counsel for the defendant would be at the bottom end of the scale in the basement. Now, that would not be much good to anybody. As for the Judge, well the jury might think - you may have an exactly opposite view - a jury might think: 'Well, on the whole, whatever other people say about this particular Judge in this case, we think he tried to be fair, why doesn't he suggest a figure to us?' Supposing a Judge, myself in this case, were to suggest a figure to you, or a bracket between so and so and so and so, there would be two possibilities: one is that you would ignore what I said and either go higher than my figure or bracket, or much lower, in which case of course the losing party that did not like it would be off to the Court of Appeal saying: 'Look, the Judge suggested a figure and the jury went above it or below it.' Supposing you accepted my suggestion, and gave a figure that I recommended, or close to it. Well, all I can say is that you would have been wasting your valuable time in considering the matter of damages because you would just have been acting as a rubber stamp for me, or the Judge, whoever it was. So we do not have that over-bidding or under-bidding, as the Court of Appeal has called it, by counsel, and we do not have Judges trying to lay down to juries what they should award, and I do not hesitate to say, whatever other people say, I hope and pray, for the sake of our law and our court, we never get the day when Judges dictate to juries so that they become rubber stamps. I am, however, allowed - indeed encouraged - by the Court of Appeal just to say a little bit more. I say it not perhaps in the words of the Court of Appeal, but in my own way, which may be too homely for some, but I say to you that you must remember what money is. You do not deal in Mickey Mouse money just reeling off noughts because they sound good, I know you will not. You have got to consider money in real terms. Sometimes it is said 'Well, how much would a house cost of a certain kind', and if you are giving a plaintiff as compensation so much money how many houses is he going to buy? I do not mean to suggest that Lord Aldington or any other plaintiff would take his damages and go and buy a house or a row of houses, but that relates it to the sort of thing, if you will allow me to say, you and I do know something about, because most of us have a pretty good idea how much houses are worth. So remember that." 12. In its unanimous verdict of 30 November 1989, the jury answered the questions put by Mr Justice Davies as follows: "1. Have [the applicant] and Mr Watts proved that the statements of fact in the pamphlet are substantially true? ... No. 2. Does the pamphlet contain expressions of opinion? ... Yes. 3. Have [the applicant] and Mr Watts proved that those expressions of opinion are fair, in the sense that they are such as a fair-minded man could honestly make on the facts proved to be true? ... No. 4. (1) Do you find for Lord Aldington or for Mr Watts? ... Lord Aldington. (2) Do you find for Lord Aldington or for [the applicant]? ... Lord Aldington. 5. What sum in damages do you award Lord Aldington? ... £1,500,000." Accordingly, Mr Justice Davies directed that judgment should be entered against the applicant and Mr Watts for the above-mentioned sum, which was approximately three times the largest amount previously awarded by an English libel jury. In addition he granted an application by Lord Aldington for an injunction (section 37 of the Supreme Court Act 1981) restraining, inter alios, the defendants from publishing or causing or permitting to be published or assisting or participating in or conniving at the publication of the words contained in the impugned pamphlet or "any other words or allegations (however expressed) to the following or any similar effect namely that the Plaintiff [Lord Aldington] in connection with the handover in 1945 to Soviet or Yugoslav forces of military or civilian personnel was guilty of disobedience or deception or criminal or dishonourable or inhumane or other improper or unauthorised conduct or was responsible for the subsequent treatment of any such personnel by the Soviets or the Yugoslavs the said defendants being at liberty to apply to vary or discharge this injunction." The applicant was also ordered to pay Lord Aldington's costs. 13. The applicant (but not Mr Watts) gave notice of appeal to the Court of Appeal setting out a number of grounds, several of which went to the fairness of the proceedings. He criticised Mr Justice Davies among other things for having displayed overt animosity towards the defendants and for his continual interruption, sarcasm and abuse of defence counsel. The Judge had, he alleged, insulted and disparaged the defence witnesses. Throughout his summing-up he had wholly or largely suppressed or ignored many of the most important aspects of the case for the defence and had misled the jury on issues central to the defendants' arguments. When directing the jury on the question of damages, the tenor of the judge's remarks had been in large part to urge the jury to award high damages to the plaintiff and to discount the alternatives which had been reasonably available on the evidence; the damages had in any event been unreasonable and excessive. 14. On 9 January 1990 Lord Aldington applied to the Court of Appeal for an order requiring the applicant, under Order 59, Rule 10 (5) of the 1965 Rules of the Supreme Court, to give security in an amount which would cover the costs of his opponent's representation if the appeal were to be unsuccessful. It was not disputed that the applicant would be unable to pay the relevant costs. 15. In an open letter of 2 February 1990, Lord Aldington offered not to enforce £1,200,000 of the damages awarded. In his reply the applicant confirmed that he was unable to provide any security for Lord Aldington's costs in the appeal proceedings and, maintaining that the trial had been a travesty of justice, declined the offer. 16. In a twenty-two-page judgment of 18 May 1990 the Registrar of the Court of Appeal examined the facts raised by the applicant and rejected the application for security for costs. The Registrar stated that impecuniosity was a ground for awarding security for costs in respect of the costs of an appeal to the Court of Appeal. In exercising its discretion in this regard, the Court of Appeal would attach particular weight to the merits, or otherwise, of the appeal concerned. If the appeal had little or no merit, a security for costs order would normally be made against an impecunious appellant. If the appeal had reasonable prospects of success, the court would be reluctant to order security for costs. The Registrar pointed out that he had not found it easy to decide whether the applicant's appeal on liability had sufficient strength to justify allowing him to proceed without furnishing security for costs, given that, if his appeal failed, he would not have the funds to pay Lord Aldington's costs of the appeal. He added that, with some hesitation, he found that on several specific points the appeal had just enough strength to lead him to conclude that security for costs should not be awarded in this case. There was a possibility that if the applicant succeeded in convincing the Court of Appeal that he had not had a fair trial, and his case had not been fairly and clearly put to the jury, the Court of Appeal would conclude that a new trial had to be ordered, notwithstanding the fact that the chances of his succeeding on the new trial were slim. In view of the above conclusion the Registrar did not find it necessary to deal with an argument made by counsel for Lord Aldington that the appeal on quantum would be academic because of his offer of 2 February 1990 (see paragraph 15 above). 17. Lord Aldington appealed successfully against the Registrar's decision to the full Court of Appeal, which heard the matter for six days between 9 and 17 July 1990 and gave judgment on 19 July 1990. The members of the Court of Appeal gave, in summary, the following reasons. The Court of Appeal had to consider the application afresh and decide whether to order security would amount to a denial of justice to the applicant, having regard to the merits of his appeal. The criticism made in the applicant's grounds of appeal did not concern Mr Justice Davies's directions on the law but, in particular, what the applicant characterised as bias and partiality on the part of the judge towards Lord Aldington and the way in which the judge had dealt with three particular issues of fact. The criticism was however not justified. Mr Justice Davies had clearly left to the jury the decision on the facts of the case and all the major matters had been dealt with fully and fairly. The judge's summing-up had quite clearly brought to the jury's minds the matters which the defence had contended were of primary significance. Counsel had been given full opportunities to raise matters of alleged error, and when they had deemed it necessary they had done so. Furthermore the principal witnesses had been in the witness-box for some thirteen days in all. Lord Aldington, who had been the central witness in the case in the sense that it was his conduct which was the subject of examination, had been in the witness box for no less than six and a half days. It was inconceivable that the jury had not taken full account of and acted on the evidence of the principal witnesses who had been so comprehensively examined and cross-examined upon all the material issues in the case. The case had been an entirely appropriate one for a jury and had duly been tried by a jury. In this connection Sir Stephen noted that at a preliminary stage, when Lord Aldington had asked for the case to be tried by a judge alone, the applicant had resisted his application. The new evidence adduced by the applicant did not carry any weight in the light of all the evidence which had been given at the trial. The applicant's submission that Lord Aldington was supported by Sun Alliance Insurance Company was irrelevant. In the result, on the issue of liability there was no merit in the appeal. Sir Stephen Brown added: "The quantum of damage is a very large sum. However, there is no doubt that the learned judge gave an impeccable direction on damages. [The applicant] has argued that the judge invited the jury to give excessive damages. A correct reading of the transcript shows that he did just the opposite. There is no merit in that submission. The award was entirely within the jury's discretion and they received a very full direction about it. I have no doubt that it was meant to mark their view of the enormity of the gross libel which had been published and persisted in. [The applicant] has however made it clear that he is not really interested so much in the question of the amount of damages as in the issue of liability. He wishes to continue to pursue Lord Aldington if he can and to persist in his allegation at a new trial. In fact he was offered a substantial reduction in the damages to the extent of £1.2 million. This he rejected. This move was not a concession by the plaintiff's solicitors that the award was too high, but was made recognising that the plaintiff was unlikely to receive the amount awarded and was content with the fact that the jury had by their verdict rejected in an overwhelming manner the truth of the libel which had been published." "The court will be very slow to interfere with the jury's verdict unless there has been some material irregularity in the proceedings which renders the verdict unsafe or unsatisfactory, or it can properly be said that the verdict is perverse. Much the same considerations must apply in the instant case. As to any irregularity in the proceedings, I detect none ... This case, and the jury's verdict, depended essentially upon the veracity of Lord Aldington. No document or documents were produced which on their face could destroy Lord Aldington's credibility. If the jury had disbelieved Lord Aldington, there would have been an end of his case. The fact that the jury found in his favour and awarded him the damages that they did demonstrates that upon the vital issues of the case they must have accepted the plaintiff's evidence. Was that a course which was open to the jury? In my judgment, it plainly was ... There is not in my judgment the remotest chance of the Court of Appeal interfering with the jury's finding in the plaintiff's favour and directing a retrial of that issue, either on the basis that the verdict cannot stand or on the basis of fresh evidence which [the applicant] seeks to introduce. ... Finally, upon the issue of damages, [the applicant] had been offered in an open letter the substitution of £300,000 for the one and a half million pounds awarded by the jury. The libel remains as serious a libel as it is possible to imagine. Any appeal upon quantum alone would be no more than an academic exercise. [The applicant] wishes to reopen the whole case. In my judgment, the defendant being impecunious, justice demands that he should provide security for the plaintiff's costs of any appeal." "It would be difficult to conjecture an allegation more calculated to bring the respondent into the hatred and contempt of his fellow men and the evidence showed that it was deliberately circulated with the aim of encouraging the respondent to sue him, thus giving the appellant the opportunity to challenge in public the respondent's conduct 45 years ago ... It is not for this court to grant a retrial after the verdict of a jury, even if it thought that a reasonable jury ought to have found differently. The test which, on the hearing of the appeal, this court would have to apply is whether the finding of the jury is so absolutely unreasonable that it can be said that they have not performed the judicial duty cast upon them. Again I have listened to the skilful development of the facts and evidence by the appellant. He has failed to satisfy me that he has any reasonable chance of success in this appeal. Even if he persuaded the court to grant a retrial on the issue of the amount of the damages, I would regard as negligible the prospect of any jury, doing their judicial duty, awarding the respondent [Lord Aldington] less than the sum which he has in reality already offered to accept in compromise of this appeal. The appellant has therefore failed to satisfy me that he has any such real and substantial grounds of appeal as would justify this court in saying that the special circumstances of his inability to pay the respondent's costs if he fails can be disregarded." 18. The Court of Appeal ordered the applicant to provide security for Lord Aldington's costs in respect of the appeal in the sum of £124,900 within fourteen days, failing which the appeal would stand dismissed. It rejected a request by the applicant for more than fourteen days to attempt to raise the money. In addition the Court of Appeal ordered the applicant to pay Lord Aldington's costs (£22,000) in the security for costs proceedings. The judgment runs to twenty-three pages. The applicant did not furnish the required security and his appeal was dismissed on 3 August 1990. 19. No part of the damages or costs have to date been paid by the applicant to Lord Aldington. 20. In 1993 the applicant applied to the Court of Appeal for leave to appeal out of time against the High Court's judgment of 30 November 1989 and for leave to adduce new evidence. The Registrar informed him in September 1993 that the Court of Appeal had no jurisdiction since the subject-matter was the same as an appeal which had already been dismissed. On 21 February 1994 the applicant issued a writ against Lord Aldington in the High Court, applying for an order that the judgment of 30 November 1989 be set aside on the grounds of fraud. He also sought damages and other relief. Lord Aldington applied to strike out the action as an abuse of process and as being vexatious and frivolous. By judgment of 14 October 1994, Mr Justice Collins struck the case out as being an abuse of the process of the court, on the ground that the applicant was unable to establish a reasonable possibility that the new evidence might show that Lord Aldington had committed perjury. In a judgment of 30 November 1994 Mr Justice Collins ordered the applicant's solicitors, who had funded the new action by acting without a fee, to pay 60% of Lord Aldington's costs in the proceedings. An appeal by the applicant to the Court of Appeal is pending. 21. Under English law the actions of libel and slander are private legal remedies, the object of which is to vindicate the plaintiff's reputation and to make reparation for the injury done by the wrongful publication to a third person or persons of defamatory statements concerning the plaintiff. The defendant in these actions may prove the truth of the defamatory matter and thus show that the plaintiff has received no injury. Although there may be damage accruing from the publication if the facts published are true, the law gives no remedy by action (see Halsbury's Laws of England, Fourth Edition, vol. 28, paragraph 1). 22. A strict liability rule applies to the tort of libel: "A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention." (Lord Loreburn LC in Hulton v. Jones [1910] Appeal Cases 20 (House of Lords), at pp. 23-24) The law presumes in the plaintiff's favour that the words are false, unless and until the defendant proves to the contrary (Gatley, Libel and Slander, Eighth Edition, paragraph 5, p. 6). If the defendant attempts unsuccessfully to prove that the words are true, this is likely to increase the damages (Duncan and Neill on defamation, Second Edition, paragraph 18.14, p. 129). 23. The purpose of damages in the law of libel is as stated by Lord Hailsham in Broome v. Cassell & Co. Ltd ([1972] Appeal Cases 1027, at p. 1071, quoted by Lord Donaldson in Sutcliffe v. Pressdram Ltd [1991] 1 Queen's Bench 153, p. 189): "In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before his wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. `... [A] man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done.' ... Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant ..." 24. If the words in question are reasonably capable of being understood in a defamatory sense, the judge must leave it to the jury to say whether they did, in fact, defame the plaintiff. If not, he must give judgment for the defendant without leaving the case to the jury. The proper course to adopt for the judge in civil proceedings for libel or slander, or criminal proceedings, where there is a case to go to the jury, is to define what is libel in point of law, and leave it to the jury to decide as a matter of fact whether the particular publication falls within that definition or not. Halsbury's Laws of England, Fourth Edition, vol. 28, paragraphs 225, 227 and 232). 25. There is no upper or lower limit to the sum of damages which a jury in a libel trial may award. In the above-mentioned case of Sutcliffe v. Pressdram Ltd, Lord Donaldson stressed that referring juries to other cases would confuse rather than assist the jury and that any attempt by counsel or the judge to discuss figures would lead to unhelpful overbidding and underbidding and would risk usurping the true function of the jury. However, the judge might give some guidance to a jury to assist it in appreciating the real value of very large sums of money, for example by inviting it to consider what regular income could be obtained if the sum was invested (see the above-mentioned case of Sutcliffe v. Pressdram Ltd, Lord Donaldson, p. 178; see also Lord Nourse, p. 186, and Lord Russell, pp. 190 91). 26. At the relevant time, under Order 59, Rule 11, of the Rules of the Supreme Court 1965, the Court of Appeal had power to set aside a High Court judgment and order a new trial. Rule 11 (1)-(3) read: "(1) On the hearing of any appeal the Court of Appeal may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the court below. (2) The Court of Appeal shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned. (3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court of Appeal that any such wrong or miscarriage as is mentioned in paragraph 2 affects part only of the matter in controversy, or one or some only of the parties, the court may order a new trial as to that party only, or as to that party or those parties only, and give final judgment as to the remainder. (4) ..." As to what test the Court of Appeal should apply in exercising its powers to set aside a jury's verdict on damages, Lord Kilbrandon in Broome v. Cassell & Co. Ltd ([1972] Appeal Cases 1027, p. 1135) stated that it was not sufficient for the court to conclude that the award was excessive; it had to ask whether the award could have been made by sensible people, or whether it must have been arrived at capriciously, unconscionably or irrationally. 27. According to Rule 11 (4), as in force at the material time, the Court of Appeal had no power, in lieu of ordering a new trial, to reduce or increase the damages awarded by the jury, unless the party or parties concerned consented. Since the entry into force on 1 February 1991 of the Courts and Legal Services Act 1990, the Court of Appeal has a power under section 8 (2) of that Act to substitute its own assessment of damages for that of the jury irrespective of whether the parties agree or not. Order 59, Rule 11 (4), as amended in the light of the above section 8, provides: "In any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate, the court may, instead of ordering a new trial, substitute for the sum awarded by the jury such sum as appears to the court to be proper, but except as aforesaid the Court of Appeal shall not have power to reduce or increase the damages awarded by a jury." 28. In the case of Rantzen v. Mirror Group Newspapers (1986) Ltd ([1993] 3 Weekly Law Reports, p. 953) the Court of Appeal exercised its powers under section 8 of the Courts and Legal Services Act 1990 and under the new Order 59, Rule 11 (4). In interpreting its power to order a new trial or to substitute another award on the ground that the damages awarded by the jury were excessive, the Court of Appeal observed that the grant of an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what is "necessary in a democratic society" or "justified by a pressing social need" for the purposes of Article 10 (art. 10) of the European Convention on Human Rights. The common law, if properly understood, required the courts to subject large awards of damages to a more searching scrutiny than had been customary in the past. It followed that what had been regarded as the barrier against intervention should be lowered. The question became: "Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?" As to what guidance the judge could give to the jury, the Court of Appeal was not persuaded that the time had come to make references to awards by juries in previous libel cases. Nor was there any satisfactory way in which awards made in actions involving serious personal injuries could be taken into account. It was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act 1990, would establish some standards as to what would be "proper" awards. In the meantime the jury should be invited to consider the purchasing power of any award which they may make and to ensure that any award they make is proportionate to the damage which the plaintiff has suffered and is a sum which it is necessary to award him to provide adequate compensation and to re-establish his reputation. The Court of Appeal concluded that although a very substantial award was clearly justified in the case, judged by any objective standards of reasonable compensation or necessity or proportionality, the award of £250,000 was excessive. It substituted the sum of £110,000.

dev

001-4547

ENG

DNK

ADMISSIBILITY

KITOV v. DENMARK

Inadmissible

Christos Rozakis

The applicant is a Bulgarian citizen, born in 1945. It appears that he is presently residing in Aalborg, Denmark. Before the Court the applicant is represented by Mr Christophe Darbois and Mr Olivier Gutkes, both lawyers practising in Strasbourg, France. A. On 25 September 1990 the applicant was arrested in Spain on the basis of an international arrest warrant issued by the Danish authorities in order to obtain his extradition to Denmark. He was suspected of having committed drug offences contrary to Danish law. The applicant was extradited to Denmark in May 1991 where he was placed in pre-trial detention. On 20 and 21 August 1991 the applicant and seven witnesses were heard by the Criminal Court of Silkeborg (Kriminalretten i Silkeborg). The applicant was assisted by counsel at the hearing. On 21 August 1991 the Court convicted the applicant of having committed drug offences contrary to Section 191 of the Danish Penal Code (straffeloven). He was sentenced to three years’ imprisonment. On the same day the applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) which had competence to determine the case on points of law as well as on facts. The Criminal Court decided to release him during the appeal proceedings. It appears that the applicant left Denmark upon his release. The prosecution appealed against the decision to release the applicant to the High Court which decided, on 22 August 1991, that he was to be detained until 19 September 1991 pursuant to Section 762, subsection 1, of the Administration of Justice Act (retsplejeloven), as there was specific reason to believe that he would leave the country and evade prosecution if he remained at large. On 28 August 1991 the State Prosecutor of Viborg (Statsadvokaten i Viborg) requested the High Court not to fix the length of the applicant’s detention as the applicant was presumed not to reside in Denmark any longer. On 30 August 1991 the High Court decided in accordance with the State Prosecutor’s request. The hearing in the High Court was scheduled to take place on 9 December 1991. Prior to the hearing the applicant was appointed a Danish lawyer, S.M., who put forward several requests to the State Prosecutor on 19 November 1991 in order, inter alia, to prepare for the hearing. On 6 December 1991 a Dutch lawyer, N.M., sent a fax to the High Court whereby the court was informed, inter alia, that N.M. had been approached by the applicant, who had chosen his domicile at N.M.’s office address. N.M. requested that the hearing be adjourned due to the applicant’s alleged illness. A notice impressed with the hallmark of the Prinsengracht Hospital (Prinsengrachtziekenhuis) in Amsterdam, in a Dutch and an English version, was enclosed with the letter. According to the notice the applicant was admitted to “a general medical check-up” lasting three days. From N.M’s letter it transpires that the purpose of the medical check-up was the applicant’s alleged heart decease and a severe flu. N.M. stressed that the applicant wished to appear before the court to defend himself against the charges brought against him. On 10 December 1991 N.M. faxed a medical statement to the High Court signed by “Dr. P. Stevens Cardiologist” that described - in medical terms - the applicant’s alleged heart decease and the envisaged cure. On 9 January 1992 the applicant’s Danish counsel, S.M., sent a letter to N.M., which read as follows: “... Since [the applicant] has not reacted to my letters forwarded to his PO address, I ask you to try to obtain his comments to the following: At the court meeting held at [the High Court of Western Denmark] on December 9, 1991, the Prosecutor requested a refusal of [the applicant’s] appeal claiming that there was not sufficient documentation that his absence was unavoidable. However, the Court sustained my claim that the trial was to be postponed as it was not found that the information contained in your letter of December 6, 1991, and the enclosed letter of admission from Prinsengrachtziekenhuis of December 1, could be disregarded. As previously informed the trial was then postponed until Thursday April 30 and Friday May 1, 1992, both days at 9.00 hours. However, the Public Prosecutor has again made a request to [the High Court] that the [appeal] be dismissed. In support of this request the Public Prosecutor maintains that the letter of admission of December 1, 1991 is false. The police have contacted the management secretary of the hospital and [the] chief physician who have stated that [the applicant] has never been admitted. And the hospital does not know him, neither [by] name or the file number mentioned in the letter. Besides, the hospital has stated that it has never used letter paper as the one [used for] the letter of December 1, 1991 ... However, until May 1991, the printed letterhead on the invoices of the hospital has been used. Finally, the hospital has stated that the signature on the letter of admission does not belong to anybody employed at the hospital. The letter sent later by you of December 9, 1991, from Doctor P. Stevens the police have submitted to the only Dutch doctor of this name. And in [a] letter of December 12, 1991 ... he has stated that also this statement is false. [The High Court] has postponed the decision of the claim made by the Public Prosecutor for a dismissal, awaiting my comments on the information provided. If possible, please obtain and send to me as soon as possible [the applicant’s] comments to the claim that the two letters are false. ...” On 7 February 1992 N.M. sent a letter to the State Prosecutor, which read, inter alia, as follows: “... As I already informed you, [the applicant] was not able to travel to Denmark because of problems with his health in December last year. Because of his health [the applicant] was not able to visit me at my office and for that reason he sent some friends. I pointed out to these gentlemen that it was necessary that I should receive a medical statement about the state of health of [the applicant] in order to send this statement to Denmark. ... Shortly after I received the statement of dr. Stevens, known by you, which appeared to be false. I can tell you that I was unpleasantly surprised by this false statement and I informed [the applicant] about this matter immediately. [The applicant] was also unpleasantly surprised and [he has in the meantime learned] that the abovementioned gentlemen - entirely without his knowledge - tried to help him with a misplaced [enthusiasm] in an illegal way. [The applicant realises] that he has been brought in a very difficult situation, but requests the Court for understanding, all the more because he has been really ill and was not able to travel. [The applicant] refers to the enclosed medical statement of his physician dr. Klein... [He] should like to have the opportunity to defend himself in appeal and should like to appear in court. ... Finally I want to inform you that I want to declare formally that I will be the lawyer in this matter and that I will prepare the defence together with a Danish lawyer. I request you to send me a copy of the entire criminal file. ...” It appears that the medical statement from Dr Klein - a short hand written note in Dutch, dated 23 December 1991 - was faxed to the State Prosecutor by a colleague to N.M., on 19 January 1992. On 13 February 1992 S.M. sent a letter to the High Court of Western Denmark, reading, inter alia, as follows: (Translation) “... The State Prosecutor has, by letters of 12 December 1991 and 11 February 1992 with enclosures ... requested [the High Court] that [the applicant’s] appeal be dismissed. As appointed defence counsel for [the applicant] I hereby object to [the Prosecutor’s proposal]. Immediately upon receipt of the State Prosecutor’s letter of 12 December 1991 I sent a letter to [the applicant] on 13 [December 1991], addressed to the P. O. box address abroad of which he had informed me - which is the only address I know of - and asked him to inform me what was the actual position as regards his admission to the Prinsengrachtziekenhuis on 6 December 1991 and the received statement from dr. P. Stevens. As [the applicant] did not react I requested [N.M.] to obtain and forward [the applicant’s] views on the material from the State Prosecutor, by letter of 9 January 1992. Subsequent to my receipt, on 28 January 1992, of the court transcripts of 20 [January 1992], I informed [N.M.] of their contents by letter of 29 [January 1992]. On 7 February 1992, I have received a copy of [N.M.’s] letter of the same date with enclosures to the State Prosecutor. In support of my objection against the State Prosecutor’s proposal I have only the possibility of referring to the contents of [N.M.’s] letter of 7 February 1992 from which it appears that it cannot be ruled out that [the applicant] had a lawful excuse for his absence at the hearing in the High Court, on 9 December 1991. ...” On 25 February 1992 N.M., inter alia, requested the High Court to appoint a new Danish lawyer as the applicant had no longer confidence in S.M. and as he was informed that S.M. had recommended the High Court that the latter’s appointment as counsel for the applicant be withdrawn. N.M. further requested the High Court to adjourn the case until a new lawyer had been found. In addition N.M. requested the Court to inform him whether it would “acknowledge [him] as lawyer in [the applicant’s] case” and to send him copies of the State Prosecutor’s letters of 12 December 1991 and 11 February 1992 with enclosures. On 9 and 13 March 1992 N.M., inter alia, repeated his request for access to the file and for acknowledgement as counsel for the applicant. He also requested that the Dutch lawyer, L.K., be acknowledged as counsel for the applicant. In the meantime, on 27 February 1992, S.M. informed N.M. that the State Prosecutor had decided on 26 February 1992, pursuant to Section 745 of the Danish Administration of Justice Act (retsplejeloven), not to hand over copies of the aforementioned letters in the file to N.M. or the applicant. On 13 March 1992 the High Court, sitting with three professional judges and three lay judges, decided to dismiss the applicant’s appeal. Neither the applicant - or any of his representatives - nor the prosecutor was present at the court meeting. The decision was made on the basis of the written material in the case, including the medical statement of 23 December 1991 from Dr Klein, N.M.’s letters of 7 and 25 February and 9 March 1992, S.M.’s letters of 13 and 25 February 1992, a report of 14 January 1992 from the Chief of Police of Silkeborg, and the letter of 11 February 1992 from the State Prosecutor. The Court transcripts read, inter alia, as follows: (Translation) “... The hearing is public. ... On the basis of the material now available it must be considered established that the admission notice from the Dutch hospital was false. In addition, subsequent to that, a false medical certificate allegedly issued by Dr P. Stevens has been submitted. On this background - notwithstanding ... the medical certificate issued by a doctor, N.F.M. Klein - the submission that [the applicant] had a lawful excuse [for his absence] at the beginning of the hearing, on 9 December 1991, must be rejected. The High Court therefore, pursuant to Section 222 of the Administration of Justice Act, reverses its decision of 9 December 1991 as to the adjournment of the case. On the basis of the information provided by the prosecution about the efforts made to have the indictment and summons served on the applicant, the Court is satisfied that it has been impossible to serve these documents in the usual manner because he has changed address or place of residence without giving due notice thereof. For these reasons the prosecution’s request for dismissal of [the applicant’s] appeal is sustained pursuant to section 965c, subsection 3, second part. It is decided: This appeal is dismissed. In accordance with [S.M.’s] recommendation of 25 February 1992 the High Court withdraws the appointment of [S.M.] as defence counsel for [the applicant]. The High Court has not found any reason to appoint a new counsel for [the applicant] before the decision to dismiss [the applicant’s] appeal was made. ...” On 14 April 1992 the High Court rejected the applicant’s request to reopen the case. Upon the applicant’s request, the Ministry of Justice granted him leave to appeal to the Supreme Court (Højesteret) on 29 July 1992. Enclosed with the letter from the Ministry was, inter alia, a copy in English of Section 730 of the Administration of Justice Act, which sets out the conditions a lawyer must fulfil in order to be appointed counsel for an accused person. Following several requests from the applicant for access to the file, the Ministry notified him on 23 November 1992 that it did not consider itself competent to grant access to the file as long as the case had not been finally decided upon. However, the Ministry informed the applicant that it had forwarded his request for access to the file to the Supreme Court. On 11 February 1993 the Supreme Court decided that the lawyers [N.M. and L.K.] could have access to the file, (cf. Section 745 of the Administration of Justice Act). However, in order to secure that the Danish rules concerning access to files in criminal cases were observed, the permission was subject to the condition that the lawyers were assisted by a Danish lawyer in the sense that the latter would receive a copy of the file for the use of the Dutch lawyers. On 2 November 1993 the Supreme Court appointed the Danish lawyer T.R. to assist N.M. and L.K. in the aforementioned manner. On 2 February 1994 T.R. informed N.M. and L.K that he was not entitled to send the file or copies of the documents of the file to them or to the applicant but they were welcome to go through the file at his office and that he was willing to give them oral explanations regarding the contents of the documents. On 7 March 1994 T.R. asked the Supreme Court for permission to forward the file to the applicant’s Dutch lawyers. On 23 March 1994 the Supreme Court rejected the request and emphasised, by reference to its decision of 11 February 1993, that only T.R. was permitted to receive copies of the file for the Dutch lawyers’ use. After the parties’ submission of written statements, the Supreme Court decided, on 10 April 1995, as follows: (Translation) “... Notwithstanding [S.M’s] request of 25 February 1992 for withdrawal, which request was granted at the date of the order of dismissal, the Supreme Court holds that it has not been established to the satisfaction of the court that [the applicant] has been deprived of an adequate and effective defence in connection with the High Court’s decision of 13 March 1992 to dismiss his appeal or that the decision of the High Court is wrong. On those grounds the Supreme Court rejects [the applicant’s] claim for remission of the case for retrial. As no other allegations have been submitted which can lead to a reversal of the High Court’s decision, the Supreme Court [dismisses the appeal against the High Court’s decision]. ...” The applicant was arrested in Germany in September 1995 and expelled to Denmark. It appears that he has now served his prison sentence. B. Relevant domestic law Appointment of defence counsel Section 730 of the Administration of Justice Act reads, in so far as relevant, as follows: (Translation) Subsection 1 “Any person who is charged with a crime shall have the right to choose a defence counsel to assist him in accordance with the rules laid down below...” Subsection 2 “Only lawyers who have a right to appear before the court concerned or who have been appointed by the Ministry of Justice to act as public defence counsel before the court concerned may be chosen to act as defence counsel. However, the court may, if it considers it justified, taking into account the nature of the case and other special circumstances, allow the choice of a lawyer from another Nordic country to act as defence counsel...” Access to the file Section 745, subsection 1, of the Administration of Justice Act reads, inter alia, as follows: (Translation) “Counsel must have access to the material which is in the possession of the police ... Counsel is not allowed to hand over the material to the accused without the approval of the police.” The last part of subsection 1 serves to prevent misuse of the case file. However, the accused is not prohibited from acquainting himself with the file at his counsel’s office. Dismissal of appeal A person convicted in a criminal case tried by a city court is free, in principle, to appeal against the judgment to the High Court in the district of which the city court in question belongs. Immediately upon pronouncement of the judgment, the convicted person can give notice orally to the court records that he wants to appeal against the judgment. As soon as possible after receipt of the notice of appeal, the State Prosecutor sees to it that attempts are made to serve a notification (notice of appeal and indictment) on the appellant in the usual manner, (cf. Sections 963 and 948 of the Administration of Justice Act). When an appeal also comprises assessment of the evidence, the State Prosecutor arranges for a summons containing information on the time and place of the hearing to be served on the appellant at a notice of at least four days, (cf. Section 965 and Section 840 of the Administration of Justice Act). If a summons is not served or if a summons is served on the appellant at a notice of less than four days, the effect is that the appellant is not lawfully summoned to the hearing and therefore, as a point of departure, the hearing cannot be held if the appellant fails to appear at the hearing. However, Section 965c, subsection 3 of the Administration of Justice Act reads as follows: (Translation) “If the accused fails to appear without stating a lawful excuse for his absence in proceedings where the appeal was raised by him and comprises the assessment of evidence, the court can dismiss his appeal by order if it finds that the hearing cannot usefully proceed in his absence. Furthermore, the accused’s appeal can be dismissed if it has not been possible to serve the indictment or the summons upon him in the usual manner because he has changed his address or place of residence without giving due notice thereof.” The usual manner to serve indictments and summons on somebody are by postal or by personal service, (cf. Sections 155 until 158 and Section 948, subsection 2, of the Administration of Justice Act). In criminal cases documents cannot be served upon the accused’s lawyer.

dev

001-77674

ENG

TUR

CHAMBER

CASE OF YÜKSEKTEPE v. TURKEY

Remainder inadmissible;Violation of Art. 6-1 (composition of the State security court);Not necessary to examine Art. 6-1 (other complaints);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

4. The applicant was born in 1958 and lives in Germany. 5. The applicant was a civil engineer and a partner in a company. He was also acting as an automobile commissioner in his spare time. 6. In the course of an operation carried out against the activities of an illegal organisation, namely the Islami Hareket Örgütü (the Islamic Movement Organisation), the applicant was arrested and taken into custody together with Mr A.A. while they were leaving the applicant’s house on 28 November 1995. It appears from the arrest protocol that the police officers were following Mr A.A. who was suspected of being a member of that organisation. 7. On the same day, the applicant’s house was searched. According to the search and seizure protocol drafted by the police officers and signed by the applicant and his wife, the police did not find anything illegal or incriminating. 8. Between 28 November and 11 December 1995, the applicant was interrogated and confronted with a number of suspects. The applicant claims that he was beaten and given electric shocks during this time. 9. On 11 December 1995 the applicant was examined by a doctor at the Bursa Forensic Medical Department who did not find any signs of illtreatment on the applicant’s body. The report mentioned that the applicant complained of a bruise on his left eye and of having been given electric shocks. 10. On the same day, the applicant was brought before the prosecutor when he denied the accusations against him and claimed to have given his statements in custody under duress. He was then brought before a judge at the Istanbul State Security Court who ordered his detention on remand. 11. On 27 December 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, along with two other suspects, accusing him of providing the Islamic Movement Organisation with financial support by forging licences and plates for stolen cars and, subsequently, selling them. The prosecutor requested that the applicant be convicted and sentenced for membership of an illegal organisation under Article 168 § 2 of the Criminal Code. 12. On an unspecified date the criminal proceedings against the applicant and two other accused commenced before the Istanbul State Security Court. 13. During the proceedings the applicant refuted the accusations against him. In particular, he challenged the authenticity of the documents in the case file claiming that some of them had been replaced. In support of his argument, he claimed, inter alia, that the search and seizure protocol was torn and that therefore the police had drafted a new one and made him sign under his wife’s name. In his final observations on the merits, the applicant also stated that he had been forced to sign his statements in police custody. 14. On 9 September 1996 the applicant was released pending trial. 15. On 13 February 1998 the Istanbul State Security Court convicted the applicant of aiding and abetting an illegal organisation, under Article 169 of the Criminal Code, and sentenced him to five years’ imprisonment. In its decision, the court noted, inter alia, that there was no evidence that the applicant had taken part in any armed or unarmed activity of the organisation in order to be considered a member of that organisation. However, the court was not convinced that the applicant did not know that, through his constant financial relationship with Mr A.A., he had been helping the organisation. 16. On 22 April 1998 the applicant appealed against this judgment. In his appellate petition, the applicant submitted, in particular, that the police documents relied upon by the prosecution did not reflect the truth. In this regard, he stated that the documents drafted by the police in Bursa were torn and replaced by the police in Istanbul. The applicant further claimed that he was coerced into signing the documents drafted by the police. Finally he pointed out that the police had not found a single book concerning political Islam in his house. 17. On 15 April 1999 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the applicant and quashed the remainder of the judgment. 18. The Government informed the Court that on 9 February 2001 the Istanbul State Security Court decided to defer the sentence of the applicant pursuant to Law no. 4616 on Conditional Release, Deferral of Procedure and Punishments. 19. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003). 20. By Law no. 5190 of 16 June 2004, published in the Official journal on 30 June 2004, the State Security Courts have been abolished.

dev

001-101537

ENG

CZE

ADMISSIBILITY

HLASENSKY AND HLASENSKA v. THE CZECH REPUBLIC

Inadmissible

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

The applicants, Mr Alois Hlásenský and Mrs Helena Hlásenská, are Czech nationals who were born in 1955 and live in Slavkov u Brna. They are represented before the Court by Mr Petr Živěla, a lawyer practising in Vyškov. On 6 August 2009 the applicants lodged a constitutional appeal before the Constitutional Court. The constitutional appeal was signed by the applicants and dated 2 August 2009. Attached to it was a power of attorney, dated 6 August 2009. On 31 August 2009 the Constitutional Court informed the applicants and the attorney that the constitutional appeal had to be written by the legal representative. They were invited to rectify the shortcoming by resubmitting the constitutional appeal, written by the attorney, within twenty days. The Constitutional Court noted that in case of failure on the part of the applicants, the constitutional appeal would be rejected under Section 43 § 1 a) of the Constitutional Court Act. On 10 September 2009 the applicants' attorney sent to the Constitutional Court a letter in which he stated that he had been representing the applicants from the very beginning of the proceedings and that, after consulting the applicants, he would not supplement the constitutional appeal in any way. On 24 September 2009 the Constitutional Court rejected the constitutional appeal, holding that the applicants had failed to rectify its shortcomings in due time. It also noted that one of the applicants had lodged several constitutional appeals in the past and had previously been invited to rectify his submissions, and hence was well aware of the formal requirements. Pursuant to Section 30 (1), natural and legal persons must be represented by an attorney before the Constitutional Court. Section 43 (1) (a) provides that the Rapporteur shall, by preliminary ruling, reject the application if the applicant fails to rectify defects in the application in the time-limit set.

dev

001-86479

ENG

GBR

ADMISSIBILITY

SWINDLEHURST v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Raymond Swindlehurst, is a British national who was born in 1945 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 7 October 1997. In December 2000, the applicant made a claim for widows’ benefits. On 7 December 2001 the applicant was informed that his claim had been disallowed as he was not a woman. On an unspecified date the applicant applied for reconsideration. On 2 February 2002 reconsideration took place and the previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.

dev

001-104955

ENG

ROU

CHAMBER

CASE OF PREDICA v. ROMANIA

Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 13;Non-pecuniary damage - award

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

5. The applicant was born in 1946 and lives in Bucharest. He is the father of Mr Marian Predică (“the applicant’s son”), a Romanian national who was born on 11 August 1983 and who died on 5 October 2003 while he was serving his prison sentence. 6. On 20 March 2000 the applicant’s son had been arrested under suspicion of having committed theft; he was taken into custody in the Gaeşti Correctional Institution for Minors on 2 November 2000. At that time, a medical examination was carried out, the report stating that he was clinically healthy. A copy of the results of a medical examination dated 18 June 1999, with similar conclusions, was attached to the medical file. A subsequent medical examination carried out on 12 March 2001 did not note any chronic or acute illness. 7. On 25 August 2001 the applicant’s son was transferred to Jilava Prison, and on 11 September 2003 he was transferred to Rahova High Security Penitentiary. He was placed in cell no. 626. On that date, a medical examination was carried out, stating that the applicant’s son was clinically healthy and that he did not show symptoms of any medical condition. The medical record showed no indication as to the existence of any illness that would require treatment. According to the same medical file, for the duration of his stay in Rahova Penitentiary, the applicant’s son never asked for any medical assistance. 8. In the morning of 1 October 2003, at 10.15, in answer to repeated calls by one of the prisoners, the guards went to cell no. 626, where prisoner T.P. reported that the applicant’s son needed to be taken to hospital urgently, as he had lost consciousness and had started to shake. The supervising officers transported him to the consulting room of the penitentiary. Following an examination performed at 10.27, it was concluded that the detainee was in a generally altered state, disoriented in time and space; a “suspicion of (medical) intoxication” was noted by the doctor, who also recommended that he be taken to Rahova Surgery Hospital urgently. There, at 10.40 he was diagnosed with “convulsions/symptoms of grand mal seizures” (criza comitiala). A consultation by a specialist was recommended. 9. As the condition of the patient kept deteriorating, artificial respiration was applied. The applicant’s son was then transported to the nearest emergency hospital, Bucharest University Hospital, where he was hospitalised at 11.15 in a coma. The diagnosis upon arrival was “intercerebral haemorrhage, left temporoparietal, with panventricular inundation”. The doctors noted that there were no signs of trauma on the cranium or vertebra. The patient underwent laboratory tests, tomography and surgical and neurosurgical tests. As there was no indication that neurosurgical intervention was necessary, he was moved to another ward, where his breathing was assisted with a mechanical ventilator and his heart beat maintained by perfusion. 10. In spite of the medical care provided, the applicant’s son never came out of the coma. His hospital medical record stated that he died on 5 October 2003, at 13.30, “due to a cardiac arrest, [while] under artificial respiration and perfusion with adrenaline. Severe damage to the cerebral trunk. Intercerebral haemorrhage, left temporoparietal, with panventricular inundation and compressive effects on the cerebral trunk.” The medical certificate attesting the death of the applicant’s son was issued on 8 October 2003. It stated that the direct cause of death was an intraventricular haemorrhage and a haemorrhage of the cerebral meninges, with serious “cranial and facial trauma due to an aggression”. 11. The preliminary necropsy report issued on 14 October 2003 by the Institute of Forensic Medicine “Mina Minovici” contained the following conclusions: “The death of Marian Predică was violent. It was caused by an intraventricular haemorrhage and a haemorrhage of the cerebral meninges, consequences of a trauma – cranial-cerebral and facial, with fracture of the nasal bones, facial ecchymosis and left occipital excoriation. The necropsy revealed excoriation and echhymosis in the left thoracic and pelvic areas. The traumatic lesions could have been produced by a blow with a solid object to the facial area, followed by falling and hitting a hard surface, with impact to the occiput and the left hemicorp. The traumatic lesions could have been inflicted between one to three days prior to the day of hospitalisation. There is a direct causal link between the cerebral traumatic lesions and the death of Marian Predică.” The final medical report issued on 4 December 2003 confirmed the preliminary observations, stating in addition that the traumatic injuries could have been inflicted “several days prior to the day of hospitalisation on 1October 2003” and concluded that “the cerebral lesions necessitated medical care, to be provided immediately”. 12. On 21 September 2006 the prosecutor requested the forensic expert from the Institute of Forensic Medicine to answer, on the basis of statements given by the victim’s cellmates describing the incident on the morning of 1October 2003, whether “it was possible that during a seizure, the victim could have bashed against various objects around him and thus self inflicted all the injuries detected at autopsy (including the facial lesions)”. The supplementary medical report issued stated that, “considering the morphology and the topography of the traumatic lesions, it could not be excluded that all the injuries were sustained in the same context – by falling and hitting a hard surface, several days before the date of death, possibly by hitting against a metal bed in the course of a grand mal seizure of epileptic aetiology, as it transpired from the investigation data forwarded by the prosecutor”. No deficiencies in the medical care provided to the victim prior to his death were detected. 13. The applicant alleged that he had last seen his son on 25 September 2003, when the latter had attended a hearing before the High Court of Cassation and Justice. At that time, he had borne no visible signs of violence. Before his incarceration and upon his transfer to Rahova Penitentiary, he had been healthy, as the medical examinations carried out in the penitentiary also confirmed. The applicant was informed about his son’s death on 6 October 2003; he, his wife and other son were allowed to take the body from the Institute of Forensic Medicine on 9 October 2003. According to the applicant, none of the family members could recognise the body, as the face was disfigured, the hair had been shaved off, the hands bore the marks of handcuffs and the left hand had a lesion in the handcuffed area. The identity of the deceased was allegedly confirmed based on a particular mark on the left hand. 14. On 5 October 2003, the Bucharest Military Prosecutor’s Office received a phone call from G.I., an officer at Rahova Penitentiary, informing it of the death of the detainee and asking the competent authority to establish the cause and the circumstances of his death. 15. A preliminary inquiry was carried out with respect to alleged criminal acts perpetrated by the twenty penitentiary guards charged with the supervision of the detainees. The military prosecutor in charge questioned the officers that had been on duty while the applicant’s son was detained at Rahova Penitentiary, in order to establish whether there had been any incidents between the detainee and his cellmates and whether there had been any incidents when force or other immobilizing methods were used with respect to the detainee. The guards reported that no incidents had occurred in cell no. 626 and that they had not noticed any injuries on the detainee’s face. Similar statements concerning the lack of any incidents in their cell were given by some of the applicant’s son’s cellmates. One of the cellmates, V.O.C., stated in his deposition given before the military prosecutor on 17 June 2004, that he had heard that Predică Marian had been beaten by “mascati” (masked special intervention officers) when he had returned from a visit or from the court because he had spoken disrespectfully to them. 16. On 26 January 2004, the military prosecutor decided not to indict the guards, as there were no suspicious circumstances regarding the applicant’s son’s death. The case was referred to a civilian prosecutor for a further investigation to be carried out with respect to his cellmates (see paragraphs 20-22 below). The decision was confirmed by the hierarchically superior prosecutor on 5 August 2004. The decision was contested by the applicant before the Military County Court of Bucharest. On 24 March 2005, the complaints were dismissed as inadmissible. However, that decision was quashed on 14 July 2005 by the Superior Military County Court of Bucharest and the case was remitted to the first instance. On 23 September 2005, the case was referred to the Bucharest 5th District Court, which gave judgment on 8 November 2005, declining jurisdiction in favour of the Bucharest County Court. 17. The applicant’s complaints were allowed on 21 February 2006 by the Bucharest County Court, which ordered the case to be remitted to the Prosecutor’s Office for further investigation. The court held that the investigations had been improperly conducted throughout the proceedings. Upon an appeal on points of law, the judgment was quashed on 20 April 2006 by the Bucharest Court of Appeal, in so far as the first-instance court had not provided grounds for its decision and had not specified exactly what evidence should be added to the file. The case was consequently remitted back to the first instance. 18. The Bucharest County Court rendered judgment on 20 October 2006. Assessing the evidence before it, it held that the criminal investigation conducted has not proved to be effective within the meaning of Articles 2 and 3 of the European Convention of Human Rights. The court further allowed the applicant’s claims and ordered the case to be remitted to the Prosecutor’s Office, as a further investigation needed to be carried out with respect to the criminal act of homicide as defined under section 174 of the Romanian Criminal Code. The court summarised the facts for the timeframe of 11 September (day of incarceration) to 1 October 2003, on the basis of the evidence adduced. It held that there was no proof of any altercation having occurred between the applicant’s son and his cellmates during that time. In the official register of the penitentiary there was no record of any disciplinary measures having been applied to him. The court criticised the fact that the prosecutors had discontinued the investigations in general, without making any reference to a specific criminal act, such as homicide, ill-treatment or torture – as defined respectively by sections 174, 267 and 267 – 1 of the Romanian Criminal Code. There was no concrete information on the circumstances of the applicant’s son’s death or on the persons to be held responsible for it in the evidence already adduced in the case, “even though his death had undoubtedly been violent”. The court also mentioned that in assessing the adduced evidence, the fact that the investigation authorities were attached to the military, while the European Court of Human Rights had repeatedly stated that such criminal inquiries conducted by a military prosecutor could not be regarded as effective, could not be overlooked. It further held that “None of the accused who attended, together with Marian Predică, the hearing before the High Court of Cassation and Justice on 25 September 2003 was questioned, in so far as they could have been witnesses to a conflict between Marian Predică and the guards of the Penitentiary (especially the accused V.L.). None of the guards belonging to the Special Intervention Unit on duty on 25 September 2003 and afterwards, until 1 October 2007, was ever questioned. The contradictory conclusions of the numerous medical reports are to be clarified by the Superior Commission of Forensic Medicine”. 19. This decision was upheld on an appeal on points of law lodged by the twenty incriminated penitentiary guards. On 3 April 2007 the Bucharest Court of Appeal held that the first-instance court’s reasoning was exhaustive and legally sound. The proceedings are currently pending before the judiciary police, delegated by the Prosecutor’s Office to carry out the investigation (see paragraphs 25, 27 below). 20. Concerning the investigation carried out with respect to the applicant’s son’s cellmates, the prosecutor decided on 10 March 2004 to discontinue the proceedings, as there was no indication of any criminal act having been committed in the file. The hierarchically superior prosecutor, however, quashed this decision on 28 May 2004, indicating that a further investigation should be conducted with respect to the offences listed under section 183 of the Romanian Criminal Code, namely, hitting or causing injury to a person resulting in death. 21. The prosecutor questioned the persons who had been detained in the same room as the applicant’s son, and other individuals. They declared that the applicant’s son had not been attacked by other prisoners or by the prison officers. Some of them also stated that on 1 October 2003 the applicant’s son had had a seizure and had hurt himself while falling between the beds and that he had immediately been taken to the consulting room. 22. On 3 November 2006 the prosecutor decided not to indict, finding that “the death was the consequence of [the applicant’s son] accidentally injuring himself during a grand mal seizure of epileptic aetiology”. 23. The decision was upheld on 28 December 2006 by the hierarchically superior prosecutor. His decision was contested by the applicant before the Bucharest County Court, which gave judgment on 18 October 2007. The court quashed the prosecutor’s decision not to indict, holding that it was necessary to adduce more evidence in the case, namely, the video recordings from the place of detention for the relevant period of time. 24. The Prosecutor’s Office appealed. In a judgment given on 12 February 2008, the Bucharest Court of Appeal held that the prosecutor needed to establish and clarify the circumstances in which the victim had died, as there was evidence of a homicide having been committed. To that end, the prosecutor was ordered to produce and assess certain pieces of evidence, namely, to identify and watch all video recordings from the hallways of the penitentiary and from the victim’s cell; to identify and question as a witness V.L. and a certain N.N. (mentioned in the Amnesty International report on Marian Predică’s death, see paragraph 30 below); to identify other medical documents regarding the victim’s state of health, prior and subsequent to incarceration. The case was remitted to the prosecutor for further investigation. 25. On 17 December 2009, the prosecutor initiated the criminal investigation in rem with respect to the offences listed under section 183 of the Romanian Criminal Code. By two consecutive decisions of 22 February and 1 April 2010 the prosecutor decided to delegate the competent police officers to conduct the criminal investigation in conformity with the courts’ requirements, as stated in their judgments of 20 October 2006 and 12 February 2008 (see paragraphs 18 and 24 above). He also concluded that at the time of the impugned events, Rahova Penitentiary had not had a video surveillance system in place. 26. The prosecutor also mentioned the fact that the Superior Commission for Forensic Medicine had validated the autopsy report of 4 December 2003, adding that: “[...] the trauma could have been produced by hitting with or against ... a hard surface (active blows to the facial area followed by a fall with cranial impact, the fatal lesions having been caused by the counter blow), with the following amendments: considering the type of the traumatic lesions, their morphology and their layout, including on an anterior and posterior plan, the possibility that they could have been sustained solely as the result of a fall during an epileptic seizure can be excluded; the other trauma could have been produced by hitting with or against... hard objects, in the same context as the fatal injuries to the cephalic extremity. No deficiencies in the provision of medical care have been detected.” 27. While delegating the judiciary police to carry out the criminal investigation, the prosecutor also decided that the case should be registered in the archives of the Police Service Homicide Division, under “criminal cases with unidentified perpetrators”. 28. With the exception of the proceedings lodged by him before the domestic courts contesting the prosecutors’ decisions not to indict, the applicant was not involved in the investigation and alleged that he was hence forced to go to considerable lengths to obtain any relevant information regarding the progress of the proceedings. 29. The criminal investigation is still pending. 30. In the report of 11 March 2004 named “Death in suspicious circumstances of Marian Predică”, Amnesty International summarily presented the circumstances of the applicant’s son’s death while in custody. The report also included the statements given to representatives of the NGO by the director of the Penitentiary and by N.N., an alleged acquaintance of Marian Predică. The relevant parts of this report read as follows: “Marian Predica, born on 11 August 1983, was arrested on 20 March 2000 and sentenced to a prison term of one and a half years for stealing car radios and spare wheels [...] According to information from Ion Predică, Marian’s father, on 6 October 2003 at around 8.30am two police officers from Section 23 came to his home and asked him to go urgently to the Rahova Penitentiary. At the Rahova Penitentiary he was told by the doctor that his son had died and that his body was at the Municipal Hospital. He asked the doctor how it had happened and she reportedly replied that Marian Predică had slipped and had a brain concussion [...] On 7 October at around 7.30am Ion Predică went to the Institute of Forensic Medicine (Institutul de Medicină Legală – IML) to inquire about the cause of death of his son and was told that his son’s body had not yet arrived. On the next day Ion Predică returned to the hospital but was unable to obtain any information about the cause of death of his son. At the Hospital Directorate he was told that this information was confidential because Marian Predică had died in detention. Together with his sons, Ion Predică went back to IML where the forensic doctor reportedly told them that on his son’s body there had been signs of injuries suffered as a result of some violent act.[...] On 3 November 2003 a representative of Amnesty International visited Rahova Penitentiary and spoke to the director. [...]When questioned whether Marian Predică’s hair had been shaved off as a disciplinary punishment, the director denied that such punishment is practical in the penitentiary. According to the director, his hair had been shaved in preparation for a brain scan at the Municipal Hospital. When the Amnesty International representative questioned the director why the family had not been notified that Marian Predică had been hospitalized, her reply was that there is no legal obligation to notify them in such circumstances. Their only duty is to provide the medical treatment.[...] Amnesty International’s representative also spoke to N.N. who was arrested together with Marian Predică. They were initially held at Găeşti and then in Jilava. [...]. He is sure that Marian Predică was beaten by the special intervention unit in Rahova after the hearing in the Supreme Court. The special intervention unit – also referred to as the masked unit – reportedly raids cells of detainees and beats anyone who complains. After the hearing on 25 September 2003 N.N. had been playing in the waiting room with a piece of rope when two masked officers handcuffed him and held him by the arms and the neck. He was then returned to prison where he was taken to the barber and had his hair shaved off. At the time of the interview in November 2003, N.N.’s hair was very short. This is reportedly a usual punishment [...]” 31. In a letter of 6 November 2003 sent to the Court in his own case, G.I., a detainee at Rahova Penitentiary and applicant before the Court in application no. 25867/03, described what happened – to his knowledge – in November 2003 in the Penitentiary, as follows: “In November 2003 in this penitentiary, the detainee Predică Marian was brutally beaten and killed [...] by the special intervention forces (mascaţi), who are criminals, beasts with human faces [...] the following witnesses can confirm what I have just stated: M.T.C., T.C., V.L., V. M., P. D. All these witnesses are, together with Predică Marian, parties in the same criminal proceedings”. The parties were invited to submit comments with regard to this statement. 32. In their observations on the merits, the Government expressed their view that the statement could not be included in the present file, in so far as the applicant had never mentioned G.I. or put him forward as a potential witness to be heard in the domestic trial. Subsequently, in their letter of 26 May 2010, the Government informed the Court that the statement had been sent to the Prosecutor’s Office responsible for the criminal investigation, in so far as the circumstances revealed therein should be taken into consideration. 33. The applicant considered that the statement should be included in the present file, as it was “a protest statement sent to the Court”, seen by G.I. as the only authority able to help the victim’s family. In reply to the Government’s argument, the applicant held that he could not have known the names of detainees who had information on his son’s death, and thus had not been able to put their names forward as witnesses; moreover, the identification of potential witnesses was not his duty, but primarily the duty of the State. 34. Bearing in mind the particular circumstances in which the impugned statement was given and submitted by G.I., the Court sees no valid reason why it should not be included in the present file and considered together with all the other documents in the assessment of the present case. 35. Romanian Criminal Code, in its relevant parts, reads as follows: Homicide shall be punished by detention from 15 to 25 years and the loss of certain rights. Should one of the acts in sections 180-182 (hitting or injuring) result in the victim’s death, the penalty shall be imprisonment from five to fifteen years. Subjection to ill-treatment of a person being detained, in detention or in the execution of a security or correctional measure, shall be punished by imprisonment from one to five years. (1) An act deliberately causing a person pain or intense suffering, either physically or mentally, in order to obtain from that person or from a third party information or confessions, to punish him/her for an act committed by him/her or a third party or that he/she or a third party is suspected of having committed, to intimidate or exercise pressure on him/her or on a third party, or for any other reason based on a form of discrimination, regardless of its nature, when such pain or suffering is applied by an agent of public authority or by any other person acting in official capacity or upon instigation or with the express or tacit consent of such persons shall be punished by imprisonment from 2 to 7 years. (2) If the act in para. (1) results in any of the consequences in section 181 or section 182, the penalty shall be imprisonment from 3 to 10 years. (3) Torture that results in the victim’s death shall be punished by life imprisonment or by imprisonment from 15 to 25 years. (4) An attempt to commit the offences in the present section is punishable. (5) No exceptional circumstance, whatever its nature may be, regardless of whether it is a state of war or the threat of war, internal political instability or any other exceptional state, can be invoked to justify torture; the order of the law or command of legitimate authority cannot be invoked either. (6) The acts in para.(1) shall not constitute offences of torture if the pain or suffering are the exclusive result of legal sanctions and are inherent to these sanctions or caused by them.” 36. The provisions of the Romanian Criminal Procedure Code prescribing civil actions lodged within criminal proceedings and the procedure for contesting a prosecutor’s decision not to indict are summarized in the case of Cobzaru v. Romania (no. 48254/99, § 36, 26 July 2007).

