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ECHR

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dev

001-57570

ENG

FRA

CHAMBER

CASE OF SALABIAKU v. FRANCE

No violation of Art. 6-1;No violation of Art. 6-2

8. Mr Amosi Salabiaku, a Zaïrese national born in 1951, resides in Paris with his family. 9. On 28 July 1979, Mr Salabiaku went to Roissy Airport to collect a parcel which he had been informed by telex message was to arrive on board an Air Zaïre flight. According to the applicant, he expected the parcel to contain samples of African food sent to him through the intermediary of one of his relatives who was an Air Zaïre employee. As he was unable to find it, he approached an airline official who directed him to a padlocked trunk which had remained uncollected and bore an Air Zaïre luggage ticket but no name. The official, acting on the advice of police officers watching the trunk, suggested that he left it where it was, intimating to him that it might contain prohibited goods. The applicant took possession of it nevertheless, and passed through customs without difficulty. He had chosen to go through the "green channel" for passengers having nothing to declare. He was accompanied by three other Zaïrese nationals whom he had met there for the first time. Immediately afterwards he telephoned to his brother Lupia to come and meet him at a terminal near their home in order to help him since the package had proved heavier than expected. 10. Customs officials then detained Mr Amosi Salabiaku and his three companions as they were about to board the Air France terminal coach. Mr Salabiaku identified himself as the person for whom the trunk had been intended and denied that it was anything to do with his three compatriots who were immediately released. Customs officials forced the lock of the trunk and found, lying underneath victuals, a welded false bottom which concealed 10 kg of herbal and seed cannabis. The applicant asserted that he was unaware of the presence of the cannabis and that he had mistaken the trunk for the parcel of whose arrival he had been advised. His brother was also arrested at the Porte Maillot (Paris). 11. On 30 July 1979, Air Zaïre telephoned to Mr Amosi and Mr Lupia Salabiaku’s landlord, informing him that a parcel bearing the applicant’s name and his address in Paris had arrived by mistake in Brussels. It was opened by an investigating judge but was found to contain only manioc flour, palm oil, pimento and peanut butter. 12. Mr Amosi and Mr Lupia Salabiaku were released on 2 August 1979 and, together with a certain K., also a Zaïrese national, were charged with both the criminal offence of illegally importing narcotics (Articles L. 626, L. 627, L. 629, L. 630-1, R. 5165 et seq. of the Public Health Code) and the customs offence of smuggling prohibited goods (Articles 38, 215, 414, 417, 419 and 435 of the Customs Code, Articles 42, 43-1 et seq. and 44 of the Penal Code). By an order dated 25 August 1980, they were committed for trial before the Tribunal de Grande Instance, Bobigny. 13. On 27 March 1981, the 16th Chamber of this court acquitted Mr Lupia Salabiaku and K. giving them the benefit of the doubt but found the applicant guilty. It stated in particular: "The accused’s bad faith is evidenced by the fact that he showed no surprise when the first package opened in his presence turned out to contain none of the foodstuffs contained in the second package, although he described clearly what he claimed to be expecting from Zaïre and received in the second. The latter package arrived in Brussels in circumstances which it has not been possible to determine and its existence cannot rebut presumptions which are sufficiently serious, precise and concordant to justify a conviction ...." Consequently, the court imposed on Mr Amosi Salabiaku a sentence of two years’ imprisonment and a definitive prohibition on residing in French territory. Furthermore, in respect of the customs offence, it imposed on him a fine of 100,000 French francs (FF), under Article 414 of the Customs Code, to be paid to the customs authorities, which had joined the proceedings as a civil party. 14. The applicant and the Public Prosecutor appealed. On 9 February 1982, the Paris Court of Appeal (10th Chamber) set aside the judgment with regard to the criminal offence of illegal importation of narcotics, on the following grounds: "... the facts alleged against the accused are not sufficiently proven; ... in fact, although Mr Amosi Salabiaku, who had been expecting only a parcel of victuals, took possession of a very heavy trunk secured by a padlock to which he did not have the keys, which bore no name of any addressee and for which he did not have the corresponding luggage ticket counterfoil, it has been established that a package in his name containing victuals arrived two days afterwards in Brussels on an Air Zaïre flight from Kinshasa. This package had apparently been sent to Brussels in error, its intended destination being Paris; ... in those circumstances, it is not impossible that Mr Amosi Salabiaku might have believed, on taking the trunk, that it was really intended for him; ... there is at least a doubt the benefit of which should be granted to him, resulting in his acquittal ..." The court, on the other hand, upheld the first-instance decision as regards the customs offence of smuggling prohibited goods: "... any person in possession (détention) of goods which he or she has brought into France without declaring them to customs is presumed to be legally liable unless he or she can prove a specific event of force majeure exculpating him; such force majeure may arise only as a result of an event beyond human control which could be neither foreseen nor averted ...; ... ... Mr Amosi Salabiaku went through customs with the trunk and declared to the customs officials that it was his property; ... he was therefore in possession of the trunk containing drugs; ... he cannot plead unavoidable error because he was warned by an official of Air Zaïre ... not to take possession of the trunk unless he was sure that it belonged to him, particularly as he would have to open it at customs. Thus, before declaring himself to be the owner of it and thereby affirming his possession within the meaning of the law, he could have checked it to ensure that it did not contain any prohibited goods; ... by failing to do so and by having in his possession a trunk containing 10 kg of herbal and seed cannabis, he committed the customs offence of smuggling prohibited goods ..." The Court of Appeal also confirmed the fine of 100,000 FF imposed on the applicant; it fixed at the minimum period the duration of imprisonment for non-payment. 15. Mr Amosi Salabiaku appealed on points of law. He relied on paragraphs 1 and 2 of Article 6 (art. 6-1, art. 6-2) of the Convention: in his submission, by placing upon him an "almost irrebuttable presumption of guilt", which "operated in favour of the customs authorities", the Court of Appeal had violated both his right to a fair trial and his right to be presumed innocent until proved guilty. The Court of Cassation (Criminal Chamber) dismissed the appeal on 21 February 1983, finding that the judgment appealed against had "properly" applied Article 392 para. 1 of the Customs Code, under the terms of which "the person in possession of contraband goods shall be deemed liable for the offence": "... contrary to what is alleged, the aforementioned Article was not repealed by implication by France’s adhesion to the Convention ... and had to be applied since the Court of Appeal, which reached its decision on the basis of the evidence adduced by the parties before it, found that the accused was in possession of the trunk and inferred from the fact of possession a presumption which was not subsequently rebutted by any evidence of an event responsibility for which could not be attributed to the perpetrator of the offence or which he would have been unable to avoid." 16. Infringements under the French Customs Code constitute criminal offences with various specific characteristics. The Customs Code essentially prohibits smuggling (Articles 417 to 422) and undeclared importation or exportation (Articles 423 to 429). This case is concerned solely with smuggling. The notion of smuggling covers "any importation or exportation effected outside official customs premises and any infringement of the provisions or regulations concerning the possession and transport of goods within the customs territory" (Article 417 para. 1), for example, but not exclusively, where the goods concerned are "prohibited on importation" (Article 418 para. 1, to be read in conjunction with Article 38). 17. At the material time Article 408 classified these infringements in five classes of petty offences (contraventions) and three of more serious offences (délits). Articles 410 to 416 imposed "primary penalties" which varied according to the gravity of the infringement: such penalties included fines fixed either within set maximum and minimum limits (Articles 410 para. 1, 412 and 413 bis) or at "between one and three times the amount of duty and taxes evaded or unpaid" (Article 411 para. 1), "the value of the disputed goods" (Article 413), of "the contraband article" (Articles 414 and 415) or of "the confiscated articles" (Article 416), with a fixed minimum (Article 437); confiscation of "the disputed goods" (Article 412) or "the contraband article", "the means of transport" and "articles used to conceal the offence" (Articles 414, 415 and 416); and imprisonment for terms of up to one month (Article 413 bis), three months (Article 414), one year (Article 415) or three years (Article 416), according to the type of offence involved. Mr Salabiaku was charged under Article 414, according to which: "Any act of smuggling and any undeclared importation or exportation of goods falling within the category of goods which are prohibited ..., on importation, ..., shall be punishable by the confiscation of the contraband article, confiscation of the means of transport employed, confiscation of articles used to conceal the offence, a fine of not less than the value of the contraband article and not more than three times its value and a term of imprisonment of up to three months." Certain of these punitive measures - fines not fixed in advance and confiscations - are also described as "fiscal penalties" (Articles 343 para. 2 and 415). In general they are regarded as being compensatory in nature in so far as they are intended to make good loss sustained by the customs authorities. There are also a number of "additional penalties" (Articles 430 to 433), including in particular measures of disqualification (Article 432). Both primary and additional penalties may give rise to an entry in the criminal record of the person concerned. 18. Seizure "reports" drawn up "by a customs officer or any other official" may constitute - and usually do - evidence of customs offences (Articles 323 to 333). Depending on whether they are issued by one or more officials, they attest "the facts which they record" merely until "the contrary is proved" or until "forgery proceedings have been instituted" (Articles 336 para. 1 and 337 para. 1). They are "remitted to the Public Prosecutor and the persons charged with the offence are brought" before him (Article 333 para. 1). The initiative for instituting prosecution lies with the Public Prosecutor’s Office for "criminal penalties", stricto sensu, and with the customs authorities - or the Public Prosecutor’s Office, "in conjunction with the criminal proceedings" - for "fiscal penalties" (Article 343). District courts have jurisdiction to try petty customs offences, and criminal courts, more serious customs offences (Articles 356 and 357). In principle the procedure follows the rules of the ordinary law (Articles 363, 365 and 366). 19. The offence with which the applicant was charged - the smuggling of narcotics, "prohibited goods" (Article 414) - does not necessarily require possession. However, where possession is established, "the person in possession ... is deemed liable for the offence", without prejudice to any penalties which may be incurred by other persons, for example any accomplices (Article 398) or "persons with an interest in the offence" (Article 399). This principle is set out in Article 392 para. 1. The provision in question appears in Chapter V ("Liability and Joint Liability") of Title XII ("Contentious Proceedings") of the Customs Code, at the beginning of Section I ("Criminal Liability"), and not among the "punitive provisions" of Chapter VI. It is a general clause which applies both to smuggling offences and undeclared importation or exportation as well as to any "unlawfully imported or exported goods", irrespective of whether they are prohibited as such. Read strictly this provision would appear to lay down an irrebuttable presumption, but, in any event, its severity has been to some extent moderated by the decisions of the courts. Thus the Court of Cassation now upholds the trial court’s unfettered power of assessment with regard to "evidence adduced by the parties before it" (see, for example, the Abadie judgment of 11 October 1972, Bulletin no. 280, p. 723) and recognises that the accused may exculpate himself by establishing "a case of force majeure" resulting "from an event responsibility for which is not attributable" to him and which "it was absolutely impossible for him to avoid", such as "the absolute impossibility ... of knowing the contents of [a] package" (see, for example, the Massamba Mikissi and Dzekissa judgment of 25 January 1982, Gazette du Palais, 1982, jurisprudence, pp. 404-405, and the judgment delivered in this case on 21 February 1983, paragraph 15 above; see further Court of Appeal, Paris, 10 March 1986, Chen Man Ming and Others, Gazette du Palais, 1986, jurisprudence, pp. 442-444). At the same time Article 399, which concerns third parties "with an interest in the offence" and not "persons in possession", states in paragraph 3 thereof that "the interest in the offence cannot be imputed to a person who has acted out of necessity or as a result of unavoidable error". On the other hand under paragraph 2 of Article 369 the courts were required to refrain from "acquitting offenders for lack of intent". While it is true that Law no. 87-502 of 5 July 1987 repealed this provision, clearly this had no effect on the present case. It is necessary to distinguish between the possibility of a simple acquittal and that provided for in Article 369 para. 1: namely recognition of extenuating circumstances. In such cases the court may, inter alia, "refrain from imposing on the accused the criminal penalties laid down in the ... Code", order that their enforcement be suspended or decide "that the conviction should not be entered in ‘Bulletin no. 2’ of the criminal record", order the return to the person concerned of certain confiscated goods or reduce the amount of the "fiscal fines".

dev

001-66638

ENG

POL

CHAMBER

CASE OF ZWIAZEK NAUCZYCIELSTWA POLSKIEGO v. POLAND

Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings

7. In 1964 the administrative authorities handed over to the applicant association the management and use of a property that had been expropriated from a religious association by the State Treasury in 1962. The decision concerning the transfer stipulated inter alia that, on termination of the use of the property, the applicant association would be entitled to recuperate the outlays incurred in connection with any construction work carried out on the buildings, less the normal costs of upkeep. 8. On 20 October 1992 the Warsaw Property Commission (“the Property Commission”), set up pursuant to the Law on relations between the State and the Catholic Church in Poland, returned the property to the religious association. The Property Commission ordered the latter to reimburse the applicant association its outlay to the sum of 420,353,658 old zlotys (PLZ) (42,035 new zlotys (PLN)). That amount was based on a calculation prepared by experts. The applicant association challenged the amount and proposed its own calculation. However, the Property Commission declared that it lacked jurisdiction to examine further claims. Its decision contained a clause to the effect that the decision did not affect the applicant association’s right to make further claims relating to the 1964 decision in accordance with the general provisions of law. 9. The applicant association subsequently filed an action against the State Treasury with the Przemyśl Regional Court (sąd wojewódzki), in which it applied for reimbursement of the outstanding outlays, relying on the text of the 1964 decision in which the administrative authorities had established its right to those outlays. The applicant association also referred to the Property Commission’s decision of 20 October 1992. 10. On 15 December 1995 the court awarded the applicant association the sum of PLN 546,133.02 by way of reimbursement of its outlays. The court referred to the part of the 1964 decision which stated that the applicant association would be entitled to recover the outlays incurred in connection with any construction work carried out on the buildings, less the normal costs of upkeep. Both parties to the proceedings appealed against this judgment. 11. On 13 June 1996 the Rzeszów Court of Appeal (sąd apelacyjny) decided to submit to the Supreme Court the question whether the 1989 Law on the relations between the State and the Catholic Church in Poland excluded the possibility of submitting to a civil court claims arising out of the use of a property that was returned to its original owner on the strength of a decision by a property commission. 12. On 27 June 1996 the Supreme Court replied in the affirmative to the Court of Appeal’s question. 13. The Supreme Court observed that the 1989 Law was a statute which addressed, inter alia, an exceptional matter, namely the regularisation of property issues created by expropriations carried out in the past against the Catholic Church. It noted that the proceedings before a property commission involved the participation of all parties concerned. The decisions of those commissions were intended to settle all property claims arising out of past expropriations. Such claims – including claims concerning outlays incurred by a former user of a property – could be brought before a civil court only in those exceptional cases provided for in section 64 of the 1989 Law where a property commission was unable to restore a property to its original owner. The Supreme Court pointed out that, following the Property Commission’s decision, the State Treasury had ceased to own the property. Accordingly, there were no grounds on which a claim against the Treasury could be brought before a civil court after that date. 14. The decision further read: “The clause contained in the decision of the Property Commission to the effect that that decision ‘[did] not hinder the applicant association’s right to make further possible claims relating to the 1964 decision in accordance with the generally applicable provisions of law’ cannot be interpreted as allowing the plaintiff to vindicate its claims before a civil court. The application of generally applicable provisions of law [concerning financial settlements between the State Treasury as the owner of land and the users of land] is out of the question in the present case. The clause in question cannot be interpreted as an undertaking by the State Treasury to satisfy any possible and unspecified claims of the plaintiff association.” 15. The relevant section of the operative part of the decision read: “A decision by the Property Commission, set up under the provisions of the Law on relations between the State and the Catholic Church in Poland, to the effect that the ownership of real property was returned to its original owner, a church entity, and which contains a ruling on the obligation to reimburse the outlays to the entity which has used such property hitherto, also rules out any possibility of bringing [before a civil court] any claims between the user and the State Treasury.” 16. On 5 December 1996 the Court of Appeal, having regard to the Supreme Court’s decision, quashed the judgment of the Regional Court and dismissed the applicant association’s action. Both parties to the proceedings appealed. 17. On 20 June 1997 the Supreme Court dismissed both parties’ cassation appeals. It noted that the applicant association’s cassation appeal was in fact directed against the Supreme Court’s decision of 27 June 1996, whereas that decision was binding on all the courts dealing with the case. 18. The relevant part of the Law of 17 May 1989 on relations between the State and the Catholic Church in Poland provides: “(1) At the request of church entities, proceedings (hereinafter called ‘regularisation proceedings’) shall be instituted with regard to the restitution of the ownership of nationalised properties. ...” “(1) Regularisation proceedings shall be conducted by the property commission ... composed of representatives designated in equal numbers by the Office for Religions [Urząd do Spraw Wyznań] and the Secretariat to the Conference of the Episcopate of Poland [Sekretariat Konferencji Episkopatu Polski]. (2) Apart from the applicant, all State and church entities concerned shall be participants in the regularisation proceedings. ... ... (5) The Commission examines cases in adjudicating groups, composed of members designated by the Office for Religions and the Secretariat to the Conference of the Episcopate of Poland, each of which shall nominate two members, and representatives of the hierarchical bodies of the participants in the proceedings, namely one representative of each body.” “The regularisation may consist of: 1. restitution of the ownership of properties ... to church entities; 2. the grant of an alternative property ... 3. the award of compensation, if neither of the solutions provided for under 1 and 2 above is possible. ...” Under section 64, if a property commission is unable to reach a conclusion and give a ruling on a request for the restoration of property, the parties to the case may bring their claims to a civil court.

dev

001-22754

ENG

TUR

ADMISSIBILITY

SINCAR v. TURKEY

Inadmissible

Christos Rozakis

The applicant, Mrs Cihan Sincar, is a Turkish national, who was born in 1957 and lives in Mardin. She is represented before the Court by Mrs Bedia Buran, a lawyer practising in Ankara. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant’s husband, Mehmet Sincar, was a member of parliament (MP) for the Democracy Party (hereinafter referred to as the DEP) at the time of the event. On 2 September 1993 unknown persons shot the brothers of the DEP’s vice president, both MPs for the same party, in Batman. One of them died and the other was injured. On 4 September 1993 the applicant’s husband, Mehmet Sincar, and a member of the DEP’s Executive Committee in Batman, who had been sent to the region to investigate these murders, were also shot dead. The Batman Public Prosecutor initiated criminal proceedings against twelve suspects under Article 146 of the Turkish Criminal Code. He subsequently declined jurisdiction in the matter and transferred the investigation file to the prosecutor of the Diyarbakır State Security Court, who brought criminal proceedings against the suspects under Article 146 of the Turkish Criminal Code, charging them with an “attempt to undermine the constitutional order of the State” in relation to the death of the applicant’s husband. The Diyarbakır State Security Court acquitted ten of the suspects on 29 November 1994 and the remaining two on 26 November 1996. On 2 October 1998, Mrs Sincar applied for and obtained a copy of the court’s decision to acquit the alleged perpetrators. On an unspecified date, the former Minister of the Interior Mehmet Ağar claimed this murder to have been carried out by a terrorist organisation, namely the Hizbullah. At the beginning of 1998, the so-called Susurluk report was produced at the request of the Prime Minister, by Mr Kutlu Savaş, the Vice-President of the Board of Inspectors of the Prime Minister’s Office. It was stated on page 31 of this report that “the murder of Mehmet Sincar had been plotted and carried out in accomplice by A.K., M.M., İ. Y., and A. D. and that following this event A.K. had signed a letter in relation to the murder”. This report was not deemed sufficient evidence by the public prosecutors to initiate criminal proceedings against the identified perpetrators. In Turkish law – for the purposes of preliminary investigations by prosecutors – criminal acts are divided into two categories; firstly those in respect of which a victim must inform the prosecutor so that an investigation can be started by the latter, and secondly, those in respect of which the victim is not required to make a complaint in order for an investigation to be started by the prosecutor (Article 151 of the Code of Criminal Procedure, hereinafter the CCP). Threat is classified as one of the crimes in the first category. Murder is classified as one of the crimes in the second category; however, this does not prevent relatives of victims from lodging criminal complaints with the authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 CCP). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation in respect of that person. However, the public prosecutor may decide not to prosecute if the evidence is clearly insufficient. 3. Right to intervene in the public prosecution. Pursuant to Article 365 of the CCP, any person who is injured by the offence may, at any phase of the investigation, intervene in the public prosecution. Those so intervening in public prosecution proceedings may also submit their personal claims for adjudication.

dev

001-60325

ENG

POL

CHAMBER

CASE OF GAWEDA v. POLAND

Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award

Elisabeth Palm;Gaukur Jörundsson

6. On 9 September 1993 the Bielsko-Biała Regional Court dismissed the applicant's request for registration of the title of a periodical, The Social and Political Monthly – A European Moral Tribunal (Miesięcznik społeczno-polityczny, europejski sąd moralny) to be published in Kęty. The court considered that in accordance with the Press Act and the Ordinance of the Minister of Justice on the registration of periodicals, the name of a periodical should be relevant to its contents. The name as proposed by the applicant would suggest that a European institution had been established in Kęty, which was untrue and would be misleading to prospective buyers. Moreover, the proposed title would be disproportionate to the periodical's actual importance and readership as it was hardly conceivable that a periodical of a European dimension could be published in Kęty. The court went on to state: “... the applicant stubbornly applies for registration of periodicals the titles of which would suggest the existence in Kęty of an institution of international character (such as the European Moral Tribunal or the World Tribunal of Morality), and when requested by the court to change the titles he declares that he will not do so.” 7. On 17 December 1993 the Katowice Court of Appeal dismissed an appeal by the applicant against this decision. The court stated, inter alia, that in the proceedings before the first-instance court the applicant had been requested to change the proposed title by deleting the term “European Moral Tribunal”, but he had refused to do so. 8. Subsequently, the applicant made a number of further applications for the registration of periodicals. He succeeded in obtaining four registrations. 9. On 6 May 1994 the Minister of Justice refused to grant leave for an extraordinary appeal against the decision of 17 December 1993, finding that it was in accordance with the law. 10. On 17 February 1994 the Bielsko-Biała Regional Court dismissed a new request by the applicant for registration of a periodical, Germany – A thousand-year-old enemy of Poland. The court noted that at a hearing on 17 February 1994 the applicant, when requested to change the proposed title so as to remove its negative character, had refused to do so. The court considered that registration of the periodical with the proposed title would be harmful to Polish-German reconciliation and detrimental to good cross-border relations. 11. The applicant appealed against this decision, submitting that it was incomprehensible and amounted to censorship. 12. On 12 April 1994 the Katowice Court of Appeal upheld the contested decision. The court observed that the title, as proposed by the applicant, suggested that the proposed periodical would concentrate unduly on negative aspects of Polish-German relations. The court considered that such a title would be in conflict with reality in that it would give an unbalanced picture of the relevant facts. The court further considered that the lower court had been justified in refusing registration on the ground that the title would be detrimental to Polish-German reconciliation and to good relations between Poland and Germany. 13. Section 20 of the Press Act of 26 January 1984 requires registration of a press title by the regional court as a prerequisite for publication of a periodical. A request for registration should contain the proposed title, the editor's address, the name of the editor-in-chief and other personal data, the name and address of the publishing house and information on how often the periodical would be published. The decision on registration is to be taken within thirty days of the date on which the request has been filed with the court. The court must refuse registration if the request does not contain the required information or if the proposed title would prejudice a right to protection of the title of any existing periodical. Section 45 of the Press Act provides that a person who publishes a periodical without the required registration is liable to a fine. 14. Section 23(a) of the Press Act authorises the Minister of Justice to issue an ordinance specifying the manner in which the press register should be run. 15. Section 5 of the Ordinance of the Minister of Justice on the registration of periodicals, as applicable at the material time, provided that registration was not possible if it would be “inconsistent with the regulations in force and with the real state of affairs” (“niezgodny z przepisami prawa lub z istniejącym stanem rzecz”). 16. On 1 November 1997 the ordinance was amended in that section 5 was deleted.

dev

001-75882

ENG

POL

GRANDCHAMBER

CASE OF HUTTEN-CZAPSKA v. POLAND

Preliminary objection rejected (ratione temporis);Violation of P1-1;Pecuniary damage - reserved;Non-pecuniary damage - financial award

Anna Wyrozumska;Christos Rozakis;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Ineta Ziemele;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristaq Traja;Luzius Wildhaber;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens;Viera Strážnická;Vladimiro Zagrebelsky

11. The applicant, who is a French national of Polish origin, was born in 1931. She lived for a long time in Andrésy, France. At present, she lives in Poznań, Poland. She owns a house and a plot of land in Gdynia, Poland. The property previously belonged to her parents. 12. Polish legislation on rent control is the result of many historical and recent factors. Legislative schemes restricting the rights of landlords and regulating increases in rent were already in operation before the Second World War. The description below of the general situation is based on the findings of the Polish Constitutional Court (Trybunał Konstytucyjny) which, on 12 January 2000, in one of its judgments concerning the constitutionality of certain aspects of the legislation on rent control, gave thorough consideration to the historical background of this legislation and the factors contributing to the preservation of restrictions dating back to an early stage of the communist regime in Poland. 13. The rent-control scheme was the consequence of the introduction of the so-called “State management of housing matters” (publiczna gospodarka lokalami) by the former communist authorities (see paragraphs 67-70 below). It was accompanied by provisions drastically restricting the amount of rent chargeable. The applicable provisions originated in the exceptionally rigid distribution of housing resources which characterised the first thirty years of the communist regime in Poland. 14. The circumstances did not change significantly after the end of the communist rule in 1989. Indeed, at the beginning of the 1990s the housing situation of Poland was particularly difficult, as was demonstrated, on the one hand, by a shortage of dwellings and, on the other hand, by the high cost of acquiring a flat. The State-controlled rent, which also applied to privately owned buildings, covered just 30% of the actual costs of maintenance of the buildings. In 1994 those social and economic factors prompted the legislature not only to maintain elements of the so-called “special lease scheme” (szczególny tryb najmu) (see paragraph 69 below) in respect of State-owned dwellings but also to continue to apply that scheme – temporarily, for a period of ten years expiring on 31 December 2004 – to privately owned buildings and dwellings. In short, the system was a combination of restrictions on the amount of rent chargeable and of limitations on the termination of leases, even in respect of tenants who did not comply with the terms of the contract. 15. The material collected by the Constitutional Court in 2000 included a report prepared by the Office for Housing and Town Development (Urząd Mieszkalnictwa i Rozwoju Miast). According to that report, in 1998, after four years of the operation of the 1994 rent-control scheme, the average rent as fixed under that scheme covered only 60% of the costs of maintenance of residential buildings. The shortfall was to be covered by landlords. The scale of the problem was considered to have been very large, since at that time 2,960,000 dwellings (25.5% of the country’s entire housing resources) were let under the rent-control scheme. That number comprised some 600,000 flats in buildings owned by private individuals. The total number of flats in Poland was estimated at about 11,600,000. Flats in privately owned buildings subject to the rent-control scheme constituted 5.2% of the country’s housing resources. The report stated, among other things: “Before ... [1994], statutory rent determined by the Cabinet covered about 30% of running maintenance costs. At present, after four years of operation of the [1994] rent-control scheme, municipalities set levels of rent covering on average 60% of maintenance costs. ... In respect of buildings owned by municipalities, the shortfall is covered by the municipalities, which frequently use for that purpose surplus derived from letting commercial premises. As regards privately owned buildings where tenants pay controlled rent, the shortfall is covered by the owners of the buildings.” 16. In 2003-04 the government, in the course of preparation of its bill amending the legislation on rent control (see paragraphs 114 et seq. below), collected a considerable amount of data describing the current general housing situation in Poland. The situation is characterised by a serious shortage of residential dwellings. According to the 2002 national population and housing census, the deficit, defined as the difference between the number of households and the number of flats, amounts to 1,500,000 flats. There is a particularly acute shortage of flats to let. 17. Data collected by the Central Statistical Office (Główny Urząd Statystyczny) on the overall financial situation of households, indicate that in the years 1998-2003 household expenses such as rent and electricity bills amounted to 14.5%-15.4% of total expenses (18.6%-19% in pensioners’ households). During the same period, between 7% and 10% of Polish households were in rent arrears (1998: 7.5%; 1999: 7%; 2000: 7%; 2002: 10%; 2003: 9%). In 2000 about 54% of the population lived below the poverty line, of which 8% were below the abject poverty line. In 2002 some 58% of the population lived below the poverty line, of which 11% were below the abject poverty line. 18. Various reports received by the Office for Housing and Town Development confirmed that the provisions relating to the protection of tenants as applicable until 31 December 2004 (see paragraphs 85-89 below) limited the availability of flats to let. In the authorities’ view, the introduction of the so-called “commercial lease” (najem komercyjny) – in other words a market-related lease – by lifting restrictions on rent increases for privately owned buildings and freeing private landlords from their obligation to provide indigent tenants with alternative accommodation upon the termination of their lease, should encourage private investors to build tenement houses designated solely for letting. 19. The Government gave various figures to indicate the number of persons potentially affected by the operation of the rent-control scheme. They stated that, according to information supplied by the Office for Housing and Town Development, the operation of the relevant legislation affected approximately 100,000 landlords and 600,000 tenants. Other sources cited by the Government indicated that the total number of persons concerned was around 100,000 landlords and 900,000 tenants. 20. The applicant’s house was built in 1936 as a one-family home. It originally consisted of a duplex flat, a basement and an attic. 21. During the Second World War, the house was occupied by officers of the German army. In May 1945 it was taken over by the Red Army, which quartered some of its officers there for a while. 22. On 19 May 1945 the head of the housing department of Gdynia City Council (Kierownik Wydziału Mieszkaniowego Magistratu Miasta Gdynia) issued a decision assigning the first-floor level of the duplex flat to a certain A.Z. 23. In June 1945 the Gdynia City Court (Sąd Grodzki) ordered the return of the house to the applicant’s parents. They began to renovate it but, shortly afterwards, were ordered to leave. A.Z. moved into the house in October 1945. 24. On 13 February 1946 the Decree of 21 December 1945 on the State management of housing and lease control (Dekret o publicznej gospodarce lokalami i kontroli najmu) came into force. Under its provisions, the house became subject to the so-called “State management of housing matters” (see paragraph 13 above). 25. In 1948, at a public auction, the authorities unsuccessfully tried to sell the house to A.Z., who was at that time employed by Gdynia City Council, an authority responsible for the State management of housing matters at the material time. At about the same time, the applicant’s parents, likewise unsuccessfully, tried to recover their property. 26. On 1 August 1974 the Housing Act (Prawo lokalowe) (“the 1974 Housing Act”) came into force. It replaced the State management of housing matters with the so-called “special lease scheme” (see paragraphs 14 above and 69 below). 27. On an unknown date in 1975 a certain W.P., who was at that time head of the housing department of Gdynia City Council (Kierownik Wydziału Spraw Lokalowych Urzędu Miejskiego), tried to buy the house from the applicant’s brother. 28. On 8 July 1975 the mayor of Gdynia issued a decision allowing W.P. to exchange the flat he was renting in another building under the special lease scheme for the ground-floor flat in the applicant’s house. That decision was signed on behalf of the mayor of Gdynia by a civil servant who was subordinate to W.P. On 28 January 1976 Gdynia City Council issued a decision confirming that under the provisions governing the special lease scheme the flat had been let to W.P. for an indefinite period. Later, in the 1990s, the applicant tried to have that decision declared null and void but succeeded only in obtaining a decision declaring that it had been issued contrary to the law (see paragraphs 44-49 below). 29. On 24 October 1975 the head of the local management and environment office of Gdynia City Council (Kierownik Wydziału Gospodarki Terenowej i Ochrony Środowiska Urzędu Miejskiego w Gdyni) ordered that the house become subject to State management (przejęcie w zarząd państwowy). That decision took effect on 2 January 1976. 30. On 3 August 1988 the Gdynia District Court (Sąd Rejonowy), ruling on an application by A.Z.’s relatives, gave judgment, declaring that, after A.Z.’s death, her daughter (J.P.) and son-in-law (M.P.) had inherited the right to rent the first-floor flat in the applicant’s house. 31. On 18 September 1990 the Gdynia District Court gave a decision declaring that the applicant had inherited her parents’ property. On 25 October 1990 the Gdynia District Court entered her title in the relevant land register. 32. On 26 October 1990 the mayor of Gdynia issued a decision restoring the management of the house to the applicant. On 31 July 1991, acting through her representative, she took over the management of the house from Gdynia City Council. Shortly afterwards, she began to refurbish the house. 33. On an unknown date in the 1990s the applicant set up a private foundation called the Amber Trail Foundation (Fundacja Bursztynowego Szlaku). Since 1991 she has been trying to make her house the seat of the foundation. 34. After taking over the management of the house, the applicant initiated several sets of proceedings – civil and administrative – in order to annul the previous administrative decisions and regain possession of the flats in her house. 35. On 16 June 1992 the applicant asked the Gdynia District Court to order the eviction of her tenants. In April 1993, on an application by the defendants, those proceedings were stayed. On 26 April 1996 the applicant’s claim was dismissed. 36. In April 1995 the applicant asked the Gdańsk Regional Court (Sąd Wojewódzki) to order Gdynia City Council to relocate the tenants living in her house to dwellings owned by the municipality. She also asked the court to award her compensation, inter alia, for the fact that the authorities had deprived her parents and herself of any possibility of living in their own house, for damage to the property and arbitrary alteration of its use, and for mental suffering. On 5 July 1996 the Regional Court ruled that, under the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych) (“the 1994 Act”), the defendant authority had no obligation to relocate the tenants to accommodation owned by the municipality. It dismissed the remainder of the claims. The applicant appealed. 37. On 17 January 1997 the Gdańsk Court of Appeal (Sąd Apelacyjny) heard, and dismissed, her appeal. It observed that no provision of the 1994 Act obliged the municipal authorities to relocate the applicant’s tenants or, at her request, to provide them with alternative accommodation (lokal zastępczy). The relevant provisions of the 1994 Act, namely section 56(4) and (7) (see paragraph 77 below), stipulated that a tenant had to vacate a dwelling only if the owner had offered him another flat he owned or the municipality had agreed to provide the tenant with alternative accommodation owned or administered by it. As regards the applicant’s claim for damages for financial loss sustained as a result of the administrative decisions, the Court of Appeal observed that such claims could be determined by the courts of law only if a claimant had first applied for compensation to the administrative authorities and the outcome of the relevant administrative proceedings had been unfavourable. It referred the applicant to the Code of Administrative Procedure (Kodeks postępowania administracyjnego), which set out the rules governing the liability of public authorities for issuing wrongful decisions. In so far as the applicant sought compensation for damage to the house and for the alteration of its use, the Court of Appeal considered that the defendant authority could not be held liable for the consequences of the laws which had previously been in force. In particular, it was not liable for the enactment of the post-war legislation which had introduced restrictive rules concerning the lease of dwellings in privately owned houses and the State management of housing matters. Nor was it liable for the implementation of the special lease scheme introduced by the 1974 Housing Act and the operation of the 1994 Act, which incorporated certain similar rules for the protection of tenants whose right to rent flats in privately owned houses had been conferred on them by administrative decisions (see paragraphs 71-72 below). Lastly, the court noted that the defendant could not be liable for any damage caused by the applicant’s tenants. 38. Subsequently, the applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). On 13 November 1997 the Supreme Court dismissed that appeal on procedural grounds. The court held that the applicant had not complied with the relevant formal requirements; in particular, she had not specified the errors of substantive civil law allegedly committed by the lower courts. 39. In October 1995 the applicant asked the Gdańsk Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) to declare null and void the decision of the head of the housing department of Gdynia City Council of 19 May 1945. By virtue of that decision, the first-floor flat in the house had been assigned to A.Z. It had also formed a basis for granting the right to lease that flat in the applicant’s house to A.Z.’s successors (see paragraphs 22-23 and 30 above). 40. On 26 June 1997 the Board rejected her application. It noted that the impugned decision had been taken pursuant to the Decree on housing commissions issued by the Polish Committee of National Liberation on 7 September 1944 (Dekret Polskiego Komitetu Wyzwolenia Narodowego o komisjach mieszkaniowych), a provision which had at the relevant time governed all housing matters. It found that the decision had not been issued by the competent public authority and, in consequence, had not been lawful. Yet the Board could not declare the decision null and void (stwierdzić nieważność decyzji) because, pursuant to Article 156 § 2 of the Code of Administrative Procedure, if more than ten years had elapsed from the date on which the unlawful decision had been made, the Board could only declare that the decision “had been issued contrary to the law” (została wydana z naruszeniem prawa). 41. The applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 15 January 1998 the court dismissed her appeal because she had not availed herself of an obligatory legal remedy in that she had not made an application to the Board for the matter to be reconsidered (wniosek o ponowne rozpatrzenie sprawy). 42. The applicant subsequently made such an application. On 23 June 1998 the Board upheld its decision of 26 June 1997. The applicant appealed to the Supreme Administrative Court. The Gdańsk Regional Prosecutor (Prokurator Wojewódzki) joined the proceedings and lodged an appeal on the applicant’s behalf. 43. On 8 June 1999 the Supreme Administrative Court dismissed both appeals. It confirmed that the impugned decision had been unlawful. It added that there had been several procedural shortcomings (for instance, the applicant’s parents had not been notified of the proceedings and had never had any opportunity to challenge the decision; in addition, no legal basis had been given for it). However, in accordance with Article 156 § 2 of the Code of Administrative Procedure, the court could not annul the decision but could only declare that it had been issued contrary to the law. In passing, the court observed that the above-mentioned procedural shortcomings could be rectified by means of reopening the proceedings. 44. In 1992 the applicant asked the Gdańsk Self-Government Board of Appeal to declare null and void the decision of the mayor of Gdynia of 8 July 1975. By virtue of that decision, W.P. had been granted the right to lease the ground-floor flat in the applicant’s house (see paragraph 28 above) 45. On 27 January 1994 the Board rejected her application. The applicant appealed to the Supreme Administrative Court. 46. On 14 June 1995 the court dismissed her appeal. It found that the flats in the applicant’s house had been let under the special lease scheme introduced by the 1974 Housing Act and that, accordingly, the mayor had been competent to issue the decision in question. It further observed that, despite some procedural errors committed by the mayor of Gdynia (which could be rectified by means of reopening the proceedings), the decision had had a legal basis and could not, therefore, be declared null and void. 47. On 17 September 1994 the applicant asked the mayor of Gdynia to reopen the relevant proceedings and to declare the impugned decision null and void. The mayor rejected her application as being lodged out of time. 48. On 29 December 1995 the Gdańsk Self-Government Board of Appeal, of its own motion, reopened the proceedings. It found that the contested decision had been made on behalf of the mayor of Gdynia by a civil servant who had been W.P.’s subordinate and that that fact in itself constituted a sufficient ground for reopening the proceedings pursuant to Article 145 § 1 (3) of the Code of Administrative Procedure. That fact had also rendered the decision unlawful. However, since more than five years had elapsed from the date on which the decision had been given, the Board could not annul it. It could merely declare that it had been issued contrary to the law, as laid down in Article 146 § 1 of the Code of Administrative Procedure. 49. The applicant appealed to the Supreme Administrative Court, alleging that the decision had never been served on the owners of the house and that it should have been declared null and void. On 28 November 1996 her appeal was dismissed. 50. On 4 October 1994 the applicant asked Gdynia City Council to reopen the administrative proceedings that had been terminated on 24 October 1975 by the decision of the head of the local management and environment office of Gdynia City Council. By virtue of that decision, the applicant’s house had become subject to State management (see paragraph 29 above). She further asked to have the decision declared null and void, submitting that it had lacked a legal basis. In particular, the house had incorrectly been classified as a “tenement house” (dom wielorodzinny), whereas in reality it was, and always had been, a one-family house and, as such, should not have become subject to State management. The decision, the applicant added, had been made solely for the personal benefit and gain of W.P., who had at that time been the head of the housing department of Gdynia City Council. In her view, it had been made to sanction the prior – and likewise unlawful – decision of 8 July 1975 whereby W.P. had acquired the right to lease the flat in her house. 51. On 7 December 1994 the mayor of Gdynia rejected her application, finding that she had lodged it outside the prescribed time-limit. On 12 June 1995 the Gdańsk Self-Government Board of Appeal upheld the mayor’s decision. Subsequently, the applicant appealed to the Supreme Administrative Court. On 14 November 1996 the court quashed both decisions because the mayor of Gdynia had not been competent to rule on the application. 52. On 27 February 1997 the Gdańsk Self-Government Board of Appeal reopened the proceedings terminated by the decision of 24 October 1975. On 28 April 1997 the Board declared that that decision had been issued contrary to the law because the owners of the house had not been notified of the proceedings. It found that Gdynia City Council had not acted with due diligence. In particular, it had made no effort to establish who had been the rightful successors to the owners of the house, while at the material time the applicant and her brother had – on a regular basis – paid the relevant taxes on the property to the City Council. Relying on Article 146 § 1 of the Code of Administrative Procedure, the Board refused to annul the decision because more than five years had elapsed from the date on which it had been given. 53. On an unspecified date in 2002 the applicant asked the Governor of Pomerania (Wojewoda Pomorski) to declare the decision of 24 October 1975 null and void. The application was referred to the Gdańsk Self-Government Board of Appeal, a body competent to deal with the matter. The Board rejected the application on 13 May 2002. It held that the matter was res judicata. 54. The parties gave differing information as to the actual usable surface area of the flats in the applicant’s house, a factor relevant for the determination of the chargeable rent. 55. The Government submitted that the usable surface area of the applicant’s house was 196 square metres. They produced an inventory done on 1 August 1991 in connection with the transfer of management of the house from Gdynia City Council to the applicant (see also paragraph 32 above). The usable surface area of the house was estimated at 196 sq. m; no net living area was indicated. There were four flats and no commercial premises. The number of habitable rooms in the flats was twelve. The surface area of those flats was estimated at 148 sq. m. The total surface area of the house was indicated as 255 sq. m. 56. The applicant stated that the total surface area of the house occupied by the tenants and for which they paid rent was about 250 sq. m. In that connection, she supplied a declaration of 28 May 2001, issued by the Gdynia Association of Landlords and Managing Agents (Zrzeszenie Właścicieli i Zarządców Domów), an agency that apparently administered her property. According to the declaration, since at least the 1950s the applicant’s house had been divided into three flats leased by means of the agreements originating in the administrative decisions described above. 57. The usable surface areas of those flats for the purposes of fixing rent were as follows: flat no. 1 = 127.38 sq. m; flat no. 3 = 67.90 sq. m; and flat no. 4 = 54.25 sq. m. Accordingly, the total usable surface area occupied by the tenants was 249.53 sq. m. 58. On an unspecified date in 1995 W.P. asked the Gdynia District Court to determine the amount of the rent to be paid by him. On 20 March 1996 the District Court gave judgment and determined the amount of rent at 33.66 Polish zlotys (PLN) per month. It ordered the applicant to pay costs in the amount of PLN 528.90. 59. According to the Gdynia Association of Landlords and Managing Agents’ declaration of 28 May 2001 (see paragraph 56 above), the amounts of rent to be paid by the applicant’s tenants were as follows: for flat no. 1 (usable surface area of 127.38 sq. m), occupied by J.P. and M.P.: PLN 500.60; for flat no. 3 (usable surface area of 67.90 sq. m), occupied by W.P.: PLN 322.65; for flat no. 4 (former attic; usable surface area 54.25 sq. m.), occupied by J.W.: PLN 188.25. Dwelling no. 2 (apparently originally the bedroom of the applicant’s parents, later used as a drying room), which had previously been used by W.P. without any legal title or authorisation and for which he had paid no rent, was at that time locked and sealed by the managing agent. W.P. was served with a notice ordering him to pay PLN 2,982.46 for the unauthorised use of the dwelling on pain of being evicted. At the hearing before the Chamber on 27 January 2004, the Government informed the Court that the rent paid by J.P. and M.P. on that date was PLN 531.63. 60. Following a request by the Chamber to produce evidence establishing the situation of the applicant’s tenants, the Government supplied a certificate issued by the Gdynia District Centre for Social Services (Dzielnicowy Ośrodek Pomocy Społecznej) on 19 February 1993. The certificate stated that W.P. had received assistance from the centre as from January 1993. He was to obtain a periodical social welfare benefit for March and May 1993. In 1992 he had received assistance for housing purposes. The certificate further stated that W.P. had earlier been assessed as having a “disability of the second degree”, the disability and its degree being subject to a medical verification in May 1993. 61. On 12 February 2004, in reply to an enquiry by the Government in connection with the present case, the Gdynia City Centre for Social Services (Miejski Ośrodek Pomocy Społecznej) stated that the applicant’s tenants, W.P., J.P., M.P. and J.W., were not receiving any assistance from the centre and they had not received any assistance from social services for the past few years, that is from 1995 onwards. 62. In reply to a question from the Chamber as to the amount of controlled rent received by the applicant from 10 October 1994 onwards, the Government stated that they had no details of the rent received by the applicant at the relevant time. However, they supplied indicators relevant for the fixing of a controlled rent, as determined by Gdynia City Council for similar houses. 63. According to this information, in December 1994 the rent per square metre was 9,817 old Polish zlotys; from January to November 1995, PLN 1.04; from December 1995 to October 1996, PLN 2.11; from November 1996 to December 1997, PLN 2.63; from January 1998 to January 1999, PLN 3.37; from February 1999 to January 2000, PLN 4.01; from February 2000 to February 2001, PLN 4.37; and from April 2002 to October 2002, PLN 4.61. 64. On 10 October 2002, following the coming into effect of the Constitutional Court’s judgment of 2 October 2002, it became possible for landlords to increase the rent up to 3% of the reconstruction value of the dwelling (see paragraphs 86, 102-04 and 113 below). From December 2002 to 30 June 2003 the relevant conversion index of the reconstruction value of the dwelling (see paragraphs 75 and 85 below) was PLN 2,525.30. From 1 July to 31 December 2003 it amounted to PLN 2,471.86. In 2004 the conversion index was fixed at PLN 2,061.21. The Government submitted that the reconstruction value of the dwellings in the applicant’s house was calculated on the basis of the following three elements: the 3% mentioned above, the usable surface area of the flats and the relevant conversion index (PLN 2,061.21). The monthly rent per square metre in the applicant’s house corresponded to 3% of the conversion index of the reconstruction value of a square metre divided by 12 months (3% x PLN 2,061.21 = PLN 61.83/12). It accordingly amounted to approximately PLN 5.15 per square metre. Having regard to the usable surface area of the house as indicated by the Government, the maximum monthly chargeable rent was PLN 1,009.40 (PLN 5.15 x 196 sq. m). Taking into account the surface area as indicated by the applicant, the relevant amount was PLN 1,285.08 (PLN 5.15 x 249.53 sq. m). 65. According to the applicant, in the years 1994-99 the free-market rent for the three flats in her house would have amounted to 1,700 United States dollars (USD) per month (USD 800 + USD 500 + USD 400 respectively, depending on the size of the flat). In the years 2000-02 the rent would have decreased to USD 1,250 per month (USD 600 + USD 350 + USD 300). In 2003 it would have been further reduced to USD 900 per month (USD 450 + USD 250 + USD 200). She stated that her prognosis as to the decrease in rent was based on such factors as the devaluation of the house owing to its age and the decreasing demand and increasing supply of flats to let on the market. 66. In their referral request of 20 May 2005, the Government informed the Court that two of the applicant’s flats had become vacant because W.P. had moved out on 2 June 2003 and J.P. and M.P. had moved out on 6 September 2004. They also stated that J.W. had recently been offered a council flat by the authorities and was about to move out. At the oral hearing, the Government said that J.W. was still living in the flat but that she was to move out in the coming weeks. On 18 April 2006 the Government informed the Court that J.W. had moved to a council flat on 15 February 2006. 67. The Cabinet Decree of 21 December 1945 on the State management of housing and lease control (Dekret z 21 grudnia 1945 r. o publicznej gospodarce lokalami i kontroli najmu), which came into force on 13 February 1946, introduced “State management of housing matters”, which also applied to dwellings or commercial premises in privately owned buildings (see paragraph 13 above). 68. Later, on 1 September 1948, the Decree of 28 July 1948 on the lease of dwellings (Dekret o najmie lokali) came into force. Under its provisions, the State authorities administered all housing matters in the public and private sectors alike. The authorities were given power to issue a decision assigning to a tenant a particular flat in a privately owned building. Those provisions also laid down rules concerning rent control. 69. The 1974 Housing Act introduced the “special lease scheme”, which replaced “State management of housing matters”, although it did not significantly change the principles on which the right to lease was based. For instance, the right to lease a flat in a building subject to “State management” did not originate in a civil contract but was conferred on a tenant by an administrative decision. The owner of such a building had no say as to who could live in his or her house and for how long. The special lease scheme applied to residential and commercial premises. 70. Decisions on “allocation of a dwelling” (przydział lokalu) were, for all practical purposes, tantamount to “granting” a right to lease a dwelling (or commercial premises) under the special lease scheme. They were issued by the relevant departments of the local council (depending on which of the many reforms of the system of public administration was being carried out, those departments were called variously “housing departments”, “departments of local management and environment”, “dwelling departments”, etc.). 71. The Act came into force on 12 November 1994. It was intended to bring about a reform of the law governing the relationship between landlords and tenants. Although it abolished the “special lease scheme” and relaxed the control of rent by, for instance, allowing rents of commercial premises to be market-related and determined freely, as well as allowing rents for residential dwellings to be fixed freely in civil contracts between landlords and tenants, it maintained the control of rent of residential dwellings in which the right to lease a flat had earlier been conferred on a tenant by an administrative decision. 72. The 1994 Act introduced the system of “controlled rent” (czynsz regulowany) and set out detailed regulations on the calculation of rent for residential dwellings which had so far been subject to the “special lease scheme”. The provisions concerning controlled rent, the ratio legis of which was to protect tenants in a difficult financial situation during the transition from a State-controlled to a free-market housing system, were to remain in force until 31 December 2004. The 1994 Act maintained, albeit with slightly modified wording, the rules concerning the protection of tenants against the termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease. 73. Section 8(1) of the Act read: “1. In the event of a tenant’s death, his or her descendants, ascendants, adult siblings, adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation, shall, on condition that they lived in the tenant’s household until his or her death, succeed to the tenancy agreement and acquire the tenant’s rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord. This provision shall not apply to persons who, when the [original] tenant died, had title to another residential dwelling. 2. In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.” 74. Section 20 set out the following: “(1) Under the lease agreement the tenant is obliged to pay the rent. (2) In the cases provided for by the present statute, the rent shall be determined in a manner specified in this Act (controlled rent). In other cases the rent shall be determined freely. (3) The rent shall be determined with reference to the physical state of the building in question, its surface area and the condition of the flat and other factors which increase or reduce the flat’s value. (4) The parties shall specify the rent in their agreement.” 75. Section 25, which, pursuant to section 56(2) (see paragraph 77 below), also applied to privately owned flats subject to the previous special lease scheme, provided: “(1) Subject to the reservation set forth in section 66, controlled rent shall be paid by tenants of dwellings belonging to municipalities, the State Treasury, State legal entities or legal entities administering dwellings for non-profit-making purposes, except for housing cooperatives. (2) The maximum controlled rent must not exceed 3% of the reconstruction value of the dwelling [wartość odtworzeniowa lokalu] per annum. (3) The reconstruction value of the flat shall be the product of its usable area and the conversion index of 1 square metre of the usable area of the building. (4) The [relevant] Governor shall, by means of an ordinance issued quarterly, determine the conversion index of 1 square metre of the usable surface area of the residential building.” 76. Under the transitional provisions of the Act the right to lease a flat conferred on a tenant by an administrative decision was to be treated as a lease originating in a lease agreement concluded under the relevant provisions of the Civil Code. Tenants of such flats were to pay controlled rent until 31 December 2004. Under section 55 of the Act the lease of a flat on the basis of an administrative decision issued under the 1974 Housing Act was to remain in force. 77. Section 56 laid down further regulations in respect of such “administrative leases”. Its relevant parts provided: “(1) Under this Act, a lease which originated in an administrative decision on the allocation of a flat, or had another legal basis [that existed] before State management of housing or the special lease scheme was introduced in a given locality, shall be treated as a contractual lease signed for an indefinite period under the provisions of this Act. (2) Until 31 December 2004 inclusive, the rent for flats let in the manner specified in subsection (1) in dwellings owned by natural persons shall be determined in accordance with the provisions concerning controlled rent. ... (4) If an owner referred to in subsection (2) intends to dwell in his flat and with that intention has vacated the flat which he has hitherto rented ... from the municipality, the tenant shall be obliged to vacate the owner’s flat and move into the flat [offered to him], provided that the [condition of] the flat in question complies with the requirements laid down by this Act in respect of alternative accommodation. If such is the case, the owner may terminate the lease under section 32(2). ... (6) If the owner’s adult child or parents are to dwell in his flat, subsection (4) ... shall apply by analogy. (7) If the landlord has offered the tenant alternative accommodation which he or she owns himself or if, at the owner’s request, such alternative accommodation has been provided by the municipality, subsection (4) shall apply by analogy.” 78. Section 9 of the Act set out a detailed list of landlords’ duties under a tenancy. It applied both to landlords letting flats for a freely determined, market-related rent and to landlords receiving controlled rent. It also listed the types of maintenance work to be carried out by landlords under lease agreements. The relevant parts of that section provided: “(1) The landlord shall ensure that the existing technical facilities in the building are in working order; shall enable the tenant to use lighting and heating in the dwelling; shall ensure that the dwelling is supplied with cold and hot water; and shall ensure the proper functioning of lifts, the collective aerial, and other facilities in the building; ... (3) The landlord shall, in particular: 1. maintain in working order and keep clean any shared premises and facilities in the building; the same should apply to the vicinity of the building; 2. carry out repairs in the building and its dwellings and facilities, and restore any building which has been damaged, regardless of the cause of such damage; however, the tenant shall bear the costs of repairing damage for which he is liable; 3. carry out repairs in the dwellings, repair or replace installations and technical facilities and, in particular, carry out repairs for which the tenant is not responsible; in particular, he shall: (a) repair and replace the water supply installation in the building and the gas and hot water supply installations, and repair and replace the sewage, central heating (including radiators), electricity, telephone and collective aerial installations – the latter, however, without fittings; (b) replace or repair furnaces, window and door frames, floors, floor linings and plasterwork. ...” 79. In practice, if such a tenant had not fallen into more than two months’ arrears of controlled rent, the lease could not be terminated unless he had used the flat “in a manner inconsistent with its function”, damaged the flat or the building, repeatedly and flagrantly disturbed the peace and public order or had sublet the flat without obtaining the prior consent of the landlord (sections 31 and 32 of the 1994 Act). However, even if a tenant had fallen into rent arrears exceeding two months, a landlord was obliged to notify him in writing of his intention to terminate the lease agreement and to grant him a period of one month to pay off both the arrears and the current month’s rent. If, following the termination of the lease agreement, the tenant did not vacate the flat (which was very often the case, given the acute shortage of cheap dwellings for rent and the high costs involved in buying a flat), the landlord had to bring an action for eviction against him. If an eviction order was issued, the landlord, in order to have it enforced and the flat vacated, had to ask the relevant municipality to provide the tenant with “substitute accommodation”. As there was a very short supply of such accommodation, the enforcement of the eviction order and vacation of the premises could take many years. Once an eviction order had become final, the tenant, as long as he lived in the flat, was obliged to pay so-called “compensation for extra-contractual use” (odszkodowanie za bezumowne korzystanie), equal to 200% of the current rent. If that sum did not cover the losses incurred by the landlord in connection with maintenance of the flat, he could sue the tenant for supplementary compensation. 80. On 12 January 2000 the Constitutional Court, ruling on a point of law referred to it by the Supreme Court, declared unconstitutional section 56(2) read in conjunction with, inter alia, section 25 of the 1994 Act (see paragraphs 75 and 77 above). It found that those provisions were in breach of Article 64 § 3 (admissible limitations on property rights) read in conjunction with Article 2 (rule of law and social justice) and Article 31 § 3 (principle of proportionality) of the Constitution (see paragraphs 107 and 109-10 below), and Article 1 of Protocol No. 1, because they placed a disproportionately heavy and, from the point of view of the permitted restrictions on the right of property, unnecessary financial burden on the exercise of property rights by landlords owning flats subject to rent control. The court ruled that the unconstitutional provisions should be repealed on 11 July 2001. That in practice meant that by that date Parliament had to enact new, constitutional, legislation dealing with the matter. 81. Before giving its judgment, the Constitutional Court asked the President of the Office for Housing and Town Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) for information concerning the implementation of the 1994 Act and, more particularly, the manner of determining the “conversion index of 1 square metre of the usable surface area of the residential building” as referred to in section 25 of the Act. According to the information received, levels of controlled rent had never reached the statutory 3% of the reconstruction value referred to in section 25(2) but were determined by the municipalities at 1.3% of that figure. As a result, the levels of controlled rent covered merely 60% of the maintenance costs of residential dwellings. The rest had to be covered by landlords from their own resources. That did not allow them to put aside any savings for repairs. 82. In the judgment, the Constitutional Court attached much importance to the fact that the relevant regulations concerning controlled rent had brought about a situation whereby the expenses incurred by owners of dwellings were much higher than the rent paid by tenants and that the former “had no influence on how the rates of controlled rent were determined”. In its view, that shortfall of the rent actually received had resulted in the progressive reduction of the value of tenement houses and this, with the passage of time, entailed consequences similar to expropriation. The judgment contains extensive reasoning, the gist of which can be summarised as follows. “One of the essential elements of the right of property is the possibility of deriving profit from the object of ownership, which is of particular importance in a market economy. The legislature may regulate and limit this right in view of, among other things, the social context of enjoyment of property and duties towards the community that are inherent in ownership. In exceptional cases, ... it is even [acceptable] to exclude temporarily the possibility of ... deriving an income from goods that are the subject of ownership. However, if the limitations on a property right go even further and the legislature places an owner in a situation in which his property necessarily inflicts losses on him, while at the same time imposing on him a duty to maintain the property in a specific condition, it can be said that there is a limitation which impairs the very essence of that right. ... The Constitutional Court observes that the applicable provisions very seriously limit the possibility for a landlord to use and dispose of his dwellings, as referred to in section 56(1) of the 1994 Act. In particular, under this section all earlier tenancy relationships, in so far as they originated in administrative decisions on the allocation of a dwelling ... were transformed into contractual leases for an indefinite period. ... The Constitutional Court will not assess the compatibility of those regulations with the Constitution, as this is not the object of its ruling. It merely observes that, against that background, the owner of a building is practically deprived of any influence on the choice of tenants in his building and on whether the lease relationships with those persons should continue. ... Thus, the possibility [for a landlord] to enjoy and dispose of property is very considerably limited. While it is not totally extinguished, as he may still sell his building (dwelling) or take out a mortgage on it and there are no restrictions on succession rights, the exclusion of the owner’s right to dispose of dwellings subject to the provisions of the 1994 Act results in the depreciation of the market value of the building. By the same token, other attributes which have so far not been taken away from the owner, such as the possibility of enjoying and disposing [of his property], are substantially reduced and his property right becomes illusory. At the same time, the legal provisions impose on the owner of the building a number of onerous duties ... Not only do most of the applicable laws impose specific duties on the owner but they also provide for specific penalties for failure to comply with those duties or to discharge them properly. ... The Constitutional Court considers that the 1994 Act and, especially, its practical application have not secured a sufficient mechanism for balancing the costs of maintaining a building, its equipment and surroundings and the income from controlled rent. ... The Constitutional Court considers it necessary to draw attention to two further points which are relevant for the situation of the landlord. Firstly, the inadequacy of controlled rent vis-à-vis real expenses for maintenance of a building does not allow ... [landlords] to put aside savings for repairs and for keeping the building in a good condition. As a result, the tenement houses are gradually losing value. In terms of property rights, this should be perceived as a process of gradual deprivation of this right, leading, with the passage of time, to results similar to expropriation. Also, it has a general impact on the community because many tenement houses are approaching the time of their ‘technical death’ and, in consequence, not only will the owner lose his property but tenants will also lose the possibility of housing, which will hardly be compatible with Article 75 § 1 of the Constitution. Secondly, the inadequacy of controlled rent vis-à-vis real expenses for maintenance of a building has not been duly recognised by the tax laws ... [Under those laws], landlords are treated in the same way as businessmen or persons letting dwellings for a profit and must bear the financial consequences of all losses caused by the lease of their dwellings. ... [As regards the principle of proportionality laid down in Article 31 § 3 of the Constitution] ... it may be justified to fix rent in such a way that it will not be disproportionate to the financial standing of tenants, so that it will be possible for them to maintain a decent standard of living (or at least a minimum standard) after paying the rent. Thus, it is in conformity with the contemporary perception of a ‘social State’ to demand some sacrifice from all members of society for the benefit of those who cannot provide subsistence for themselves and their families. By the nature of things, the extent of that sacrifice depends on the level of income and imposes a heavier burden on those who are better off. By the nature of things, the owners of property may be required to make sacrifices, according to the general principle that ‘ownership entails obligations’. However, the distribution of burdens among specific members of society cannot be arbitrary and must maintain rational proportions. In the circumstances obtaining in Poland, under Article 31 § 3 it may be justified to maintain the provisions limiting landlords’ property rights and, more particularly, excluding unrestricted freedom in fixing rates of rent and other charges collected from tenants. ... It may still – in any event in the transitional period – be justified to impose wider restrictions on property rights, precluding the freedom to derive profit by fixing levels of rent in such a way as to cover only the costs of maintenance and upkeep of the building. However, an assessment of the 1994 Act leads to the conclusion that the applicable restrictions do not stop there. The present regulations deliberately set the levels of controlled rents below the costs and expenses actually incurred by owners. That, in itself, would not necessarily have had to be considered unconstitutional had there been any parallel legal mechanism compensating for incurred losses. No such mechanisms have been set up. In consequence, the applicable provisions are based on the premise that property must – until the end of 2004 – entail losses for the owner and that, at the same time, the owner has a duty to incur expenses to maintain his property in a particular condition. That means that the 1994 Act placed the main burden of the sacrifices that society had to make for tenants, or at least for tenants in a difficult financial position, on the owners of property. Besides, other remedies – such as, for instance, subsidising from public funds the costs of maintaining and repairing buildings referred to in section 56(1), ensuring full recognition in the tax regulations for losses and expenses incurred by landlords and making the level of rent dependent on the tenant’s income – have not been employed. Instead, the simplest means (being apparently the cheapest in social terms) have been applied, namely setting a low maximum level of rent and allowing the municipalities to make exceptions to that level. Consequently, it has been assumed that owners will cover the remaining costs of maintaining their property out of their own pockets. No proportionality whatsoever has been maintained in respect of the distribution of burdens (sacrifices) among the owners and the other members of society. The Constitutional Court would stress once again that in the present context there is a constitutionally acknowledged necessity to protect the rights of tenants ... and this may be reflected in, among other things, provisions fixing a maximum level of rent. However, there is no constitutional necessity to afford them such protection mostly at the expense of private individuals – the owners of dwellings – because the duty to help the underprivileged and [the duties inherent in] social solidarity are incumbent not only upon those persons. It is possible to adopt other legal solutions so as to secure at the same time the necessary protection to tenants and the minimum financial means needed to cover the requisite costs to the landlords. ... It is not for the Constitutional Court to indicate concrete solutions and to determine the ratio of costs to be incurred by tenants, landlords and the community as a whole. However, this Court considers that there are no constitutional considerations which justify imposing the greater part of those costs on the landlords. ... Consequently, section 56(2) is incompatible with the Constitution. A limitation on the right of property ... which is not ‘necessary’ does not satisfy the constitutional requirements of proportionality. [Other considerations] The finding that section 56(2) infringes the principle of proportionality makes it unnecessary for the Constitutional Court to determine whether that provision also infringes the very essence of the right of property since [a further finding to that effect] will not affect the merits of the ruling. It should merely be noted in passing that the question whether the ‘essence’ of the right of property has been preserved must also be assessed ... against the background of the combination of existing limitations on this right. ... The manner in which [rent control] has been effected by section 56(2) taken together with other provisions regarding privately owned buildings has [resulted] in the owners being deprived of even the slightest substance of their property rights. It is the Constitutional Court’s opinion that, in consequence, the right to derive profit from property, which is an important element of the right of property, has been destroyed and, at the same time, the second element, the right to dispose of one’s property, has been stripped of its substance. In consequence, the right of property has become illusory and unable to fulfil its purpose in the legal order based on the principles listed in Article 20 of the Constitution [principles of social market economy, economic activity, private ownership, solidarity, dialogue and cooperation]. [As regards the constitutional aspects of the situation of tenants] A kind of obligation has been placed on the legislature to ensure that up to 31 December 2004 tenancy relationships concerning municipal dwellings and [privately owned] dwellings should retain their present form, including the level of rent [3% of the reconstruction value of the dwelling] ... The Constitutional Court considers that, having regard to the principle of maintaining citizens’ confidence in the State and the law made by it and the principle of legal certainty, which ensue from the rule of law laid down in Article 2 of the Constitution and are binding on the legislature, renouncing that obligation will be admissible only in the event of exceptional public necessity. At present, there is no such necessity ... It should be noted in passing that setting a time-limit for the operation of the rent-control scheme in buildings owned by natural persons also places an obligation on the legislature – for the benefit of landlords – to repeal the scheme in its present form by the end of 2004. This obligation should also be seen from the perspective of the principle of maintaining citizens’ confidence in the State. [Final considerations] The constitutional inadmissibility of setting the income received by landlords below a certain minimum does not automatically mean that the rent chargeable to tenants has to be increased, because that problem can be resolved by allocating public financial resources.” 83. In a judgment of 10 October 2000, the Constitutional Court held that section 9 of the 1994 Act (see paragraph 78 above), laying down landlords’ obligations, was incompatible with the constitutional principles of the protection of property rights and social justice because, in particular, it placed a heavy financial burden on them, a burden which was in no way proportionate to the income from controlled rent. The Constitutional Court ruled that that provision should be repealed by 11 July 2001. 84. Following the Constitutional Court’s rulings of 12 January and 10 October 2000, Parliament adopted a new law governing housing matters and relations between landlords and tenants. The relevant statute – that is to say, the Law of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) (“the 2001 Act”) – came into force on 10 July 2001. It repealed the 1994 Act and replaced the previous scheme of controlled rent with another statutory rent-control mechanism that restricted the possibility for landlords to increase levels of rent. The 2001 Act was then successively amended. The most important amendments, adopted by Parliament on 17 and 22 December 2004, came into force on 1 January 2005 (see paragraphs 124-32 below). 85. Section 9 of the 2001 Act listed situations where a landlord could increase rent. The relevant parts of that provision, in the version applicable until 10 October 2002 (see paragraph 102 below), read as follows: “(1) Increases in rent or other charges for the use of a dwelling, apart from charges that do not depend on the landlord [e.g. those for electricity, water, central heating, etc.] may not be made more often than once every six months; (2) If a landlord increases other charges that do not depend on him, he shall be obliged to provide the tenant with a table of charges and the reasons for the increase; (3) In a given year the increase in rent or other charges, except for charges that do not depend on a landlord, shall not exceed the average general yearly increase in prices for consumer goods and services in the previous year in relation to the year preceding that year by more than: 1. 50% – if the annual rent does not exceed 1% of the reconstruction value of the dwelling; 2. 25% – if the annual rent is higher than 1% but not more than 2% of the reconstruction value of the dwelling; 3. 15% – if the annual rent is higher than 2% of the reconstruction value of the dwelling. Information on the increase in prices referred to in the first sentence [of this subsection] shall be communicated in official bulletins of the President of the Central Statistical Office; ... (8) The reconstruction value of a dwelling shall be the product of its usable area and the conversion index of the reconstruction cost of 1 square metre of the usable area of the residential building. ...” 86. A further restriction on rent increases by landlords followed from section 28(2) of the 2001 Act, which provided that controlled rent could not exceed 3% of the reconstruction value of the flat. That provision was in force until 31 December 2004, the deadline that had already been set under the 1994 Act (see paragraph 77 above). Section 28(2) read: “Until 31 December 2004, in all tenancy relations subsisting before the date of entry into force of this Act, the level of rent in respect of dwellings that were subject to the controlled-rent scheme on the date of the entry into force of this Act, may not exceed 3% of the reconstruction value of the dwelling per year.” 87. Section 11 of the 2001 Act listed situations in which a landlord could terminate a lease agreement that originated in an administrative decision. Section 11(1) and (2) read in its relevant parts as follows: “(1) If a tenant is entitled to use a dwelling for rent, the landlord may give notice only for reasons listed in this provision ... Notice should, on pain of being null and void, be given in writing. (2) The landlord may give one month’s notice effective at the end of a calendar month, if: 1. the tenant, despite a reminder in writing, still uses the dwelling in a manner contrary to the terms of the agreement or in a manner inconsistent with its function, thus causing damage; or if he or she has damaged equipment designed for the common use of residents; or if he or she has flagrantly or repeatedly disturbed the peace, thus severely upsetting [czyniąc uciążliwym] the use of other dwellings; or 2. the tenant has fallen into more than three months’ arrears of rent or other charges for the use of the dwelling and, despite being informed in writing of the landlord’s intention to terminate the agreement and given one month to pay off both the arrears and the current month’s rent, has not paid those amounts; or 3. the tenant has sublet the flat or part of it, or allowed it, or part of it, to be used free of charge by another without the landlord’s authorisation; or 4. the flat used by the tenant has to be vacated in view of the impending demolition or substantial renovation of the building ... 88. Under section 11(3), a landlord who received rent which was lower than 3% of the reconstruction value of the dwelling could terminate the agreement if the tenant had not lived in the flat for more than twelve months or if he had title to another flat situated in the same town. Section 11(4) provided that a landlord could terminate the agreement with six months’ notice if he intended to dwell in his own flat and had provided the tenant with “alternative accommodation” (lokal zastępczy) or the tenant was entitled to a dwelling which met the conditions for “alternative accommodation”. Under section 11(5), a landlord could terminate the agreement with three years’ notice if he intended to dwell in his flat but had not provided the tenant with any “substitute accommodation”. 89. However, section 12(1) further limited the possibility of terminating leases. It stated that if a landlord intended to terminate a lease on the grounds mentioned in section 11(2)(2) (rent arrears unpaid despite the fact that a warning notice had been served and a further time-limit had been set for payment) and if the tenant’s income would entitle him to obtain a lease on “social accommodation” (lokal socjalny) belonging to the municipality, no notice could be given unless the landlord had proposed a settlement to the tenant concerning the arrears and running charges. As regards situations where, despite the termination of the lease agreement, the tenant did not vacate the flat, the landlord had to – as under the previous regulations – bring an action for eviction against him and, even if he obtained an eviction order, could not repossess the flat until the tenant had obtained a substitute dwelling from the municipality. 90. The 2001 Act, in the version applicable up to 1 January 2005, did not contain any specific provisions setting out the duties of landlords and tenants with regard to maintenance and repairs of dwellings and residential buildings. Those issues were governed partly by the relevant provisions of the Civil Code (which applied in so far as a given matter had not been addressed by the 2001 Act) and partly by the Construction Act of 7 July 1994 (Prawo budowlane) (“the Construction Act”), which lays down the general duties of owners of buildings. 91. Article 662 of the Civil Code, which lays down a general rule, reads in its relevant part: “1. The landlord should give the object [of a lease] to the tenant in a usable state and should keep it in such a state for the duration of the lease. 2. Minor repairs related to the normal use of the object [of the lease] are incumbent on the tenant.” 92. Article 675 of the Civil Code, in its relevant part, reads: “1. After the termination of a lease, the tenant shall be obliged to return the object [of the lease] in a condition not worse [than when he took possession of it]; however, he or she shall not be responsible for any deterioration of the object caused by reasonable wear and tear.” 93. Article 681 lists minor repairs for which a tenant is responsible. It reads as follows: “Minor repairs for which the tenant is responsible are, in particular: minor repairs of floors, doors and windows, painting of walls and floors and the inner side of the flat’s entrance door, as well as minor repairs to installations and technical equipment that enable the use of lighting, heating, the water supply and the sewage system.” 94. Section 61 of the Construction Act provides: “The owner or manager of a building shall be obliged to maintain and use the building in accordance with the rules set out in section 5(2).” Section 5(2) states: “The conditions for use of a building shall be secured in accordance with its purpose, in particular in respect of: (a) the water and electricity supply and, if need be, the supply of heating and fuel, regard being had to their effective use; (b) sewage, waste disposal and rainwater drainage.” 95. The relevant part of Article 691 of the Civil Code provides: “1. In the event of a tenant’s death, the following persons may succeed to the tenancy agreement: his or her spouse if the latter has not been a party to that agreement, his or her children, his or her spouse’s children, any other persons to whom he was obliged to pay maintenance, and a person living with the tenant in de facto marital cohabitation. 2. The persons referred to in paragraph 1 shall succeed to the tenancy agreement if they lived in the tenant’s household until his or her death. 3. If there are no persons in the categories referred to in paragraph 1, the lease agreement shall expire.” 96. On 11 December 2001 the Ombudsman (Rzecznik Praw Obywatelskich) made an application to the Constitutional Court and asked, inter alia, that section 9(3) of the 2001 Act (see paragraph 85 above) be declared incompatible with the constitutional principle of the protection of property rights. The Ombudsman referred to numerous complaints he had received from landlords, who claimed that levels of rent as determined under that section did not cover the basic maintenance costs of residential buildings. He also submitted that the recent rules for the determination of rent put landlords at a bigger disadvantage than the rules which had been laid down in the 1994 Act and which had already been repealed as being unconstitutional. He criticised the legislation on the ground that it was exceptionally inconsistent. He referred, in particular, to the – in his view erroneous – statutory correlation between rent increases and the increase of prices for consumer goods and services, which were not related in reality to the costs of maintaining a building. He added that there were still no provisions to allow the landlords to recover losses incurred in connection with expenses for the maintenance of property. 97. The representatives of Parliament and the Prosecutor General (Prokurator Generalny) asked the Constitutional Court to reject the application. 98. The Constitutional Court invited organisations of landlords and tenants to take part in the proceedings and submit observations in writing. The Polish Association of Tenants, the Polish Union of Property Owners (Polska Unia Właścicieli Nieruchomości) and the All-Polish Association of Property Owners (Ogólnopolskie Stowarzyszenie Właścicieli Nieruchomości) filed their pleadings on 16, 17 and 18 September 2002 respectively. 99. The Polish Union of Property Owners supplied considerable statistical material, showing that the level of controlled rent represented on average around 1.5% of the reconstruction value of the building, which in turn amounted to some 40% of the costs of maintenance of residential buildings. They presented a sample calculation of monthly rent based on the average reconstruction value, the average size of a flat and the average gross income. Assuming that the average reconstruction value was PLN 2,200, that 1.5% of that value was the average maximum reached by controlled rent and that the average flat had a surface area of 40 sq. m, the average monthly rent amounted to PLN 110. That amount, they stressed, represented 5% of the average gross income, whereas, according to them, in European Union countries rent accounted for 25 to 30% of the average gross income. 100. The All-Polish Association of Property Owners submitted, among other things, that the impugned legislation was in breach of the constitutional principle of proportionality because a group of some 100,000 landlords had to bear the main burden of social protection afforded by the Polish State to about 900,000 tenants, without any financial support from some 15,000,000 Polish taxpayers. 101. The Polish Association of Tenants considered that the contested provisions were compatible with the Constitution. It drew attention to the fact that a large group of tenants, especially those who had been granted the right to a lease by means of administrative decisions, were in a poor financial position. It stressed that during the period of State management of housing matters those tenants had made investments and had thereby contributed to the maintenance costs of buildings, even though they had not been legally obliged to do so. At the hearing, in reply to questions from the judges, the President of the Polish Association of Tenants admitted that tenants paying controlled rent also included well-off persons, in respect of whom an increase in rent would be justified. 102. On 2 October 2002 the Constitutional Court, sitting as a full court, declared section 9(3) of the 2001 Act unconstitutional as being incompatible with Article 64 §§ 1 and 2 and Article 31 § 3 of the Constitution (see paragraphs 109 and 110 below). The provision was, accordingly, repealed. The repeal took effect on 10 October 2002, the date of the publication of the judgment in the Journal of Laws (Dziennik Ustaw). 103. In the reasoning of its judgment, the Constitutional Court extensively cited its judgment of 12 January 2000 (see paragraphs 80-82 above). In conclusion, it held that the fact that the 2001 Act had abolished the scheme of rent control had not improved the situation of landlords because, instead, it had introduced a defective mechanism for controlling increases in rent. In its opinion, section 9(3) had not only “frozen” the disadvantageous position of landlords, a situation which had already been found to be incompatible with the Constitution, but had also, owing to the changing economic circumstances, significantly reduced any possibility of increasing rent to cover expenses incurred by them in connection with the maintenance of property. The court repeated what it had already stated in its judgment of 12 January 2000, namely that the relevant provisions placed the main burden of the sacrifices that society had to make for the benefit of tenants in a difficult financial position on the owners of property. It went on to find that section 9(3) perpetuated the state of a violation of property rights that had subsisted under the 1994 Act, especially as landlords had not been relieved of any of their previous duties in respect of maintenance of property. 104. The main thrust of the Constitutional Court’s reasoning was as follows: “During the transition from controlled rent to contractual rent it is necessary to control the increase in rent. ... In most European countries legislative bodies exercise control over rent increases. The introduction of such a mechanism into Polish law seems to be particularly justified and the need for it follows quite evidently from the shortage of flats and the absence of a lease market which would influence rates of rent. This very low supply of flats for rent has caused a situation in which tenants are exposed to undue demands from landlords. Hence there is a need to regulate rent increases. While recognising this necessity, the Constitutional Court is convinced that the mechanism introduced by the impugned provision is defective and is objectively inappropriate for accomplishing the aims pursued by the legislature. ... To begin with, the Constitutional Court will examine the impact of the operation of section 9(3) of the 2001 Act on landlords who were subject to controlled rent under the 1994 Act. In this Court’s view, the contested provision has not only ‘frozen’ the disadvantageous position of landlords subsisting under the 1994 Act, a situation which was already found to have been incompatible with the Constitution, but has also actually aggravated that situation on account of changing economic circumstances. ... At the time when the present legislation came into force, tenants paid rent determined by the municipalities. [The rent paid], according to the information supplied by the Office for Housing and Town Development, covered merely 60% of the costs of maintenance of residential buildings. The 2001 Act did not increase rent to the level that could have been established according to the principles set out by the Constitutional Court in [the judgment of 12 January 2000]. Nor did the legislature give landlords an opportunity to increase rent to a level ensuring recovery of their expenses. The 2001 Act has frozen rates of rent and fixed them as a reference level for the calculation of future increases. ... In the Constitutional Court’s opinion, in order to arrive at reasonable levels of rent it is necessary to take one of the following two measures: either a one-off increase in deflated rates of controlled rent, accompanied by a restrictive protection of tenants against further increases or, while freezing the applicable rates, permitting considerable increases in relatively rapid succession until an acceptable level has been reached. However, the legislature fixed an unreasonably low basic rent and allowed only strictly regulated increases, correlated with the inflation rate. The legislature did not take into account the fact that the rate of inflation was constantly declining, which means that permissible increases have been insignificant, amounting merely to a few percentage points of the basic rent and giving no opportunity, for purely mathematical reasons, to reach levels that would ensure profitability, or at least recovery of maintenance costs. The decrease in the inflation rate, although a generally positive sign of economic stability, has resulted in the stagnation of rents at low levels. The deterioration of the situation of landlords receiving controlled rent is also shown by a comparison of rent increases under the 1994 Act with increases permissible under the 2001 Act. As transpires from information supplied by the Office for Housing and Town Development [in respect of the operation of the 1994 Act], at the relevant time, municipalities raised controlled rent annually to a significant extent: in 1996, when the inflation rate was about 20%, by 30% on average, but in 1997, when the inflation rate was 13%, by 31%. The pace of transition to reasonable levels of rent was faster than at present, if only because municipalities, themselves owning residential buildings, had a strong interest in securing genuine increases in rent. Finally, the previous regulations gave landlords the hope of relaxing rent policy. Irrespective of the rates of controlled rent imposed on them by municipalities, they knew that from 2005 they would be able to negotiate rents freely. However, that encouraging prospect was wiped out by section 9(3) of the 2001 Act. Even though the ceiling of 3% will no longer apply after [31 December] 2004, given the provision of section 9(3), this ceiling will not be reached in reality. In the Constitutional Court’s view, the above circumstances give sufficient grounds to find that the situation of landlords who formerly received controlled rent is now unquestionably less favourable than it used to be under the 1994 Act. ... [O]n the contrary, section 9(3) has perpetuated the violation of the right of property. At this point, it is necessary to determine how the landlords’ situation looks in other respects, apart from the restrictions on rent increases. If, following the ... judgment of 12 January 2000, the legislature had significantly changed any aspect of the legal position of landlords, thereby compensating for losses resulting from reduced rent, the evaluation of levels of rent in the present case would have had to be based on other criteria than those referred to by this Court in 2000. Since 12 January 2000 there have been no changes to legislation, apart from the enactment of the 2001 Act, which seriously aggravated the situation of landlords. They still bear the burden of obligations imposed by the Construction Act, whose non-fulfilment, as stressed by the Ombudsman, is subject to penalties. There have been no changes to regulations on income tax, at least in respect of deductions from tax (or from taxable income) of amounts spent on the maintenance of buildings in which flats are let to tenants. Nor has the legislature introduced preferential loans for repairs. ... The Constitutional Court also points out that the 2001 Act has not materially improved the situation of landlords in respect of termination of leases. ... Accordingly, it is fully justified to rely on this Court’s findings in respect of section 56(2) of the 1994 Act. Even though the provisions under consideration have changed, and the Court is now considering completely different legal instruments (control of rent increase as opposed to the scheme of rent control under the 1994 Act), the core of the dispute and the issues under consideration remain essentially the same, namely the situation of landlords on whom the legislature has imposed reduced levels of rent. In addition, section 9(3) leads to a difference in the treatment of landlords, depending on whether they are parties to lease relationships formerly governed by the rent-control scheme, or to lease contracts based on freely determined rents. As shown above, in practice the rent increase mechanism adversely affects the first group of landlords and, at the same time, unjustifiably and at the tenant’s expense, favours the second group. In view of the foregoing, the Constitutional Court finds that the [operation of] the contested provision is tantamount to the continued violation of the right of property vested in a specific group of landlords, namely those who entered into a lease relationship by virtue of administrative decisions on the allocation of a dwelling, or on another basis, prior to the introduction of State management of housing matters in a given municipality. Not only did the legislature fail to adjust rates of controlled rent, despite their having been found to be unconstitutional, but in fact, through the introduction of restrictive provisions on rent increases, it practically froze such rents at levels that cannot be regarded as consistent with constitutional guarantees of the right of property. ... It is worth reiterating, having regard to the [judgment of 12 January 2000], that the restrictions in question are undoubtedly guided by the need to protect public order and the rights of other persons, namely tenants. However, according to the Constitutional Court’s case-law, Article 31 § 3 of the Constitution requires restrictions on the rights guaranteed therein to be necessary. In respect of the rent [control scheme], the Constitutional Court qualified as ‘necessary’ – at least during the transitional period – the restriction on the right of property ‘precluding the freedom to derive profit, by fixing levels of rent in such a way as to cover only the costs of maintenance and upkeep of the building’. A reduction below that minimum was seen by this Court as unconstitutional. Placing the financial burden of subsidising rent on a single social group, namely landlords, was also considered to have been unconstitutional since ‘the duty to help the underprivileged and [the duties inherent in] social solidarity are incumbent not only upon those persons’. The Constitutional Court envisaged and still envisages the possibility of applying other legal solutions ... which would result in a more uniform social distribution of the burden linked to the necessity to satisfy housing needs. It is therefore unnecessary to place the entire burden on the single group of landlords. Consequently, the Constitutional Court considers that the restriction resulting from section 9(3) ... does not meet the criteria established by the principle of proportionality and goes beyond the tolerable extent of limitations on the right of property set out in Article 31 § 3 of the Constitution. The Constitutional Court is not competent to fix minimum levels of rent... [However,] from the point of view of the protection of landlords’ rights, [it] stresses again the crucial importance of the correct determination of the costs of maintenance and upkeep of residential buildings. This constitutes the absolute minimum rate. ... As regards the implementation of the constitutional rights of tenants, the Constitutional Court stresses that, although in the present judgment section 9(3) of the 2001 Act has been found unconstitutional, the Act still imposes significant restrictions on the freedom to increase rents. The most important of them is definitely section 28(2), which remains in force and which provides that ... up to 31 December 2004 inclusive the annual rent may not exceed 3% of the reconstruction value of the dwelling.” 105. On 12 May 2004 the Constitutional Court heard a constitutional complaint lodged by a certain J.-M. O., challenging the constitutionality of section 9(3) and section 28(3) of the 2001 Act (see paragraphs 85 and 86 above). He submitted that those provisions were incompatible with Article 64 § 1 (protection of property rights) of the Constitution read in conjunction with Article 31 § 3 (principle of proportionality). In their written pleadings, the Prosecutor General and representatives of Parliament asked the court to discontinue the proceedings in so far as they concerned the constitutionality of section 9(3) since it had already been repealed by the judgment of 2 October 2002, and to hold that section 28(3) was compatible with the Constitution. At the oral hearing, J.-M.O. stated that he intended to pursue his complaint only in so far as section 28(3) was concerned. 106. The Constitutional Court held that section 28(3) was compatible with the Constitution and found: “As emerges from [the Constitutional Court’s judgments of 12 January 2000 and 2 October 2002], the question of maintaining the maximum ceiling on rent has already been examined by this Court and the measure was considered to have been necessary from the point of view of public order – at least in the transitional period. The need to protect tenants against unduly high rents is justified by the housing situation in Poland, which is the consequence of State management of housing and has resulted in a commonly experienced shortage of flats. A limitation on levels of rent – such as the one introduced by the contested provision – does not impair the essence of the right of property because it does not deprive owners of essential elements of that right. It has to be stressed that the right to a lease is one of the pecuniary rights protected by Article 64 §§ 1 and 2 of the Constitution and that restrictions on the right of property are inherent in many pecuniary rights, including the right to a lease. The contested section has set a maximum ceiling on rents with a clear time-frame – up to the end of 2004 – and this also may have an impact on whether a temporary restriction on the right of property may be regarded as not impairing its essence. It also has to be stressed that the setting of a clear time-frame in section 28(3) implies an obligation of the legislature towards landlords, which must be assessed from the point of view of the principle of citizens’ confidence in the State and the law made by it.” 107. Article 2 of the Constitution states: “The Republic of Poland shall be a democratic State ruled by law and implementing the principles of social justice.” 108. Article 20 lays down the basic principles on which Poland’s economic system is founded. It reads: “A social market economy, based on freedom of economic activity, private ownership, and solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland.” 109. Article 31 § 3 reads: “Any limitation on the exercise of constitutional freedoms and rights may be imposed only by statute, and only when it is necessary in a democratic State for the protection of its security or public order, or for the protection of the natural environment, health or public morals, or the freedoms or rights of other persons. Such limitations shall not impair the essence of freedoms and rights.” 110. Article 64 protects the right of property in the following terms: “1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. 3. The right of ownership may be limited only by means of a statute and only to the extent that this does not impair the substance of such right.” 111. Article 75 refers to the protection of tenants. It reads as follows: “1. The public authorities shall pursue policies conducive to satisfying the housing needs of citizens, in particular combating homelessness, promoting the development of low-income housing and supporting activities aimed at acquisition of a home by each citizen. 2. Protection of the rights of tenants shall be established by statute.” 112. Article 76 provides: “The public authorities shall protect consumers, customers, hirers or lessees against activities threatening their health, privacy and safety, as well as against dishonest market practices. The scope of such protection shall be specified by statute.” 113. After 10 October 2002, as a result of the Constitutional Court’s judgment, it became possible for landlords to increase rent up to 3% of the reconstruction value of the dwelling. At the end of 2002 levels of rent generally increased. According to the Government, in the Warsaw District, where the previous rate was PLN 2.17 per square metre, the rent quadrupled, reaching around PLN 10.00 per square metre in 2004. According to reports published in the Polish press, in most other towns 3% of the reconstruction value of the dwelling corresponded to PLN 5.00-6.00 per square metre. Levels of freely determined contractual rent are still higher: sometimes, especially in large towns, the difference may even reach 200 to 300%. 114. At the beginning of 2003 the government started to prepare a bill amending the 2001 Act. The bill was submitted to Parliament on 30 December 2003. 115. The explanatory memorandum on the bill stated that the aims of the proposed amendments were, among other things, “to specify the rights and obligations of the landlord and the tenant in order to strengthen the protection of the weaker party”; “to introduce new rules for the protection of tenants against excessive increases in rent and other charges for the use of dwellings”; and “to reduce the disproportion between the constitutionally guaranteed protection of tenants and the constitutional rights of landlords”. 116. The government proposed a number of changes to the existing provisions. The most important and controversial provision was the proposed section 28, pursuant to which (subsection (2)) the rent-control scheme, despite the fact that the end of its operation had been set by the legislature at 31 December 2004, was to be maintained until the end of 2008 in respect of all lease agreements in force before 10 July 2001 under which the tenants paid controlled rent. That in practice meant all leases originating in administrative decisions regarding privately owned buildings. The provision was to be applied mostly to all individual landlords, its operation in relation to public-housing entities and housing cooperatives being of minimal effect. The explanatory memorandum stated that the repeal of the rent-control scheme in its entirety “could cause a dramatic increase in rent” after the end of 2004 and that the limitation “would allow a smooth transition from the levels of rent at the end of 2004 to levels fixed in accordance with general principles”. The government therefore proposed that controlled rent be frozen at the maximum level of 3% of the reconstruction value of the dwelling up to 31 December 2004; 3.25% up to the end of 2005; 3.5% up to the end of 2006; 3.75% up to the end of 2007, and 4% up to the end of 2008. 117. The effects of the proposed rent freeze on the property rights of individual landlords have received considerable media attention and have given rise to heated public debate. The proposal was severely criticised by all organisations of landlords. 118. Eventually, on 5 October 2004, the government submitted to Parliament an amendment to their bill. They withdrew their original proposal to freeze levels of rent after 31 December 2004. They still maintained the proposal to limit the increase in rent for leases originating in previous administrative decisions. 119. On 22 June 2004 a group of deputies from the “Law and Justice” (“Prawo i Sprawiedliwość”) Party submitted a bill proposing amendments to the 2001 Act. 120. The general thrust of the proposed changes, as set out in the relevant explanatory memorandum, was: “to secure the effective protection of the rights of tenants, as guaranteed by Article 75 § 1 and Article 76 of the Constitution, by: (a) preventing the overuse by landlords of the right to terminate a lease agreement under section 11(5) of the 2001 Act; (b) preventing the dysfunction resulting from non-fulfilment by landlords of the duties incumbent on them in leasing dwellings (even in cases where the landlords are unknown and the municipality does not manage the property).” 121. Parliament decided to work on both bills simultaneously. The first reading took place on 6 October 2004. The second reading, following the report of the Parliamentary Committee on Infrastructure, the Committee for Family and Social Policy and the Committee on Self-Government and Regional Policy and the adoption of amendments, was on 17 November 2004. After the third reading, which took place on 19 November 2004, the bills were adopted by the Sejm (the lower house of the Polish parliament) and transmitted to the Senate and the President of Poland on the same day. On 6 December 2004 the Senate proposed several amendments, the most significant being the amendment to section 9 of the 2001 Act restricting the maximum increase in rent to a level of 10% per year in situations where the rent paid exceeded 3% of the reconstruction value of the dwelling. 122. On 17 December 2004 the Sejm accepted some of the Senate’s amendments, most notably the amendment to section 9. On the same day the Act of Parliament was transmitted for signature by the President of Poland. The President signed it on 23 December 2004. 123. On 22 December 2004, following, among other things, press reports stating that the new provision of section 9 of the 2001 Act did not exclude the possibility of a one-off increase in rent even where the rent was equal to, or less than, 3% of the reconstruction value of the dwelling, Parliament passed, in an accelerated procedure, another bill amending the 2001 Act. The bill was tabled by a group of deputies and contained only one proposal, namely to add another subsection to section 9 of the 2001 Act (see paragraph 132 below). On the same day the bill was transmitted to, and accepted by, the Senate. The President of Poland signed the Act of Parliament on 23 December 2004. 124. The Act of 17 December 2004 on amendments to the 2001 Act on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code and amendments to certain statutes (Ustawa o zmianie ustawy o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego oraz o zmianie niektórych ustaw) (“the 17 December 2004 Amendment”) came into force on 1 January 2005. 125. Section 1(8) of the 17 December 2004 Amendment introduced a new section 8a into the 2001 Act. This new provision was drafted with a view to implementing both the Constitutional Court’s ruling of 2 October 2002 and the constitutional principle of the protection of tenants’ rights. It subjects the increase in rent to various restrictions. Section 8a reads, in its relevant parts: “(1) The landlord may increase rent or other charges for the use of the dwelling, giving [the tenant] notice of the rent increase, not later than by the end of a calendar month [and] in compliance with the terms for giving notice. (2) The term for giving notice of an increase in rent or in other charges for the use of the dwelling shall be three months, unless the parties have stipulated a longer term in their contract; ... (4) An increase whereby rent or other charges for the use of the dwelling would exceed 3% of the reconstruction value of the dwelling within one year may take place only in justified cases. At the tenant’s written request, the landlord shall, within seven days, give reasons for the increase and its calculation in writing. (5) The tenant may, within two months following the notice of the increase, challenge the increase referred to in subsection (4) by bringing a court action to have the increase declared unjustified or justified but in a different amount[; he or she may also] refuse to accept the increase, with the effect of the contract being terminated by the end of the term of notice. The burden of proof in respect of the justification of the increase shall rest with the landlord. ... (7) The provisions of subsections (1) to (6) shall not apply to increases 1. not exceeding 10% of the current rent or current charges for the use of the dwelling within a year; ... 3. concerning charges that do not depend on the landlord.” 126. Pursuant to section 1(9)(a) of the 17 December 2004 Amendment, section 9 of the 2001 Act was reworded in its subsections (1) and (2) as follows: “(1) Increases in rent or other charges for the use of the dwelling, apart from charges that do not depend on the landlord [e.g. those for electricity, water, central heating, etc.] may not be made more often than every six months but, if the level of the annual rent or other charges for the use of the dwelling, apart from charges that do not depend on the landlord, exceeds 3% of the reconstruction value of the dwelling, a yearly increase cannot be higher than 10% of the current rent or current charges for the use of the dwelling[; such an increase] shall be calculated without charges that do not depend on the landlord. (2) If charges that do not depend on the landlord have been increased, he or she shall give the tenant a written statement listing charges and reasons for their increase. The tenant shall be obliged to pay the increased charges only up to such a level that is necessary for the landlord to cover costs of supply of utilities referred to in section 2(8) [e.g. electricity, water, heating].” 127. Section 1(11)(a) of the 17 December 2004 Amendment introduced certain changes in respect of the termination of leases by individual landlords. However, the new section 11 of the 2001 Act differs only slightly from the previous provision on termination of leases (see paragraphs 87-88 above). Section 11(1) now reads, in its relevant parts, as follows: “If a tenant is entitled to use a dwelling for rent, the landlord may give notice only for reasons listed in subsections (2) to (5) ... Notice should, on pain of being null and void, be given in writing. Subsections (2), (4) and (5) of section 11 remain unchanged. Subsection (3) now reads: “The landlord of a dwelling for the lease of which the rent is lower than 3% of the reconstruction value of the dwelling in a given year may terminate the lease: (1) with six months’ notice if the tenant has not lived in the flat for more than twelve months; (2) with one month’s notice, expiring at the end of a calendar month, in respect of a person who has been entitled to another dwelling in the same or nearby locality and provided that dwelling meets the requirements for substitute accommodation.” 128. As regards cases where the landlord, his adult descendants or a person in respect of whom he is obliged to pay maintenance intend to dwell in the landlord’s flat (see also paragraph 89 above), the present section 11(7) provides that the notice to quit given to the tenant should, on pain of being invalid, indicate the person who is to dwell in the flat. The terms for giving notice (six months and three years respectively) remain unchanged. 129. Under section 11(12) the termination of a lease in respect of a tenant who on the date of giving notice is more than 75 years old and who, after the expiry of the applicable three years’ notice, will have no title to another dwelling and will have no persons obliged to maintain him or her will take effect upon his or her death. 130. The 17 December 2004 Amendment, in its section 5, introduced a new provision – section 6a – setting out a list of the landlord’s duties under the tenancy. In essence, it repeats the provision of section 9 of the 1994 Act (see paragraph 78 above). 131. Section 6b, introduced by the same section 5 of the 17 December 2004 Amendment, lays down the tenant’s duties. Its relevant part reads as follows: “(1) The tenant shall be obliged to keep the dwelling in a proper technical, sanitary and hygienic state as prescribed by other separate provisions and to comply with the rules of good conduct in the building. He or she shall also be obliged to take care, and ensure protection against damage or devastation, of parts of the building designed for common use, such as lifts, staircases, corridors, chutes, other [similar] premises and the surroundings of the building.” Subsection (2) sets out a detailed list of repairs and works involved in the upkeep of a flat. 132. The Act of 22 December 2004 on amendments to the 2001 Act on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code (“the 22 December 2004 Amendment”) came into force on 1 January 2005. Its section 1 read: “In section 9(1) [of the 2001 Act] the following subsection (1)(a) shall be included: ‘The provisions of subsection (1) shall also apply in the event of an increase in rent or other charges for the use of a dwelling, except for charges that do not depend on the landlord if, after the increase, the level of the annual rent or other charges for the use of the dwelling, except for the charges that do not depend on the landlord, is to exceed 3% of the reconstruction value of the dwelling.’ ” 133. On 4 January 2005 the Polish Union of Property Owners made an application to the Constitutional Court challenging the constitutionality of the 17 December and 22 December 2004 Amendments (“the December 2004 Amendments”). The Union alleged, in particular, that the provisions extending State control over increases in rent for dwellings owned by private individuals were incompatible with the constitutional principles of protection of lawfully acquired rights and citizens’ confidence in the State and the law made by it. In that context, they stressed that the Polish authorities, in breach of their obligation to terminate the operation of the rent-control scheme by 31 December 2004 that they had taken upon themselves by virtue of two successive laws, namely the 1994 Act and the 2001 Act, had failed to abolish the impugned scheme and had simply replaced it by further restrictions on rent increases. 134. On 19 January 2005 the Prosecutor General made an application to the Constitutional Court challenging the constitutionality of the December 2004 Amendments. In particular, he contested the provisions restricting increases in rent to 10% and submitted, inter alia, that those restrictions constituted an unjustified interference with landlords’ property rights. He further alleged that Parliament was in breach of its duty to “legislate decently” (zasada “przyzwoitej legislacji”), especially the duty to formulate legal provisions in a correct and coherent manner. 135. The Constitutional Court invited the Speaker of the Sejm, acting on behalf of Parliament, the All-Polish Association of Property Owners and the Polish Association of Tenants to take part in the proceedings and submit their written observations. The Speaker of the Sejm and the All-Polish Association of Property Owners fully supported the Prosecutor General’s application. The association submitted detailed calculations of levels of rent that would be necessary to cover the maintenance costs of residential buildings. It maintained that in respect of most such buildings there was a “repair shortfall” (luka remontowa) amounting to 60% of the costs necessary for the reconstruction of the value of dwellings through major repairs and that, in order to secure sufficient means for such purposes, the levels of rent should reach 6% of the reconstruction value per year. The Polish Association of Tenants considered that the current possibility of increasing rents set at the level of 3% of the reconstruction value by 10% per year already imposed an excessive burden on tenants. It submitted that the landlords’ association had given exaggerated figures in respect of the costs of necessary repairs. In the context of rent increases, it also stressed that the State’s financial assistance to tenants was practically non-existent. 136. The Constitutional Court heard the Prosecutor General’s application on 19 April 2005. It repealed section 1(9)(a) of the 17 December 2004 Amendment in so far as it made any increase in rent above 3% of the reconstruction value subject to a maximum yearly ceiling of 10% of the current rent and section 1 of the 22 December 2004 Amendment in its entirety. In its judgment, it made an in-depth analysis of the housing laws as applicable from 1994 to 2004 and their historical and social background. It referred to its previous judgments repealing the successive defective legal provisions and to their implications. The judgment contains extensive reasoning and a thorough assessment of the various social, political and economic circumstances affecting the current state of the Polish housing legislation. The gist of the Constitutional Court’s arguments is summarised in the following paragraphs. 137. The Constitutional Court first analysed the impugned provisions from the point of view of the principle of the rule of law as laid down in Article 2 of the Constitution (see paragraph 107 above): “In the opinion of the [Court], the introduction of the contested legal provisions clearly violated the principle of proper legislation, which necessarily leads it to declare those provisions incompatible with the principle of the rule of law as expressed in Article 2 of the Constitution. The amendments, contrary to the intentions of the legislature itself – as is confirmed by the content of the Sejm’s written observations [filed in this case] – eliminated a market mechanism in a situation where the actual purpose of introducing restrictions on rent increases was to be the protection of tenants, that is to say, persons who in a given case do not accept the proposed increase. There is a distinct inconsistency between the provisions of the amendment in the initial bill and the provisions introduced following the parliamentary debate. In consequence, none of the declared aims of the [legislation] has been attained. Rents were not relaxed within rational limits encompassing the requirements of justice and of protection of landlords’ rights and nor were effective and precisely determined procedures introduced to protect the rights of tenants against abuse of [landlords’ right to] determine rent freely. The new version of section 9(1)(a) has also violated the principle of ... confidence in the State and the law made by it. Thus, as already mentioned, there is no doubt whatsoever that until the adoption of the 17 December 2004 Amendment the legislation of the last decade consistently assured society, and especially persons directly interested in the situation of landlords and tenants, that rents that were controlled and at the same time limited to the level of 3% of the reconstruction value of the dwelling exclusively in respect of a certain category of premises would apply for the transitional period, that is, up to 31 December 2004. This period ... was [set] to make it possible for the government and the legislature to develop a new, comprehensive and multi-faceted system governing the relations between landlords and tenants, fully taking into consideration the justified interests of the parties and also realistically allowing those same parties to prepare themselves for surviving the most difficult period and to accept fully the new state of affairs, so that mutual relations between the parties to a lease (or an analogous relationship) could be shaped in a rational manner and above all with due consideration for the concrete conditions determining rent. The date of 31 December 2004 as the deadline for the transition period was also confirmed in the 2001 Act, which further strengthened the conviction that after that date the mechanism for determining rent would be compatible with the principle of freedom of contract. This societal conviction was further supported by the unambiguous case-law of the Constitutional Court, which on many occasions underlined the transitional character of the rent-control scheme. It thus follows that in the years 1994-2004 the unambiguous ‘rules of the game’ were established, whose period of validity was clearly indicated by the 1994 Act (section 56(2)) and then in some sense confirmed by section 28(2) of the 2001 Act. ... In its case-law the Constitutional Court has frequently expressed the opinion that the legislature must not fail to meet deadlines for those ‘rules of the game’ that it set itself. This opinion was expressed, inter alia, in ... the reasoning of [its judgment of 12 January 2000]. In its judgment ..., the Constitutional Court expressed the opinion that setting aside the principle of controlled rent for a ten-year transitional period would be acceptable only under exceptional circumstances, for otherwise there would be a violation of the principle of legal certainty expressed in Article 2 of the Constitution. These considerations lead to the conclusion that the adoption of the contested Act and its publication on 29 December 2004, with its entry into force on 1 January 2005, violated the ‘rules of the game’ which were laid down in the previous legislation and which were subject to an unambiguous time-limit[. This happened in a situation where] there were no exceptional circumstances or events that could justify or explain the extension of [those rules] for a longer period. The breaking of what amounted to a promise laid down in a statute must be regarded as a particular kind of irresponsibility on the part of the public authorities, and hence an exceptionally jarring violation of the principle of confidence in the State and the law made by it, a principle constituting one of the foundations of the rule of law.” 138. The Constitutional Court next referred to the principle of the protection of property and the principle of proportionality: “Article 64 §§ 1 and 2 of the Constitution guarantees the protection of ownership and other property rights on an equal basis for all. Among these ‘other property rights’ are the right to lease residential premises and other rights relating to premises serving to satisfy housing needs. Each of these rights, whether accruing to landlords or to tenants, enjoys constitutional protection, but in different ways. As a rule these rights collide but, as has been pointed out [in one of the Constitutional Court’s previous judgments], it would be a simplification to treat this conflict in linear terms, and to presume that providing a certain degree of protection to one of these rights must necessarily result in a weakening of the degree of protection afforded to the other. Section 9(1) and (2) and section 9(1)(a) ... were based on the unjustified conviction that relations between landlords and tenants always have an antagonistic nature, which inevitably leads to the ‘zero-sum game’. In reality, however, this does not have to be the case; on the contrary, properly determined relations between the parties to a lease agreement are of service both to landlords and tenants, provided that neither of the parties abuses its rights, since everyone is obliged to respect the freedoms and rights of others (Article 31 § 2 of the Constitution). The Constitutional Court is fully aware of how difficult it is to balance the legitimate interests of both landlords and tenants and to create the best possible ways of organising their relations. This is particularly true in the Polish situation, in which the rights of landlords were not respected for a long time and housing matters were subject to State management for entire decades[. This], combined with other systemic and economic factors, resulted in a degradation of housing supply unheard of in the countries of western Europe, and the consequences of which affected and still affect not only landlords but, ultimately, also tenants. Stepping back from this abyss will be difficult and will take many years, and the effective change of the present state of affairs will probably not be possible without committing public funds adapted to concrete situations (see the Constitutional Court judgment [of 12 January 2000]). It is therefore the legislature’s duty to strive to form a harmonious legal situation for landlords and tenants, so that their relations can be seen as desirably complementary rather than characterised by inevitable antagonism. Charges for the use of the premises, including rent, are a special element of those relations. They should ensure that the landlord not only covers the costs of building maintenance and repair, but also obtains a return on invested capital (amortisation) and a decent profit because no legal provisions may extinguish one of the basic components of the right to property, namely the right to derive profit from property ... This was possible, as found by the Constitutional Court [in its earlier judgment], in the transitional period, during which it was considered reasonable to restrict profit [by fixing] such levels of rent as only covered the costs of maintenance and upkeep. Now complete regulations, fully and precisely determining the elements of rent, are required. The 2001 Act specified what are to be regarded as charges that do not depend on the landlord ... but it did not indicate ... the elements of rent as such. As a result, judicial control of reasons for rent increases is to a large extent illusory. ... At the same time, the Constitutional Court considers it necessary to take into account the legitimate interests of tenants, and to establish effective mechanisms to protect them against abuse of their rights by landlords. It is also necessary to develop a set of instruments that would make it possible to support tenants finding themselves in difficult financial and living circumstances. This must not be done, as has been the case hitherto, mainly at the cost of landlords, but mostly through the deployment of special public resources. Thus, the duties inherent in social solidarity and the duty to help the underprivileged are incumbent on society as a whole. ... Over the last dozen years or so, attempts have been made in Poland to protect the legal interests of ... tenants through the statutory determination of percentage rent increase indicators, or of rent ceilings, or through the introduction of certain stronger control measures after a certain limit was exceeded, but in fact this has always been done in isolation from the concrete circumstances of given landlords and given tenants. An exception in this respect is the duty to determine officially the so-called ‘conversion index’, which of course adjusts the calculation of rent, but only locally, and, furthermore, is highly formalised and mechanical in nature. The end of the transitional period for controlled rents must mean a real break with the statutory automatism in respect of setting levels of rent, determining the rent ceilings or imposing restrictions on rent increases. One should expect the establishment of a system providing flexible solutions, adapted to the requirements of a modern housing market, which – stressing the parties’ freedom to determine rent levels – would also ensure effective control in order to prevent arbitrariness and abuse of that freedom. The contested provisions allow the parties ... a very small margin of freedom, which does not take into consideration concrete circumstances, such as the technical condition of the premises and the building, the personal and financial situation of the tenants or local factors. The legislature believes that the elimination of irregularities in increasing rent, apart from rent being subject to an arithmetical ceiling, will be effected through a special procedure for judicial control laid down in section 8a combined with the mechanism restricting rent increases as laid down in section 9 of the 2001 Act, in particular section 9(1) and (1)(a). The legislature, declaring that controlled rents would be abolished in the future, never promised that from 1 January 2005 the levels of rent determined by the parties would not be controlled at all. However, judicial control to this end would be effective if the law clearly determined elements of rent and formulated precise criteria for its evaluation. But this did not happen. The 2001 Act does not indicate at all how rent should be determined (because rent increases as such are a different matter), even in such a fragmentary way as section 20 of the 1994 Act did. It thereby deprived a court assessing an increase in rent of the possibility of objective verification, on the basis of concretely enumerated elements of rent and clear criteria for their evaluation, whether or not the increase was justified (section 8a(5) of the 2001 Act), and hence created a risk of divergence between judicial decisions. It should also be noted that in certain situations the limiting mechanism introduced by section 9(1) and (1)(a) either excludes judicial control of rent altogether, or makes it completely illusory ... In consequence, ... both the contested amendments amounted to a breach of the principle of proportionality expressed in Article 31 § 3 of the Constitution, [notably] through defective formulation of the rules determining [rent], which do not give adequate protection either to landlords or to the rights of tenants.” 139. In the context of the principle of proportionality the Constitutional Court also referred to this Court’s Chamber judgment in the following terms: “The Constitutional Court paid particular attention to the European Court of Human Rights’ judgment of 22 February 2005 in the case of Hutten-Czapska v. Poland. ... Given the date of this judgment, [considerations] of the European Court were already based on the legal situation obtaining on 1 January 2005. Hence they encompassed both the December 2004 Amendments to the 2001 Act and the Prosecutor General’s application. In the Constitutional Court’s view, the opinion expressed by the European Court provides additional arguments in favour of finding that these amendments, in their parts contested in the application, violate the principle of maintaining confidence in the State and in the law made by it as laid down in Article 2 of the Polish Constitution and undermine in an inadmissible manner the standards of property protection common to the member States of the Council of Europe.” 140. It then went on to analyse the general situation: “The Constitutional Court still holds the view (expressed in its judgment of 12 January 2000 ...) that ‘it is in conformity with the contemporary perception of a “social State” to demand some sacrifice from all members of society for the benefit of those who cannot provide subsistence for themselves and their families ... In the circumstances obtaining in Poland, under Article 31 § 3 [of the Constitution], it may be justified to maintain the provisions limiting landlords’ property rights and, more particularly, excluding unrestricted freedom in fixing rates of rent and other charges collected from tenants.’ The latter remark was particularly significant for the assessment of legislation during the transition period, but it cannot be seen as having fully lost its relevance with the end of that period. ... Thus, States which, like Poland, are undergoing radical systemic and economic transformation must create legislative tools that make it possible for them to overcome the consequences of historical events (arbitrary and peremptory interference with private property by the State) and to ensure the transition to conditions appropriate for democratic, liberal States governed by the rule of law. This is a very difficult task, especially given the absence of well-tried models of proceeding in such cases. The scale of the phenomenon far surpasses the post-war experience of western European States. Changes in this area are being introduced by trial and error; they are slow and not effective enough – as has been pointed out by the Constitutional Court in the judgments cited above. It is therefore not possible, in respect of the rights of landlords, who were formerly deprived of the possibility of fully enjoying their property, simply to give this possibility back to them in the form of unrestricted market-related rent. Such a measure, in a situation where private houses, previously taken in connection with the so-called ‘public management of housing matters’, have depreciated and require very major investments in repairs and high running maintenance costs, would mean imposing on tenants an excessive burden undermining their existence. ... It must be kept in mind that the fact that landlords’ rights were infringed over several decades did not result from any acts by tenants, but was first and foremost caused by defective legislation. Removing, after years of neglect, all those harmful consequences may not therefore be done at the expense of tenants, and certainly not at their expense alone, but must above all stimulate the public authorities themselves to take appropriate action.” 141. In its final considerations the Constitutional Court stressed that, given that its judgment was inherently limited by the scope of the Prosecutor General’s application, it could not resolve comprehensively and definitely the fundamental systemic issues arising from the operation of the rent-control scheme. In particular, it could not address the mechanism for balancing the interests of landlords and tenants, a mechanism which was still missing in the existing legal system. Having regard to the fact that sections 8a and 9 of the 2001 Act (in so far as they were still in force following the repeal) did not provide for any satisfactory and consistent mechanism and no appropriate legislative initiative to that effect had been envisaged, the Constitutional Court decided to prepare recommendations (sygnalizacja) for Parliament, whose object would be to formulate clear demands to create a mechanism making it possible to formulate precise criteria for judicial control of rent and related charges. 142. On 29 June 2005 the Constitutional Court gave a decision (postanowienie) setting out the recommendations for Parliament (“the June 2005 Recommendations”) referred to in the judgment of 19 April 2005. In its relevant parts, the decision reads as follows: “1. Starting-point ... Under the present legislation, as amended by the Constitutional Court’s judgment [of 19 April 2005], landlords may increase rents or other charges for the use of the dwelling not more often than every six months but an increase in rent or other charges, apart from those which do not depend on a landlord, whereby rent would exceed 3% of the reconstruction value of the dwelling within one year may take place only in justified cases. ... [T]he tenant may challenge the increase by bringing a court action to have the increase declared unjustified, or justified but in a different amount, or may refuse to accept the increase with the effect that the contract is terminated at the end of the term of notice. However, judicial control of increases in rent and the procedure for such increases do not apply if an increase does not exceed 10% of the current rent or current charges. 2. Lack of statutory criteria for judicial control [The 2001 Act] does not indicate, and this is its fundamental shortcoming, the criteria on the basis of which the courts are to control increases in rent or other charges for the use of the dwelling. This situation is detrimental to both landlords and tenants. Accordingly, judicial control, lacking statutory criteria, certainly becomes very difficult and unforeseeable, if not illusory. This may lead to quite arbitrary decisions. It is likely that in this legal situation the courts would be forced to create an ad hoc set of criteria for the future assessment [of increases] rather than to review legal grounds for increases. It should be stressed that removing from the judicial control increases in rent and charges that do not exceed 10% will, in many instances, deprive tenants of the necessary protection and will, within several years, lead to rents being hauled up to an objectively unjustified level. The above considerations lead to the conclusion that the statutory system of fixing the maximum ceiling of rents and other charges and of controlling increases determined algorithmically, which was justified in the transitional period ..., can neither satisfactorily serve the interests of landlords nor protect the justified interests of tenants. It is therefore necessary to regulate in a complex manner those matters, maintaining at the same time flexible solutions. .... 3. Factors influencing the level of so-called ‘basic rent’ [czynsz początkowy] The question of determining rents and charges for the use of the dwelling cannot be seen only from the perspective of the criteria and rules for their increase. First of all, it is necessary to set a statutory starting-point – in other words, elements of rent that would adequately take into account the rights of landlords. At the same time, not losing sight of the necessarily complementary relationship between a landlord and a tenant, one should have regard to the fact that the essential duty of the tenant is to pay an economically justified level of rent, i.e. not too high but related to the justified economic interest of the landlord. The point of departure for determining such ... rent should be an indication that its elements cannot be [fixed without relation to] running repairs and maintenance, an adequately determined depreciation and a decent profit. ... The need to include the costs of repairs and maintenance does not require any further explanation – it is obvious. Likewise, a decent profit derived from the exercise of the right of property is an indispensable element of the genuine protection of property rights. Without profit, there are no investments or even modernisation works, which are dictated by technological progress and which are also beneficial for the interests of tenants. The future detailed legal solutions should, however, pay due regard to the fact that the aims pursued by the public authorities (the State Treasury, other State authorities and municipalities) are different from those pursued by private individuals and bodies (such as housing cooperatives) and that the expectations of [those two groups] in respect of a decent rent should be established at different levels. ... It is also necessary to include among the elements of rent a return on landlords’ investments in the construction or modernisation of the building in due time, it being understood as a basis for an adequately established depreciation level. ... 4. Additional instruments for monitoring the level of rent An auxiliary instrument, enabling the courts to assess thoroughly the basis of the determination of, and increase in, rent could entail, among other things, the setting up by the authorities, in the process of a true social dialogue with organisations of landlords and tenants, a system for monitoring the levels of rent in all municipalities which would, for example, disseminate information on the average level of rent in a given region. Such systems are known in some European countries as a ‘rent mirror’. ... 5. Housing benefits The justified ‘basic rent’, determined in the manner indicated above in respect of each residential building, might often be incompatible with the tenants’ financial situation. ... In such cases the poorer tenants should be included in a system of individual benefits, justified by their [individual] circumstances, from the public funds, which would genuinely help them to fulfil their duty to pay rent regularly up to a certain determined amount. ... 8. Instruments for the necessary support of landlords In certain situations (especially in respect of buildings regarded as part of the national heritage) it may happen that [even] properly determined rent will still not be sufficient to cover all the costs required for the necessary expenses involved in normal maintenance, in particular the necessary repairs or modernisation. In such precisely determined cases the system of public finances should provide for forms of individual support for landlords obliged to cover the extra costs involved in the maintenance of the buildings. Such support may take various forms, from housing subsidies, through loans on preferential terms for specific investments and, finally, to tax exemptions. ... ... 10. Inconsistent regulation of the rights and obligations of parties to a lease agreement The Constitutional Court considers it necessary to point to inconsistencies, as regards the setting out of a catalogue of landlords’ and tenants’ duties, between the new sections 6a to 6f of the 2001 Act and the provisions concerning the lease of a dwelling contained in ... the Civil Code. It is against the rules of proper legislation to include the provisions governing the lease of dwellings not in the Civil Code, which contains a full set of regulations on lease relations, but in a law whose object is to protect tenants generally, not to regulate the lease relationship. [Final remarks] The Constitutional Court’s present recommendations are concerned with shortcomings and lacunas to which it has pointed in recent years either in its judgments or documents providing information about its activities. ... Removing them in the near future is necessary also in view of the principle of the social market economy, which has particular importance in the present context. Now it is no longer possible to regulate these matters in a fragmentary or provisional manner. It should once more be stressed that they should be resolved through comprehensive solutions pursuing clearly defined aims which are compatible with the Constitution.” 143. On 24 August 2005 the Ombudsman made an application to the Constitutional Court for certain provisions of the 2001 Act to be declared unconstitutional. He asked, inter alia, that section 8a (4)-(5)-(7.1) of the 2001 Act (as amended in December 2004) be found to be incompatible with Article 64 §§ 1 and 2 of the Constitution (principle of the protection of property rights) read in conjunction with Article 31 § 3 (principle of proportionality) and Article 76 (principle of protection of consumers against dishonest market practices). He further asked that section 9(1) of the 2001 Act be found to be incompatible with Article 2 of the Constitution (principle of the rule of law). 144. The Ombudsman first referred to the Constitutional Court’s judgment of 19 April 2005, stating that this judgment left no doubt whatsoever that the legislature’s essential duty was to set up a legal mechanism balancing the constitutionally protected rights of landlords and tenants. Indeed, the attempts that had hitherto been made had proved to be unsuccessful mostly because of the authorities’ choice to give priority to current political interests rather than to the law, as demonstrated by many earlier judgments of the Constitutional Court. 145. As to the contested provisions of section 8a, the Ombudsman stressed first their internal inconsistency, submitting that, on the one hand, subsections (4) and (5) made increases in rent above 3% of the reconstruction value per year subject to “judicial control” and required them to be “justified” but that, on the other hand, the latter subsection read a contrario meant that any other increases did not need to be justified. He further referred to the Constitutional Court’s recommendations, pointing out that there were no statutory criteria for what was to be considered a “justified increase”. In fact, he maintained, from the point of view of the landlord every rent increase was justified as it either increased his profit or reduced the losses involved in proper maintenance, while from the point of view of the tenant every such raise was “unjustified” as it involved greater expense on his part. As regards section 9(1), the Ombudsman submitted that it was unclear and incompatible with the principle of proper legislation ensuing from the rule of law in that, for instance, it did not specify when the six-month period – relevant for determining the point from which a given increase in rent had applied – was to start. In the Ombudsman’s view, this lack of clarity could not be removed simply by interpretation of that provision and created a possible source of conflicts between landlords and tenants. 146. On the date of the adoption of the Court’s judgment, the application was pending before the Constitutional Court. The case was listed for a hearing on 17 May 2006.