dev

001-93400

ENG

NLD

ADMISSIBILITY

GALIC v. THE NETHERLANDS

Inadmissible

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

1. The applicant, Mr Stanislav Galić, is a Serbian national who was born in 1943. He is currently detained in a prison in Germany, serving a life sentence imposed by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (also known as the International Criminal Tribunal for the Former Yugoslavia, hereafter the ICTY). He was represented before the Court by Mr S. Piletta-Zanin, a lawyer practising in Geneva. 2. The facts of the case, as submitted by the applicant and as apparent from documents accessible to the public, may be summarised as follows. 3. On 26 March 1999, the ICTY’s Prosecutor indicted the applicant in the following terms: “THE PROSECUTOR OF THE TRIBUNAL AGAINST STANISLAV GALIC INDICTMENT The Prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under Article 18 of the Statute of the Tribunal charges: STANISLAV GALIC with CRIMES AGAINST HUMANITY and VIOLATIONS OF THE LAWS AND CUSTOMS OF WAR as set forth below: ... GENERAL ALLEGATIONS 6. The Sarajevo Romanija Corps formed a significant part of the VRS [i.e. Vojska Republike Srpske (“Army of the Serb Republic”), Bosnian Serb Army] under the ultimate command of Ratko MLADIC, the Commander of the Main Staff and Radovan KARADZIC, initially President of the Presidency of the Bosnian Serb administration in Bosnia and Herzegovina and, subsequently, as President of the ‘Republika Srpska’ and designated Supreme Commander of its armed forces. 7. By 10 September 1992 the Sarajevo Romanija Corps controlled all the Bosnian Serb territory around Sarajevo, including established confrontation lines and artillery positions. 8. STANISLAV GALIC, during his period as Corps Commander of the Sarajevo Romanija Corps, was in a position of superior authority to approximately 18,000 military personnel, formed into 10 brigades. 9. As Corps Commander of the Sarajevo Romanija Corps, STANISLAV GALIC demonstrated his authority and control over forces comprising and attached to the Sarajevo Romanija Corps, inter alia, by participating in negotiations and the implementation of a heavy weapons total exclusion zone (TEZ), controlling access of UNPROFOR and other UN personnel to territory around Sarajevo and, in particular, heavy weapon sites. 10. STANISLAV GALIC bears individual criminal responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting, in the planning, preparation or execution of the campaign of shelling and sniping against the civilian population of Sarajevo and the acts set forth below by the forces and persons under his command, pursuant to Article 7(1) of the Statute of the Tribunal. 11. STANISLAV GALIC also bears individual criminal responsibility as a Commander of the Sarajevo Romanija Corps, responsible for the conduct of subordinates in respect of whom he was in a position of superior authority. STANISLAV GALIC is responsible for the acts and omissions of his subordinates, knowing, or having reason to know, that the subordinates were about to commit such acts, or had done so, failing to take reasonable steps to prevent such acts, or to punish the perpetrators thereof. By failing to take the actions required of a person in superior authority, STANISLAV GALIC is responsible for the acts and omissions set forth below pursuant to Article 7(3) of the Statute of the Tribunal. ... CHARGES: COUNT 1 (INFLICTION OF TERROR) From about 10 September 1992 to about 10 August 1994, STANISLAV GALIC, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps, conducted a protracted campaign of shelling and sniping upon civilian areas of Sarajevo and upon the civilian population thereby inflicting terror and mental suffering upon its civilian population. By his acts and omissions, STANISLAV GALIC is responsible for: COUNT 1: Violations of the Laws or Customs of War (unlawfully inflicting terror upon civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal. COUNTS 2 to 4 (SNIPING) Between 10 September 1992 and 10 August 1994, STANISLAV GALIC, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps, conducted a coordinated and protracted campaign of sniper attacks upon the civilian population of Sarajevo, killing and wounding a large number of civilians of all ages and both sexes, such attacks by their nature involving the deliberate targeting of civilians with direct fire weapons. Specific instances of these attacks include, by way of representative allegations, those matters set forth in the First Schedule to this indictment. By his acts and omissions, STANISLAV GALIC is responsible for: COUNT 2: Crimes against Humanity (murder) punishable under Article 5(a) of the Statute of the Tribunal. COUNT 3: Crimes against Humanity (inhumane acts-other than murder) punishable under Article 5(i) of the Statute of the Tribunal. COUNT 4: Violations of the Laws or Customs of War (attacks on civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal. COUNTS 5 to 7 (SHELLING) Between 10 September 1992 and 10 August 1994, STANISLAV GALIC, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps, conducted a coordinated and protracted campaign of artillery and mortar shelling onto civilian areas of Sarajevo and upon its civilian population. The campaign of shelling resulted in thousands of civilians being killed or injured. Specific instances of this shelling include, by way of representative allegations, the matters set forth in the Second Schedule to this indictment. By his acts and omissions, STANISLAV GALIC is responsible for: COUNT 5: Crimes against Humanity (murder) punishable under Article 5(a) of the Statute of the Tribunal. COUNT 6: Crimes against Humanity (inhumane acts-other than murder) punishable under Article 5(i) of the Statute of the Tribunal. COUNT 7: Violations of the Laws or Customs of War (attacks on civilians as set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II to the Geneva Conventions of 1949) punishable under Article 3 of the Statute of the Tribunal.” 4. This indictment was confirmed on 24 April 1998 by Judge C. It was kept sealed until the applicant’s arrest. 5. The applicant was arrested by the Stabilisation Force (SFOR) on 20 December 1999 and transferred to the ICTY the following day. 6. On 22 December 1999 the ICTY’s Acting President assigned the applicant’s case to Trial Chamber I. 7. On 29 December 1999 the applicant made his initial appearance in open court, on which occasion he pleaded not guilty to all charges. On the same day the applicant was ordered to be placed in detention on remand until further order. 8. The applicant’s trial opened on 3 December 2001. The Trial Chamber sat in a formation of three judges presided over by Judge O., who had been elected to the ICTY as a permanent judge the previous month. 9. On 3 October 2002, on a motion lodged by the applicant, the Trial Chamber acquitted the applicant of a number of sniping incidents but ordered the trial to continue for the remainder. 10. The trial closed on 9 May 2003. On 5 December 2003 the Trial Chamber gave judgment. By a majority, it found the applicant guilty of Counts 1, 2, 3, 5 and 6, acquitted him of Counts 4 and 7 and sentenced him to a single prison term of twenty years. One of the judges, Judge N., expressed a partly dissenting opinion on conviction and sentence. 11. The applicant appealed against his conviction and sentence. The prosecution appealed against the sentence. 12. On 30 November 2006 the Appeals Chamber gave judgment. It unanimously dismissed the applicant’s appeal. By a majority, it allowed the prosecution’s appeal and increased the sentence to life imprisonment, subject to credit being given for the time already spent in detention. Judge P., the presiding judge, appended a partially dissenting opinion in which he expressed the view that the case ought to have been remitted for a reassessment of the sentence. Another judge, Judge M., appended a dissenting opinion to the effect that the sentence imposed by the Trial Chamber was not so low that it could be considered out of keeping with the ICTY’s sentencing practice. A third judge, Judge Sc., dissented with regard to the applicant’s conviction on the first count of the indictment. 13. On 10 October 2002 the ICTY’s Prosecutor presented an amended indictment against a different accused, Mr Ratko Mladić. This indictment included the following passages: “7. Shortly after BiH [i.e. Bosnia and Herzegovina] was internationally recognised as an independent state on 6 April 1992, hostilities broke out in Sarajevo, marking the beginning of a conflict within the city, which would last until 1995. Even before the conflict began, armed forces occupied strategic positions in and around Sarajevo. The city was subsequently subjected to blockade, bombardment and sniper attacks from these positions. From May 1992, Bosnian Serb Forces under the command and control of General Ratko MLADIC used shelling and sniping to target civilian areas of the city and its civilian population and institutions, killing and wounding civilians, and thereby also inflicting terror upon the civilian population. Much of the bombardment and sniping was from positions in the hills around and overlooking Sarajevo, from which the attackers had a commanding view of the city, its population and institutions.” and “20. General Ratko MLADIC is individually criminally responsible pursuant to Article 7(1) of the Statute of the Tribunal for the crimes referred to in Articles 3, 4, and 5 of the Statute of the Tribunal as alleged in this indictment, which he planned, instigated, ordered, committed, or in whose planning, preparation or execution he otherwise aided and abetted. By using the word ‘committed’ in this indictment, the Prosecutor does not suggest that the accused physically committed any of the crimes charged personally. ‘Committed’ in this indictment includes participation in a joint criminal enterprise. 21. The objective of the joint criminal enterprise within BiH was the elimination or permanent removal, by force or other means, of Bosnian Muslim, Bosnian Croat, or other non-Serb inhabitants from large areas of BiH through the commission of crimes which are punishable under Articles 3, 4, and 5 of the Statute of the Tribunal. General Ratko MLADIC participated in the joint criminal enterprise as a co-perpetrator and/or an aider and abettor. ... 24. Numerous individuals participated in this joint criminal enterprise. Each participant, by acts or omissions, significantly contributed to the overall objective of the enterprise. General Ratko MLADIC worked in concert with or through other members of the joint criminal enterprise, including ... General Stanislav GALIC [the applicant] ... 25. As Commander of the Main Staff of the VRS, General Ratko MLADIC, acting individually and in concert with other members of the joint criminal enterprise, participated in the joint criminal enterprise from no later than 12 May 1992 until at least 22 December 1996 in the following ways: (a) Planning, preparing, facilitating, or executing a campaign of persecutions, which included acts of genocide, within BiH, by establishing control of the municipalities listed in Paragraph 36 of the indictment [amongst others, Vogošća]; attacking and destroying non-Serb towns and villages, as well as looting, destroying, and/or appropriating residential, commercial and religious properties in the municipalities; killing and terrorising the non-Serb inhabitants, and submitting them to cruel and inhumane treatment and conditions, including physical, psychological and sexual abuse, often in detention facilities; using non-Serbs for forced labour, including at front lines, and as human shields; imposing restrictive and discriminatory measures on the non-Serb population; and separating, deporting, and permanently removing non-Serbs who did not subjugate themselves to Serb authorities; (b) Planning, preparing, facilitating, or executing a protracted military campaign of artillery and mortar shelling and sniping into civilian areas of Sarajevo and upon its civilian population and institutions, killing and wounding civilians, and thereby inflicting terror upon its civilian population; ...” and “Count 1: GENOCIDE, punishable under Articles 4(3)(a), 7(1) and 7(3) of the Statute of the Tribunal; Count 2: COMPLICITY IN GENOCIDE, punishable under Articles 4(3)(e), 7(1) and 7(3) of the Statute of the Tribunal.” 14. On 8 November 2002 Judge O. gave an order granting the prosecution leave to file the amended indictment and confirming the indictment (Article 19 of The ICTY Statute, see below). 15. On 23 January 2003 the applicant challenged Judge O.’s involvement in his own trial. The applicant argued that according to the indictment against Mr Mladić the acts of the “joint criminal enterprise” mentioned in paragraph 24 had included murders amounting to “genocide” committed in the municipality of Vogošća, an area under the applicant’s territorial responsibility, but that this crime was not included on the applicant’s indictment. “Genocide” being a crime more serious than any with which the applicant had been charged, the confirmation of this indictment by Judge O. reflected on the latter’s part a preconception that the applicant’s guilt was great indeed. 16. On 3 February 2003 the challenge was dismissed by Judge L., who found that the confirmation of the amended indictment reflected no more than a provisional view of the validity of the charges against Mr Mladić and could not be seen as prejudicial to his impartiality vis-à-vis the applicant, who moreover continued to benefit from the presumption of innocence. 17. On 25 May 2007 the applicant, through a firm of lawyers in Belgrade, lodged a communication with the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (“the Optional Protocol”). The complaints therein contained may be summarised as follows: Under Article 5 of the Universal Declaration of Human Rights (“the Universal Declaration”) and Article 7 and 10 of the International Covenant on Civil and Political Rights (“the Covenant”), that he had been arrested on a sealed indictment of which he had no knowledge, and was subjected to physical violence and humiliating treatment in the process; Under Article 9 §§ 3 and 4 of the Covenant, that the ICTY’s Rules of Procedure and Evidence denied him the possibility to appeal against the decision to detain him on remand; Under Article 14 § 3 (c) of the Covenant, that the length of the proceedings had been excessive; Under Articles 10 and 11 § 1 of the Universal Declaration and Article 14 §§ 1 and 3 (d) of the Covenant, that he was compelled to give evidence himself before the evidence of the defence experts, or risk having to forgo the opportunity of giving evidence; Without naming any provision of either document, that the Appeals Chamber had applied incorrect substantive standards when sentencing him to life imprisonment; Under Article 11 § 2 of the Universal Declaration and Article 15 § 1 of the Covenant, that since the dissenting opinions of one Trial Chamber judge and one of the dissenting Appeals Chamber judges showed that reasonable doubt remained as to the applicant’s guilt in relation to part of the crimes mentioned in the indictment and the law of the former Socialist Federative Republic of Yugoslavia provided for a twenty-year maximum sentence for the remaining crimes, the life sentence imposed by the Appeals Chamber was unlawful; Under Article 14 § 5 of the Covenant, that the Appeals Chamber ought not to have increased his prison sentence from twenty years to life without remitting the case to the Trial Chamber. The latter lacked jurisdiction to establish facts for itself and had moreover deprived the applicant of an appeal against the life sentence. The applicant asked the Human Rights Committee to order a full retrial by the ICTY’s Trial Chamber. 18. The applicant has submitted a photocopy of a letter from the United Nations High Commissioner for Human Rights dated 31 May 2007 and bearing an illegible signature in the name of the Petitions Unit. This letter, which does not give the name or address of the person or persons to whom it is addressed, is stated by the applicant to be the Human Rights Committee’s response to the above communication. It contains the following paragraph: “After careful consideration of the contents of your petition (communication/complaint), received on 30 May 2007, we sincerely regret having to inform you that the United Nations Office of the High Commissioner for Human Rights is not in a position to assist you in the matter you raise, for the reasons indicated on the back of this letter. Accordingly, your petition is being returned to you.” 19. A second photocopy, understood by the Court to be of the reverse side of the letter, shows a box ticked in front of the following pre-printed sentence: “The Human Rights Committee cannot examine petitions alleging violations of the International Covenant on Civil and Political Rights (ICCPR) unless the State is also a party to the Optional Protocol (OP). – Italy [filled in by hand] – is not a State party to the Optional Protocol.” 20. The Kingdom of the Netherlands ratified the Charter of the United Nations on 10 December 1945. As relevant to the present case, it provides as follows: We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, And for these ends to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, Have resolved to combine our efforts to accomplish these aims Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations. The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends. The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. 1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. ... The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes. ... The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members. The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council. ... In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. 21. The ICTY was established by United Nations Security Council Resolution S/RES/827 of 25 May 1993, which reads as follows: “The Security Council, Reaffirming its resolutions 713 (1991) of 25 September 1991 and all subsequent relevant resolutions, Having considered the report of the Secretary-General (S/25704 and Add.1) pursuant to paragraph 2 of resolution 808 (1993), Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ‘ethnic cleansing’, including for the acquisition and the holding of territory, Determining that this situation continues to constitute a threat to international peace and security, Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace, Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed, Noting in this regard the recommendation by the Co-Chairmen of the Steering Committee of the International Conference on the Former Yugoslavia for the establishment of such a tribunal (S/25221), Reaffirming in this regard its decision in resolution 808 (1993) that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, Considering that, pending the appointment of the Prosecutor of the International Tribunal, the Commission of Experts established pursuant to resolution 780 (1992) should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report (S/25274), Acting under Chapter VII of the Charter of the United Nations, Approves the report of the Secretary-General; Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above-mentioned report; Requests the Secretary-General to submit to the judges of the International Tribunal, upon their election, any suggestions received from States for the rules of procedure and evidence called for in Article 15 of the Statute of the International Tribunal; Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute; Urges States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel; Decides that the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council, and that the International Tribunal may sit elsewhere when it considers it necessary for the efficient exercise of its functions; Decides also that the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law; Requests the Secretary-General to implement urgently the present resolution and in particular to make practical arrangements for the effective functioning of the International Tribunal at the earliest time and to report periodically to the Council; Decides to remain actively seized of the matter.” 22. Annexed to the resolution was the “Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”. Elements of the Statute relevant to the case before the Court are the following: 1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. ... 1. All persons shall be equal before the International Tribunal. 2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute [protection of victims and witnesses]. 3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute. 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal; (g) not to be compelled to testify against himself or to confess guilt. 1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice. 2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers. 1. The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply to the International Tribunal, the judges, the Prosecutor and his staff, and the Registrar and his staff. 2. The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law. 3. The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under articles V and VII of the Convention referred to in paragraph 1 of this article. 4. Other persons, including the accused, required at the seat of the International Tribunal shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal. The International Tribunal shall have its seat at The Hague.” 23. As relevant to the case before the Court, the Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991 (“Headquarters Agreement”) reads as follows: “The United Nations and the Kingdom of the Netherlands, Whereas the Security Council acting under Chapter VII of the Charter of the United Nations decided, by paragraph 1 of its resolution 808 (1993) of 22 February 1993, inter alia ‘that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’; Whereas the International Tribunal is established as a subsidiary organ within the terms of Article 29 of the Charter of the United Nations; Whereas the Security Council, in paragraph 6 of its resolution 827 (1993) of 25 May 1993 further inter alia decided that ‘the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council’; Whereas the Statute of the International Tribunal, in its Article 31, provides that ‘the International Tribunal shall have its seat at The Hague’; Whereas the United Nations and the Kingdom of the Netherlands wish to conclude an Agreement regulating matters arising from the establishment and necessary for the proper functioning of the International Tribunal in the Kingdom of the Netherlands; Have agreed as follows. ... This Agreement shall regulate matters relating to or arising out of the establishment and the proper functioning of the Tribunal in the Kingdom of the Netherlands. The General Convention and the Vienna Convention shall be applicable mutatis mutandis to the Tribunal, its property, funds and assets, to the premises of the Tribunal, to the Judges, the Prosecutor and the Registrar, the officials of the Tribunal and persons performing missions for the Tribunal.” The expressions “General Convention” and “Vienna Convention” refer to the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly of the United Nations on 13 February 1946 and the Vienna Convention on Diplomatic Relations of 18 April 1961, respectively (Article I (u) and (v) of the Headquarters Agreement). 1. The premises of the Tribunal shall be under the control and authority of the Tribunal, as provided in this Agreement. 2. Except as otherwise provided in this Agreement or in the General Convention, the laws and regulations of the host country shall apply on the premises of the Tribunal. 3. The Tribunal shall have the power to make regulations operative on the premises of the Tribunal for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions. The Tribunal shall promptly inform the competent authorities of regulations thus enacted in accordance with this paragraph. No law or regulation of the host country which is inconsistent with a regulation of the Tribunal shall, to the extent of such inconsistency, be applicable within the premises of the Tribunal. 4. Any dispute between the Tribunal and the host country, as to whether a regulation of the Tribunal is authorised by this Article, or as to whether a law or regulation of the host country is inconsistent with any regulation of the Tribunal authorised by this Article, shall be promptly settled by the procedure set out in Article XXVIII, paragraph 2 of this Agreement [i.e. arbitration]. Pending such settlement, the regulation of the Tribunal shall apply and the law or regulation of the host country shall be inapplicable on the premises of the Tribunal to the extent that the Tribunal claims it to be inconsistent with its regulation. 1. The host country shall not exercise its criminal jurisdiction over persons present in its territory, who are to be or have been transferred as a suspect or an accused to the premises of the Tribunal pursuant to a request or an order of the Tribunal, in respect of acts, omissions or convictions prior to their entry into the territory of the host country. 2. The immunity provided for in this Article shall cease when the person, having been acquitted or otherwise released by the Tribunal and having had for a period of fifteen consecutive days from the date of his or her release an opportunity of leaving, has nevertheless remained in the territory of the host country, or having left it, has returned.” 24. As relevant to the case before the Court, the ICTY’s Rules of Procedure and Evidence provide as follows: (A) A Judge may not sit on a trial or appeal in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality. He shall in any such circumstance withdraw, and the President shall assign another Judge to sit in his place. (B) Any party may apply to the Presiding Judge of a Chamber for the disqualification and withdrawal of a Judge of that Chamber from a trial or appeal upon the above grounds. The Presiding Judge shall confer with the Judge in question, and if necessary the Bureau shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge. (C) The Judge of the Trial Chamber who reviews an indictment against an accused, pursuant to Article 19 of the Statute and Rules 47 or 61, shall not sit as a member of the Trial Chamber for the trial of that accused. ...” 25. The member States of the North Atlantic Treaty Organisation (NATO) have entered into an agreement (Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, London, 19 June 1951, as supplemented by the Supplementary Agreement of 1959 (subsequently amended in 1971, 1981 and 1993) – “NATO Status of Forces Agreement”). It regulates, among other things, criminal jurisdiction over members of their armed forces serving on each other’s territory. Article VII of this Agreement provides as follows: “1. Subject to the provisions of this Article, a. the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State; b. the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State. 2. a. The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State. b. The authorities of the receiving State shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offences, including offences relating to the security of that State, punishable by its law but not by the law of the sending state. c. For the purposes of this paragraph and of paragraph 3 of this Article a security offence against a State shall include: i. treason against the State; ii. sabotage, espionage or violation of any law relating to official secrets of that State, or secrets relating to the national defence of that State. 3. In case where the right to exercise jurisdiction is concurrent the following rules shall apply: a. The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to i. offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent; ii. offences arising out of any act or omission done in the performance of official duty. b. In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction. c. If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other state considers such waiver to be of particular importance. 4. The foregoing provisions of this Article shall not imply any right for the military authorities of the sending State to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving State, unless they are members of the force of the sending State. 5. a. The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions. b. The authorities of the receiving State shall notify promptly the military authorities of the sending State of the arrest of any member of a force or civilian component or a dependent. c. The custody of an accused member of a force or civilian component over whom the receiving state is to exercise jurisdiction shall, if he is in the hands of the sending State, remain with that State until he is charged by the receiving State. 6. a. The authorities of the receiving and sending States shall assist each other in the carrying out of all necessary investigations into offences, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offence. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them. b. The authorities of the Contracting parties shall notify one another of the disposition of all cases in which there are concurrent rights to exercise jurisdiction. 7. a. A death sentence shall not be carried out in the receiving State by the authorities of the sending State if the legislation of the receiving state does not provide for such punishment in a similar case. b. The authorities of the receiving State shall give sympathetic consideration to a request from the authorities of the sending State for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending State under the provision of this Article within the territory of the receiving State. 8. Where an accused has been tried in accordance with the provisions of this Article by the authorities of one Contracting Party and has been acquitted, or has been convicted and is serving, or has served, his sentence or has been pardoned, he may not be tried again for the same offence within the same territory by the authorities of another Contracting Party. However, nothing in this paragraph shall prevent the military authorities of the sending State from trying a member of its force for any violation of rules of discipline arising from an act or omission which constituted an offence for which he was tried by the authorities of another Contracting Party. 9. Whenever a member of a force or civilian component of a dependent is prosecuted under the jurisdiction of a receiving State he shall be entitled: a. to a prompt and speedy trial; b. to be informed, in advance of trial, of the specific charge or charges made against him; c. to be confronted with the witnesses against him; d. to have compulsory process for obtaining witnesses in his favour, if they are within the jurisdiction of the receiving State; e. to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving State; f. if he considers it necessary, to have the services of a competent interpreter; and g. to communicate with a representative of the Government of the sending State and when the rules of the court permit, to have such a representative present at his trial. 10. a. Regularly constituted military units or formations of a force shall have the right to police any camps, establishment or other premises which they occupy as the result of an agreement with the receiving State. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises. b. Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving State and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force. 11. Each Contracting Party shall seek such legislation as it deems necessary to ensure the adequate security and protection within its territory of installations, equipment, property, records and official information of other Contracting Parties, and the punishment of persons who may contravene laws enacted for that purpose.” 26. An additional agreement concluded in 1995 (Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces, Brussels, 19 June 1995) extends the territorial application of this provision to non-NATO member States participating in the Partnership for Peace. 27. On 18 September 1998 the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands, acting in pursuance of a resolution of the Security Council under Chapter VII of the United Nations Charter (Resolution 1192 of 27 August 1998), concluded an agreement under which the Netherlands Government undertook to host a Scottish Court for the purpose and the duration of a trial under Scots law and procedure of two Libyan nationals accused of bombing a civilian passenger aircraft over Lockerbie, Scotland, in 1988 (Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish trial in the Netherlands (with annexes), [2002] 2062 United Nations Treaty Series – UNTS – pp. 81 et seq.). The Scottish Court in the Netherlands existed until 2002.

dev

001-23863

ENG

GBR

ADMISSIBILITY

SHANNON v. the UNITED KINGDOM

Inadmissible

Matti Pellonpää;Nicolas Bratza

The applicant, Mr John James Shannon, is a United Kingdom national, who was born in 1971 and lives in London. He is represented before the Court by Mr Andrew Parker, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is an actor and at the relevant time starred in “London's Burning”, a popular British drama series. In or around the end of July 1997, M, a journalist for a tabloid newspaper called “News of the World”, received a telephone call from an informant stating that the applicant had been supplying drugs in 'show business' circles. M's assistant approached the applicant's agent to offer the applicant employment as a celebrity guest at the opening of a night-club in Dubai. A meeting was arranged at the Savoy Hotel on 13 August 1997 and audio and video surveillance equipment was placed in the hotel room in order to record events. M posed as a sheikh with a number of other newspaper staff posing as his entourage and the plan was to steer the conversation towards the possibility of the applicant supplying drugs to the sheikh. During the meeting, M raised the topic of drugs and extensive conversation ensued about cocaine use. M then said that he required cocaine for a party in Dubai and the applicant stated that he could supply the cocaine. He reconfirmed this offer several times. M's assistant, posing as the sheikh's personal assistant, asked the applicant whether he could supply cannabis for her that evening. The applicant responded affirmatively and stated that he could go and get a sample. The party then went to dinner where the conversation was not recorded. According to M, the applicant used M's mobile telephone to arrange to collect samples of cocaine and cannabis. The applicant states that he had difficulty in obtaining the drugs and first asked his agent and then a friend. He finally located the drugs through someone that his friend knew. The applicant's agent later gave evidence that the applicant had telephoned him during dinner in an excited state saying that the sheikh wanted him to get some cocaine. The applicant's agent asked the applicant if he knew what he was doing and made it clear that he would not get involved. The applicant got angry and stated that he would arrange it himself. M gave the applicant GBP 300 for the samples and the applicant and his friend went to collect the drugs from the dealer with a car and driver provided by M. The applicant then returned to the hotel and gave the drugs to M. He left without any arrangement being made for a further meeting or further supply of drugs. On 24 August 1997 a lengthy article by M appeared in the 'News of the World' under the front page headline of “London's Burning Star is Cocaine Dealer”. The article detailed the events of 13 August 1997 and was largely based on the recorded material. At the end of the article, M offered to make the material available to the police. M had previously carried out operations of this type before and later stated (during the criminal proceedings described below) that his actions had led to 89 successful criminal convictions. The police subsequently took over the investigative material from the newspaper and arrested the applicant on 29 August 1997. The police took witness statements and analysed the drugs provided but relied on the evidence collected by the newspaper. The applicant admitted that he was formerly a cocaine user but stated that he no longer used the drug. He did not have any prior criminal record. On 26 February 2000 the applicant was charged with one count of supplying a Class A controlled drug, one count of supplying a Class B controlled drug and one count of offering to supply a Class A controlled drug (the offer to provide cocaine for the supposed sheikh's party). M refused from the outset to disclose the identity of his informant to the prosecution or the court relying on section 10 of the Contempt of Court Act 1981 which provides, as relevant, that the court cannot require the disclosure of the source of information in a publication unless the interests of justice require. Before the trial began, the applicant applied under section 78 of the Police and Criminal Evidence Act (PACE) 1984 for the exclusion of the evidence obtained by M on the grounds that it had been obtained by entrapment and therefore its admission would adversely affect the fairness of the trial. Following a voire dire, the trial judge refused the application on 3 November 1998 on the grounds that the applicant was not entrapped since he volunteered, offered and agreed to supply drugs without being subject to pressure. Further, even if the applicant had been entrapped, that could not constitute a defence in English law and the admission of the evidence would not adversely affect the fairness of the proceedings under the terms of section 78 of PACE. Following the ruling of 3 November 1998, the applicant pleaded guilty to all three charges. However, he later changed his plea to not guilty and a trial was held from 19 April to 5 May 1999. The applicant requested the prosecution to disclose any material in its possession regarding the 'News of the World' operation and the original informant, but no further disclosure was made. The applicant then made an oral application for an order requiring M to disclose the identity of his informant on the basis that this knowledge was necessary for the defence to be able to put the best case forward for the exclusion of prosecution evidence according to section 78 of PACE. The applicant believed that the informant may have been someone with a personal grudge against the applicant and therefore the motive for the exposé could be called into question. The trial judge ruled that it was not relevant or necessary for the identity of the informant to be disclosed on the grounds that there was agreed evidence of the meeting between the applicant and M and that the informant had played no further role in events after the initial telephone conversation with M. The trial judge therefore concluded that the non-disclosure of the identity of the informant did not affect the fairness of the trial as a whole. On 5 May 1999 the applicant was convicted of supplying a Class A and a Class B controlled drug but was acquitted of the third charge of offering to supply. On 26 May 1999 the applicant was sentenced to 9 months' imprisonment on each count, the sentences to run concurrently. A confiscation order was also made for GBP 300 and the applicant was ordered to pay GBP 3000 towards the costs of the prosecution. The applicant applied for leave to appeal on the basis that the trial judge erred in refusing to order the disclosure of the identity of M's informant and in refusing to exclude the prosecution evidence according to common law or section 78 of PACE. The application for leave to appeal was refused by a single judge of the Court of Appeal but his renewed leave application was granted by the full Court of Appeal on 12 May 2000 after an oral hearing. The Court of Appeal dismissed the applicant's appeal on 14 September 2000 on the grounds that the trial judge had not erred in the two rulings. The Court of Appeal agreed that the trial judge was entitled to refuse to order the disclosure of the identity of M's informant since it was not necessary in order to enable the applicant to put forward his defence. The court stated that the applicant's argument that the newspaper may have acted for 'grudge' reasons was “an insubstantial and insufficient basis on which to order immediate disclosure of the identity of the informant ...”. After reviewing the authorities, the Court of Appeal concluded that the fact of entrapment or enticement would not itself be sufficient to require exclusion of the evidence under section 78 but rather that evidence gained by entrapment would only be excluded if its admission adversely affected the procedural fairness of the trial. The court considered that: “... the ultimate question is not the broad one: is the bringing of proceedings fair (in the sense of appropriate) in entrapment cases. It is whether the fairness of the proceedings will be adversely affected by admitting the evidence of the agent provocateur or evidence which is available as the result of his action or activities. So, for instance, if there is good reason to question the credibility of evidence given by an agent provocateur, or which casts doubt on the reliability of other evidence procured by or resulting from his actions, and that question is not susceptible of being properly or fairly resolved in the course of the proceedings from available, admissible and 'untainted' evidence, then the judge may readily conclude that such evidence should be excluded. If on the other hand, the unfairness complained of is no more than the visceral reaction that it is in principle unfair as a matter of policy, or wrong as a matter of law, for a person to be prosecuted for a crime which he would not have committed without the incitement or encouragement of others, then that is not itself sufficient, unless the behaviour of the police (or someone acting on behalf of or in league with the police) and/or the prosecuting authority has been such as to justify a stay on grounds of abuse of process”. The Court of Appeal also examined this Court's judgment in Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports 1998-IV) but did not interpret the case as authority for the proposition that any incitement or instigation of a crime by an agent provocateur rendered any trial by definition “unfair”. In the view of the Court of Appeal, the statement in that judgment to the effect that the intervention by the police and the use of the evidence so obtained “meant that, right from the outset, the applicant was definitively deprived of a fair trial” was to be read in its context, as the Court's conclusion on the facts and circumstances of the particular case. If it was not so read, it was not clear how the statement was to be reconciled with the Court's observation that the admissibility of evidence was primarily a matter for regulation by national law and that as a general rule it was for national courts to assess the evidence before them. It was further noted that the judgment in the Teixeira case was “specifically directed to the actions of police officers and the safeguards (in the form of judicial controls) properly to be applied to them in the course of their investigations as agents of the State” and made clear that the line was to be drawn at the point of actual incitement. In the present case, the trial judge (who was in any event not dealing with the activities of the police) had correctly found that the evidence fell short of establishing actual incitement or instigation of the offences concerned. In any event, the Court of Appeal was satisfied that although the applicant was encouraged in a broad sense by the setting and opportunity presented, he voluntarily and readily applied himself to the trick by volunteering to supply the drugs and therefore, there was no entrapment. The court further noted that: “... by reason of the appellant's obvious familiarity with the current price of cocaine and his ready advice as to obtaining it in the quantity and to the quality required, he displayed a familiarity with the dealing scene which itself suggested a predisposition to be part of it”. The court pointed out that what was said or done by the newspaper staff at various points may have amounted to enticement but, even so, the applicant had a clear opportunity to withdraw from any enticement and the admission of the evidence did not have an adverse effect on the procedural fairness of the trial. In this regard, the court noted that the telephone call made by the applicant to his agent during dinner showed that: “...whatever the truth as to who first raised the question of drugs supply during dinner, the appellant remained eager rather than reluctant to take advantage of the opportunity with which he was presented”. The Court of Appeal noted that the trial judge imposed a lenient sentence “having taken into account in the [applicant's] favour the full circumstances in which the offences were committed”. The Royal Commission on Police Powers 1928 (Cmd. 3297) defined an “agent provocateur” as: “a person who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds to inform against him in respect of such an offence”. Beyond this statement, there is no clear definition of entrapment in English law but the key factor appears to be acts or words amounting to enticement to commit an offence followed by the passing of information to the police. The principal authorities on entrapment have concentrated largely on entrapment by law enforcement officers but the domestic courts have so far applied the same principles to cases of private entrapment, that is, entrapment by persons who are not agents of the State. The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law (R. v. Sang [1980] Appeal Cases p.402, House of Lords judgment). There are, however, two ways in which it is possible to prevent evidence obtained by entrapment from forming the basis of criminal proceedings. First, a trial judge has a discretion at common law to order a stay of the prosecution on the grounds of abuse of process where it appears that evidence was obtained by entrapment, as the House of Lords affirmed in R. v. Loosely; Attorney-General's Reference (No. 3 of 2000) ([2001] UKHL 53), a judgment which followed and approved the case-law as it stood at the time of the applicant's trial, including the judgment of the House of Lords in R. v. Latif ([1996] vol. 1 Weekly Law Reports p.104). In Loosely, Lord Nicholls of Birkenhead explained: “My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen”. Similarly, in Nottingham City Council v. Amin ([2000] 1 Cr.App.R. 426 at p.431), Lord Chief Justice Bingham stated that domestic courts: “recognised as deeply offensive to ordinary notions of fairness if a defendant were to be convicted and punished for committing a crime which he had only committed because he had been incited, instigated, persuaded, pressurised or wheedled into committing it by a law enforcement officer. On the other hand, it has been recognised that law enforcement agencies have a general duty to the public to enforce the law and it has been regarded as unobjectionable if a law enforcement officer gives a defendant an opportunity to break the law, of which the defendant freely takes advantage, in circumstances where it appears that the defendant would have behaved in the same way if the opportunity had been offered by anyone else”. In Looseley, their Lordships agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “state created crime”. In each case it was for the judge, having regard to all the circumstances, to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into dispute. The court stated that the police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing. In the cases cited above, the courts were concerned with allegations of an abuse of power by agents of the State. The second way in which evidence obtained by entrapment may be excluded from criminal proceedings is under section 78 of the Police and Criminal Evidence Act 1984 which provides as relevant: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, and including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” In Loosely (cited above), the House of Lords stated that courts may use section 78 to exclude evidence obtained by an undercover police officer where, inter alia, the defendant would not have committed the offence without the police incitement. This confirmed the position set out by the Court of Appeal in R. v. Smurthwaite; R. v. Gill ((1994) vol. 98 Criminal Appeal Reports p. 437) that section 78 did not change the rule that while entrapment or the use of an agent provocateur does not constitute a defence in English law, evidence obtained from entrapment might in appropriate cases be excluded under the terms of that section. In the Court of Appeal judgment in Loosely, Lord Justice Roch stated that: “if an accused person's involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence, or by that person being trapped into committing the offence by a law enforcement officer, then the evidence of the law enforcement officer should be excluded by the trial judge exercising his power under section 78 of the 1984 Act”. As regards the effect of Article 6 of the Convention on the domestic law on entrapment, in Nottingham City Council v. Amin (cited above), the Divisional Court considered the judgment in Teixeira de Castro and concluded that Article 6 did not provide a ground for the exclusion of evidence of an undercover officer who had merely afforded an accused the opportunity to commit an offence without exerting any pressure upon him to do so. In Loosely (cited above), the House of Lords considered that there was no appreciable difference between the requirements of Article 6 of the Convention and current English law. The domestic courts have not so far drawn a clear distinction between entrapment by police officers and entrapment by private persons including journalists. In R. v. Morley and Hutton ((1994) Crim.L.R. 919, a journalist bought counterfeit currency from the appellants and then handed the evidence to police. In upholding the trial judge's decision not to exclude the evidence under section 78 of PACE, Lord Taylor CJ stated that: “Although one might dislike the activities of certain informants or journalists, the criterion for admissibility did not depend on this or that motive of a newspaper to sell a story or make money. It was clear that there was no defence in English law of entrapment, and it made no difference whether an undercover police officer or a journalist was involved. The question under section 78 of the Police and Criminal Evidence Act was one of fairness.” In R. v. Tonnessen ((1998) 2 Cr.App.R.(S.) 328), the Court of Appeal indicated that the fact of entrapment may be relevant to the sentence imposed. In that case, journalists approached the appellant and requested her to obtain heroin on behalf of the sheikh for whom they worked. The court stated: “We cannot ignore the fact that the appellant was set up to commit the offence. She was tempted by the journalists to obtain and to supply the drug to them ... The element of entrapment by journalists [should have been] properly reflected in the sentence that was imposed”. A case which was decided after that of the present applicant departed from previous cases in suggesting that a distinction should be drawn between entrapment by law enforcement officials and entrapment by journalists. In R. v. Hardwicke and Thwaites ((2001) Crim.L.R. 218), the appellants were approached by a journalist and invited to meet his employers, two 'wealthy Arabs', and supplied cocaine during the meeting. The appellants submitted that the proceedings should have been stayed for abuse of process. In dismissing the appeals, the Court of Appeal stated: “... it is of some importance to note that what the court seeks not to condone is “malpractice by law enforcement agencies” which “would undermine public confidence in the criminal justice system and bring it into disrepute”. Obviously that is not a consideration which applies with anything like the same force when the investigator allegedly guilty of malpractice is outside the criminal justice system altogether ... ... [The trial judge] made one discernible error favourable to the defence in that he seems to have accepted that commercial lawlessness and executive lawlessness should be treated in the same way ... that is not correct ...”. The Court of Appeal therefore indicated that a more flexible test for abuse of process would be applied to entrapment by journalists (“commercial lawlessness”) than to entrapment by law enforcement officers (“executive lawlessness”). This approach conforms to the distinction drawn by Lord Justice Auld in R v. Chalkley and Jeffries ((1998) 2 Cr.App.R. 69) between exclusion under section 78 and abuse of process, in which he stated that the former was concerned merely with “the fairness of the trial” while the latter had the partial function of “discouraging abuse of power” and “the marking of disapproval of the prosecution's breach”.

dev

001-97569

ENG

POL

ADMISSIBILITY

KUDEREWSKA AND KUDEREWSKI v. POLAND

Inadmissible

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

The applicants, Ms Barbara Kuderewska and Mr Stanisław Kuderewski, were born in 1957 and 1961 and live in Coquitlam and Vancouver, Canada, respectively. They were represented before the Court by Ms G. Nowicka, a lawyer practising in Ontario, Canada and in Gdańsk, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 October 1968 the Gdańsk Regional National Council gave an expropriation decision and took over a plot of land (no. 98/25 which belonged to the applicants' predecessor in title. Later on, the plot in question was divided into four plots (nos. 219/29, 220/29, 222/29 and 229/29). On 13 September 1973 the Gdańsk Regional National Council gave an expropriation decision and took over another plot of land (no. 99/25). Later on, that plot was divided into four plots (nos. 132/25, 133/25, 135/25 and 136/25). On 4 June 1975 the applicants' predecessor in title sold another plot (no. 147/02) to the State Treasury. On 25 August 1975 the applicants' predecessor in title sold two other plots (nos. 145/25 and 137/25) to the State Treasury. On a later date the applicants' mother was declared as a legal successor of the abovementioned plots. In 1989 the domestic authorities abandoned the land development plans for which the plots in question had been expropriated. On 27 June 1990 the applicants' mother lodged a request with the Gdynia Municipality Office for restitution of the plots nos. 137/25 and 145/25. On a later unknown date the case was transferred to the Gdynia District Office. On 10 September 1992 the applicants' mother repeated her request for restitution in respect of all plots which had been expropriated in the 1960s and 1970s. On 28 August 1993 the Head of the Gdynia District Office granted her request in respect of the plot no. 145/25. On 17 January 1997 the Head of the Gdynia District Office refused her request in respect of the plots nos. 98/25, 147/02 and 99/25. On 11 December 1997 the Gdańsk Governor upheld this decision. On 23 March 2000 the Supreme Administrative Court quashed both decisions in respect of the plot no. 99/25 and dismissed the remainder of her appeal (in respect of the plots nos. 98/25 and 147/02). On 28 June 2000, after the delivery of the judgment of the Supreme Administrative Court, the applicants' mother repeated her request for recovery of her plot no. 99/25 (at that time nos. 132/25, 133/25, 135/25 and 136/25). On 14 August 2001 the Gdynia Mayor gave a decision whereby it divided the plot no. 135/25 into two separate plots (nos. 251/25 and 252/25). On 19 December 2001 the Gdynia Mayor held an administrative hearing in respect of the plots nos. 133/25 and 135/25. On 18 September 2003 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdynia Mayor. On 3 December 2003 the Gdańsk Governor dismissed her complaint finding that the Gdynia Mayor had properly informed her in July 2003 about the delay in the proceedings caused by difficulties in appointing an expert with a view to estimating the value of the plots. On 7 December 2004 the applicants' mother withdrew her complaint to the Supreme Administrative Court about the inactivity of the administrative authorities. On 30 November 2004 the Gdańsk Governor disqualified the Gdynia Mayor from dealing with the case and transferred it to the Gdańsk Mayor. On 12 September 2005 the applicants' mother lodged a complaint with the Gdańsk Regional Administrative Court about inactivity on the part of the Gdańsk Mayor. On 1 December 2005 the court declared her complaint inadmissible since had failed to lodge, first, a hierarchical complaint. On 29 September 2005 the Gdańsk Mayor informed the applicants' mother about further delay in the proceedings and that they would end in October 2005. On 8 February 2006 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdańsk Mayor. In reply, on 21 March 2006 the Gdańsk Governor ordered that a decision should be given within 30 days. On 9 March 2006 the Gdańsk Mayor stayed the proceedings in respect of the plots nos.133/25, 251/25 and 252/25. On 24 April 2006 the Gdańsk Governor quashed the abovementioned decision. On 21 March 2006 the Gdańsk Governor ordered the Gdańsk Mayor to issue a decision on the merits within one month from the date of his decision. On 12 October 2006 the Gdańsk Mayor decided to restore the plots nos. 133/25 and 136/25 to the applicants' mother and refused the request in respect of the plot no. 252/25. On 5 December 2006 the Gdańsk Governor quashed the abovementioned decision and remitted the case. On 9 March 2007 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdańsk Mayor. On 23 March 2007 the Gdańsk Governor dismissed her complaint, finding no inactivity on the Mayor's part. The applicants' mother died in April 2007. By a letter of 9 May 2007 the first applicant informed the Gdańsk Mayor about the applicants' intention to continue the proceedings. On 31 July 2007 the first applicant was requested to submit an official copy of the court's decision (“odpis”) declaring that the applicants were legal successors of their mother. On 11 August 2007 the applicants submitted to the Gdańsk Mayor a photocopy of the Gdynia District Court's decision of 13 April 2007 declaring them their mother's legal successors and a photocopy of a power of authority to act on her behalf which the first applicant had given to Ms J.W. on 9 May 2007. On 15 August 2007 Ms J.W. requested the Gdańsk Mayor to enforce the judgment of the Supreme Administrative Court of 23 March 2000. There was no reply to that letter. On 28 May 2009 the Gdańsk Mayor informed Ms J.W. that the photocopies submitted to the case file could not be treated as evidence. He referred to the case-law of the Supreme Administrative Court, according to which documents submitted merely in photocopy form could not be regarded as having probative value. She was also informed that it was possible to show the originals to the administrative authority and that they would be certified on the spot. A copy of that letter was also sent to the applicants. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.