dev

001-78357

ENG

RUS

ADMISSIBILITY

GOLUBEV v. RUSSIA

Inadmissible

The applicant, Mr Vladimir Vitalyevich Golubev, is a Russian national who was born in 1972 and lives in Krasnoye-Na-Volge. In 2000 the applicant, a police officer at that time, was charged with bribe taking. He was suspected in providing “protection” to a group of black market dealers in return for regular payments. On 7 July 2000 he was arrested and, since he was a former policeman, placed in a special detention facility for former law enforcement officials. On 20 May 2000 he was transferred for several days to a “common” cell where ordinary criminal suspects were detained. In his words, the investigator placed him in that cell in order to put pressure on him. On 12 September 2000 the applicant complained about this fact to the prosecution authorities. On 23 October 2000 the local prosecutor informed the applicant that the person responsible for placing him in that cell was reprimanded. There is no information on any further development regarding this complaint. On 12 October 2001 the applicant was convicted of bribe taking by the Kostroma Regional Court. He was sentenced to five years’ imprisonment in a colony of the strict regime. The applicant indicates that he was unable to study the record of the trial hearings. He indicates that he signed a waiver where he renounced his right to examine the record. He claims, however, that he did so under the pressure of the judge. The applicant and his lawyers appealed. They challenged the findings of the first instance court as to the facts of the case and complained of misinterpretation of the domestic law and various irregularities in the proceedings during the investigation and before the first instance court. The defence indicated inter alia that in the course of the pre-trial detention the applicant had been placed in a common cell, in breach of the relevant provisions of the domestic law. However, the brief of appeal did not mention that the applicant had been unable to study the trial record. The applicant did not request his personal presence at the hearing before the court of appeal. On 18 March 2002 the applicant’s conviction was upheld by the Supreme Court of Russia. The applicant was not present at the court of appeal’s hearing and remained in the detention centre. However, his two lawyers were in the courtroom and during the hearing the applicant was able to communicate with the judges through a video communication system, which allowed him to see and hear what happened in the court room, and put questions to the participants of the hearing. The Supreme Court, basing on the materials of the case-file and the parties’ pleadings, upheld the finding of the lower court in full. It did not detect any serious irregularity in the proceedings before the trial court which would require the review of the case. After conviction the applicant was sent to serve his sentence in a correctional colony in Mordovia. In 2004, due to the changes in the Criminal Code, the applicant’s sentence was reduced to four years and eleven months, and he was transferred to a colony with a milder regime. Article 375 of the Code of Criminal Proceedings of 1960, as in force at the relevant time, provided that the criminal defendant should indicate in his points of appeal whether or not he wanted to participate personally in the hearing before the court of appeal. Article 335 of that Code provided that the court of appeal might choose whether or not the applicant should participate in the hearings. However, by Ruling of 10 December 1998 no. 27-П the Constitutional Court of Russia invalidated that provision as anticonstitutional. The Constitutional Court found that the criminal defendant should always have the possibility to participate in the proceedings before the court of appeal. However, the Constitutional Court did not specify whether personal participation was needed, or participation through a video communication system was sufficient. The new Code of Criminal Proceedings, as in force from 1 July 2002, provides that the criminal defendant may choose whether or not he wants to participate in the proceedings (Article 376 § 3). However, the choice between personal presence and participation via the video communication system belongs to the court.

dev

001-76263

ENG

NLD

CHAMBER

CASE OF SYLLA v. THE NETHERLANDS

Violation of Art. 3;Not necessary to examine Art. 8;Just satisfaction reserved

5. The applicant was born in 1966 and is currently serving a prison sentence in the Netherlands. 6. On 17 February 1998 the applicant was detained in the Netherlands on the basis of a request for his extradition by the authorities in Germany, where he was suspected of having committed a bank robbery and, during his subsequent flight and pursuit by the police, of having taken several hostages and having shot and killed one person. On 4 November 1998 he was extradited to Germany where, by judgment of 21 May 1999, the Duisburg Regional Court (Landgericht) convicted the applicant of extortion, attempted homicide, homicide and hostage-taking and sentenced him to life imprisonment. 7. Pending the determination of a request under the Enforcement of [Foreign] Criminal Judgments (Transfer) Act (Wet overdracht tenuitvoerlegging strafvonnissen – “WOTS”) for the applicant to be allowed to serve his sentence in the Netherlands, where he had lived since early childhood, the applicant was transferred to the Netherlands on 4 July 2000. 8. On 3 October 2000, in accordance with the provisions of the WOTS, the Hague Regional Court (arrondissementsrechtbank) gave leave for the applicant’s sentence to be executed in the Netherlands and, considering that under the Netherlands sentencing rules a life sentence fitted the nature and seriousness of the offences, the circumstances in which they had been committed and the person and personal circumstances of the applicant, imposed a life sentence. The applicant filed an appeal on points of law against this ruling with the Supreme Court (Hoge Raad). 9. On 26 June 2001 the Supreme Court allowed the applicant’s appeal on points of law against the ruling and quashed the decision of 3 October 2000. It held that the Regional Court had failed to examine whether or not, with regard to the possibilities of early or conditional release for persons sentenced to life imprisonment, the applicant’s situation in the Netherlands would be less advantageous than in Germany. It remitted the applicant’s case to the Amsterdam Regional Court for a fresh decision. At the time the application was lodged with the Court, the proceedings before the Amsterdam Regional Court were still pending. 10. Following his transfer from Germany to the Netherlands on 4 July 2000, the applicant was initially detained in an ordinary remand centre (huis van bewaring) in Rotterdam. On 5 December 2000 a number of items (a whet stone attachment for a rotary grinder, knotted sheets, a rope and a metal hook) were found in his cell. The applicant was subsequently transferred to the National Segregation Unit (Landelijke Afzonderingsafdeling) in the Nieuw Vosseveld Penitentiary Complex in Vught. 11. On 21 December 2000, on the advice of the special selection board of the maximum security institution (Extra Beveiligde Inrichting – “EBI”), the Minister of Justice decided to place the applicant in the EBI, which is part of the Nieuw Vosseveld Penitentiary Complex. His detention in the EBI was reviewed and extended by the Minister every six months. The applicant unsuccessfully challenged each decision to extend before the Appeals Board (beroepscommissie) of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing). On 1 April 2001 the Central Council was replaced by the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming). 12. On 27 May 2002, as he had done in respect of the previous decisions to extend, the applicant filed an appeal with the Appeals Board against the decision of 22 May 2002 extending his stay in the EBI by six months. He argued, inter alia, that the EBI detention regime was in breach of Articles 3 and 8 of the Convention, that he was suffering from sarcoidosis and that the environment in the EBI had a very negative effect on his health. 13. On 1 November 2002 the Appeals Board rejected his appeal. In so far as relevant, its decision reads as follows: “On the basis of Article 6 of the Regulation on the selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000, which entered into force on 1 October 2000, detainees may be placed in the maximum security institution if they: a. are considered extremely likely to attempt to escape and pose an unacceptable risk to society in terms of the danger of their committing further serious violent crimes, or b. in the event of an escape, would pose an unacceptable risk to society, the risk of escape in itself being of lesser importance. ... The Appeals Board considers as follows: During an inspection of the [applicant’s] cell in the [Rotterdam] remand centre on 5 December 2000 a whet stone attachment [for an electrical device], a coil of ‘rope’ [made from] plaited strips of sheet and a long rope with a hook made from a broom handle, with an attached hook made from the aluminium handle of a floor sweeper, were found. In addition a crack was noted in the cell window. The seriousness and quite recent nature of these discoveries justify the finding that the [applicant] at present still poses an extreme risk of escape. In that connection [the Appeals Board] notes that the 1998 incidents mentioned by the [EBI] selection officer have not been taken into consideration in reaching this finding. Those incidents concern a knife found in January 1998 in a bus in which the [applicant] and three other detainees had been transported, some visitors of the applicant who in May 1998 remained in their car for a remarkably long time observing the detention facility, a fork going missing from the applicant’s cell and odd behaviour in the visitors’ room. Those incidents did not lead to the [applicant’s] being placed in the EBI at that time. Instead, the [applicant], after a stay in the National Segregation Unit, was transferred to an ordinary remand centre. It remains unknown whether the knife belonged to one of the detainees who had been travelling in the bus. In view of the very violent crimes the [applicant] is suspected of having committed and the subsequent pursuit in Germany and the Netherlands during which persons were taken hostage, the [applicant] – in the event of an escape – would pose an unacceptable risk to society in terms of the danger of his committing further serious violent crimes. The Appeals Board, noting the above considerations, concludes that the [applicant] falls within the category [referred to in Article 6 (a) of the Regulation on the selection, placement and transfer of detainees]. As regards the [applicant’s] reliance on [the Convention], the Appeals Board considers that the EBI regime is not in violation of the prohibition set out in Article 3 of the Convention. Interference with the right to respect for private and family life set forth in Article 8 of the Convention is permitted as long as such interference is in accordance with the law and is necessary in a democratic society for, inter alia, the prevention of disorder and crime. On the basis of the documents obtained it appears that the examination [to establish whether the applicant suffers from sarcoidosis] is still ongoing. In these circumstances, the argument [based on this medical condition] cannot (for the time being) succeed. The Appeals Board, noting the above, finds that the decision to extend the applicant’s stay in the EBI is lawful and that, weighing up all the interests involved, it cannot be considered as unreasonable or unjust.” 14. No further appeal lay against this decision. 15. By decision of 19 November 2002 the applicant’s stay in the EBI was extended by a further period of six months. He again lodged an appeal with the Appeals Board in which he argued, inter alia, that the EBI regime was in breach of Articles 3 and 8 of the Convention, in particular as regards strip-searches in the EBI and the conditions governing visits. He submitted that the EBI regime was having adverse effects on his mental and physical health. 16. On 25 March 2003 the Appeals Board dismissed the appeal. The relevant parts of the decision read as follows: “In its decision of 1 November 2002 the Appeals Board found that the [applicant] continued to pose an extreme risk of escape. ... The Appeals Board notes that, since then, there have been no signs indicating a possible escape by the [applicant]. Noting this, it is of the opinion that at present lesser weight is to be attached to the discovery in December 2000 and that it can no longer be said that the [applicant] poses an extreme danger of escape. However, in view of the very violent offences the [applicant] is suspected of having committed and the subsequent pursuit having taken place in Germany and the Netherlands, in which people were taken hostage and one person was killed, the [applicant], in the event of an escape, would pose an unacceptable risk to society. The Appeals Board, noting the above considerations, therefore concludes that the [applicant] falls within the category [referred to in Article 6 (b) of the Regulation on the selection, placement and transfer of detainees]. As regards the applicant’s arguments based on Articles 3 and 8 of the European Convention of Human Rights, the Appeals Board points out that, under the [1999] Prisons Act, it reviews decisions by the selection officer, in the instant case the decision to extend the [applicant’s] stay in the EBI. Consequently, it does not review the underlying detention regime as such and, therefore, the examination of the question as to whether or not the regime is in violation of Articles 3 and 8 of the Convention [falls outside the scope of the present appeal proceedings]. The Appeals Board considers, in any event, that – having regard to the case-law of the European Court of Human Rights – it cannot be held that the EBI regime as it currently exists should be regarded as being in breach of the Convention. It does not appear from the documents that the applicant’s medical condition represents a contra-indication for a longer stay in the EBI. The Appeals Board, noting the above, finds that the decision to extend the applicant’s stay in the EBI is lawful and, weighing up all the interests involved, concludes – albeit on a different ground – that it cannot be considered as unreasonable or unjust.” 17. No further appeal lay against this decision. 18. On 30 June 2003 the applicant was transferred from the EBI to another prison with a different regime. 19. On 10 August 2004 another individual – who had been detained in the EBI between 26 June 1998 and 24 December 2003 – brought a civil action in tort (onrechtmatige daad) against the Netherlands State before the Hague Regional Court. One of the grounds on which he claimed payment of compensation in respect of non-pecuniary damage for unlawful acts for which he considered the Netherlands State to be liable was that, from his arrest in March 1998 until the end of December 2003, he had been subjected to inhuman and degrading treatment on account of the conditions of his detention, including having had to undergo humiliating and unnecessary strip-searches. He based this part of his claim on, inter alia, the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003-II) and Lorsé and Others v. the Netherlands (no. 52750/99), the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as set out in two reports (see paragraphs 47-48 below), and a report drawn up on 10 October 2003 by academic researchers on the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraph 24 below). 20. On 11 July 2005 the applicant and eight other (former) EBI detainees applied to the Regional Court for leave to join the civil action against the Netherlands State. Their application related to the part of the claim concerning compensation for non-pecuniary damage sustained as a result of inhuman and degrading treatment on account of the conditions of detention in the EBI, including having had to undergo humiliating and unnecessary strip-searches. These civil proceedings are currently still pending and, to date, no decision has been taken on the applicant’s request to join the pending civil action. 21. An overview of the relevant domestic law and practice is given in the Court’s judgment of 4 February 2003 in the case of Van der Ven v. the Netherlands (no. 50901/99, §§ 26-35, ECHR 2003-II) and in Baybaşın v. the Netherlands ((dec.), no. 13600/02, 6 October 2005). 22. On 1 March 2003, in the light of the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven (cited above) and Lorsé and Others (cited above), the EBI house rules (huisregels) were amended, with the result that the practice of weekly routine strip-searches accompanying the weekly cell inspections was abandoned. Under the amended Article 6(4) of the EBI house rules, strip-searches could be carried out at random during or directly after a weekly cell inspection. 23. As from 10 July 2003, pursuant to a ruling given on 7 July 2003 by the judge responsible for provisional measures (voorzieningenrechter) of the Hague Regional Court in summary injunction proceedings brought against the Netherlands State in June 2003 by thirteen EBI detainees, the random strip-searches were no longer linked to cell inspections and the EBI authorities from then on determined in the case of each individual detainee to what extent random stripsearches were called for. The situation of each individual detainee is now discussed at the monthly EBI staff meeting on detainees. 24. On 10 October 2003 researchers from the Free University of Amsterdam presented a report on a study, commissioned in January 2001 by the Minister of Justice, about the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraphs 48-49 below). It concluded that the EBI regime affected the cognitive functioning of detainees in a negative manner, with particular reference to the speed of processing information and response inhibition. This was probably a result of the lack of stimuli in the detention situation. The report further concluded that the EBI regime caused more depression than a restricted community regime and that strip-searches were perceived as humiliating, constituting an extra burden for persons detained in the EBI. On the other hand, the EBI regime provided a better balance between rest and activity than a restricted community regime, as a result of which EBI detainees maintained a healthier life rhythm. In addition it had not been demonstrated that EBI detainees displayed more physical symptoms of persistent mental stress. 25. Under Netherlands law, the civil courts have traditionally had jurisdiction to grant relief against the authorities, if and in so far as no other relief is available. Where a person bases a claim against the authorities on an allegation that the latter has committed a tort within the meaning of Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek) against him or her, the civil courts have jurisdiction in principle. Where the civil courts have jurisdiction, they can also act in summary injunction proceedings (kort geding) in which a plaintiff can, inter alia, request the civil court to issue an order against the authorities. An act by the authorities is unlawful and constitutes a tort when it violates a right of the plaintiff or is contrary to a rule of international or domestic law which seeks to protect the plaintiff’s interests, or to general principles of proper administration (algemene beginselen van behoorlijk bestuur). An action in tort is subject to a limitation period of five years under Article 3:310 (1) of the Civil Code. 26. However, as to the jurisdiction of the civil courts in cases where an administrative appeal lies, it is an established principle under Netherlands law that – given the closed system of legal remedies (gesloten system van rechtsmiddelen) in the Netherlands legal system – the civil court should refrain from examining the lawfulness of an administrative decision, provided that the administrative appeal offers sufficient guarantees as to a fair procedure. On this topic, extensive case-law has been developed by the Netherlands Supreme Court (Hoge Raad) over the last decades, supported by several authorities, to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure, the civil courts have full jurisdiction to review the lawfulness of the administrative decision. On the other hand, a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings (see Supreme Court, 12 December 1986, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1987, no. 381; see also Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, §§ 21-35 and §§ 53-56). 27. In a case in which it gave judgment on 3 December 1971, the Supreme Court examined the question whether a party which considers that it has been injured by a judicial ruling against it can bring a subsequent civil action in tort against the State arguing that the judge failed to act with due care in giving that ruling. The Supreme Court found that this was not possible, holding that it was solely for the legislature to decide in what cases a remedy was to be provided. It would be incompatible with this principle if an unsuccessful party were to have the possibility, via a civil action, of making the correctness of a [final] judicial ruling the subject matter of new proceedings, and thus to obtain a renewed examination in another manner than that provided for by statute. It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles (fundamentele rechtsbeginselen) that the case could no longer be said to have been determined in a fair and impartial manner, and if there was no possibility of appeal nor had there ever been such a possibility, could the State be held liable for the effects of such a ruling in a civil action in tort (NJ 1972, no. 137; see also Supreme Court, 29 April 1994, NJ 1995, no. 727; Court of Appeal of The Hague, 16 July 1998 and 12 November 1998, NJ 1999, nos. 256 and 127; and Court of Appeal of The Hague, 7 April 2000 and 18 May 2000, Administrative Law Reports (Jurisprudentie Bestuursrecht) 2000, nos. 147 and 142). 28. In a judgment given on 3 April 1987 concerning civil proceedings taken against the Netherlands State by an association of detainees who wished to challenge a special restricted-detention regime in a specific wing of the prison in The Hague, the Supreme Court held that, as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned (that is to say, the individual complaint procedure provided for in Article 51 et seq. of the Prison Act 1953 (Beginselenwet Gevangeniswezen) as in force at that time) and it was not in dispute that this remedy offered sufficient procedural safeguards, the plaintiff’s case had been correctly declared inadmissible, as the association had acted solely “in the context of promoting the interests of its members”, which were already safeguarded by the individual complaint procedure under Article 51 et seq. of the Prisons Act 1953 (NJ 1987, no. 744). 29. In a judgment given on 1 February 1991 (NJ 1991, no. 413) in a civil action against the Netherlands State brought by a coaccused of a successful applicant in Strasbourg (Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166), the Supreme Court held: “It is embedded in the [Netherlands] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should, but must, be executed. It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity, via a claim [for damage arising from tort] against the State, to bring a fresh set of proceedings challenging the decision of the criminal court judge or the acceptability of the [criminal] proceedings leading to the decision and to have [the subject matter] reviewed by the civil courts. Considering the obligations flowing from Articles 1, 5 and 13 [of the Convention] to secure the rights set out in Article 6 [of the Convention] and to provide an effective remedy in the event of a violation of those rights, an exception must be made to the above-mentioned rules should a ruling of the European Court [of Human Rights], which the criminal court judge could not take into account in his decision, prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article 6 § 1 [of the Convention]. When such an exceptional case occurs, immediate execution of the decision can no longer be permitted under the legal system, and the person convicted can institute interim injunction proceedings [before the civil court judge] seeking – depending on the circumstances – to have execution prohibited, suspended or limited. The nature of interim injunction proceedings and the reticence to be observed by the judge in interim injunction proceedings when examining the manner in which an irrevocable decision of the criminal court judge has come about, mean that there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of the European Court [of Human Rights] indeed requires that the above-mentioned conclusion be reached.” In this case, the Supreme Court accepted the Court of Appeal’s finding against the plaintiff in view of the fact that, when the impugned ruling was given on 22 December 1988, the Court had not yet delivered its judgment in the Kostovski case. 30. A number of persons detained in the EBI have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime, or certain aspects of it, relaxed (for further details, see Lorsé and Others, cited above, §§ 40-42). 31. On 1 January 2003 an amendment to Article 457 of the Code of Criminal Procedure (Wetboek van Strafvordering – “the CCP”) entered into force, governing possible means of obtaining revision (herziening) of final judgments. This amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by the European Court of Human Rights that the criminal proceedings leading to that conviction had been in violation of the Convention. The relevant part of the amended text of Article 457 of the CCP reads as follows: “1. An application for revision of a final ruling (eindbeslissing) entailing a conviction which has obtained the force of res iudicata can be lodged: ... 3o. on the ground of a ruling of the European Court of Human Rights in which it has been established that [the Convention or one of its Protocols] has been violated in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of Article 41 of [the Convention].” A request for revision can be lodged with the Supreme Court by the Procurator-General, the convicted person or the latter’s lawyer within a period of three months after the convicted person has become aware of the Court’s ruling referred to in Article 457 (1), subparagraph 3 (Article 458 of the CCP). 32. If the Supreme Court accepts a request for revision based on Article 457 (1), subparagraph 3, it can either itself determine the criminal charges after reopening of the criminal proceedings, or order the suspension of execution of the original judgment and remit the case for a fresh determination to a Court of Appeal different from the one that gave the original judgment (Article 567 (2) of the CCP). 33. In its judgment of 23 April 1997 in the case of Van Mechelen and Others v. the Netherlands (Reports 1997-III), the Court found a violation of the Convention in that the criminal proceedings against the four applicants had not been conducted in compliance with the requirements of Article 6 §§ 1 and 3 (d) of the Convention. In its judgment, it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the applicants’ claim for non-pecuniary damage, considering that that part of the applicants’ claim for just satisfaction was not ready for decision. 34. On 23 April 1997 the applicants in that case lodged a request for their immediate release from detention, failing which they would bring summary injunction proceedings against the State. On 25 April 1997 the Minister of Justice decided to grant them temporary release (strafonderbreking) and they were released from prison on the same day. 35. The Court determined the applicants’ claims for non-pecuniary damage in its judgment of 30 October 1997 (Van Mechelen and Others v. the Netherlands (Article 50), Reports of Judgments and Decisions 1997VII), in which it noted that under domestic law it was not possible for the applicants to obtain a retrial1. The applicants had claimed 250 Netherlands guilders (NLG) for each day spent in detention, resulting in total claims of between NLG 746,000 and NLG 752,500. After having examined the respondent Government’s comments on those claims, the Court awarded one applicant NLG 30,000 (13,613.41 euros (EUR)) and each of the three other applicants NLG 25,000 (EUR 11,344.51) for non-pecuniary damage, and rejected the remainder of the applicants’ claims for non-pecuniary damage. 36. On 19 February 1999 the Committee of Ministers of the Council of Europe, exercising its supervisory powers under the Convention as regards the execution of the Court’s judgments of 23 April 1997 and 30 October 1997, adopted a final resolution (Res DH(99)124) in the case. Having noted the measures taken by the Netherlands on the basis of the Court’s judgments, the Committee of Ministers concluded that the manner in which the Netherlands had executed both judgments was in compliance with their obligations under the Convention. 37. On 29 April 1999 three of the four applicants brought a civil action in tort against the Netherlands State before the Hague Regional Court. They sought a declaratory ruling that the Netherlands State was liable for pecuniary and non-pecuniary damage arising out of unlawful administration of justice in violation of their rights under Article 6 §§ 1 and 3 (d). They sought payment of compensation corresponding to NLG 250 for each day spent in detention, less the compensation amount awarded by the Court. They based their claims on the argument that, given the Court’s findings in its judgment of 23 April 1997, it had been established that in the domestic criminal proceedings against them the Netherlands judge had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful. 38. In its judgment of 5 July 2003, following appeal proceedings brought by the Netherlands State, the Hague Court of Appeal quashed the impugned judgment given on 17 January 2001 by the Regional Court, and for the time spent in detention (pre-trial and following conviction) awarded compensation for non-pecuniary damage to the first plaintiff in the amount of EUR 190,240, less EUR 13,613.41 already awarded by the Court. It awarded the second plaintiff EUR 127,120, less EUR 11,344.51 awarded by the Court, and the third plaintiff EUR 127,140, less EUR 11,344.51 awarded by the Court. The Court of Appeal held, inter alia, that: “The finding of the European Court [of Human Rights] that full redress (volledige genoegdoening) by means of a ‘retrial’ in the Netherlands is not possible, means that the European Court may award compensation on grounds of equity (vergoeding naar billijkheid), but not that in subsequent civil proceedings the domestic judge can no longer award full compensation for damage (volledige schadevergoeding). The State’s argument, that [the three plaintiffs] requested compensation for damage for the first time before the European Court and not previously before the domestic judge, and that the European Court would have taken into account in its judgement the same claims for damages (schadeposten) as those now in issue in the present procedure, fails because no rule exists prohibiting the bringing of a claim before the Netherlands judge seeking compensation for damage, a part of which – namely an award in equity – has already been awarded in separate proceedings before the European Court.” 39. In its judgment of 18 March 2005 on the appeal on points of law brought by the Netherlands State against the ruling of 5 July 2003, the Supreme Court held that the State had been correct in not challenging this part of the reasoning in the impugned judgment. 40. On 4 February 2003 the Court delivered its judgment in the case of Lorsé and Others (cited above), finding a violation of Article 3 of the Convention in respect of the applicant Lorsé in that, during his stay in the EBI of more than six years, the applicant – who was already subjected to a great number of control measures – had been subjected to weekly routine strip-searches without convincing security reasons. It found no violation in respect of the other grievances raised by Mr Lorsé and the other applicants (his spouse and his children) under Articles 3, 8 and 13 of the Convention. As regards damages, the applicants requested the Court to award them a symbolic amount of NLG 1,000 (EUR 453.78), stating that no amount of money would be capable of compensating for the harm suffered by them. Taking the view that Mr Lorsé had sustained some non-material damage on account of the treatment which had been found contrary to Article 3, the Court awarded him for nonpecuniary damage EUR 453.78, that is to say, the full amount claimed under that head. 41. On 6 February 2003 Mr Lorsé brought summary injunction proceedings against the Netherlands State before the judge responsible for provisional measures in the Civil Law Division of the Hague Regional Court, seeking an order against the State to cease with immediate effect the execution of the fifteen-year prison sentence that had been imposed on him, to release him immediately from prison and not to seek payment of the fine of NLG 1,000,000 (EUR 453,780.22) that had also been imposed. 42. On 12 February 2003 the judge responsible for provisional measures ruled on the applicant’s request. This decision, in its relevant part, reads: “3.1. The plaintiff has an urgent interest in his claim. The civil court judge – in this case the judge responsible for provisional measures in summary injunction proceedings – is empowered to take cognisance [of the case], as the plaintiff claims that the State has acted unlawfully toward him, inter alia by continuing his detention. 3.2. For the determination of the claim, it is a fact that the State has violated the applicant’s rights under Article 3... 3.3. Under Article 41 of [the Convention] the applicant is entitled to reparation (rechtsherstel) in respect of this irreparable violation of the Convention. If need be, he can assert that right before the courts. The State is deemed to be acting unlawfully towards him if no suitable form of redress is provided. 3.4. The parties provide different answers to the question as to whether the measures requested by the plaintiff ... constitute a form of redress compatible with our legal system and, if so, whether those measures are suitable and appropriate in this case. 3.5. [The judge responsible for provisional measures rejects] the argument of the State that the closed system of legal remedies in criminal proceedings and the corresponding obligation of the State to execute rulings of the criminal courts, militate against this form of redress. In this system, no provision has been made to date for (a suitable response to) a violation of the kind at issue in the instant case. There have been no prior similar cases, and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in existing case-law. In principle, early release or non-execution of a fine imposed may constitute a suitable form of redress for a violation of Article 3 of the Convention of the kind in issue. This exception to the closed system of legal remedies in criminal cases is, to that extent, consistent with the Supreme Court’s approach in its judgment of 1 February 1991 (NJ 1991, 413). 3.6. The State has referred to the financial compensation awarded by the [European Court of Human Rights] and to the satisfaction which, in the case of the applicant, lies in the fact that his complaint was declared well-founded [by the European Court of Human Rights]. However, these two elements do not form a suitable, and certainly not a sufficient, form of redress for the plaintiff. Consequently, they do not stand in the way of the claims being allowed. The plaintiff can request the domestic judge to order that additional measures be taken. 3.7. In reply to a question, the State stated that it was possible, in this respect, to consider measures such as the plaintiff’s serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure. ... Again, these options do not form an obstacle to allowing the claims. The first option does not constitute sufficient redress in this case, while the option of a pardon corresponds to (a request for) a concession rather than the granting of a right, which is what is at issue here. 3.8. In these circumstances, the State should release the plaintiff earlier than June 2004 [when the plaintiff becomes eligible for early release] and waive the execution of the sentence in its entirety. Having regard to the nature of the violation of the Convention which is an established fact, a form of redress (genoegdoening) which relates to the applicant’s liberty is more suitable, and in any event warrants greater priority than waiving payment of the part of the fine still outstanding. 3.9. No fixed standard exists for ‘offsetting’ the remaining part of the plaintiff’s prison sentence. There are no pertinent reference points on the subject in the existing legislation. This means that the amount of the compensation must be determined on an equitable basis (naar billijkheid). The seriousness of the violation [of the Convention] justifies reduction of the sentence by a period equal to 10% of the number of days for which the applicant was subjected to the regime in the EBI... This amounts to a reduction of 230 days (round figure)... 3.10. On the basis of this solution, the plaintiff’s claim should be rejected. Indeed, the plaintiff has no urgent interest in a provisional measure which will only take effect after about nine months [when the applicant has served his mitigated sentence]... It is assumed that the State (the Minister of Justice) will execute this ruling and release the plaintiff at a time that can be determined precisely on the basis of the standard set out here. If need be, the plaintiff can apply again in due course to the judge responsible for provisional measures. 3.11. Each of the parties can in fact be deemed to have been ruled against.” 43. Both parties agreed to lodge a direct “leapfrog” appeal on points of law (sprongcassatie) with the Supreme Court, which dismissed both appeals on 31 October 2003. Although it agreed with the Netherlands State that the judge responsible for provisional measures had incorrectly assumed that Article 41 of the Convention gave Mr Lorsé an (independent) right to redress which, if need be, could be asserted before the domestic judge, it held that this could not lead to the setting-aside of the judgment as, pursuant to the Convention, the State was obliged to provide redress. However, relying on the Court’s reasoning in the cases of Papamichalopoulos and Others v. Greece ((Article 50), judgment of 31 October 1995, Series A no. 330B) and Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000VIII), the Supreme Court considered that, although the State was in principle free to determine the manner in which redress was to be provided, that freedom did not mean that the domestic judge was unable to take a decision on that point, but simply that a suitable form of redress was to be sought within the domestic legal order. As the Netherlands State had acted unlawfully towards Mr Lorsé in so far as his rights under Article 3 had been violated, as found by the Court, Mr Lorsé was entitled to claim compensation from the State, which would be acting unlawfully if it failed to provide a suitable form of redress. The Supreme Court accepted that such compensation could be granted in a manner other than the payment of a sum of money. In cases such as the present one, where the violation found concerned the manner of execution of a custodial sentence, it could take the form of cessation of the execution of the sentence. The Supreme Court found that the order of the judge responsible for provisional measures to cease execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of Mr Lorsé. As regards the argument raised by the State that the closed system of legal remedies and the corresponding obligation for the State to execute rulings of the criminal courts precluded the form of redress claimed by Mr Lorsé, the Supreme Court – while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [as in the case of Van Mechelen and Others] and a situation in which the violation found was unrelated to such a conviction or proceedings [as in the case of Mr LorséLorsé. 44. In its judgment of 8 April 2003 in the case of M.M. v. the Netherlands (no. 39339/98), in which the applicant complained that his telephone conversations with a Mrs S. had been recorded by the latter with equipment provided by the police with a view to their use as prosecution evidence against him, the Court found a violation of Article 8 of the Convention on the ground that the conversations in question had not been recorded “in accordance with the law”. As the applicant had declined to submit any claims for compensation in respect of pecuniary or nonpecuniary damage, stating that he intended instead to pursue such claims before the domestic courts, the Court made no award for just satisfaction under those headings. In so far as the applicant claimed compensation for legal costs and expenses incurred by him in the domestic proceedings, the Court rejected the applicant’s argument that the criminal proceedings against him had resulted entirely from the violation it had found in his case, taking the view that those proceedings had in fact been occasioned by a reasonable suspicion of wrongdoing on the applicant’s part, and recalling that it had already at the admissibility stage rejected the applicant’s complaints touching on the use made of the evidence obtained as a result of the violation found. 45. On an unspecified date and on the basis of the Court’s findings in its judgment of 8 April 2003, the applicant M.M. filed a request with the Supreme Court for revision of the final domestic judgment of 16 June 1995, in which the Court of Appeal – without the recorded telephone conversations having been relied on in evidence – had convicted him of having sexually assaulted Mrs S. and another woman and had sentenced him to a suspended term of four months’ imprisonment and payment of a fine of NLG 10,000 (EUR 4,537.80), to be replaced by 100 days’ detention in the event of non-payment. 46. On 27 September 2005 the Supreme Court accepted the request for revision and, in accordance with Article 467 (2) of the CCP, determined the matter itself. It held: “4.4. ... the State has the obligation to provide redress if the European Court of Human Rights has found a violation of a Convention provision. Such redress can be provided entirely or in part within the framework of the revision procedure, amended for this purpose. 4.5. Having regard to the violation of Article 8 found by the European Court of Human Rights, the Supreme Court is of the opinion that revision is necessary for the purposes of redress. To that extent, the request is well-founded. ... The request is aimed primarily at having the Supreme Court declare the prosecution inadmissible, while quashing the judgment in respect of which revision is sought. 4.6. The Supreme Court cannot accede to this request since it is only in exceptional cases that a prosecution may be declared inadmissible, and the instant case cannot be considered as such. In this respect the petitioner relies mistakenly on [the Supreme Court’s judgment of 19 December 1995; NL 1996, no. 249]. In that case the Supreme Court held that, in certain circumstances, a serious breach of the principles of proper proceedings may lead to the prosecution being declared inadmissible if, as a result of that breach, deliberately or owing to gross negligence of the defendant’s interests, the defendant’s right to a fair hearing has been violated. As the European Court of Human Rights, in its decision on admissibility [M.M.. v. the Netherlands (dec.), no. 39339/98] of 21 May 2002, preceding its judgment of 8 April 2003, declared inadmissible the [applicant’s] complaint under Article 6 of the Convention as being manifestly illfounded, it cannot be said that there has been a serious breach of the principles of proper proceedings as a result of which, deliberately or owing to gross negligence of the [applicant’s] interests, his right to a fair hearing has been violated. 4.7. Taking into account that, in the proceedings leading to the judgment of which revision is sought, there was no breach of Article 6 and that the contents of the recorded telephone conversations were not used in evidence, there is no ground for referring the case to another Court of Appeal under Article 461 of the CCP for the purposes of obtaining redress, as requested by the petitioner in the alternative. 4.8. In the light of the importance of the provision violation and the nature and seriousness of the irreparable defects in the preliminary criminal investigation, as found by the European Court of Human Rights, the Supreme Court will, after accepting the [revision] request, determine the matter itself, in accordance with Article 467 (2) of the CCP, and reduce the fine imposed by the Court of Appeal in the following manner.” The Supreme Court quashed the original judgment of the Court of Appeal in part, that is, in respect only of the amount of the fine imposed and the duration of the alternative detention period, reducing the fine by 10% to EUR 4,000 and the duration of the alternative detention to 90 days. 47. The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as regards the EBI, as set out in its Report on the visit to the Netherlands from 17 to 27 November 1997, together with the Netherlands Government’s response to those findings, are set out in the Court’s judgment of 4 February 2003 in the case of Van der Ven (cited above, §§ 32-35). 48. The CPT visited the Netherlands again from 17 to 26 February 2002 and, in the course of this visit, carried out a follow-up visit to the EBI. Its findings were the following (Report to the Authorities of the Kingdom of the Netherlands on the visits carried out to the Kingdom in Europe and to the Netherlands Antilles by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in February 2002, CPT/Inf (2002) 30, excerpts): “33. At the time of the February 2002 visit, the Extra Security Institution (EBI) at the Nieuw Vosseveld Prison Complex was being renovated, and the inmates allocated to it were being held in the Temporary Extra Security Institution ((T)/EBI) building nearby (cf. paragraph 58 of CPT/Inf (98) 15). In addition to paying a brief visit to the facilities undergoing renovation, the CPT’s delegation examined the regime currently being applied, and devoted attention to the procedures governing placement and extension of placement in EBI. In the course of the visit, interviews were held with all 14 inmates, the establishment’s management and staff, as well as representatives of the EBI Selection Board. ... c. regime 37. Following its first visit to the EBI, the CPT expressed considerable concern about the regime applied within the institution. It recommended that the regime be revised, in particular as regards certain of its features: the group system (if not discarded, to at least be relaxed and inmates to be allowed more out-of-cell time and a broader range of activities); searching policies (to be reviewed in order to ensure that they are strictly necessary from a security standpoint); and visiting arrangements (to be reviewed, the objective being to have visits take place under more open conditions) (cf. paragraphs 61 to 70 of CPT/Inf (98) 15). However, in their response (dated 1 March 1999) to the CPT’s visit report, the Dutch authorities defended point by point the different aspects of the regime being applied in the EBI (cf. paragraph 29 of CPT/Inf (99) 5). 38. In the course of the February 2002 visit, the Director of the Nieuw Vosseveld Prison Complex and the Acting Director of the EBI informed the CPT’s delegation that a limited number of modifications to the regime and its implementation had taken place. For instance, steps were being taken to increase staff/inmate communication through a training programme known as “Safety at the door”, as well as by the previously-mentioned adaptations of the exercise yards. Further, a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells. Another positive development was that the special “handcuffs regime” (cf. paragraph 8 of CPT/Inf (98) 15) had not been applied in respect of any inmate since 1999. However, despite these welcome developments, the regime in the unit was essentially the same as in 1997, and the prison’s management acknowledged that there had been “no change in most of the rules”. Although the official allowance for activities was generous (50 or more hours per week), in practice, most inmates’ out-of-cell time did not appear to have increased (averaging 2 to 4 hours per day). The stringing of plastic curtain hooks on short rods, which was performed individually in the cells, continued to be the only work offered. It remained the case that body searches - including anal inspections - were performed on each prisoner at least once a week 13, a process which was invariably perceived as humiliating. Conditions under which visits and sessions with non-custodial staff took place also continued to be very restrictive. Inmates’ remarks to the delegation (e.g. “losing positivity”, lacking “future feelings”, “beginning to hate people from the heart”, and/or having to cope by being “mentally separate”) frequently echoed those made in November 1997. To sum up, inmates held in the EBI remained subject to a very impoverished regime. 39. In an environment which is potentially hazardous to the mental health of prisoners, it is of critical importance to provide a varied programme of appropriate stimulating activities (including education, sport, work of vocational value, etc.). The CPT calls upon the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff. Following a recommendation made by the CPT in its previous periodic visit report (cf. paragraph 70 of CPT/Inf (98) 15), the Dutch authorities commissioned the University of Nijmegen to carry out an independent study of the psychological state of current and former inmates of the EBI. A preliminary study completed on 17 April 2000 concluded that “an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible.” The Dutch authorities have indicated that such an empirical examination has in fact commenced and would be completed by Summer 2003. The CPT trusts that it will receive the results of the study in due course. One point raised by the preliminary study may be noted, i.e that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “contradiction in the policy” of the EBI. The Committee would like to receive the views of the Dutch authorities on this statement. 13. Each prisoner was also subjected to such a search before and after being interviewed by members of the CPT’s delegation.” 49. The Netherlands Government responded to these findings in the following terms (CPT/Inf (2003) 39, excerpts): “The “Extra Security Institution” at the Nieuw Vosseveld Prison Complex recommendations ... - the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff (paragraph 39) Response: Prisoners in the EBI spend a total of about 52 hours a week on out-of-cell activities, and these activities are no less varied than in other prisons. They include exercise, visits, sport, work, education and recreation. Not all prisoners take part in all activities. What they do depends partly on interest and ability. The work in the EBI is simple. However, it is difficult to provide work that is more varied and yet meets security requirements. In principle, work in the EBI is done jointly. The Government refutes the claim that, on average, prisoners participate in activities for no more than between two and four hours a day. In fact they spend an average of four to five hours a day in out-of-cell activities. The Government agrees that prisoners and staff should have more contact. Fenced-off walkways for staff have now been erected in the exercise yards. They provide more opportunities for informal contact and interaction between prisoners and staff. The number of searches has been sharply reduced since the opening of the EBI. Besides a weekly search during cell checks, searches are carried out after visits to areas containing potentially dangerous objects, such as the hairdresser’s or the doctor’s or dentist’s surgery, and after contact with the outside world, such as visits. Searches are still necessary from the point of view of security. The Government would point out that searches are also conducted in ordinary prisons. On 4 February 2003, in two separate cases against the Netherlands, the European Court of Human Rights ruled that: “the combination of routine strip-searching with the other stringent security measures in the EBI amounted to inhuman or degrading treatment in violation of article 3 of the Convention. There has thus been a breach of this provision.” (Van der Ven v. the Netherlands, Application no. 50901/99, ECtHR 4 February 2002, § 63; see also Lorsé et al v. the Netherlands, Application no. 52750/99, ECtHR 4 February 2002, § 74). These judgments and other considerations have prompted the Government to stop routine weekly searches in the EBI over a long period of time. The EBI’s regulations will be amended. ... requests for information - the results of the “empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners”, being conducted by the University of Nijmegen (paragraph 39) Response: The study is expected to be completed by autumn 2003 as indicated. As soon as the findings are available, the Government will forward them to the Committee. - the views of the Dutch authorities on the statement, made in the preliminary study carried out by University of Nijmegen, to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “contradiction in the policy” of the EBI (paragraph 39) Response: The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime. However, opportunities to exercise influence are necessarily more restricted in the EBI than in other prisons because of the nature of the system. The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society. Placement in the EBI is mainly determined by considerations of safety and security. In this sense the EBI differs from other prisons. The emphasis on safety and security means that placement in the EBI does not depend on a prisoner’s behaviour but on the risk he represents.”