dev

001-5007

ENG

DEU

ADMISSIBILITY

WEITZ v. GERMANY

Inadmissible

Matti Pellonpää

The applicant is a German citizen, born in 1943 and residing in Kaisheim. A previous application No. 29857/96 by the applicant concerning criminal proceedings was declared inadmissible. The facts of the present case, as submitted by the parties, may be summarised as follows. A. The administrative proceedings On 19 October 1993 the Munich Labour Office (Arbeitsamt) dismissed the applicant’s request of 9 March 1993 for payment of unemployment benefits because he had not fulfilled the statutory condition of having been employed for a minimum of 360 days within the last three years at the time of his request. The Office considered that the applicant had performed functions as manager and thus as employer in Austria. On 18 November 1993 the applicant lodged an administrative appeal (Widerspruch) against the above decision, arguing that he had worked as an employee in Austria, where he had paid social security contributions. On 22 March 1994 the Munich Labour Office dismissed the applicant’s administrative appeal without giving reasons on the substance.

dev

001-70459

ENG

DEU

CHAMBER

CASE OF GISELA MULLER v. GERMANY

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

8. The applicant was born in 1942 and lives in Lilienthal in Germany. 9. Since 1973 the applicant, her sister M. and their mother S. were the joint owners of a plot of land situated in Bremerhaven. The lease of the plot was managed by a partnership consisting of the applicant, M., S. and a limited company (S company). Partners of the S company were also the applicant, M. and S. Over the years, serious arguments arose between the applicant on one side and her mother and sister on the other side about questions of the proper administration of the partnership, in particular in respect of taxation matters. 10. By letter dated 28 March 1986, the applicant filed an action with the Bremen Regional Court (Landgericht Bremen), sitting as a court competent in commercial matters (Kammer für Handelssachen), against S., M. and the S company (hereafter “the defendants”). According to the Government’s submissions – which are contested by the applicant – the Regional Court received the action on 11 June 1986. The applicant asked the Regional Court to prohibit the defendants from excluding her from the management of the business. She also demanded that the defendants surrender all annual accounts since 1973 and that they distribute the net profits accordingly. The applicant alleged that the defendants had failed to consult her about the management. She further complained about mistakes in the management, in particular about the fact that the defendants insisted on paying business taxes without being obliged to do so. 11. On 21 July 1986 the applicant’s counsel stated that the applicant was willing to reach a friendly settlement. 12. On 30 September 1986, during a first oral hearing, the parties declared that they were willing to reach an understanding and only thereafter hold another hearing. 13. On 4 November 1986 the applicant’s counsel informed the Regional Court that negotiations on a settlement had not taken place. 14. On 20 March 1987, during a further hearing, the Regional Court’s continuing efforts to induce the parties to agree on a friendly settlement failed. However, S. agreed to submit all documents on the annual accounts since 1973 to the applicant’s counsel for inspection. 15. On 27 July 1987 the applicant’s counsel informed the Regional Court that S. had failed to comply. 16. On 11 August 1987 the Regional Court scheduled an oral hearing which was subsequently postponed on the applicant’s request. 17. On 6 November 1987 S. agreed to submit the relevant documents on the annual accounts since 1975 to the applicant’s counsel. 18. On 30 December 1987 the Regional Court instructed the defendants to submit the partnership agreements and the annual accounts since 1973 and to disclose the use of the reported profits. It further instructed the applicant to quantify her claims. 19. In December 1987 and January and April 1988 the Regional Court called for the case-file of a separate law suit which the applicant conducted against the partnership’s former tax consultant. On 4 February 1988 – according to the Government’s submissions, which are contested by the applicant – the defendants submitted the annual balances and reported on the use of the profits. 20. On 15 June 1988 the presiding judge noted that “particularly on emotional grounds, the sensible pursuit of progress in this case” was not possible before a final decision had been reached in the proceedings against the tax consultant. 21. On 24 July 1989 the applicant complied with the conditions imposed in the order of 30 December 1987. In September 1989 and January, March, April and May 1990 the Regional Court filed for further information on the proceedings against the tax consultant. 22. On 4 September 1998 the Regional Court scheduled a further hearing for 20 October 1989. On 20 October 1989 that court decided to schedule a further hearing only after the tax authority’s decisions on the partnership’s tax liability for the years 1984 to 1986 had become final. On 23 November 1989 the applicant’s counsel informed the court that the tax decisions had become final. On 19 March, 13 June and 6 August 1990 the applicant’s counsel requested the Regional Court to schedule a new oral hearing. On 8 August 1990 the Regional Court scheduled an oral hearing for 3 September 1990, noting that the delay was owed to the chamber’s excessive workload during the previous six months. 23. On 12 October 1990, following the oral hearing, the Regional Court delivered a partial decision ordering the defendants to pay DEM 29,657.58 to the applicant and to grant her a restricted power over the commercial partnership’s bank accounts. 24. In a letter directed to the presiding judge of the Court of Appeal, the presiding judge of the Regional Court expressed his regrets of the fact that his attempts to reconcile the parties had failed. 25. On 19 November 1990 the defendants lodged an appeal against the Regional Court’s partial decision. 26. On 11 April 1991 the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht in Bremen), having received submissions from both parties, scheduled an oral hearing for 22 August 1991. 27. On 27 May 1991 the applicant informed the Court of Appeal that she had changed counsel. 28. On 6 June and 17 September 1991 the Court of Appeal postponed the hearing, once following the applicant’s request and a second time because of the rapporteur’s illness. 29. On 5 December 1991 the Court of Appeal further postponed the hearing on the ground that the rapporteur had been seconded to the eastern part of Germany. 30. On 26 March 1992, following an oral hearing on 5 March 1992, the Hanseatic Court of Appeal quashed the Regional Court’s partial decision and rejected the applicant’s claims. 31. On 23 June 1992 the Regional Court scheduled an oral hearing for 2 October 1992. On 28 September 1992 and 6 October 1992, following requests from the defendants, the Regional Court postponed the hearing. 32. On 17 November 1992 the Regional Court, once again, tried to induce the parties to reach a friendly settlement. On 15 and 18 December 1992 the parties informed the Regional Court that no settlement had been reached. 33. On 15 January 1993 the Regional Court ordered the preparation of an expert opinion as to whether the annual accounts for the years 1975 to 1991 of both the commercial partnership and the S company had been prepared in accordance with the rules on accounting and balances. It found that the annual balances did not form a sufficient basis to calculate the applicant’s possible net profit claims. 34. On 23 March 1993, upon payment of the advance costs, the Regional Court sent the files to the Chamber of Tax Consultants for the nomination of a suitable expert. 35. On 5 April 1993 the applicant’s counsel informed the Regional Court that he had relinquished his mandate. 36. On 28 April 1993 the Chamber of Tax Consultants named an expert. 37. On 29 April 1993 – according to the Government’s submissions – the presiding judge of the Regional Court orally informed the applicant that he would only commission the expert after she had nominated a new counsel. 38. On 13 August 1993 the applicant informed the Regional Court that she had mandated new counsel. 39. On 27 August 1993 the Regional Court ordered the parties to pay further advance costs. 40. On 22 October 1993 the Bremen Regional Court appointed the certified accountant D. to prepare the expert opinion. 41. On 19 September 1994, after having received the necessary documents towards the end of 1993, D. submitted his report. 42. On 3 March 1995, following the submissions of both parties and requests filed by the defendants to postpone the hearing, the Regional Court held an oral hearing and asked D. to amend his report in view of supplementary documents to be submitted by the defendants. 43. On 15 May 1995 the applicant lodged a criminal charge against the defendants for withholding documents, which led to a search of S.’s apartment. 44. On 24 May 1995 – according to the Government’s submissions – the Public Prosecutor requested the Regional Court to transmit the case-file. On 28 August 1995 the presiding judge of the Regional Court informed the parties that he was prevented from pursuing proceedings as the Prosecutor’s Office had not yet returned the case-file. 45. On 18 December 1995 the Regional Court asked D. to resume his work on the amendment of his expert report. 46. On 8 January 1996 the applicant addressed a letter to the President of the Regional Court, referring to the excessive length of proceedings and requesting that her case be given priority. 47. On 7 March 1996 the presiding judge of the Regional Court informed the parties that he was unable to proceed because the files had not yet returned from the President’s office. On 14 March 1996 the President informed the applicant that he could not find any delay in proceedings attributable to the court. 48. On 22 March 1996 the expert informed the Regional Court that the defendants had not submitted all necessary documents. 49. On 24 May 1996, during an oral hearing, the defendants stated that they would submit the requested documents at the beginning of June. The Regional Court scheduled a date to proclaim a decision for 30 August 1996. 50. On 26 August 1996 the applicant requested the oral hearing to be reopened and announced new applications. 51. On 30 August 1996 the Regional Court re-opened proceedings and scheduled a hearing for 13 September 1996. On 25 September 1996, following the defendant’s request of 9 September 1996, the Regional Court postponed the hearing to 15 November 1996. 52. On 15 November 1996 the Regional Court suggested another friendly settlement and scheduled a final hearing for 29 November 1996. 53. On 22 November 1996, following the defendant’s request, the Regional Court postponed the hearing to 13 December 1996. Following that hearing the Regional Court announced that it would issue a decision on 31 January 1997. 54. On 19 December 1996 the Regional Court received D.’s amended expert opinion. 55. On 31 January 1997 the Regional Court ordered the parties to file their comments on the report and scheduled to give a decision on 1 April 1997. 56. On 1 April 1997 the Regional Court issued a judgment combined with a judgment on the basis of the cause of action (Grundurteil), concluding that the applicant had effectively revoked the managerial rights of the defendants, that the defendants – in collaboration with the applicant – were obliged to draw up the annual accounts from 1 January 1975 onwards and rejecting the majority of the applicant’s further claims. In his reasoning, the presiding judge noted that the parties conducted their arguments since more than ten years “with consistent stubbornness and with an uncompromising attitude” the like of which he – the presiding judge – had never before experienced in his professional career. 57. On 5 and 7 May 1997 all parties lodged their appeals. On 18 August 1997, having received submissions from all parties, the Hanseatic Court of Appeal scheduled a hearing for 13 November 1997. On 25 September 1997, following a request by the applicant, the Court of Appeal postponed the hearing to 18 December 1997. 58. On 18 December 1997 the Court of Appeal suggested that the parties should seek a separation. At the end of the hearing, following the request of all parties, the court decided that proceedings should only be continued on request of one of the parties. 59. On 5 January 1998, following the defendants’ application in a separate proceeding, the Bremerhaven District Court (Amtsgericht) ordered that the piece of land administered by the commercial partnership be sold by compulsory auction with a view to partitioning the property concerned (Teilungsversteigerung). 60. On 29 January 1998, following the applicant’s request to continue proceedings, the Court of Appeal scheduled an oral hearing for 23 April 1998 which was later postponed on the defendants’ request to 28 May 1998. 61. On 28 May 1998 the Court of Appeal announced its intention to suspend proceedings until the termination of the auction proceedings, against which the applicant protested. 62. On 9 July 1998 the Court of Appeal passed an order to suspend the proceedings until a final decision had been reached in the auction proceedings. The Court of Appeal found that the outcome of at least part of the lawsuit depended on the conclusion of these auction proceedings. On 25 February and 31 August 1999 and 7 July and 12 September 2000 the Court of Appeal rejected the applicant’s requests to resume proceedings on the ground that the auction proceedings had not yet been terminated. 63. On 18 August 2000 the applicant raised a constitutional complaint. She complained that despite the undue length of the proceedings, the Hanseatic Court of Appeal refused to resume them. She also gave a chronological account of the proceedings and maintained that their excessive length had violated her rights under the Basic Law. 64. On 22 November 2000 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s complaint. 65. On 27 November 2001 the Hanseatic Court of Appeal, in separate proceedings, rejected the applicant’s final complaint against the compulsory sale of the plot of land. On this occasion, the Hanseatic Court of Appeal was sitting as the same chamber as in the above mentioned proceedings. 66. On 2 November 2004 S. passed away. 67. By an undated letter dispatched on 19 November 2004 the presiding judge of the Court of Appeal referred to this Court’s decision on the admissibility of the present complaint and asked the applicant if she wished to pursue the proceedings. 68. By letter of 30 November 2004 the applicant insisted that the Court of Appeal was legally obliged to revoke its suspension order of 9 July 1998 before pursuing proceedings. 69. On 14 January 2005 the Court of Appeal lifted its suspension order and scheduled an oral hearing for 14 April 2005. 70. On 3 May 2005, following the oral hearing, the Court of Appeal suspended the proceedings against S. because of the latter’s death. At the same time, the Court of Appeal issued four pages of legal assessment of the case and invited the parties to submit any comments they would like to make within eight weeks. A new hearing would be scheduled after expiry of this time-limit. The proceedings are still pending before the Hanseatic Court of Appeal. 71. On 17 July 1998, upon the applicant’s complaint, the Bremerhaven District Court revoked the auction order. On 29 September 1998 this decision was set aside by the Bremen Regional Court; a further appeal was dismissed on 25 November 1998 by the Hanseatic Court of Appeal. 72. The applicant’s various further motions aimed at the prevention of the sale of the plot, including a further constitutional complaint, remained unsuccessful. 73. On 9 July 2001 the Bremerhaven District Court ordered the auction of the plot of land. It was purchased by M. The applicant’s complaints remained unsuccessful (see paragraph 65 above). 74. The relevant Rules of Civil Procedure on the suspension of proceedings read as follows: “The court may order, if the decision of the legal dispute wholly or partly depends on the existence or non-existence of a legal relationship which forms the subject of another pending legal dispute ... that the proceedings be suspended until the other legal dispute is settled ...” “The court may lift its orders of suspension...” “Suspended or interrupted proceedings are resumed by filing a statement with the court which is then served on the other party.” “A decision by which the suspension of proceedings is ordered or denied on the ground of provisions of this title ... may be appealed...” “(4) Against the decisions of the courts of appeal, no appeal is admissible...”

dev

001-4900

ENG

DEU

ADMISSIBILITY

EVERS v. GERMANY

Inadmissible

Matti Pellonpää

The applicant, born in 1959, is a German national and residing in Wattenbek. In the proceedings before the Court, he is represented by Mr. Traulsen, a lawyer practising in Kiel. On 29 November 1994, in the context of divorce proceedings before the Itzehoe District Court (Amtsgericht), the applicant and Mrs F.E., his wife, concluded a maintenance agreement. Under the terms of this agreement, the applicant committed himself to pay maintenance for his two children Jankl and Yorrick, born in wedlock in 1990 and 1992, in the monthly amount of DEM 241 each, and for Mrs F.E. in the monthly amount of DEM 836. The agreement also indicated the considerations underlying the calculation of the maintenance payments, in particular the applicant’s monthly net income amounting to DEM 2624 and his personal financial needs (Eigenbehalt). On 29 October 1995 the applicant, represented by counsel, applied to the Itzehoe District Court for legal aid with a view to institute proceedings against Mrs F.E., claiming that his maintenance payments for her as well as Jankl and Yorrick be reduced to zero as from 1 November 1995. He submitted that he had remarried in the meantime and that, following the birth of his daughter Pauline in July 1995, he had agreed with his wife to take parental leave from October 1995 to July 1998. His only income was therefore an educational allowance. On 13 December 1995 the Itzehoe District Court dismissed the applicant's request for legal aid on the ground that the intended action lacked sufficient prospect of success. In its decision, the court stated that the action was inadmissible to the extent that the applicant's maintenance obligations towards his children Jankl and Yorrick were concerned, as Mrs F.E. was not the proper defendant in this respect. As regards his claim that his maintenance payments for Mrs F.E. be reduced, the court found that the applicant could not invoke his choice concerning the repartition of roles in his new family and resulting reduction of his income vis-à-vis Mrs F.E. In this respect, the court noted that the applicant was obliged to pay maintenance to Mrs F.E. on the ground that she took care of their two minor children. The court, referring to the case-law of the Federal Court of Justice (Bundesgerichtshof), stated that, for the purposes of maintenance, the divorced spouse only had to accept the termination of occupational activities in order to care for a new child, if such a repartition of roles had considerable advantages for the new family. The decisive factor in this respect was the overall amount of the family income. However, the solution envisaged by the applicant did not change the family income. It was only advantageous if his maintenance obligations towards Mrs F.E. and his minor children Jankl and Yorrick would be set aside. In such a situation, the applicant could not evade his primary maintenance obligations towards Mrs F.E. as well as Jankl and Yorrick. On 22 January 1996 the Itzehoe District Court, upon the applicant’s appeal (Beschwerde), confirmed its decision of 13 December 1995. On 28 February 1996 the Schleswig-Holstein Court of Appeal (Oberlandes-gericht) dismissed the applicant's appeal. The Court of Appeal found that the impugned decision was consistent with the constant case-law of the Federal Court of Justice. According to the Court of Appeal, Mrs F.E. was entitled to maintenance under section 1570 of the Civil Code (Bürgerliches Gesetzbuch) in order to be in a position to take care of the divorced spouses’ minor children. Referring to section 1582 of the Civil Code, the Court of Appeal observed that, for the purposes of maintenance matters, a divorced spouse taking care of minor children took precedence over the second wife. According to section 1570 of the Civil Code, a divorced spouse can claim maintenance from the other divorced spouse, as long as and to the extent that, taking care of the spouses’ child, he or she cannot be expected to take up gainful occupation. Section 1581 provides that maintenance obligations of a divorced spouse may be reduced in case that the divorced spouse, given his or her earned income, assets and other financial obligations, would risk not to dispose of sufficient own financial means. In determining the maintenance entitlement of a divorced spouse under section 1581, the divorced spouse takes, as a rule, precedence over a new spouse (section 1582). On 7 May 1996 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde). Meanwhile, on 1 April 1996 the applicant had accepted part-time occupation of twelve hours per week, with a salary of DEM 1,446.

dev

001-87888

ENG

RUS

CHAMBER

CASE OF SALMANOV v. RUSSIA

Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

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

5. The applicant was born in 1955 and is serving a sentence of imprisonment in the Sverdlovsk Region. 6. The applicant was arrested on 20 January 1998. He was charged with a number of criminal offences, including conspiracy to commit murder. 7. On 11 May 1998 the applicant was taken to remand centre no. 77/1, also known as “Matrosskaya Tishina”. 8. In July 1998 the deputy Prosecutor General extended his detention until 18 January 1999. On 2 October 1998 the Preobrazhenskiy District Court of Moscow upheld this extension order. 9. In September 2000 the criminal case against the applicant was listed for trial. On 29 September 2000 the Moscow City Court held that the measure of restraint in respect of defendants, including the applicant, had been lawful and should remain unchanged. 10. The City Court subsequently issued further extension orders on 3 July, 30 September, 18 December 2002, 24 March, 30 June and 30 September 2003, referring to the fact that the applicant and his co-defendants had been charged with particularly serious criminal offences. The Supreme Court of the Russian Federation rejected appeals against these remand orders, endorsing the City Court’s reasoning. 11. On 30 December 2003 the City Court extended the defendants’ detention on remand until 1 April 2004, noting the gravity of the charges against them and the possibility that they might abscond or obstruct justice. 12. On 30 March 2004 the City Court extended the defendants’ detention on remand until 1 July 2004, indicating that: “...[the defendants] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons, against whom separate criminal proceedings are pending, and with another person, against whom criminal proceedings were disjoined because his whereabouts are not known; if released, [they] may abscond or obstruct justice”. 13. On 1 July 2004 the City Court extended the defendants’ detention, reproducing verbatim the reasoning of its earlier decision. 14. On 22 July 2004 the Supreme Court upheld the decision of 30 March 2004 and endorsed the City Court’s reasoning. 15. On 19 July 1999 the Moscow city prosecutor approved the bill of indictment and the case was submitted for trial to the City Court. The applicant was charged with multiple counts including conspiracy to commit murder. Similar charges were brought against fifteen other co-defendants. 16. On 5 August 1999 the City Court noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury. However, as there were no juries in the City Court, it decided to send an inquiry to the Supreme Court of the Russian Federation as to where the case should be tried. The Supreme Court referred the case to the Moscow Regional Court, where juries were available. 17. On an unspecified date a judge of the Regional Court sent a request to the Constitutional Court of the Russian Federation, inviting it to rule on the compatibility with the Russian Constitution of the Supreme Court’s interpretation of the jurisdictional rules. On 17 February 2000 she suspended the proceedings pending a decision by the Constitutional Court. She also held that the defendants were to remain in custody because they had been charged with criminal offences of high public danger, classified as serious or particularly serious. 18. On 13 April 2000 the Constitutional Court held that the decision on the change of venue had been incompatible with the Russian Constitution. 19. In compliance with that ruling, on 14 June 2000 the Regional Court returned the case file to the Supreme Court. The Supreme Court decided on 6 September 2000 that the City Court was competent to try the case. 20. On 29 September 2000 the City Court scheduled the first hearing for 13 October 2000 before a panel consisting of a professional judge and two lay judges, but on that date the hearing was adjourned because the presiding judge was sitting in another case. 21. In 2001 and 2002 the presiding judge was replaced by other judges of the City Court. Lay judges were replaced several times. 22. Numerous hearings were scheduled between 2001 and early 2003. All of them were adjourned on various grounds, mainly because the prosecutor, the interpreter and some of the defendants’ lawyers had defaulted, and also owing to the presiding judge’s involvement in other proceedings in May and October 2001, and then in May, September and October 2002. 23. It appears that consideration of the merits began in March 2003. The absence of several lawyers, including the applicant’s counsel, was one of the reasons for adjourning the hearings listed for 4 March and 29 April 2003. 24. The illness of the applicant’s counsel was one of the reasons for adjourning the hearings scheduled for 26 January and 2 February 2004. On 10 March 2004 the trial judge ordered the bailiffs to bring the defaulting witnesses and victims to a hearing on 16 March 2004, which was not done in respect of certain witnesses and victims. On a number of occasions between March and July 2004 the judge reiterated his request. 25. On 12 August 2004 the trial court closed the trial and started deliberations. 26. On 27 October 2004 the City Court found the applicant guilty of multiple counts including conspiracy to commit murder and sentenced him to ten years’ imprisonment. On 10 November 2004 the judgment was pronounced in public. 27. The applicant and the other defendants lodged an appeal. On 15 November 2005 the Supreme Court upheld the judgment. 28. According to the applicant, from 2 October 2004 to 5 June 2005 and from 11 June to 26 June 2005 he shared a cell with a Mr K. On an unspecified date, the latter tested HIV positive. He was informed so six months later and had another blood test, which was also positive. According to the applicant, on 11 June 2005 Mr K. told him that he had tested HIV positive. 29. It appears from a report of 20 March 2006, submitted by the Government, that HIV-positive detainees were not segregated from the other detainees in remand centre no. 77/1; the applicant “was informed of the rules for detention of HIV-positive detainees”, including a prohibition of such segregation. 30. The applicant submitted the following description of the relevant circumstances of his transport and confinement. Between 2001 and 2004 the applicant had been transported to the Moscow City Court and back to the remand centre no. 77/1 on no less than one hundred days (normally, three days per week). He had been taken out of his cell at 6 a.m. and placed alone in a cell measuring 70 by 70 centimetres, awaiting departure at 9 or 10 a.m. On the day of a court hearing he had not been given any food before departure; nor had he received any meal at the courthouse or in the remand centre upon his return. Since early 2004 the authorities had started to supply a dry ration for the day which he, however, could not consume because no hot water had been provided at the convoy premises in the City Court. The applicant had been transported in overcrowded vans; the journey from the remand centre to the City Court had normally taken one to three hours. At the City Court premises the applicant had been held together with several other detainees in a cell measuring 1.2 by 2 metres. After the hearing he had been taken back to that cell where he had waited until 6 to 8 p.m. without any food or drink or access to a toilet. On the way back the prison van had never gone directly to remand centre no. 77/1, it made a detour to bring detainees to another remand centre where it sometimes stayed for four or five hours. Thus, the return journey had normally taken two to three hours. Upon arrival at facility no. 77/1, the applicant had had to wait for one more hour before being taken to his cell at about midnight. 31. The Government contested the applicant’s description of his conditions of confinement and transport. According to them, the applicant was taken out of his cell at 6 a.m. and provided with hot breakfast. He was then kept at the assembly section which had eight cells measuring between 12.7 and 17.9 square metres. Each cell had a bench, sanitary facilities, artificial lighting and a window. The applicant remained there for about one hour and a half awaiting departure for the courthouse. He was given a dry ration consisting of two courses for the remainder of the day. Between 2001 and 2003 the applicant was transported in vans GAZ-2207(3309) and ZIL-4331. The detainees’ section of the GAZ van measured 3.8 m (length) by 2.35 m (width) by 1.6 m (height). Such a van had one individual compartment and two compartments for twelve persons each. The detainees’ section of the ZIL van measured 4.7 m by 2.4 m by 1.64 m and had two individual compartments and two compartments for seventeen persons each. Both types of vans also had three or four seats for convoy officers. Vans were equipped with fixed benches so that each detainee was provided with individual seating. Van walls had insulating lining. Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running. Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. Given the security considerations, from December 2003 onwards the applicant and his co-defendants were carried by direct transfer between the remand centre and the courthouse. At the City Court the applicant was kept at the convoy premises which had three compartments with seventeen cells each and a toilet, which detainees could access upon request. Each cell measured 1 m by 1.95 m by 3.1 m. Each cell had seating and was equipped with systems of ventilation, heating and artificial lighting. At the courthouse he was provided with hot water with which to consume the dry ration. He was also allowed to bring food purchased in the prison shop or received from his relatives. 32. In 2003 the applicant complained about unsatisfactory conditions of transport and confinement at the courthouse. 33. It appears from the report of the Moscow Department of the Interior dated 16 December 2003, submitted by the Government, that the applicant was taken to court for criminal proceedings which “were dragging on”. Between July and October 2003 he was transported eight times in the prison van ZIL-4331 together with, at times, fifteen to twenty-seven other detainees; the direct transfer from the courthouse did not normally exceed thirty minutes and ended no later than 8 p.m., except on 30 September 2003. From December 2003 onwards the applicant and his co-defendants were taken by direct transfer on account of security considerations. Convoy premises at courthouses were not equipped for catering purposes and “the detainees ate their dry rations when they returned to the remand centre from the courthouse”. 34. By a letter of 17 December 2003 the Moscow Department of the Interior stated that the time taken for transportation had been “objectively justified”. 35. For a summary of the applicable national legislation relating to detention on remand, see the Court’s judgment in the case of Khudoyorov v. Russia (no. 6847/02, §§ 76-93, ECHR 2005). 36. On 4 May 2001 the Ministry of Justice adopted the Rules on food supply for convicts and persons detained in remand centres. According to Annex no. 3 to these Rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicts on their way to a prison, a remand centre or colony; persons released from custody on the way to their place of residence; persons during their stay in patient care institutions or convicted juveniles. Those Rules were amended in 2004 and repealed in 2005. 37. On 4 February 2004 the Ministry of Justice adopted the Rules on supply of dry ration, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, precooked first and second courses, sugar, tea, tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration. 38. Limitation of a citizen’s rights and freedoms because of his or her HIV status may be authorised only by federal law (section 5 of the Law on Prevention of Propagation of HIV infection, 38-FZ of 30 March 1995). Detainees are subject to a compulsory medical examination (section 9 of the Law). A person who has tested HIV-positive must be informed thereof, be informed of the need to take precautions for preventing propagation of the HIV infection and warned that contamination of others or exposing others to a risk of contamination is a criminal offence (section 13 of the Law; Article 122 of the Criminal Code). 39. According to the Rules on Compulsory Testing of Prisoners for HIV infection (adopted by the Russian Government on 28 February 1996), the prison administration must take measures preventing propagation of the HIV infection; medical and other staff must not disclose information relating to the detainee’s HIV status (Rules 11 and 13). 40. Section 101 § 2 of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision in so far as it related to HIV-infected prisoners. 41. The relevant extracts from the 11th General Report [CPT/Inf (2001) 16] prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases read as follows: “31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries.... ...[T]he act of depriving a person of his liberty always entails a duty of care... The use of up-to date methods for screening, the regular supply of medication...constitute essential elements of an effective strategy...to provide appropriate care to the prisoners concerned. ...[T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive. ...[I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. More particularly, the risks of HIV or hepatitis B/C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained...” 42. The relevant parts of the Appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of health care in prison read as follows: “13. Medical confidentiality should be guaranteed and respected... 38. The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medial reasons. 39. No form of segregation should be envisaged in respect of persons who are HIV antibody positive, subject to the provisions contained in paragraph 40. 40. Those who become seriously ill with Aids-related illnesses should be treated within the prison health care department, without necessarily resorting to total isolation. Patients, who need to be protected from the infectious illnesses transmitted by other patients, should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections...” 43. The relevant part of the Appendix to Recommendation no. R (93) 6 of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows: “9. As segregation, isolation and restrictions on occupation, sport and recreation are not considered necessary for seropositive people in the community, the same attitude must be adopted towards seropositive prisoners.” 44. Detention of HIV-infected persons was also examined in the following Recommendations of the Committee of Ministers to Member States: no. R (89) 14 on the ethical issues of HIV infection in the health care and social settings; and no. R (98) 7 concerning the ethical and organisational aspects of health care in prison. 45. Similar recommendations were made by the 1993 World Health Organisation in the Guidelines on HIV infection and AIDS in prisons: “27. Since segregation, isolation and restrictions on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners. Decisions on isolation for health conditions should be taken by medical staff only, and on the same grounds as for the general public, in accordance with public health standards and regulations. Prisoners’ rights should not be restricted further than is absolutely necessary on medical grounds, and as provided for by public health standards and regulations... 28. Isolation for limited periods may be required on medical grounds for HIV-infected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner’s informed consent. Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by the prison administration.... 32. Information regarding HIV status may only be disclosed to prison managers if the health personnel consider...that this is warranted to ensure the safety and well-being of prisoners and staff...”

dev

001-75139

ENG

TUR

ADMISSIBILITY

INCEOGLU v. TURKEY

Inadmissible

The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr M.A. Kırdök, Mr Özcan Kılıç and Mr Hasan Kemal Elban, lawyers practising in Istanbul. The facts of the cases, as submitted by the applicants, may be summarised as follows. Until October 1994 the applicant lived in the Çalbaşı village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that other persons with the family name “İnce” appear to be the owners of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Çalbaşı on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On an unspecified 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 State of Emergency Department 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.” Until October 1994 the applicant lived in the Tepsili village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that another person, Munzur Arın, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Tepsili on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 13 September 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 31 October 2001 State of Emergency Department 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.” Until October 1994 the applicants lived in Kızılveren, a hamlet of the Hanuşağı village in the district of Ovacık in Tunceli, where they own property. It is to be noted that Hıdır Günaçan appears to be the owner of the property in question on the documents submitted to the Court by Hüseyin Günaçan. In October 1994 security forces forcibly evacuated Kızılveren on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On an unspecified date Hıdır and Zeynel Günaçan lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On 27 August 2001 the applicants filed petitions with the Governor’s office in Tunceli and the District Governor’s office in Ovacık requesting permission to return to their village. On 31 October 2001 the State of Emergency Department of the District Governor’s Office in Ovacık sent the following reply to the applicants: “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 applicants lived in the Kalecik village in the district of Hozat in Tunceli, where Süleyman and Efendi Güneş own property. It is to be noted that Celal Güneş submitted a certificate, signed and approved by the headman (muhtar) of his village, to the Court attesting his ownership of the property in Kalecik. In October 1994 security forces forcibly evacuated Kalecik on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Toratlı village, in Çemişkezek district where they currently live. On an unspecified date Efendi Güneş filed a petition with the District Governor’s office in Hozat requesting an alternative residence and compensation for the damages he had suffered. On 7 January 1995 the District Governor’s office in Hozat sent a letter to the applicant to inform him about the food and money relief that the District Governor’s office in Hozat serves and further informed him that there was no legal ground for his alternative residence request. On 7 June 1995 Süleyman Güneş filed petitions with the Prime Minister’s office and the Ministry of Public Works and Settlement (Bayındırlık ve İskan Bakanlığı) requesting a loan to reconstruct his house. On 28 June 1995 the Ministry of Public Works and Settlement sent his petition to the General Directorate of Rural Services (Köy Hizmetleri Genel Müdürlüğü) stating that his request was not within the scope of the Law no.7269. On 30 June 1995 the Prime Minister’s office sent his petition to the Ministry of Public Works and Settlement. On 12 July 1995 the Ministry of Public Works and Settlement sent his petition to General Directorate of Rural Services. On 13 July 1995 the General Directorate of Rural Services sent the following reply to him: “Your request of housing aid is not within the scope of the Law no. 2510. Therefore no process exists on your request.” On an unspecified date Efendi Güneş filed a petition with the Prime Minister’s office requesting permission to return to his village. On 18 August 1995 the Prime Minister’s office sent the petition to Governor’s office in Tunceli for examination. He received no response. On 27 October 1997 Süleyman Güneş filed a petition with the District Governor’s office in Hozat requesting to be provided with government aid and permission to return to his village. On an unspecified date Celal Güneş filed a petition with the Prime Minister’s office requesting permission to return to his village. On 13 October 1997 the Prime Minister’s office sent the petition to the Ministry of the Interior. On 25 November 1997 the District Governor’s office in Hozat sent the following reply to Süleyman Güneş: “...Due to the security reasons in the region, no one is curently residing in the Kalecik village. No fund is allocated for the villagers who had to leave their villages. Therefore your request for government aid can not be fulfilled. On 17 September 2001 Süleyman Güneş filed a petition with the Prime Minister’s office requesting to be provided with government aid permission to return his village. On 24 September 2001 the Prime Minister’s office sent the petition to the Ministry of the Interior. On unspecified dates the applicants filed petitions with the District Governor’s office in Hozat requesting permission to return to their villages. On 9 November 2001 the District Governor’s office in Hozat sent the following reply to the applicants: “The Project ‘Return to the Village and Rehabilitation in Eastern and South-eastern Anatolia’ is developed by the South-eastern Anatolia Project Regional Development Directorate (GAP Bölge Kalkındırma Idaresi 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. In this context, your petition has been taken into consideration and your request will be responded when it is possible to return to the villages.” Until October 1994 the applicant lived in the Karataş village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that the applicant’s father appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 13 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that his father, İsmail Ağgül, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into his allegations as the perpetrators of the alleged acts could not be identified. On 13 August 2001 the applicant filed petitions with the Governor’s office in Tunceli and District Governor’s office in Ovacık requesting permission to return to his village. On 31 October 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition requesting 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 the Buzultepe village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that his uncle, Hıdır Gönek, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Buzultepe on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 20 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 20 September 2001 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “... You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.” Until October 1994 the applicants lived in Çalbaşı village in the district of Ovacık in Tunceli. It is to be noted that Efendi İnce and other persons with the family name “Doğan” appear to be the owners of the property in question on the documents submitted to the Court by Hasan İnce and Nurettin İnce, Barış İnce and Abidin İnce respectively. In October 1994 security forces forcibly evacuated Çalbaşı on account of disturbances in the region. They also destroyed the applicants’ property. Barış İnce, Hasan İnce, Mustafa İnce, Nurettin İnce, Ali İhsan İnce and Ahmet İnce then moved to Istanbul. Zeynal İnce and Abidin İnce moved to Gümüşbağlar village in Elazığ, where they currently live. On 16 August 2001 Barış İnce filed petitions with the Prime Minister’s office, the Emergency Regional Governor and the Governor’s office in Tunceli requesting permission to return to their villages. He received no response to his petitions within the 60-day period prescribed by Law no. 2577. On 17 August 2001 Nurettin İnce filed petitions with the Prime Minister’s office, State Emergency Regional Governor and Governor’s office in Tunceli. He received no response to his petitions within the 60-day period prescribed by Law no. 2577. On 21 August 2001 Hasan İnce, Zeynal İnce and Abidin İnce filed petitions with the Prime Minister’s office, State Emergency Regional Governor and Governor’s office in Tunceli. They received no response to their petitions within the 60-day period prescribed by Law no. 2577. On an unspecified date Ahmet İnce filed petitions with the Ministry of the Interior, the Governor’s office in Tunceli and the District Governor’s office in Ovacık requesting permission to return to his village. On 20 September 2001 the Governor’s office in Tunceli sent the following reply to the applicant: “... You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.” On an unspecified date Ali İhsan İnce and Mustafa İnce filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village. On 31 October 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicants: “Your petition requesting 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 applicants lived in Kızılveren, a hamlet of the Hanuşağı village in the district of Ovacık in Tunceli. It is to be noted the title deeds to the property that Hasan and İsmail Aygördü used in Kızılveren bear the name of Ali Aygördü and the name of İsmail Aygördü’s father. It is also to be noted that the title deeds to the property that Murat Aygördü, Yeşil Aygördü and Hüseyin Gazi Aygördü used in Kızılveren bear their fathers’ name. In October 1994 security forces forcibly evacuated Kızılveren on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On an unspecified date Murat Aygördü and Hüseyin Gazi Aygördü lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On an unspecified date, İsmail Aygördü filed a petition with the Ministry of the Interior requesting permission to return to his village. On 27 September 2000 the State Emergency Department of Governor’s office in Tunceli sent the following reply to the applicant: “....Kızılveren hamlet, in Hanuşağı village is not secure and economically suitable for residence. You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.” On an unspecified date Yeşil Aygördü filed petitions with the Ministry of the Interior, Governor’s office in Tunceli, District Governor’s office in Ovacık and Public Prosecutor’s office in Ovacık. On 31 October 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to Yeşil Aygördü: “Your petition requesting 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 5 September 2001 İsmail Aygördü filed petitions with the Governor’s office in Tunceli, District Governor’s office in Ovacık and Public Prosecutor’s office in Ovacık requesting permission to return to his village. He received no response to his petitions which he had filed with the Governor’s office in Tunceli and the District Governor’s office in Ovacık within the 60-day period prescribed by Law no. 2577. On 6 and 12 September 2001 the Public Prosecutor in Ovacık issued decisions to discontinue criminal proceedings (Takipsizlik kararı- non-prosecution decision) with regards the complaints lodged by Yeşil Aygördü and İsmail Aygördü. He held that the petition in question should be examined by the administrative authorities. On an unspecified date Hüseyin Gazi Aygördü filed petitions with the Ministry of the Interior and Governor’s office in Tunceli requesting permission to return to his village. On 15 October 2001 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “....Kızılveren hamlet, in Hanuşağı village is not secure and economically suitable for residence. You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.” On an unspecified date, Murat Aygördü filed petitions with the Ministry of the Interior and Governor’s office in Tunceli requesting permission to return to his village. On 29 October 2001 he was told by a police officer that Kızılveren hamlet, in Hanuşağı village was not secure and economically suitable for residence, therefore he could return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. The police officer further stated that his petition would be considered under the ‘Return to the Village and Rehabilitation Project’. The applicant submitted an official document to the Court certifying the statement made by the police officer in question. On an unspecified date Hasan Aygördü filed petitions with Ministry of the Interior, District Governor’s office in Ovacık, Governor’s office in Tunceli and Public Prosecutor’s office in Ovacık requesting permission to return to his village. On 21 November 2001 the Public Prosecutor’s office in Ovacık issued decisions on to discontinue criminal proceedings (Takipsizlik kararı- non-prosecution decision) in accordance with Article 164 of the Code of Criminal Procedure holding that the petition in question should be examined by the public authorities. On 30 November 2001 State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition requesting 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 5 December 2001 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “....Kızılveren hamlet, in Hanuşağı village is not secure and economically suitable for residence. You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.” Until October 1994 the applicants lived in Şahverdi village in the district of Ovacık in Tunceli, where the applicants own property. It is to be noted the title deeds to the property that Turabi, Şahin, Baba and Haydar Altunkıran, Turabi and Kazım Gündoğdu, Erdal Gergin and Gazi Gündoğdu used in Şahverdi village bear their fathers’ name. Further, Hüseyin and Cemile Gündoğdu did not submit any certificate attesting their ownership of property in Şahverdi. In October 1994 security forces forcibly evacuated Şahverdi on account of disturbances in the region. They also destroyed the applicants’ property. Veli Akyol, Şahin Altunkıran, Gazi and Ali Gündoğan and Cemile Gündoğdu then moved to Ovacık, Musa Kavrulmuş, Celal and Polat Cimin and Erdal Gergin moved to Istanbul and Turabi, Baba, Haydar and Polat Altunkıran, Hüseyin Yüceer and Ahmet, Turabi, Kazım and Hüseyin Gündoğdu moved to villages in Erzincan. On 7 October 1994 Turabi, Şahin, Haydar Altunkıran, Gazi Gündoğan and Cemile Gündoğdu lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. On 13 October 1994 Baba and Polat Altunkıran lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. On unspecified dates Veli Akyol, Musa Kavrulmuş, Celal and Polat Cimin, Ali Gündoğan, Hüseyin Yüceer, Ahmet, Turabi, Kazım and Hüseyin Gündoğdu lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On an unspecified date Polat Altunkıran filed a petition with the Prime Minister’s office requesting to be provided with government aid and permission to return to his village. On 28 December 1994 the Prime Minister’s office sent the petition to the Governor’s office in Tunceli. On 31 July 1995 Polat Altunkıran filed a further petition with the Prime Minister’s office requesting permission to return to his village. On the same day he lodged a petition with the Malatya State Security Court complaining about the burning down of their houses by security forces. The Malatya State Security Court issued a decision to discontinue the criminal proceedings (Takipsizlik kararı- non-prosecution decision). On an unspecified date Erdal Gergin filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the Governor’s office in Tunceli sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 11 September 2001 Polat Altunkıran filed petitions with the Prime Minister’s office, the Ministry of the Interior, the State Emergency Regional Governor’s office, the Governor’s office in Tunceli and the District Governor’s office in Ovacık requesting permission to return to his village. On 8 November 2001 he was summoned to the Struggle Against Terrorism Department of the Erzincan Security Directorate and Çağlayan Security Directorate, where he was informed about the Tunceli Governor’s reply to his petition concerning a request of permission to return to his village. The applicant and three other witnesses drafted a note on this statement. This note is attached to the applicant’s application to the Court. On 14 September 2001 Erdal Gergin filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village.He received response to his petition within the 60-day period prescribed by Law no. 2577. On an unspecified date Celal and Polat Cimin filed petitions with the Ministry of the Interior requesting permission to return to their village. On 20 September 2001 the Governor’s office in Tunceli sent the following reply to them: “... You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.” On 11 September 2001 Turabi and Polat Altunkıran and Hüseyin Yüceer filed petitions with the District Governor’s office in Ovacık requesting permission to return to their villages. On unspecified dates Veli Akyol, Turabi, Şahin, Baba, Haydar Altunkıran, Gazi and Ali Gündoğan, Hüseyin Yüceer and Ahmet, Turabi, Kazım, Hüseyin and Cemile Gündoğdu filed petitions with the District Governor’s office in Ovacık requesting permission to return to their villages. On 31 October 2001 and on 22 January 2001 the District Governor’s office in Ovacık and the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicants: “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 Village and Rehabilitation Project’.” On 28 November 2001 Musa Kavrulmuş filed petitions with the Ministry of the Interior and District Governor’s office in Ovacık requesting permission to return to his village. On 5 December 2001 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 Village and Rehabilitation Project’.” On 19 December 2001 the Governor’s office in Tunceli sent the following reply to the applicant: “... You can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. Furthermore, your petition will be considered under the ‘Return to the Village and Rehabilitation Project’.” Until October 1994 the applicants lived in the Yazıören village in the district of Ovacık in Tunceli, where they own property. In October 1994 security forces forcibly evacuated Yazıören on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Paşadüzü village where they currently live. On an unspecified date the applicants lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On 15 November 2000 Muzaffer Kılıç filed a petition with the General Directorate of Rural Services requesting permission to return to his village. On 22 December 2000 the General Directorate of Rural Services sent the following reply to him: “...Governors’ offices are working on the solutions to the problems you have mentioned in your petition. Therefore petitions containing requests of permission to return to village should be filed with the Governors’ offices. On an unspecified date Muzaffer Kılıç filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 23 November 2000 State Emergency Department of the Governor’s office in Tunceli sent the following reply to him: “Your petition requesting permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to the Village and Rehabilitation Project’.” On 3 January 2002 the applicants filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village. On 21 January 2002 State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicants: “...As a result of the work carried out by the Implementation Commission of the Return to the Village and Rehabilitation Project Yazıören village has been attached to Mollaaliler village, in Ovacık. Implementation of the project has not started yet. Therefore, you can return and reside in Çakmaklı, Gözeler, Güneykonak-Koyungölü and Yeşilyazı villages. Until October1994 the applicants lived in the Yazıören village, in the Ovacık district in Tunceli. It is to be noted that İbrahim Konuklu appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Yazıören on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On an unspecified date the applicants lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by the security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On 18 October 1994 İbrahim Konuklu applied to Civil Court of First Instance in Ovacık in order to have his damages determined. On 18 October 1994 the Civil Court of First Instance in Ovacık ordered an on-site visit to the property. On the same day the Civil Court of First Instance in Ovacık sent a letter to District Governor’s office in Ovacık informing about the on-site visit on 21 November1994 and requesting information on safety measures for the on-site visit. On 25 October 1994 the Cadastre Administrative in Tunceli sent the following reply to the Ovacık Civil Court of First Instance: “Your request on experts for the on-site visit to the property can not be fulfilled due to security reasons.” On 6 November 1994 the District Gendarmes Command in Ovacık sent the following reply to the Civil Court of First Instance: “Your request on experts for the on-site visit can not be fulfilled. It is reported that no one currently live in the village. Therefore, no list of experts can be prepared.” On 21 November 1994 the Civil Court of First Instance decided not to conduct an on-site visit due to the security reasons. On 15 July 1997 İbrahim Konuklu filed a petition with the Governor’s office in Ovacık requesting permission to return to his village. On 20 August 1997 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to him: “Your petition containing a request of permission to return to your village has been examined. The struggle against terrorism in our region has been continuing intensively and positive result is being achieved. Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages.” On an unspecified date the applicants filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village. On 16 January 2002 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicants: “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 Village and Rehabilitation Project’.” Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli. It is to be noted that the applicant did not submit any certificate attesting his ownership of property in Cevizlidere. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 23 June 1995 the office of Administrative Council in Ovacık decided not to conduct an investigation into applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 10 October 1999 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 16 October 1999 the Governor’s office in Tunceli sent the following reply to the applicant: “The South-eastern Anatolia Project Regional Development Directorate (GAP Bölge Kalkındırma Idaresi Başkanlığı) is working on a project called ‘Return to the Village and Rehabilitation’. Only two villages, Dallıbahçe and Dereova, from Tunceli are included in this project. There is no other project concerning the other villages in Tunceli. Petitions concerning the other villages, will be taken into consideration if such a project is adopted in the future.” On 14 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli. It is to be noted that another person her husband appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and her family then moved to Istanbul where they currently live. On an unspecified date the applicant filed a petition with the State Emergency Department of the District Governor’s office in Ovacık requesting permission to return to her village. On 31 October 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition requesting 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 the Cevizlidere village, in the Ovacık district, in Tunceli. It is to be noted his father, Gülabi Çılgın, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 23 June 1995 the office of Administrative Council in Ovacık decided not to conduct an investigation into applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 24 October 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli. It is to be noted that another person, Hasan Önder, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and her family then moved to Istanbul where they currently live. On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of her house by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 23 June 1995 the office of Administrative Council in Ovacık decided not to conduct an investigation into applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 23 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to her village. She received no response to her petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli, where he owns property In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On an unspecified date the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village On 20 November 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition requesting 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 the Cevizlidere village, in the Ovacık district, in Tunceli, where he owns property. It is to be noted that another person, Veli Ragıp, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 23 June 1995 the office of Administrative Council in Ovacık decided not to conduct an investigation into applicant’s allegations as the perpetrators of the alleged acts could not be identified. On an unspecified 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 Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition requesting 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’.” The official records indicated that the inhabitants of Hanuşağı, Çalbaşı, Tepsili, Kalecik, Karataş, Buzultepe, Şahverdi, Yazıören and Cevizlidere had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicants to leave their village. Currently 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. In this connection, in a letter of 15 October 2002 the District Governor of Ovacık informed the applicants that they could return to their villages and resume their economic activities if they wished. He further noted that all villages were open for re-settlement and that the authorities had been carrying out maintenance work to repair the infrastructure of the villages in the region. 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