dev

001-5422

ENG

GRC

ADMISSIBILITY

BITROS A.B.E.E. IRON AND STEEL PRODUCTS, KORAL E.P.E. GENERAL REPAIRS OF SHIPS and MARINAKIS A.E. v. GREECE

Inadmissible

All three applicant companies are registered under Greek law. The first has its seat in Apropirgos in Attika, the second in Piraeus and third in Keratsini. They are represented before the Court by Mr C. Calavros, a lawyer practising in Athens. A. The facts of the case, as submitted by the parties, may be summarised as follows. All three applicant companies are creditors of Elefsis Shipyards S.A., a company 97,1% of the capital of which belongs to four public sector banks. The Commercial Bank of Greece holds 65% of the capital, the Industrial Development Bank of Greece 24,6%, the Investment Bank, which is a subsidiary of the Commercial Bank, 4,7% and the Ionian Bank 2,8%. In July 1992 Elefsis Shipyards S.A. was sold to A.M. Ltd under Article 44 of Law 1892/1990, which applies to "ailing companies". The sale fell within the context of a settlement procedure initiated by the majority of the creditors of the shipyard. It was approved by the majority of its shareholders and the Government. Under the terms of the sale agreement, A.M. Ltd did not become liable for most of the outstanding debts of Elefsis Shipyards except for, inter alia, claims of the shipyards' suppliers that had been properly entered into the company's books. It appears that the applicant companies had claims falling within this category. Elefsis Shipyards remained under A.M. Ltd until 11 August 1995. Although A.M. Ltd did not honour its obligation under the above-mentioned agreement to satisfy the claims of the applicant companies, the latter continued supplying the shipyards. These were heavily financed by a number of public sector banks including those that had previously owned them. On 11 August 1995 A.M. Ltd, considering that the July 1992 contract for the purchase of the shipyards was null and void, withdrew from it. It also decided to surrender the management of the shipyards to the Investment Bank. Moreover, it was announced that the shipyards would suspend their operation. On 25 August 1995, five of the creditors of Elefsis Shipyards - the Social Security Fund, the National Bank of Greece, the Commercial Bank of Greece, the Agricultural Bank of Greece and the Industrial Development Bank of Greece - requested the Court of Appeal (Efetio) of Athens to place Elefsis Shipyards under the special liquidation procedure of Article 46a of Law 1892/1990. They asked that the Investment Bank be appointed special liquidator. They also requested that the shipyards' personnel should not be dismissed so that the shipyards would continue functioning and discharge their obligations under certain contracts they had with the Greek State. This would have enabled the shipyards to be sold at a higher price later. This application was notified to a number of interested parties but not to all the creditors of Elefsis Shipyards. The applicant companies were not among those to whom the application was notified. The second and third applicant companies, together with 14 other companies, intervened in the proceedings arguing that placing Elefsis Shipyards under the special liquidation procedure of Article 46a of Law 1892/1990 would amount to a violation of their rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. On 19 September 1995 the Court of Appeal of Athens considered that the conditions set forth in Article 46a of Law 1892/1990 were met in the Elefsis Shipyards' case. The claims of the creditors who had lodged the application represented more than 51% of the total claims against the company and the shipyards were a commercial company that had suspended its operation for financial reasons. As for the rest, it was not necessary for the court to examine the reasons why the company had become indebted, who was responsible for the debts and whether placing the company under the special liquidation procedure would be in the best interests of all the creditors or of third persons or even of the company itself. According to the Court of Appeal, the right of the second and third applicant companies under the Constitution and the Convention to be heard was not violated because they could intervene in the proceedings. Moreover, the Constitution and the Convention did not prevent the State from enacting laws for the control of the use of private property in the public interest. Therefore, the court decided that Elefsis Shipyards should be placed under the special liquidation procedure of Article 46a of Law 1892/1990. Furthermore, the court considered that, under the above-mentioned law, it had to appoint as the special liquidator the bank suggested by the creditors, in casu the Investment Bank. It also decided that the shipyards' personnel should not be dismissed. The shipyards should continue functioning and fulfil their obligations under certain profitable contracts which were pending. This would increase the value of the company which would then be sold at a higher price. According to the judgment of the Court of Appeal, a company placed under special liquidation in accordance with Article 46a of Law 1892/1990 cannot be declared bankrupt. No judicial decisions can be enforced and no interim measures can be ordered against it. The decision of 19 September 1995 of the Court of Appeal, the text of which was finalised on 26 September 1995, was not served on the intervening parties. On 30 January 1996 the first applicant company obtained an order for payment against Elefsis Shipyards for 118,586,000 drachmas plus interest and costs. This was served on Elefsis Shipyards on 13 February 1996 and 18 November 1997. On 14 February 1996 the second applicant company obtained a similar order for 25,000,000 drachmas plus interest and costs. On 20 March 1996 it obtained a further order for 32,500,000 drachmas plus interest and costs and on 16 July 1996 an order for 55,000,000 drachmas plus interest and costs. These were served on Elefsis Shipyards on 19 February 1996, 21 March 1996 and 17 October 1997 respectively. They were all reserved on 14 November 1997. On 26 March 1996 the third applicant company obtained an order for 6,000,000 drachmas plus interest and costs, on 11 April 1996 an order for 9,000,000 drachmas plus interest and costs and on 21 May 1996 an order for 10,000,000 drachmas plus interest and costs. These were served on Elefsis Shipyards on 27 March 1996, 16 April 1996, and 17 October 1997 respectively. They were all reserved on 14 November 1997. These orders have been served on Elefsis Shipyards and have acquired res judicata effect. However, it has proved impossible to have them enforced. Elefsis Shipyards continue functioning and making losses. They are financed by the same banks that requested its placement under special liquidation. B. Relevant domestic law According to Article 631 of the Code of Civil Procedure, a payment order can be enforced upon being served for the first time on the person concerned.

dev

001-81747

ENG

DEU

ADMISSIBILITY

OZGUR-KARADUMAN v. GERMANY

Inadmissible

Peer Lorenzen

The applicant, Ms Tülin Özgür-Karaduman, has the citizenship of Germany and Turkey. She was born in 1979 and lives in Mannheim in Germany. She was represented before the Court by Mr M. Schmitt, a lawyer practising in Mannheim. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice. The Turkish Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 and Rule 44), did not indicate that they wished to exercise that rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 May 1999 the applicant sold her car to Ms V. At that time, she lived at her father’s place of residence in Mannheim. On 2 August 1999 Ms V. lodged a motion against the applicant with the Mannheim District Court (Amtsgericht), claiming DEM 500 as damages for the car’s alleged defects. The motion and all further correspondence were served to the place of residence of the applicant’s father. On 9 September 1999 the District Court decided to apply a summary procedure (Verfahren nach billigem Ermessen) pursuant to section 495a of the Code of Civil Procedure (Zivilprozessordnung, see relevant domestic law below). On 12 October 1999 Ms V. extended her action and claimed further DEM 1,239.64. By partial judgment (Teilurteil) of 22 October 1999 the District Court ordered the applicant, who had not participated in the proceedings, to pay DEM 500 plus interests to Ms V. By final judgment (Schlussurteil) of 19 November 1999 the District Court ordered the applicant to pay further DEM 1,239.64 plus interests to Ms V. Both judgments were delivered to the place of residence of the applicant’s father. On 3 April 2000 the applicant, represented by counsel, lodged an action for declaration of nullity (Nichtigkeitsklage) pursuant to section 579 § 1 no. 4 of the Code of Civil Procedure, requesting the Mannheim District Court to set aside its judgments of 22 October and 19 November 1999. She alleged that she had left Germany on 14 May 1999 with the aim to live permanently in Turkey. She had neither informed her father about her departure nor left her new address. She had not learned about the civil proceedings until her return to Germany on 4 March 2000, when her father gave her the mail which had accumulated during her absence. In support of her allegations, she submitted her own affidavit (eidesstattliche Versicherung). She further nominated five witnesses, including her father, her mother, two former friends of hers and the postman who had delivered the final judgment of 19 November 1999 to her father’s place of residence. The defendant, Ms V., contested these submissions. She pointed out that she had received a demand for payment from the applicant, which was dated 26 October 1999 and had been posted in Germany. The applicant replied that this letter had been posted by a friend of hers, whom she named as a witness. On 7 June 2000, following a hearing, the Mannheim District Court declared the applicant’s action inadmissible. While leaving the question undecided whether the action for declaration of nullity was applicable in the present case, it found that the applicant had failed to establish to the satisfaction of the court (glaubhaft machen) that she had lodged her action within the statutory time-limit of one month after having learned about the two judgments. Taking into account both parties’ submissions, the Regional Court did not attach credence to the applicant’s own affidavit. It considered, firstly, that the applicant had not submitted admissible evidence in support of her allegation that the demand for payment had been posted not by the applicant herself, but by a friend of hers. Furthermore, according to the acknowledgment of service (Zustellungsurkunde) of 24 November 1999, the final judgment had been served on the applicant herself. The applicant had not disproved that fact. The District Court further noted that the applicant had alleged that she had received the partial judgment of 22 October 1999 on her return to Germany. This allegation was contradicted by the fact that the copy of the partial judgment which was to be served on the applicant was located in the case-file of the first set of proceedings, because it had not been picked up by the addressee. The District Court further pointed out that the applicant could have submitted further evidence, such as her air tickets or affidavits given by other persons. She failed however to do so. Referring to section 294 § 2 of the Code of Civil Procedure, the Regional Court decided not to hear any witnesses, as these had not been presented by the applicant during the hearing. The applicant subsequently lodged an appeal with the Mannheim Regional Court (Landgericht). She argued, inter alia, that the District Court should have heard the witnesses, as section 294 § 2 of the Code of Civil Procedure did not apply in the instant case. She alleged that it would have been up to the District Court to summon the witnesses. She further maintained that the District Court, during the hearing, had not mentioned that any witnesses had been missing. On 23 February 2001 the Mannheim Regional Court rejected the applicant’s appeal. The Regional Court noted, firstly, that the District Court, in the first set of proceedings, had violated the rules of civil procedure by applying the summary procedure even though the value of the issue exceeded the sum of DEM 1,200. However, this procedural error did not justify an annulment of the judgments. Secondly, the Regional Court confirmed that the applicant had not established that she had lodged her action within the statutory time-limit. The Regional Court shared the District Court’s doubts as to the credibility of the applicant’s own affidavit. It further considered that the applicant had failed to explain why she had kept her German bank account and why she had not deregistered with the German authorities. Contrary to the applicant’s point of view, the District Court had not been obliged to summon any witnesses. According to Section 294 § 2 of the Code of Civil Procedure it was only admissible to take evidence by means which were immediately available to the court. It followed that only those means of evidence had to be considered which had been presented by the respective party. According to the Regional Court, the opinion that the court was obliged to summon witnesses was consistent neither with the wording of the legislation nor with the case-law of the Federal Court of Justice. In this respect, the Regional Court referred to a judgment of the Federal Court of Justice of 16 December 1959 (published in that court’s official collection [BGHZ] volume 31, p. 351). On 9 April 2001 the Federal Constitutional Court, without giving reasons, refused to accept the applicant’s constitutional complaint for adjudication. The decision was served on the applicant’s counsel on 17 April 2001. The relevant provision of the Code of Civil Procedure (Zivilprozessordnung), as applicable at the relevant time, reads as follows: Section 495a Summary procedure “If the sum in dispute does not exceed one thousand and two hundred German marks, the court may determine its procedure at its reasonably exercised discretion (nach billigem Ermessen). Upon request, it shall hold a hearing.” The summary procedure was introduced in 1990 with the aim to unburden the district courts by facilitating proceedings with a low value in dispute. When applying this procedure, a district court is not bound by the formal requirements of the Code of Civil Procedure. It has, however, to respect the right to a fair hearing (see the references in Zöller/Greger, Zivilprozessordnung (Commentary on the Code of Civil Procedure), 23rd ed. 2002, § 495a, marginal note 8). The relevant provisions of the Code of Civil Procedure read as follows: Section 579 Action for declaration of nullity “(1) An action for declaration of nullity is admissible: 4. if a party had not been properly represented during the proceedings...” According to the case-law of several appeal courts, the above-cited provision can also be applied by analogy in cases in which a party was ignorant of the proceedings through no fault of his or her own (see the references in Zöller/Greger, cited above, § 579, marginal note 6a). Section 586 Time-limit “(1) The action [for declaration of nullity] has to be lodged within a time-limit of one month. (2) The time-limit shall start on the day on which the party learns the ground of nullity... (3) In case a party had not been properly represented before the court...the time-limit shall start on the day on which the judgment is served on that party...” Section 589 Examination of admissibility “(1) The Court shall examine ex officio if the action is admissible and...if it has been lodged within the statutory time-limit. In case of non-compliance, the action shall be rejected as being inadmissible. (2) The facts which establish that the action has been lodged within the time-limit have to be established to the satisfaction of the court (glaubhaft machen).” Section 294 Establishing facts to the satisfaction of the court (Glaubhaftmachung) “(1) A party who has to establish an assertion to the satisfaction of the court may employ all means of evidence and may be allowed to submit their own affidavit. (2) Any evidence which cannot be taken immediately is inadmissible.” The relevant provisions on appeals against first instance judgments read as follows: Section 511 “Appeals on facts and law shall take place against the final judgments issued in the first legal instance.” Section 511 a “(1) Appeals on facts and law shall be inadmissible if the value of the subject matter in dispute does not exceed one thousand and five hundred German marks ...” Section 513 “(1) Default judgments may not be challenged in the appeal by the party against whom they have been issued. (2) A default judgment against which the objection as such is not available shall be subject to appeal to the extent that it is based upon the claim that no default has taken place. Section 511a shall not be applicable.” On 1 January 2002 a new section 321a entered into force, which allows a court, on request of a party, to set aside its own final judgment in case of a violation of the right to a fair hearing.

dev

001-23071

ENG

GRC

ADMISSIBILITY

GALANIS v. GREECE

Inadmissible

Françoise Tulkens

The applicant, Mr Giorgos Galanis, is a Greek national, who was born in 1948 and lives in Athens. He was represented before the Court by Mr S. Tsakyrakis, a lawyer practising in Athens. The Government were represented by Mr V. Kyriazopoulos, Senior Adviser, State Legal Council, and Mrs M. Papida, Legal Assistant, State Legal Council. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant graduated from the Pedagogical Academy of Larissa in 1968. The Pedagogical Academies were, at the time, the only institutions training the future teachers of elementary schools and all graduates were eligible for appointment to the public school system. After graduation the applicant moved to Sweden where he worked as a teacher of Greek language at the elementary school of Stockholm from 1978 untill 1984. In 1984 he returned with his wife and three children to live permanently in Greece. On 14 August 1984 he applied to the Ministry of National Education and Religion asking to be appointed as a teacher to a Greek public school. The appointments were made according to a seniority list comprising all persons having the necessary qualifications, mainly a degree from a Pedagogical Academy. The immediate result of his application should have been his registration in the list, so that he could be appointed when his turn would come. On 24 September 1984 the Ministry rejected his application and returned his documents because the applicant was a Jehovah’s Witness. The Ministry indicated that according to an opinion of the State Legal Council, it was prohibited for persons believing in religions or dogmas other than the Greek Orthodox to be appointed as teachers. Four years later Law 1771/1988 was enacted and explicitly provided in section 16 that persons believing in religions or dogmas other than the Greek Orthodox were eligible for appointment as teachers. Immediately after the enactment of that law the applicant resubmitted his application asking to be registered in the list of 1984. However, the Ministry registered him on the 1988 list. By the end of 1990 all those who were on the 1984 list had been appointed, but not those who were on the 1988 list. By 1996 the applicant realised that, with the pace the appointments were made, he would not be appointed at all. In effect, Law 1566/1985 provided that no one over 50 years of age could be appointed as a teacher and the applicant would become 50 years old in 1998. On 30 October 1996 he applied to the Ministry of Education asking to be considered as registered in the 1984 list, which would have resulted in his immediate appointment. On 20 December 1996 his application was rejected on the ground that Law 1771/1988 had no retroactive effect, so the applicant was not eligible for registration on the 1984 list. On 28 February 1997 the applicant applied to the Athens Administrative Court asking it to quash the decision rejecting his application. By judgment 1782/1997 of 10 November 1997 the Administrative Court dismissed the application. It held that the authorities had correctly applied Law 1771/1988 which introduced an entirely new provision regarding the appointment of non-Christian Orthodox teachers. Law 1771/1988 was not intended to interfere with the seniority lists of the past. Any possible violations of the Greek Constitution or the European Convention on Human Rights on religious freedom occurred in 1984 and should have been challenged at that time. On 29 October 1998 the applicant appealed to the Supreme Administrative Court. He maintained that Law 1771/1988 did not introduce an entirely new provision but instead tried to remedy the illegal practice of the authorities to exclude all non-Christian Orthodox Greeks from employment in the public education system. If it were to be construed as not having retroactive effect, this would constitute by itself a new and direct violation of the Constitution and the Convention. By judgment 3390/2000 of 26 October 2000 the Supreme Administrative Court dismissed the applicant’s appeal on the ground that the refusal of the authorities in 1996 did not constitute an executory administrative act, but it was a mere repetition of the initial refusal of 1984 and the subsequent registration in the 1988 list and as such could not be subjected to judicial review. In particular, the Supreme Administrative Court held that : “Since the applicant challenged neither the initial refusal of his request nor his subsequent registration in the seniority list of 1988, which contained an omission to register him in the list of 1984, the final decision of the Minister of National Education ... has not an executory character and the applicant’s action against it must be dismissed as inadmissible ...”. Article 16 of Law 1771/1988 provides as follows: “1. Primary education and kindergarten teachers of another dogma or religion who are candidates for appointment will be appointed and placed in public primary schools with more than one teaching posts ... as the case may be, provided that they meet the qualifications of Articles 12 and 13 of Law 1566/1985. 2. In the cases of the above-mentioned paragraph, these teachers will not teach the course of religion, except to students believing in the same dogma or religion, provided that the said course is included in the curriculum. 3. The teachers of paragraph 1 may also be appointed to primary schools and kindergartens with one teaching post, if they are students of the same dogma or religion attending that school or kindergarten.”

dev

001-71530

ENG

DEU

ADMISSIBILITY

METZGER v. GERMANY

Inadmissible

Mark Villiger

The applicant, Ms Gabriele Metzger, is a German national who was born in 1957 and lives in Elztal-Dallau. She was represented before the Court by Mr H.-J. Dohmeier, a lawyer practising in Ludwigshafen. The applicant, an employed bookseller, is a member of the NeckarOdenwald County Council (Kreistag) sitting for the Green party. On 24 April 1990 she attended as a listener a session of the Billigheim Municipal Council (Gemeinderat), which arranged a public discussion and subsequent vote on the question whether an old people’s home in a residential area of the town should be converted into a foster home for mentally ill persons. A citizens’ initiative with approximately thirty members had been formed by the neighbours of that home and further sympathizers to oppose this project. The members of the initiative argued, inter alia, that neighbours, notably children, would be endangered by the prospective patients, and expressed fear that their real property might lose part of its value. During the public discussion in the Municipal Council, a member of the citizens’ initiative, Ms B., repeated these arguments. The applicant herself supported the conversion project. Following the session, the applicant was accused in two letters to the editor published in a regional newspaper, the Rhein-Neckar-Zeitung, of having commented Ms B.’s statement by saying in a rather low voice to her neighbour: “But these are Nazis, these are Nazi methods.” Furthermore, she was accused of having said to a group of people belonging to the citizens’ initiative, who were standing close to the town hall after the session: “You Nazis.” The applicant subsequently instituted civil proceedings in the Mosbach Regional Court both against the four signatories of the letters to the editor and against the editor himself, in the course of which she confirmed in two affidavits that she had never made such statements. On 29 May 1990 the Regional Court granted the applicant an interim injunction prohibiting the defendants to impart the allegation that the applicant had made the impugned statements. On 10 October 1990 the Karlsruhe Court of Appeal quashed the judgment of the Regional Court concerning the editor and dismissed the applicant’s motion for an interim injunction. Furthermore, on 14 November 1990 the Heidelberg District Court conducted a hearing in proceedings brought by the applicant’s lawyer against the Rhein-Neckar-Zeitung for damages caused by the press coverage concerning the applicant’s alleged statements. In that hearing, the applicant, who testified as a witness, again denied having made the impugned remarks. The District Court subsequently partly allowed the action. On 2 October 1990 the Mosbach District Court refused to open criminal main proceedings against the applicant for libel. Having regard to the evidence before it, it argued that it was not sufficiently likely that the applicant would be convicted. Following the public prosecutor’s appeal, the Mosbach Regional Court quashed the judgment of the District Court on 28 December 1990 and opened the main proceedings before the District Court. On 16 July 1991 it allowed the motion of 25 persons to join the proceedings as associated prosecutors (Nebenkläger). On 21 February 1992 the Mosbach District Court acquitted the applicant of two counts of libel to the detriment of 21 persons, of having made two wrong affidavits (falsche Versicherung an Eides Statt) and of having given false evidence in court (falsche uneidliche Aussage). After having heard twenty-three witnesses, the court came to the conclusion that the applicant had not made the impugned statements. The Public Prosecutor’s Office and 21 associated prosecutors appealed against the judgment. On 16 June 1993 the Mosbach Regional Court, after having heard most of the witnesses called already by the District Court, quashed the judgment of that court. It convicted the applicant of two counts of libel, of having made two wrong affidavits and of having given false evidence in court and sentenced her to a fine of 4,800 Deutschmarks (DEM) (120 daily rates of DEM 40). She was further ordered to bear the costs of the proceedings. These included the expenses of some DEM 40,000 incurred by the associated prosecutors who had appealed against the District Court’s judgment. Having assessed the evidence before it, the Regional Court was convinced that the applicant had in fact made the impugned remarks. The court further found that the citizens’ initiative comprised a small group of people whose members were determinable, so that each of these members was affected by the applicant’s remarks. The court then examined the question whether the applicant’s remark, having regard to her right to freedom of expression guaranteed by Article 5 of the Basic Law, had been justified. It stated that in discussions about vital issues of public interest, there was a presumption that a statement was permitted. Consequently, value judgments were protected under Article 5 even if they were harsh, polemic or exaggerated. However, Article 5 did not cover statements which were aimed at insulting a person in the first place, instead of contributing to the discussion on the subject-matter in dispute. The court found the applicant’s remarks to be falling within that latter category of vituperation (Schmähung) of others. By comparing the members of the citizens’ initiative to Nazis, who had sterilised and killed mentally ill people solely because of their illness, the applicant had severely insulted these persons without having established a direct link to the subject in dispute. On 25 February 1994 the Karlsruhe Court of Appeal, without giving further reasons, dismissed the applicant’s appeal on points of law against the judgment of the Regional Court as ill-founded. On 5 August 1999 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint lodged on 5 April 1994. It found that the provision underlying the applicant’s conviction, Section 185 of the Criminal Code, was formulated in a sufficiently precise way, even though not all questions concerning group libel (Kollektivbeleidigung) had already been settled. The competent criminal courts had not violated the right to freedom of expression. It could be left open whether the impugned remarks had correctly been qualified as vituperation. Even assuming that this was not the case, there was nothing to suggest that, when balancing the competing fundamental rights involved, freedom of expression prevailed. Pursuant to Section 185 of the Criminal Code, libel is punishable with imprisonment of up to one year or a fine and, if libel has been committed by an assault, with imprisonment of up to two years or a fine. There is no specific provision in the Criminal Code governing group libel, that is, the defamation of individual members of a group by a statement that only refers to the group as such. Group libel falls to be examined under the general provision of Section 185 of the Criminal Code. According to the well-established case-law of the German courts, notably the Federal Constitutional Court (see, in particular, nos. 1 BvR 1476/91, 1 BvR 1980/91, 1 BvR 102/92 and 1 BvR 221/92, decision of 10 October 1995, Decisions of the Federal Constitutional Court (BVerfGE), vol. 93, pp. 266 et seq., 299-303), it is possible to insult an individual member of a group by a collective term referring to the group as such (Beleidigung unter einer Kollektivbezeichnung), if the insult can be linked to that individual. However, the group must be clearly distinguishable by external signs from the general public, and the victims must be determinable. It is not necessary that the defendant knows every single victim of his defamation. Pursuant to Section 395 § 1 of the Code of Criminal Procedure, a victim of libel is entitled to join the criminal proceedings against the defendant as an associated prosecutor. Section 472 § 1 of the Code of Criminal Procedure provides that the defendant shall be charged the necessary expenses of an associate prosecutor, if he is convicted for an offence affecting the associate prosecutor. However, the court can wholly or partly abstain from ordering the defendant to pay these expenses, if such an order were inequitable.

dev

001-78627

ENG

TUR

ADMISSIBILITY

YAVUZ AND OTHERS v. TURKEY

Inadmissible

The applicants, Mr Ahmet Yavuz, Mr Abdurrahman Işık and Ms Behiye Öner, are Turkish nationals who were born in 1966, 1957 and 1957, respectively, and live in Izmir. They were represented before the Court by Mr S. Çetinkaya, a lawyer practising in Izmir. The Turkish Government did not designate an Agent for the purpose of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 July 2002 the applicants were taken into police custody by policemen from the Anti-Terrorism Department of the Izmir Security Directorate on suspicion of membership of the illegal PKK (the Kurdistan Workers’ Party). Subsequently, their houses were searched and the incident reports were signed by the applicants. During the search, the police found documents relating to the PKK. Magazines published by the PKK were also found in the first applicant’s house. On the same day the applicants signed forms whereby their rights as detainees were explained to them. The forms included their right to inform one of their relatives about their detention and their right to request the assistance of a lawyer. According to the custody records (nezaret kayıt defteri), the police informed Ms Sadiye Yavuz (the wife of the first applicant), Ms Türkan Işık (the wife of the second applicant) and Mr Metin Öner (the brother of the third applicant) about the applicants’ detention. Moreover, it was noted in these records that the applicants did not request the assistance of a lawyer. In their police statements, the applicants accepted the charges against them. The first applicant gave a detailed description of his role in the PKK. On 31 July 2002 the applicants were questioned by the Izmir State Security Court Public Prosecutor. Before the public prosecutor, the applicants denied the charges against them and refuted the statements they had made to the police. The same day the applicants were brought before an investigating judge at the Izmir State Security Court. They confirmed the statements which they had made to the public prosecutor. The court ordered the detention on remand of the first two applicants and released the third applicant. By an indictment dated 5 August 2002, the public prosecutor initiated criminal proceedings against the applicants in the Izmir State Security Court. The first applicant was accused of membership of the PKK and the last two applicants were accused of aiding and abetting that organisation. The applicants were represented by their lawyers during the domestic proceedings. On 19 December 2002, taking into account the illegal documents found in his house, the witness testimonies that confirmed his involvement in the illegal organisation and recalling the fact that he had been previously convicted of aiding and abetting the PKK in 1997, the Izmir State Security Court found the first applicant guilty of being a member of the PKK. It accordingly sentenced him to twelve years and six months’ imprisonment under Article 168 of the Criminal Code. The court further acquitted the second and third applicants of the charges against them. The first applicant appealed. On 9 June 2003 the Court of Cassation, upholding the State Security Court’s reasoning and assessment of evidence, rejected the applicant’s appeal. The third paragraph of Article 128 of the Code of Criminal Procedure, as amended by Law no. 4744 of 6 February 2002, provides that, when a person is arrested, a family member or another person designated by the arrested person shall be promptly informed of the arrest or the prolongation of the custody period by the public prosecutor.

dev

001-109034

ENG

DEU

GRANDCHAMBER

CASE OF AXEL SPRINGER AG v. GERMANY

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award

Christos Rozakis;David Thór Björgvinsson;Françoise Tulkens;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

9. The applicant is a public limited company whose registered office is in Hamburg. It publishes the Bild, a daily newspaper with a large circulation. The present case concerns the publication by the newspaper of two articles about X, a well-known television actor. Between May 1998 and November 2003 X had played the part of Police Superintendent Y, the hero of a television series broadcast on a private television channel in the evenings, until 2005. By October 2004, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Police Superintendent Y. The average audience rating was 18% (between 3 and 4,700,000 viewers per episode). 10. On 14 June 2003 the applicant company revealed that X had been convicted of unlawful possession of drugs. After receiving a warning from X, it undertook, on pain of an agreed penalty, to refrain from publishing information according to which four grams of cocaine had been found at X’s home that he had had sent to him by post from Brazil and for which he had been given a prison sentence, suspended for five months, and fined 5,000 euros (EUR). 11. At approximately 11 p.m. on 23 September 2004 X was arrested at the Munich beer festival (Oktoberfest) for possession of cocaine. In a sworn statement (eidesstattliche Versicherung) a journalist from the applicant company declared that she had asked the police present at the scene whether X had been arrested and, if so, on what grounds. The police had confirmed that X had been arrested in the Käfer tent in possession of cocaine, without giving any further details. 12. According to that statement, the journalist had then contacted the public prosecutor, W., from the public prosecutor’s office of Munich Regional Court I, in charge of relations with the press, and had asked him for information. W. had confirmed that X had been arrested in the Käfer tent in possession of cocaine. According to W., plain-clothes police officers had arrested X because they had seen him making a suspicious movement with his hand when coming out of the toilets. The officers had searched him, and, having found him to be in possession of an envelope containing 0.23 grams of cocaine, had arrested him. According to W., the arrest had taken place at approximately 11 p.m. on 23 September and a criminal complaint was currently being investigated. 13. In its 29 September 2004 edition, the applicant company’s daily newspaper, the Bild, published the following headline in large type on its front page: “Cocaine! Superintendent Y caught at the Munich beer festival.” The article, which was printed in small type, read as follows: “He came out of the gents tapping his nose suspiciously and was arrested! At the beer festival the police caught X (... years old, Superintendent Y on television), in possession of a small envelope of cocaine. See page 12 for the details.” The following headline appeared on page twelve of the daily: “TV star X caught in possession of cocaine. A bretzel (Brezn), a beer mug [containing a litre of beer – Maß] and a line of coke (Koks).” The article, printed in small type, read as follows: “Thursday night, 11 p.m. At the beer festival there was drinking, partying, swaying arm in arm. And sniffing.... In the celebrities’ tent the TV star X (... years old, whose real name is ...) came out of the gents tapping his nose and attracting the attention of police officers. They searched the star actor from the TV series Y (of which, by June, there had been more than 60 episodes in five years). COCAINE! X had a packet on him containing 0.23 grams of coke, and was arrested. Public prosecutor W. from Munich told the Bild: “He was making suspicious movements with his hand, tapping his nose with his fingers. This of course attracted the attention of our officers. An investigation is under way. Only a small quantity of cocaine is involved though. W. : “Right in the middle of the festival grounds (Wiesn) – it might have been snuff tobacco, but our men have a flair for this sort of thing...”. X had already had a run-in with the law for possession of drugs. In July 2000 the Superintendent from the TV series had been given a five-month suspended prison sentence and two years’ probation and fined EUR 5,000. He was accused of illegally importing drugs. On a trip to Brazil X had arranged for four grams of cocaine to be sent to his address in Munich. His probation period ended two years ago. The quantity of the drug found in the tent ... is negligible. What can the actor expect? According to a legal expert questioned by Bild: “Even if the probation period is over the previous conviction is recent. X may get an unsuspended prison sentence – up to six months”. Why prison? “X has apparently not been sufficiently daunted by the suspended prison sentence”. The actor has probably had to submit to a forensic head hair examination. Each centimetre of hair will enable the expert to determine whether and how much cocaine was taken. Yesterday X refused to comment. P.S: “In every toilet cubicle in the tent ... there are signs saying: “The use of drugs is liable to prosecution!” The article was accompanied by three photos of X, one on the first page and the other two on page twelve. 14. On the same day, during the morning, press agencies and other newspapers and magazines reported on X’s arrest, referring in part to the article published in the Bild. That day the prosecutor W. confirmed the facts reported in the Bild to other written media and television channels, two of which (“RTL” and “pro7”) broadcast the same reports that evening. During one of the broadcasts the prosecutor W. made the following statement: “The police officers saw X making a suspicious movement with his hand while coming out of the men’s toilets and concluded that he had taken something. They searched him and found an envelope containing 0.213 grams of cocaine. He had already been convicted of importing drugs and given a suspended prison sentence. He is not a first offender (Ersttäter). He should have known that he should not touch drugs. He can now expect a further prison sentence, even if the quantity found on him is insignificant.” 15. In its 7 July 2005 edition the Bild printed the following headline on its inside pages: “TV series Superintendent X confesses in court to having taken cocaine. He is fined 18,000 euros!” The article read as follows: “Munich – On TV he plays a superintendent who puts criminals behind bars. Yesterday, it was the turn of the actor X (... years old, ...) to be hauled up in front of the court and confess! X, who had to explain himself to the Munich District Court [Amtsgericht] on charges of “unlawful possession of drugs”, has confessed to taking drugs! X’s counsel ... stated: “We fully acknowledge the offence with which we have been charged in the indictment”. X confessed to the court: “I have occasionally smoked cannabis and taken cocaine from time to time. This has not made me happy. It had not turned into a habit but is just something that I have done from time to time”. Question from the court ...: “Are you currently taking drugs?” Reply from X: “No, I smoke cigarettes.” The sentence: a fine of EUR 18,000. The court: “The accused’s full confession has counted in his favour.” On TV X continues investigating on the side of law and order. In Vienna he is in front of the cameras for the television series ... which should be starting on the second channel in the autumn.” The article was accompanied by a photo of X. 16. Immediately after the articles appeared, X. instituted proceedings against the applicant company in the Hamburg Regional Court. The applicant company attached to its initial reply the statement by its journalist (see paragraphs 11 and 12 above) and numerous press articles about X, including a number of interviews given by him, to Bunte magazine among others, together with photos of him. 17. On 30 September 2004 the Hamburg Regional Court imposed an injunction on publication of the article, following a request lodged by X on 29 September 2004. In a judgment of 12 November 2004 it confirmed the injunction. That judgment was upheld by the Court of Appeal on 28 June 2005. On 6 October 2004 the Regional Court also imposed an injunction on publication of the photos illustrating the article. It confirmed that decision in a judgment of 12 November 2004. The applicant company did not challenge that judgment, which became final. 18. On 11 November 2005 the Hamburg Regional Court prohibited any further publication of almost the entire first article, on pain of an agreed penalty, under Articles 823 § 1 and 1004 § 1 (by analogy) of the Civil Code (see paragraph 47 below), read in the light of the right to protection of personality rights (Allgemeines Persönlichkeitsrecht). It ordered the applicant company to pay EUR 5,000 as a penalty under the agreement and to reimburse the procedural expenses (EUR 811.88, plus statutory interest accrued from 4 November 2004). 19. According to the Regional Court, the article in question, which mentioned X’s name and was accompanied by photos of him, amounted to a serious interference with his right to the protection of his personality rights; the disclosure of his criminal conduct had, so to speak, resulted in his being pilloried and discredited in the eyes of the public. The court found that, despite those negative effects, reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report. Any interference with a criminal’s private sphere was limited, however, by the proportionality principle, which involved a balancing exercise between the competing interests. The court held that in the present case the right to protection of X’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. Neither the nature of the crime committed, nor the person of X, nor any other circumstances justified publication of the article at issue. 20. The court observed that whilst a drugs-related offence was not a petty crime, particularly as in the present case it had been cocaine, which was a hard drug, X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking. The type of offence involved was of medium, or even minor, seriousness, was a very common one and there was no particular public interest in knowing about it. The court added that, unlike serious crimes (such as spectacular robberies, or murders), there were no particular circumstances distinguishing the offence in question from ordinary crimes, even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles. Furthermore, the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one. The report had focussed more on X’s person than on the offence, which would probably never have been reported in the press if it had been committed by a person unknown to the public. Similarly, the court pointed out, whilst X’s previous conviction for a similar offence was such as to increase the public’s interest, it was his only previous conviction and, moreover, dated back several years. 21. The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y, a character in a relatively popular television series, but not in the actual person of the actor playing the part. There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information. The interest in X did not, in any event, go beyond the interest habitually manifested by the public in leading actors in German television series. 22. The court observed that the applicant company had published many articles about X over a period of six years and particularly over the last three years. The vast majority of these publications had, however, merely mentioned X’s name – often without a photo – among the names of celebrities invited to various events. Whilst it was undisputed that X had taken part in over 200 national and international cinematographic and televised productions, that did not convey much of an idea of his public importance. Indeed, actors could have starred in hundreds of television series and still remain little known to the public. There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye. 23. X had, to an extent, sought to attract the public’s attention by giving interviews to certain magazines between 2000 and 2003. He therefore had to be more tolerant towards reports published about him than other wellknown figures who avoided the limelight. According to the court, X had not, however, courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights. 24. The Regional Court conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role. However, that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character. The actor merely donned the persona of a superintendent, just as he could don that of any other character, without thereby adopting the conduct of the character in question in his daily life. The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported. In the court’s view, viewers could distinguish between the actor and his role, even where the actor was well known essentially for playing one particular character. 25. The Regional Court found, further, that X had not sought to portray himself as an emblem of moral virtue; neither had he adopted a stand on matters relating to drug abuse. The interviews reported by the applicant company contained no comment by X on the subject. In issue no. 48/2003 of the magazine Bunte, X had stated, in passing, that he did not have any alcohol in the house and that he had become a big tea connaisseur. In the court’s view, the fact that X had briefly remarked on his previous conviction in two interviews with magazines in 2000 and 2001 did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field. That subject had been only marginally covered in the interview, which had mainly concerned the actor’s professional prospects and his difficulties in his relationships. 26. Observing that when balancing the competing interests, the decisive criteria were how well known X was and the seriousness of the offence with which he was charged, the Regional Court found that the case concerned an actor who was not exceptionally well known and was accused of an offence which, while not insignificant, was not particularly spectacular and could be regarded as fairly common in the entertainment world. The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne, whereas the information published amounted to a serious (gravierend) interference with X’s right to the protection of his personality rights. 27. The Regional Court found, lastly, that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests. Admittedly, the press officer from the public prosecutor’s office at the Munich Regional Court I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them; nor was there any doubt that the public prosecutor’s office could be regarded as a “privileged source” (privilegierte Quelle) of information that did not, as a general rule, require verification as to the truth of its content. Moreover, three press agencies had disclosed similar details. However, even assuming that it had received all the information before publishing the article in question, the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X’s right to protection of his personality rights. In the court’s opinion, the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press. 28. The court found that it could be presumed that institutions providing a public service, and in particular the public prosecutor’s office and the police, made every effort, in accordance with the principle of neutrality, not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned. However, such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media. 29. In the instant case the applicant company was actually better placed than a member of the Munich public prosecutor’s office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest. On that point the court considered that account also had to be taken of the context in which the information was published: the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person’s name was justified or not. Accordingly, publishers could not generally consider that the disclosure of a person’s identity by a privileged source would make any kind of report on the person concerned legal, without having first balanced the interests at stake. 30. The Regional Court pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities. Accordingly, in the case of X, the question arose as to whether it was appropriate for the public prosecutor’s office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started. The court concluded that the applicant company could not argue that it had relied on the disclosure of X’s name by the public prosecutor’s office. 31. On 21 March 2006 the Court of Appeal dismissed an appeal by the applicant company, but reduced the amount of the agreed penalty to EUR 1,000. It upheld the conclusions of the Regional Court, pointing out that the disclosure of a suspect’s name when reporting on an offence constituted, as a general rule, a serious infringement of the right to the protection of personality rights, even if it was a drug offence of medium or minor seriousness. In X’s case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and, in particular, of obtaining a role in an advertisement or in television series aimed at a young audience. 32. The Court of Appeal reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights, as established by the Federal Court of Justice (see paragraph 48 below). It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known. In the court’s opinion, the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public. As X had not taken cocaine in the tent in front of everyone, his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well-known television star. 33. The Court of Appeal acknowledged that the public had a particular interest in being informed and entertained because X was a well-known figure and had played the part of a police superintendent over a long period of time (längerer Zeitraum). However, even if X played that role, this did not mean that he had himself necessarily become an idol or role model as a law-enforcement officer, which could have increased the public’s interest in the question whether in his private life he actually behaved like his character. It was clear that the actor X could not be identified with the fictitious character of Superintendent Y that he played. The fact that X had his fan clubs and had made public appearances as the actor who played the part of Superintendent Y did not alter that finding. It could well be that X’s appearance, his manner of presenting himself, and the relaxed attitude portrayed in his films appealed to others, particularly a young audience. That did not mean, though, that others saw in him a moral role model whose image should be corrected by the newspaper report in question. 34. The publications submitted by the applicant company were indeed evidence that X was hugely popular, but did not support the contention that he had used confessions about his private life to attract the public’s attention. Nor was the newspaper report justifiable on the ground that X had been arrested in public, in a tent, because the drug had actually been consumed in the men’s toilets, that is, in a place that fell within the protected private sphere, and out of public view. Lastly, even if it were to be established that X’s arrest was a matter of substantial public interest, the same could not be said of the description and characterisation of the offence committed out of public view. 35. Lastly, while upholding the conclusions of the Regional Court regarding the role of the Munich public prosecutor’s office, the Court of Appeal stated that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful. The illegal disclosure by the public prosecutor’s office did not, however, make publication by the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR 1,000. It refused leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of Justice. 36. On 7 November 2006 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. 37. On 11 December 2006 the Federal Court of Justice dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions (Anhörungsrüge). It stated that when balancing the public’s interest in being informed about public criminal proceedings against an interference with the defendant’s private sphere, the Court of Appealcision in accordance with the criteria established in its case-law. There was no evidence that the relevant criteria for the balancing exercise had been disregarded. The Federal Court of Justice stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard. 38. On 15 August 2005 the Hamburg Regional Court granted an application by X for an injunction against any further publication of the second article. 39. By a judgment of 5 May 2006, the Regional Court granted X’s application in the main proceedings, ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay EUR 449.96 in costs, plus statutory interest accrued from 22 September 2005. It based its decision on essentially the same grounds as those set out in its judgment of 11 November 2005 (see paragraphs 18-30 above). It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of the Federal Court of Justice of 15 November 2005 (see paragraph 48 below) in that the person concerned in that case, Prince Ernst August von Hannover, was much more widely known than X, so the press had been entitled to report on the substantial penalty imposed in that case. 40. On 12 September 2006 the Hamburg Court of Appeal dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of 21 March 2006 (see paragraphs 31-35 above). On the subject of the relevant criteria for weighing the conflicting interests, it stated that, according to the judgment of the Federal Constitutional Court of 13 June 2006 (see paragraph 49 below), the fact that a person was a prominent figure or one known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct. In the present case, the public’s interest in being informed and entertained, which derived from the fact that X was a well-known figure and starred as a superintendent in a television series, was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose (informationelle Selbstbestimmung). 41. The applicant company’s reliance on the high audience rating of the television series Y. did not, in the Court of Appeal’s opinion, prove that X. had served as a role model or a counter model. If a role model existed for millions of viewers, the role model in question was the character of the superintendent. The Court of Appeal reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view, in the men’s toilets. The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene, but it had not been established that other persons present in the tent had noticed that X had taken cocaine. 42. The Court of Appeal added that whilst the fact that the “quality press” had reported the case might indicate that there was a not insignificant (nicht geringes) interest in reporting it, that was not a basis on which to conclude that the interference with X’s right to the protection of his personality rights had been lawful. 43. The Court of Appeal refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case-law of the Federal Court of Justice, in particular the latter’s judgment of 15 November 2005 (see paragraph 48 below). 44. On 17 April 2007 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. On 12 June 2007 it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions. 45. On 5 March 2008 a three-judge panel of the Federal Constitutional Court declined to entertain constitutional appeals lodged by the applicant company against the court decisions delivered in the first and second sets of proceedings. It stated that it was not giving reasons for its decision. 46. On 12 September 2006 and 29 January 2008 the Hamburg Regional Court ordered the applicant company to pay X two penalty payments of EUR 5,000, each one for having breached the order of 15 August 2005 (see paragraph 38 above). The court criticised the applicant company for, inter alia, publishing in the 7 July 2006 edition of the daily newspaper Die Welt and on the newspaper’s internet page (welt.de) on 22 March 2007 the following statement by one of its editors: “Accordingly, we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine, even though he was a very well-known recidivist and the offence was committed at the beer festival in Munich.” 47. Article 823 § 1 of the Civil Code (Bürgerliches Gestezbuch) provides that anyone who, intentionally or negligently, unlawfully infringes another’s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to make compensation for the resulting damage. In accordance with Article 1004 § 1, where another’s property is damaged otherwise than by removal or illegal retention the owner may require the perpetrator to cease the interference. If there are reasonable fears that further damage will be inflicted, the owner may seek an injunction. 48. In its judgment of 15 November 2005 (no. Vi ZR 286/04) the Federal Court of Justice reiterated its established case-law according to which the decisive criteria for evaluating the lawfulness of a news report mentioning the name of the person concerned were the nature of the offence and the person of the suspect. The facts of the case were a fine and a prohibition on driving imposed by the French courts for speeding on a motorway (211 instead of 130 km per hour) on a person known to the public. The Federal Court of Justice found, firstly, that the speed limit had been exceeded to such an extent that it could be regarded as an expression of extreme contempt for the highway regulations, and, secondly, that the offence had put other motorists at considerable risk. Moreover, both the manner in which the person concerned had behaved in public in the past and his origins and the fact that he was the husband of a very well-known individual meant that the interest of the press in publishing a news report prevailed over the right to protection of the personality rights of the person concerned. The Federal Court of Justice pointed out that the Court’s judgment in the case of Von Hannover v. Germany of 24 June 2004 (no. 59320/00, ECHR 2004VI) allowed of no other conclusion. The articles (and photos) in that case had concerned only scenes from Caroline von Hannover’s daily life, and had aimed merely to satisfy the curiosity of a particular readership regarding her private life. 49. In a decision of 13 June 2006 (no. 1 BvR 565/06), a three-judge panel of the Federal Constitutional Court decided not to entertain a constitutional appeal lodged against the judgment of the Federal Court of Justice and upheld the latter’s findings. 50. The relevant passages of Recommendation (Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings, adopted on 10 July 2003 at the 848th meeting of the Ministers’ Deputies, read as follows:- “... Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society; Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention; ... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, ... Appendix to Recommendation Rec(2003)13 Principles concerning the provision of information through the media in relation to criminal proceedings Principle 1 - Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 - Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. Principle 3 - Accuracy of information Judicial authorities and police services should provide to the media only verified information or information which is based on reasonable assumptions. In the latter case, this should be clearly indicated to the media. Principle 4 - Access to information When journalists have lawfully obtained information in the context of on-going criminal proceedings from judicial authorities or police services, those authorities and services should make available such information, without discrimination, to all journalists who make or have made the same request. (...) Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” 51. The relevant passages of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, read as follows:- “... 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy. 7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain. 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression. 11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value. 12. However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. 13. The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. ...”

dev

001-80185

ENG

SVK

ADMISSIBILITY

MATULAY v. SLOVAKIA

Inadmissible

Nicolas Bratza

The applicant, Mr Róbert Matulay, is a Slovakian national who was born in 1972 and lives in Bratislava. He is represented before the Court by Mr S. Jakubčík, a lawyer practising in Bratislava. On 8 March 2002 the applicant was apprehended by the police. On 9 March 2002 a police investigator accused the applicant and another person of a drugs offence. On 25 April 2002 the Regional Court in Bratislava dismissed the applicant’s complaint against the decision to remand him in custody. On 25 June 2002 the Bratislava II District Court dismissed the applicant’s request for release on bail. On 8 August 2002 the Regional Court dismissed the applicant’s complaint against that decision. On 2 September 2002 the Bratislava II District Court extended the applicant’s detention until 8 March 2003. On 13 November 2002 the applicant was questioned by the police investigator. He confessed to the offence. The applicant expressed his regret and applied for release. On 6 March 2003 a public prosecutor informed the applicant that she had filed an indictment against him. In a separate letter of the same date the public prosecutor stated, in reply to the applicant’s complaint, that the police investigator had not submitted to her the applicant’s request for release of 13 November 2002. The public prosecutor notified the Bratislava II District Court thereof. On 8 April 2003 the Bratislava II District Court returned the case to the public prosecutor as, due to procedural shortcomings, the applicant had not been able to study the case file in an appropriate manner. The District Court further decided that the applicant should remain detained on remand. The applicant filed a complaint arguing that the District Court had not decided on his request for release of 13 November 2002. On 1 July 2003 the Regional Court in Bratislava quashed the firstinstance decision of 8 April 2003. The Regional Court found that the District Court had violated several provisions of the Code of Criminal Procedure in that (i) a public prosecutor had attended the court meeting held in camera on 8 April 2003, and (ii) the presiding judge had not been entitled to deal with the applicant’s case as he had earlier decided on his detention. The Regional Court also noted that the District Court had not decided on the applicant’s request for release of 13 November 2002. On 26 August 2003 the Bratislava II District Court returned the case to the public prosecutor. It also examined the applicant’s request for release and decided that the applicant should remain in custody. On 16 September 2003 the applicant filed a complaint. He requested that he should be released. On 18 November 2003 the Regional Court in Bratislava dismissed the applicant’s complaint. It found that the District Court had rightly returned the case to the public prosecutor as the applicant’s procedural rights had been violated at the previous stage of the proceedings. There were justified reasons to fear the applicant’s re-offending in case of his release. In particular, the applicant was unemployed and he could commit drugs offences in order to earn his living. On 11 February 2004 a new indictment was filed against the applicant. On 2 March 2004 the District Court ordered that the applicant be released. The evidence available indicated that the applicant had not played an important role in drug dealing. As a result of his detention his contacts with persons involved in such criminal activities had been cut. On 8 March 2004 the applicant was released from detention. The District Court scheduled the hearing in the case for 18 May and 1 July 2004. On 22 February 2007 the applicant informed the Court, at the request of its Registry, that the District Court had convicted the applicant of unauthorised production, possession and dealing in drugs on 17 May 2005. The court imposed a two years’ prison sentence on both the applicant and his co-accused. The judgment became final in the applicant’s respect as neither he nor the public prosecutor had appealed. The co-accused appealed. The court of appeal modified the first-instance judgment in that it imposed a conditional prison sentence on him. On 23 December 2003 the applicant filed a complaint with the Constitutional Court. He referred to the conduct of the proceedings by the Bratislava II District Court and the Regional Court in Bratislava and alleged a violation of his rights under Article 17 §§ 2 and 5 of the Constitution in that his application for release had not been examined speedily and that the length of his detention was excessive. The applicant invoked Article 48 § 2 of the Constitution with reference to the authorities’ failure to decide on his application for release and to procedural shortcomings in the proceedings at the preliminary stage. Finally, the applicant alleged a violation of Article 6 § 3(b) of the Convention and its constitutional equivalent in that his right to defend himself had not been respected at the pre-trial stage. On 18 February 2004 the Constitutional Court declared admissible the applicant’s complaint under Article 17 §§ 2 and 5 and Article 48 § 2 of the Constitution related to the examination by the Regional Court in Bratislava of the application for release of 13 November 2002. The Constitutional Court rejected the remainder of the applicant’s complaint. It held that it could not review the conduct of the proceedings by the District Court as it had been open to the applicant to seek redress in that respect before the Regional Court in Bratislava. As to the alleged violation of the applicant’s right to have adequate time and facilities for the preparation of his defence, the Constitutional Court noted that the case had been returned to the public prosecutor who had been ordered to eliminate the shortcomings complained of. The decision on admissibility of the applicant’s complaint was served on his representative on 2 March 2004. On 1 June 2004 the Constitutional Court found that the Regional Court in Bratislava, when dealing with the applicant’s request for release of 13 November 2002, had violated the applicant’s right under Article 17 §§ 2 and 5 of the Constitution. The decision stated, in particular, that the Regional Court had taken almost two months to deal with the applicant’s complaint against the District Court’s decision of 26 August 2003 to dismiss his request for release filed on 13 November 2002. Such a period was excessively long. The applicant had been prevented from filing fresh requests for release until a final decision on his request of 13 November 2002 had been delivered. In the Constitutional Court’s view, there had been no violation of Article 48 § 2 of the Constitution in that context as the relevant issue, i.e. delays in proceedings on the application for release, was covered by a special provision, namely Article 17 § 2 of the Constitution. When deciding on the applicant’s request for release on 18 November 2003 the Regional Court had not taken into account numerous and substantial procedural shortcomings which had occurred at the pre-trial stage and in the proceedings before the first-instance court. It had thereby violated the applicant’s right under Article 17 §§ 2 and 5 of the Constitution to be released in case of unlawful detention. The Constitutional Court quashed the Regional Court’s decision of 18 November 2003 and returned the case to the latter court for further proceedings. It awarded SKK 40,000 (the equivalent of 1,000 euros at that time) to the applicant in respect of the violation of his right to a speedy review of his request for release. The Constitutional Court held that the finding of a violation of the applicant’s right to be released taken together with its decision to quash the Regional Court’s decision of 18 November 2003 provided appropriate just satisfaction to the applicant. Finally, the Constitutional Court ordered the Regional Court to reimburse the applicant’s costs incurred in the constitutional proceedings. The following provisions of the Constitution are relevant in the present case. Article 17 § 2 provides that individuals can only be prosecuted or deprived of liberty for reasons and by means set out in the law. Under paragraph 5 of Article 17, a person can be remanded in custody only upon a decision given by a court, and for reasons and for a period of time set out in the law. Article 48 is incorporated in the Seventh Section of the Constitution entitled “Right to judicial and other legal protection”. Paragraph 1 of Article 48 provides for the right to a hearing by a judge appointed in accordance with the law. Paragraph 2 of Article 48 guarantees to everyone the right to a hearing without unjustified delay, to have one’s case heard in his or her presence and to comment on the evidence taken.

dev

001-103931

ENG

LTU

CHAMBER

CASE OF ILJINA AND SARULIENE v. LITHUANIA

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

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto

5. The first applicant was born in 1958. The second applicant was born in 1978. Both of them live in Vilnius. The first applicant is the second applicant's mother. 6. According to the second applicant, at about 5 p.m. on 3 August 2004 a police officer, in plain clothes, arrived at the applicants' apartment block to conduct a search for stolen goods in a flat which was situated next door to that of the applicants. The police officer was accompanied by a technical expert who worked for the company which owned the goods in question. The applicants' neighbour refused to let the police officer in, alleging that he was not the owner of the flat and that the officer was not wearing a uniform. At the same time, the second applicant, her uncle, O.B., and her brother, V.I., came out on to the staircase for a smoke. According to the second applicant, she and her brother told the police officer that he had no right to enter the flat by force. The policeman went for reinforcements, but before leaving said “get ready to go [with the police]”. 7. The further circumstances of the conflict on the staircase are in dispute between the parties. 8. According to the second applicant, two more uniformed policemen arrived later at the scene of the incident. One of them suddenly grabbed V.I., loaded his gun and pointed it at V.I. The second applicant screamed for help and the policeman pointed the gun at her. The other policemen told the first officer to put away the gun and both policemen started hitting V.I. The officers called for more reinforcements, and more policemen arrived; they hit V.I. and O.B. with rubber truncheons and punched and kicked them. At that time the second applicant's father, A.I., returned from work and asked the police to explain what was happening. Instead of replying, the police started hitting him on the head, shoulders and hands with a rubber truncheon. The second applicant's daughter, who was one year and seven months old, attempted to come out of the flat to see what was happening in the corridor; a policeman tried to push and close the flat's reinforced door. The second applicant placed her foot between the door and the wall to prevent her daughter from being hurt; consequently, the second applicant's foot was injured. O.B., V.I. and A.I. were arrested. The second applicant telephoned the first applicant. 9. According to the first applicant, she received a telephone call from her daughter and went straight to the scene of the incident. In the courtyard of the apartment block she saw three police cars and several policemen. O.B., V.I. and A.I. were in the police cars and there were a lot of people milling around. She asked the police officers what was going on. However, no explanation was given, and the officers started pushing people further away from the police cars. The first applicant tried to stop the police officers and lay down on the bonnet of a police car. The policemen started driving the car and the applicant felt pain in her whole body. An officer forcibly dragged her away from the car, tore off her blouse, kicked her bottom and threw her, wearing no blouse but only a bra, onto the grass. She came round as the police were leaving. 10. In their submissions of 3 December 2008 the Government stated that as reinforcement, two more police officers arrived at the staircase. V.I. again came out of his flat and used offensive language towards the officers. The second applicant and her friend S.Š. came out on to the staircase. The police officers demanded that V.I. stop acting inappropriately and warned him of the impending consequences. V.I. did not comply and the police officers attempted to arrest him. He resisted the arrest, hitting the officers. Then O.B. ran out of the flat and started hitting the officers. More reinforcements were called for and four more officers arrived at the scene. The policemen attempted to arrest V.I. and O.B. At this point A.I. turned up and joined in the fight, trying to prevent the policemen from restraining his relatives. The second applicant and S.Š. were also obstructing the officers from carrying out their duty by jostling and pulling their clothes. The Government pointed out that as regards the second applicant's leg injury, the latter's friend S.Š., when questioned by police, stated that “the police officer slammed the door so loudly that the second applicant's daughter started crying”. Eventually V.I., O.B. and A.I. were handcuffed and put into police cars in the courtyard of the apartment block. None of the policemen used or showed a gun, nor did they threaten to use one. The first applicant tried to prevent the police cars from leaving the courtyard and lay down on the bonnet of the first car. At the time the engine was turned off and the car was not moving. One of the officers, with some help from two other officers, forcibly moved the second applicant away from the car, holding her by both hands. 11. The documents before the Court indicate that on 4 and 5 August 2004 a medical expert of the Lithuanian Law University Court Forensic Medicine Institute examined the applicants and three of their family members who had taken part in the incident. It was established that all five of them had sustained light health impairment. In particular, the first applicant had a scratch on her forehead and five bruises on her upper arms, ranging in size from 1.5 cm to 7 cm, which were the result of at least three impacts. A doctor's certificate attested that she was unfit for work from 4 to 13 August. 12. The second applicant had an injury to her right foot, caused by a single impact with a hard blunt object. The second applicant's brother, V.I., had sustained bruises and scratches on his elbows, forearms and left knee, caused by having had at least five traumatic impacts with small hard blunt objects. He received leave of absence from work until 13 August. 13. The second applicant's father, A.I., told the doctor that the police officer had hit him several times on the head and left shoulder with a rubber truncheon. The doctor found a 3-centimetre-diameter bruise on A.I.'s left temple and scratches on his right hand. Those injuries had been caused by at least three traumatic impacts. 14. The first applicant's brother, O.B., told the medical expert that during the altercation with the police the officers had beaten him, twisted his arms behind his back and kicked him in the chest. The medical expert established that there was a swollen 0.5 x 3-centimetre scratch on O.B.'s right forearm and a 2-centimetre-diameter swollen bruise on his right shoulder, which were the consequence of at least two traumatic impacts from hard blunt objects, possibly in the way and at the time described by O.B. He received leave of absence from work until 13 August. 15. The medical expert also concluded that the injuries mentioned above could have been received during the altercation with the police officers. 16. During the evening of 3 August 2004 the two applicants submitted written complaints about the police actions to the Vilnius City Police Headquarters and to the prosecutors. The applicants asked for an assessment of the actions of the policemen, and that the officers who had taken part in the events be identified. O.B., V.I. and A.I. were kept in police custody overnight. The following morning O.B., V.I. and A.I. were questioned and the same morning released from custody. 17. The police investigator charged A.I., V.I. and O.B. under Article 286 of the Penal Code (insulting a public servant or a person discharging public functions) and Article 290 of the Penal Code (resistance to a public servant or a person discharging public functions). However, on 15 December 2004 the prosecutor dropped the charges against A.I., V.I. and O.B. for lack of evidence of guilt (Article 212 § 1 (2) of the Code of Criminal Procedure). 18. On 4 August 2004 A.I., V.I. and O.B. submitted a written complaint to the Vilnius Region chief prosecutor. They stated that they had been beaten up by the policemen without any reason and even experienced a threat that a firearm would be used against them. Whilst arguing that the police officers had brought charges against them of obstruction of justice only to defend the uniform, A.I., V.I. and O.B. invoked Articles 169 and 170 § 1 of the Code of Criminal Procedure and asked the prosecutor that the actions of the policemen be scrutinised by a prosecutor, without delegating the inquiry to police investigators. 19. At the applicants' request, on 12 August 2004 the Internal Affairs Department of Vilnius City Police Headquarters began a pre-trial investigation into alleged ill-treatment by the police officers, under Article 228 § 1 of the Penal Code, which establishes criminal liability for abuse of power. 20. When testifying to the investigators of the Internal Affairs Department, the police officers stated that V.I. had tried to obstruct them in the performance of their duties and had insulted them. They had attempted to arrest him for this behaviour, but he had resisted, using violence against them; then O.B. had arrived and tried to stop the policemen from restraining V.I. Lastly, A.I. had appeared on the scene and also become involved in the fight. Moreover, there were two women on the staircase who grabbed the officers by the arms. Consequently, O.B., V.I. and A.I. had been arrested and taken to the police station. During the incident none of the policemen had used or shown a gun, nor had they threatened to use one. 21. Between 13 August and 3 November 2004 the Internal Affairs Department investigator at the Vilnius City Police Headquarters questioned the policemen, the applicants and their male family members as well as the applicants' neighbours who had witnessed the incident. The questioning took place on police premises. Neither the applicants nor A.I., V.I. or O.B. had lawyers present when they were being questioned. The policemen and the applicants maintained their respective versions of events. 22. On 1 December 2004 a prosecutor of the Vilnius City District Prosecutor's Office discontinued the pre-trial investigation, stating that there was not enough objective evidence to conclude that the police officers had abused their powers or used unnecessary force. 23. On 12 and 14 January 2005 the applicants appealed against that decision to the Vilnius Regional Prosecutor's Office, claiming that “they could not have expected a different outcome of the inquiry, given that the [police] investigator was misleading the witnesses with the aim of obtaining testimony favourable to the [police] officers”. The applicants argued that the police officers had used excessive force against them and threatened to use a firearm. They also alleged that the testimony police officers had given during the pre-trial investigation was not comprehensive, given that the officers had not specified which special fighting actions (kovinių imtynių veiksmus) they had used. Moreover, the localisation of the wounds on the applicants' bodies allowed the assumption that the police had had recourse not only to restraining measures, but to clear physical violence. 24. On 7 February 2005 the deputy chief prosecutor of the Vilnius Regional Prosecutor's Office dismissed the applicants' appeal as unfounded. He noted the prosecutor's decision of 15 December 2004 to drop the charges against A.I., V.I. and O.B. as unfounded, for lack of evidence. However, having, as it appears from his decision, analysed the statements of the parties to the incident, as written down by the police internal affairs investigator, the prosecutor found that there were no objective data to substantiate the applicants' allegations that the policemen had acted unlawfully. For the prosecutor, the applicants' request that the policemen be questioned one more time was not to be entertained, because “the testimony of the police officers about the actions of V.I., A.I. and the others who obstructed the police, as well as about the force used when arresting them, was sufficiently detailed and comprehensive”. 25. On 18 February 2005 the applicants appealed to the Vilnius City First District Court asking that the pre-trial investigation be reopened and the witnesses be comprehensively questioned one more time. They maintained that the police investigator had refused to record statements by certain witnesses, thereby destroying the evidence of the crime committed by the policemen. The investigation into the police actions had been superficial. The applicants asked the court to establish which particular actions should be attributed to each of the policemen. They also noted that on 15 December 2004 the prosecutor had decided to drop the criminal charges against A.I., V.I. and O.B. 26. On 3 March 2005 the Vilnius City First District Court in a one-page ruling held that the pre-trial investigation had been thorough and that the prosecutors had taken reasoned decisions. According to the court, the medical experts' conclusions that the applicants and their family members had sustained light physical harm was not evidence of an abuse of powers by the police – the applicants had resisted the policemen and had been injured as a result. The court also noted that the applicants had not submitted new evidence. For those reasons the complaint was dismissed. That decision was final. 27. Article 228 of the Penal Code sets out that there is criminal liability for abuse of authority when such abuse by a civil servant or a person of equivalent status causes serious damage to a legal or natural person. Under Article 286 of the Code a person can be held criminally liable for having opposed a policeman's orders and threatened the latter with physical violence. Article 290 of the Code sets out that there is criminal liability for insulting a public officer or a civil servant. 28. Under Article 21 of the Law on Police Activities, a police officer must respect and protect human dignity, ensure and safeguard human rights and freedoms. The police officers have a right to use coercion when it is necessary to prevent violations of the law and to apprehend those who have committed such violations, as well as in other cases when lawful interests of an individual or the State are at stake. Physical coercion can be used when apprehending a person who has committed a violation of the law and who evades arrest by active actions (Articles 23 and 24). 29. The Law on the Prosecutor's Office stipulates that in discharging his functions the prosecutor is independent (Article 11). It is for a prosecutor to conduct, organise and direct the pre-trial investigation and to supervise the procedural activities of pre-trial investigation officers. A prosecutor's decision can be appealed against to a superior prosecutor (Articles 15 and 16). 30. The Code of Criminal Procedure provides that parties to criminal proceedings can lodge complaints with the prosecutor against the procedural actions and decisions of the pre-trial investigating officer. The prosecutor's decision can be complained against to a superior prosecutor and subsequently to an investigating judge (Articles 62 and 63). When examining the complaint, the prosecutor and the investigating judge have a right to examine the pre-trial investigation materials and request statements from the pre-trial investigation officer or the prosecutor, provided that they had not been submitted before. The prosecutor, counsel, the accused and the complainant may be present during the examination of the complaint by the investigating judge. Furthermore, an investigating judge has a right to question witnesses, suspects and victims. Up to 31 August 2007 the decision of the investigating judge was final (Articles 64 and 173). Since that date, a decision of an investigating judge can be appealed against to a superior court (Article 214 § 3). 31. The pre-trial investigation can be conducted by the police, but it has to be organised and led by a prosecutor, who has an obligation to oversee the course of the investigation and who can decide to conduct all or part of the investigation himself (Articles 164, 165, 169 and 170 § 1 of the Code of Criminal Procedure). Under Articles 212 § 1 (2) and 214 § 1 of the Code, a prosecutor is to terminate the pre-trial investigation where insufficient evidence of the suspect's culpability in respect of a crime has been gathered. 32. The Regulations of the Internal Affairs Department of Vilnius City Police Headquarters, approved on 13 May 2000, stipulate that the Department is an autonomous structural unit subordinate and accountable to the Chief of Police at Vilnius City Police Headquarters or his deputy. It is the Department's function to conduct pre-trial investigations of criminal acts committed by police officers. When conducting an investigation, the Department's officials have the right to question police officers and other persons. 33. In their observations on the admissibility and merits of the case, the Government provided the Court with examples of recent domestic courts' practice in cases of abuse by the police. In particular, the Government referred to the judgment of 21 July 2008 when the Vilnius City First District Court convicted two police officers of abuse of authority. The policemen were charged with using excessive force when apprehending two suspects and later beating them while they were in custody. The Government noted that after hearing and seeing various witnesses and evaluating their credibility, the court had accepted the victims' version as more credible. The Government also referred to the judgment of the same court of 21 July 2003, subsequently upheld by the Supreme Court, when two police officers were convicted of abuse of authority and beating up a suspect during questioning. The conviction was based on the version of events presented by the victim, supported by corroborating medical examination. The fact that fellow police officers had testified in favour of the accused policemen did not cast doubt for the court on the credibility of the victim's claims.

dev

001-109546

ENG

MLT

ADMISSIBILITY

FARRUGIA v. MALTA

Inadmissible

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

1. The applicants, Mr Giljan Farrugia and Mr John Farrugia are Maltese nationals who were born in 1963 and 1957 respectively and live in St Julian’s. Their application was lodged on 3 November 2010. They were represented before the Court by Dr P.J. Galea, a lawyer practising in Valletta. 2. , may be summarised as follows. 3. The applicants are full-time farmers and farm a considerable area of land which is partly owned and partly held on agricultural lease by them following the death of their father. Prior to their father’s death the applicants also farmed the said land. This land included 205 square metres which had been earmarked for the building of a road. This parcel of land will hereinafter be referred to as land X. 4. On 20 January 1997 the applicants’ late father received a letter from the Ministry of Public Works and Construction asking whether he had come to an agreement over land X with company M who had been attempting to take control of the land. He was informed that failure to reply within a month would lead to expropriation proceedings being commenced. 5. Having failed to reach an agreement for the purchase of land X from the applicants, on 11 August 1997 Company M asked the Government to expropriate the said land, it constituting the only access to its property. At around the same time Company M applied for a permit to build 75 apartments and 170 garages on its property. 6. By a declaration published in the Government Gazette of 31 July 1998, under the Land Acquisition (Public Purposes) Ordinance (“LAPPO”), Chapter 88 of the Laws of Malta, it was stated that land X was being expropriated for a public purpose. 7. On 30 March 1999 the applicants and their father (hereinafter the applicants) instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. They invoked Articles 3, in that their land constituted their only means of making a living, 6 and 8 of the Convention and 1 of Protocol No. 1 since no compulsory taking of land could occur without the payment of adequate compensation and particularly because the taking at issue had been effected solely in the interests of third parties and was not therefore in the public interest. The applicants contended that the proposed street would divide their farm and cultivated land in a way that reduced their very productive land and would make cultivation very different with respect to irrigation and manuring. The existing water reservoirs and livestock would be separated from the cultivated fields, a circumstance which would be disastrous for their livelihood. They noted that they had been cultivating and breeding animals on the said land for forty years, long before the arrival of the present developer. Moreover, they had not been informed of the expropriation until work on the construction of the road was commenced. 8. The following witness testimony was heard: The architect of the Works Department submitted that the Code of Police Laws provided that when a person wanted to develop land the developer had to ensure road access to such land and when this was not possible because the owners would not sell the land, there existed a legal process by which the developer could ask the Commissioner of Lands to expropriate the said land. The land would then be expropriated by the Government and the developer would pay for the said land. An official of the Lands Department submitted that land X had been expropriated in the public interest. Various requests had been made for its expropriation but eventually Company M had signed a deed of obligation. The Government had then expropriated the land. However, the applicants had not accepted the compensation offered to them and it was then deposited in an interest-bearing account. Another official of the Lands Department submitted that the taking had been in the public interest as the land had already been earmarked for the building of a road. He added that although a request had been made by a third party, once expropriated the land remained the property of the Government. 9. By a judgment of 7 October 2009 the court rejected all the complaints. Noting the lack of pleadings on the matter, it held that the expropriation could not be considered as inhuman or degrading treatment under Article 3 and that Article 8 could not apply since the case did not concern the expropriation of a home. Nor did any issue arise under Article 6 as the provision did not provide for a judicial process before the initiation of an expropriation. As to Article 1 of Protocol No. 1 in respect of which proper pleadings had been filed, the court noted that there had been an interference with the applicants’ property rights (partly a deprivation in so far as they owned part of the land, and for the rest a control of use in so far as they held part of the land on agricultural lease). The interference had been in accordance with the law, namely the LAPPO, and the applicants had been offered compensation which they had not accepted. The court established that the applicants could not have been unaware of the expropriation, the details having been published in the Government Gazette. Moreover, land X had been earmarked for the development of a road since 1988. A representative had been on site to estimate the value of the land and had informed the applicants that it was being expropriated. As to the public interest, it considered that Article 2 of the LAPPO did not exclude that an expropriation could also serve the interests of third parties. Thus, while it was true that the expropriation in the present case had been triggered by a third party’s request, since the land had originally been earmarked as a road it could not be said that the taking had not been in the public interest. As to the proportionality of the measure, the court considered that, bearing in mind that land X constituted less than one eighth of the applicants’ entire property, and that the applicants only owned a quarter of the land the rest being held on lease, the applicants would not be made to bear an excessive burden. There had therefore been no violation of the said provision. 10. On 22 October the applicants appealed to the Constitutional Court. By a judgment of 30 July 2010 the Constitutional Court rejected their claims. The court noted that although in their initial application various issues were pleaded, also in relation to the expropriation, the applicants’ appeal had focused on the lack of a public interest. The court held that, as in the cases regarding expropriations for the purposes of the Freeport project, a hospital and a national theatre, and although development of the land was to be carried out by a private third party who would benefit financially from the project, this did not diminish the public interest involved, which in the present case consisted in providing access to a housing complex. Indeed, the Government had a duty to deal with town planning and in consequence the taking in the present case, although to the advantage of third parties, had been made in pursuance of legitimate social and economic policies, namely to create housing for the general public served by adequate roads. 11. Other lawsuits were instituted by the applicants or their late parents, but none were successful. Details of these lawsuits have not been submitted. 12. On 24 August 2005 a new declaration was published in respect of the same land. A new set of constitutional proceedings was instituted in this respect. These proceedings are still pending. 13. Article 2 of the LAPPO, in so far as relevant, reads as follows: “"public purpose" means any purpose connected with exclusive government use or general public use, or connected with or ancillary to the public interest or utility (whether the land is for use by the Government or otherwise) or with or to town-planning or reconstruction or the generation of employment, the furtherance of tourism, the promotion of culture, the preservation of the national or historical identity, or the economic well-being of the State or any purpose connected with the defence of Malta or connected with or ancillary to naval, military or air operations; and includes any other purpose specified as public by any enactment; and for the purposes of this definition, where the purpose for the exercise of any right under this Ordinance is connected with the utilisation of any land or any right in connection or in relation therewith for any purpose connected with the supply, storage or distribution of fuel or other sources of energy, or in connection with the provision of any utility or municipal services or infrastructural project shall be deemed to be connected with or ancillary to the public interest or utility;”