001-101542

ENG

UKR

ADMISSIBILITY

ULYANOV v. UKRAINE

Inadmissible

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

The applicant, Mr Ruslan Anatoliyovych Ulyanov, is a Ukrainian national who was born in 1970 and lives in Kremenchuk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 August 2001 the applicant, a lawyer by profession, entered into a legal services agreement with a company, K. Under that agreement K. transferred to the applicant certain bookkeeping documents relating to an ongoing tax dispute with the Kremenchuk Tax Office (“the Tax Office”). On an unspecified date the Tax Office investigator instituted criminal proceedings against the managing directors of K. for engaging in prohibited commercial activity and forging official documents. An expert bookkeeping examination was ordered in the case. On 11 March 2002, following a request by the investigator, the Kryukivskyy District Court of Kremenchuk (the “District Court”) ordered the seizure of K.'s bookkeeping documents, which had been transferred to the applicant, from the applicant's home and other property. In its reasoning the District Court noted that the applicant had refused the investigator's request to produce the documents he had received from K. despite the fact that they were needed for an expert examination in the course of criminal proceedings against K.'s managing directors. At about 4 p.m. on the same day police officers from the Tax Office, some wearing masks, entered the applicant's office during a meeting with clients. Referring to the court order for seizure, the officers requested K.'s documents. The applicant refused to produce the documents, arguing that they were privileged under the Bar Act. The applicant was then ordered to stand up and face the wall, following which a masked officer searched him. He was then ordered to empty his pockets. At 4.30 p.m. the applicant was taken from his office, placed in the police car and driven to the Tax Office. According to the applicant, he was forced to leave his office because of his refusal to produce the documents. According to the Government, the applicant agreed to follow the officers of his own free will. At 5.30 p.m., after an interview with the head of the Tax Office, the applicant was driven back to his office. On 12 March 2002, at the investigator's request, the District Court ordered a search of the applicant's home and other property, noting that on 11 March 2002 he had refused to produce documents pursuant to the previous court order for seizure. That night the tax officers searched the applicant's office, car and home but failed to find K.'s documents. On 12 March 2002 the applicant lodged a complaint under Article 248-1 of the Code of Civil Procedure (the “CCvP”), claiming that the officers from the Tax Office who had tried to seize the documents in his office on 11 March 2002 had acted in contravention of the Bar Act. He further claimed that the masked officer had unlawfully ordered him to face the wall, searched him and requested him to empty his pockets. Lastly, the applicant argued that the officers had detained him unlawfully for an hour. On 19 January 2004 the District Court partly upheld the applicant's complaint of 12 March 2002 against the Tax Office, finding that the tax police officers had unlawfully tried to seize documents from the applicant which had been entrusted to him in the course of his professional activities, and that the masked officer had acted unlawfully in ordering the applicant to face the wall, searching him and requesting him to empty his pockets. The District Court further established that the applicant had been detained between 4.30 p.m. and 5.30 p.m. on 12 March 2002, but declined to declare that detention unlawful as the applicant had failed to provide any evidence in that regard. On 20 April 2004 the Poltava Regional Court of Appeal (“the Court of Appeal”) considered the appeal by the Tax Office. Referring to the exceptions to the jurisdiction of the courts listed in Article 248-3 of the CCvP, the Court of Appeal stated that the applicant's complaint could not be considered in the course of that type of judicial proceedings. It therefore quashed the judgment of 19 January 2004 and discontinued the proceedings in that case. On 20 May 2004 the applicant lodged an appeal in cassation against the decision of 20 April 2004. On 9 December 2008 the Higher Administrative Court rejected the applicant's appeal in cassation. The applicant did not provide a copy of that decision. On 7 May 2002, relying on Article 248-1 of the CCvP, the applicant lodged two complaints with the District Court requesting it to annul the court orders of 11 and 12 March 2002 authorising the search and seizure operations. He claimed that both orders were unlawful as they had been made in breach of the guarantees provided by the Bar Act. On 31 May 2002 the District Court rejected the complaints as inadmissible. It relied on Article 248-3 of the CCvP, under which the courts did not have jurisdiction for dealing with such complaints. On 10 October 2002 the Court of Appeal upheld the decisions of the District Court of 31 May 2002. On 15 October 2003 the Supreme Court rejected an appeal in cassation by the applicant against the lower courts' decisions in respect of his complaint against the search order. On 2 April 2008 the Higher Administrative Court rejected an appeal in cassation by the applicant against the lower courts' decisions in respect of his complaint against the seizure order. Article 110 of the Code provides, inter alia, that the acts and decisions of a body of inquiry can be challenged before a court. The relevant complaints shall be considered by the court during the preliminary hearing or the trial unless another procedure established by this Code applies. Article 177 of the Code provides, inter alia, that a search of a person's home and other property may be conducted only pursuant to a reasoned court order, except in emergencies. If a search is needed, the investigator lodges a request, approved by a prosecutor, with the court located in the district where the investigation is being carried out. A judge is required immediately to examine the request in the light of the case file, and, if necessary, to hear submissions from the investigator and the prosecutor, following which he may authorise the search request or reject it. A court order authorising the search is not subject to appeal. A refusal by the court to allow a search may be appealed against by the prosecutor within three days. Article 178 of the Code provides, inter alia, that the seizure of documents and other items relating to criminal proceedings found in a person's home or other property may be effected only on the basis of a reasoned court order made in accordance with the procedure laid down in Article 177 of the Code. Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission of a State body, legal entity or official could lodge a complaint with a court. Article 248-3 §§ 1 and 4 of the Code provided that such complaints were outside the courts' jurisdiction if they concerned a decision, act or omission by an official of a body of inquiry, pre-trial investigation authority, prosecutor's office or court which could be challenged by a different procedure. In accordance with Article 248-6 of the Code, if such a complaint concerned a dispute that had to be resolved in civil adversarial proceedings, the court had to decline to examine the complaint and explain to the claimant that he was entitled to lodge a civil claim. In this decision, the Constitutional Court declared Article 248-3 § 4 of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions, acts or omissions by officials of bodies of inquiry, pre-trial investigation authorities or prosecutor's offices in cases where the legislation provided only for a non-judicial remedy. It further found that that Article did give the courts jurisdiction to hear complaints concerning the decisions, acts or omissions of court officials if those decisions, acts or omissions were confined to the performance of administrative functions. The relevant provisions of the Act have been summarised in the judgment of Volokhy v. Ukraine (no. 23543/02, § 28, 2 November 2006). Section 10 of the Act provides that documents relating to an advocate's professional activity may not be examined, divulged or seized without the advocate's consent.

dev

001-115325

ENG

POL

ADMISSIBILITY

OSTROWSKA v. POLAND

Inadmissible

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

1. The applicant, Ms Henryka Ostrowska, is a Polish national, who was born in 1956 and lives in Mielec. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 11 July 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) (“SSB”) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 5. On 1 August 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 521 Polish zlotys (PLN). 6. On 30 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. 7. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. 8. On 3 December 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the appeal. 9. The applicant further appealed against the first-instance judgment. 10. On 19 May 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. This decision was served on the applicant on 22 June 2004. 11. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 12. Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case. 13. One hundred-and-four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eighty-one applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements. 14. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31-34, 15 September 2009.

dev

001-57950

ENG

FRA

CHAMBER

CASE OF ACQUAVIVA v. FRANCE

No violation of Art. 6-1

C. Russo

6. On 15 November 1987 at approximately 8 p.m. the officers of the Vescovato brigade of gendarmerie received a telephone call from Mrs R. informing them that an attack had just been carried out at her and her husband's farm at Querciolo, Sorbo Ocagnano (Haute-Corse). The perpetrator of the attack had been fatally wounded. When the officers arrived at the scene of the incident, they found the body of a man, identified at the morgue as being that of Jean-Baptiste Acquaviva, the applicants' son and brother. The deceased had been a militant nationalist on the run, whose photograph had appeared on police posters offering a reward for information leading to his arrest. R. was immediately placed in police custody, but was released at 1.30 a.m. on 16 November 1987. His wife was also questioned. A post-mortem report was drawn up on 17 November 1987. The following day the Bastia public prosecutor sought ballistic and toxicological reports, which were submitted on 4 December 1987 and 4 January 1988. 7. In two communiqués issued the day after the killing, the Corsican National Liberation Front (FLNC) - an organisation that had been dissolved in January 1983 - described the deceased as a "brother in arms" and a "martyr for the nationalist cause", deliberately assassinated by R. On 18 November 1987 Mr and Mrs R. left Corsica under false identities as the local police commander (capitaine de gendarmerie) had advised them that he could not guarantee their safety. The furniture disappeared from the R.s' farm on 20 November. 8. On 3 December 1987 the police investigation concluded that there was sufficient serious and consistent evidence to justify charging R. with fatal wounding, but that he had apparently been acting in self-defence. On 11 December 1987 the deceased's parents laid a complaint against R. for intentional homicide and filed an application to join the proceedings as civil parties. They wished to discover the circumstances of their son's death and requested a reconstruction of the events; they did not seek damages. On 14 January 1988 they lodged security for costs of 5,000 French francs (FRF) fixed by an order of 14 December 1987. 9. On 19 December 1987 the R.s' farm, which had been under police surveillance, was partly destroyed by a bomb attack. The investigation opened into this incident was closed on 2 January 1990 under the amnesty of 10 July 1989. 10. On 25 January 1988 an investigation was opened into an offence of fatal wounding by persons unknown. On the same day Judge Catalano was assigned to the investigation and the prosecutor's office requested an inquiry and a reconstruction of the events. 11. The applicants were interviewed on 8 April 1988. On 13 June 1988 the prosecutor's office called for evidence to be taken from the doctor who had signed the death certificate and the senior officer of the gendarmerie. These two persons were questioned on 25 August 1988. The civil parties were summoned to appear on 4 July 1988, but did not do so because their lawyer was unable to be present. On 2 September 1988 the investigating judge sought the opinion of the doctors who had carried out the post-mortem examination. They submitted their report on 23 September. On 20 September evidence was taken from the police officers concerned, as witnesses. 12. On 27 September 1988 the R.s' farm - which had been purchased in Spring 1988 by the Ministry of Agriculture - was placed under seal. 13. On 13 October 1988 the applicants were interviewed on the subject of the medical experts' report. They maintained their complaint and continued to stress the need for a reconstruction. On 20 October 1988 R. was summoned to give evidence, but he requested the judge to excuse him and did not appear on 3 November for the interview. 14. In additional submissions of 26 October 1988 the public prosecutor called for fresh expert reports, in particular a ballistic report. One month later the civil parties also sought further investigative measures. On 10 January 1989 the investigating judge visited Orly Airport, near Paris, to question R. as a "witness assisted by a lawyer" (temoin assisté) and his wife as an ordinary witness. 15. On 11 January 1989 the judge rejected the applications for investigative measures submitted by the prosecutor's office and civil parties. The prosecutor's office and the applicants challenged his decision. Mr Catalano, who had been appointed to another post, was replaced on 12 January 1989 by Judge Sievers. 16. The Bastia public prosecutor and the applicants appealed to the Indictment Division of the Bastia Court of Appeal, which ruled, in a preliminary decision of 22 February 1989, that the refusal to carry out the investigative measures requested adversely affected the civil parties' rights. In accordance with the principal public prosecutor's submissions, the Indictment Division quashed Judge Catalano's decision and ordered further investigative measures including a reconstruction of the events at the scene of the incident in the presence of R. and two ballistic experts. It assigned the task of carrying out the reconstruction to Judge Sievers and ordered that the costs of the expert reports be advanced out of public funds. 17. On 31 May 1989 the prosecutor's office lodged further submissions calling for Mr and Mrs R. to be brought to the scene of the incident for the purposes of the reconstruction. R. was interviewed as a "witness assisted by a lawyer" in Paris on 27 June 1989. 18. On 10 October 1989 the gendarmerie found that the seals put on the farm had been broken and that an item of evidence, the front door, which bore bullet marks, had been stolen. In a report submitted ten days later the senior police officer indicated that this had made it impossible to carry out the reconstruction under satisfactory conditions, in view in particular of the fact that there was no furniture in the house. The investigating judge visited the scene on 23 October 1989. He questioned R. in Paris on 26 October. 19. On 31 October 1989 the Bastia public prosecutor's office called for the opening of an investigation in respect of the destruction of the seals and the theft of the door by persons unknown. This investigation was subsequently terminated by a decision finding that there was no case to answer. 20. On 7 November 1989 the investigating judge ordered an inquiry into the removal of the furniture and the disappearance of the door. He visited the site on 9 November and interviewed the applicants the following day in connection with the preparations for the reconstruction. In the course of this inquiry the judge questioned the police officers concerned on 15 November 1989, Mr and Mrs R.'s son on 8 December and on 18 December the prosecutor who had been called out on the night of the killing. On 20 December he gave instructions for evidence to be taken. 21. The former public prosecutor of Bastia told him on 15 January 1990 that it had been planned from the beginning of the investigation to organise a reconstruction. The reconstruction, which had been scheduled for 16 January 1990 and organised with extensive security precautions, did not take place because of the absence of R. and the police officer who had conducted the inquiry and the applicants' refusal to attend in such circumstances. 22. The following day the applicants requested that coercive measures be taken in regard to Mr and Mrs R. On 19 January 1990 the prosecutor's office called for the transmission of the documents to the Indictment Division for a ruling on the new applications and a decision on the further procedure. 23. On 29 January 1990 Judge Sievers forwarded the file to the Indictment Division, which, on 7 March 1990, ordered that it be communicated to the principal public prosecutor. On 21 May 1990 the latter called for a reconstruction of the events. 24. On 12 June 1990 the applicants laid a complaint concerning the destruction of the seals put on the R.s' house and the theft of the front door; they also applied to join the proceedings as civil parties. This complaint for theft, concealment and destruction of evidence was declared inadmissible on technical grounds. 25. On 13 June 1990 the Indictment Division of the Bastia Court of Appeal held a hearing. At the opening of the hearing the applicants protested at the presence in the courtroom of the lawyers of R., a "witness assisted by a lawyer". By an interlocutory decision of the same day, the court allowed the objection and reserved judgment on the remaining issues until 20 June. 26. R. appealed on points of law to the Court of Cassation and requested an expedited hearing of his appeal. The Bastia Indictment Division decided on 20 June 1990 to stay the proceedings pending the decision of the Court of Cassation. The same day the President of the Division instructed the investigating judge not to take any new steps until further notice. 27. On an application by the public prosecutor, and then by the Principal Public Prosecutor, the Indictment Division, by a decision of 27 June 1990, quashed the five investigative measures effected after 29 January 1990. 28. On 27 November 1990 the Court of Cassation dismissed R.'s appeal, which it declared inadmissible on the ground that his status as a "witness assisted by a lawyer" did not confer on him the standing of party to the proceedings. The status of "witness assisted by a lawyer" introduced by Law no. 87-1062 of 30 December 1987 was intended to afford persons who are the subject of a complaint laid with a civil party application the same guarantees as those accorded to persons charged (inculpés) or, to use the current terminology, placed under judicial investigation (mises en examen). 29. On an application by its principal public prosecutor, the Court of Cassation decided on 27 February 1991 to remove jurisdiction from the Bastia Indictment Division. On grounds of public safety it transferred the proceedings instituted against persons unknown for fatal wounding to the Indictment Division of the Versailles Court of Appeal. 30. That Division examined the case file as communicated by Judge Sievers by his order of 29 January 1990. On 21 June 1991 it gave a preliminary decision in which it allowed the principal public prosecutor's application and held "that it was not necessary to carry out the reconstruction ordered by the Bastia Indictment Division". The reconstruction could no longer "be effected in satisfactory conditions. In addition the participation of Mr and Mrs R. in such events would entail unacceptable risks in view of the insecurity reigning in the region in question according to police reports". It annulled all the measures taken with a view to the reconstruction, delegated its President to continue the additional investigative measures decided on 22 February 1989 and ordered that from that point the costs should be borne by the civil parties, who might be required to lodge further security. 31. By letter of 27 August 1991 the President of the Indictment Division asked the applicants to inform him what steps they wished to have carried out and on 29 October 1991 the Indictment Division communicated the investigation file to the prosecutor's office for its final submissions. 32. On 30 October 1991 the Versailles prosecutor's office called for an order finding that there was no case to answer. On 19 November 1991 the applicants lodged pleadings seeking a reconstruction of the events. In a decision of 10 December 1991 the Versailles Indictment Division found that R. had been acting in self-defence and that there was not sufficient evidence to justify charging anyone with the offence that was the subject of the proceedings. It therefore ruled that there was no case to answer. 33. The applicants lodged an appeal on points of law against this decision. In a judgment of 14 April 1992 their appeal was declared inadmissible by the Criminal Division of the Court of Cassation on the ground that the pleadings had not been lodged with the registry of the Court of Appeal but had been sent directly to the Court of Cassation without using the services of a lawyer with a right of audience before the Court of Cassation. The grounds of appeal had not therefore been validly submitted to the Court of Cassation. The decision was served on the applicants on 1 September 1992. 34. Article 2 of the Code of Criminal Procedure provides as follows: "All those who have personally suffered from the damage directly caused by a serious offence (crime), less serious offence (delit) or petty offence (contravention) may bring civil party proceedings (action civile) to seek compensation for such damage. Discontinuance of such proceedings can neither halt nor stay the criminal proceedings, without prejudice to the cases provided for in paragraph 3 of Article 6 [of the present Code]." However, in the case of petty offences, only the prosecuting authority may set in motion the criminal proceedings. Under paragraph 3 of Article 6 of the Code of Criminal Procedure, "[Criminal proceedings] may, in addition, be discontinued by settlement where express provision is made for this possibility. They may likewise be discontinued in the event of withdrawal of the complaint where the complaint was an essential condition for the proceedings to be brought." 35. A civil party application (constitution de partie civile), which has the effect of staying the proceedings in the civil courts, may be made at any time to the investigating judge or the indictment division up to the decision concluding the investigation. It may be opposed by the prosecuting authority, by the person placed under investigation or by another civil party, or the investigating judge may, of his own motion, declare it inadmissible by an order which must state reasons and which is open to appeal (Article 87 of the Code of Criminal Procedure). The decision of the investigation authority allowing a civil party application to join the proceedings does not prejudge that of the trial court as to the admissibility of that application. 36. The intervention of a civil party may be motivated solely by the wish to support the public prosecution and to ensure that the guilt of the accused is established. For this reason, according to the case-law, a civil party application may be admissible even if no claim for damages is possible. As a civil party, the victim is kept informed of the steps of the investigation, may appeal against decisions which harm his interests and has access to the investigation file under the same conditions as the person placed under investigation. 37. When an investigation that has been opened on the basis of a civil party complaint is terminated by an order finding that there is no case to answer, any person who was the subject of the complaint may seek damages in the criminal and civil courts and request that criminal proceedings be brought against the civil party for false accusation; the prosecuting authority may also summons the civil party to appear in the criminal court before which the investigation was conducted. If the civil party application is held to have been improper or vexatious, the court may impose a civil fine not exceeding FRF 100,000 (Article 91 of the Code of Criminal Procedure).

dev

001-68114

ENG

SVK

CHAMBER

CASE OF INDRA v. SLOVAKIA

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 with regard to impartiality;Not necessary to examine Art. 6-1 with regard to fairness;Not necessary to examine under Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

Nicolas Bratza

9. The applicant was born in 1931 and lives in Bratislava. 10. The facts of the case, as submitted by the parties, may be summarised as follows. 11. On 17 June 1982 the applicant was served a notice of dismissal from job under Article 46 § 1 (f) of the Labour Code for an especially serious breach of work discipline in that he had been absent from his work for several days without an excuse. 12. On 18 June 1984 the Bratislava III District Court (then Obvodný súd, at present Okresný súd) rejected the applicant’s request for a judicial ruling declaring the dismissal null and void. 13. On 19 November 1985 a threejudge Chamber of the Bratislava City Court (then Mestský súd, at present Krajský súd) dismissed the applicant’s appeal and upheld the judgment of 18 June 1984. The Chamber deciding on the appeal included judge S. 14. On 12 February 1993 the applicant and his wife took civil proceedings against the legal successor of his former employer before the Bratislava I District Court. They sought the applicant’s rehabilitation under the Extra-Judicial Rehabilitations Act (Law no. 87/1991 Coll. - Zákon o mimosúdnych rehabilitáciách) in respect of his dismissal in 1982. 15. In a judgment of 27 September 1994, following a hearing held on the same day, the Bratislava I District Court considered that the action aimed at obtaining a judicial order to the defendant to issue a formal confirmation that the applicant had been dismissed in 1982 for politically motivated reasons and in violation of fundamental human rights and freedoms within the meaning of section 21 (1) of the Extra-Judicial Rehabilitations Act. The court rejected the action as being unsubstantiated. 16. On 6 December 1994 the applicant and his wife appealed to the Bratislava City Court and, on 10 January 1995, they supplemented the appeal (odvolanie). They argued that the District Court had misinterpreted the action in that it had not been aimed at obtaining a judicial order against the defendant, but at obtaining a declaratory judgment to the effect that the applicant’s dismissal had been based on the grounds referred to in section 21 (1) of the Extra-Judicial Rehabilitations Act. They further complained that the District Court had overlooked the fact that the action had also been brought by the applicant’s wife. 17. On 28 February 1995 the Bratislava City Court quashed the District Court’s judgment of 27 September 1994 and remitted the case to the District Court, holding that the latter had failed to determine the action insofar as it had been brought by the applicant’s wife. 18. On 31 October 1995, following a hearing held on the same day, the District Court again dismissed the action after examining testimonies of the parties, the applicant’s personal file with his former employer and the casefile concerning the applicant’s proceedings in the 1980s. The District Court found it established that the applicant had been dismissed from his work in 1982 for unauthorised absence for several days, i.e. an especially serious breach of work discipline which had had no political subtext. In so far as the applicant relied on section 21 § 1 (c) of the Extra-Judicial Rehabilitations Act, he had failed to prove that his dismissal had been for reasons of political persecution or in violation of generally recognised human rights and freedoms. The District Court finally found that the applicant’s wife had no cause of action in the case, in that the dismissal did not directly concern her. 19. On 25 January 1996 the applicant and his wife filed an appeal with the City Court and on 2 February 1996 they submitted further particulars of the appeal. They argued that the District Court had misinterpreted the action, incorrectly interpreted and assessed the facts and arbitrarily dismissed the action. 20. On 11 April 1996, following a hearing of the appeal held on the same day, the City Court upheld the District Court’s judgment of 31 October 1995 and granted leave for an appeal on points of law to the Supreme Court. It held that the District Court had adequately established the facts of the case and concurred with its factual and legal conclusions. 21. On 6 August 1996, through his lawyer, the applicant filed an appeal on points of law (dovolanie) with the Supreme Court. He argued that the lower courts had erred in their determination of the facts and law in his case. 22. In reply to the appeal on points of law, the defendant filed observations which however the courts did not transmit to the applicant. 23. On 28 November 1996 a three-judge Chamber of the Supreme Court rejected the appeal on points of law after deliberating in camera. As to the defendant’s observations in reply to the appeal on points of law, the Supreme Court noted that the defendant had invited the Supreme Court to reject that appeal as unfounded since the lower courts’ decisions had been correct and the appeal had produced no new relevant information. The Supreme Court found that the District Court and the City Court had adequately established the relevant facts and fully endorsed their factual and legal conclusions. The Supreme Court further discerned no procedural or other flaws within the meaning of Articles 237 and 241 § 2 of the Code of Civil Procedure. The Supreme Court Chamber included judge S. who had been a member of the threejudge Chamber of the City Court that, on 19 November 1985, had rejected the applicant’s appeal in the proceedings on his dismissal in 1982. No appeal lay against the Supreme Court’s judgment. 24. The purpose of the Rehabilitation Act, as set out in section 1 (1), is to endeavour to mitigate the consequences of certain injustices and property losses occurring between 25 February 1948 and 1 January 1990 by acts falling within the sphere of civil law and labour law, and by administrative acts 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. 25. Pursuant to section 21 (1), legal acts terminating a person’s contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void. Under its letter (c) this provision applies, among others, to situations where the person concerned was dismissed under Article 46 § 1 of the Labour Code (Law no. 65/1965 Coll.), as amended by amendment no. 153/1969 Coll., on the ground that he or she had acted in violation of the socialist social order and, therefore, lacked the confidence requisite for continuing in his or her function or position. 26. Section 22 (1) provides that the former employer or its legal successor shall issue, at the request of the person concerned, a certificate that the latter’s contract of employment was terminated for reasons mentioned in section 21 (1). Paragraph 3 of this section entitles the person concerned to claim the determination of this issue by a court when the certificate is not delivered within three months. 27. The rules concerning disqualification of judges are laid down in Articles 14 to 17. Under Article 14 § 1 judges are disqualified from dealing with a case if there may be doubts about their impartiality in relation to the subjectmatter of the case, the parties to the proceedings or the parties’ legal representatives. 28. Pursuant to Article 15 § 1, as soon as a judge learns of facts disqualifying him or her from dealing with a case, he or she is to notify the president of the court accordingly without any delay. 29. Under Article 15 § 2, parties to civil proceedings are obliged to inform the court immediately of any facts disqualifying a judge from dealing with their case. It further confers a right on the parties to civil proceedings to state their views if the disqualification of a judge is being considered. 30. A decision on removal of a judge from a case is to be taken by a Chamber of the higher instance court (Article 16 § 1). 31. Legal representation in civil proceedings by a lawyer (advokát) is addressed in Article 25. Pursuant to its paragraph 2 the lawyer is obliged to make effective use of all available legal means in the interest of the party whom he or she represents. 32. The procedure in respect of appeals on points of law is defined in Part Four, Chapter Three of the Code. Under Article 236 (1) an appeal on points of law is available against final decisions of a court of appeal if the law so provides. 33. Pursuant to Article 237 an appeal on points of law is admissible against any decision of the appellate court where: (a) the decision concerns a subject-matter which falls outside the jurisdiction of courts, (b) a person acting as a party to the proceedings lacked capacity to be a party to court proceedings, (c) a party to the proceedings lacked procedural capacity and was not duly represented, (d) the same matter has been earlier determined by a final decision or if other proceedings in the same matter started earlier, (e) no motion to institute proceedings has been filed despite the fact that such a motion was required by the law, (f) a party has been prevented, by the appellate court’s conduct, from acting before the court, (g) the case was decided upon by a disqualified judge or the court’s composition was incorrect. 34. Legal representation in appeals on points of law is mandatory (Article 241 § 1). 35. In accordance with Article 241 § 2 an appeal on points of law may only be based on the following grounds: (a) flaws in the proceedings as set out in Article 237 [of the Code of Civil Procedure], (b) other flaws in the proceedings which resulted in a wrong decision on the merits, (c) a court’s decision made on the basis of a factual finding which, to a substantial extent, is not supported by the evidence taken, (d) a court’s decision based on an erroneous legal assessment of the matter. 36. The scope of the Supreme Court’s examination of an appeal on point of law is in principle limited to the grounds of appeal as submitted by an appellant (Article 242 § 1). Except for the flaws listed under Article 237 and flaws that have resulted in an incorrect decision on the merits, the Supreme Court does not review ex officio any procedural flaws that have not been complained of by an appellant. 37. When determining an appeal on points of law, the Supreme Court in principle takes no evidence (Article 243a § 2). 38. The Supreme Court dismisses the appeal on points of law if it finds that the decision of the court of appeal is correct. Otherwise it quashes the appellate decision (Article 243b § 1).

dev

001-97930

ENG

MKD

CHAMBER

CASE OF TOMISLAV JOVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" (No.1)

Violation of Art. 6-1

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

4. The applicant was born in 1951 and lives in Bitola. 5. On 9 November 1987 the applicant entered into an agreement with Mr V.G. (“the defendant”) under which the latter had agreed to produce and install some furniture in the applicant's house. The applicant made an advance payment. 6. On 12 April 1993 the applicant claimed annulment of the agreement since the defendant had not complied with it. 7. On 1 February 1994 the applicant specified his claim and sought compensation. 8. On 16 June 1995 the applicant lodged another compensation claim on a different ground. On the same date, the then Bitola Municipal Court (“the first-instance court”) ruled partly in favour of the applicant ordering a cross-cancellation of debts (пребивање). It made no decision in respect of the applicant's compensation claim since it had not been specified. On 26 March 1996 the Bitola Court of Appeal confirmed the decision on the merits and quashed it in respect of the trial costs. 9. After the defendant died, the first-instance court invited defendant's heirs (“the heirs”) to submit a court decision recognising them as his successors. 10. On 10 March 1997 the applicant successfully requested removal of the judge. 11. On 8 December 1998 the applicant further specified his claim. 12. After one hearing being adjourned due to the applicant's absence, the first-instance court dismissed the applicant's compensation claim on 19 January 2000. This decision was confirmed on the merits by the Bitola Court of Appeal's decision of 26 October 2000. On 10 April 2003 the Supreme Court dismissed the applicant's appeal on points of law of 31 March 2001. This latter decision was served on the applicant on 25 August 2003. 13. The applicant's dismissal was annulled by a decision of the Bitola Court of Appeal of 16 October 1997. He was reinstated on 7 November 1997. 14. On an unspecified date in 1998, the applicant brought an action against his employer claiming compensation for the unlawful dismissal. 15. On 8 December 2000 the first-instance court ruled partly in his favour. This decision was upheld by the Bitola Court of Appeal and the Supreme Court with decisions of 22 May 2001 and 13 March 2003, respectively. This latter decision was served on the applicant on 13 June 2003.

dev

001-111938

ENG

FIN

CHAMBER

CASE OF X v. FINLAND

Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-e - Persons of unsound mind);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

George Nicolaou;Lech Garlicki;Ledi Bianku;Matti Mikkola;Nebojša Vučinić;Nicolas Bratza;Zdravka Kalaydjieva

6. The applicant is a paediatrician, born in 1943, who continued in private practice after her retirement. 7. On 30 November 1995 a mother brought her daughter, V., born in 1993, to the applicant’s practice to be examined, suspecting that the girl had been sexually abused by her father. The applicant examined her and took photographs. 8. On 13 June 2000 the girl was taken into public care because of her mother’s mental health problems and was placed in a family support centre. 9. The events now in issue began on 16 December 2000, when the mother failed to return V. to the family support centre after spending time with her. It appears that the centre was going to close during the Christmas holidays and it was alleged during the domestic proceedings that the girl had indicated to her mother that she was unwilling to go to her father’s home for the holidays. 10. V. fell ill and was taken to the applicant’s practice by her mother on 26 December 2000. When she left the practice V. remained with her mother until she was found by the authorities on 22 April 2001. 11. On 18 April 2001 the applicant was arrested as a suspect in the deprivation of V.’s liberty, which had allegedly begun on 16 December 2000 in [town A]. The applicant’s home and practice were searched the same day. On 20 April 2001 the District Court (käräjäoikeus, tingsrätten), having heard the applicant in person, remanded her in custody, considering it likely that she would otherwise complicate the resolution of the case and continue to engage in criminal activity. 12. By five separate decisions between May and September 2001, given at the request of the police, the District Court granted permission to obtain information about calls to and from telephones used by V.’s mother and a third suspect during different periods between 15 December 2000 and 22 April 2001. The information gathered showed that calls had also been made from and to a telephone in the applicant’s possession. 13. V. was found on 22 April 2001. On 25 April 2001 the applicant was released. Following her release, the applicant complained on several occasions, inter alia, about the District Court’s decision of 20 April 2001 remanding her in custody, and requested an investigation of, inter alia, the actions of a number of police officers during her arrest and related events. 14. On 11 May 2001 the police issued an interim restraining order in respect of the applicant, the terms of which were that she was not allowed to visit certain places frequented by V. Those places were specified in the decision. 15. On 1 June 2001 the District Court found that it was unlikely that the applicant would or could continue to harass the girl or commit an offence against her. It therefore quashed the restraining order. 16. On 18 April 2002 the public prosecutor preferred charges against V.’s mother, the applicant and a third person. The applicant was charged with seriously depriving V. of her liberty during the period from 16 December 2000 to 22 April 2001 or, in the alternative, aiding and abetting the commission of that offence. The applicant had allegedly, through her opinions, advice and actions, contributed to the mother’s decision to abduct her child on 16 December 2000 in [town A] and, after the mother had abducted her child and taken her at Christmas 2000 at the latest to [town B], the applicant had, with the mother’s consent, unlawfully isolated V. As the deprivation of liberty had lasted a long time, had been planned and premeditated and had endangered the girl’s emotional development, the offence was considered aggravated. 17. In her written reply to the charge the applicant denied that she had in any way had an impact on the mother’s actions. She had only provided medical treatment for V. It had not been shown that the suspicions of sexual abuse were unfounded. 18. On 17 July 2002 and 22 January 2003 the applicant unsuccessfully made an application to the Office of the Prosecutor General (valtakunnansyyttäjä, högsta åklagaren), requesting that the public prosecutor be replaced by an impartial one and alleging a number of irregularities in the performance of his duties. 19. On 21 August 2002 the District Court appointed a public defender to represent the applicant – Ms M.K., a member of the Bar – as the representative chosen by the applicant – Mr J.R., a civil engineer – was not considered capable of representing her, given the gravity of the alleged offence. The applicant contested the appointment of Ms M.K. in a written representation, without however naming a lawyer of her choosing, although invited to do so. On 21 October 2002 the Court of Appeal (hovioikeus, hovrätten) rejected the applicant’s representation. 20. At a preliminary hearing on 19 September 2002 the District Court ordered, against the applicant’s wishes, that the case be examined in camera as it concerned sensitive issues relating to a child’s life. It also held that the applicant was unable to defend herself, given the nature of the case. The applicant unsuccessfully complained to the higher courts about this decision. 21. The case was heard over four days, beginning on 22 October 2002. The applicant informed the court that she considered that her public defender, Ms M.K., who was present at the hearing, was not entitled to plead on her behalf. The applicant declared that she would defend herself. 22. The District Court heard statements from the applicant and the two other defendants. It also heard V.’s father, representing V., and ten witnesses. On 24 October 2002 the court rejected as irrelevant a request by the applicant that V., Mr J.R., a police inspector and two lawyers be heard as witnesses regarding the applicant’s deprivation of liberty and the alleged misinterpretation of the facts by the public prosecutor, which the applicant described as criminal. The applicant then reiterated her request, stating that the witnesses should testify about the background to the offence with which she was charged. The District Court also rejected that request, noting that she had not given any reasons which would have justified hearing the witnesses she proposed. 23. On 25 October 2002 the District Court ordered the applicant and V.’s mother to undergo a psychiatric assessment under Chapter 17, Article 45, of the Code of Judicial Procedure (oikeudenkäymiskaari, Rättegångs Balk) and section 16(1) of the Mental Health Act (mielenterveyslaki, mentalvårdslagen), and adjourned the proceedings for the assessment to take place. The applicant then went into hiding. 24. Dr K.A., a psychiatrist, noted in a written medical opinion of 30 December 2002 that he had met the applicant twice, on 14 November and 30 December 2002, and that in the two conversations he had had with her he had not observed any signs of mental disorder and that, in his opinion, she was not in need of involuntary care. He emphasised, however, that he had not carried out a psychiatric assessment, as such an assessment could only take place in a hospital and not in a private consulting room. 25. Niuvanniemi Hospital, one of the two State mental hospitals, informed the applicant that it was ready to receive her from 2 January 2003. At the applicant’s request, the assessment was postponed first to 20 January 2003 and then to 12 March 2003. The applicant failed, however, to appear at the hospital. 26. By a letter dated 8 January 2003 the applicant proposed Mr P.S. as her new representative. On 13 January 2003 the District Court appointed Mr P.S., a member of the Bar, as the applicant’s new public defender. 27. On 25 March 2003 the District Court ordered the applicant’s arrest and detention in absentia on the ground that she was seeking to evade trial, as she had not appeared at Niuvanniemi Hospital. The applicant was represented at the hearing by Mr P.S. The applicant lodged a complaint, alleging insufficient grounds for detention and procedural errors. On 28 April 2003 the Court of Appeal dismissed the complaint as unfounded. On 16 June 2003 the Court of Appeal dismissed a further complaint by the applicant without considering its merits. The applicant later lodged a third complaint, which was dismissed as unfounded by the Court of Appeal on 18 March 2004. The Supreme Court refused requests by the applicant for leave to appeal. 28. On 9 October 2003 the Court of Appeal rejected a complaint by the applicant in connection with the order that she undergo a psychiatric assessment, finding the applicant’s allegations of procedural errors in the District Court proceedings unsubstantiated. On 30 March 2004 the Supreme Court refused leave to appeal. 29. After receiving a request from Mr P.S. to withdraw, on 5 May 2004 the District Court, having given the applicant an opportunity to be heard in writing, appointed Mr M.S., a member of the Bar, as her new public defender. On 23 June 2004 the Court of Appeal rejected a complaint by the applicant against this decision, finding that she was unable to defend herself and that Mr M.S. was not biased as she had alleged. It also rejected a request by the applicant for an oral hearing as manifestly unnecessary. On 27 June 2005 the Supreme Court refused leave to appeal. 30. On 15 June 2004 the Court of Appeal rejected a complaint by the applicant that, inter alia, the District Court Judge who had ordered her psychiatric assessment was biased. A request by the applicant that its decision be supplemented was rejected by the Court of Appeal on 12 July 2004. On 27 June 2005 the Supreme Court refused leave to appeal. 31. By a letter dated 2 September 2004 the District Court informed the applicant that it would hold an oral hearing on 20 September 2004 concerning her detention. The applicant was informed that other aspects of the criminal charges against her would not be dealt with at that hearing and no evidence would be taken other than on her detention. 32. On 20 September 2004 the District Court issued a further order for the applicant’s arrest and detention, finding that she was still seeking to evade trial. She was represented at the hearing by her public defender Mr M.S. On 9 November 2004 the Court of Appeal dismissed a complaint by the applicant concerning the decision of 20 September 2004 without considering its merits, as it had been drawn up by Mr J.R., who did not fulfil the requirements set out in Chapter 15, Article 2, of the Code of Judicial Procedure. It was noted that a public defender had been appointed to represent the applicant. A further complaint by the applicant was dismissed by the Supreme Court on 29 September 2005 without consideration on the merits. 33. On 12 October 2004 the applicant was arrested. 34. On 15 October 2004, having heard the applicant in person, the District Court remanded her in custody, finding that she was aware of the psychiatric assessment to be conducted and the subsequent arrest warrants. The court stated that the applicant had been evading trial, of which the assessment formed a part. The applicant was ordered into police custody and from there to a mental institution to be designated by the National Forensic Medical Authority (terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården). 35. On 11 November 2004 the applicant was taken to Vanha Vaasa Hospital, the other State mental hospital, for a psychiatric assessment, the duration of which was initially to be two months. The assessment was carried out by Dr A.K. a specialist in psychiatry, adolescent psychiatry and forensic psychiatry. During the assessment the applicant was interviewed by Dr A.K. on ten occasions. She also saw two psychologists, G.W-H. and A.K-V. She refused to undergo somatic and neurological examinations and special examinations, such as magnetic resonance imaging of the brain. She also refused laboratory tests and psychological tests. 36. On 3 January 2005 Dr A.K. gave his written opinion to the National Forensic Medical Authority on the basis of the assessment conducted between 11 November 2004 and 3 January 2005. His conclusions were that the applicant was suffering from a delusional disorder and had not been criminally responsible at the time of the alleged offence. Dr A.K. also found that the criteria for involuntary confinement, set out in section 8 of the Mental Health Act, were met and that the applicant could not be heard at the trial. Her capacity to look after her own interests was diminished by her mental illness, and she was thus in need of a guardian for the criminal proceedings. 37. On the same date the applicant asked the National Forensic Medical Authority for a second opinion. On 5 January 2005 that authority informed the applicant that ordering a psychiatric assessment of a defendant in a criminal case was outside its authority, and she should therefore direct her request to the court. 38. By an interlocutory decision of 20 January 2005 the Forensic Psychiatry Board of the National Forensic Medical Authority (terveydenhuollon oikeusturvakeskuksen oikeuspsykiatristen asioiden lautakunta, nämnden för rättspsykiatriska ärenden vid rättsskyddscentralen för hälsovården – hereafter “the Forensic Psychiatry Board”) requested Dr A.K. to supplement his opinion, as far as possible, by giving the applicant psychological tests and by submitting such background information as would enable a comparison to be made between the applicant’s ability to manage in her earlier life and her ability to manage at the time of the alleged criminal events. Dr A.K. was also invited to provide detailed reasons why he considered that the criteria for involuntary care were met and why outpatient treatment was not considered sufficient. The results of the supplementary examination were to be submitted to the National Forensic Medical Authority as soon as possible. 39. The supplementary examination was completed on 4 February 2005. The applicant again refused psychological tests by the hospital staff, doubting their impartiality. In his report, dated the same day, Dr A.K. found that the applicant was suffering from a psychotic delusional disorder and that her condition had already been present prior to the events leading to the criminal charges. The applicant had observed indications of sexual abuse which other experts had not been able to detect. In Dr A.K.’s opinion, the applicant was in need of involuntary psychiatric treatment in order to recover from her disorder, which mainly related to judicial matters, but also to a delusion of grandeur as to the correctness of her own actions. Further, as a doctor she was endangering other people’s well-being by prescribing them treatment which put their health at risk. Because the applicant had for a long time evaded psychiatric assessment, and as she opposed treatment, outpatient treatment would not be sufficient. In conclusion, Dr A.K. considered that the applicant was paranoid and that she had made accusations against various authorities about continued abuse of office. She had become entangled in the tiny details of her own case without being able to perceive the wider picture. He considered that her delusional disorder had reached the level of psychosis, which distorted her conception of reality. Owing to her illness, she did not understand the unlawfulness and repercussions of her actions and she had been psychotically deluded when she had taken part in the deprivation of a child’s liberty. Moreover, she was in denial of her illness. 40. The applicant sent a number of letters to the Forensic Psychiatry Board, in which she criticised the psychiatric assessment conducted by Dr A.K., among other things. She also submitted to the Board Dr K.A.’s divergent medical opinion of 30 December 2002 (see paragraph 24 above). 41. On 17 February 2005 the National Forensic Medical Authority submitted its opinion on the psychiatric assessment to the District Court under section 16(3) of the Mental Health Act, finding that the applicant had not been responsible for her actions at the time of the offence. 42. On 23 February 2005, the psychiatric assessment being complete, the District Court ordered the applicant’s release from detention. She was, however, to remain in hospital for treatment, as ordered on 17 February 2005 by the Forensic Psychiatry Board. 43. On 17 February 2005 the Forensic Psychiatry Board ordered, on the basis of Dr A.K.’s proposal, that the applicant receive involuntary treatment in Vanha Vaasa Hospital. It considered that she was suffering from a delusional disorder, which had affected her for years and which made her incapable either of seeing a matter from a viewpoint other than her own or of questioning the correctness of her own conclusions. She suspected that the authorities had “ganged up” on her. During the psychiatric assessment she had tried, as a medical doctor, to take a stand regarding the treatment of other patients on the ward. The delusional disorder, if not treated, would considerably worsen her mental illness or seriously endanger her health and the health of others. No other mental health services were considered adequate, having regard to the fact that the applicant did not consider herself to be mentally ill. The decision referred to sections 8, 17(1) and 17a of the Mental Health Act. 44. The applicant considered that she was not in need of mental health treatment, and wished to obtain a second opinion on her need for treatment. However, at the beginning of February 2005 the hospital refused to allow a Dr M-P.H. to visit her during the ongoing psychiatric assessment. 45. The initiation of medication was discussed with the applicant on 21 March 2005. She was given the opportunity to take medication orally, but she repeatedly refused to do so. Owing to the applicant’s resistance, the administering of medication began with involuntary injections of Zyprexa. As the applicant had made it clear that she would not cooperate, it was decided to continue her medication by giving long-acting injections of Risperdal Consta every two weeks, starting on 31 March 2005. The basis of the decision was explained to the applicant and she was also given information about the drug. The issue of medication was discussed with the applicant on several occasions after that. She was encouraged to take it orally, but she persistently refused. 46. As the applicant’s core symptoms persisted after two and a half months of medication, it was decided on 22 June 2005 to increase the dosage of Risperdal Consta from 25 milligrams to 37.5 milligrams. It was reduced to 25 milligrams again from 16 November 2005. 47. The applicant alleged that when she had questioned the forcible administering of medication, she was informed that it was intended to cure her telephone surveillance delusion. The applicant argued that the surveillance had taken place and that there had been no delusion on her part. 48. On 7 July 2005 the applicant claimed to have been assaulted in connection with the forcible administering of medication. She had resisted, as she considered the medication unnecessary, whereupon she had been dragged by her arms and legs to her room. When she was put on the bed her thigh had hit the edge of the bed. She had reported the incident to the police, who had asked a medical doctor, Dr S.Ö., to examine her, which he did on 28 July 2005. In his medical opinion of 5 August 2005 he noted that the applicant had a 10 cm bruise on her thigh, which could have been caused in the manner described by the applicant. 49. On 22 July 2005 the head physician of the hospital decided to continue the applicant’s involuntary treatment. 50. In a written statement of 17 August 2005 to the Administrative Court the head physician of Vanha Vaasa Hospital, M.E., noted that the applicant was still in denial of her illness and very strongly opposed medical treatment. She was literally fighting back, and this had resulted in several difficult situations when attempts were being made to proceed with the administering of medication in a manner which would be safe for both the applicant and the hospital staff. 51. It appears that in August 2005 enquiries were made about a possible transfer of the applicant to a different hospital in her home town. However, that hospital did not consider itself able at that point to accept responsibility for the applicant’s care. 52. The applicant alleged that she was still suffering side effects from the medication. The applicant’s patient records indicate that the alleged side effects could not be objectively verified. The applicant refused to undergo further medical examinations whereby any side effects could be detected. 53. On 3 October 2005 the applicant was visited by Dr E.P., a general practitioner at an occupational health care centre. In his opinion of 5 October 2005 Dr E.P. emphasised that he did not specialise in psychiatry and he could not therefore take a stand as to the diagnosed delusion on the basis of one visit. He noted, however, that the applicant had been lucid and well-orientated. During their conversation he had not observed any signs of psychosis or delusion. In his capacity as a general practitioner, he considered that the conditions for involuntary treatment were not met. 54. On 22 October 2005 the applicant was visited by a psychiatrist, Dr M-P.H., who in a written medical opinion of 25 October 2005 considered, as an outsider, that the choice of medication for the applicant (37.5 milligrams of Risperdal Consta injected into the muscle every two weeks) seemed excessive, given the patient’s age and state of health. Furthermore, he considered that the involuntary and forced medication fulfilled the constitutive elements of assault. In conclusion, he considered that open-care measures were possible and that the danger posed by the applicant to herself and others had been considerably exaggerated, and accordingly that the criteria for involuntary care were not met. 55. It appears from the applicant’s patient records that from November 2005 at the latest she was no longer physically resisting the injections, although she was still verbally opposing her medication. 56. On 19 November 2005 the hospital decided to move the applicant from the closed ward to an open one. 57. On 24 November 2005 the applicant agreed to blood tests. 58. On 21 December 2005 the applicant again saw Dr M-P.H., who in a written medical opinion of 21 December 2005 considered that the conditions for involuntary care were not met. 59. The applicant spent Christmas at home. She had with her a dose of Risperdal Consta, which she injected during her holiday with the assistance of a nurse. 60. On 9 January 2006 it was decided, by mutual agreement with the applicant, that the medication should be terminated, as she was not at all motivated to take it. 61. On 20 January 2006 the head physician of the hospital took a further decision to continue the applicant’s involuntary care. 62. On 27 January 2006 the applicant was discharged from hospital. 63. On 30 May 2006 Dr M.E. considered that the grounds for continuing the involuntary care under section 8 of the Mental Health Act no longer existed, whereupon the treatment was officially terminated by a decision of the National Forensic Medical Authority of 22 June 2006. 64. On 23 February 2005 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen) against the decision of 17 February 2005 by the Forensic Psychiatry Board, arguing that there was no legal basis for the involuntary care. She alleged that Dr A.K. had erred in his assessment. She relied, inter alia, on the above-mentioned medical opinion of Dr K.A., who had seen her twice, in November and December 2002, and who had not found any signs of mental illness on the basis of those meetings. She alleged that there was no other reason for the forced medication than the hospital doctors’ attempt to conceal their incorrect diagnosis. 65. On 4 March 2005 the Supreme Administrative Court found no reason to stay execution pending its proceedings. 66. On 30 June 2005 the Supreme Administrative Court prohibited Mr J.R. from acting as the applicant’s representative. Under Chapter 15, Article 10a(2), of the Code of Judicial Procedure the applicant was invited to inform the court of her choice of counsel. Subsequently, the applicant was represented by Ms H.M., counsel chosen by her. She was granted legal aid. 67. On 30 August 2005 the Supreme Administrative Court decided to hold an oral hearing in the case. 68. On 29 and 30 September 2005 the applicant requested the court to postpone the oral hearing until she had obtained an impartial medical opinion and until she had recovered from the side effects of her medication. On 3 October 2005 she informed the court that she had fallen ill and again requested that the hearing be postponed. 69. On 4 October 2005 the Supreme Administrative Court held an oral hearing and received the testimony of, inter alia, the applicant and six witnesses proposed by her. The applicant was represented by Ms H.M. 70. The court refused the applicant’s request for a stay of the proceedings pending the submission of fresh medical opinions. The court considered this unnecessary given the fact that the issue to be decided was whether the applicant had been in need of involuntary care at the turn of the year 2004 to 2005. The validity of the impugned decision had already expired, as more than six months had elapsed since it had been given. It was difficult to see how a fresh examination could affect the court’s assessment. 71. On 7 October 2005 the applicant submitted to the court a medical opinion by Dr E.P. dated 5 October 2005. 72. On 13 October 2005 the Supreme Administrative Court dismissed the applicant’s appeal. Having first noted that the impugned decision met the formal requirements and that the applicant’s complaint of partiality on the part of Dr A.K. and the members of the Forensic Psychiatry Board could not be upheld, it went on to note that the question to be decided was whether the criteria for involuntary care under section 8 of the Mental Health Act had been met on 17 February 2005, when the Board had given its decision. The question of whether a person was mentally ill was a factual question to be decided on the basis of medical evidence, having due regard to the correctness of the decision-making procedure applied. 73. The court considered that Dr A.K., a specialist in psychiatry since 1990, was an experienced psychiatrist. His opinion and the opinion of the Board were based on a professionally qualified and reliable medical assessment. 74. As to the subject matter the court reasoned, inter alia: “... Dr A.K. interviewed the applicant on ten occasions and was then able to make observations on her. Drs A.K. and M.E. explained at the oral hearing that the diagnosis of delusion was affected by the absoluteness of the applicant’s views on incest. They stressed that incest diagnoses required examinations by doctors specialising in gynaecology and also child psychiatry examinations. The applicant is a specialist in paediatrics. In particular, Dr M.E. gave evidence that in his discussions with the applicant she had refused to take into account the possibility that there had been no incest, although she admitted in general that doctors could also be mistaken. The fact that witnesses J. and S. gave evidence that the applicant had explained her situation in a pertinent manner did not undermine the view of Drs A.K. and M.E. The doctors gave concordant evidence that the discussions with the applicant were pertinent as long as her view on the alleged incest was not contradicted. At the oral hearing it became evident that witnesses J. and S. had not disputed the applicant’s views, but had mostly listened to what she had to say. S. indeed gave evidence that she had checked the information provided by the applicant against other sources, but as she had concluded that the views of the applicant were tenable, she had naturally not come into conflict with her. Witness P. had not taken a stand as to whether or not the applicant had a delusional disorder. He had only judged whether or not open-care measures were possible. According to Dr A.K., the diagnosis of delusion had also been affected by the applicant’s continuing suspicion of authority and of medical and psychological examinations. Dr M.E. also gave evidence about the numerous appeals made by the applicant and how her world centred on them. The applicant had refused a somatic and neurological examination, magnetic imaging and psychological tests because she believed that the tests would be carried out by biased and prejudiced persons. The applicant has the right to refuse to be examined in respect of her mental health. On the other hand, it is justifiable to question the basis for the absolute refusal to undergo the examinations offered and whether the refusal may be based precisely on thinking typical of a delusional disorder. Having regard to these considerations, it cannot be said that the diagnosis of delusional disorder was based on improper or arbitrary grounds, although the applicant has explained her refusal of examinations by stating that she had the right to do so, and her writing of legal submissions by stating that it was necessary to do so. At the oral hearing the applicant admitted that a deluded person would probably not be aware of her own illness. At the oral hearing the applicant’s son, Dr E., a doctor in general practice, gave evidence stating that he understood, given his mother’s absolute and rigid behaviour, that she had been diagnosed as delusional. He could not, however, be certain of the correctness of the diagnosis, since he had seen his mother only a few times in recent years. On the basis of the documents in the file and the information received at the oral hearing, and on the above grounds, the Supreme Administrative Court finds that reliable evidence has been provided for the diagnosis of delusional disorder in the decision of the Forensic Medical Authority. A diagnosis of delusional disorder as such does not, however, suffice to warrant involuntary treatment. In addition, its effects on the person concerned and on others must be assessed. The decision of the National Forensic Medical Authority was that the applicant was in need of involuntary treatment and that, if not treated, her mental illness would considerably worsen and seriously endanger her health and the health of others. According to information received, when the decision on treatment was taken regard was had to the repercussions for the applicant’s life if her conflicts with the authorities and raising of associated issues were to continue. At the time it was considered that the applicant was not able to think matters through and that ordering treatment could help her to continue life in a calmer way. These considerations must be held to be pertinent to an assessment of the need for the involuntary treatment for the sake of the applicant’s own health. The fact that after about six months of treatment and medication the head physician, Dr M.E., in his explanation of 17 August 2005, and the witnesses put forward by the applicant, in their statements, expressed divergent conclusions does not justify calling into question the assessment of the National Forensic Medical Authority regarding the need for treatment on 17 February 2005 for the sake of the applicant’s health. The National Forensic Medical Authority did not consider that, if not treated, the applicant would seriously endanger the safety of others. However, it held that the health of others could be seriously endangered. It should be taken into account that the applicant could have an influence on other people, owing to the authority which she enjoys by reason of her status as a paediatrician. She may engender in other people suspicions which lack real foundation, causing them to act hastily, inappropriately or even criminally. The possibility of this kind of influence is not lessened by the fact that the applicant is retired. Nor would the possibility of influence be prevented by the mere withdrawal of the applicant’s licence to practise medicine, because the influencing is exerted on a psychological level and also in contexts other than that of a doctor’s consulting room. The nurse assigned to the applicant, P., gave evidence to the effect that the applicant was not dangerous to other people. Although in his witness statement he also raised the issue of whether the applicant had given other patients dangerous advice, P.’s testimony can be regarded as a common judgment of a person’s dangerousness, such as violent behaviour or similar. This is not the case when it comes to the applicant. On the contrary, all the witnesses have concordantly testified that she tries to do good things and tries to help others. The doctors treating her have made similar statements. This intention does not, however, obviate the possibility that the actions of the person could cause harm to others. In this case there are sufficient grounds for holding that, if not treated, the applicant could have seriously endangered the health of others. Other mental health services are inadequate, having regard to the fact that the applicant is in denial as regards her illness. That being the case, it can be held that the applicant would try to avoid treatment and would refuse examinations. Conclusion The Supreme Administrative Court finds, on the basis of the documents in the file and the information received at the oral hearing, that it has been reliably and objectively shown that the applicant was, at the time of the decision of the National Forensic Medical Authority, mentally ill within the meaning of section 8 of the Mental Health Act. Owing to her mental illness, she was in need of treatment and, if not treated, her mental illness would have considerably worsened or seriously endangered her health and the health of others. Other mental health services would not have been adequate. The conditions for ordering the applicant to undergo involuntary hospital treatment were thus present. The decision of the National Forensic Medical Authority ordering treatment was based on the Mental Health Act and was made in accordance with the procedure laid down by law. Nor is the decision unlawful.” 75. On 22 July 2005, on the basis of a medical observation report by the doctor treating the applicant and the applicant’s medical records, the head physician of Vanha Vaasa Hospital decided to continue her treatment. It was noted that the applicant had, inter alia, criticised the treatment being given in the hospital and had tried to play a role in other patients’ treatment in her capacity as a doctor. She had also given them instructions concerning medication, even after she had been forbidden to do so. Open-care measures were considered insufficient, because the applicant was in denial of her illness and completely lacked motivation in relation to her treatment. 76. The decision of 22 July 2005 was submitted for confirmation to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen). The applicant also appealed against that decision to the same court, requesting an oral hearing. 77. On 31 October 2005, having obtained a statement from the head physician of Vanha Vaasa Hospital and the applicant’s comments on it, the Administrative Court dismissed the applicant’s appeal. It observed that the applicant’s condition had improved during treatment and that there had been discussions about a possible transfer to a psychiatric hospital in her home town. The court noted that the applicant was not suicidal and thus not endangering her own health, nor was she violent towards others. She was able to discuss day-to-day matters in a pertinent and polite manner as long as no one contested her views. However, she was still denying her illness, which manifested itself in her opposition to medical treatment and all further medical examinations offered her. The denial of the illness and lack of motivation in relation to treatment led the court to the conclusion that the applicant would most likely neglect treatment outside the hospital, which would severely aggravate her illness and endanger her health. As her delusion was related to her medical profession and her patients, lack of treatment could also put the health of others at serious risk. The Administrative Court also dismissed the applicant’s request for an oral hearing as manifestly unnecessary, making reference to the hearing held by the Supreme Administrative Court on 4 October 2005. Moreover, the court considered that the main issue, that of whether the applicant’s condition had improved to the extent that grounds for involuntary treatment no longer existed, could be adequately resolved on the basis of the case file alone. 78. The applicant appealed further to the Supreme Administrative Court, citing, inter alia, the medical opinion of 30 December 2002 by Dr K.A., the medical opinion of 5 October 2005 by Dr E.P., and those of 25 October 2005 and 21 December 2005 by Dr M-P.H. 79. On 16 May 2006 the Supreme Administrative Court, having obtained a fresh statement from the head physician of Vanha Vaasa Hospital and the applicant’s comments on it, upheld the lower court’s decision, on mainly the same grounds. It rejected the applicant’s request for an oral hearing, finding oral evidence on circumstances which prevailed after the adoption of the impugned decision of 22 July 2005 irrelevant. 80. On 20 January 2006 the head physician of Vanha Vaasa Hospital took a further decision to continue the applicant’s involuntary care, based on a medical observation report by another hospital physician. It was noted that the applicant’s condition had improved and that she was currently cooperating with hospital staff. While her sense of reality still failed her as far as the criminal charge against her was concerned, she was able to discuss the matter pertinently and without agitation. She was no longer regarded as dangerous to herself or others and planning for her future transfer to outpatient care was considered justified. 81. That decision was submitted to the Administrative Court for confirmation. The applicant appealed against that decision also. 82. On 20 April 2006, having held an oral hearing, the Administrative Court found that the applicant was still suffering from psychotic delusions and that her illness was of a chronic nature. According to the court, the cessation of treatment would therefore significantly aggravate her illness. The court also took into account the marked improvement in the applicant’s condition, which had made it possible to plan her gradual transfer to outpatient care. It was noted that the applicant’s medication by injection had been terminated at the beginning of January. The court considered that it had been important for safety reasons to observe the effects of the withdrawal of medication in the hospital and, therefore, other forms of care would have been insufficient at the time. 83. It is not known whether the applicant lodged a further appeal with the Supreme Administrative Court. 84. During her stay in Vanha Vaasa Hospital the applicant made representations to the National Forensic Medical Authority, which by letter of 15 July 2005 noted that it had commenced an investigation of the actions of the medical staff involved in the applicant’s treatment. It did not however have the authority to monitor health care establishments. It informed the applicant that that authority lay with the social and health affairs department of the relevant State Provincial Office (lääninhallitus, länsstyrelse). Nor did the National Forensic Medical Authority have the authority to intervene in the administering of medication or to order the medication to be discontinued. It could, however, assess retrospectively the appropriateness of a doctor’s professional activity. 85. Between January and July 2005 the applicant lodged a number of other requests with the National Forensic Medical Authority concerning, inter alia, her psychiatric assessment and treatment in Vanha Vaasa Hospital. On 12 January 2007 the National Forensic Medical Authority gave its decision in respect of those complaints. It relied on the judgment of 13 October 2005 by the Supreme Administrative Court in finding that the confinement of the applicant in involuntary care had been justified. As a general remark it was noted that the primary and sometimes only symptom of a delusional disorder was a false belief which the patient holds to and attempts to act upon. The delusion was continuous, clear and systematic, and could be very persistent and steadfast. It was common for a patient suffering from a delusional disorder not to manifest any other anomalous behaviour. A special form of delusion was what was known as a querulous delusion, which was characterised by continual claims for rectification, complaints and legal proceedings, driven by psychotic thinking, with the aim of restoring the person’s injured self-esteem. A delusional disorder was treated with therapeutic consultations and antipsychotic medicines. Lack of motivation for treatment and an inadequate response to treatment posed fundamental risks to the successful outcome of medical treatment. As regards the applicant’s treatment, and the forced administration of medication in particular, the National Forensic Medical Authority found no indication of conduct deviating from appropriate and commonly accepted medical practice, so her representations could therefore be considered erroneous. The decision was not subject to appeal. 86. By letters dated 8, 11, 25 and 26 July 2005 Ms H.M. approached the Chancellor of Justice on the applicant’s behalf, requesting him to take action concerning the involuntary treatment of the applicant. Having regard to the provisions concerning the division of duties between the Chancellor of Justice and the Parliamentary Ombudsman, those letters were transmitted to the latter authority. By a letter dated 27 September 2005 Ms H.M. was informed of the Ombudsman’s decision not to deal with the case, as it was already pending before other authorities, namely the Supreme Administrative Court, the National Forensic Medical Authority, and the police. 87. The applicant reported three Vanha Vaasa Hospital doctors to the police, alleging, inter alia, serious deprivation of liberty. On 27 January 2006, having obtained written statements from the National Forensic Medical Authority, the police found that no offence had been committed and closed the investigation. 88. The applicant also made representations to the State Provincial Office, which sent the regional medical officer and health care inspector to Vanha Vaasa Hospital to interview the applicant and the hospital staff involved in her treatment. The regional medical officer also met the applicant’s representative. Furthermore, the authority acquainted itself with the applicant’s medical records and other documents related to the case and obtained written statements from hospital staff and the applicant’s comments on them. In its decision of 26 June 2006 the State Provincial Office noted that the issues raised by the applicant had previously been thoroughly examined by the National Forensic Medical Authority, which had found no irregularities. In the light of its own examination of the case, the State Provincial Office did not find that there was any reason to take further measures. The decision was not subject to appeal. 89. In its decision of 17 February 2005 the Forensic Psychiatry Board found that the applicant’s capacity to look after her own interests in the criminal proceedings was reduced by her mental illness and that she was therefore in need of a guardian. The applicant contested this, arguing that she was well. 90. On 23 February 2005, referring to the above statement by the National Forensic Medical Authority, the District Court informed the applicant by letter that it had decided under Chapter 12, Article 4a of the Code of Judicial Procedure to appoint a guardian for her in respect of the ongoing proceedings. It was noted that counsel M.S., who was considered to be suitable for the task, had given his consent. The applicant was provided with the opportunity to give her opinion on the matter by 3 March 2005. She was also informed that the court would hold a further oral hearing on 14 March 2005 and that her attendance at that hearing was not obligatory. 91. By a letter dated 24 February 2005 the applicant opposed the appointment of a guardian without giving further reasons. She demanded that all documents concerning that matter be faxed to Mr J.R. and sent to her by post. 92. On 2 March 2005 the District Court appointed the applicant’s public defender, Mr M.S., guardian. It was noted in the decision that the applicant was against the appointment of a guardian. 93. On 20 June 2005 the Court of Appeal rejected the appeal signed by the applicant, noting that she was, in the opinion of the National Forensic Medical Authority, in need of a guardian, owing to her mental illness. The court did not find reasons to hold otherwise. Nor did it hold an oral hearing as requested by the applicant. The court did not examine a writ of appeal signed by Mr J.R., as he did not fulfil the requirements under Chapter 15, Article 2 § 1, of the Code of Judicial Procedure. Nor did it examine the appeal lodged by the applicant’s daughter, as she had failed to give notice of her intention to appeal as required by Chapter 25, Article 5 § 1, of the said Code. 94. The applicant, represented by Ms H.M., sought leave to appeal, requesting an oral hearing. She argued that Mr M.S., whom she had never met, had not acted in her best interests. For instance, he had failed to request an oral hearing in the Court of Appeal although the applicant had asked him to submit a request to that effect. Nor had he questioned the correctness of the psychiatric assessment. She also submitted that she was in good health and not in need of a guardian. 95. On 30 September 2005 the Supreme Court refused leave to appeal. 96. On 10 March 2005 the applicant submitted to the District Court a list of eighteen witnesses she wished to examine before the court concerning, inter alia, the events in December 2000 and the alleged serious deprivation of liberty. She also sought to have Drs H.L. and M-P.H. heard as medical experts. She further identified a number of documents to be adduced as written evidence. 97. On 14 March 2005 the District Court held the final hearing in the criminal case. The applicant arrived at the court house but left before the hearing began. According to the applicant, she did so because Mr J.R., whom she had wanted to have heard as a witness, had been removed from the premises by force. 98. The District Court proceeded with the hearing, in which the applicant was represented by her guardian, Mr M.S. The latter did not contest the accuracy of the medical opinion on the applicant’s psychiatric assessment. Nor did he refer to other medical opinions on the applicant’s mental health. He pleaded on the applicant’s behalf that she could only be regarded as an accessory to the offence in her capacity as a doctor. He did not find it necessary to hear witnesses. 99. In its judgment of 8 April 2005 the District Court found V.’s mother responsible for serious deprivation of liberty between 16 December 2000 and 22 April 2001. The applicant was found responsible for aiding and abetting V.’s mother in the commission of that offence between 26 December 2000 and 22 April 2001. The court did not pass sentence on them as they were not responsible for their actions at the material time. However, it ordered them to pay damages and legal costs. 100. As regards the background to the case, the court noted that V. had been examined from 1995 onwards as a result of her mother’s suspicions that she had been sexually abused. The public prosecutor L.K. had decided on 19 April 1999 not to prefer charges against the father, as there was no evidence that an offence had taken place during the period from 1994 to March 1996. On 21 April 1998 the public prosecutor M.P. waived charges against another person, as there was no evidence that an offence had taken place in July 1997. On 4 June 2001 the public prosecutor L.K. waived charges against the father, as there was no evidence that an offence had taken place during the period from September 1998 to June 2000. In June 2000 the mother took V. to a university hospital for examination. Those examinations did not support her suspicions of sexual abuse. On 13 June 2000 the girl was taken into emergency public care because of her mother’s mental health problems and was placed in a family support centre. An ordinary care order was made in July 2000. Meanwhile, on 26 June 2000 the mother removed the girl from the centre without permission and they were found later that day in a town some 100 km away, whereupon the girl was returned to the centre by the police. On 3 April 2001 the Court of Appeal granted the father sole custody of the girl, who was to see her mother during supervised visits three times a week. 101. As to the applicant’s actions, the court noted that she had expressed a number of opinions which could not be regarded as medical opinions. She had predominantly functioned as an aide to the girl’s mother, making suggestions on what measures to take. The applicant had been aware of the fact that the girl had been taken into public care and on 18 December 2000 the police had told her that the girl was missing. The court found it established that V. and her mother had come to meet the applicant on 26 December 2000. Since that date the applicant had found accommodation for them and transported them in her car. The applicant had allowed the mother’s mail to be redirected to her address. The court noted that it had not even been suggested that the applicant had been in [town A] on 16 December 2000. 102. By a letter dated 12 April 2005 Mr M.S. informed the applicant that, as her guardian, he had notified the District Court of the applicant’s intention to appeal against its judgment. He asked the applicant to state her opinion on the judgment in writing and informed her that he would be in Vaasa on 26 April 2005, should the applicant wish to meet him in person. It appears that no meeting took place. 103. Mr M.S. subsequently appealed on the applicant’s behalf, arguing that the charge should be rejected on the grounds of lack of intent. In her capacity as a doctor, the applicant had only wished to protect the mother and the child as she was firmly convinced that the girl had been sexually abused. The guardian took the view that the case could be examined by the appellate court in a written procedure. On 9 May 2005 Mr M.S. sent a copy of the notice of appeal to the applicant for information, noting that it corresponded, in the main, to the draft he had sent her earlier, on 2 May 2005. He also noted that the applicant had not made any comments on that draft. 104. In her own writ of appeal the applicant requested an oral hearing, at which she wished the court to hear the same eighteen witnesses she had requested in the proceedings before the District Court. She also questioned the motives of the public prosecutor in bringing charges for an aggravated offence. The applicant had acquired a copy of his notes to the proceedings, in which it was implied that a psychiatric assessment was the only means of treatment, which, in turn, was the only means of stopping the terrorising of the father and the child and the misuse of justice. The applicant later lodged a number of additional submissions with the appellate court. 105. On 31 August 2005, relying on Chapter 26, Article 14 § 2, point 4, of the Code of Judicial Procedure, the Court of Appeal refused the applicant’s request for an oral hearing as manifestly unnecessary. As regards the subject matter, the court upheld the lower court’s judgment, finding no reason to deviate from it. Under Chapter 25, Article 12 § 2 of the Code, the court dismissed the applicant’s own belated representations without examining their merits. 106. The applicant, represented by counsel of her choosing, Ms H.M., requested leave to appeal. 107. On 14 February 2006 the Supreme Court refused leave to appeal. 108. On 24 October 2005 the National Forensic Medical Authority decided that the applicant’s ability to work as a doctor and her health should be examined. 109. By an interim decision of 17 March 2006 the National Forensic Medical Authority prohibited the applicant from practising her profession during 2006. 110. The applicant was assessed in an open ward of the psychiatric clinic at Helsinki University Hospital from 6 September to 6 October 2006. 111. The resultant medical opinion of 10 October 2006 did not note any specific psychiatric disorder affecting the applicant. It was noted, however, that a full examination could not be conducted because the applicant refused to surrender documents from Vanha Vaasa Hospital concerning her medical history. It was considered that the fact that she had suffered from a narrowly focused delusional disorder would hamper her ability to function as a sound expert in sexual abuse cases. She should thus concentrate on general paediatrics. 112. On 29 January 2007 the National Forensic Medical Authority revoked its decision of 17 March 2006, but ordered that the applicant should not deal with suspected child abuse cases in her private practice. The applicant appealed against that decision to the Administrative Court and the Supreme Administrative Court. Those appeals were dismissed on 24 September 2008 and 24 August 2009 respectively. 113. The applicant states that she is again seeing patients at her surgery. 114. The Constitution (Suomen perustuslaki, Finlands grundlag; Law no. 731/1999) provides in its relevant parts: “Section 7 - The right to life, personal liberty and integrity Everyone has the right to life, personal liberty, integrity and security. No one shall be sentenced to death, tortured or otherwise treated in a manner violating human dignity. The personal integrity of the individual shall not be violated, nor shall anyone be deprived of liberty arbitrarily or without a reason prescribed by an Act. A penalty involving deprivation of liberty may be imposed only by a court of law. The lawfulness of other cases of deprivation of liberty may be submitted for review by a court of law. The rights of individuals deprived of their liberty shall be guaranteed by an Act ... Section 10 - The right to privacy Everyone’s private life, honour and the sanctity of the home are guaranteed ...” 115. Chapter 3, Article 4, paragraphs 1 and 2, of the Penal Code (rikoslaki, strafflagen, Law no. 515/2003) provide: “Prerequisites for criminal liability are that the perpetrator had reached the age of fifteen years at the time of the act and is criminally responsible. The perpetrator is not criminally responsible if at the time of the act, owing to mental illness, severe mental deficiency or a serious mental disturbance or a serious disturbance of consciousness, he or she is not able to understand the factual nature or unlawfulness of his or her act or his or her ability to control his or her behaviour is decisively weakened for that reason (lack of criminal responsibility).” 116. At the relevant time Chapter 17, Article 45, of the Code of Judicial Procedure (oikeudenkäymiskaari, Rättegångs Balk, Law no. 571/1948) read: “The court may, where it is deemed necessary, order a psychiatric assessment of the defendant. Such an assessment may not be ordered against the defendant’s will save in cases where he or she has been placed in detention pending trial or is charged with an offence punishable by a term of imprisonment of more than one year. (494/1969) Separate provisions apply to psychiatric assessment and admission to a mental institution for such an assessment.” 117. That provision was amended by Law no. 244/2006, which took effect on 1 October 2006. According to the amended provision, a psychiatric assessment of the defendant may be ordered if the court has, in an interim judgment, found the defendant guilty as charged, such an assessment is justified, and the defendant agrees to the assessment or he or she has been placed in detention pending trial or has been charged with an offence punishable by more than one year’s imprisonment. At the request of the prosecutor, the defendant or his or her guardian, the court may order a psychiatric assessment earlier, during the pre-trial investigation or prior to the main hearing, if the defendant has pleaded guilty to the charge or if the need for such an assessment is otherwise clear. 118. The relevant parts of the Mental Health Act (mielenterveyslaki, mentalvårdslagen, Law no. 1116/1990), as in force at the material time, provided as follows: “Chapter 1 ... Section 2 - Direction and supervision ...In each province the planning, direction and supervision of mental health work is the responsibility of the State Provincial Office. The State Provincial Office shall, in particular, supervise the use of limitations on the right of self-determination referred to in Chapter 4 (a) of this Act. (1423/2001) ... Section 6 - Treatment given in State mental hospitals Psychiatric assessments referred to in section 15 are conducted in State mental hospitals. On the recommendation of a hospital in a hospital district, individuals who are mentally ill or suffering from other mental disorders and whose treatment is particularly dangerous or difficult can be admitted to a State mental hospital. On the recommendation of a hospital in a hospital district, individuals who are not mentally ill or suffering from the other mental disorders referred to in subsection 1 may also be treated in a State mental hospital if appropriate treatment cannot be provided in a hospital within the hospital district. Decisions on admitting to a State mental hospital a person accused of a crime or a person whose sentence has been waived because of his or her mental condition are made by the National Forensic Medical Authority, as provided for in section 17. In other cases decisions on admitting a patient to a State mental hospital, discontinuing treatment and discharging the patient are made by the head physician of the State mental hospital. (1504/1999) ... Chapter 2 Section 8 – Criteria for compulsory treatment A person can be ordered to undergo treatment in a psychiatric hospital against his or her will only (1) if the person is diagnosed as mentally ill; (2) if the person needs treatment for a mental illness which, if not treated, would become considerably worse or seriously endanger the person’s health or safety or the health or safety of others; and (3) if all other mental health services are inapplicable or inadequate ... Chapter 3 Section 15 - Admission to hospital for psychiatric assessment If the court orders a person accused of an offence to undergo a psychiatric assessment under Article 45 of Chapter 17 of the Code of Judicial Procedure, the person accused of the offence may be admitted to a hospital for psychiatric assessment and detained there against his or her will notwithstanding Chapter 2 of this Act. Section 16 (1086/1992) - Psychiatric assessment After ordering a person who is accused of an offence to undergo a psychiatric assessment, the court must forward the associated documents to the National Forensic Medical Authority without delay. The National Forensic Medical Authority shall decide where the psychiatric assessment is to be carried out and, if it is to be carried out outside hospital, by whom. The psychiatric assessment shall be completed and a statement on the mental condition of the person accused of the offence shall be submitted to the National Forensic Medical Authority not later than two months after the start of the psychiatric assessment. If there are reasonable grounds for so doing, the National Forensic Medical Authority may extend the period of the assessment by a maximum of two months. When it has received the said statement, the National Forensic Medical Authority shall issue its own statement to the court concerning the mental condition of the person accused of the offence. Section 17 - Involuntary treatment after psychiatric assessment If the conditions for ordering a person accused of an offence to undergo treatment against his or her will are met on completion of a psychiatric assessment, the National Forensic Medical Authority shall order the person to undergo treatment against the person’s will. (1086/1992) The person may be detained for treatment against his or her will on the basis of the decision of the National Forensic Medical Authority for a maximum of six months. Before the end of this period a statement on the observation of the patient shall be produced indicating whether or not the conditions for referring the person for treatment against his or her will are still met. A decision on whether treatment should be continued or discontinued shall be made in writing by [the head physician in charge of the psychiatric care or, if that physician is ineligible or unavailable, by another physician assigned to the task, preferably one specialising in psychiatry], before the treatment has continued for six months. A decision to continue the treatment shall be made known to the patient without delay and shall be immediately submitted for approval of the [court], and the [court] shall assess whether the conditions for ordering treatment against the patient’s will still exist. A decision to discontinue the treatment shall also be made known to the patient without delay and shall be submitted immediately to the National Forensic Medical Authority for approval. The National Forensic Medical Authority shall either confirm the decision to discontinue the treatment or, if the conditions for treatment against the patient’s will still exist, order the patient to undergo treatment. (1504/1994) On the basis of a decision to continue treatment, the patient may be detained for treatment against his or her will for a maximum of six months. If it seems probable at the end of this period that continuing the treatment is still necessary, measures shall be taken in accordance with subsection 2. (1504/1994) If it appears during the treatment of a person whose treatment is compulsory that the conditions for ordering the patient to undergo treatment against his or her will do not exist, measures shall be taken in accordance with subsection 2. (1504/1994) Section 17 a (383/1997) – Specialised psychiatric hospital treatment The National Forensic Medical Authority shall decide on initiating involuntary treatment of a person accused of a crime; the treatment shall take place in a hospital which has the facilities and particular expertise required for the treatment of the patient. When the patient’s need for treatment changes, the physician referred to in section 11 shall immediately take measures to transfer the patient to a hospital which can provide the treatment the patient requires. The need for treatment in a State mental hospital shall, however, be assessed within six months of the beginning of the treatment, in collaboration with the hospital district in whose area the patient’s home municipality is located. Chapter 4a Section 22 a (1423/2001) - ... general conditions for limiting fundamental rights .... A patient’s right of self-determination and other fundamental rights may be limited by virtue of the provisions of this Chapter only to the extent necessary for the treatment of the illness or for the person’s safety or the safety of others, or to safeguard some other interest laid down in this Chapter. The measures shall be undertaken as safely as possible and with respect for the patient’s dignity. When choosing and determining the extent of a limitation on the right of self-determination special attention shall be paid to the criteria for the patient’s hospitalisation ... Section 22 b (1423/2001) - Treatment of mental illness A patient must be treated, as far as possible, in an atmosphere of mutual understanding. A care plan must be drawn up when treatment is being provided. In treating a patient with mental illness the only medically acceptable methods of examination and treatment are those which, if not used, would seriously jeopardise the health and safety of the patient or others. The physician attending the patient decides on the treatment and examinations which are to be given regardless of the patient’s wishes. The attending physician also decides whether to hold or tie down the patient and whether to take other similar measures for the period of the treatment, or whether to take other short-term restrictive measures necessary to give treatment ... Chapter 5 ... Section 24 (1504/1994) – Appeal An appeal may be lodged with the [court] against the decision of a hospital physician to order a person to have treatment or to continue treatment against the person’s will ... Section 25 - Enforcement and interruption of enforcement A decision to order a patient to undergo treatment against his or her will or to continue such treatment, or to take possession of personal property or to limit contacts, shall be enforced immediately irrespective of whether or not the decision has been submitted to another authority for confirmation or an appeal has been lodged. (1423/2001) After a decision has been submitted to another authority or an appeal lodged against it, the authority in question or appellate authority may forbid the enforcement of the decision or order it to be stopped. Section 26 - Urgency of the proceedings Submissions or appeals relating to treatment given against a patient’s will, and matters relating to mental health assessment, must be dealt with urgently ...” 119. According to the preparatory documents relating to section 22b of the Mental Health Act (Government Bill HE 113/2001 vp), a care order issued for the involuntary hospitalisation of a psychiatric patient is understood to contain an automatic authorisation to treat the patient, even against his or her will. Although the doctors may seek to obtain a person’s consent prior to the treatment, there is no obligation to have such consent in written form or to seek such consent from the patient’s relatives or guardian. If a patient refuses to give his or her consent or withdraws consent previously given, the provision allows the forced administration of medication. This is in the interest of the patient in order to secure his or her constitutional right to necessary care in a situation in which the patient is not personally able to make a decision about the treatment on account of his or her illness. 120. Section 7(3) of the Administrative Courts Act (hallinto-oikeuslaki, lagen om förvaltningsdomstolarna, Law no. 1424/2001) provides that in administrative courts an expert member participates in the consideration of, and decision on, matters concerning the order of involuntary care and continuing involuntary care of a person referred to in the Mental Health Act. 121. The relevant provisions of the Health Care Professionals Act (laki terveydenhuollon ammattihenkilöistä, lagen om yrkesutbildade personer inom hälso- och sjukvården, Law no. 559/1994), as in force at the material time, read as follows: ... Section 15 - Obligations related to professional ethics The work of health care professionals has the objective of promoting and maintaining health, preventing illness, curing those who are ill and alleviating their suffering. In their professional activities, health care professionals must employ generally accepted, empirically justified, methods, in accordance with their training, which should be continually supplemented. Each health care professional must weigh the benefits to the patient of their professional activity against its possible hazards ... Section 24 - Guidance and supervision The general guidance of health care professionals lies with the Ministry of Social Affairs and Health. The National Forensic Medical Authority is responsible for the guidance and supervision of health care professionals ... Within a province the activities of health care professionals are guided and supervised by the State Provincial Office ... 122. The Decree on the National Forensic Medical Authority (asetus terveydenhuollon oikeusturvakeskuksesta, förordningen om rättskyddscentralen för hälsovården, no. 1121/1992, with subsequent amendments) contains provisions concerning, inter alia, the Forensic Psychiatry Board within that authority. Article 12 of the Decree, as amended by Law no. 432/1997 and in force at the relevant time, provided that the Board dealt with and decided on matters concerning the mental state of a person charged with an offence, or matters related to the ordering of treatment of such a person, or a person not sentenced to a punishment because of his or her mental state, in psychiatric hospital care, and the cessation of such treatment. The Board was composed of a chairman, who had to be an official of the National Forensic Medical Authority, and three other members. One of the members had to be an expert in the field of law, and two members, one of whom also had to be a representative of municipal health care, had to be an expert in the field of psychiatry. 123. State Provincial Offices ceased to exist on 1 January 2010, and their tasks have been transferred to various other authorities. Prior to that rearrangement within the administration, the provisions regulating the tasks of the State Provincial Offices were to be found in some 130 different statutes. General information about the tasks and powers of that authority may be found in the Government Bill HE 154/2005 vp concerning, inter alia, certain amendments to the Mental Health Act. According to that document, the State Provincial Offices were to exercise guidance and supervision of State mental hospitals, among a number of other institutions and services. This was implemented, inter alia, by way of distribution of information, on-site inspections and dealing with complaints. In 63% of the decisions given by State Provincial Offices in 2004, in their capacity as supervising authorities, no appearance of inappropriateness to a degree which would have justified their taking measures was found; 18% of the cases dealt with resulted in the attention of a health care professional being drawn to the matter, and an admonition was given in 5% of the cases. 124. The relevant parts of Chapter 2, section 1 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, Law no. 689/1997) provide as follows: “A person suspected of an offence has the right to defend him or herself in pre-trial investigations and at the trial ... A public defender shall be appointed for the suspect of the court’s own motion when: (1) the suspect is incapable of defending himself or herself; (2) the suspect, who has not retained a public defender, is under 18 years of age, unless it is obvious that he or she has no need of one; (3) the public defender retained by the suspect does not meet the qualifications required of a public defender or is incapable of defending the suspect; or (4) there is another special reason for the same.” (107/1998) Chapter 2, section 2 (1) reads: “A person appointed under section 1 ... as public defender ... must be a public legal-aid attorney or an advocate. If there is no suitable public legal-aid attorney or advocate available or there is another special reason to do so, another person with a degree of [Master of Law] who by law is qualified to act as an attorney may also be appointed as public defender ... The person to be appointed as public defender ... must have an opportunity to be heard on the appointment.” (260/2002) 125. Chapter 12, Article 4a, of the Code of Judicial Procedure (Law no. 444/1999) reads: “If a party is incapable of looking after his or her interests in court proceedings owing to illness, mental disorder, ill health or another similar reason, the court before which the case is pending may of its own motion appoint a guardian for that party for the purposes of the proceedings. The provisions of the Guardianship Services Act shall apply to such guardian. Unless the court decides otherwise, the appointment of the guardian shall remain in effect before an appellate instance where the matter is pending on appeal.” 126. Section 5 of the Guardianship Services Act (laki holhoustoimesta, lagen om förmyndarverksamhet, Law no. 442/1999) provides that a suitable person who consents to the appointment is eligible as a guardian. In the assessment of the suitability the skills and experience of that person, among other things, and the nature and extent of the task shall be taken into account. 127. Chapter 8 of the Code of Judicial Procedure (Law no. 768/2002) lays down provisions concerning the procedure to be followed in dealing with petition-based cases (hakemusasia, ansökningsärendet) in the District Court. Those provisions apply also to such petition-based cases which the court may take into consideration of its own motion (Article 1 § 2). A petition-based case shall be examined in chambers or at a hearing. If a party, a witness or another person is to be heard in person, a hearing must be held. A hearing must also be held if the matter has been contested and a party requests a hearing or if the court considers a hearing necessary for the matter to be resolved (Article 3). If a party is to be reserved an opportunity to be heard in a petition-based case, the court must invite him or her to submit a written statement (Article 5). A petition-based case may be dealt with in connection with related criminal proceedings, if that is possible without impeding the proceedings (Article 9 § 2. 128. Chapter 26 of the Code regulates the appeal procedure in the Court of Appeal. Article 14 of that Chapter (Law no. 165/1998) reads as follows: “An oral hearing shall be held in the Court of Appeal if a party to a civil case or the injured party or the defendant in a criminal case so requests. However, an oral hearing need not be held for the reason referred to in subsection 1, if: (1) in a civil case amenable to settlement, the opposing party has consented to the appellant’s request for a change; (2) in a criminal case only the appellant has requested a full hearing and it is the appeal decision which makes the ruling on the case; (3) the person requesting a main hearing is satisfied with the decision of the District Court and the decision is not changed to his or her detriment; (4) the appeal is manifestly ill-founded; (5) the matter is to be decided in the case is procedural only; or (6) a full hearing is for another reason manifestly unnecessary. The provisions in paragraph 1 and in paragraphs 2 § 1 and 2 §§ 3--6 also apply, in so far as appropriate, when hearing an appeal lodged in a petition-based case.” 129. According to the relevant Government Bill (HE 33/1997 vp) the term “ill-founded” in Chapter 26, Article 14 § 2, point 4, of the Code refers to a situation where it is impossible for the grounds presented in the appeal to lead to the changes requested. An appeal is also ill-founded where the grounds for it do not correspond to the generally known facts. The provision may also be applied in criminal cases where, inter alia, the defendant requests an acquittal relying on matters which he or she would present at the oral hearing but which could not have any impact on a decision in the case. No consideration is to be given to the gravity of the offence or the sentence imposed when that provision is applied. 130. Chapter 26, Article 15 § 1 of the Code (Law no. 165/1998) reads: “The Court of Appeal shall hold an oral hearing, regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court or the findings of the District Court in a judicial inspection, or on new testimony to be admitted in the Court of Appeal. In this event, the evidence admitted in the District Court shall be readmitted and the inspection carried out again in an oral hearing, unless there is an impediment to this.” 131. Chapter 6, section 5 § 2 of the Criminal Procedure Act stipulates, inter alia, that it is a court’s task to ensure that a case is dealt with in a coherent and orderly manner. It shall also ensure that the proceedings are conducted appropriately and that no irrelevant issues are introduced. 132. Paragraph 41 of the CPT report concerns the consent of a patient to treatment given in a mental hospital. It reads as follows: “Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances. Of course, consent to treatment can only be qualified as free and informed if it is based on full, accurate and comprehensible information about the patient’s condition and the treatment proposed; to describe ECT as "sleep therapy" is an example of less than full and accurate information about the treatment concerned. Consequently, all patients should be provided systematically with relevant information about their condition and the treatment which it is proposed to prescribe for them. Relevant information (results, etc.) should also be provided following treatment.” 133. The CPT visited Finland from 7 to 17 September 2003, the Niuvanniemi State Mental Hospital being among the establishments visited. In paragraph 144 of its report, published on 14 June 2004, the CPT made the following remark: “As regards safeguards, the procedures concerning the mental examination of persons accused of a crime and the initial placement of such persons offered, overall, adequate guarantees of independence and impartiality as well as objective medical expertise. By contrast, the manner in which an order for treatment in respect of both civil and forensic patients was being renewed would merit a reassessment. The CPT considers that the periodic review of an order to treat a patient against his/her will in a psychiatric hospital should involve a psychiatric opinion which is independent of the hospital in which the patient is detained.” 134. On its next visit to Finland, between 20 and 30 April 2008, the CPT visited, inter alia, the Vanha Vaasa State Mental Hospital and another psychiatric establishment. In its report, published on 20 January 2009, the CPT made, inter alia, the following remarks and recommendations: “ ... 126 - In both establishments, the use of psychiatric medication appeared appropriate. As regards the Vanha Vaasa Hospital, the current rhythm of formal multidisciplinary clinical review (twice a year) is not sufficient. Staff representing different specialties (psychiatrists, nurses, psychologists, occupational and work therapists, social workers) should all meet and discuss each patient’s condition and progress on a more frequent basis. The CPT recommends that steps be taken in the light of these remarks ... 140 - Involuntary hospitalisation of a psychiatric patient continued to be construed as automatically authorising treatment without his/her consent. In practice, doctors in the two psychiatric establishments visited sought to obtain patients’ verbal consent to treatment, but there was no written proof that such informed consent had been given. Further, a patient’s refusal or subsequent withdrawal of consent to treatment did not result in an external independent psychiatric review as to whether treatment could be provided against the patient’s will. In addition, patients could not appeal against such decisions to a court. The CPT recommends that a special form relating to informed consent to treatment, signed by the patient and (if he is incompetent) by his legal representative, be introduced at the ... and the Vanha Vaasa Hospital (as well as in all other psychiatric establishments in Finland). The relevant legislation should be amended so as to require an external psychiatric opinion in any case where a patient does not agree with the treatment proposed by the establishment’s doctors; further, patients should be able to appeal against a compulsory treatment decision to the court ...”

dev

001-88857

ENG

SVK

ADMISSIBILITY

BIC v. SLOVAKIA

Inadmissible

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

The applicant, Mr Jozef Bič, is a Slovakian national who was born in 1953 and lives in Košice. He was represented before the Court by Mr R. Žikla, a lawyer practising in Košice. The Government of the Slovak Republic (“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 15 October 1999 the applicant instituted proceedings before the Košice I District Court relating to his right to use an apartment. On 30 November 1999 two of the defendants submitted their comments in relation to the claim. The first hearing in the case was held on 29 November 2001. Two of the defendants failed to appear. The President of the District Court informed the applicant that the delay in the proceedings had been caused by the heavy workload of the judge dealing with the case. All three defendants failed to appear before the court on 25 January 2002. The court requested the police's co-operation in serving the summons on two of the defendants, one of whom lived in the Czech Republic. On 3 March 2002 another hearing was held. None of the defendants appeared. The summons had been served on one of them. On 16 April 2002 two of the defendants filed written submissions with the District Court. On 22 April 2002 the District Court imposed a procedural fine on one of the defendants. On 24 April 2002 the District Court asked for documentary evidence to be produced. Hearings were held on 23 May 2002 and on 13 September 2002. On 28 March 2003 the judge asked for further documentary evidence to be produced. A hearing was held on 23 April 2003. On 9 June 2003 the court inspected the apartment in issue. On 10 June 2003 the case was adjourned. The applicant was invited to specify his claim within two months. On 28 January 2004 one of the defendants asked the court to grant him access to the apartment. On 28 May 2004 and on 22 June 2004 the judge asked the applicant to inform the court whether an agreement had been reached between the parties. The applicant replied on 2 September 2004. On 24 February 2005 a hearing was held. Subsequently, a hearing was adjourned twice because the judge dealing with the case was on sick leave. On 29 June 2005 a hearing was held. Neither the applicant nor the defendants were present. It was not proved that the summons had been served on one of the defendants. The court imposed a procedural fine on the lawyer of the other two defendants. The lawyer was later exempted from payment of the fine. On 4 August 2005 the court notified the parties that the case had been assigned to a new judge and the hearing was adjourned. On the same day the court requested police co-operation in establishing the address of one of the defendants. On 5 September 2005 the police informed the court that the defendant was living abroad at an unknown address. On 26 October 2005 a hearing was held at which the applicant and all three defendants were present. The hearing was adjourned as further information was needed. The District Court delivered a judgment on 5 December 2005. It ordered one of the defendants to let the applicant use the apartment in issue within three days of the judgment becoming final. On 16 May 2006 the Košice Regional Court upheld the relevant part of the first-instance judgment. The decision in the case became final on 23 June 2006. On 8 January 2003 the Constitutional Court found that the Košice I District Court had violated the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time. The decision stated that the case was not complex and that the applicant had not contributed to the length of the proceedings. The District Court had remained inactive from 30 November 1999 to 29 November 2001. The Constitutional Court considered it appropriate to award the applicant 20,000 Slovakian korunas (SKK), payable by the District Court within two months. It also ordered the District Court to proceed with the case without any further delay. On 10 March 2005 the Constitutional Court found that the Košice I District Court had violated Article 6 § 1 in the proceedings concerning the applicant's action during the period subsequent to the delivery of the first decision on 8 January 2003. The Constitutional Court found that the case was not complex. While the applicant had not always replied to the court's requests within the time-limit set, his behaviour as a whole had not resulted in any unjustified delays in the proceedings. As to the conduct of the District Court, it had remained inactive from 29 December 2003 to 28 May 2004 (5 months) as well as from 2 September 2004 to 4 January 2005 (4 months). Despite the earlier order issued by the Constitutional Court, the District Court had not proceeded with the determination of the action in good time. The Constitutional Court awarded the applicant SKK 20,000 as just satisfaction, which the District Court was obliged to pay within two months. When determining the amount of just satisfaction, the Constitutional Court took into account, inter alia, that at a certain stage of the proceedings the applicant had not duly co-operated with the District Court. It further ordered the District Court to proceed with the case without any further delay and to reimburse the applicant's legal costs in the constitutional proceedings.

dev

001-101107

ENG

BGR

ADMISSIBILITY

NIKOLOV v. BULGARIA (V)

Inadmissible

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Nikolay Milanov Nikolov, is a Bulgarian national who was born in 1963 and lives in Shumen. He is represented before the Court by Ms N. Milanova, a lawyer practising in Shumen. The respondent Government are represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 April 2003 the applicant was attacked in his home in the village of Chernogor by two individuals who beat him with a baseball bat, took his money and ran away. He lost consciousness and suffered four fractured ribs and injuries to his chest and lungs. The police were immediately called to the scene but failed to apprehend the attackers. A preliminary investigation was then opened and, on an unspecified date, two suspects were arrested. On 14 April 2003 the applicant filed a request with the investigating authorities under Article 60 of the Code of Criminal Procedure of 1974 to join the criminal proceedings as a civil claimant and made a claim for compensation from the assailants in the amount of 50,000 Bulgarian levs (25,565 euros). On 16 May 2003 the assailants were charged with burglary and theft. On 20 June 2003 the prosecuting authorities and the assailants concluded a plea-bargain agreement which was approved by the Tutrakan District Court on 25 June 2003. Under the terms of the agreement, the assailants pled guilty to burglary and theft and were sentenced to three years' imprisonment, suspended for five years. The court did not examine the applicant's civil claim and failed to indicate whether any of the damage caused by the offence had been compensated in any way. At the relevant time, the victim of any tort which was also a publicly prosecutable offence could choose either to initiate a civil action against the alleged tortfeasor, which would then be stayed awaiting the outcome of the pending criminal proceedings (Article 182 § 1 (d) of the Code of Civil Procedure of 1952), or to file a civil claim for damages in the context of the criminal proceedings instituted by the prosecuting authorities (Articles 6064 of the Code of Criminal Procedure of 1974). In the latter case, the civil claim was examined together with the offender's culpability but could not be a reason for delaying the criminal case as such (Article 64 §§ 1 and 2 of the Code of Criminal Procedure of 1974). If the criminal proceedings were terminated, the civil claim was not to be examined but could be submitted to the civil courts (Article 64 § 3 of the Code of Criminal Procedure of 1974). Prior to 3 June 2003 a civil claim could be filed in the context of the criminal proceedings at any time after the criminal proceedings had been opened. Subsequently, it could only be filed once the case had been brought to trial. However, civil claims that had been filed before the amendment entered into force were to be examined under the old procedure (paragraph 142 of the transitory provisions to the Act amending the Code of Criminal Procedure of 1974). In a decision of 16 December 2004 (реш. № 7 от 16 декември 2004 г. по конституционно дело № 6 от 2004 г., обн., ДВ, бр. 112/2004 г.) the Constitutional Court held that the amendment of 3 June 2003 struck a fair balance between victims' rights and the public interest in more efficient, faster, and yet fair criminal proceedings. It noted that the joining of civil claims to criminal proceedings was an optional procedure aimed at assisting victims but that criminal courts were not obliged to admit such claims for examination if this could delay the criminal proceedings. It further emphasised that victims were entitled to bring an action before civil courts at any time. At the relevant time, a plea-bargain agreement could be concluded after the preliminary investigation had been finished (Article 414g § 1 of the Code of Criminal Procedure of 1974). If pecuniary damage had been caused by the offence, an agreement could be concluded only after the damage had been compensated or adequate security had been provided to the victim (Article 414g § 3 of the Code of Criminal Procedure of 1974). A plea-bargain agreement was subject to approval by the domestic court, which would then conclude the criminal proceeding with a decision. The decision had the force of a final judgment and was not subject to appeal (Article 414i § 1 and Article 414h § 10 of the Code of Criminal Procedure of 1974).