dev

001-115208

ENG

AZE

CHAMBER

CASE OF ASADBEYLI AND OTHERS v. AZERBAIJAN

Remainder inadmissible;Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

5. The applicants were participants in or were alleged to be organisers of the unauthorised demonstration of 16 October 2003, which escalated into violent clashes between the law-enforcement authorities and the demonstrators, as described below. 6. The events of the present case occurred in the aftermath of the presidential elections of 15 October 2003. The main opposition candidate, Mr Isa Gambar, the chairman of the Müsavat Party, lost the elections of 15 October 2003. 7. On the evening of election day a group of opposition supporters gathered in front of the Müsavat Party’s headquarters in the centre of Baku, claiming victory for their candidate in the election. Violent altercations between opposition supporters and the security forces took place at this time. 8. At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest against the election results. The crowd then started moving towards Azadliq Square, the main square in the city. It was reported that on the way some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence. 9. It has been claimed that some police officers who had been deployed in Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square with the aim of dispersing the demonstration. The situation quickly escalated into public disorder, and violent clashes occurred between the crowd and the police. It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question. 10. At around 6 p.m. the demonstration was completely dispersed. Several hundred people were arrested during the events of 16 October and in their aftermath. 11. On 16 October 2003 the Prosecutor General’s Office instituted criminal proceedings (case no. 80308) concerning the events of 15 and 16 October 2003. More than 100 people, of the several hundred arrested in connection with those events, were eventually prosecuted in connection with those proceedings. The proceedings concerned only the actions of the organisers of the demonstration and those participating in it, and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration (see Muradova v. Azerbaijan, no. 22684/05, §§ 23 and 114, 2 April 2009). 12. Almost the whole pre-trial investigation, in respect of all the defendants, was conducted in the context of this single set of criminal proceedings. However, as the investigation drew close to completion, criminal case no. 80308 was gradually split into several cases, eventually dividing the accused into fifteen separate groups. It appears that the only reason formally given by the prosecution for splitting up the case was the concern that the sheer number of defendants involved (more than 100) would prolong the proceedings and that it would be impractical to hold a single trial involving so many defendants (see Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 28, 26 July 2011). Furthermore, it appears that no significant investigative steps were taken after the cases were split (ibid., §§ 29 and 166). Each of the fifteen defendant groups thus created was tried separately. Fourteen of those trials concerned the events of 16 October 2003: they were all conducted by the Assize Court and were completed in March and April 2004 (one trial concerned the events of 15 October 2003, and this trial was conducted by the Sabail District Court). All the defendants in those trials, including the applicants in the present case, were found guilty and sentenced to either imprisonment, suspended prison terms or restriction of liberty. 13. The circumstances relating to each individual applicant in the present case are summarised separately below. 14. Mr B. Asadbeyli was the head of the Sumgayit branch of the Müsavat Party. Mr S. Hamidov, Mr E. Huseynli and Mr H. Mammadov held various positions within the Müsavat Party. Mr S. Aliyev and Mr E. Mammadov were students at a public university and had no formal affiliation to any political party. 15. Applicant H. Mammadov died on 27 May 2008, after the events described below and after the present application had been lodged with the Court. His brother, Mr Islam Mammadov, expressed a wish to continue pursuing the application on his behalf. 16. Mr S. Aliyev was arrested on 16 October 2003 during the dispersal of the demonstration by the police. He was charged with “organising or participating in public disorder” and “use of violence against public officials” under Articles 220 and 315.2 of the Criminal Code. On the same day the Nasimi District Court remanded him in custody for a period of three months. 17. Mr E. Mammadov was also arrested on 16 October 2003. He states that the arresting police officers issued a “report on an administrative offence” (inzibati xəta barədə protokol), accusing him of non-compliance with police orders in Azadliq Square, an offence under Article 310.1 of the Code of Administrative Offences (“the CAO”). 18. It appears from the documents submitted by the Government that on 18 October 2003 Mr E. Mammadov was brought before the judge of the Narimanov District Court in connection with the charge under the CAO. According to the transcript of the hearing, the applicant admitted that he had not complied with police orders, and expressed remorse for his actions. On 18 October 2003 the Narimanov District Court convicted him under Article 310.1 of the CAO and sentenced him to fifteen days’ “administrative detention”. 19. On 25 October 2003 Mr E. Mammadov lodged an appeal seeking a reduction of his sentence on the grounds of family circumstances and the fact that he was a student. On the same day, 25 October 2003, the Court of Appeal reduced the sentence to nine days’ detention and, having regard to the fact that he had already been in detention for nine days, ordered his immediate release. 20. According to Mr E. Mammadov, no copies of decisions concerning these administrative proceedings were made available to him. 21. However, soon after his release from “administrative detention”, Mr E. Mammadov was arrested again and charged with “organising or participating in public disorder” and “use of violence against public officials” under Articles 220 and 315.2 of the Criminal Code. In particular, he was accused of joining other participants in the demonstration in destroying public benches and asphalt and concrete revetments of pavements and roads, and of using stones as well as wooden and concrete debris obtained from the properties destroyed to assault police officers in Azadliq Square, in a manner posing a danger to their life and health. 22. Mr E. Mammadov was then remanded in custody pending criminal trial. 23. During their pre-trial detention, both Mr S. Aliyev and Mr E. Mammadov were expelled from the university. 24. On 17 October 2003 Mr B. Asadbeyli, Mr S. Hamidov, Mr E. Huseynli and Mr H. Mammadov were taken from their homes to the Sumgayit City Prosecutor’s Office for questioning. Several hours later they were allowed to go home but were instructed to come back the next morning. On 18 October 2003 they were taken to the Prosecutor General’s Office in Baku. When they arrived in Baku they were held in a police car for around nine to ten hours outside the building of the Prosecutor General’s Office. In the evening they were taken into the building and questioned. On both days they were questioned in the absence of a lawyer. 25. Following the questioning, the four applicants were charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day Nasimi District Court, issuing separate detention orders for each of the four applicants, remanded them in custody for three months. Some of the applicants were represented by Stateappointed lawyers at the hearings. 26. On 15 November 2003 the court replaced Mr S. Hamidov’s detention with a written undertaking not to leave his place of residence, and he was released pending trial. 27. According to the applicants, prior to their trial, several high-ranking state officials, including the Prosecutor General and the Minister of Internal Affairs, made public statements on television and in newspapers, referring to the participants in the demonstration of 16 October 2003 as “criminals” and promising that they would be punished. 28. In the course of the investigation, following a request by the prosecution, the Nasimi District Court authorised the Prosecutor General’s Office to obtain from Azercell Telecom, a cellular network operator, detailed information on all mobile phone connections registered during the period from 11 a.m. to 5 p.m. on 16 October 2003 in the area around Azadliq Square, with the purpose of establishing whether various defendants were present in the square at the relevant time. However, according to Mr B. Asadbeyli, he subsequently discovered that the case file contained print-outs of a “call details report” concerning all his private phone calls made over a longer time span and a larger geographical area than those authorised by the court. 29. All the applicants were tried together by the Assize Court (this trial was referred to as “Trial Group 8” in the OSCE report cited below). In total, there were nine defendants in the case, including the applicants. 30. The court relied on statements from a number of police officers as witnesses, who testified against the demonstrators. During the pre-trial investigation several police officers were shown photographs of the applicants and recognised them as demonstrators who had been throwing stones at police officers during the events of 16 October 2003. According to the applicants, they were not given an opportunity to meet these witnesses during the pre-trial investigation or to cross-examine them during the trial. According to the Government, the applicants were able to question all the witnesses who testified in court. 31. By a judgment of 24 March 2004, the Assize Court convicted all the applicants as charged under Articles 220.1 and 315.2 of the Criminal Code. Mr B. Asadbeyli, Mr S. Hamidov, Mr H. Mammadov and Mr E. Mammadov were given suspended sentences of four years and six months’ imprisonment and released immediately from the courtroom. Mr E. Huseynli and Mr S. Aliyev were sentenced to three and two years’ imprisonment respectively. 32. All the applicants appealed against the Assize Court’s judgment of 24 March 2004. The Court of Appeal examined all six appeals together. According to the applicants, they were not notified in advance of the time of the hearing at the Court of Appeal. Only Mr B. Asadbeyli, Mr S. Aliyev and the latter’s lawyer were able to attend the hearing. Mr B. Asadbeyli learned of the examination of the appeal by chance on the day the hearing was held. On 8 June 2004 the Court of Appeal dismissed the applicants’ appeals and upheld the Assize Court’s judgment of 24 March 2004. That court reduced the sentences of Mr E. Huseynli and Mr S. Aliyev to two years and one year respectively. 33. On 30 July 2004 Mr E. Huseynli lodged a cassation appeal against the Court of Appeal’s judgment. According to the Government, on 9 March 2005 the Supreme Court informed the applicant of the date of the hearing; however, the applicant failed to request the court to ensure his presence at the hearing and both the applicant and his lawyer failed to appear at the hearing. However, according to the applicant, he did not receive any response from the Supreme Court to his cassation appeal. 34. After his release from prison, on 28 March 2005 Mr E. Huseynli sent an inquiry to the Supreme Court concerning his appeal. On 31 March 2005 the Supreme Court sent him a letter informing him that his appeal was still pending and stating, inter alia: “... your cassation appeal will be examined.” 35. According to Mr E. Huseynli, his appeal was never examined. 36. On an unspecified date, Mr S. Aliyev lodged a cassation appeal with the Supreme Court. In reply, on 3 September 2004 the Supreme Court sent him a letter stating the following: “The Supreme Court has received your cassation appeal. We would like to inform you that if you disagree with the judgment of the Court of Appeal, you may lodge a cassation appeal with the Supreme Court in accordance with Articles 407-413 of the Code of Criminal Procedure.” 37. According to Mr S. Aliyev, his appeal was never examined. 38. The other four applicants, Mr B. Asadbeyli, Mr S. Hamidov, Mr H. Mammadov and Mr E. Mammadov, also lodged cassation appeals against the Court of Appeal’s judgment of 24 March 2004. The Supreme Court examined their appeals together and, on 19 October 2004, dismissed them, upholding the lower courts’ judgments. The full text of the Supreme Court’s decision was sent to the applicants on 2 November 2004. 39. Mr S. Aliyev served his full one-year prison sentence and was released on 16 October 2004. 40. Following a presidential pardon decree, on 21 March 2005 Mr E. Huseynov was released from serving the remainder of his sentence of two years’ imprisonment. 41. The applicant was arrested on 16 October 2003 during the dispersal of the demonstration. 42. After the arrest, he was taken to the Sabail District police station and later to the Baku Central police station. His family was not informed of his arrest. According to the applicant, at both police stations he was questioned in the absence of a lawyer. Interrogations were accompanied by illtreatment, in order to make him confess that he had actively participated in the disorder and had used violence against police, as well as to disclose the names of the organisers of the disorder. 43. On 17 October 2003 the applicant was formally charged under Articles 220 and 315.2 of the Criminal Code. He was then taken to the Prosecutor General’s Office, where, he states, he was forced to sign selfincriminatory statements. 44. On the same day, a district court in Baku remanded the applicant in custody for three months. This decision was taken in the applicant’s absence. He was not informed of the decision and was not given a copy of it. He was still unrepresented by a lawyer at this stage. 45. On 18 October 2003 the applicant’s parents were informed about the applicant’s arrest. On 23 October 2003 he was allowed to meet his lawyer for the first time. 46. The trial at the Assize Court began on 30 January 2004 (Trial Group 3). The applicant was tried with six others, including another applicant in this case, Mr Ramiz Guliyev. During the first hearing, the applicant declared that he was not guilty and claimed that he had been forced to give self-incriminatory evidence during his first days in detention. He asked the court not to admit in evidence his statements made during the pre-trial investigation. Some of the other defendants made similar complaints and requests. 47. Following the applicant’s allegations of ill-treatment in pre-trial detention, the court ordered a medical examination of the applicant. According to the forensic report of 14 February 2004, the forensic expert found no injuries which could have been inflicted at the time and in the circumstances alleged by the applicant. The applicant’s lawyer protested, claiming that he had not been informed about the time and place of the medical examination and was therefore unable to put questions to the medical expert. His request for a new medical examination was refused. The court found the applicant’s and other defendants’ allegations of ill-treatment unsubstantiated and admitted in evidence their statements given during pretrial investigation. 48. During the trial, the court heard and relied on statements from over 100 prosecution witnesses (the great majority of whom were police officers and military personnel) who testified against all demonstrators in general, describing the public disorder which had taken place and characterising the demonstrators’ intentions and actions as violent. The court also heard two police officers who testified against the applicant in particular; they stated that they had seen the applicant throwing stones at police officers. The court also watched a video recording which allegedly identified the applicant as one of the demonstrators throwing stones and running around with a club and a shield in his hands. The court refused the applicant’s request for witnesses to be examined who would testify to violence by law-enforcement officers against peaceful demonstrators, and also refused to admit in evidence a video recording and photographs with scenes of police brutality against demonstrators. The court noted that this evidence did not contain any information specifically concerning the applicant, and was therefore irrelevant. 49. On 4 March 2004 the Assize Court convicted the applicant of organising mass disorder and use of violence against the police, and sentenced him to four years’ imprisonment. 50. The applicant lodged an appeal, complaining, inter alia, that the Assize Court had conducted the proceedings unfairly and had relied only on the evidence provided by police officers. On 29 April 2004 the Court of Appeal dismissed the appeal and upheld the Assize Court’s judgment. On 21 September 2004 the Supreme Court upheld the lower courts’ judgments. 51. The applicant was an active member of the Müsavat Party. He was an election observer during the presidential elections of 15 October 2003. 52. On 17 October 2003 the applicant was taken from his home to a police station and questioned. He told the police that during the events of 16 October 2003 he had not been present in Azadliq Square but had been in another part of the city. He was then allowed to leave the police station. 53. However, on 21 October 2003 he was arrested and accused of resisting the police when he had been called to the police station to testify about the events of 16 October. The applicant was brought before a judge of the Yasamal District Court who, on the same day, found the applicant guilty of resistance to the police under Article 310.1 of the Code of Administrative Offences, and sentenced him to fifteen days’ “administrative detention”. 54. On the same day, the applicant was taken to the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”) where he was asked questions about his role in the events of 16 October 2003. According to the applicant, the interrogators beat him and burned him with cigarettes. He was held in the OCD until 31 October. He stated that throughout his detention he was ill-treated by various means, such as beating, crushing his fingers and toes, and burning his skin with cigarettes. 55. On 28 October 2003 the applicant was taken to the Prosecutor General’s Office for interrogation, but refused to testify because his lawyer was absent. He was taken back to the OCD. 56. The applicant was charged with “organising or participating in public disorder” and “use of violence against public officials”. On 31 October 2003 the applicant was taken to an unspecified district court, which remanded him in custody for three months. The applicant was not represented by a lawyer during this hearing. Following this, the applicant was transferred from the OCD’s detention facility to Detention Facility no. 1. 57. The applicant was tried at the Assize Court with six others (Trial Group 3), one of whom was another applicant in this case, Mr Shahin Gojayev (see section C. above). It appears that during the trial he was represented by a State-appointed lawyer. In his submissions to the court, the applicant maintained that he was not in Azadliq Square on 16 October 2003. 58. Some of the facts concerning the trial and witnesses heard by the court have been described above (see paragraph 48 above). As to the applicant’s particular situation, the court heard statements from several police officers and one civilian witness, who had been shown a photograph of the applicant during the pre-trial investigation and had identified him as one of the demonstrators who had been throwing stones at the police officers during the events of 16 October 2003. According to the applicant, those statements were false and hearsay evidence. The witnesses gave the same statements during the trial. According to the applicant, he was not given an opportunity to confront the witnesses during the pre-trial investigation. According to the Government, he was given an opportunity to confront them at the trial hearings. 59. According to the applicant, during the trial, he requested the court to hear three witnesses who could confirm that he was not in Azadliq Square on 16 October 2003. However, the court heard only one of these witnesses and refused to hear the other two. 60. The applicant also complained before the Assize Court that he had been ill-treated during his detention in the OCD’s detention facility. The court requested that the applicant be medically examined by a forensic expert. The forensic report of 24 February 2004 found a dark bruise on one of the fingers of the applicant’s left hand and four dark spots on his belly. The expert estimated that the bruise on the finger had most likely been caused by a hard blunt object about one month before, while the dark spots on the belly could be considered marks of burns which had been inflicted about two months before. The court also had regard to a letter from Detention Facility No. 1, dated 24 February 2004, stating that no injuries had been observed on the applicant’s body when he was transferred to Detention Facility No. 1 on 31 October 2003. The court concluded that the applicant’s allegations that he had been ill-treated in the OCD’s detention facility during the period between 21 October and 31 October 2003 were not supported by the available evidence. 61. On 4 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to five years’ imprisonment. 62. Following an appeal by the applicant, on 29 April 2004 the Court of Appeal upheld the Assize Court’s judgment of 4 March 2004. On 23 November 2004 the Supreme Court upheld the lower courts’ judgments. 63. Following a presidential pardon decree of 21 March 2005, the applicant was released from serving the remainder of his sentence. 64. The applicant was a member of the Müsavat Party. During the presidential elections of 15 October 2003 he was the chairman of the Gabala regional headquarters for I. Gambar’s electoral campaign. 65. The applicant was in Azadliq Square on 16 October 2003. He went back to Gabala on the same day, after the demonstration. In the morning of 17 October he was taken to a local police station and questioned. In the evening of 17 October he was taken to Baku, where he was detained in a police station until the next day. 66. On 18 October 2003 the applicant was formally charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day Nasimi District Court remanded the applicant in custody for three months. During the court hearing, the applicant was represented by a State-appointed lawyer whom he had not met before. The lawyer did not introduce himself to the applicant and did not talk to him. The applicant did not meet this lawyer again after the hearing of 18 October 2003. 67. The applicant was tried by the Assize Court with six others (Trial Group 5). It appears that he was represented by a lawyer during the trial. In his submissions to the court, the applicant denied that he had personally taken part in any violence during the events of 16 October 2003, and claimed that he had left Azadliq Square as soon as he saw the first signs of confrontation between demonstrators and police. The court relied on statements from more than 200 prosecution witnesses, mostly police officers and internal forces soldiers, who testified against all the demonstrators as a group, describing the public disorder which took place. During the pre-trial investigation, one police officer and one soldier were shown a photograph of the applicant and recognised him as one of the demonstrators who had been throwing stones at the police officers during the events of 16 October 2003. According to the applicant, he was not given the opportunity to meet these witnesses during the pre-trial investigation or to cross-examine them during the trial. According to the Government, the applicant’s lawyer had questioned them at the trial hearings. 68. On 5 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to four years and six months’ imprisonment. 69. On 27 April 2004 the Court of Appeal upheld this judgment. It appears from the case file that the applicant’s lawyer, but not the applicant himself, was present at the appellate hearings. On 21 December 2004 the Supreme Court upheld the lower courts’ judgments. The applicant was sent the full text of the Supreme Court’s decision on 5 January 2005. According to the applicant, neither he nor his lawyer were present at any of the appeal hearings. 70. In accordance with a presidential pardon decree of 19 March 2005, the applicant was released from serving the remainder of his prison sentence. Despite his early release, in accordance with Article 83 of the Criminal Code, the applicant’s conviction would remain on his criminal record for a period of six years after he was released. 71. In July 2005 the applicant made an application to the Gabala District Court for early expunging of the conviction from his criminal record, in accordance with Article 83.5 of the Criminal Code, taking into account his good behaviour in prison and after release. On 26 July 2005 the Gabala District Court refused this application. The Court of Appeal and the Supreme Court upheld this decision on 31 August 2005 and 22 March 2006 respectively. 72. According to the applicant, he had intended to stand as a candidate in the parliamentary elections of 6 November 2005. However, under the electoral law, his recent conviction record precluded him from doing so. 73. The applicant was the chairman of several non-governmental organisations dealing with issues of civil society and freedom of religion, a chief editor of a magazine and an information portal, and a religious leader of a small congregation of Muslims. During the presidential elections of 15 October 2003, he publicly supported I. Gambar. 74. The applicant was in Azadliq Square on 16 October 2003. According to him, he left the square prior to the eruption of violence between the demonstrators and the police, and observed the subsequent events from a distant location. 75. On 17 October 2003 the applicant was leading public prayers in Juma Mosque. During the prayers, a number of police officers surrounded the mosque with the intention of arresting the applicant. The applicant managed to avoid arrest with the aid of some “members of the international community” in Baku who, according to the applicant, included representatives of the OSCE, the Council of Europe and some foreign embassies. He was taken to the Norwegian embassy, where he remained for three days. 76. According to the applicant, on the same day, state television reported that all the “organisers” of the public disorder of 16 October 2003 had been arrested, with the exception of the applicant and one other person. 77. The applicant left the Norwegian embassy after receiving guarantees that “no unlawful actions would be taken against him”. Shortly thereafter, he attended a conference in Georgia. According to the applicant, during his stay in Georgia, it was reported on State television that “having committed a crime, he fled the country”. According to the applicant, a number of government officials, including the Prosecutor General, were featured in those television reports. 78. On 1 December 2003 the applicant was summoned to the Prosecutor General’s Office. After some questioning, he was arrested in connection with the events of 16 October 2003. 79. On 3 December 2003 the applicant was charged with “organising or participating in public disorder” and “use of violence against public officials”. On same day, at around 7 p.m., the Nasimi District Court remanded him in custody for three months. 80. During the first three days of detention the applicant was kept in a cold single cell, where he had to sleep on a metal bed without a mattress. He was then transferred to a cell which had previously been used for convicts awaiting the execution of their death sentence. 81. On 5 December 2003 the Prosecutor General sent a letter to the Head of the Baku City Executive Authority in connection with the alleged unlawfulness of the use of Juma Mosque by the applicant’s religious congregation, a matter which was not directly related to the criminal proceedings in the present case. However, among other things, the letter also contained the following statements: “The Prosecutor General’s Office is conducting a criminal investigation under Articles 220.1, 233 and 315.2 in connection with the mass disorder in the city of Baku on 15 and 16 October 2003 ... It has been determined that Ilgar Allahverdiyev took part in the mass disorder in Baku.” 82. The applicant was tried by the Assize Court with eight other defendants (Trial Group 13). The court relied on statements from a large number of police officers, who testified against the defendants and the demonstrators in general. Most of those statements did not relate specifically to the applicant. Two police officers testified that they had seen the applicant at Azadliq Square and that they had heard from someone that the applicant had instructed some of his followers to go to the square. The court also relied on the pre-trial deposition of a witness who failed to appear at the court hearings, despite the applicant’s requests to cross-examine him. According to the applicant, written depositions from some prosecution witnesses were identical, word for word. The court refused to hear the majority of witnesses who had been called by the applicant to testify on his behalf. 83. On 2 April 2004 the Assize Court convicted the applicant under Articles 220.1 and 315.2 of the Criminal Code. He received a suspended sentence of five years’ imprisonment and was released immediately from the courtroom. 84. On 25 May 2004 the Court of Appeal upheld this judgment. According to the applicant, the appellate hearing took place in the presiding judge’s office in the applicant’s absence, despite his request for the hearing to be postponed owing to his inability to attend because of illness. The hearing lasted a few minutes. 85. On 5 April 2005 the Supreme Court dismissed the applicant’s cassation appeal. According to the applicant, the hearing in the Supreme Court lasted six minutes. 86. The applicant was in Azadliq Square on 16 October 2003. In the evening of the same day he was arrested after he had returned home from the demonstration, and was taken to a local police station. He was then questioned, with no lawyer present, and detained at the police station until the next day. 87. On 17 October 2003 the applicant was formally charged with “organising or participating in public disorder” and “use of violence against public officials”. On the same day the Nasimi District Court remanded the applicant in custody for three months. During the court hearing the applicant was represented by a State-appointed lawyer he had not met before. 88. The applicant was tried at the Assize Court with seven others (Trial Group 11). It appears that he was represented by another State-appointed lawyer during the trial. In his submissions to the court, the applicant denied taking part personally in any violence that had taken place during the events of 16 October 2003, and claimed that he had left Azadliq Square as soon as he saw the first signs of confrontation between demonstrators and the police. 89. During the trial, the Assize Court relied on statements from a number of police officers and internal forces soldiers as witnesses who testified against the demonstrators. Several police officers testified that they had seen the applicant in Azadliq Square. During the pre-trial investigation two police officers had been shown a photograph of the applicant and recognised him as one of the demonstrators throwing stones at the police officers during the events of 16 October 2003. These police officers gave the same testimony during the trial. According to the applicant, he was not given the opportunity to meet these witnesses during the pre-trial investigation, or to cross-examine them during the trial. 90. On 19 March 2004 the Assize Court found the applicant guilty of both the charges against him and sentenced him to five years’ imprisonment, suspended, with a four-year probation period. The court ordered that he be released after the conviction became final following any appeals. 91. Following an appeal by the applicant, on 24 May 2004 the Court of Appeal upheld the Assize Court’s judgment of 19 March 2004. On 30 August 2005 the Supreme Court upheld the lower courts’ judgments. The applicant was sent the full text of the Supreme Court’s decision on 13 October 2005. 92. Although the applicant was released because the sentence was suspended, his conviction would remain on his criminal record for a period of six years. According to the applicant, he had intended to stand as a candidate for the parliamentary elections of 6 November 2005. However, under the electoral law, his recent conviction record precluded him from doing so. 93. In July 2005 the applicant made an application to the Nasimi District Court for early expunging of the conviction from his criminal record. On 15 July 2005 the Nasimi District Court refused this application, noting that in accordance with the Criminal Code it was only possible for such a conviction to be expunged after the expiry of at least half the probation period, which in the applicant’s case had not yet happened. The Court of Appeal and the Supreme Court upheld this decision on 2 September 2005 and 23 March 2006 respectively. The full text of the Supreme Court’s decision of 23 March 2006 was sent to the applicant on 11 April 2006. 94. Article 310 of the CAO provides: Article 310. Deliberate non-compliance with the lawful order of a police officer or military serviceman “310.1. Deliberate non-compliance [by individuals] with the lawful orders of a police officer or military serviceman while the latter is carrying out his duties of protection of public order – 95. Article 220 of the Criminal Code provides: Article 220. Mass disorder “220.1. Organising or participating in mass disorder involving acts of violence, plunder, arson, destruction of property, use of firearms or explosives, or armed resistance to public officials – is punishable by imprisonment for a period of four to twelve years. 220.2. Inciting active resistance to lawful orders of public officials and to mass disorder and violence against citizens – is punishable by imprisonment for a period of up to three years. 96. Article 315 of the Criminal Code provides: Article 315. Resistance to or use of violence against public officials “315.1. Use of violence against, or violent resistance to, a public official in connection with the performance of his or her duties, or acts or threats of violence towards relatives of [such a public official], which do not pose danger to life or health – is punishable by imprisonment for a period of up to three years. 315.2. Use of violence towards persons mentioned in Article 315.1 of this Code endangering their life or health – is punishable by imprisonment for a period of three to seven years.” 97. Under Article 455 of the Code of Criminal Procedure (“the CCrP”), the finding of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights is a ground for reopening the proceedings. Pursuant to Article 456, in this case, the Plenum of the Supreme Court examines the case exclusively on points of law. After the examination of the case, the Plenum of the Supreme Court may decide to quash the lower courts’ rulings and remit the case to the relevant lower court, or to vary the decision of the courts of cassation or other courts, or to quash the decision of the courts of cassation or other courts and deliver a new decision (Article 459 of the CCrP). 98. According to Articles 13.3.1 and 13.3.2 of the Electoral Code, persons imprisoned pursuant to a final court judgment and persons convicted of criminal offences indicated in Articles 15.4 and 15.5 of the Criminal Code do not have a right to stand for election in parliamentary, presidential and municipal elections (see also paragraph 101 below). 99. Article 15 of the Criminal Code classifies criminal offences by degree of gravity into offences which do not pose a major public threat, “less serious” criminal offences, serious criminal offences and especially serious criminal offences. According to Article 15.3, a “less serious criminal offence” is an offence committed deliberately or negligently for which the maximum punishment does not exceed seven years’ imprisonment. According to Article 15.4, a “serious criminal offence” is an offence committed deliberately or negligently for which the maximum punishment does not exceed twelve years’ imprisonment. According to Article 15.5, an “especially serious criminal offence” is an offence committed deliberately for which the punishment exceeds twelve years’ imprisonment. 100. The maximum sentence for a criminal offence under Article 220 of the Criminal Code is twelve years’ imprisonment (see paragraph 95 above); accordingly, pursuant to Article 15.4 of the same Code, it is considered a “serious criminal offence”. 101. According to Article 83.1 of the Criminal Code, a person convicted pursuant to a final court judgment is considered a “convicted person” from the date the judgment enters into force until the date the conviction is expunged from his or her criminal record. According to Article 83.4 of the Criminal Code, the criminal conviction of a person convicted of a “serious criminal offence” is expunged after the expiry of a period of six years from the date he or she completed serving the sentence imposed. Article 83.5 provides that a conviction may be expunged earlier if an application is made and he or she is able to demonstrate exceptionally good behaviour following conviction. 102. Extracts from the report by the Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR), on the Trial Monitoring Project in Azerbaijan 2003-2004 (“the OSCE Report”), containing detailed observations by the OSCE trial monitors concerning various deficiencies in the trials concerning the events of October 2003, have been previously extensively quoted in the Huseyn and Others judgment (cited above, §§ 107-08). 103. Extracts from a number of reports by international bodies and human rights NGOs describing the violent clashes between demonstrators and law-enforcement authorities during the events of 15 and 16 October 2003 have previously been quoted in the Muradova judgment (cited above, §§ 71-77). 104. Among other similar reports by international NGOs, the report by Human Rights Watch entitled Crushing Dissent: Repression, Violence and Azerbaijan’s Elections (January 2004 Vol. 16, No. 1(D)), contains lengthy summaries of numerous first-hand accounts by persons arrested in connection with the events of 15 and 16 October 2003 concerning the alleged acts of torture and ill-treatment they had been subjected to while in detention. The relevant statements were made by the alleged victims in interviews personally conducted by Human Rights Watch researchers during the organisation’s two missions to Azerbaijan between September and November 2003.

dev

001-4554

ENG

AUT

ADMISSIBILITY

SAHINTÜRK v. AUSTRIA

Inadmissible

Nicolas Bratza

The applicant is a Turkish national, born in 1970. He is currently living in Turkey. He is represented before the Court by Mr. R. Soyer, a lawyer practising in Vienna. The applicant lived in Austria with his parents and siblings since 1978. He went to school there and later on took up employment. His parents and one brother have meanwhile acquired Austrian citizenship. On 27 September 1992 the Vienna Federal Police Authority (Bundespolizeidirektion) revoked the applicant’s unlimited residence permit. It noted that the Vienna Regional Criminal Court, on 19 September 1990, had convicted the applicant of damage to property and burglary and had sentenced him to four months’ imprisonment suspended on probation. On 6 December 1991 the same court had convicted him of attempted theft and attempted intimidation and had sentenced him to three months’ imprisonment suspended on probation. In view of these convictions, both of which were final, the applicant no longer fulfilled the requirements for an unlimited residence permit. On 13 January 1993 the Vienna Federal Police Authority issued a residence ban of unlimited duration against the applicant on account of his convictions. On 14 July 1993 the Vienna Public Security Authority (Sicherheitsdirektion), upon the applicant’s appeal, quashed the residence ban against him. It relied on S. 20 § 2 of the 1992 Aliens Act (Fremdengesetz) according to which no residence ban may be issued against an alien if it would have been possible to grant him citizenship under S. 10 § 1 of the Citizenship Act, i.e. if he has been resident in Austria without interruption for ten years, before the offences in question were committed, except in case of offences punishable with more than five years’ imprisonment. On 17 June 1994 the Vienna Regional Government dismissed the applicant’s request for a residence permit. His appeal to the Federal Ministry for the Interior was to no avail. On 1 February 1995 the Vienna Federal Police Authority issued a deportation order against the applicant. It relied on S. 17 of the 1992 Aliens Act, according to which illegally resident aliens are to be ordered to leave the Federal territory. It noted that in addition to his convictions in 1990 and 1991, the applicant had been convicted of possession of illicit drugs by the Vienna District Criminal Court on 7 May 1992, without an additional sentence being passed. On 12 October 1992 the Vienna Regional Criminal Court had convicted him of making illicit drugs accessible to minors and sentenced him to three months’ imprisonment. On 3 March 1993 the Vienna Regional Criminal Court had convicted him of a number of offences including aggravated fraud, theft, assault and obstructing public authority and had sentenced him to eight months’ imprisonment. The authority acknowledged that the deportation constituted a serious interference with the applicant’s private and family life. According to S. 19 of the 1992 Aliens Act a deportation order was only to be issued if it was necessary within the meaning of Article 8 § 2 of the European Convention of Human Rights. Having regard to the applicant’s repeated convictions including those for drugs offences, which involved particular dangers for public safety, the public interest in deporting him outweighed his interest in remaining in Austria. On 24 April 1995 the Vienna Public Security Authority dismissed the applicant’s appeal. On 13 June 1995 the Constitutional Court (Verfassungsgerichtshof) refused to entertain the applicant’s complaint. Subsequently, it referred the case to the Administrative Court (Verwaltungsgerichtshof). On 8 February 1996 the Administrative Court dismissed the applicant’s complaint. It found that the deportation order against the applicant was necessary within the meaning of Article 8 § 2 of the European Convention on Human Rights in the interests of public safety and the prevention of crime, having regard to his prolonged illegal residence since the withdrawal of his residence permit and the gravity of the offences, in particular the drugs offences, committed by him. The decision was served on the applicant on 15 May 1996. On 21 July 1996 the applicant left Austria and is now living in Turkey.

dev

001-80843

ENG

RUS

ADMISSIBILITY

LOZHKIN v. RUSSIA

Inadmissible

Peer Lorenzen

The applicant, Mr Konstantin Vladimirovich Lozhkin, is a Russian national who was born in 1971 and lives in the town of Kandalaksha in the Murmansk Region. He was represented before the Court by Mr A. Kovalev, a lawyer practising in Murmansk. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 1998 the applicant decided to purchase a car in the Republic of Belarus. According to the applicant, he applied to the Kandalaksha Customs Office (Кандалакшская таможня, “the Customs Office”) for information concerning the applicable customs regulations and fees and was informed that the customs border between the two states had ceased to exist, customs restrictions had been abolished, and therefore the Russian customs authorities no longer collected duties in respect of motor vehicles imported from Belarus into Russia. On 26 October 1998 the applicant purchased a second-hand German car in the Republic of Belarus. On 2 November 1998 he brought the vehicle into Russia and passed through customs control in the Customs Office without being required to pay any duties. The inspector in charge stamped the invoice for the purchase of the car to indicate that the customs formalities had been accomplished and no customs clearance was needed. On 16 January 1999 the State Road Traffic Inspectorate registered the applicant’s vehicle. On 27 October 1999 the Customs Office informed the applicant that he had failed to comply with clearance requirements when he imported his motor vehicle into Russia and had to present his car to the Customs Office before 30 November 1999 to obtain clearance. By a letter of 30 November 1999 the Customs Office notified the applicant that he had failed to pay customs duties and other related taxes on his imported car totalling RUR 27,111.46 (approximately EUR 1,000) in time. In the same letter it required the applicant to pay a daily penalty (пеня) for the delay in the payment of the above sum starting from the date on which the vehicle had entered Russia. The penalty amounted to RUR 16,339.17 (approximately EUR 600) and continued to accrue. The sums were payable before 20 December 1999. The applicant refused to comply with these decisions and challenged the above order before the director of the Customs Office. By a letter of 16 December 1999 one of the deputy directors of the Customs Office informed the applicant that an investigation had been started into the alleged failure of an unidentified person to make a proper declaration in respect of a motor vehicle that had been imported from Belarus into Russia and registered by the State Road Traffic Inspectorate on 16 January 1999. The investigation established that the car in question had been purchased by the applicant, who had then applied for its registration. The applicant had allegedly repeatedly been summoned as a witness but had failed to appear. The letter further stated: “... it is true that the papers on the car which you have imported contain checks by the Kandalaksha Customs Office – a stamp stating ‘customs control accomplished; customs clearance not required’, signed by a customs officer and sealed with his personal stamp. Yet the vehicle is not registered at the customs registry [and] the customs control has not, in fact, been performed. According to the directive issued by the State Customs Committee of the Russian Federation on 28 November 1996 ..., a customs control cannot be finalised unless there is proof of the transfer of customs duties and other taxes collected in Belarus to the federal budget of the Russian Federation. The customs officer sent no such request to the Belarusian authorities and, accordingly, such proof is missing. The customs officer, who checked and stamped your documents did, therefore mislead you ... and will take responsibility for this. However, this does not absolve you of the obligation to clear duly the motor vehicle through customs in the proper manner. As you failed to produce the vehicle within the fixed time-limit and did not perform the customs clearance in the Kandalaksha Customs Office in compliance with [our] orders of 19 October 1999 and 27 October 1999, administrative proceedings for breach of customs regulations have been brought against you ...” The applicant stated that he had never received the order of 19 October 1999 and that he had attended the Customs Office once, on receipt of the first summons. The applicant challenged the decision of the Kandalaksha Customs Office concerning the imposition of the duties and a fine in court. On 14 February 2000 the Kandalaksha Town Court of the Murmansk Region (Кандалакшский городской суд Мурманской области) gave a judgment in the applicant’s favour. It found that the applicant’s vehicle pertained to a category of goods originating in a third country that had been duly released into free circulation on the territory of Belarus. It then had regard to Decree no. 525 issued by the President of Russia on 25 May 1995, the resolution of the Government of Russia no. 583 of 23 June 1995, Directive no. 01-14/1310 issued by the State Customs Committee on 28 November 1996 and other relevant instruments (see the “Relevant domestic law”) and held that they had abolished customs control and customs clearance in respect of the said category of goods. The court rejected the defendant’s argument that the requirement to pay the customs duties in the present case was justified by the fact that the implementation of the customs union between the two states was not yet complete. With respect to the defendant’s argument that the applicant had failed to present the necessary documents when passing through customs control as prescribed by the directive of the State Customs Committee of 28 November 1996, the court noted that the directive in question was unclear and the Kandalaksha Customs Office had misconstrued it. The court concluded that the applicant was, therefore, exempt from the customs duties and other fees and that the customs authorities’ order was unlawful. On 6 September 2000, on an appeal by the Kandalaksha Customs Office, the Murmansk Regional Court quashed the above judgment and substituted its own decision. It agreed with the finding of the court below that the applicant’s car had originated in a third country and been duly released in Belarus, and the applicant had properly declared it and passed through customs control in Russia. However, the Regional Court considered that the Town Court had erred in law in holding that the category of goods to which the applicant’s car belonged was unconditionally exempt from customs clearance. It referred to the incomplete implementation of the customs union and the applicant’s failure to produce the documents required by the aforementioned directive of the State Customs Committee and ruled that the claims of the Kandalaksha Customs Office were well-founded. It accordingly dismissed the applicant’s complaint. On an unspecified date the Customs Office brought a court action against the applicant for the recovery of the amounts due in respect of the customs duties and surcharges. On 25 December 2000 the Town Court granted its claims in part. It noted that the court decision of 6 September 2000 was res judicata in the applicant’s case and therefore the applicant was under an obligation to pay the customs duties amounting to RUR 26,724.29 (approximately EUR 760). However, it absolved the applicant of payment of the surcharges after noting that his failure to pay the customs duties in time had been due to the general uncertainty and ambiguity of the regulations governing the import of goods from Belarus to Russia. On 11 April 2001 the Regional Court upheld the first instance judgment on appeal. According to the applicant, he had to pay the sum due by instalments because of its size. He discharged his obligation in full in November 2003. Article 4 § 1 of the Agreement provides, as follows: “Import customs duties, taxes and contributions of equivalent value on goods originating in a third country shall be levied in the budget of the High Contracting Party which is the country where such goods are consigned.” Article 6 § 2 of the Agreement provides, so far as relevant, as follows: “The Contracting Parties ... shall abolish customs control at the border between them ... provided that reliable customs control is exercised at their external borders”. In line with the Agreement, on 25 May 1995 the President of Russia issued decree no. 525 abolishing customs control at the border between Russia and Belarus. On 23 June 1995 the Government of Russia adopted resolution no. 583 implementing the above decree. In particular, it ordered that the State Customs Committee to abolish customs control and customs clearance at the border between Russia and the Republic of Belarus in respect of, inter alia, goods originating from Belarus or that had been released into free circulation in Belarus. On 28 November 1996 the State Customs Committee of Russia issued directive no. 01-14/1310 exempting goods originating in a third country and duly released into free circulation in the Republic of Belarus from customs duties in Russia. In order to obtain the exemption a document had to be produced proving that the import duties paid to the Belarusian customs authorities had been transferred into the budget of Russia. Failure to provide such proof would result in the imported goods of the said category being subject to customs clearance in Russia.