dev

001-61674

ENG

BGR

CHAMBER

CASE OF G.B. v. BULGARIA

Violation of Art. 3;No separate issue under Art. 13

Christos Rozakis

7. The applicant was born in 1945. He is currently in prison. 8. In 1973 the applicant was convicted of the murder of his wife and sentenced to twenty years imprisonment. He was released in 1984. 9. On 8 December 1989 the applicant was convicted of the murder of his second wife, committed in a cruel manner, the case having been qualified as a “dangerous recidivism” within the meaning of Article 116 § 11 of the Penal Code. The applicant was sentenced to the death penalty. By judgment of 28 July 1990 the Supreme Court dismissed the applicant's ensuing appeal and upheld the death sentence. 10. On 20 July 1992 the applicant filed a petition for review to a five-member chamber of the Supreme Court. Following a hearing on 23 November 1992, the petition was refused on 11 January 1993. 11. Article 375 § 5 of the Code of Criminal Procedure as in force at the time, provided that no execution could be carried out prior to the President's decision whether or not to exercise his power of pardon. 12. The last executions of persons sentenced to the capital punishment were carried out in Bulgaria in November 1989. 13. Following a period of a de facto moratorium on executions, on 20 July 1990 the Parliament adopted a decision “on deferral of the execution of death sentences” which read: “The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in Bulgaria.” 14. Since the capital punishment remained in the Penal Code, the courts continued sentencing convicted persons to death or - as in the applicant's case - upholding on appeal death sentences delivered before 20 July 1990. 15. Although no explicit undertaking by Bulgaria to abolish the death penalty was made at the moment of Bulgaria's accession to the Council of Europe on 7 May 1992, such a requirement was regarded as implied in the general undertaking to comply with Article 3 of the Statute of the Council of Europe (see the reports of the Parliamentary Assembly's commission on Bulgaria's compliance with its obligations and undertakings (report of 2 September 1998, Doc. 8180, §§ 5 and 12529 (urging the abolition as an implied obligation), and report of 17 January 2000, Doc. 8616, § 110 (noting with satisfaction the abolition of the death penalty)). 16. On 8 March 1993 the President of the Supreme Court submitted the applicant's case to the President of the Republic for a decision whether or not to pardon him. In the accompanying letter the President of the Supreme Court expressed his opinion that the applicant should be pardoned and his death sentence replaced by a term of imprisonment. He argued that due consideration should be given to the fact that the applicant was a person of limited self-control abilities and had acted under distress when murdering his wife. The President of the Republic did not make a decision, leaving the question of pardon pending. 17. In 1997 the applicant wrote to the President of the Republic requesting to be pardoned and to the prosecution authorities seeking reopening of the criminal case. He stated, inter alia, that his continued detention under threat of execution was inhuman and degrading and violated the Convention. 18. On 10 December 1998 Parliament abolished the death penalty replacing it by life imprisonment without parole eligibility. 19. By decision of 25 January 1999 the applicant's death sentence was commuted to life imprisonment without parole eligibility. 20. On 29 September 1999 Bulgaria ratified Protocol No. 6 to the Convention. 21. The death penalty was an issue often debated between 1990 and 1998. A number of members of Parliament expressed views in support of reintroducing executions whereas others sought the abolition of the death penalty. The media periodically discussed the topic. It was widely known that the abolition of the death penalty was urged by the Council of Europe and other international organisations and was a step towards Bulgaria's European integration. 22. During the relevant period the Penal Code was amended several times. Some amendments expanded the scope of the death penalty. At the same time, work started on a draft Penal Code which excluded the death penalty. In 1995 an amendment to the Penal Code introduced for the first time life imprisonment. 23. The following attempts to reintroduce executions were made by supporters of the death penalty: 24. On 27 May 1992 the Chair of the Parliamentary Legislative Committee and another member of Parliament introduced a motion proposing the annulment of the Parliament's decision of 20 July 1990. 25. On 22 November 1993 a similar proposal was introduced in Parliament by a minority parliamentary group, the New Democracy Alliance. Two parliamentary committees discussed the issue and voted against reintroducing executions. On 1 February 1994 the Legislative Committee held a hearing on both proposals which were defeated. 26. The issue of reintroducing executions was discussed several times in the Parliament elected at the end of 1994. There were four motions: two for a parliamentary vote on restarting executions and two for calling a referendum. 27. The first proposal was discussed by the Parliamentary Committee on Government Institutions, which supported the idea of reintroducing executions by a majority of seven votes to six. Thereafter, a member of Parliament on several occasions unsuccessfully sought to have the motion discussed by a plenary session of the Parliament. On one occasion the motion gathered the required number of votes to be entered on the weekly agenda, but eventually was not discussed. Most proposals to include the issue on the agenda of the Parliament's plenary session were defeated through abstention votes. 28. The first motion for a referendum was defeated on a procedural ground as the proposed date in 1995 did not allow sufficient organisation time. The second proposal for a referendum, filed on 5 December 1995, was considered by the Human Rights and Religions Committee on 6 March 1996 and was defeated by eight votes to two, with two abstentions. 29. On 29 January 1996 a proposal for restarting executions was introduced by opposition deputies. It was discussed by the Human Rights and Religions Committee and was defeated on 13 March 1996 by eight votes to three. 30. According to section 130 of the Execution of Sentences Act, as in force at the time of the moratorium on executions, persons awaiting execution were to be detained in complete isolation, correspondence and visits being only possible if permitted by the competent prosecutor. 31. On 2 August 1990 the Deputy Director of the Central Prisons Board instructed prisons administrations that the Parliament's decision suspending executions also suspended by implication this restrictive regime of detention. 32. The instruction stated, in so far as relevant, that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a “special regime” (the regime of detention of recidivists and, after 1995, persons sentenced to life imprisonment: sections 43 and 127b of the Execution of Sentences Act as in force at the time). Inmates should have a bed, bedcover, a bed-side piece of furniture and a centrally operated radio loudspeaker. They should be allowed unlimited correspondence, newspapers and books, one visit per month, one hour of daily outdoor walk without contact with other categories of prisoners and the receipt of one food parcel every six months and a small amount of money. If possible, they could work in the cell. 33. On 26 July 1996, the Director of the Central Prisons Board and a prosecutor of the Chief Public Prosecutor's Office issued an instruction which stated that, “in view of the continuing moratorium on executions”, persons sentenced to death should be allowed unlimited correspondence, one hour daily outdoor walk, one visit per month and the receipt of two food parcels and 30 packs of cigarettes per month and small amounts of money. 34. The applicant was detained in the Sofia prison, in a wing for prisoners under the “special regime” provided for by section 56 of the Regulations on the Application of the Execution of Sentences Act, approximately twenty inmates. He was moved several times, but was always in cells measuring 4 by 2.5 metres. 35. It appears that during most of the above period the applicant was alone in a cell. Other prisoners sentenced to death and detained in the same prison as the applicant were allowed to share a cell between 1990 and June 1995. It is unclear whether it was possible for the applicant to request to share a cell with another prisoner. 36. The applicant's cell invariably had one bed with a mattress, two blankets, a metal chamber pot and a centrally operated radio loudspeaker. There was no chair or a table. Until October 1998, when all cell windows were replaced by larger ones, the window in the applicant's cell was very small, covering 0.6 square metres, and did not allow sufficient light and fresh air. 37. There was one 60Watts electric bulb in the cell. As it was installed on the wall above the door, its light was insufficient. 38. The central heating pipes in cells for special regime prisoners were covered by a layer of bricks. According to the applicant that impeded the normal heating and as a result it was often cold in winter. According to the Government the bricks accumulated heat and released it normally. 39. Inmates were given one hour out-of-cell time in the morning in an open yard. There they could walk together with other inmates from the special regime wing. 40. The cells of special regime prisoners had no electrical sockets. Despite an amendment of the relevant instructions in 1996 which authorised the use of radio and television receivers by special regime prisoners, such devices could therefore only be used on batteries. 41. As they were considered to be high risk prisoners, inmates sentenced to death were not eligible for outside work assignment. As a result, the applicant used to spend almost twenty three hours a day on his own in his cell. Food was delivered three times a day in the cell. The applicant was permitted to leave his cell during the one-hour morning walk, again in the evening for several minutes for use of the sanitary facilities, and when receiving visits or for medical consultations. Also, inmates could have a shower once per week, for several minutes. 42. One or two visits of one-half hour were allowed per month. Visits by lawyers were not limited. At least on one occasion the applicant was visited by journalists. 43. During the relevant period there has been no limitation on correspondence. The applicant could also receive food parcels and money. He could buy small food and toilet items from the prison shop, if he had the money to do so. He could borrow books from the prison library. 44. The applicant received the same medical service as all other prison inmates. Between 1992 and 1998 he was seen fourteen times by a dentist and many times by other medical doctors. There is an infirmary opened eight hours per day. 45. Ever since his imprisonment in 1989 the applicant has been monitored by the prison psychological service. An assessment written by one of its employees on 4 December 1998 and submitted by the Government stated, inter alia: “[I]n crucial moments, such as the moratorium on executions and the ensuing period of debates about the abolition of the death penalty ... [the applicant] was unable to cope on his own with the fear and anxiety that had gripped him: his neurotic and depressive complaints reappeared, as well as his ... defence reactions ( ... denial of any guilt ...). During that period a number of psychological consultations and examinations were carried out with the [applicant] ... [These] brought about a temporary improvement: his neurotic and depressive reactions and his fright phased out but may reappear if the situation changes... [The applicant]'s personality is characterised by contradictions, domineering tendencies and aspirations... He ... seeks justifications [in respect of the murder] and aspires to preserve his self-respect, adopting the pose of a victim... The [applicant's] current need of self assertion - which on a behavioural level is manifested by an aspiration for increased physical and psychological activity and a pursuit of positive social reactions - may, in the situation where there are no changes in his legal status, provoke negative psychological developments by reactivating his pessimistic attitude and the feeling of lack of prospects... ” 46. The applicant has also been seen several times by psychiatrists at the prison hospital and by outside psychiatrists. They were unanimous that the applicant did not have a mental disorder but displayed signs of “psychopathy and emotional and volitional instability [typical of] a primitive personality”. 47. In June 1991, June-July 1993, January-February 1995 and again in AprilMay 1997 the applicant was admitted to the prison hospital and treated against neurosis, sleeplessness and loss of appetite. The applicant also complained that he was hearing voices and suffered from feelings of fear. He was treated with sedatives and other medicaments. The examinations revealed his good general condition. The doctors recommended frequent visits to the psychologist. 48. On an unspecified date he was examined as a matter of emergency as he had stated that he would hang himself. The psychiatrist at the prison hospital directed the applicant to a psychiatric hospital for treatment while noting that his behaviour disclosed a demonstrative element. On several occasions the doctors who examined the applicant noted that he simulated sensory disorders. 49. The CPT has not visited the Sofia prison where the applicant was detained. 50. In 1995 it visited, however, two inmates sentenced to death and detained in the Stara Zagora prison facilities and described the conditions of detention as follows: “The material conditions in the cells left a great deal to be desired: mediocre access to natural light and weak artificial lighting; inadequate heating; cell furnishings in a poor state of repair; dirty bed linen, etc. As regards out-of-cell activities, they were limited to 15 minutes per day for use of the sanitary facilities, one hour outdoor exercise (which the prisoners alleged was not guaranteed every day) and one visit per month. The two prisoners were not allowed to work (not even inside their cells), nor to go to the library, the cinema room or the refectory (their food was brought to the cell). In short, they were subject to an impoverished regime and, more particularly, were offered very little human contact. The latter consisted essentially of the possibility to talk to each other during outdoor exercise (which they took together), and occasional dealings with prison officers. Practically the only forms of useful occupation at their disposal were reading newspapers and books, and writing letters. The above-described situation is in accordance with the rules concerning prisoners sentenced to death, adopted after the moratorium on the execution of the death penalty... Nevertheless, in the CPT's view it is not acceptable. It is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. The delegation found that the regime applied to prisoners sentenced to death in Stara Zagora Prison did not provide such stimulation. The CPT recommends that the regime applied to prisoners sentenced to death held in Stara Zagora Prison, as well as in other prisons in Bulgaria, be revised in order to ensure that they are offered purposeful activities and appropriate human contact. Further, the CPT recommends that steps be taken to improve the material conditions in the cells occupied at Stara Zagora Prison by prisoners sentenced to death.” 51. Historically, most Member States of the Council of Europe approached the question of the abolition of the death penalty by suspending executions pending debate on a final abolition. States which became members of the Council of Europe during the 1990s were urged by the Parliamentary Assembly to introduce moratoria on executions as a first step towards the abolition of the death penalty (see, Report on the abolition of the death penalty in Europe, PA Doc. 7589 (25 June 1996)). 52. The Committee has held that “in the absence of further compelling circumstances” prolonged detention on death row per se does not constitute a violation of Article 7 of the International Covenant on Civil and Political Rights (prohibition of cruel, inhuman or degrading treatment) (see Hylton v. Jamaica, Views of 16 July 1996, communication no. 600/1994, Errol Johnson v. Jamaica, Views of 22 March 1996, communication no. 588/1994; and Michael Wanza v. Trinidad and Tobago, Views of 26 March 2002, communication no. 683/1996). 53. The Commission, when examining complaints by persons on death row, has found violations of Article XXVI of the American Declaration of the Rights and Duties of Man (prohibiting cruel, infamous or unusual punishment of persons accused of offences) and Article 5 §§ 1 and 2 of the American Convention on Human Rights (right to humane treatment and prohibition of torture, cruel, inhuman or degrading punishment or treatment) mainly on the strength of facts concerning irregularities in the sentencing process, the material conditions and regime of detention and ill-treatment in prison, while also taking into account the length of the period spent on death row (Andrews v. the United States of America, Case No. 11.139, Report No. 57/96, OEA/Ser/L/V/II.98, §§ 17883; Joseph Thomas v. Jamaica, Case No. 12.183, Report 127/01). 54. The Privy Council, examining cases from Caribbean Commonwealth States, had to decide whether the execution of a person following long delay after his sentence to death could amount to inhuman punishment or treatment contrary to those States' Constitutions. Initially, the Privy Council considered that a condemned person could not complain about delay of his execution caused by his resort to appellate proceedings (de Freitas v. Benny [1976] A.C. 239, Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342), or indeed about any delay, “whatever the reasons”, including a temporary moratorium on executions which had been lifted (Riley v. Attorney-General of Jamaica [1983] 1 A.C. 719). 55. In 1993, departing from its earlier decisions, the Privy Council held that to execute the appellants, who had spent almost fourteen years on death row and had on three occasions lived through last minutes stays of execution, would be unlawful as being inhuman punishment and therefore advised that their death sentences should be commuted to life imprisonment (Pratt and Morgan v. The Attorney General for Jamaica and another [1994] 2 A.C. 1). 56. In Pratt and Morgan, part of the relevant period was taken up by a temporary moratorium on executions. “[P]olitical debate on the desirability of retaining the death sentence in Jamaica ... resulted in a resolution of the Senate on 9th February 1979 to suspend all executions for a period of eighteen months pending the report of a Committee of inquiry. The Committee of Inquiry was appointed in June 1979. Before the Committee reported, an execution took place on 27th August 1980 which drew a protest to the Jamaican Privy Council from the Chairman of the Committee. No further executions took place before the Committee reported in March 1981. On 12th May 1981 executions were resumed” (Pratt, § 16). 57. The judgment in Pratt and Morgan stated, inter alia: “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. But before their Lordships condemn the act of execution as 'inhuman or degrading punishment or other treatment' within the meaning of section 17(1) [of the Jamaican Constitution] there are a number of factors that have to be balanced in weighing the delay. If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused cannot be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime... In their Lordships' view a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence... There may of course be circumstances which will lead the Jamaican Privy Council to recommend a respite in the carrying out of a death sentence, such as a political moratorium on the death sentence, or a petition on behalf of the appellants to [international human rights bodies] or a constitutional appeal to the Supreme Court. But if these respites cumulatively result in delay running into several years an execution will be likely to infringe section 17(1) and call for commutation of the death sentence to life imprisonment.” 58. Further, calculating the normal length of relevant appellate proceedings in Jamaica and taking into consideration the time necessary for examination of applications to the Inter American Commission of Human Rights and the UN Human Rights Committee, the Privy Council held that: “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or ... treatment”. 59. In cases which followed the Privy Council accepted a claim that a period of four years and ten months also warranted a finding in favour of the appellant (Guerra v. Baptiste and Others [1996] 1 A.C. 397) but dismissed appeals concerning shorter periods (Henfield v. The Attorney General of the Commonwealth of The Bahamas [1997] A.C. 413; Fischer (No. 1) v. The Minister of Public Safety and Immigration and Others (Bahamas) [1998] A.C. 673; and Higgs and David Mitchell v. The Minister of National Security and Others (Bahamas) [1999] UKPC 55) and held that save in exceptional circumstances, periods of pre-sentence detention should not be taken into account since, inter alia, “the state of mind of the person ... during this earlier period is not the agony of mind of a man facing execution, but ... anxiety and concern of the accused”(Fisher, § 14). In Higgs and David Mitchell, the Privy Council stated, inter alia: “If a man has been sentenced to death, it is wrong to add other cruelties to the manner of his death... In Pratt ... the [Privy Council] held that the execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair. It is not the delay in itself which is a cruel and unusual punishment..., 'it is the act of hanging the man that is rendered cruel and unusual by the lapse of time”. 60. The Supreme Court of India found that execution following inordinate delay after sentence of death violated Article 21 of the Indian Constitution which provides that “no one shall be deprived of his life or personal liberty except according to procedure established by law” and that the reasons for the delay were immaterial (Vatheeswaran v. State of Tamil Nadu [1983] 2 S.C.R. 348, Sher Singh and Others v. the State of Punjab [1983] 2 S.C.R. 582 and Smt. Treveniben v. State of Gujarat [1989] 1 S.C.J. 383) . 61. The United States' Supreme Court has refused to accept claims that lengthy detention on death row violated the prohibition, contained in the Eight Amendment to the Constitution of the United States of America, of cruel and unusual punishment, emphasising that the delay is due to the convicted person's own decision to make use of all possibilities to appeal (Knight v. Florida, 528 US 990). 62. The Supreme Court of Canada has held that Canadian constitutional standards did not bar extradition to the United States of America of a defendant facing the death penalty (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779). However, in 2001 it changed its approach and held that if the person being extradited could face the death penalty, constitutional standards required that in all but exceptional cases assurances must be sought from the United States of America that the death penalty would not be imposed or, if imposed, would not be carried out (United States v. Burns, [2001] 1 S.C.R. 283).

dev

001-83049

ENG

TUR

ADMISSIBILITY

OZALP v. TURKEY

Inadmissible

David Thór Björgvinsson

“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.”

dev

001-98989

ENG

TUR

ADMISSIBILITY

ATILLA v. TURKEY

Inadmissible

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

The applicants are Turkish nationals and at the time of their applications they were all but six in pre-trial detention in Diyarbakır F-type Prison. The names and dates of birth of the applicants appear in the appendix. They were all represented before the Court by Mr M. Şahin and Mr O. Çelik, lawyers practising in Diyarbakır. On 7 September 2006 the applicants announced a collective two-day hunger strike in protest against the conditions of detention of Abdullah Öcalan, leader of the PKK (the Workers’ Party of Kurdistan), an illegal, armed organisation. On 11 September 2006 the Diyarbakır F-type Prison Disciplinary Board imposed a disciplinary sanction on the applicants, consisting of a one-month ban on sports activities and conversation in groups (spor ve sohbet etkinlikleri), for launching a hunger strike and forming a group with a view to breaching the regulations. The applicants lodged appeals, which were rejected by the Diyarbakır Enforcement Court and the Diyarbakır Assize Court on 25 September and 9 October 2006 respectively. The final decision was deposited with the registry of the court on 10 November 2006. Law no. 5275 on the Enforcement of Sentences and Preventive Measures provides as follows: Article 40 “1. The penalty of a deprivation of certain activities deprives convicts of the right to participate in the prison workshops and sports activities from one to three months. 2. The acts requiring the penalty of a deprivation of certain activities are as follows: ... (g) launching a hunger strike ...”

dev

001-109076

ENG

NOR

CHAMBER

CASE OF ANTWI AND OTHERS v. NORWAY

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

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

6. The first applicant arrived in Germany in 1998, where he obtained a forged passport and a birth certificate stating a false identity indicating that he was a Portuguese national named Jose Joao Olas Pinto, born on 1 March 1969. 7. The second applicant is also of Ghanaian origin. She had arrived in Norway in 1997, at the age of seventeen, with a view to be reunited with her father and three siblings who still live in Norway. The first and second applicants met while she was travelling in Germany. The second applicant invited the first applicant to Norway and soon after they started cohabiting. They live in Oslo. 8. In 2000 the second applicant obtained Norwegian citizenship. 9. On 23 December 1999 the first applicant applied for a work- and residence permit as a citizen of the European Economic Area (hereinafter “the EEA”, established in 1994 under an agreement bringing the three member states of the European Free Trade Association (EFTA) – Iceland, Liechtenstein and Norway – and the twenty-seven member states of the European Union (EU) together in a single internal market, without the EFTA members having to join the EU). On the basis of the forged Portuguese passport indicating a false identity, the Norwegian immigration authorities granted him a five-year residence- and work permit from 13 April 2000 to 13 April 2005 as an EEA national. 10. On 23 September 2001 the couple had a daughter (the third applicant). 11. In 2003 the first applicant applied for Norwegian citizenship. The application was refused because the duration of his residence in Norway had been insufficient. 12. On 11 February 2005 the couple married in Ghana. According to the applicants, it was in that connection that the second applicant had become aware of the first applicant’s true identity as he obtained a Ghanaian passport. 13. The first applicant also used his false identity when he applied for renewal of his residence permit in the spring of 2005. 14. On 15 July 2005 the first applicant was arrested in the Netherlands while travelling to Canada, as the Dutch authorities discovered that his passport was forged. Subsequently, the first applicant provided his true identity to the Norwegian authorities. After a few months he returned to Norway. 15. On 12 October 2005 the Directorate of Immigration warned the first applicant about the possibility that he might be expelled from Norway. 16. On 3 May 2006 the Directorate decided that he should be expelled from Norway under section 29(1)(a) of the Immigration Act 1988 (according to which an alien may be expelled if he or she has committed serious or repeated violations of one or more provisions of the Act). Reference was made to the fact that by having provided false information in connection with his application for work permit on 23 December 1999, he had violated section 44 (cf. section 47(1)(b) of the Act). He had submitted false information regarding his date of birth, identity and nationality. Whilst the first applicant had stated that his name was Jose Joao Olas Pinto, a citizen of Portugal, born on 1 March 1969, his true identity had been Henry Antwi, a citizen of Ghana, born on 9 May 1975. The Directorate found that his expulsion would not be a disproportionate measure vis-à-vis him for the purposes of section 29(2). He was prohibited from re-entry for a period of five years (section 29(4)). 17. The Directorate also decided that these measures should be entered into the Schengen Information System, with the consequence that the expulsion in principle would apply to the entire Schengen area. He was given until 24 July 2006 to leave Norway. 18. On the same date as the above decision, the Directorate rejected the first applicant’s application for work-permit and family reunification with the second and third applicants on the ground of his expulsion. 19. On 4 September 2007 the Immigration Appeals Board rejected the first applicant’s appeal against the Directorate of Immigration’s decision of 3 May 2006. Like the Directorate, it observed that the first applicant had given false information about his identity and in support of this had submitted a forged passport. He had further maintained his false identity in his respective applications for Norwegian citizenship, for renewal of his work permit, and for family reunification. He had accordingly repeatedly committed aggravated violations of the immigration rules. 20. The Board found that the first applicant’s expulsion would not constitute a disproportionate measure vis-à-vis him, nor vis-à-vis his closest family members. In addition to having obtained a work permit as an EEA citizen on the basis of false information about his identity with the support of a forged passport, the first applicant had failed to comply with the order to leave the country by 24 July 2006. Strong interests of general prevention militated in favour of expulsion. 21. With reference to Article 8 of the Convention, the Board found that the first applicant’s personal links to Norway carried little weight. He had arrived in Norway at an adult age, had since returned to his home country and had also married the second applicant in Ghana, which suggested that he still had a strong attachment to his country of origin. In light of the gravity of the offences, his family links to his spouse and child could not be decisive in the global assessment. Since his relationship with the second applicant had been established during his residence on the basis of false identity, neither he nor she could entertain any legitimate expectation about being able to continue to live together in Norway if the matter was discovered. No weight could be placed on the fact that the second applicant claimed that she had been ignorant about the first applicant’s actual identity. Reference was made to the fact that she had been aware that he originally had a Ghanaian background and that, in connection with their marriage in Ghana on 11 February 2005, he had obtained a Ghanaian passport. 22. The Board further noted that the third applicant had been conceived and born while the first applicant resided on the basis of a false identity. Links established under circumstances as described above thus carried less weight. The fact that the applicants were living together as a family and that the first applicant had significant contacts with the third applicant, could not be decisive for the assessment of the case as a whole. Reference was made to the fact that the second applicant was originally of the same nationality as the first applicant and could more easily accompany the first applicant to their country of origin. In view of her young age, the child had the closest attachment to her parents and for this reason could eventually follow them to their home country. Also, the duration of the prohibition on re-entry was limited to five years. 23. Referring to section 4 of the Immigration Act 1988 (pursuant to which the Act ought to be applied consistently with Norway’s international legal obligations aimed at strengthening the foreigner’s position) and to section 4 of the Human Rights Act, which incorporated the Convention into Norwegian domestic law, the Board found that the first applicant’s expulsion would not be incompatible with Article 8 of the Convention or the United Nations Convention on the Rights of the Child. In this connection the Board had regard to the Court’s case-law, notably Amrollahi v. Denmark, no. 56811/00, § 35, 11 July 2002; Boultif v. Switzerland, no. 54273/00, § 48, ECHR 2001IX; Dalia v. France, 19 February 1998, § 54, Reports of Judgments and Decisions 1998I; Jakupovic v. Austria, no. 36757/97, § 31, 6 February 2003). The Board considered in detail the first applicant’s arguments based on Rodrigues da Silva and Hoogkamer v. the Netherlands (no. 50435/99, ECHR 2006I) and agreed with the Directorate that it was not directly applicable to the present case. 24. In sum, the Board was of the view that, having regard to the gravity of the first applicant’five years would not be a disproportionate measure either vis-à-vis the first applicant or vis-à-vis his closest family members, for the purposes of section 29(2) of the Immigration Act, Article 8 of the Convention and the UN Convention on the Rights of the Child. 25. Throughout the above proceedings before the immigration authorities the first applicant was represented by a lawyer. 26. The first applicant challenged the above decision before the Oslo City Court (tingrett), pending which it was decided in the autumn of 2007 to stay his expulsion. 27. On 28 March 2008 the Oslo City Court quashed the Immigration Appeals Board’s decision of 4 September 2007 as being invalid. The City Court found it obvious that the conditions for expelling the first applicant set out in section 29(1)(a) had been fulfilled. The first applicant’s offences of the immigration rules were aggravated and his expulsion was warranted by weighty considerations of general deterrence. According to the immigration authorities’ practice, a prohibition on re-entry would normally be made permanent in such cases. The reason why the prohibition on reentry had been limited to a period of five years in the present case was the fact that the first applicant had a six years’ old daughter (the third applicant). The question thus arose whether the expulsion of the first applicant for a period of five years would be a disproportionate measure visà-vis his daughter despite the seriousness of his breaches of the Immigration Act. 28. In this regard the City Court observed, inter alia, that the third applicant appeared to be an ordinary Norwegian girl and that it was not certain that it would be unproblematic for her to move to Ghana, even though this was her parents’ home country. One would have to take into account possible problems for her in the event of a return to Norway. If the first applicant were to be expelled to Ghana for a period of five years, his daughter would most probably loose the close contact she had with him. To deprive the child of her relationship with her father would be a serious measure and could have disturbing effects on the child’s development. This would be so even if she were to have the opportunity to visit him in his home country. Although considerations of general prevention militated in favour of expulsion, the measure would be disproportionate vis-à-vis the first applicant’s daughter. 29. The State appealed to the Borgarting High Court (lagmannsrett). At the request of the State, the High Court decided on 14 November 2008 to suspend the proceedings in the first applicant’s case pending the national outcome in a parallel case (Nunez v. Norway, no. 55597/09, 28 June 2011). 30. In a judgment of 19 January 2010, the High Court, by two votes to one, upheld the Immigration Appeals Board’s decision of 4 September 2007. 31. The High Court observed that the first applicant’s violation of the Immigration Act ought to be considered as serious. On four different occasions he had submitted false information about his identity to the immigration authorities and had supported this with a forged passport. First he had been issued with a permit - an EEA permit - despite his not being entitled to such a permit. On the second occasion, his application for citizenship had been refused on other grounds, namely the duration of his residence in Norway. On the third and fourth occasions, his application had been rejected because his expulsion had already been decided. False information about one’s identity made it very difficult for the authorities to exercise an effective control of a foreigner’s entry into and residence in Norway. To a large extent the system had to be based on confidence. General preventive measures suggested therefore that breaches of the immigration rules should entail adverse consequences for the person concerned. 32. As to the question whether, nonetheless, there was such an attachment to Norway as to make the expulsion disproportionate, the High Court observed inter alia as follows. 33. The first applicant had grown up in Ghana and had his family there. He had lived in Norway since the autumn of 1999. Since his attachment had been established on the basis of a residence permit that he had misled the authorities to grant him, he could not have had any legitimate expectation about being able to remain in Norway. The High Court found it clear that expulsion would not be a disproportionate measure vis-à-vis the first applicant. 34. As regards his wife, the second applicant, the High Court observed that she had originated from Ghana. She knew the culture and spoke the language of the country. Since the age of seventeen she had lived in Norway where she had her closest family, her father and three siblings. She was a Norwegian citizen, spoke Norwegian and was working in Norway. In 1999 she had started co-habiting with the first applicant in the belief that he held lawful residence in Norway as an EEA citizen. She thus had reason to believe that their marriage and his application for family reunification had not been necessary conditions for them to establish a reliable framework around their life together in Norway. She had become aware of her husband’s true identity when they had married in February 2005. Only when the false passport had been revealed in the Netherlands in the summer of 2005 had she become aware that he was not a Portuguese national. Nonetheless, the High Court found that her interests seen on their own could not render the expulsion a disproportionate measure. 35. The High Court found that a decisive consideration in this case was the interests of the daughter, the third applicant. She was eight and a half years of age and was a Norwegian national. She was in her third school year, active in sport and well established in her local environment. She only spoke Norwegian and a few words of her mother’s language – Twi – and English. Her parents spoke primarily Norwegian at home. It had been submitted that she needed close follow-up in relation to school and that it was the first applicant who assumed this contact, staying at home after having lost his work permit. It was also him who followed up her hobbies. 36. According to two medical statements dated 5 October 2007 and 18 September 2008, respectively, by the third applicant’s general medical practitioners, since she had been a child she had been suffering from rashes that worsened with heat. 37. The High Court pointed out that regard for the best interests of the child was a fundamental consideration to be taken into account in the proportionality assessment under section 29 of the Immigration Act. 38. The High Court found it established that in the event of the first applicant’s expulsion, either the family would be split, meaning that the second and third applicants would continue to live in Norway, or they would move with him to Ghana. This would clearly not be in the best interests of the daughter, who was born and had grown up in Norway and was very attached to her father. Naturally she also had strong bonds to her mother. 39. It ought to be expected that an expulsion would involve financial, emotional and social strain on established family life. This applied not least when family life was interrupted as a result of the expulsion. Strain of this kind was not in itself a sufficient indicator that expulsion would be a disproportionately severe sanction. 40. The High Court further pointed to the Supreme Court’s judgment reported in Norsk Retstidende (“Rt.”) 2009-534 (see Nunez, cited above, § 23), in which Norway’s international obligations were also assessed, including the European Court’s judgment in Rodrigues da Silva and Hoogkamer, cited above. In the High Court’s view, the interests of a child who had no special needs for care and who had a remaining parent able to provide satisfactory care should not be a decisive consideration in assessing whether an expulsion measure should be implemented. 41. According to the High Court, the third applicant was a normal girl for her age – eight years and a half – and had no special care needs. It saw no reason to doubt that her mother would be able to provide her with satisfactory care on her own. Since the child’s mother originated from the same country as the father, and had been on visits there with the daughter on three occasions, the situation was favourable for regular contact or, in the alternative, for the family’s settling in Ghana. Consequently, the expulsion of her father with a prohibition on re-entry for a limited period would not be a disproportionate measure. 42. As to the duration of that period the High Court was divided. 43. The majority did not find five years inconsistent with current practice or disproportionate. It observed that the case involved serious violations of the Immigration Act. According to the Supreme Court’s judgment in the Nunez case, an expulsion would only be disproportionate when it resulted in an extraordinary burden (see paragraph 63 of the Supreme Court’s judgment quoted in Nunez, cited above, § 23). 44. As to the present case, the High Court reiterated its finding above that the child’s mother would be able to provide the child with satisfactory care of her own. Since the child’s mother originated from the same country as the father and had visited the country with the daughter on three occasions, there were favourable conditions for maintaining regular contacts or, in the alternative, for the whole family to settle in Ghana. Thus the family had a better basis for maintaining family life and contact than would have been the case if the parents had not had the same country of origin. 45. The parents had informed the court that the daughter could not stay in Ghana for extended periods since she suffered from a skin rash that was aggravated by heat. However, it was clear that she had been in Ghana several times, most recently in October 2009. In the majority’s view, the information about the daughter’s rashes had not been sufficiently documented and could not be relied upon. 46. The minority was of the view that the imposition of a five-year reentry ban would be too severe and disproportionate a measure and that two-year ban would be appropriate, observing inter alia the following. 47. The gravity of the first applicant’s offences under the Immigration Act had been comparable to those committed by the applicant in the Nunez case, though less aggravated bearing in mind that he had not committed other offences in Norway and had not defied any prohibition on re-entry. 48. Since birth the daughter had been taken special care of by her father, who had followed her up in her recreational activities and through extensive contacts with her school. For a girl of eight years and a half of age, and for her mother, it would make a considerable difference were reunification of the family to take place in Norway after two to three years as compared to five to six years. Taking into account the normal processing time for a request for family reunification, the daughter would be nearly fifteen years before the family could resume cohabitation in Norway. The years in between would be important years. 49. Even though there was a possibility for the family to follow the first applicant to Ghana, this prospect was unrealistic. There was nothing to indicate that the family would easily find accommodation, work, etc. in Ghana. 50. The minority agreed that the evidence submitted in support of the affirmation that the daughter had a skin rash aggravated by heat was weak. Nonetheless, on the basis of the two statements form the daughter’s two general practitioners, it ought to be assumed that she had “a recurrent skin rash. The diagnosis had been somewhat uncertain.” As far as could be understood, one only had the word of the parents to the effect that the rash had been aggravated by heat; the general practitioners’ statements on this point had apparently been based on information provided by the parents. 51. However, it was unnecessary to further consider this matter since in any event for the third applicant to be interrupted for at least five years’ from her school, friends and hobbies in Norway in order to settle in a country where she neither knew the language nor the culture would be particularly unfortunate for her. Her knowledge of Norwegian would deteriorate and it would have social and educational consequences for her when returning to Norway at the age of fourteen or fifteen. 52. The minority in addition attached some weight to the second applicant’s interests, notably the fact that she had entered into the relationship, had given birth to a child and had married the first applicant in the belief that it would be possible to continue family life in the country of which she was a national and where most of her remaining family lived. It further had regard to the fact that the first applicant had come to Norway because of his wife and that their cohabitation had been established almost immediately after his arrival in the country. 53. On 28 April 2010 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg) unanimously refused the first applicant leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by other considerations. 54. In the above-mentioned judicial proceedings, the first applicant was represented by a lawyer at each judicial level. 55. Section 29 (1) (a) of the Immigration Act 1988 (Act of 24 June 1988 Nr 64, Lov om utlendingers adgang til riket og deres opphold her – utlendingsloven – applicable at the material time and later replaced by the Immigration Act 2008) read: “Any foreign national may be expelled a) when the foreign national has seriously or repeatedly contravened one or more provisions of the present Act or evades the execution of any decision which means that the person concerned shall leave the realm.” 56. Even when the conditions for expulsion pursuant to section 29 of the Immigration Act were satisfied, expulsion could not take place if it would be a disproportionate measure against the foreign national or the closest members of his or her family. Section 29 § 2 of the Immigration Act 1988 provided: “Expulsion pursuant to the first paragraph, sub-paragraphs (a), (b), (c), (e) and (f) of this section, shall not be ordered if, having regard to the seriousness of the offence and the foreign national’s links to the realm, this would be a disproportionately severe measure vis-à-vis the foreign national in question or the closest members of this person’s family.” 57. According to section 29 (4), an expulsion order would be accompanied by a prohibition on re-entry into Norway. However, the person expelled might, on application, be granted leave to enter Norway. Furthermore, according to well-established administrative practice, when considering an application for leave to enter under section 29 (4), the Directorate of Immigration was under an obligation to consider the proportionality of its decision on prohibition on re-entry. The provision read: “Expulsion is an obstacle to subsequent leave to enter the realm. Prohibition on entry may be made permanent or of limited duration, but as a general rule not for a period of less than two years. On application the person expelled may be granted leave to enter the realm, but as a rule not until two years have elapsed since the date of exit.” 58. Section 41 (1) provided inter alia: “Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit. If the order is not complied with or it is highly probable that it will not lead to the foreign national’s leaving the realm, the police may escort the foreign national out. ... Any decision which applies to implementation is not considered to be an individual decision, cf. section 2 (1) (b), of the Public Administration Act.”

dev

001-78585

ENG

MDA

CHAMBER

CASE OF OFERTA PLUS SRL v. MOLDOVA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing;Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Just satisfaction reserved

Nicolas Bratza

6. The applicant, Oferta Plus S.R.L., is a company incorporated under Moldovan law. 7. The background to this case lies in a series of complex contractual arrangements made in 1997 concerning importation of electricity from Ukraine to Moldova and involving, in addition to the applicant company, a Moldovan State-owned power distribution company called Moldtranselectro, a Ukrainian State-owned power distribution company and a Ukrainian private company. The agreement to which Oferta Plus was a party provided, inter alia, that it would pay the Ukrainian private company for the electricity supplied to Moldtranselectro in United States dollars (USD) and would later be paid back by Moldtranselectro in Moldovan lei (MDL) at the official exchange rate on the day of payment. 8. On unspecified dates between 1997 and 1998 the applicant company paid over USD 33,000,000 for the electricity supplied to Moldtranselectro from Ukraine. 9. On an unspecified date Moldtranselectro paid the applicant company MDL 189,869,277. 10. On 3 March 1998 the Government of Moldova adopted Decision no. 243 by which the Ministry of Finance was authorised to issue nominative Treasury bonds in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions. 11. On 25 March 1998 Moldtranselectro wrote a letter to the Ministry of Finance asking it to issue a nominative Treasury bond (“Treasury bond”) with a value of MDL 20,000,000 in favour of Oferta Plus. 12. On 27 March 1998 the Ministry of Finance issued a Treasury bond valued at MDL 20,000,000 in favour of the applicant company, payable by 10 July 1998. The Treasury bond provided that the applicant company had to present it to the Ministry of Finance at least ten banking days before the date of payment. It also provided that Moldtranselectro had to present, by that date, to the Ministry of Finance, documents proving the supply of electricity to state institutions. 13. The applicant company presented the Treasury bond to the Ministry of Finance ten banking days before the date of payment. However, the latter refused to pay, on the ground that Moldtranselectro had failed to submit evidence concerning the payment by Oferta Plus for the imported electricity. 14. In October 1998 the applicant company initiated civil proceedings against both the Ministry of Finance and Moldtranselectro. The Ministry of Finance defended the action on the grounds set out in paragraph 13 above while Moldtranselectro declined all responsibility. 15. On 27 October 1999 the Chisinau Economic Court found in favour of the applicant company and confirmed its right to be paid MDL 20,000,000 by the Ministry of Finance, in accordance with the Treasury bond. It based its judgment on the finding that Oferta Plus had paid for energy supplied to Moldtranselectro from Ukraine in accordance with the agreement between them and that that energy had been consumed by state institutions. The court considered that the fact that Moldtranselectro had failed to comply with its obligation in the Treasury bond was not in itself enough to absolve the Ministry of Finance from its obligation to pay. The court also decided to absolve Moldtranselectro of any responsibility. 16. Since an appeal by the Ministry of Finance was dismissed on 25 November 1999 for failure to pay court fees, a warrant for the enforcement of the judgment of 27 October 1999 was issued to the applicant company in November 1999. 17. On 14 February 2000 the applicant company officially requested a bailiff to start the enforcement procedure under the warrant. 18. On 27 April 2000 the Ministry of Finance requested an extension of the time-limit for lodging an appeal against the judgment of 27 October 1999 and its request was granted. The appeal was examined on its merits and dismissed by a judgment of the Appeals Chamber of the Economic Court of the Republic of Moldova on 4 October 2000. The Ministry of Finance lodged an appeal on points of law, reiterating that Moldtranselectro had not complied with its obligation in the Treasury bond. 19. On 7 February 2001 the Supreme Court of Justice dismissed the appeal and upheld the judgments of 27 October 1999 and 4 October 2000. It found it undisputed that Oferta Plus had paid for electricity supplied from Ukraine to Moldtranselectro and consumed, inter alia, by state institutions. The failure of Moldtranselectro, which was a State company, to fulfil its obligations vis-à-vis the Ministry of Finance by presenting it with the documents required by the latter, could not affect the rights of the applicant company, which had paid for electricity supplied from Ukraine. It noted that the Treasury bond did not contain any provision making the payment dependent on the fulfilment of Moldtranselectro's obligations towards the Ministry of Finance. The court also noted that the applicant company had on many occasions asked the Ministry of Finance for payment, but that the Ministry had refused and had asked for the documents which should have been presented by Moldtranselectro. The court considered the Ministry of Finance's request to be unlawful and argued that, according to the law, it was Moldtranselectro that should have presented the documents. 20. In March 2001, following a request by the Ministry of Finance, the Prosecutor General's Office introduced a request for annulment of the final judgment of the Supreme Court of Justice. On 7 May 2001 the Plenary Supreme Court of Justice dismissed the request and upheld the judgments favourable to the applicant company. It found, inter alia, that both during the proceedings before the lower courts and before the Plenary Supreme Court, it had been established that over MDL 20,000,000 worth of electricity had been supplied to state institutions. The fact that Moldtranselectro had failed to comply with its obligations to the Ministry of Finance could not have had any influence on the right of the applicant company to be paid. 21. On 19 June 2003 the applicant company sold a part of the Ministry's debt, amounting to MDL 291,801, to a third company. 22. Since the judgment of 27 October 1999 had still not been enforced, on 26 December 2003, at the applicant company's request, the Ministry of Finance agreed to conclude an agreement according to which the Ministry would pay MDL 2,000,000 each month from January to October 2004 in exchange for the applicant's promise not to initiate further claims for damages. 23. Between January and March 2004 the Ministry paid MDL 4,000,000 to the applicant company. 24. On an unspecified date the Ministry paid MDL 291,801 to a third company (see paragraph 21 above). 25. The Ministry of Finance then stopped making the payments, and on 14 April 2004 the applicant company informed the Government Agent that it had introduced an application with the Court complaining of the failure to enforce the judgment. 26. On 26 April 2004 the Government Agent informed the Ministry of Finance about the applicant company's application with the Court and requested it to “take all the necessary steps in order to avoid a finding of a violation against the State by the Court, with the consequent impairment of the country's image”. 27. On 11 May 2004 the Ministry of Finance paid MDL 1,000,000 to the applicant company. There were no further payments after that date. 28. On 7 June 2004 the Ministry of Finance wrote to the Prosecutor General's Office, informing it, inter alia, that it considered the judgment in favour of the applicant company to be unlawful, but that it had complied with it partially, so that Oferta Plus would not complain to the Court. The Government Agent had informed it that Oferta Plus had already complained to the Court. The Ministry asked the Prosecutor General's Office for advice. 29. On 8 June 2004 the Prosecutor General's Office wrote to the Ministry as follows: “...during the proceedings [between the applicant company, Moldtranselectro and the Ministry of Finance] the applicant company and Moldtranselectro presented invoices for MDL 15,608,692, of which by 24 April 1998 only MDL 6,226,504 had been paid. No other evidence as to the extent to which Oferta Plus had fulfilled its obligations under the agreement [of 1997] has been presented. Despite this the courts ruled in its favour. In that respect the Prosecutor General's Office has ordered an audit to verify the supply of electricity and the payments between Oferta Plus, Moldtranselectro and state institutions. A final decision will be adopted by the Prosecutor General's Office after the results of the audit become available to it and the Ministry of Finance will be informed accordingly.” An attempt to carry out this audit was made in August 2004 by a representative of the Ministry of Finance at the request of the Prosecutor General's Office. However, it was unsuccessful because, in accordance with book-keeping legislation, the applicant company had destroyed the accounting documents after three years. 30. The Ministry of Finance did not wait for a final reply from the Prosecutor General's Office and on 15 June 2004 lodged with the Plenary Supreme Court of Justice a request for revision of the judgments in favour of the applicant company. The request referred to Article 449 of the Code of Civil Procedure (see paragraph 61 below) but did not specify any reasons for revision. 31. On 12 July 2004 the applicant company submitted to the Supreme Court its observations on the revision request, in which it argued, inter alia, that the Ministry had not indicated any reasons for revision, that the revision request was time-barred and if the request were to be upheld this would amount to a breach of the principle of legal certainty. 32. On the same date the Plenary Supreme Court of Justice upheld the revision request, following a hearing at which the Ministry of Finance was represented by the Deputy Prosecutor General. It quashed the judgments in favour of the applicant company and ordered the reopening of the proceedings. It relied on the Prosecutor General's office's letter of 8 June 2004 (see paragraph 29 above), which had been submitted by the Ministry during the hearing. The Plenary considered the letter to be a new and essential fact or circumstance which was unknown and could not have been known earlier, in accordance with the provisions of Article 449 (c) of the Code of Civil Procedure. In particular it considered new and essential the submission of the Prosecutor General's Office that “by 24 April 1998 only MDL 6,226,504 had been paid”. The Supreme Court of Justice did not address in its judgment the objections raised by the applicant company. 33. On 3 November 2004 the Economic Court of Appeal held a hearing in the reopened proceedings. In contrast with the first round of proceedings, Moldtranselectro sided this time with the Ministry of Finance and argued that Oferta Plus's action should be dismissed because it (Moldtranselectro) had already covered the entire debt for the electricity supplied, including MDL 20,000,000 provided in the Treasury bond, by paying Oferta Plus MDL 189,869,272 on an unspecified date. The court upheld the applicant company's action and ordered the Ministry of Finance to pay it MDL 20,000,000 in accordance with the Treasury bond. It based its judgment on the fact that the supply of the electricity and the cost of the energy supplied were not disputed by the parties. Referring to the electricity supplied to state institutions, it found that by 1 March 1998 they had consumed MDL 27,551,000 worth of electricity imported from Ukraine with the participation of Oferta Plus. In the court's view, the Treasury bond constituted an incontestable obligation on the Ministry of Finance towards Oferta Plus, which could not depend on the fulfilment of third-party obligations. Referring to the submissions of Moldtranselectro concerning the payment of MDL 189,869,272 to the applicant company, the court argued that that amount represented USD 33,133,404 at the date of supply of the electricity, but not at the date of payment of the MDL 189,869,272. The court held that at the date of payment of the above amount by Moldtranselectro, USD 33,133,404 was worth MDL 210,692,688. Referring to the amounts indicated by the Prosecutor General's Office in its letter dated 8 June 2004, which served as a basis for the revision of the final judgment of 27 October 1999 (see paragraph 29 above), the court found that those figures were related to a completely different matter and were irrelevant to the case before it. The Ministry of Finance appealed against this judgment to the Supreme Court of Justice. 34. On 10 February 2005 the Supreme Court of Justice upheld the Ministry's appeal and dismissed the applicant company's action against it. While not contesting the findings of the first-instance court (see paragraph 33 above) and while confirming that electricity was supplied to Moldtranselectro and consumed, inter alia, by state institutions, it made its own calculations directly in USD without converting the amounts to MDL, and came to the conclusion that the entire debt owed by the State to the applicant company had been covered by the payment of MDL 189,869,272 by Moldtranselectro to the former. The Supreme Court also ordered the applicant company to pay the court fees of MDL 600,000. 35. On 17 March 2005 the Ministry of Finance lodged with the Economic Court of Appeal a request for the return of the MDL 5,291,801 which had been paid in accordance with the judgment of 7 February 2001. The applicant company argued, inter alia, that the request had been lodged out of time and that in any event the amount of MDL 291,801 had never been paid to it, but had instead been paid to a third person (see paragraphs 21 and 24 above). 36. By a final judgment of 29 September 2005 the Supreme Court of Justice upheld the request of the Ministry of Finance. It dismissed the applicant company's submission concerning the time-limit and ignored its submission concerning the MDL 291,801 which had been paid to a third person. 37. On 19 October 2004, the Prosecutor General's Office, having examined the letter from the Ministry of Finance of 7 June 2004 (see paragraph 28 above) initiated criminal proceedings against the applicant company and against the head of Moldtranselectro on charges of large-scale embezzlement of State property. The Prosecutor General's Office referred to the results of the audit which it had attempted to carry out in August 2004 (see paragraph 29 above) and stated, inter alia, that according to the results of that audit, Oferta Plus had not paid for electricity supplied to state institutions. 38. On 15 April 2005 the Chief Executive Officer of the applicant company (“C.T.”) was questioned by the Prosecutor General's Office. 39. On 20 April 2005 the offices of the applicant company were searched and some documents seized. 40. On 25 October 2005 the criminal proceedings were discontinued. The prosecutor in charge of the criminal case stated in his decision of discontinuation, inter alia, the following: “According to the evidence obtained during the audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus reached MDL 202,644,866... The materials gathered [during the investigation] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied. The transfers [of MDL 5,000,000 by the Ministry of Finance] to Oferta Plus's accounts were carried out in accordance with court judgments... Taking into consideration the evidence gathered, [the prosecution concludes] that the acts of Oferta Plus's management do not disclose any signs of the offence [of large-scale embezzlement] or of other offences.” 41. On 8 December 2005 all the bank accounts of the applicant company were frozen by a bailiff to ensure the restitution of MDL 5,291,801. The company had to make all of its employees redundant, except for C.T. 42. On 15 February 2006 the Court communicated the present case to the Moldovan Government. 43. On 26 April 2006 the Deputy Prosecutor General quashed the decision of 25 October 2005. He submitted, inter alia, that on 1 January 2001 Moldtranselectro's debt to the applicant company for the electricity supplied had been MDL 38,454,671. He argued that while Oferta Plus had paid the Ukrainian partner more than MDL 20,000,000 for the electricity supplied to Moldtranselectro, it appeared that the energy for which it had paid had not been supplied exclusively to state institutions. He also noted that Oferta Plus had transferred a part of the debt to third companies in exchange for money and goods. He requested, in particular, that an international fact-finding mission be sent to Ukraine and that the books of the applicant company be seized. 44. On 11 May 2006 C.T. was declared a suspect in the criminal proceedings. In a decision of the same date, it was reiterated that on 1 January 2001 Moldtranselectro's debt to Oferta Plus for the electricity supplied had been MDL 38,454,671. However, the electricity for which Moldtranselectro owed this amount had not been supplied to state institutions. 45. On 9 August 2006 a prosecutor issued a decision by which C.T. was officially indicted for misappropriation of MDL 5,000,000 and attempted misappropriation of MDL 15,000,000. The charges against him were based on the fact that the energy supplied to Moldtranselectro, for which the applicant company had paid the Ukrainian private company, had not been consumed by state institutions. The prosecution argued that a Treasury bond could be issued by the Ministry of Finance only for energy supplied to state institutions. Contrary to that provision, Moldtranselectro had asked the Ministry of Finance on 25 March 1998 to issue a Treasury bond in favour of Oferta Plus and such a bond had been issued by the Ministry of Finance on 27 March 1998. After that, Oferta Plus, in the person of V.L, its former chief executive, making use of the favourable environment created for his company by the illegal actions of Moldtranselectro, and seeking to obtain MDL 20,000,000, had initiated civil proceedings against the Ministry of Finance, and in the absence of any proof that electricity had been supplied to state institutions, illegally obtained judgments in its favour. However V.L. could not fulfil his criminal intention of misappropriating MDL 20 million for reasons beyond his control (he was killed). The criminal intention to misappropriate MDL 20,000,000 was continued by C.T., the present Chief Executive Officer of Oferta Plus. Despite the fact that on 23 May 2002 Moldtranselectro owed Oferta Plus only MDL 3,948.49, C.T. had pursued his criminal intention by pressing the Ministry of Finance repeatedly to comply with the judgment of 27 October 1999. As a result, on 26 December 2003 the Ministry of Finance had concluded an agreement with him and later transferred MDL 5,000,000 to Oferta Plus. Later, C.T. transferred the money to the account of a third company, which also belonged to him, from where it was transferred to his wife's personal account and later withdrawn in cash. Referring to the reopened proceedings which followed the judgment of the Plenary Supreme Court of 12 July 2004, the prosecutor noted that, despite being well aware that Oferta Plus had not paid for energy supplied to state institutions, C.T. had managed to obtain a judgment in favour of Oferta Plus before the first-instance court. C.T. had presented evidence which, while showing the payment for electricity, did not prove that the electricity had been supplied to state institutions. 46. Also, on 9 August 2006, according to the applicant company, C.T. was told by the investigating officer, Eugen Bîcu, that no criminal charges against him would have been brought had he contented himself with MDL 5,000,000. 47. On the same date C.T. was arrested and a request for him to be remanded in custody for thirty days was addressed to the Buiucani District Court. 48. A detention order for a period of thirty days was issued by the investigating judge of the Buiucani District Court on the same day. The judge argued, inter alia, that C.T. had attempted to influence a witness. He relied on a transcript of a telephone conversation of 12 May 2006, which, however, was never disclosed to the defence, despite the latter's requests. 49. C.T. appealed against the detention order and argued, inter alia, that the criminal proceedings against him had been a form of pressure to persuade Oferta Plus to abandon its application before the Court. He complained that he and his lawyers had not been allowed to see the transcript of the telephone conversation which was the main reason for his detention and insisted that he had not made any attempt to influence any witnesses. He also argued that he had become the CEO of Oferta Plus only in late 2003 and thus had not even been involved in the transaction between the applicant company and Moldtranselectro and that in any event the electricity had been supplied to Moldtranselectro, which was a State company and held a monopoly on distribution of electricity at that time. The applicant company could not know who were the final consumers of the electricity. 50. On 15 August 2006 C.T.'s appeal was dismissed. The Court of Appeal did not give any assessment of the argument concerning C.T.'s lack of access to the transcript of the telephone conversation. 51. In the meantime, on 14 August 2006, the applicant company's lawyer in the present case applied to the Centre for Fighting Economic Crimes and Corruption (“CFECC”) to visit C.T. He pointed out that he was Oferta Plus's lawyer in the proceedings before the Court and submitted that he needed to see C.T. in order to prepare with him the observations due on 22 August 2006. He asked that the meeting between them take place without a glass partition separating them, since he knew that there was such a partition in the CFECC lawyer-client meeting room. He submitted that both he and C.T. had reason to believe that conversations through the glass partition in the CFECC meeting room were intercepted and that they were convinced that the criminal proceedings against C.T. had been instituted in order to discourage Oferta Plus from pursuing its application before the Court. He argued that their separation by the glass partition, especially in such conditions, would not allow them to speak freely and would seriously hinder his ability to represent the applicant company before the Court. The lawyer further argued that C.T. was not a violent person and that there was no risk that he would attack his lawyer. In any event he, the lawyer, would bear responsibility for any attack. He also declared that he would allow the CFECC representatives to search him, except for the documents he would be carrying, in order to ensure that he had no forbidden objects on his person. 52. After repeated requests by telephone, on 18 August 2006 the lawyer was finally allowed to see C.T. in the CFECC lawyer-client meeting room, separated by the glass partition. In these circumstances, C.T. refused to discuss any matters relating to pecuniary damage and asked his lawyer to do likewise because the conversation would have related to the whereabouts of the company's accounting documents. During the conversation with C.T., the lawyer informed him that the charges against him were not consistent with the findings of the civil courts in the civil proceedings between Oferta Plus, the Ministry of Finance and Moldtranselectro. The next working day, on 21 August 2006, the criminal investigator E. Bîcu went to the archives of the Economic Court of Appeal and took the case file in the civil proceedings. The case file was returned to the archives on 4 September 2006. 53. On 18 August 2006, in the afternoon, the applicant's lawyer telephoned the Government Agent's Office and asked for assistance in seeing C.T. without a glass partition. His request was not successful. 54. On 21 August 2006 the lawyer telephoned the investigating officer, and asked him for another meeting with C.T. He repeated his request to see C.T. without the glass partition, but this request was again rejected. He was told that the conditions for meetings between lawyers and clients in the CFECC detention centre were not contrary to the law. A meeting between the lawyer and C.T. took place the next day. 55. On the same day the CFECC made public a press release according to which it had discovered, in the context of the criminal investigation against C.T., an illegal scheme for misappropriation of budgetary funds. A similar item, with images of C.T., was broadcast on the evening news bulletin of Moldovan national television. 56. On 29 August 2006, the applicant company's lawyer wrote to the Buiucani District Court that he was the representative of Oferta Plus in the proceedings before the Court. He submitted that, since his client believed that the criminal proceedings against C.T. and his subsequent detention served the purpose of discouraging the pursuit of the Oferta Plus v. Moldova application before the Court, on 22 August 2006 a formal complaint under Article 34 of the Convention had been lodged with the Court. He noted that the main piece of evidence relied upon by the courts in placing C.T. in detention was a transcript of a telephone conversation which allegedly proved his attempt to influence a witness. Since C.T.'s defence had not been presented with a copy of that transcript during the pre-trial detention proceedings, he formally requested a copy of it for the purpose of presenting it to the Court in support of the Article 34 complaint. 57. On 5 September 2006 Mr Gribincea's request was rejected by the Buiucani District Court on the ground that he was not C.T.'s lawyer in the criminal proceedings against him. The court also noted that in any event the materials of the criminal case file were not usually disclosed to the defence unless the criminal investigator decided otherwise. 58. On 7 September 2006 the investigation was completed in the criminal proceedings and the case was sent for examination on its merits to the Centru District Court. On the same date, C.T. told the applicant company's lawyer that he had been told that he would be convicted before the Court adopted a judgment in the present case. 59. In a letter of 29 November 2006, the applicant company's representative informed the Court that C.T. had been released from detention on 14 November 2006. 60. The relevant provisions of the old Code of Civil Procedure, concerning enforcement, read as follows: An enforcement warrant shall be issued to the plaintiff by a court, after the judgment has become final... The bailiff shall start the enforcement of a judgment upon the request of [one of the parties to the proceedings]... The bailiff can adjourn the enforcement only at the request of the plaintiff or on the basis of a court order. 61. The provisions of the new Code of Civil Procedure concerning the revision of final judgments read as follows: “Grounds for revision Revision may be requested: c) When new and essential facts or circumstances have been discovered that were unknown and could not have been known earlier;” “A revision request may be lodged: ... c) within three months from the date on which the person concerned has come to know essential circumstances or facts of the case which were unknown to him/her earlier and which could not have been known to him/her earlier....” 62. It appears from the photographs submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass. Both plates have small holes pierced with a drill; however the holes do not coincide, so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for documents to be passed between the lawyer and his client. 63. The domestic courts have ruled on complaints about lack of confidentiality in the CFECC lawyer-client meeting room in the cases of Modârcă (no. 14437/05) and Sarban v. Moldova, no. 3456/05, 4 October 2005. On 2 November 2004 a judge of the Buiucani District Court ordered the CFECC authorities to eliminate the glass partition separating lawyers from their clients; however, the CFECC authorities refused to comply with the court order. On 3 December 2004 the same judge revoked the decision of 2 November 2004, arguing that in the meantime she had been informed by the CFECC authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary to ensure the security of the detainees. On 15 February 2005 Mr Sarban's lawyer complained again to the Buiucani District Court under Article 5 § 4 of the Convention that he could not confer with his client under conditions of confidentiality. On 16 February the same judge from the Buiucani District Court dismissed the complaint without examining it and referred to her previous decision of 3 December 2004. 64. Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any proceedings regarding persons detained in the CFECC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban, cited above, § 126). 65. On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a committee of inspection of the CFECC detention centre. During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices. They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration had rejected the proposal. 66. Recommendation Rec (2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), in so far as relevant, reads as follows: 23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. ... 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ... 23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.

dev

001-113945

ENG

IRL

ADMISSIBILITY

MCDERMOTT AND OTHERS v. IRELAND AND KEEGAN v. IRELAND

Inadmissible

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens

1. The five applicants, Bridget McDermott, Elizabeth Bissett, Mr Edward and Mrs Patricia Kennedy as well as Christine Keegan, are Irish nationals who live in Dublin. They are represented before the Court by Ms Yvonne Walsh, a solicitor practising in Dublin. The Irish Government (“the Government”) are represented by their Agent, Mr P. White, of the Department of Foreign Affairs and Trade. 2. The case concerns the death of the applicants’ children in a fire in 1981 in the Stardust Ballroom (“the Stardust”) in Dublin. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In the early hours of 14 February 1981 a catastrophic fire swept through the Stardust in which approximately 850 persons were present. 48 persons died and 128 were seriously injured. The overwhelming majority of the victims were 18-25 years of age. It remains the greatest disaster to have occurred in the history of the State. 4. Three of the first applicant’s children died in the fire, the second applicant lost a daughter as did the third and fourth applicants. Two of the fifth applicant’s daughters also died in the fire and a third was injured. 5. Within minutes of the first call to the Police Control Centre, all available police officers in the area were dispatched to the scene. A police investigation commenced immediately. An investigation team, of over 70 persons of various specialities, was assembled at the special incident centre under the control of the Chief Superintendent from the Central Detective Unit. Extensive forensic examinations were carried out and approximately 1500 witness statements were taken. Post-mortem examinations were carried out by State pathologists. The Coroner held Inquests (the Coroner’s Act 1962) in March 1982 and made findings as to the physical causes of death. In 2007 DNA tests allowed the identification of the remaining five unidentified bodies (not the deceased children of the applicants). 6. On 20 February 1981 the Tribunal was established (Tribunal of Inquiry Evidence Acts 1921 and 1979) to inquire into all aspects of the fire including its cause. It was chaired by Mr Justice Ronan Keane assisted by three assessors: a Professor of the Department of Fire Safety Engineering of the University of Edinburgh; the Chief Inspector of Fire Services in Denmark; and the Head of the Construction Division of An Foras Forbartha (the National Institute for Physical Planning & Construction Research). It sat for 122 days (March-November 1981), it heard evidence from 363 witnesses including victims, next-of-kin of the deceased and many experts and it commissioned extensive tests. 7. The Tribunal’s Report dated the 30 June 1982 made findings and recommendations in relation to a very broad range of issues. 8. The Tribunal found that there had been serious deficiencies as regards the content of, compliance with and application of applicable planning, building, electrical, safety and fire standards by the owners of the Stardust, by relevant State bodies and officials. The Tribunal treated one of the owner’s evidence “with great reserve”, which owner bore a special responsibility for the “recklessly dangerous” practice of keeping the emergency doors chained which was done with “reckless disregard” for the safety of those on the premises. The Tribunal found that, without all of these deficiencies, the injuries sustained would have been unquestionably less and the death toll would almost certainly have been reduced. 9. While the Tribunal’s conclusions were critical of the Department of the Environment (responsible for the fire services, building regulations and planning), the Report did not point to the particular fault or deficiencies of individual officials in the Department and no administrative or disciplinary enquiries were later pursued. The Report mentioned by name a number of officials of Dublin Corporation but it did not appear to allot individual blame given the system failures at issue. Some responsibility was attributed to a Senior Building Surveyor in Dublin Corporation as regards failing to follow up on the use of carpet tiles on the walls. However, the Report accepted that it was possible, as the Surveyor had argued, that the relevant regulations were not clear on this subject. 10. As to the police investigation, the Tribunal found that it was exhaustive and meticulous and to be commended, although there had been “serious short comings” in the forensic investigation. Some of the owners and staff of the Stardust did not give the police the assistance to which they were entitled, one member of staff deliberately attempting to deceive the police on whether the exit doors had been locked. 11. The Tribunal went on to make broad recommendations on the approach to be adopted to fire safety in Ireland (“serious shortcomings in the approach to fire safety in Ireland which much be remedied as a matter of urgency”) including on education, training, allocation of responsibility for fire safety and legislative/regulatory changes as well as recommendations concerning the enforcement of standards. 12. As to the cause of the fire, it made two findings. On the one hand, it found, based on the absence of any evidence, that the cause of the fire was “not known and may never be known”. On the other hand, based on a hypothesis, it found that the more probable “explanation” was that the fire was started deliberately in the West Alcove of the Stardust. However, the Tribunal went on, erroneously as later accepted, to adopt its hypothetical explanation of arson as a “finding of fact” and as its conclusion as to the probable cause of the fire. 13. The Tribunal’s finding of arson provoked anger and immediate protestations among the survivors and the bereaved. It was perceived as casting a suspicion of criminal wrongdoing over all who attended the Stardust on the night of the fire. It was considered to exclude negligence proceedings against the owners of the Stardust and that it facilitated the award of damages for malicious damage by the State to the owners (see immediately below). It would appear that the fifth applicant’s husband set up the Stardust Victims Committee (“the Committee”) in May 1985, its main objective being to campaign for a further inquiry. 14. A police preliminary investigation report was completed in April 1981: nothing factual as to the origin of the fire had come to light. The police report and file was forwarded the Director of Public Prosecutions (“DPP”) who directed that no prosecution be pursued. In September 1982, following the conclusion of the Tribunal, a further police file (including an engineering report which was unable to identify evidence of any fault in the electrical, heating or ventilation systems which could have started the fire) was sent to the DPP, who again directed that no prosecution be pursued. At the time, no reasons were given for the DPP’s decisions. All police investigation material was made available to the Stardust Tribunal. 15 . In 1983 the owners of the Stardust brought a claim in malicious damage against the State. They relied on their own expert evidence and, while they did not specifically rely on the Tribunal’s Report, they did rely heavily on experts who had given evidence to the Tribunal to the effect that the fire had been caused deliberately. The State’s expert witness considered he could not refute this evidence and the Circuit Court accepted their evidence. In June 1983 that court found in favour of the owners, the trial judge stating that he had no doubt that the fire was malicious. In July 1983 the owners were awarded a total of 581,000 Irish Pounds (IR£). The State was legally advised that an appeal had no reasonable prospect of success. 16. On 22 October 1985 the Government established the Stardust Victims Compensation Tribunal (“the Compensation Tribunal”) to award ex gratia compensation for loss attributable to the fire. This tribunal comprised a High Court judge, a barrister and solicitor. Bereaved persons could claim compensation and acceptance of an award was conditional on discontinuing, or waiving the right to take, civil actions. Rejection of an award left claimants free to take civil actions except before the Criminal Injuries Compensation Board. Awards could not be appealed and no award could be made for the benefit of a deceased’s estate. Claimants were entitled to be heard and could call witnesses unless the tribunal considered it unnecessary. Claimants’ costs, even those already incurred in discontinued civil actions, would be discharged by the State. Approximately 950 applications were received. Cases were heard from November 1985 to December 1986. Given the distressing circumstances of the fatalities, claimants were awarded the maximum statutory amount for mental distress. 66 applicants were refused compensation and 64 withdrew their applications. Approximately 823 awards, totalling IR£ 10,458,115.00, were made. All awards were accepted. 17. The fifth applicant’s husband challenged the refusal by the Compensation Tribunal of an award for nervous shock. While it was accepted that he had suffered grief and sorrow, he had not suffered a psychiatric illness and was not therefore entitled to damages for nervous shock under the scheme. By judgment of 16 December 1986 the Supreme Court rejected his case (The State (John Keegan and Eoin Lysaght v. the Stardust Victims Compensation Tribunal ([1987] I.L.R.M. 202). Mr Keegan died that same day. The Keegan family award (including damages for mental distress and loss of earnings) totalled IR£ 170,800. 18. In 1991 the Compensation Tribunal published a report which recorded general conclusions and the total sum of compensation paid. The report criticised the fact that it was only before it that that many victims had been able to be medically examined and treated by doctors for the first time since the fire. The report therefore recommended that the Government put in place contingency plans, not only for rescuing victims and for their treatment in hospital, but also for monitoring their later progress. 19. In February 2004 the Committee submitted a report to the Department of Justice, Equality and Law Reform (“the Department of Justice”). The Department of Justice referred the report for expert analysis which concluded that the Committee’s report did not contain any new evidence. The Committee was informed of this in a meeting in November 2004. A letter 14 February 2008 from the police to the solicitor of the Committee explained the scope of this expert analysis and detailed why there was no new evidence warranting the police re-visiting the investigation. The applicants maintained that they were given a copy of this letter only after the Coffey Review (paragraphs 21-32 below). 20. The Committee then obtained reports from three fire experts whose evidence was that a more probable cause of the fire was that it started, or involved combustibles in, the Store Room (in the roof space) which contained a considerably greater fuel load than the West Alcove. The findings were published in a report called “Nothing but the Truth” and the report was the subject of a television documentary in February 2006. In July 2006 the Committee, through its solicitors, presented a full submission for a further inquiry (also called “Nothing but the Truth”) to the Government. In December 2006 the Committee was informed that, while the expert advice to the Taoiseach (Prime Minister) was that the report contained no new material which would justify holding an enquiry, he was willing to arrange for an independent examination of the Committee’s submissions by an appropriate person with legal experience. 21. Further to negotiations between the Government and the Committee, an agreement was reached on the appointment of an independent person to review the case made by the Committee for a further inquiry. In May 2008 the appointment of Mr Paul Coffey S.C. was agreed. On 10 July 2008 the Government established the independent “Coffey” review of the Committee’s case for a renewed inquiry to establish the cause of the fire. The terms of reference were: “2. ... [Mr Coffey] shall: - consider the [Report of the Tribunal]; - consider all the issues which are raised by the [Committee], as are summarised in the submission “Nothing But The Truth” and in the supplemental submission to “Nothing But The Truth” (delivered on the 4th of May, 2007), and all the evidence and submissions as may be presented on their behalf as he considers necessary and relevant to the case for a further inquiry. - In the course of a private examination of the issues, (a) meet such people and secure such advice as he considers necessary to ensure complete understanding of the matters and issues. (b) facilitate a detailed presentation by the [Committee] of the case for renewed inquiry as they see it. (c) have such regard to as he thinks appropriate to submissions, if any, as may be made by other persons/parties including any Government Departments or Agency or the owners of the Stardust together with any observations on or response thereto from the [Committee]. - carry out such inquiries or investigations that he, in his sole discretion, considers necessary for clarification of the issues raised by the [Committee], but he shall not initiate any further investigations into the cause of the fire. 3. Following his assessment of the issues raised by the [Committee] and related matters, as set out above, Mr Coffey shall, without undue delay, report to the Government and shall therein make a recommendation as to whether a new inquiry should be established and may make such other recommendations as he considers appropriate.” 22. Mr Coffey advertised in local and national newspapers seeking submissions. He heard submissions from all interested persons and parties. The Committee, whose legal representation was financed by the Government, gave oral evidence over 3 days and made written submissions. A large body of documents was gathered, all of which were made available to the Committee’s legal representatives. Mr Coffey considered he was entitled to assess not only the applicants’ new evidence, but any other issue pertinent to the question of the need for a further enquiry. 23. The Committee summarised the issues raised by it as follows: “(1) that the Tribunal’s finding of fact that the fire was probably caused deliberately is based on hypothesis and not established by evidence and is for that reason inherently unsatisfactory; (2) that the hypothesis upon which the Tribunal’s finding is based is itself demonstrably flawed because it cannot be reconciled with the known facts of the fire including evidence accepted by the Tribunal; (3) that new expert and factual evidence establishes as a probability that the fire began in the Lamp Room and spread via the Store Room to the West Alcove; (4) that the “methodology” used by the Tribunal was flawed insofar as insufficient scrutiny or examination was given to the possibility that the fire originated in the roof space having regard to the very considerable quantity of combustible material that was contained in the Store Room and the fact that the Store Room was effectively in the roof space; (5) that only the very considerable fuel load in the Store Room could have provided the basis for the rapid development of the fire which engulfed the Stardust within minutes.” 24. On 23 January 2009 the Coffey Report was published. Having reviewed the evidence and submissions of the Committee together with the Tribunal’s database of material, Mr Coffey concluded (paragraph 5.8) that the Committee had established a prima facie case that: “(1) the Tribunal’s finding of fact that the fire was probably started deliberately is on its face a mere hypothetical explanation for the probable cause of the fire and is not demonstrated by any evidence that the fire was started deliberately; (2) in the absence of any such evidence and on the basis of new expert evidence relating to the early collapse of the ceiling in the West Alcove, the explanation cannot be demonstrated to be objectively justifiable.” 25. Mr Coffey was further satisfied, on a prima facie basis, that: “(1) that neither the Tribunal nor the Committee have identified any evidence which can establish the cause of the fire; (2) that the new and other evidence relied upon by the Committee at its highest merely establishes that the fire began in the roof space but does not establish its point of origin or cause.” 26. As to the Committee’s call for a new inquiry to establish the cause of the fire, Mr Coffey considered that, in the absence of any identified evidence which could establish its cause, the issue was whether a new inquiry would serve any useful purpose. He continued: “5.11 It could be argued that a further inquiry would at least establish whether the fire began in the West Alcove or in the roof space. However, it seems to me that at a remove of nearly three decades from the date of the fire and in the absence of any identified evidence which can establish the cause of the fire wheresoever it arose, the public interest would not be served in establishing a further inquiry solely for that purpose. It could also be argued that there should be a further enquiry to establish the probable cause of the fire. However, it seems to me that in the absence of any identified evidence capable of establishing the cause of the fire, such an inquiry can only at best produce a hypothetical finding neither capable of proof or disproof and therefore of no obvious or any forensic value.” 27. Mr Coffey went on to point out that: “5.12 The real difficulty is one of record and lies in the fact that despite having made a finding based on the absence of evidence that “the cause of the fire is unknown”, the Tribunal has failed to acknowledge and record this finding as its conclusion as to the cause of the fire. Instead the Tribunal has only recorded its finding as to the probable cause of the fire. In so concluding and in the absence of any evidence that the fire was started deliberately, the Tribunal has placed on the public record a finding of probable criminal wrongdoing which is prima facie speculative and fraught with evidential and logical difficulties. Moreover, insofar as it is stated to be a “finding of fact”, the finding is so phrased as may well give the mistaken impression to a reasonable man or woman in the street that it is a finding established by evidence that the fire was started deliberately and not a mere hypothetical explanation for the probable cause of the fire.” 28. Mr Coffey found this to be profoundly unsatisfactory to the survivors and the bereaved who, through the Committee, argued that such was the scale of the disaster that it has become a matter of communal if not national history to an extent that engaged a public interest in ensuring that the public record was factually accurate and established by evidence. 29. However, the new and other evidence relied on by the Committee, at its highest, established that the cause of the fire was unknown, a finding already made but not properly acknowledged and recorded by the Tribunal. As to how to correct this, Mr Coffey proposed alternative solutions. Since the Tribunal was established by Parliament, the Government could consider whether it could correct the public record by placing on the record of the Houses of Parliament an acknowledgement of the Tribunal’s findings that there was no evidence that the fire was started deliberately and that the cause of the fire was unknown; or, if such an acknowledgement could not be made by the Government, a further limited inquiry would be needed but simply to clarify the public record in this limited respect. 30. Finally, noting the failure by the State to act on the earlier recommendation of the Compensation Tribunal, Mr Coffey recommended that a committee be formed to monitor the progress of victims and to ensure that counselling and medical treatment, where necessary and appropriate, was afforded to survivors and the bereaved at the expense of the State. 31. On the day the Coffey Report was published, the Government published a statement acknowledging and accepting the conclusions and recommendation of the Coffey Report. On 3 February 2009 and 9 July 2009 Dáil Éireann (the House of Representatives) and Seanad Éireann (the Senate) respectively, passed motions acknowledging and accepting the conclusions and recommendation of the Coffey Report and, notably, that the cause of the fire was unknown and that arson was merely a hypothetical explanation which had not been demonstrated. 32. In October 2009 the Government published a Public Notice concerning Counselling Services which began operating in February 2010. 33. A building regulation regime was introduced by the Building Control Act 1990 and the Building Regulations and Building Control Regulations 1991. The Fire Services Act 1981 was brought into force in 1985 and updated in 2003 and Regulations were also adopted thereunder which, inter alia, made locking of exits and blocking escape routes from places of assembly an offence. The Licensing of Indoor Events Act 2003 provided for increased powers for fire authorities to inspect premises, issue warning notices and, where necessary, serve closure notices. A series of Codes of Practices and Guidelines have been published by the Department of the Environment providing fire safety advice for persons in control of premises. Following a full review of fire services in Ireland in 2001, the Fire Services Change Programme was implemented to further enhance fire safety enforcement powers. A Major Emergency Development Programme (2006-2009) was introduced to improve responses to major emergencies and a National Directorate for Fire and Emergency Planning was formed in 2009. The numbers of fire services’ staff sharply increased and fire services funding and training significantly improved. Following the criticisms of it in the Tribunal Report, Dublin Corporation significantly increased staffing especially in fire prevention, established a training centre and purchased new fire stations and equipment as well as a new communications centre.

dev

001-115400

ENG

POL

COMMITTEE

CASE OF PURPIAN SP. Z O.O. v. POLAND

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

David Thór Björgvinsson;Krzysztof Wojtyczek;Zdravka Kalaydjieva

4. The applicant company, Purpian sp. z o.o., is a Polish limited liability company having its registered office in Odolanów. 5. On 12 November 1997 the applicant company instituted civil proceedings against a certain Z. K. for payment. 6. In 1999 and 2000 six hearings were adjourned due to the applicant company’s absence. Furthermore the hearings scheduled for 10 May and 20 September 2005, 10 October 2006, 20 March 2007, 26 March and 22 April 2008 were adjourned or cancelled on the applicant company’s request. 7. On 24 July 2008 the Ostrów Wielkopolski District Court gave a judgment. Both the applicant company and the other party to the proceedings appealed against the judgment. 8. By a judgment of 11 February 2010 the Kalisz Regional Court dismissed the appeals, upholding the first-instance judgment. 9. On an unspecified date the applicant company lodged a complaint under 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”). It sought a finding that the length of the proceedings had been excessive and claimed 10,000 Polish zlotys (PLN) in compensation. 10. By a decision of 6 January 2005 the Kalisz Regional Court held that the length of the proceedings had been excessive and awarded the applicant company PLN 2,000 in compensation. 11. On 15 April 2009 the applicant company lodged another complaint under the 2004 Act. 12. By a decision of 26 May 2009 the Kalisz Regional Court dismissed the complaint, holding that the proceedings had been conducted in a correct and timely manner. The court further expressed a view that the length of the proceedings had been largely due to the conduct of the parties, including that of the applicant company. 13. 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 stated in the Court’s decisions in cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

dev

001-79109

ENG

RUS

CHAMBER

CASE OF CHITAYEV v. RUSSIA

Preliminary objection allowed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;No violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment;Torture) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

Christos Rozakis

7. The applicants are brothers, born in 1964 and 1967 respectively. It appears that the first applicant currently resides in Germany, and the second applicant lives in the Irkutsk Region, Russia. 8. The facts of the case, particularly those surrounding the period of the applicants' detention in custody, are partially in dispute between the parties. 9. The facts as presented by the applicants are set out in Section B below (paragraphs 10 - 62). The Government's submissions concerning the facts are summarised in Section C below (paragraphs 63 - 76). The documentary evidence submitted by the parties is summarised in Section D below (paragraphs 77 - 95). 10. Prior to the events described below, the first applicant, an engineer by profession, lived with his wife and two children in Staraya Sunzha, a suburb of Grozny. The second applicant, a school teacher by profession, lived in Kazakhstan and moved to Chechnya in 1999 with his wife and two children. 11. In early October 1999 hostilities started in Chechnya between the Russian armed forces and Chechen rebel fighters. The city of Grozny and its suburbs formed the target of wide-scale attacks by the Russian military. In October 2000 a housing agency in Grozny certified the destruction of the first applicant's flat as a result of the hostilities. 12. Fearing the attacks, the applicants moved their families and valuables to their parent's house (hereinafter “the house of the Chitayev family”) at 28 Matrosov Street in the town of Achkhoy-Martan. According to the applicants, the items of their property stored in the house had included the first applicant's tape-recorder, a hi-fi system, a video camera and the second applicant's TV set and a video player. Other items of electronics and clothing were also stored in the house. The documents and purchase receipts in respect of the valuables were kept separately in a suitcase. Most items were stored in one of the rooms of the house and in the cellar. 13. On 15 January 2000 officers from the Temporary Office of the Interior of the Achkhoy-Martan District (временный районный отдел внутренних дел Ачхой-Мартановского района – “the Achknoy-Martan VOVD”) searched the house at 28 Matrosov Street for firearms. According to the applicants, the search was not officially authorised or documented. The officers took with them a new packaged cordless telephone set with batteries and an antenna. 14. On 18 January 2000 the second applicant complained to the head of the Achkhoy-Martan VOVD that the search had been unlawful and asked for the telephone set to be returned. It appears that at the beginning of March 2000, after the applicants' father had submitted a request to the district military prosecutor, the telephone set was returned. 15. On 12 April 2000 at about 8 or 9 a.m. several officers of the Achkhoy-Martan VOVD again arrived at the house at 28 Matrosova Street. The applicants and their families were at home at that moment. The officers searched the house, without producing any warrants or official justification for their action. They seized several items of electronic equipment belonging to the applicants, documents for equipment and personal documents of some of the family members. The officers then asked the applicants to come with them to the Achkhoy-Martan VOVD for a few hours to help them to deal with paperwork. 16. According to the applicants, once they got into the car, the officers told them that they were under arrest and started to beat them. The applicants were taken to the Achkhoy-Martan VOVD and put into separate cells. 17. On the same day, at about 12 noon, the applicants' house was again searched. About 30 servicemen in two cars had arrived at the house and taken away all the electronic equipment found in the house, including a printer, TV sets and video equipment. No official justification for the search and seizure had been presented. The applicants submitted a list of items seized at their house (see paragraph 77 below). 18. Between 12 and 28 April 2000 the applicants were detained in the Achkhoy-Martan VOVD. While in custody they were questioned about the activities of the Chechen rebel fighters and about kidnappings for ransom, but denied their involvement in any crimes. 19. During the detention and interrogations, which took place in a cell situated on the third floor of the Achkhoy-Martan VOVD premises, the applicants were subjected to various forms of torture and ill-treatment. In particular, they were fettered to a chair and beaten; electric shocks were applied to various parts of their bodies, including their fingertips and ears; they were forced to stand for a long time in a stretched position, with their feet and hands spread wide apart; their arms were twisted; they were beaten with rubber truncheons and with plastic bottles filled with water; they were strangled with adhesive tape, with a cellophane bag and a gas mask; dogs were set on them; parts of their skin were torn away with pliers. 20. The first applicant was interrogated on the first day of detention and told to sign a confession. When he refused, the interrogators fettered him to a chair and kicked him. They put a gas mask on his face and released cigarette smoke into it. The first applicant lost consciousness and was brought back to his cell. The following day he was again taken for questioning to the same room. Wires were applied to his fingertips and the interrogators turned the handle of a device, which they called a “lie detector”, and which gave the first applicant electric shocks. 21. The second applicant was also interrogated on the first day of detention. He was brought to a room in which there were two officers, who told him to confess that he had been a rebel fighter and that he had been involved in kidnappings. When the second applicant refused to sign a confession, he was placed against the wall, handcuffed, and his mouth was covered with adhesive tape. One of the interrogators started beating him on his back and genitals, while the other held a machine-gun and threatened to shoot him if he moved. The second applicant was beaten for an hour and then taken back to his cell. 22. On several occasions during the detention the personnel of the Achkhoy-Martan VOVD came into the cells and beat all inmates, including the applicants. 23. There were no toilets in the cells, and the detainees were taken out to the toilets one by one. They were forced to run all the way to the toilets and if they were slow, they were beaten with rifle butts and chased with dogs. In the toilets they were not allowed enough time. Sometimes they were not allowed to go to the toilets and had to urinate and defecate in the corridor in full view of the guards. 24. The cells were unheated and damp and the applicants were constantly suffering from cold. 25. According to the applicants, on 28 April 2000 they and some other detainees were taken out of the Achkhoy-Martan VOVD, blindfolded and put into a vehicle. The guards told them that they were going to execute them. Instead, the detainees, including the applicants, were transferred to another detention centre. Later they found out that the place was the Chernokozovo detention centre (следственный изолятор с. Чернокозово – “the Chernokozovo SIZO”). The detainees, including the applicants, were forced out of the vehicle, ordered to prostrate themselves and beaten. They were then taken to cells. 26. The applicants were not subjected to a medical examination upon their admission to the Chernokozovo SIZO, as prescribed by the relevant legislation. 27. At the beginning of their detention in the Chernokozovo SIZO, the applicants were questioned every two days and later about once a week. They were forced to run to the interrogation room with their heads lowered and their hands across their heads, while the guards beat them on their backs. There was an iron table, a chair and a hook on the wall in the interrogation room. The interrogators, who never drew up any transcripts of interrogations, put pressure on the applicants to force them to confess or simply beat them. The interrogators also kicked the applicants with boots, rifle butts and mallets on different parts of their bodies, in particular their knee caps, threatened the applicants with a knife pressed against their fingers, put tarpaulin gauntlets on the applicants and then tied their hands to the hook and beat them, squashed the applicants' fingers and toes with mallets or a door of a safe, tied the applicants' hands and feet together behind their backs (“swallow” position), strangled the applicants with adhesive tape or a cellophane bag, and applied electric shocks to the applicants' fingers. 28. The applicants were also beaten by the guards when they were taken out of their cells for a few minutes' “exercise”. 29. The applicants' lawyer, Mr Sharip Tepsayev, was only given access to them once during the entire period of their detention in the Chernokozovo SIZO, namely at some point in May 2000. The applicants were allowed to meet with him one by one, in the presence of a police officer. They were required to speak Russian during the meeting and the lawyer could only ask them how they were doing. 30. During their detention in the Chernokozovo SIZO the applicants were kept in separate cells, except for several days in late July 2000, which they spent in the same cell. 31. The second applicant spent a month and a half in cell no. 5 and another month and a half in cell no. 20. For the remainder of his detention the second applicant was in cell no. 27. That latter cell was designated for three people, whilst no less than six inmates were detained in it. The second applicant had to sleep on the floor on a mattress which was given to him. 32. According to the applicants, the conditions of their detention improved in June 2000 after the guards had been replaced by a new shift and after the representatives of the International Committee of the Red Cross (“the ICRC”) had visited the Chernokozovo SIZO on 14 June 2000. The second applicant managed to talk to the representatives of the ICRC personally, in a confidential meeting, because he spoke English. 33. There were two more visits by the representatives of the ICRC in August 2000. Those visits enabled the applicants to exchange messages with their families. In January 2001 the ICRC office in Nalchik, Kabardino-Balkaria, issued the applicants with certificates confirming that they had been visited by the ICRC in Chernokozovo on 14 June, 11 August and 23 August 2000. 34. On 19 September 2000 the applicants were brought back to the Achkhoy-Martan VOVD and informed that they had been charged with kidnapping and participation in an unlawful armed group under Articles 126 (2) and 208 (2) of the Russian Criminal Code. According to the applicants, it was the first time that they had been officially informed of the charges against them. 35. On 5 October 2000 the applicants were released from detention subject to a written undertaking not to leave their place of residence. 36. On 6 October 2000 the applicants were brought by their relatives to the Achkhoy-Martan hospital. They were examined by a general practitioner, a neuropathologist and a surgeon. The first applicant was diagnosed with repeated craniocerebral traumas, resulting in intracranial hypertension and post-traumatic stress disorder, chronic bronchitis, chronic two-sided pyelonephritis, asthenoneurotic syndrome, hypochromic anaemia, numerous blunt injuries to the head, body and extremities, and chronic pneumonia in the left lung. The second applicant was diagnosed with repeated craniocerebral traumas, resulting in intracranial hypertension and posttraumatic stress disorder, numerous blunt injuries to the head, body and extremities and a trauma of the left knee-cap, chronic pneumonia in the left lung and chronic left-sided pyelonephritis. The doctors noted down that the traumas and other medical conditions had apparently been sustained in the Chernokozovo SIZO between April and October 2000. 37. In letters of 9 October 2000 the prosecutor's office of the Achkhoy-Martan District (Ачхой-Мартановская районная прокуратура – “the district prosecutor's office”) informed the applicants that criminal proceedings in case no. 59212 opened against them under Articles 126 (2) and 208 (2) of the Criminal Code had been discontinued on 9 October 2000, as their involvement in the imputed offences had not been proven. The letters stated that the applicants had been relieved of their obligation not to leave their place of residence and that they could appeal against the decision of 9 October 2000 to a superior prosecutor or to a court within five days. 38. From 12 April 2000 onwards the applicants' relatives, both orally and in writing, applied repeatedly to various official bodies concerning the searches in their house and seizure of their property, as well as the applicants' arrest on 12 April 2000 and their subsequent detention. After the applicants had been released, they joined their relatives in these efforts. They were supported by human rights NGOs. These attempts yielded little result. On several occasions, the applicants' family members received copies of letters from various authorities directing their complaints to the district prosecutor's office, the Achkhoy-Martan VOVD or the prosecutor's office of the Chechen Republic (прокуратура Чеченской Республики – “the republican prosecutor's office”). 39. On the evening of 12 April 2000 the applicants' relatives went to the Achkhoy-Martan VOVD and enquired about the applicants' whereabouts. They were informed that the Chitayev brothers had been asked to help with paperwork and would soon return home. The applicants did not return that day. 40. On 14 April 2000 the applicants' father went to the Achkhoy-Martan VOVD to find out where his sons were. The officials informed him that the brothers had been detained on suspicion of having kidnapped Russian soldiers for ransom. The suspicion was allegedly based on military uniformed overcoats found in the house. The applicants' father replied that these were old-style Soviet military overcoats, no longer used in the army, that his sons had brought them home after their service in the Soviet army and that he had used them for various household needs. 41. On 22 April 2000 the Memorial Human Rights Centre, acting on behalf of the Chitayev family, requested the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) to clarify the reasons for the applicants' arrest on 12 April 2000 and complained that the searches, seizures and arrests had been unlawful. 42. By letter of 18 May 2000 the Ministry of the Interior replied to an enquiry of a deputy of the State Duma sent on the applicants' behalf. The letter stated that criminal proceedings against the applicants had been instituted by the district prosecutor's office on suspicion of the applicants' involvement in criminal offences under Articles 126 (2) and 208 (2) of the Russian Criminal Code. It continued that on 21 April 2000 the case file had been forwarded to the Chief Department of the Prosecutor General's Office for the Northern Caucasus (Главное управление Генеральной прокуратуры РФ на Северном Кавказе – “the Prosecutor General's Office for the Northern Caucasus”) to be joined with other cases related to the military actions in Chechnya and indicated that further information could be obtained from that Office. 43. On 20 May 2000 the republican prosecutor's office informed the applicants' brother that the criminal investigation against the applicants was being conducted by the Prosecutor General's Office for the Northern Caucasus, and that therefore further enquiries should be addressed there. 44. On 22 May 2000 the applicants' father submitted a complaint about the seizure of property to the head of the Achkhoy-Martan VOVD. The latter replied in an undated letter that the items allegedly seized at the house of the Chitayev family were not registered as being kept in the Achkhoy-Martan VOVD. The letter further stated that the prosecutor's office of the Achkhoy-Martan District had instituted criminal proceedings against the applicants, but did not indicate the date on which the proceedings had been commenced. It continued that in the context of those proceedings “an inspection of the scene of the incident” had been carried out in the house of the Chitayev family, in accordance with the relevant provision of the national legislation. Furthermore, a report on the results of that “inspection” was kept in the file of the criminal case against the applicants and the items seized during the “inspection” in the house of the Chitayev family were listed in that report. The letter concluded that the seized property should be kept in the case file and invited the applicants' father to apply to the republican prosecutor's office for any information regarding the proceedings against the applicants. 45. On 4 July 2000 the applicants' brother complained to the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic about the applicants' unlawful detention on 12 April 2000 as well as the searches and seizures in the house of the Chitayev family. 46. On 26 July 2000 the deputy head of the Achkhoy-Martan VOVD informed the applicants' father that the applicants had been detained on 17 April [rather than on 12 April] 2000, pursuant to Article 122 of the Russian Code of Criminal Procedure. 47. On 28 July 2000 the same officer of the Achkhoy-Martan VOVD informed the applicants' father that the items seized in his house had been attached to the case file of the criminal investigation, and that the decision regarding the release of those items could only be taken by an official in charge of the investigation, or a competent court. 48. On 1 September 2000 the applicants' father sent a request concerning the lawfulness of the searches and seizures in his house and the applicants' detention on 12 April 2000 to the republican prosecutor's office. 49. On 7 September 2000 the republican prosecutor's office replied to the applicants' father that the applicants had been arrested in connection with the criminal charges brought against them under Articles 126 (2) and 208 (2) of the Russian Criminal Code, namely kidnapping and participation in an illegal armed group, and that the period of their remand in custody had been extended until 9 October 2000 by the republican prosecutor, but did not specify the date of the extension order. The applicants' father was invited to apply to the district prosecutor's office for information on the results of the investigation in the applicants' criminal case. 50. On 18 October 2000 the republican prosecutor's office informed the applicants' brother that, following his complaint concerning the unlawfulness of the searches and seizures in the house of the Chitayev family, as well as the applicants' detention, the division of internal security of the Achkhoy-Martan VOVD had commenced an internal inquiry (служебная проверка) into the seizure and destruction of “radio equipment and transmitting devices and personal property” belonging to his brothers. The letter further stated that the applicants had been released from detention on 4 October 2000 subject to an undertaking not to leave their permanent place of residence. 51. On 1 June 2001 the applicants' brother applied to the district prosecutor's office for information concerning the items seized in their family house in April 2000. 52. On 5 October 2001 the SRJI, acting on the applicants' behalf, complained to the republican prosecutor's office, giving a detailed description of severe ill-treatment of the applicants and the alleged procedural violations during the applicants' detention in the Achkhoy-Martan VOVD and the Chernokozovo SIZO from 12 April until 5 October 2000. The letter referred to the medical documents in support of the complaints regarding ill-treatment and requested that criminal proceedings in connection with the applicants' allegations be instituted. A copy of the letter was forwarded to the Prosecutor General's Office. The latter replied on 25 October 2001 that the complaint had been forwarded to the republican prosecutor's office. 53. On 29 October 2001 the applicants' brother requested the Achkhoy-Martan VOVD to provide him with an update concerning the internal inquiry into the seizure of the property in April 2000. On 3 January 2002 he filed another request concerning the update on the complaints concerning the property and the arrest and detention of his relatives. No reply was received to any of these requests. 54. On 22 November 2001 and on 24 January 2002 the SRJI again wrote to the republican prosecutor's office, referring to their letter of 5 October 2001. On 29 January 2002 they requested the same information from the district prosecutor's office. 55. In early 2002 all male members of the Chitayev family received a summons to appear at the district prosecutor's office on 7 January 2002. The first applicant was outside Chechnya at that time, but the second applicant and the applicants' father and brother appeared. They were invited to talk to an investigator of the prosecutor's office one by one. 56. According to the second applicant, the prosecutor of the Achkhoy-Martan District and an investigator of the same office proposed that he should write a statement withdrawing all claims against the Achkhoy-Martan VOVD concerning the lawfulness and conditions of detention. In case of refusal, they threatened to re-open the criminal proceedings against both applicants. The second applicant was allowed to consult his relatives, whereupon he decided to sign the requested statement. 57. By letter of 7 January 2002 the investigator of the district prosecutor's office replied to the SRJI that following the examination of their complaint, the prosecutor's office had decided to dispense with criminal proceedings. The letter did not state the reasons for that decision, but informed the SRJI of the possibility of appealing against it to superior prosecutors or to a court. A copy of the decision of 7 January 2002 was not enclosed. 58. On 14 March 2002 the SRJI challenged the decision of 7 January 2002 before the republican prosecutor. They enclosed a copy of their complaint of 5 October 2001, referred to the pressure put on the second applicant to repudiate his statements concerning the ill-treatment and reiterated their request that a criminal investigation into the applicants' allegations of ill-treatment in the Achkhoy-Martan VOVD and the Chernokozovo SIZO be opened. 59. In a letter of 18 March 2002 the acting prosecutor of the Achkhoy-Martan District informed the SRJI that the district prosecutor's office had studied the complaint concerning “illicit methods of investigation” applied to the applicants and decided not to open criminal proceedings in the absence of evidence of a crime in the actions of the personnel of the Achkhoy-Martan VOVD. The letter further stated that the second applicant had been invited to the district prosecutor's office where he had confirmed the fact of his detention at the Achkhoy-Martan VOVD and the Chernokozovo SIZO, but had denied that “illicit methods of investigation” had ever been applied to him, whilst the first applicant could not be questioned because he had left the Chechen Republic. The letter went on to say that no objective information proving the allegations of ill-treatment had been obtained, and that the SRJI had already been informed of the results of the examination of their complaint by letter no. 105 dated 7 January 2002. 60. On 24 April 2002 the applicants' brother applied to the republican prosecutor's office for information on the developments in the internal inquiry commenced in connection with his complaints about the searches and seizures in their house. It does not appear that any reply from the authorities followed. 61. On 6 May 2002 [erroneously dated 2001] the republican prosecutor's office replied to the SRJI's complaint of 14 March 2002, informing them that an internal inquiry had been carried out in connection with their request that the decision of 7 January 2002 be quashed. The letter stated that “the decision of the district prosecutor's office to dispense with criminal proceedings in respect of the applicants' complaint concerning ill-treatment by the personnel of the Achkhoy-Martan VOVD and Chernokozovo SIZO [during their detention between 12 April and 5 October 2000] was well-founded and lawful and that [the applicants'] complaints were found to be unsubstantiated”. 62. At some point the SRJI requested the district prosecutor's office to send them a copy of the decision of 7 January 2002 concerning the refusal to institute criminal proceedings in connection with the applicants' allegations of ill-treatment during their detention from 12 April until 5 October 2000. On 24 March 2003 the district prosecutor's office replied that the SRJI had been notified of the results of the examination of their complaint and of their right to appeal and that, according to the Russian Code of Criminal Procedure then in force, the investigator was not obliged to forward a copy of such decision to a person who had sought the institution of proceedings. The reply also stated that the second applicant had been apprised of the document in question. 63. On 15 January 2000 officers of the Achkhoy-Martan VOVD carried out a passport check in the town of Achkhoy-Martan. During the check in the house at 32 [rather than 28] Matrosova Street, the applicants' father voluntarily surrendered an FT-26 radio station and accessory equipment, technical documentation in foreign languages for that radio station, a personal military card of serviceman B., who had previously been kidnapped by unidentified persons, a camouflage cloak, a bullet-proof vest and 11 registration plates for cars and tractors. Following the voluntary surrender of the items, a formal note (акт) was drawn up on the same date, and on 4 February 2000 an investigator of the Achkhoy-Martan VOVD decided not to open a criminal investigation in this connection. 64. On the basis of the information obtained during the check of 15 January 2000, on 12 April 2000 the applicants' house was “inspected” (осмотр) by a police officer of the Achkhoy-Martan VOVD, Mr S. Vlasenko, in the presence of attesting witnesses. During that “inspection” police officer Vlasenko found eight military overcoats and four military jackets, all bearing numbers and personal details of federal servicemen, details from a radio transmitting device, tapes with recordings of Shamil Basayev's interview, a video recording of a documentary called 'Nokhcho Chechnya – the Day of Freedom', photographs of exhumations, photographs of the first applicant armed, a computer and diskettes with information concerning tapping of radio and telephone conversations of the members of the Government of Chechnya in 1998, lists of mobile telephone numbers of the top-ranking officials of Chechnya and leaders of the illegal armed groups, outlines of eavesdropping transmitters, and other materials that, in the Government's submission, “could be indicative of the applicants' participation in illegal armed groups.” 65. On 17 April 2000 the prosecutor's office of the Achkhoy-Martan District instituted criminal proceedings against the applicants under Articles 126 (2) (aggravated kidnapping) and 208 (2) (participation in an illegal armed group) of the Russian Criminal Code on the basis of the results of the check of 15 January 2000 and the inspection of 12 April 2000. The case file was assigned the number 26009 and then 59212. 66. On the same date the applicants were apprehended pursuant to Article 122 of the Russian Code of Criminal Procedure, then in force, and placed in detention in the Achkhoy-Martan VOVD. 67. On 18 April 2000 the district prosecutor's office quashed the decision of 4 February 2000 on the ground that the investigation into the circumstances of the disclosure of the items during the check on 15 January 2000 had been incomplete and the materials of that check were included in the file of the criminal proceedings opened against the applicants. 68. On 19 April 2000 the district prosecutor's office ordered that a preventive measure in the form of custody be taken against the applicants for their suspected involvement in kidnapping and participation in illegal armed groups. These orders were then forwarded for execution to the Chernokozovo SIZO. 69. On 20 April 2000 both applicants were formally charged with criminal offences under Articles 126 (2) and 208 (2) of the Criminal Code. 70. Since 25 April 2000 Mr Tepsayev, a member of the Nazran (Ingushetia) Bar Association, had been admitted to the criminal proceedings against the applicants as their defence counsel. 71. On 26 April 2000 the applicants were transferred to the Chernokozovo SIZO and underwent a medical examination, as required by relevant legal acts. The first applicant was diagnosed with a head trauma and subsequently received medical assistance in this connection. The examination revealed no other injuries on the applicants. While in detention, the second applicant received medical treatment in respect of chronic gastritis. 72. On 4 October 2000 the applicants were released subject to an undertaking not to leave their place of residence. 73. On 9 October 2000 the district prosecutor's office discontinued the criminal proceedings against the applicants with reference to the absence of sufficient evidence proving their involvement in the imputed offences. 74. On 23 November 2000 the decision of 9 October 2000 was set aside by the republican prosecutor's office and the criminal proceedings against the applicants were resumed. 75. On 20 January 2001 the district prosecutor's office again discontinued the criminal proceedings against the applicants in view of the fact that the applicants' involvement in the imputed offences had not been proven. 76. On 29 October 2003 the decision of 20 January 2001 was quashed by the republican prosecutor's office and the case forwarded for additional investigation. It appears that the proceedings are pending at present and that in the context of these proceedings some investigative steps were taken in respect of the second applicant in 2005. 77. Among a considerable number of other documents, the applicants submitted an undated list of items seized from their house, countersigned by their mother, two attesting witnesses and police officer S. Vlasenko from the Achkhoy-Martan VOVD. The document listed a Sony TV set, a Panasonic TV set, a Toshiba TV set, a Funai TV set, a Funai video recorder, a Panasonic video recorder, a Sony tape recorder, a Lexmark printer, a “Rus” film projector, a power adapter, a heater with two sets of exchangeable details, video and audio tapes, two briefcases of documents, and an “Elektronik” charging device. 78. They also submitted written eye-witness statements from their father, sister and three neighbours confirming the search and seizure of the Chitayevs' property as well as the applicants' apprehension on 12 April 2000. 79. In order to be able to assess the merits of the applicants' complaints, at the admissibility stage the Court invited the Government to submit documents from the file of the criminal investigation opened against the applicants as well as documents from the inquiry into the applicants' complaints concerning their ill-treatment and lawfulness of their detention, as well as those relating to the searches in the house of the Chitayev family and the seizure of their property. The documents submitted by the Government, both before and after the case was declared partly admissible, may be summarised as follows. 80. A handwritten document with an illegible title, drawn up on 15 January 2000 by a police officer of the Achkhoy-Martan VOVD, recorded the seizure of an FT-26 radio station and accessory equipment, technical documentation for that radio station, a camouflage cloak, a bullet-proof vest, eight registration plates for cars and tractors and a personal military card of serviceman B. It was indicated in the document that a copy of it had been given to the applicants' father. The document was signed by the police officer who had drawn it up and the applicants' father. In a report of 15 January 2001 the same police officer informed his superiors of the seizure of the aforementioned items at the house at 28 Matrosov Street in Achkhoy-Martan and indicated that they had been surrendered by the applicants' father. 81. The Government did not furnish the Court with any documents concerning the search of 12 April 2000. 82. By a decision of 17 April 2000 an investigator of the prosecutor's office of the Achkhoy-Martan District ordered that criminal proceedings against the applicants be instituted under Articles 126 (2) and 208 of the Criminal Code on the basis of the results of the “operative measures” taken in the house of the Chitayev family at 32 [rather than 28] Matrosov Street in the town of Achkhoy-Martan on 12 April 2000. 83. Two reports issued by an investigator of the district prosecutor's office in April 2000 [the date of issue is illegible] stated that the applicants had been apprehended on 17 April 2000 pursuant to Article 122 of the Code of Criminal Procedure. The reports indicated that clear traces of a criminal offence had been found in the applicants' house, constituting a ground for their apprehension, and stated that it had been necessary to prevent them from absconding or obstructing the establishment of the truth. The reports also indicated that the applicants were suspected of having been involved in kidnappings and of participation in illegal armed groups in 1996-2000, that they had been informed of their rights as suspects and that the prosecutor of the Achkhoy-Martan District had been notified of the applicants' apprehension on the same date. The reports were signed by the investigator and the applicants. 84. By two decisions of 19 April 2000 the investigator of the district prosecutor's office ordered that a measure of restraint in the form of custody be taken against the applicants. The orders referred to the objects seized in the house of the Chitayev family on 12 April 2000 and stated that the applicants were suspected of involvement in kidnappings of Russian servicemen in the period 1996-2000 and that in view of the gravity of the charges and the danger of the applicants' obstructing the establishment of the truth if at large, the applicants should be detained on remand. The orders also stated that the applicants had been informed about their right to challenge this measure of restraint in a court. They were signed by the investigator and applicants and countersigned by the district prosecutor and sent for execution to the head of the Chernokozovo SIZO. 85. Two decisions of 20 April 2000 issued by the investigator of the district prosecutor's office ordered that the applicants be formally charged with the kidnappings of Russian servicemen for ransom, and participation in illegal armed groups, in the period 1996-2000. The decisions stated that the applicants had been notified of the charges against them and that the substance of the charges as well as the procedural rights of the accused had been explained to them. The decisions were signed by the investigator and the applicants, but the signature of the applicants' defence counsel was missing. 86. A decision of the district prosecutor's office dated 20 January 2001 ordered that the criminal proceedings against the applicants be discontinued. This document outlined in detail the main procedural steps taken in the course of the criminal proceedings against the applicants. It stated, inter alia, that the applicants had been apprehended on 17 April 2000, that on 19 April 2000 their remand in custody had been authorised, that on 20 April 2000 they had been charged with criminal offences under Article 126 (2) and 208 (2) and that on 7 August 2000 the period of the applicants' detention on remand had been extended for 5 months and 22 days until 9 October 2000. 87. A decision of the republican prosecutor's office dated 29 October 2003 set aside the decision of 20 January 2001 and ordered that the criminal proceedings against the applicants be resumed and an additional investigation be carried out. 88. The Government produced a number of certificates (справка) issued by the head of the Chernokozovo SIZO on 21 October 2003. 89. The certificates stated that upon the applicants' arrival at the Chernokozovo SIZO no injuries had been found on them. The first applicant had been diagnosed with a craniocerebral injury and, while in detention, he had sought medical assistance on seven occasions in this connection and had been prescribed certain medication, whilst the second applicant had applied for medical assistance on five occasions in connection with influenza and chronic gastritis and had also been prescribed medical treatment. 90. Another document listed the cells in which the applicants had been detained. The document stated that the first applicant had been kept in cells nos. 10 (measuring 18 square metres), 2 (14 square metres), 23 (18.8 square metres), 3 (12.8 square metres) and 10 (18 square metres) and the second applicant had been detained in cells nos. 5 (measuring 13.2 square metres), 20 (12.2 square metres), 3 and 27 (7 square metres each). The document continued that the sanitary conditions in the cells had been in conformity with the relevant requirements, that all cells had been equipped with running water and toilets. The document also stated that the applicants had always been provided with individual sleeping berths and that the number of persons detained together with the applicants had been in accordance with the relevant regulations. 91. The remaining certificates stated that no physical force or special devices had been used against the applicants between 26 April and 25 September 2000, that the applicants had not sent any letters or complaints during the said period, that the administration of the Chernokozovo SIZO had provided them with relevant legal information and advice, including access to legal documents, and that on 2 June 2000 they had been attended by their lawyer, Mr Tepsayev. 92. A number of letters from various higher courts in Russia stated that during the period 1999-2003 no criminal proceedings against the applicants had been pending in the courts of the respective regions of Russia and that the applicants had not complained about unlawful detention or about the actions of the personnel of the Achkhoy-Martan VOVD or the Chernokozovo SIZO. 93. In a handwritten explanation, given at the prosecutor's office of the Achkhoy-Martan District on 29 December 2001, the second applicant stated that he and the first applicant had been detained and taken into custody in the context of criminal proceedings against them instituted on suspicion of their involvement in kidnappings and participation in illegal armed groups and then released on an undertaking not to leave a specified place of residence and that the criminal proceedings against them had subsequently been discontinued. The second applicant also stated that there had been grounds for their detention, as military overcoats had, indeed, been found in their house, and that there had been no procedural or any other violations of their rights during the detention. He further stated that he had not signed any untrue statements and had no complaints to make against the officers of the Achkhoy-Martan VOVD or Chernokozovo SIZO or investigators of the district prosecutor's office. 94. On 7 January 2002 an investigator of the prosecutor's office of the Achkhoy-Martan District, based on the results of the investigation in connection with a complaint lodged by the SRJI on the applicants' behalf, decided to dispense with criminal proceedings. The decision stated that on 17 April 2000 the prosecutor's office of the Achkhoy-Martan District had opened criminal case no. 59212 against the applicants on suspicion of their having committed criminal offences under Article 126 (2) and 208 of the Criminal Code. It further stated that: “The criminal proceedings were instituted as a result of the discovery, during the planned operative measures on 12 April 2000, of eight military overcoats of servicemen of the Russian armed forces ..., a personal military card of serviceman B., documents and tape records with information on [the applicants'] involvement in kidnappings of servicemen and participation in illegal armed groups. On 12 April 2000 a police officer of the Achkhoy-Martan VOVD, Vlasenko S.M., carried out an inspection of the scene of the incident ... which was reflected in a report. The inspection was carried out in the presence of two attesting witnesses, the owner of the house and two officers of the VOVD.” The decision further indicated that the applicants had been apprehended pursuant to Article 122 of the Code of Criminal Proceedings on 17 April 2000, that on 19 April 2000 their detention on remand had been authorised and that on 20 April 2000 they had been formally charged with the aforementioned offences and notified of their procedural rights. The decision pointed out that the applicants had waived their right to legal assistance, but they had nevertheless been provided with a lawyer, Mr Tepsayev. The decision went on to say that on 4 October 2000 the applicants had been released subject to a written undertaking not to leave a specified place and that on 20 February [rather than January] 2001 the criminal proceedings against them had been discontinued for lack of evidence of their involvement in the imputed offences. It further stated: “During the preliminary investigation into the said case no searches were carried out. There were no procedural violations during the preliminary investigation, which is confirmed by the materials of case no. 59121. [The applicants] did not sign any confessions ..., this fact being confirmed by the absence of any such documents in the file of case no. 59212 and [the second applicant's] explanations. ... There were no procedural or any other violations in respect of [the applicants] during the investigation or their detention in the Achkhoy-Martan VOVD or Chernokozovo SIZO, which is confirmed by the materials of case no. 59212 and [the second applicant's] explanations. In the light of the above, no evidence of any of the offences prohibited by the Russian Criminal Code can be established in the actions of the investigators of the district prosecutor's office who had been in charge of the investigation in criminal case no. 59212, or in those of the officers of the Achkhoy-Martan VOVD or Chernokozovo SIZO.” The decision thus concluded that the SRJI's request concerning the institution of criminal proceedings upon the applicants' complaints should be rejected and ordered that the persons concerned be informed of that decision and notified of their right to challenge it before the prosecutor's office of the Achkhoy-Martan District or in a court. The decision made no comments as regards the SRJI's reference to medical documents certifying the applicants' injuries. 95. On 2 May 2002 a prosecutor at the prosecutor's office of the Chechen Republic drew up a report “on the results of the internal inquiry into the actions of the officials of the prosecutor's office of the Achkhoy-Martan District during the examination of the applicants' complaint about inhuman treatment in the Achkhoy-Martan VOVD and the Chernokozovo SIZO between 12 April and 5 October 2000”. The report stated that the internal inquiry had been carried out in connection with the complaint by the SRJI lodged on the applicants' behalf against the decision of the district prosecutor's office dated 7 January 2002 to dispense with criminal proceedings as regards the applicants' allegations that they had been ill-treated while in detention. The report stated that the internal inquiry had established the following: “In January 2002 [the second applicant] and his father were invited to the prosecutor's office of the Achkhoy-Martan District in connection with information about the use of illicit methods of investigation in respect of [the applicants]. [The second applicant] personally did not complain that any pressure had been put on him to extract any statements. Therefore he voluntarily gave explanations to investigator Ch. to the effect that no illicit methods of investigation had been applied to him and that he had no claims against law-enforcement bodies. Neither the investigator nor the prosecutor put any pressure on him to extract this explanation. No threats were made in his respect.... Moreover, he talked to prosecutor A.-K. after he had given his explanations to investigator Ch. His father refused to give any explanations. Presently he is undergoing medical treatment outside the territory of the republic. He refused to give any explanations, as he is fed up with all this. [The second applicant] does not know whether [the first applicant] has applied to any human rights organisations. At present [the first applicant] lives in Poland and [the second applicant] has no contact with him. Apparently, it was his younger brother ... who had met a representative [of the SRJI] in Moscow and provided the information in question. Thereafter he spoke to [his younger] brother and forbad him further from applying to human rights organisations with unverified information. The investigator of the prosecutor's office of the Achkhoy-Martan District, Ch., who was questioned during the internal inquiry, stated that in January he had carried out an investigation into the allegations by the [representative of the SRJI] to the effect that the illicit methods of investigation had been applied to [the applicants] during their detention in the Achkhoy-Martan VOVD and Chernokozovo SIZO. During that investigation he had questioned [the second applicant] without putting any psychological or physical pressure on him. ... He had not forced [the second applicant] to make any statements, but merely questioned him, and thereafter the latter had read his explanations and signed them. [The applicants' father] had appeared at the prosecutor's office, along with [the second applicant], given oral explanations and then left the prosecutor's office and had not replied to further summonses. That investigation had resulted in the refusal to institute criminal proceedings against police officers who had allegedly applied illicit methods of investigation to [the applicants] during the latter's detention [in the absence of evidence of a crime in their actions]. The prosecutor of the Achkhoy-Martan District, A-K., who was questioned during the internal inquiry, had stated that the district prosecutor's office had investigated the allegations about illicit methods of investigation being used [against the applicants] in early January 2002, with the result that investigator Ch. had decided to dispense with criminal proceedings [in the absence of evidence of a crime]. Officials of the prosecutor's office had not put any pressure on [the second applicant] or his father. [The second applicant] had requested a meeting with the prosecutor after he had given explanations to the investigator. [The second applicant], at the request of a supervising official from the republican prosecutor's office, had confirmed the defamatory nature of the allegations represented in the letter of [the SRJI]. The republican prosecutor's office approved the decision taken by the district prosecutor's office.” The report thus concluded that investigator Ch.'s decision of 7 January 2002 to dispense with criminal proceedings in connection with the allegations of ill-treatment of the applicants during their detention between 12 April and 5 October 2000 in the Achkhoy-Martan VOVD and Chernokozovo SIZO was lawful and well-founded, that the SRJI's allegations concerning the pressure on the second applicant and his father during the investigation in connection with the SRJI's complaint were groundless and that the SRJI's request to have the decision of 7 January 2002 set aside should be dismissed. 96. The Chernokozovo SIZO, where the applicants had been detained, received extensive attention from various human rights institutions, including the European Committee for the Prevention of Torture (“the CPT”), for allegations of severe ill-treatment of detainees. On 4 March 2000 the Head of the CPT delegation, Mr Hajek, issued a statement to the Russian officials at the end of the CPT visit to the North Caucasus region of the Russian Federation. The statement said, inter alia, in relation to the visit to Chernokozovo: The delegation is satisfied that, at present, persons detained in this establishment are not being physically ill-treated. Further, although conditions of detention in the SIZO leave much to be desired, the delegation has noted that genuine efforts have been made in recent times - and continue to be made - to improve those conditions. However, the information gathered by the delegation strongly indicates that many persons detained at Chernokozovo were physically ill-treated in the establishment during the period December 1999 to early February 2000. In different locations, the delegation has interviewed individually and in private a considerable number of persons who were held at Chernokozovo during that period. A clear pattern of physical ill-treatment of prisoners by custodial staff emerged. The ill-treatment alleged consisted essentially of kicks, punches and truncheon blows to various parts of the body (excluding the face). The ill-treatment was said to have been inflicted principally in the central corridor of the detention facility, usually when prisoners were taken to an investigator's room for questioning or when they were returned to their cells after such questioning; apparently, prisoners were also on occasion physically ill-treated in the investigators' rooms. Investigators were said to have been fully aware of the ill treatment being inflicted, and some prisoners affirmed that it was inflicted at their instigation. In certain cases, the delegation has gathered medical evidence which is consistent with the allegations of ill-treatment made by the prisoners concerned. It is also noteworthy that practically all the prisoners interviewed who had been held at the establishment in Chernokozovo during the period January to February 2000 stressed that there had been a distinct change for the better in early February, at the same time as a changeover of staff began to occur. The beatings stopped; further, other improvements had been made, in particular as regards food. Moreover, no allegations of physical ill-treatment were made by prisoners interviewed who had arrived in the establishment after the first week of February 2000. 97. On 10 July 2001 the CPT issued a public statement concerning the Chechen Republic, under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. This step was prompted by the Russian authorities' failure to cooperate with the CPT in relation to two issues: (i) the carrying out of a thorough and independent inquiry into the events in a detention facility at Chernokozovo during the period December 1999 to early February 2000; (ii) action taken to uncover and prosecute cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the current conflict. The statement read, in particular, as follows: ...the information gathered by the CPT's delegation in the course of its February/March and April 2000 visits indicated that a considerable number of persons deprived of their liberty in the Chechen Republic since the outset of the conflict had been physically ill-treated by members of the Russian armed forces or law enforcement agencies. In the report on those two visits, the CPT recommended that the Russian authorities redouble their efforts to uncover and prosecute all cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the conflict. The Committee made a number of remarks of a practical nature intended to clarify the precise form those efforts might take. More generally, the CPT stressed that it was essential for the Russian authorities to adopt a proactive approach in this area. The response of the Russian authorities to this key recommendation was very unsatisfactory... As was stressed in a letter sent to the Russian authorities on 10 May 2001, the CPT's concerns in this regard are all the greater given that in the course of the Committee's most recent visit to the Chechen Republic, in March 2001, numerous credible and consistent allegations were once again received of severe ill-treatment by Federal forces; in a number of cases, those allegations were supported by medical evidence. The CPT's delegation found a palpable climate of fear; many people who had been ill-treated and others who knew about such offences were reluctant to file complaints to the authorities. There was the fear of reprisals at local level and a general sentiment that, in any event, justice would not be done. It was emphasised to the Russian authorities that they must spare no effort to overcome this deeply disturbing state of affairs. 98. On 10 July 2003 the CPT issued a second public statement in relation to Chechnya. It was prompted by allegations of continued recourse to torture and other forms of ill-treatment by members of the law-enforcement agencies and federal forces operating in the Chechen Republic. It also referred to the action taken to bring to justice those responsible as slow and ultimately ineffective. In particular, the report stated: In the course of the CPT's visits to the Chechen Republic in 2002 and, most recently, from 23 to 29 May 2003, a considerable number of persons interviewed independently at different places alleged that they had been severely ill-treated whilst detained by law enforcement agencies. The allegations were detailed and consistent, and concerned methods such as very severe beating, the infliction of electric shocks, and asphyxiation using a plastic bag or gas mask. In many cases, these allegations were supported by medical evidence. Some persons examined by the delegation's doctors displayed physical marks or conditions which were fully consistent with their allegations. Documentation containing medical evidence consistent with allegations of ill-treatment during periods of detention in law enforcement agencies was also gathered. 99. Article 108 provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens, public or private bodies, articles in the press or discovery by an investigating body, prosecutor or court, of evidence that a crime had been committed. 100. Article 109 provided that the investigating body had to take one of the following decisions within a maximum period of ten days after being notified of a crime: to open or refuse to open a criminal investigation, or transmit the information to an appropriate body. The informers were to be informed about any decision. 101. Under Article 113, if the investigating body refused to open a criminal investigation, a reasoned decision had to be given. The informer was to be notified of the decision and was entitled to appeal against it to a superior prosecutor or to a court. 102. Article 11 (1) guaranteed the principle of personal inviolability and established that no one could be arrested other than on the basis of a judicial decision or a prosecutor's order. 103. Under Article 122, an investigating authority could apprehend a person suspected of having committed a criminal offence punishable by imprisonment on one of the following grounds: if the person was caught in the act or immediately after committing the offence; if eye-witnesses, including victims, directly implicated the person as the one who had committed the offence; if clear traces of the offence were found on the person's body or clothes, or with him or in his dwelling. An investigating authority was required to draw up a report on any apprehension of a person suspected of having committed a criminal offence, indicating the grounds, motives, day and time, year and month of the apprehension, the explanations of the apprehended person and the time the report was drawn up, and to notify a prosecutor in writing within 24 hours. Within 48 hours after being notified of the apprehension, the prosecutor had either to remand the apprehended person in custody or to release that person. 104. Article 89 (1) authorised imposition of preventive measures where there were sufficient grounds to believe that an accused could abscond from enquiries, preliminary investigation or trial, or obstruct the establishment of the truth in a criminal case or engage in criminal activity, as well as in order to secure the execution of a sentence. The investigator, prosecutor or the court could impose one of the following preventive measures on the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or remand in custody. 105. Article 90 permitted, on an exceptional basis, a measure of restraint to be taken against a suspect who had not been charged. In such a case, charges had to be brought against the suspect within ten days after the imposition of the measure. If no charges were brought within the period specified, the measure of restraint was to be revoked. 106. Article 91 required the following circumstances to be taken into account in imposing a measure of restraint: the gravity of the charges and the suspect's or defendant's personality, occupation, age, health, family status and other circumstances. 107. Article 92 authorised an investigator, prosecutor, or a court to issue a ruling or finding as to a measure of restraint, provided it specified the offence of which the person was suspected or accused and the grounds for imposing such a measure. The person concerned had to be informed of the ruling or finding and at the same time provided with explanations concerning the appeal procedure. A copy of the ruling or finding had to be served immediately on the person against whom a measure of restraint had been taken. 108. Article 96 set out the grounds for arrest, and authorised public prosecutors, from the level of a district or town prosecutor to the Prosecutor General, to authorise detention on remand. 109. Article 97 provided that detention on remand during the investigation of criminal cases could not exceed two months. That term could be extended by a prosecutor for up to three months, and further detention could be authorised by a regional prosecutor (or a prosecutor of equal rank) up to a maximum of six months. Extension of detention beyond six months was allowed in exceptional cases only with regard to persons charged with serious criminal offences, and could be authorised by a deputy Prosecutor General for a period of up to one year, and by the Prosecutor General for a period of up to one and a half years. Further extension of detention was not allowed and the person then had to be released immediately. 110. An appeal against an order extending periods of detention could be lodged with a court in the area of a detention centre in which a detainee was held (Articles 220-1 and 220-2). 111. Article 58-1 established that if criminal proceedings were discontinued on account of the absence of a crime, of evidence of a crime in the relevant actions, or of evidence of a person's involvement in the imputed offence, competent public officials were under an obligation to take measures to compensate that person for the damage caused by, inter alia, his or her unlawful detention. 112. Article 87 prescribed that all investigative measures, including inspection, search and seizure, should be documented by a formal record. 113. Chapter 14 regulated questions relating to searches, seizures and attachment of property. Article 168 provided that a search had to be conducted on the basis of an investigator's reasoned decision and subject to the authorisation of a prosecutor. A search could be conducted without a prosecutor's authorisation for a reason that admitted of no delay, but a prosecutor had to be notified of that search within 24 hours. Article 171 restricted seizures to items and documents that could be relevant to the criminal investigation. 114. Chapter 15 related to on-site inspections. Article 178 permitted an inspection of the scene of the incident prior to institution of the criminal investigation for a reason that admitted of no delay. In that case, the investigation then had to be opened immediately after the inspection. Article 182 required that a record be made for the inspection. That record had to describe the investigator's actions and all items seized during the inspection. 115. This law provides that any citizen has the right to file a complaint with a court when he or she considers that his or her rights have been infringed by unlawful actions or decisions of State agencies, bodies of local self-government as well as institutions, enterprises or their associations, non-governmental organisations or officials and State employees. 116. Complaints may be filed either directly with a court or a higher State agency which has the obligation to review the complaint within a month. If the complaint is rejected by the latter or there has been no response on its part, the person concerned has the right to bring the matter before a court.

dev

001-97222

ENG

RUS

CHAMBER

CASE OF MALYSH AND OTHERS v. RUSSIA

Violation of P1-1;Non-pecuniary damage - award

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

6. The applicants are: (1) Mr Nikolay Ivanovich Malysh, born in 1949, (2) Mr Vasiliy Aleksandrovich Bogomolov, born in 1944, (3) Mr Sergey Stepanovich Iglin, born in 1949, (4) Ms Zinaïda Aleksandrovna Sannikova, born in 1954, (5) Ms Lyubov Vasilyevna Nazarenko, born in 1953, and (6) Mr Sergey Nikolaevich Malysh, born in 1979. 7. All the applicants are Russian nationals living in the Amur Region. They are all holders of Urozhay-90 bonds. 8. In 1987 the General Secretary of the USSR Communist Party Mikhail Gorbachev presented his “basic theses”, which laid the political foundation for economic reform heralding the transition to a market economy. Several laws were enacted which opened up the State-dominated planned economy to private enterprise. However, the Government preferred to keep control over consumer prices rather than leaving them to be determined by the free market. 9. By 1990 Government spending increased sharply as a growing number of unprofitable enterprises required State support, whereas more resources were diverted to subsidise consumer prices. At the same time, the elimination of central control over production decisions, especially in the consumer-goods sector, led to a breakdown in traditional supply-demand relationships. This resulted in pervasive shortages of food and basic consumer goods. The Government reacted by introducing ration stamps for food and certain hygiene articles. 10. In addition to ration stamps, the Government of the Russian Socialist Federative Soviet Republic (RSFSR) put into circulation several types of so-called “commodity bonds” (товарные чеки) which gave their bearers the right to purchase consumer goods, such as refrigerators, washing machines, tape recorders and passenger cars. The Urozhay-90 (“Harvest-90”) bonds were one of many types of bonds; they were distributed among agricultural workers and companies which had sold grain and other agricultural produce to the State in 1990 and 1991. Those bonds were designed to encourage agricultural workers to sell produce to the State in exchange for the right to priority purchasing of goods in high demand (see paragraph 43 below). The State paid workers for the produce at fixed prices and also gave them bonds in amounts proportionate to the value of the produce sold. 11. The Urozhay-90 bonds were not legal tender, but they had a certain nominal value indicated on their face. That value determined the maximum purchase price of consumer goods which could be sold on production of the bonds. The bonds were not intended for payment but merely for certification of the right to purchase specific goods; the sale of goods was conditional on payment of the full purchase price by the bond-holder and production of the bonds for the same amount. The bonds were not registered in the person's name or otherwise personalised and the Government Resolution did not prevent them from being transferred among individuals and legal entities. 12. On 2 January 1992 the Russian Government decided to put an end to the regulation of retail prices. Shops began to fill up with merchandise but prices increased at a staggering speed (the inflation rate in 1992 was 2,600%). In March 1992, the Government established that goods available under the bonds would be sold at the prices fixed before 2 January 1992 (see paragraph 44 below). 13. In August 1992 the Government introduced the possibility of buying out the bonds with a coefficient of 10. In 1994, the coefficient was raised to 70 (see paragraphs 45 and 46 below). It appears that a significant number of bonds were bought out by the State before the buyout operations were stopped in 1996 (see paragraph 48 below). 14. In 1995 the status of the commodity bonds was codified in the Commodity Bonds Act passed by Parliament (see paragraph 47 below). Its text was very laconic, shorter than one page, but it purported to cover every type of commodities bonds issued in previous years. Section 1 recognised the commodity bonds as part of the internal debt of the Russian Federation; section 2 fixed at ten years the limitation period for the obligations arising out of commodity bonds (the starting date was not specified); section 3 required the Government to adopt a programme for settlement of the internal debt. 15. In 2000 the Government presented the programme for settlement of the internal debt (see paragraph 50 below). It covered every type of commodity bond, save for the Urozhay-90 bonds. A few months before the Commodity Bonds Act was amended so as to provide that the settlement of the debt under the Urozhay-90 bonds would be regulated by a special federal law (see paragraph 49 below). 16. Between 2003 and 2009 the application of section 1 of the Commodity Bonds Act was suspended in the part concerning the Urozhay-90 bonds, in accordance with the laws on the federal budget for each successive year (see paragraph 51 below). 17. In 2009 Parliament passed a law on the buyout of the Urozhay-90 bonds and the Government issued implementing regulations which set out a detailed procedure for buyout of the bonds (see paragraphs 52 and 53 below). 18. The applicants Mr Nikolay Malysh and Mr Vasiliy Bogomolov are holders of Urozhay-90 bonds with a total nominal value of 30,110 and 30,000 non-denominated Russian roubles (RUR) respectively. 19. In 2001 Mr Nikolay Malysh and Mr Bogomolov brought an action against the Russian Government and the Ministry of Finance, seeking compensation for the damage incurred through the State's continued failure to effect payment under the bonds. 20. After several rounds of judicial proceedings, on 13 January 2003 the Tambovskiy District Court of the Amur Region refused their claim for the following reasons: “At present the State programme for settlement of the internal debt in the period 2001 to 2004 has been developed and is being implemented. The Commodity Bonds Act described the debt arising out the Urozhay-90 bonds as a medium-term debt. Accordingly, pursuant to Article 98 § 2 of the Budget Code of the Russian Federation, the maturity date has not yet occurred. It follows that the executive bodies of the Russian Federation are now taking measures for the settlement of the debt to the plaintiffs. In these circumstances, the court cannot find that any acts or failures to act on the part of the defendant have caused any damage to the plaintiffs.” 21. On 19 February 2003 the Amur Regional Court upheld that judgment on appeal. 22. The applicant Mr Nikolay Malysh also holds Urozhay-90 bonds with a total nominal value of RUR 582,665. 23. On 5 December 2002 he sued the Russian Government and the Ministry of Finance for the damage incurred through the State's continued failure to effect payment under these bonds. 24. On 4 March 2003 the Tambovskiy District Court of the Amur Region refused his claim for the same reasons as those given in the above-quoted judgment of 13 January 2003. 25. On 23 April 2003 the Amur Regional Court upheld the judgment on appeal. 26. The applicant Mr Sergey Iglin is the holder of Urozhay-90 bonds with a total nominal value of RUR 152,200. 27. On 5 December 2002 he sued the Russian Government and the Ministry of Finance for the damage incurred through the State's continued failure to effect payment under these bonds. 28. On 20 February 2003 the Tambovskiy District Court of the Amur Region refused his claim for the same reasons as those given in the above-quoted judgment of 13 January 2003. 29. On 28 March 2003 the Amur Regional Court upheld the judgment on appeal. 30. The applicant Ms Zinaïda Sannikova is the holder of Urozhay-90 bonds with a total nominal value of RUR 223,170. 31. On 5 December 2002 she sued the Russian Government and the Ministry of Finance for the damage incurred through the State's continued failure to effect payment under these bonds. 32. After several rounds of judicial proceedings, on 1 July 2003 the Blagoveshchensk Town Court of the Amur Region refused her claim because a federal law governing the procedure for the settlement of the debt arising out of the Urozhay-90 bonds had not yet been adopted and because the law on the 2003 federal budget had suspended the application of the Commodity Bonds Act in the part concerning Urozhay-90 bonds. 33. On 6 August 2003 the Amur Regional Court upheld the judgment on appeal. 34. The applicant Ms Lyubov Nazarenko is the holder of Urozhay-90 bonds with a total nominal value of RUR 271,855. 35. On 5 December 2002 she sued the Russian Government and the Ministry of Finance for the damage incurred through the State's continued failure to effect payment under these bonds. 36. On 19 March 2003 the Blagoveshchensk Town Court of the Amur Region refused her claim because a federal law governing the procedure for the settlement of the debt arising out of the Urozhay-90 bonds had not yet been passed and because the law on the 2003 federal budget had suspended the application of the Commodity Bonds Act in the part concerning Urozhay-90 bonds. 37. On 18 April 2003 the Amur Regional Court upheld the judgment on appeal. 38. The applicant Mr Sergey Malysh is the holder of Urozhay-90 bonds with a total nominal value of RUR 222,820. 39. On 5 December 2002 he sued the Russian Government and the Ministry of Finance for the damage incurred through the State's continued failure to effect payment under these bonds. 40. After several rounds of judicial proceedings, on 27 March 2003 the Blagoveshchensk Town Court of the Amur Region refused his claim. It referred to the case-law of the Constitutional Court to the effect that: “...the balance between the rights and lawful interests of persons who are creditors of the State, on the one hand, and all other persons, on the other hand, may only be fixed in the form of an act of the federal legislature.” (decision of 21 December 2000) 41. As no such act had yet been passed, the court dismissed Mr Sergey Malysh's action. 42. On 7 May 2003 the Amur Regional Court upheld the judgment on appeal. 43. On 26 July 1990 the RSFSR Council of Ministers adopted Resolution no. 259 on urgent measures for increasing the purchase of agricultural products harvested in 1990 and for ensuring their safe keeping. Its relevant parts resolved as follows: “1. To authorise all manufacturers of agricultural produce to sell the surplus of such produce that remains after delivery under existing agreements ... to procurers or other consumers at negotiated prices... 2. To declare inadmissible any restrictions on the sale or shipment of agricultural produce to consumers in autonomous districts or regions of the RSFSR under paragraph 1 of the present resolution... Should local councils introduce such restrictions in their territories, the RSFSR Council of Ministers may stop issuing Urozhay-90 bonds or delivering goods on the basis of them in those territories...” “7. To begin issuing, in 1990, Urozhay-90 bonds to employees of collective and Soviet farms, other agro-industrial enterprises and organisations, peasants' farms and owners of personal subsidiary land plots in respect of agricultural produce sold to the State. To determine that the bonds certify the right to purchase goods in high demand at retail prices in trade outlets. The said bonds are not legal tender. 8. The RSFSR Ministry of Finance and the RSFSR Ministry of Agriculture and Food will, until 1 September 1990, print and put into circulation through the branches of the RSFSR State Bank Urozhay-90 bonds for a total amount of 10 billion roubles. The bonds are to be used before 1 October 1991. 9. To establish that Urozhay-90 bonds are issued by the branches of the RSFSR State Bank: - to all producers who sold standard products to the State between 1 July 1990 and 30 June 1991 ... in an amount equivalent to 10% of the value of the products sold... ... 13. The Russian Consumers' Association is to submit to the RSFSR Ministry for Foreign Economic Relations requests for those goods in high demand which are to be sold on production of the Urozhay-90 bonds, and organise their sale, on advance orders by citizens and organisations, at regional fairs and exhibitions and in specialised trade outlets. The Consumers' Associations is to deliver goods to the consumers on the basis of the Urozhay-90 bonds no later than 1 January 1990 [sic]. In 1991 orders under the said bonds will be executed within two months.” 44. On 15 March 1992 the Russian Government issued Resolution no. 161, intended to compensate the owners of Urozhay-90 bonds for an increase in retail prices. It resolved, in particular: “1. To establish that passenger cars and other consumer goods which are made available to citizens as a reward for the grain and other agricultural produce that was sold to the State in 1990 and 1991 are to be sold at the retail prices that prevailed before 2 January 1992... 2. To extend the period of validity of the Urozhay-90 bonds until the end of 1992...” 45. On 10 August 1992 the Government adopted Resolution no. 1442-r. It required the Russian ministries to allocate substantial amounts for the purchase of goods that were to be sold on production of the Urozhay-90 bonds. It further provided: “4. The Ministry for Trade and Material Resources, in cooperation with the Central Consumers' Union, shall define, within two weeks, the list of goods intended for the implementation of the Urozhay-90 bonds... 5. The Prices Committee of the Ministry of the Economy shall determine the increase in prices of domestic and imported goods since 1990... The price difference shall be reimbursed from the republican budget. 6. The Ministry of Agriculture shall carry out an inventory of bonds held by agricultural enterprises and organisations and private individuals as on 1 September. 7. The Ministry of Finance and the Ministry of Agriculture shall, within two weeks, lay down the procedure for the buyout of the Urozhay-90 bonds through the branches of the Savings Bank. It is to be taken into account that these bonds may be either used for purchasing goods or bought out by the State with a coefficient of 10.” 46. On 16 April 1994 the Government approved Regulation no. 344 on State commodity bonds, which provided as follows: “With a view to redeeming the State commodity bonds and preventing accrual of the State's liability to compensate for price differences, the Government of the Russian Federation resolves: 1. The Ministry of Finance of the Russian Federation – – will buy out ... the Urozhay-90 bonds at a price equivalent to their nominal value multiplied by 70 and credit that amount into a bank account...” 47. On 1 June 1995 the Commodity Bonds Act (no. 86-FZ, ФЗ «О государственных долговых товарных обязательствах») was enacted. It provided that State commodity bonds, including Urozhay-90 bonds, would be recognised as part of the internal State debt of the Russian Federation (section 1). The obligations arising out of the commodity bonds would be settled in accordance with the general principles of the Russian Civil Code, the limitation period being set at ten years (section 2). The original wording of section 3 provided: “The Government of the Russian Federation shall draft, in 1995-1997, the State Programme for settlement of the internal debt of the Russian Federation described in section 1, based on the principle of full compensation. The Programme shall provide for redemption terms ... convenient for citizens, including, according to their choice: provision of goods designated in ... the State bonds issued to agricultural suppliers ...; redemption of State commodity bonds at consumer prices prevailing at the time of the redemption ...; conversion of the debt into State securities...” 48. On 16 January 1996 the Government adopted Resolution no. 33, by which it annulled Regulation no. 344 and instructed the Ministry of Finance to redeem the State commodity bonds within the amounts allocated for that purpose in the federal budget. 49. On 2 June 2000, section 3 of the Commodity Bonds Act was amended to provide that the procedure for implementation of the State's obligations to holders of the Urozhay-90 bonds would be determined in a special federal law. 50. On 27 December 2000 the Government adopted the State Programme for settlement of the internal debt of the Russian Federation. Paragraph 14 of the Programme provided that the procedure for payments in respect of the Urozhay-90 bonds would be determined in a special federal law. 51. In 2003 the application of section 1 of the Commodity Bonds Act was for the first time suspended in the part concerning the Urozhay-90 bonds. The suspension clause was maintained in the following years (Federal Law no. 176-FZ of 24 December 2002; no. 186-FZ of 23 December 2003; no. 173-FZ of 23 December 2004; no. 189-FZ of 26 December 2005; no. 238-FZ of 19 December 2006; and no. 198-FZ of 24 July 2007). 52. On 19 July 2009 a federal law governing the procedure for the buyout of the Urozhay-90 bonds was adopted (no. 200-FZ – “the Buyout Act”). It established that holders of the bonds would be paid, in the period between 15 December 2009 and 31 December 2010, an amount equivalent to the nominal value of the bonds divided by 1,000 (section 2). The law also amended the Commodity Bonds Act by removing the reference to the Urozhay-90 bonds from section 1 of that Act. 53. On 15 September 2009 the Government issued Resolution no. 749, setting out the detailed procedure for payments in exchange for the production of Urozhay-90 bonds. 54. On 15 December 2000 the Constitutional Court gave a decision on an application lodged by the Parliament of the Sakha (Yakutiya) Republic, which had claimed that the amendments of 2 June 2000 (see above) had indefinitely delayed the implementation of the State's obligations towards the bearers of the Urozhay-90 bonds. The Constitutional Court declared the application inadmissible for the following reasons: “In its [previous decisions] the Constitutional Court has already determined that a unilateral change in the scope of the State's obligations towards individuals, including the obligation to sell goods in exchange for commodity bonds, is impermissible. This does not exclude, however, the possibility of imposing restrictions on the property rights of individuals – in an established form and within the constitutional limits – in the matter of State obligations, which is compatible with Article 55 § 3 of the Constitution. In particular, it follows from the case-law of the Constitutional Court ... that implementation of the rights and lawful interests of individual citizens or groups of citizens should not excessively and adversely affect the budgetary resources allocated for satisfying the rights and interests of society as a whole. This principle becomes particularly relevant in a situation where budgetary resources are insufficient to resolve many social problems relating to the exercise of the rights to life and personal dignity. It follows that the balance between the rights and lawful interests of the individuals who act as creditors for the State in property relationships, on the one hand, and everyone else, on the other hand, may, in principle, be struck only in the form of an act of Parliament. Hence, given that the legislature may restrict individual rights and freedoms (including property rights) for the purpose of the protection of the rights and lawful interests of others, a review of the federal law amending section 3 of the Commodity Bonds Act by the Constitutional Court would imply an assessment of the financial and economic justification for the legislative decision on the procedure for settlement of State commodity bonds, which ... falls outside the jurisdiction of the Constitutional Court. When examining claims relating to settlement of the State commodity bonds, courts of general jurisdiction have the right and duty to interpret the legislative provisions in the light of the interests of the individual (Articles 2 and 18 of the Constitution) and be guided, in particular, by section 2 of the Commodity Bonds Act, which establishes that State commodity bonds are to be settled in an appropriate form and in accordance with the Civil Code of the Russian Federation.”

dev

001-89388

ENG

UKR

CHAMBER

CASE OF MIKHANIV v. UKRAINE

Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

7. The applicant was born in 1966 and lives in Kyiv. 8. The applicant is a former vice-president of the Khlib Ukrainy Company (ДАК Хліб України), a State-owned company trading in grain. 9. On 11 January 2000 the General Prosecutor’s Office (the “GPO”) opened a criminal investigation in respect of the applicant and another employee of Khlib Ukrainy on charges of aggravated embezzlement of public funds by means of fraudulent transactions for the amount of approximately 44,000 euros (EUR) via the private company Ukrzovnishtorg (“the Ukrzovnishtorg case”). The applicant was also accused of producing a copy of a forged university degree certificate when applying in 1996 for a position in the civil service. 10. The applicant was arrested on 17 January 2000. 11. On 19 January 2000 the investigator appointed to deal with his case formally charged the applicant with aggravated embezzlement of public funds and forgery. 12. On 20 January 2000 the Deputy Prosecutor General ordered the applicant’s detention on remand for two months on the grounds that the charges were serious and that the applicant might abscond and pervert the course of justice. The applicant appealed against his detention to the Pechersky District Court of Kyiv (“the Pechersky Court”). 13. On 14 March 2000 the GPO extended the applicant’s detention to five months. 14. On 15 March 2000 the GPO opened two more criminal cases against the applicant for aggravated embezzlement of public funds by means of fraudulent transactions via the Internova Trading Company and the Anmikh-Rossiya Company (respectively “the Internova case” and “the Anmikh case”). These cases were joined to the Ukrzovnishtorg case. 15. On 27 March 2000 the Pechersky Court, on the applicant’s appeal, revoked the detention order of 20 January 2000. The court found that there was no evidence that the applicant would abscond or pervert the course of justice if released. In particular, the applicant had his permanent residence in Ukraine and financially supported his wife and a child living in Kyiv. He had never failed to respond to a summons or attempted to obstruct the investigation. Moreover, the court found that, when ordering the applicant’s detention, the prosecution had not taken into account the fact that the applicant suffered from a number of serious illnesses. 16. On the same day, without releasing him from the Kyiv SIZO, the investigator placed him under arrest again, this time on suspicion of involvement in the Internova case. The Deputy General Prosecutor, on that same date, ordered the applicant’s detention on remand for a period of two months on the ground that he was suspected of a serious offence and that he might abscond or pervert the course of justice. 17. On 28 March 2000 the applicant was officially charged with embezzlement of public funds in the Internova case. 18. On 30 March 2000 the Deputy Prosecutor General lodged a request for supervisory review (protest) with the Kyiv City Court against the Pechersky Court’s decision of 27 March 2000. 19. On 10 April 2000 the Presidium of the Kyiv City Court quashed the Pechersky Court’s decision of 27 March 2000 and upheld the detention order of 20 January 2000. It found that the applicant’s wife and two children lived in Estonia. In Ukraine the applicant lived with his partner and their son in Kyiv whilst being registered in Dnipropetrovs’k. He had two registered addresses (in Ukraine and Estonia), three international passports (one Russian and two Ukrainian: ordinary and official) and had an account with an Estonian bank, and was therefore likely to abscond if released. Moreover, the Kyiv City Court held that the first-instance court had overlooked the fact that the applicant in his appeal had requested the “replacement of the preventive measure” rather than the “annulment of the detention order” and, therefore, this appeal fell outside the scope of judicial review at the investigation stage. 20. On 29 May and 29 August 2000 the GPO prolonged the applicant’s pre-trial detention respectively to eight months and eleven months. 21. On 27 October 2000 the investigator, with a view to preventing any communication between the applicant and his co-accused, ordered the applicant’s transfer from the Kyiv SIZO to the Zhytomyr Regional Pre-trial Detention Centre no. 8 (Житомирський обласний слідчий ізолятор № 8“the Zhytomyr SIZO”) for the period from 30 October to 30 November 2000. 22. The applicant was transferred to the Zhytomyr SIZO on 1 November 2000. 23. On 27 November 2000 the GPO prolonged the applicant’s detention to twelve months. 24. On 14 December 2000 the investigator ordered the applicant’s transfer back to the Kyiv SIZO. 25. Meanwhile, on an undetermined date in December 2000, the applicant’s lawyer appealed against the prosecutor’s detention orders of 20 January 2000 and 27 March 2000. 26. On 27 December 2000 the appeal was examined by the Pechersky Court in the presence of the prosecutor and the applicant’s lawyer. The court held that, although the domestic law allowed the detention of a defendant charged with aggravated embezzlement of public funds on the sole basis of the gravity of the charges, the other grounds provided for by the law should also be taken into account. The Pechersky Court found, in particular, that there was no compelling evidence that if released the applicant would abscond or pervert the course of justice. The applicant had permanent residence in Ukraine and could not lawfully leave it since his international passport had expired. The applicant lived with his wife and two children in Ukraine. He also financially supported his father and mother-in-law, who lived in Ukraine. Moreover, the applicant suffered from serious health problems. The Pechersky Court considered the medical experts’ report produced by the prosecution, to the effect that the applicant was fit for detention in the remand facilities, unreliable in the light of the fact that during his detention in the Zhytomyr SIZO the applicant had not been administered any of the drugs prescribed for him. On the basis of the above findings the Pechersky Court quashed the detention orders of 20 January 2000 and 27 March 2000. On the same day the Deputy Prosecutor General lodged a request for supervisory review against this decision. 27. On 28 December 2000 the applicant, while still detained in the Kyiv SIZO, was arrested by the investigator on suspicion of involvement in the Anmikh case. On the same day the applicant was officially charged with the said offence. 28. On 5 January 2001 the GPO extended the applicant’s pre-trial detention to fifteen months. 29. On 15 January 2001 the Presidium of the Kyiv City Court, following the prosecution’s request for supervisory review, quashed the Pechersky Court’s decision of 27 December 2000, citing essentially the same arguments as in its decision of 10 April 2000. The court also stated that there was no reason why the applicant could not be detained on the sole basis of the gravity of the charges, as provided for by Article 155 of the CCP. 30. On 5 April 2001 the GPO extended the applicant’s detention up to eighteen months. 31. On 31 May 2001 the GPO instituted another criminal case against the applicant and Mr L. respectively for giving and taking bribes. This case was joined to the criminal case against the applicant. 32. On 18 June 2001 the applicant and his lawyer were granted access to the 120-volume case file. The applicant, however, refused to study the case file, alleging that the relevant formalities had not been completed. On the same day the investigator rejected this complaint as unsubstantiated. 33. On 16 July 2001 the prosecution lodged the bill of indictment with the Kyiv City Court of Appeal (the former Kyiv City Court). 34. On an unknown date the applicant requested and was granted access to the case file, a right which he and his lawyer exercised from 20 July to 26 September 2001. 35. On an unknown date in September 2001 the Kyiv City Court of Appeal referred the applicant’s case file to the Radyansky District Court of Kyiv for examination. 36. On 11 October 2001 the Deputy Prosecutor General decided that only the Ukrzovnishtorg case was ready for trial and withdrew the remainder of the charges because they required further pre-trial investigation. 37. On 12 October 2001 an amended bill of indictment was lodged with the Svyatoshynsky District Court (“the Svyatoshynsky Court”). 38. On 1 November 2001 a preparatory hearing was held before a judge of the Svyatoshynsky Court. The judge considered that the case was ready for trial and decided that the applicant was to remain in detention on remand. The applicant’s request for release was rejected on the ground that, although he had already spent a total of 21 months in detention, the period of his detention during the investigation had not exceeded 18 months and thus was in compliance with Article 156 of the CCP. The judge considered that the applicant’s transfer to the Zhytomyr SIZO was necessary for the proper conduct of the investigation and that there was no indication of ill-treatment. He concluded that there were no medical or other special circumstances warranting the applicant’s release. 39. The proceedings before the trial court started on 26 November 2001. 40. At a hearing on 18 January 2002 the Svyatoshynsky Court dismissed the applicant’s request for release, stating that there were no new circumstances warranting a re-evaluation of the preventive measure imposed. The court also granted the prosecution’s motion to adjourn the hearing until 1 February 2002 to allow the new prosecutor to familiarise himself with the case file. 41. On 1 February 2002 the Svyatoshynsky Court of its own motion decided that further pre-trial investigation was necessary. The court also ordered the applicant’s release on an undertaking not to abscond. 42. On 2 February 2002 the applicant tried to leave Ukraine for Russia by train but was stopped on the border and sent back to Kyiv. 43. On an unspecified date the prosecution appealed against the remittal of the case for further investigation, considering that it was ready for examination on the merits. The applicant also challenged the remittal, stating that it was motivated by the court’s reluctance to acquit him. On 18 April 2002 the Kyiv City Court of Appeal granted the appeals, quashed the decision of 1 February 2002 and ordered that the trial proceedings in the applicant’s case be resumed. 44. The hearings before the Svyatoshynsky Court resumed on 30 April 2002. On 14 August 2002 the trial court ordered that by 19 September 2002 the GPO was to carry out additional enquiries in order to collect further evidence. However, it was not until 24 December 2002 that the authorities produced the requested evidence in court and the trial could resume. 45. On 11 February 2003 the Svyatoshynsky Court acquitted the applicant of the charges brought against him. The prosecution appealed. On 28 June 2003 the Kyiv City Court of Appeal upheld the applicant’s acquittal. 46. On 13 July 2004 the Supreme Court, following the appeal of the GPO, reversed the decisions of the lower courts and remitted the case for further investigation. 47. The case file was received by the GPO on an unknown date in October 2004. On 28 October 2004 the investigator amended the applicant’s charges in accordance with the new 2001 Criminal Code. On the same day the applicant was summoned to give evidence but failed to appear. Since then, according to the Government’s submissions, the GPO has carried out a number of forensic examinations, questioned witnesses and seized documentary evidence. Further documents have been requested and received from Swiss authorities. 48. On an unknown date the applicant made use of the recent amendments to the CCP by challenging the initial decision of the GPO of 11 January 2000 to institute criminal proceedings against him. On 24 November 2005 the Pechersky Court allowed this application and revoked the impugned decision. The prosecution appealed. 49. On 2 February 2006 the Kyiv City Court of Appeal reversed the Pechersky Court’s decision and rejected the applicant’s application. 50. On 29 March and 22 June 2007 the applicant requested the investigator for termination of the criminal proceedings as time-barred. In reply the investigator informed the applicant that his requests would be examined and the decision would be adopted in accordance with the relevant law. 51. On 13 May 2008 the applicant was charged with abuse of power and forgery and ordered not to leave his place of residence. 52. The investigation in the applicant’s case is still pending. 53. On 18 July 2001 the applicant’s lawyer, referring to Article 29 § 1 of the Constitution, filed an administrative complaint about the inactivity of the administration of the Kyiv SIZO, namely for their failure to release the applicant after 17 July 2001, when the overall term of his detention had reached eighteen months. On 20 August 2001 the Shevchenkivsky District Court of Kyiv refused to entertain this complaint on the ground that the lawyer’s authority to act issued by the applicant was limited to the criminal proceedings before the Kyiv Court of Appeal. This decision was not appealed against by the applicant. 54. The applicant’s similar administrative complaint against the GPO was declared inadmissible on 26 October 2001 by the Pechersky Court on the ground that such complaints fell to be examined in the criminal proceedings which at that time were pending before the Radyansky Court. 55. After the applicant’s arrest in January 2000 his health started to deteriorate. According to the Pechersky Court’s decision of 27 March 2000 the applicant started to receive medical treatment in the Kyiv SIZO for his illnesses as early as March 2000. 56. On 15 June 2000, in response to the applicant’s numerous requests, the investigator dealing with his case ordered that a forensic medical report on the applicant’s state of health be obtained. In its report no. 83 of 16 June 2000, a commission of the Kyiv City Bureau of Forensic Medical Examinations (Київське міське бюро судово-медичних експертиз) stated that the applicant suffered from a post-traumatic encephalopathy, duodenal ulcer with reflux and heart pathology. The applicant was prescribed a diet and heart drugs. In conclusion the experts suggested that the applicant’s encephalopathy be examined in a specialised neurological institution. 57. On 29 August 2000 an expert commission of the Kyiv City Centre of Forensic Psychiatric Examinations (Київський центр судово-психіатричних експертиз), with the participation of a neuropathologist from the district hospital, drew up a forensic report (no. 957) at the request of the investigator. The commission found that the applicant suffered from post-traumatic encephalopathy (after a head injury suffered at the age of fifteen). According to the applicant this disease caused him severe headaches and hand tremor. The applicant was prescribed the relevant drugs. He was found fit for detention on remand subject to the prescribed treatment. 58. On 1 November 2000 the applicant was transferred to the Zhytomyr SIZO. 59. On 20 December 2000 the applicant’s lawyer asked the Governor of the Zhytomyr SIZO whether they had provided the applicant with the medicines prescribed for him. 60. On 25 December 2000 the Governor of the Zhytomyr SIZO issued a letter, stating that on his admission the applicant had been examined by the prison doctors, who had diagnosed him as suffering from encephalopathy. Subsequently he had been examined by the cardiologist who confirmed the above heart pathology diagnosis of the Kyiv experts. The Governor stated that, although the content of the above medical experts’ reports had been made known to the prison authorities, the drugs prescribed in those reports were not in the possession of the Zhytomyr SIZO and thus could not be administered to the applicant. 61. On 11 January 2001, after the applicant’s transfer from the Kyiv ITU, he was examined by a doctor from the medical department of the Kyiv SIZO, who found that he suffered from headaches, heart and stomach pains. The applicant was prescribed fifteen drugs, including those specified in the experts’ reports. 62. The relevant domestic law is summarised in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-56, ECHR 2005II).