dev

001-138639

ENG

POL

ADMISSIBILITY

STOWARZYSZENIE ''POZNAŃSKA MASA KRYTYCZNA'' v. POLAND

Inadmissible

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

1. The applicant, Stowarzyszenie Poznańska Masa Krytyczna, is an association registered in Poznań. It is represented before the Court by Mr A. Bodnar, a lawyer practising in Warsaw. 2 3. The applicant is a registered association. Its objective is to draw the attention of the public and the local authorities to the growing number of cyclists in Poznań and to the need to adapt traffic management measures and the road network for their benefit. Since 2005 it had organised monthly events consisting of gatherings of large numbers of cyclists riding through the main thoroughfares of Poznań. 4. On 27 October 2009 the applicant association notified the Poznań Town Hall of an event to be held on 30 October 2009 in protest against various forms of discrimination (mające na celu protest wobec dyskryminacji). It was to start at 6 p.m. and end at approximately 8.45 p.m. A specific route for the cycle ride was indicated in the notice. 5. By a decision of 29 October 2009 the mayor of Poznań banned the event. He was of the view that the assembly in the form planned by the applicant association had to be regarded as a “ride” (przejazd), a term to which section 7 of the Assemblies Act 1990 could not be held applicable. That provision referred to an assembly as a “passage” (przejście). As the planned event was to take the form of a ride, it could not be regarded as assembly within the meaning of that Act. Such an event fell under the Road Traffic Act 1997. 6. The applicant association appealed against that decision the same day, on the grounds that it was in breach of its right to freedom of peaceful assembly. 7. On 5 November 2009 the governor of Wielkopolska allowed the appeal. He held that the first-instance decision was in breach of Article 7 of the Assemblies Act. It had wrongly construed the notion of assembly in such a manner as to exclude a group of cyclists riding through town from the scope of the notion of assembly within the meaning of the provision. Such an interpretation was unduly restrictive and in breach of Article 57 of the Constitution, Article 21 of the UN Covenant of Civil and Political Rights, and Article 11 of the Convention. Furthermore, the conditions laid down in section 8 of the Assemblies Act specifying circumstances in which a ban of an assembly to be held could be imposed, such as danger to life or limb or a major danger to property, were not met. 8. The appellate body discontinued the proceedings. 9. The applicant association appealed against the second-instance decision, on the grounds that it also was in breach of the right to freedom of assembly, because it had been given after the planned date. The applicant association had not had at its disposal any procedure which would have made it possible to obtain a final decision prior to that date. It was of the view that a procedure should be in place enabling organisers of public meetings and assemblies to have a ruling – delivered in advance of the event – on whether the event can be held. 10. It further challenged the decision to discontinue the proceedings. It asked the Poznań Regional Administrative Court (Wojewódzki Sąd Administracyjny) to consider lodging a legal question with the Constitutional Court as to the compatibility of sections 7.1, and 9.1 and 4 of the Assemblies Act with the Constitution in so far as they laid down the procedural framework for obtaining authorisation. 11. On 20 November 2009 the Regional Administrative Court dismissed the appeal. It shared the view of the appellate body that the first-instance decision had been in breach of the applicant association’s right to freedom of assembly. 12. As to the grounds for appeal based on the allegedly deficient timeframe, the court held that pursuant to section 7 of the Assemblies Act, a request for approval to hold an assembly had to be filed no earlier than thirty days and no later than three days before the planned date. In the present case notice had been given on 27 October 2009, whereas the event had been planned for 30 October. The first-instance decision dated 29 October had been served on the applicant association the same day. It had lodged an appeal the next day, Friday 30 October. Saturday and Sunday were regarded as non-working days. On Monday 2 November the appeal had been forwarded to the second-instance administrative body. The decision had been given on 5 November and served on the applicant the same day. 13. The speed with which the case had been processed was not open to criticism. The governor had dealt with the case speedily. The applicant association had failed to take into consideration that the public administration did not work on Saturdays and Sundays. Had it filed its request earlier, it would have been possible for the authorities to give a decision prior to the planned date. 14. The court shared the appellant’s view that the contested decision had failed to indicate the grounds on which the proceedings had been discontinued in accordance with the applicable procedural provisions. However, this procedural breach had no bearing on the outcome of the case. 15. The court further held that there were no grounds on which to put a legal question to the Constitutional Court with a view to challenging the provisions of the Assemblies Act as to the time-frame within which the administrative authorities had to decide requests for approval to hold an assembly. 16. Article 57 of the Constitution reads: Freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute. 17. By virtue of section 1 of the Assemblies Act 1990, everyone has the right to freedom of peaceful assembly. A gathering of at least fifteen people, called in order to debate an issue or to express an opinion on a given issue, is to be regarded as an assembly within the meaning of the Act. 18. Under section 2, freedom of assembly can only be restricted by statute and where it is necessary for the protection of national security or public safety, for the protection of health or morals or for the protection of the rights and freedoms of others. 19. In principle, decisions concerning the exercise of freedom of assembly must be taken by the local authority in the municipality where the assembly is to be held. These decisions can be appealed against to the regional governor. 20. Under section 6 of the Act, the municipality must be informed by the organisers of the intention to hold a public gathering in an open air area accessible to an unspecified number of people. Under section 7, notice must be given to the municipality no earlier than thirty days and no later than three days before the planned date of the demonstration. 21. Pursuant to section 8 the municipality shall ban a demonstration if its purpose is in breach of the Act itself or of the provisions of the Criminal Code, or if it might entail danger to life or limb, or major damage to property. 22. According to the legislative provisions in force at the relevant time, a first-instance decision to ban a demonstration had to be served on the organisers within three days of the date on which the relevant request was filed and no later than twenty-four hours before the planned time of the demonstration. An appeal against the ban had to be lodged within three days of the date of its service. The lodging of such an appeal did not prevent the ban of the demonstration taking effect. 23. A decision given by the appellate authority had to be served on the organisers within three days of the date on which the appeal was lodged.

dev

001-120537

ENG

UKR

ADMISSIBILITY

YERMAKOVA v. UKRAINE

Inadmissible

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

The applicant, Ms Lyusya Ivanovna Yermakova, is a Russian national, who was born in 1937 and lives in Yeysk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy. In accordance with Article 36 § 1 of the Convention, the Government of the Russian Federation were invited to exercise their right to intervene in the proceedings, but they declined to do so. The facts of the case, as submitted by the parties, may be summarised as follows. In the late evening of 24 January 2007 an ambulance found G.P., the applicant’s daughter, dead in the flat she had lived in with I.P., her husband. At 12.25 a.m. on 25 January 2007 the police were notified of the death. From 1.30 to 4 a.m. an investigator from the Malinovsky District Prosecutor’s Office of Odessa, and medical and forensic experts, examined and photographed the body of G.P. and the flat. They noted numerous bruises and abrasions on G.P.’s body, took samples of a brownish substance and seized cloths and linen with brown stains found in the flat. On the same date the Malinovsky District Police Office of Odessa detained I.P., and opened a criminal case against him on suspicion of inflicting serious bodily injuries on G.P. causing her death. I.P., after being interviewed separately by the police and prosecutors, confessed to having punched G.P. in the face and abdomen. During that day two neighbours were also interviewed and an autopsy and forensic medical examination of G.P.’s larynx (throat) were ordered. On 26 January 2007 an expert, Yu., drew up a death certificate indicating that the rupture of G.P.’s liver and closed injury of the abdomen, sustained during an “assault with the aim of inflicting injuries”, had led to significant loss of blood, which had ultimately caused her death. On the same date, three neighbours of G.P. and I.P. were interviewed. I.P., in the presence of an advocate, stated that he had only slapped G.P. lightly on the face a number of times, and that she herself had fallen and sustained all the injuries. He explained the discrepancy with his previous statements by his having been misled by the police on 25 January 2007 and having been ill at the time of making the statement. On 29 January 2007 the applicant was recognised as an aggrieved party in the case. On 31 January 2007 a forensic medical report of the examination of G.P.’s larynx recorded that she had sustained a complete fracture of the hyoid bone and thyroid cartilage. The expert was unable to determine what sort of object had caused the injuries. On 1 February 2007 investigator I. of the district police ordered a postmortem and immunologic examination of G.P. and questioned I.P. again. On 7 February 2007 expert Yu. drew up an autopsy report indicating that the liver rupture, a closed fracture of the hyoid bone and thyroid cartilage, and numerous bruises and abrasions had been inflicted with a blunt object without specific features. In the expert’s opinion the liver rupture had caused significant loss of blood, which had led to death. He also noted that G.P. had been heavily intoxicated before her death. An immunological report of 9 February 2007 indicated that the items seized and samples taken from the flat occupied by G.P. and I.P. contained blood of the same group as that of G.P. On 12 February 2007 expert Yu., having conducted a post-mortem examination of G.P., found that it could not be excluded that the fractures and liver rupture had been sustained as a result of the victim falling and hitting the corners of furniture. On 28 February 2007 investigator I. discontinued the criminal proceedings against I.P. for lack of corpus delicti, basing his decision on the fact that the neighbours had not noticed anything suspicious on that day and described I.P. as a peaceful person; on I.P.’s admission that he had only lightly slapped G.P. in the face a number of times, that both of them had been drinking and that G.P. had fallen over and hit various objects on that day; that the flat had been cordoned off before the forensic examination of 25 January 2007; and that according to the post-mortem examination G.P. could have sustained her injuries as a result of falling and hitting protruding objects. On 6 March 2007 the district prosecutors, without giving their arguments, found the discontinuation of the proceedings premature, groundless and unlawful and instructed the district police to put the case materials in order, to set up a task force and draw up a detailed investigation plan, to carry out an additional post-mortem examination, to verify I.P.’s statements of 24 January 2007, to interview expert Yu., and to attach photographs of the crime-scene examination to the case file. On 6 March 2007 the investigation was suspended because I.P. was ill. It was resumed on 4 April 2007, when investigator I. conducted a reconstruction of the crime scene, during which I.P. essentially repeated his statement of 26 January 2007. On 5 April 2007 investigator I. ordered an additional post-mortem examination of G.P. in order to verify I.P.’s statement in respect of the victim’s injuries. On 5 May 2007 expert Yu. drew up an additional post-mortem report which indicated that G.P. might have sustained her serious injuries in the way described in I.P.’s statement. On 4 June 2007 the Odessa Regional Prosecutor’s Office ordered a forensic medical examination of G.P. On 12 June 2007 expert Yu. was questioned. On 19 June 2007 investigator I. ordered an additional medical examination to be carried out in respect of the victim’s injuries. On 2 July 2007 a combined forensic medical examination was carried out by experts K., R. and O., who concurred with the findings of the examination of 12 February 2007, but noted that all the injuries had been sustained shortly before G.P.’s death, and that the lethal injury might not have been sustained as a result of falling and hitting objects. On 3 July 2007 the same experts drew up an additional medical report in which they concluded that it was impossible to establish the order in which the injuries had been inflicted. On 10 July 2007 investigator I. charged I.P. with the infliction of serious bodily injuries resulting in the death of G.P. and questioned him in that connection. There is no indication of whether the investigator complied with the prosecutors’ remaining instructions. On 16 July 2007 the investigation was completed and on 17 July 2007 the case was transferred to the Malinovsky District Court of Odessa for trial. On 19 December 2007 a panel of psychiatrists which had been ordered by the court to examine I.P. failed to reach a conclusion concerning the latter’s mental state on 24 January 2007, and recommended that I.P. undergo an in-patient examination. On 27 March 2008 a panel of psychiatrists examined I.P. and found it impossible to establish his mental state without the accounts of V.B. and V.P., who, according to I.P., had been present during the events on 24 January 2007. On 26 May 2008 the court ordered the panel to carry out another psychiatric examination of I.P. On 19 June 2008 the panel found that I.P. had been of sound mind after 24 January 2007, but that it was impossible to establish his mental state on 24 January 2007 without the accounts of V.B. and V.P. However, on 14 April 2009 an additional psychiatric examination of I.P. established that he had been of sound mind both on and around 24 January 2007. In May 2009 the judge dealing with the case suspended the proceedings due to the expiry of his term of office. On 11 September 2009 the President of the court transferred the case to another judge. On 1 March 2010 the applicant lodged a civil claim with the court seeking 250,000 Ukrainian hryvnias (UAH) in damages for the alleged murder of her daughter. On 29 November 2010 the court convicted I.P. of the premeditated infliction of serious bodily injury resulting in death, sentenced him to eight years’ imprisonment and ordered him to pay UAH 200,000 to the applicant in compensation for non-pecuniary damage. In the reasoning of the judgment the court mentioned that I.P. had repeatedly changed his account of the events of 24 January 2007 and only in March and October 2008 had he stated that V.P., V.B., and V.A. had been present during that day and could confirm his version of the events. The court noted a number of inconsistencies in the accounts of the events of 24 January 2007 submitted by I.P. and witnesses V.A. and V.P., and substantial contradictions between their respective statements and those made by other witnesses. The court also noted that the police officer who had interviewed I.P. on 24 January 2007 had smelled alcohol on I.P.’s breath and noticed fresh scratches on his neck, but could not explain why a medical examination or taking of nail samples from I.P. had not been ordered. The court also noted that I.P. had “manipulated” the investigator and the expert dealing with his case on a number of occasions in order to evade responsibility. It referred to: “... [his] attempt to obtain 10,000 American dollars to ‘settle the matter’, the initial autopsy report finding that G.P.’s injuries might have been sustained ‘in a natural manner’, and the termination of the proceedings on 28 February 2007 [for lack of corpus delicti in his actions] ...”. The court also noted that some witnesses had stated that I.P. had often beaten up G.P. when drunk, while other witnesses had disagreed. It also referred to the experts’ reports drawn up during the trial. On 1 March 2011 the Odessa Regional Court of Appeal upheld I.P.’s conviction and sentence. The court noted in particular that the experts’ reports of 2 and 3 July 2007 and photographs of the crime-scene examination rebutted a number of I.P.’s statements. It found the explanations put forward by the defence for the death of G.P., such as there having been an accident, or the involvement of G.P.’s son or other individuals, to be groundless. Concerning the conduct of the investigations, the Court of Appeal found investigator I.’s actions to have been inconsistent in that he had considered I.P. to be unwell during the first interview but had not sent him for a medical examination. In that connection, the court of appeal concluded that the investigator had not taken “the measures necessary to duly investigate the case, which had subsequently been closed without determining the circumstances of the incident”. As regards the opinion by expert Yu. of 12 February 2007, the court noted that it had been drawn up before the reconstruction of the crime and had later been refuted by two panels of experts. There is no indication of the date when the applicant was informed of or received the appeal ruling, or whether she appealed against it. According to her, she was denied access to the case file during the investigation and was not invited to a number of court hearings. In the meantime, the applicant repeatedly complained to the police, the prosecutors, the District Court, the Council of Judges and other State bodies about the lack of progress in the case. Some thirty-two court hearings were held in the case and another twenty hearings were adjourned for various reasons, such as the applicant’s failure to appear before the court on one occasion (which protracted the proceedings for six days), the failure to appear of the defendant or his advocate, a witness’s illness, prior official commitments of judges and prosecutors, or consideration of appeals by a higher court. In the course of the proceedings the District Court conducted twenty-four interviews and ordered three expert examinations that lasted for about two months in all. During the court proceedings, the applicant filed nine procedural requests and complaints, all meeting procedural requirements. Her three requests for the withdrawal of judges were rejected as unsubstantiated. The provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36 and 38, 4 April 2006).

dev

001-108225

ENG

LVA

CHAMBER

CASE OF ZANDBERGS v. LATVIA

Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

4. The applicant was born in 1971 and currently lives in Riga. 5. On 23 November 1993 the applicant was arrested by the police and taken into custody on suspicion of having organised and paid the murder of his former business partner; the murder actually took place several days before his arrest. According to the prosecution, the applicant had paid two accomplices to strangle the victim in his car. Then, together with two other accomplices, he had driven the car with the victim’s body to another district, faked a road accident and set the car ablaze. Interrogated as a suspect, the applicant pleaded not guilty. 6. Three days after the applicant’s arrest, on 26 November 1993, another set of criminal proceedings was initiated against the applicant on the fact of a large-scale contraband of sugar in the Riga Free Port. On the same date, the preventive measure taken with regard to the applicant in the first criminal proceedings (concerning murder) was altered; he was released upon a written undertaking not to change his place of residence. However, three days later, on 29 November 1993, the competent prosecutor ordered the applicant’s detention on remand in the contraband case. 7. On 6 December 1993 the preventive measure in the murder case was revoked by the prosecutor because of the lack of evidence against the applicant. On the same date the applicant was charged with committing an aggravated contraband. On 10 February 1994 the preventive measure in the criminal proceedings concerning the contraband was also altered into a written undertaking not to change his place of residence. In March 1994 the applicant was officially indicted on a charge of aggravated contraband and forgery. 8. In January 1994 one of two persons having allegedly strangled the applicant’s business partner was found dead. On 1 June 1994, the other, V.Ķ., was arrested and detained on remand. Later, in September of the same year, he was released upon a written undertaking not to change his place of residence. 9. On 17 July 1994, in spite of his undertaking not to leave his residence, the applicant left Latvia for the United States of America. 10. On 5 September 1994 the Supreme Court committed the applicant to trial in the contraband case. On 21 September 1994, the prosecutor charged him with aggravated murder and ordered his detention on remand. 11. On 3 October 1994 the Supreme Court, examining the contraband case as a court of first instance according to the law then in force, opened the hearing on the merits of this case. As the applicant failed to appear, the preventive measure against him was changed into a detention on remand, he was placed on the wanted list, and the proceedings against him were suspended. In January 1995 the prosecutor sanctioned a search operation in order to locate the applicant’s whereabouts. 12. In January and February 1995 some investigative measures were taken in the murder case; namely, V.Ķ. was interrogated. The prosecutor also terminated criminal proceedings against one of the applicant’s accomplices who had allegedly helped him to dispose of the victim’s body; he was subsequently charged with concealment of a crime and intentional destruction of property. 13. On 11 February 1995 the pre-trial investigation of the whole case was suspended. Two days later the Prosecutor’s Office ordered the applicant’s search via the Interpol information channels. On 28 February 1995 the competent prosecutor ordered the applicant to be detained on remand. 14. On 28 June 1995 the Criminal Police informed the prosecutor that the applicant’s whereabouts were unknown. Consequently, on 3 July 1995 the case against him was disjoined from the rest of the murder case into a separate case file. Shortly thereafter, V.Ķ. and the other presumed accomplice disappeared and were placed on the wanted list. 15. On 1 September 1997 the prosecutor charged the applicant with a complicity in murder. On 2 September, the prosecutor applied to the Latgale District Court of Riga for a detention order in respect of the applicant, given the fact that under the relevant amendments to the Code of Criminal Procedure a detention on remand could not anymore be applied by a prosecutor. On 3 September 1997 the order was granted, without specifying its temporal limit. 16. On 12 December 1997 the Prosecutor General’s Office ordered the responsible prosecutor to redefine the charges against the applicant into an aggravated murder and unauthorised possession of a gas pistol with ammunition. On 16 February 1998 the prosecutor resumed the investigation in respect of the applicant’s three presumed accomplices, who had been located in the meantime. On the same day, the proceedings against them were partly discontinued as time-barred. 17. On an unspecified date, the Latvian authorities learned of the applicant’s stay in the United States. Accordingly, on 24 February 1998 the Prosecutor General’s Office asked the U.S. Department of Justice for assistance in legal matters, namely, to locate and to extradite the applicant in accordance with the Latvian-American Extradition Treaty of 1923. On 26 September 1998 the United States authorities took the applicant into custody pending extradition proceedings. 18. On 22 October 1999 the competent U.S. Magistrate Judge granted an order allowing the applicant’s extradition to Latvia on the charge of aggravated murder. The applicant appealed requesting a stay of the extradition order. 19. On 16 December 1999 the Interpol Office of the Latvian Ministry of Interior informed the Prosecutor General’s Office that the applicant was currently held in custody in California, and that the U.S. authorities had consented to his extradition to Latvia on the charge of aggravated murder. On 17 December 1999 the acting Secretary of State of the United States signed a written document approving the applicant’s deportation order. On 20 December 1999 the U.S. Marshals Service convoyed the applicant to the Frankfurt Airport (Germany), where he was handed over to the Latvian authorities. On the same date he was brought to Riga and placed in the Central Prison. On the next day, on 21 December, the Prosecutor General’s Office was notified of this fact. 20. On the very day of the applicant’s extradition, on 20 December 1999 the Central District Court of California stayed the extradition order of 22 October 1999. 21. On 22 December 1999 the competent prosecutor decided to resume the pre-trial investigation regarding the applicant. On the same date, the detention order of the Latgale District Court of 3 September 1997 was notified to the applicant, who attested it with his signature. 22. On 27 December 1999 the applicant’s lawyer appealed against this detention order, stating that the latter had been taken in the applicant’s absence, that the judge who had taken it had no time to acquaint himself with the criminal case file, and that the detention was authorised for an indefinite period of time. By a final decision of 18 January 2000 the Riga Regional Court rejected the appeal, declaring that the applicable domestic law allowed for such order when the accused person was absconding from justice, and that in this case, precisely, the applicant was hiding. 23. On 10 February 2000 the Latgale District Court, acting upon the prosecutor’s request, extended the applicant’s detention on remand until 30 April 2000, with the following reasoning: “Taking into account the gravity of the crime committed, as well as the fact that K. Zandbergs could abscond from investigation and trial, and hinder the establishment of truth in the case...” 24. The applicant appealed, stating that the time he had spent in custody in the United States had to be counted as a part of the overall time of his pre-trial detention and that, consequently, this detention had exceeded the maximum time-limit set by the Code of Criminal Procedure. On 6 March 2000 the Riga Regional Court rejected the appeal, refusing to subscribe to the applicant’s interpretation. According to the court, the time of his detention on remand should be counted from the 20 December 1999 when he was surrendered to the jurisdiction of the Republic of Latvia. 25. On 14 February 2000 the charges against the applicant were amended. As the U.S. authorities had extradited the applicant on the condition that he would stand trial for murder, the charges regarding intentional destruction of property and illegal possession of a gas pistol were dropped. 26. By an order of the Latgale District Court of 25 April 2000, reasoned in terms identical to the one of 10 February 2000, the applicant’s detention on remand was extended until 31 July 2000. The applicant’s appeal was dismissed on 19 May 2000, repeating in substance the reasoning of the previous appeal decision. 27. On 4 May 2000 the Ziemeļu District Court of Riga dismissed the charges against the applicant in the contraband case, as there was no consent from the authorities of the extraditing State (i.e., the United States) to try him for the respective offences. 28. On 27 June 2000 the applicant’s detention on remand was extended until 31 September 2000, with an almost identical motivation as before; however, the Latgale District Court added that the applicant had no registered domicile in Latvia. On 11 July 2000, the applicant’s appeal was dismissed. On 16 August 2000 the criminal cases against the applicant, V.Ķ. and the two other presumed accomplices were joined again in a single case-file. However, shortly thereafter the case against these two latter persons was disjoined from the common case file. 29. On 18 September and 21 December 2000, the applicant’s detention on remand was extended, respectively, until 31 December 2000 and 28 February 2001. On 17 October 2000 and 9 January 2001 respectively, the Riga Regional Court rejected the applicant’s appeals. The reasoning of all these orders and decisions was the same as before. 30. On 18 December 2000 the applicant was officially charged with organising an aggravated murder. On 21 December 2000 the prosecutor notified all the accused persons that the pre-trial investigation was completed and that they would now be able to acquaint themselves with the case file. On the same date, the applicant and V.Ķ. received the file, which consisted of 20 volumes. On 19 January 2001 they both finished reading it; the applicant then requested the prosecutor to terminate the proceedings against him. On 5 February 2001, this request was rejected. 31. On 23 February 2001 the final bill of indictment was notified to the applicant. On 27 February 2001, the case file was sent to the Riga Criminal Court. 32. On 28 February 2001 the competent judge of the Riga Regional Court, without hearing the parties, took a decision to commit the applicant and the co-accused for trial and fixed a hearing for the period of time running between 30 April and 6 May 2002. The judge also decided that the applicant’s detention on remand “sh[ould] remain unchanged”. No term for that detention was specified. The applicant did not appeal against this decision. 33. On 5 and 7 March 2001 the applicant submitted two requests to the Riga Regional Court to decide on the lawfulness of his detention on remand, alleging that the consent from the United States to prosecute him had not been properly obtained. He also asked the court to order an additional pre-trial investigation and to alter the preventive measure applied to him. On 14 March 2001 the court rejected all these requests. 34. On 19 March 2001 the applicant requested a separate hearing on the question whether the time he had spent in custody in the United States had to be counted as a part of his pre-trial detention for the purpose of the current proceedings against him and therefore, whether the maximum time-limit of a detention set by the Code of Criminal Procedure had been exceeded. On 26 March 2001 the court rejected this request. 35. On 3 April 2001 the applicant asked the Regional Court to alter the preventive measure and to liberate him. On 30 April 2001, the court held a special hearing whereby both the applicant’s defence counsel and the prosecutor were heard. The court finally decided to reject the applicant’s request and to keep him in detention for basically the same reasons as before, i.e., the gravity of the crime for which he was accused, the risk of absconding and the lack of a fixed domicile. The court added that there was a risk that the applicant could commit new crimes, without developing this point. 36. The applicant appealed. On 21 May 2001 the Criminal Chamber of the Supreme Court found the appeal admissible and scheduled the hearing on this procedural issue to take place on 28 May 2001. On the latter date, it held a hearing and dismissed the applicant’s appeal, upholding the Regional Court’s decision. The Chamber noted, inter alia, that in 1994 the applicant had already breached the preventive measure applied to him and had fled to America. 37. On 31 August and 17 September 2001 respectively, the applicant applied to the Governor of the Matīsa Prison, requesting permission to make copies of two prosecutors’ replies to his complaints in order to submit them to the Court. His requests were refused by the Deputy Governor of that prison. It appears that the applicant did not appeal against the refusals. 38. On 30 April 2002 the Riga Regional Court commenced the hearings on the merits of the case. However, as the applicant’s co-accused V.Ķ. failed to appear, the hearing was postponed until 2 May 2002. The court also ordered the police to ensure V.Ķ.’s appearance. However, on 2 May 2002, the police informed the court that the latter had fled to Russia. The court then decided to put him on the wanted list and to adjourn the proceedings sine die. 39. On 3 and 20 May 2002 the applicant asked the court to alter the preventive measure applied to him. On 14 and 23 May respectively, this request was dismissed. 40. On 29 May 2002 the applicant asked the case against V.Ķ. to be disjoined from his into a separate file, in order to be able to proceed more speedily. On 26 June 2002 the court rejected this request and affirmed that the applicant would stay in pre-trial detention. 41. On 1 November 2002 a new wording of Article 77 (7) of the Code of Criminal Procedure entered into force. According to this new provision, a detention in remand should not exceed one year and six months upon committal to trial, and an extension thereto could only be granted by the Senate of the Supreme Court on an exceptional basis. Consequently, on 10 October 2002 the competent judge of the Riga Regional Court requested the Senate to grant such an extension because the applicant “[had] committed the serious offence”. On 1 November 2002 the Senate, without summoning the applicant and his defence counsel, decided to extend the applicant’s detention until 30 April 2003. The only reason mentioned by the Senate was that the applicant was accused of committing a serious and violent crime. 42. On 25 November 2002 the applicant applied to the Riga Regional Court requesting either to obtain an appropriate permission from the United States to try and sentence him for a criminal offence or discontinue the criminal proceedings. On 6 December 2002 the Riga Regional Court informed the applicant that his requests will be examined at the hearing on the merits of the case. On 23 December 2002 the applicant repeatedly requested the Riga Regional Court to take an express decision on this issue, but to no avail. On 7 January 2003 the court informed the applicant that all his requests should have been decided at the preparatory hearing, according to the relevant Article of the Code of Criminal Procedure. However, as they had been submitted after the preparatory hearing, they were not subject to any other review at this stage of proceedings. 43. On 3 March 2003 the Riga Regional Court commenced the hearing on the merits of the case. The applicant immediately tried to discharge the prosecutor, accusing him of committing a criminal offence and of forging evidence. The court rejected the applicant’s requests. On 11 March 2003, it resumed the hearing. The applicant tried to have the whole panel of three judges discharged because of their alleged impartiality in addressing the issue of the prosecutor. The court, again, dismissed the applicant’s requests. It also ordered the police to ensure the presence of some summoned witnesses who had failed to appear. On the next day, the witnesses failed to appear again. The court, again, ordered the police to bring them under constraint. 44. At the hearings of 14 and 17 March 2003 the applicant attempted again to have both the prosecutor and the judges dismissed, but in vain. The court also ordered the police to ensure the appearance of one remaining witness who had failed to appear. 45. At the same hearings, referring to Article 487 of the Code of Criminal Procedure, the applicant also requested the court either to obtain an appropriate permission from the United States to try him or to terminate the proceedings. His request was dismissed. 46. On 4 April 2003 the Riga Regional Court found the applicant guilty of organising the murder and sentenced him to nine years of imprisonment. The time he had spent in pre-trial detention or custody both in Latvia and in the United States was counted as a part of the sentence. As to V.Ķ., he was acquitted of murder, but found guilty of wilful destruction of property and sentenced to five years of imprisonment. 47. The applicant appealed the judgment. He stated, inter alia, that he had been convicted in breach of Article 487 of the Code of Criminal Procedure as the consent from the extraditing state to try and sentence him had not been obtained. On the other hand, he did not repeat his grievances in respect of the alleged partiality of the trial court in his appeal. 48. On 26 June 2003 the Criminal Chamber of the Supreme Court found the applicant’s appeal admissible. On 15 October 2003 it held its first hearing, whereby the applicant requested a series of investigative measures in order to verify several pieces of evidence. His requests were granted, and the hearing was adjourned. On 3 November and 23 December 2003 and on 21 January, 3 March and 25 May 2004 the applicant filed additional observations to supplement his appeal. Moreover, on 15 December 2003 the American lawyer who had represented the applicant in the extradition proceedings in the United States sent a letter to “the Latvian High Court Criminal Division” (sic), stating that the applicant had been deported from the United States while the extradition proceedings had been pending. 49. On 16 January 2004 the applicant filed a complaint with the Prosecutor General’s Office complaining about undue delays in the appeal proceedings. The complaint was transmitted to the Criminal Chamber of the Supreme Court. On 12 February 2004 the President of the Criminal Chamber found that the proceedings were postponed lawfully. The applicant sent an essentially identical complaint to the Ministry of Justice, which also forwarded it to the Criminal Chamber. In reply, the latter informed the applicant that a hearing in his case was fixed for 2 June 2004. 50. By a judgment of 3 June 2004 the Criminal Chamber of the Supreme Court dismissed the applicant’s appeal. It upheld the evaluation of the evidence by the first instance court in full. It also noted that the consent from the extraditing state to try him for the criminal offence had been lawfully obtained; in this respect the Chamber referred to a document signed by the US acting Secretary of State on 17 December 1999 approving the applicant’s deportation order. 51. The applicant filed a cassation appeal, reiterating his argument based on Article 487 of the Code of Criminal Procedure. On 3 September 2004 the Senate of the Supreme Court declared the cassation appeal inadmissible for lack of arguable points of law. It considered inter alia that the document signed by the acting Secretary of State of the United States on 17 December 1999 had never been quashed and therefore the consent of the extraditing state to try the applicant had been lawfully obtained. 52. In 2007, having served his sentence, the applicant was released from prison. 53. The relevant provisions of domestic law are summarised in Svipsta v. Latvia (no. 66820/01, §§ 52-66, ECHR 2006III). 54. In addition, other relevant provisions of the former Code of Criminal Procedure in force at the material time read as follows: “A person who is extradited from a foreign state shall not, without a consent of the extraditing state, be charged with committing an offence and subsequently tried or surrendered to a third state for an offence he has committed prior to the extradition and in respect of which he has not been extradited. ... (3rd paragraph added on 9 December 1999) The time period spent in detention in a foreign state shall not be counted as a part of the overall length of detention on remand, but it shall be included in the imprisonment term to be served.” “A person may only be indicted and tried for the criminal offence for which he had been extradited. These conditions do not apply to the cases where: 1) a consent from the extraditing state to indict and to try the person for other offences committed before the extradition has been received; 2) the offence was committed after the person had been surrendered to Latvia; 3) the person has not left Latvia within 45 days after his liberation, although he had had such possibility; 4) the person had left Latvia after the extradition and had returned therein. ...” 55. Article IV of the Treaty of Extradition of 16 October 1923 between Latvia and the United States, in force until 2009, read as follows: “No person shall be tried for any crime or offense other than that for which he was surrendered.”

dev

001-70449

ENG

SVN

CHAMBER

CASE OF LUKENDA v. SLOVENIA

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

John Hedigan

5. The applicant was born in 1952 and lives in Slovenia. 6. On 6 January 1994 the applicant was injured at work in a lignite mine. Since then, he has been disabled and in receipt of disability benefits. His employer had taken out accident insurance for him with an insurance company, T. (“ZT”). His disability was assessed at 13%. In the years 1994, 1995 and 1996 ZT paid partial disability benefits. 7. On 30 December 1998 the applicant instituted civil proceedings in the Celje Local Court (Okrajno sodišče v Celju) against ZT claiming a 7% increase in his disability benefits on the basis of an expert medical opinion. He also sought an exemption from court fees. On 26 August 1999 the applicant lodged pleadings and additional evidence and requested the court to assign an independent medical expert to determine the extent of his disability. He submitted additional documents and pleadings on 13 October 1999, 16 November 2000, 27 February, 9 and 17 April and 30 May 2002. On 7 November 2000 a hearing was held to consider the applicant's request for the appointment of a medical expert. Although the request was granted, the appointment was not made. On 23 November 2000 the applicant submitted documents and requested the court to issue the order appointing the medical expert. On 28 November 2000 the court appointed a medical expert to determine the extent of the applicant's disability. He submitted his report on 26 April 2001. On 25 May 2001 the applicant filed pleadings and increased his claim by 2.5%. On 10 July 2001 the applicant filed pleadings and requested that an additional opinion be sought from the appointed expert. On 16 October 2001 a hearing was held and the court decided that additional clarifications were required from the expert. On 23 November 2001 the court reappointed the same expert with instructions to submit an additional opinion. On 11 February 2002 the expert submitted an additional opinion, which was served on the parties. On 9 April and 30 May 2002 the applicant made requests for a hearing. On 25 September 2002 the court held a hearing and decided to deliver a written judgment. On 30 December 2002 the applicant's lawyers received the judgment, which upheld the applicant's claim in part. 8. On 31 December 2002 the applicant appealed. ZT cross-appealed. On 19 February 2004 the Celje Higher Court (Višje sodišče v Celju) allowed the applicant's appeal in part. It increased the level of his disability benefits and awarded the applicant costs and expenses. The decision became final the same day. On 8 April 2004 the judgment was served on the applicant's lawyers. 9. The relevant provisions of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) read as follows: “Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. ...” “Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a State or local authority or as a holder of public office. ...” “A court with jurisdiction to review administrative decisions shall [have jurisdiction to] determine the legality of final individual decisions by State or local authorities or holders of public office concerning the rights or obligations or legal entitlement of individuals and organisations, if no other legal protection is specifically provided. If no other legal protection is provided, the court with jurisdiction to review administrative decisions shall also [have jurisdiction to] determine the legality of individual acts and decisions which encroach upon the constitutional rights of the individual.” “The Constitutional Court shall hear: ... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom; ... Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.” 10. The relevant provisions of the Constitutional Court Act (Zakon o Ustavnem sodišču) read as follows: “The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms ... Decisions of the Constitutional Court are legally binding.” “Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a State body, local body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...” “A constitutional appeal may be lodged only after all legal remedies have been exhausted. Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act.” 11. In a decision of 7 November 1996 (no. Up 277/96), the Constitutional Court (Ustavno sodišče) ruled that constitutional appeals under Article 160 of the Slovenian Constitution were admissible in length of proceedings cases where the proceedings were still pending. However, it further stated that, in order to ensure the right to due process of law in the Slovenian legal system, the only proper judicial protection available was through an action in the administrative courts. A constitutional appeal was, as a rule, admissible only after recourse to that legal remedy. 12. In a decision of 7 December 2000 (no. Up 73/97), the Constitutional Court ruled that, once the court proceedings had been concluded, an individual could no longer bring an action in the administrative courts complaining about the length of proceedings. Therefore, since there was no longer any violation to be remedied, it was no longer possible to lodge a constitutional appeal. 13. In a decision of 17 December 2003 (no. Up 85/03-12), the Constitutional Court held that where, because the substantive proceedings had ended, an action to complain of the length of proceedings could no longer be brought in the administrative courts, it was still open to the alleged victim to seek compensation in civil proceedings. 14. The Administrative Disputes Act 1997 (Zakon o upravnem sporu) provides for the protection of the constitutional right to a trial within a reasonable time through administrative proceedings in the administrative court and, on appeal, in the Supreme Court (Vrhovno sodišče). Under section 2(1) and (2) the court has a broad discretion to adapt its decision to the nature of the violated constitutional right, to order adequate redress, and to decide the applicant's claim for damages. Under section 62 it is possible to seek a declaration that there has been a violation of a right guaranteed by Article 23 of the Constitution and compensation for any loss. In addition, under section 69, a temporary injunction may be sought to prevent serious harm or to guard against an imminent threat of violence. 15. In case no. U 836/98, the Administrative Court (Upravno sodišče) found on 7 March 2000 that the right to a trial within a reasonable time had been violated in a case which had been pending before the Labour and Social Court for twenty-three months. However, on 18 December 2002 the Supreme Court quashed the judgment on appeal, as the proceedings had terminated by the time of the appeal. On 17 December 2003 the Constitutional Court dismissed the constitutional appeal (no. Up 85/03-12) because the proceedings in question had ended and the alleged victim could seek compensation in civil proceedings. 16. Similarly, in case no. U 148/2002-19, the Administrative Court rejected on 21 January 2003 a complaint concerning the length of the proceedings because the proceedings in question had ended shortly after the complaint had been lodged. On 28 May 2003 the Supreme Court upheld the judgment on appeal. 17. In case no. U 148/2002-19, the Administrative Court dismissed on 21 January 2003 a claim alleging a violation of the right to a trial within a reasonable time that had been lodged on 18 July 2002. This decision was upheld on appeal on 28 May 2003. The proceedings before two levels of jurisdiction had lasted ten months and ten days. 18. In case no. U 459/2003-23, the Administrative Court held on 7 December 2004, in proceedings that had started on 8 December 2003, that there had been a violation of the right to due process. The proceedings had lasted less than a year before one level of jurisdiction. 19. If a court is responsible for undue delay in the proceedings and an individual has sustained damage as a result, he or she may claim compensation from the State under the Code of Obligations 2001 (Obligacijski zakonik). The person seeking compensation will thus have to prove, firstly, that there has been a delay in the proceedings, secondly, that damage has occurred, and, thirdly, that there is a causal link between the conduct of the court and the damage sustained. However, the Code does not provide specifically for compensation for non-pecuniary damage in such cases. 20. In a judgment of 22 January 2001 of the Ljubljana District Court (Okrožno sodišče v Ljubljani), the damages awarded amounted to nearly 6,700 euros (EUR), but were reduced on appeal on 16 December 2002 by the Ljubljana Higher Court to less than EUR 850. 21. In a judgment of 18 April 2001 of the Ljubljana District Court, which was upheld on appeal on 12 February 2003 by the Ljubljana Higher Court, a sum of approximately EUR 3,350 was awarded. 22. Section 3(4) of the Judicature Act (Zakon o sodiščih) provides that judges shall determine rights and obligations and criminal charges independently and impartially and without undue delay. 23. Section 38 of the Act provides that, when determining the number of judges to be appointed to a specific court, the Judicial Council (sodni svet) shall have regard to the criteria laid down by the Minister of Justice, the average number of cases dealt with by the court in the preceding three years, any anticipated changes that may affect that number, and the average number of new actions brought in the court in the preceding three years. Under the Act, the Minister of Justice is empowered to vary the criteria in the light of the complexity of the cases and changes in the manner in which they are being processed. 24. Section 72 provides that in the event of a delay in the proceedings any party may lodge a request for supervision (nadzorstvena pritožba) with the president of the court. The president of the court may request the presiding judge to report on progress in the proceedings, and is required to indicate in writing to the presiding judge any irregularities he finds. He may put the case on the priority list or set deadlines for procedural measures. If the delay has been caused by a heavy caseload, he may order the case concerned or other cases to be transferred to another judge. He may also propose measures under the provisions of the Judicial Service Act. 25. If the request for supervision is lodged with the Ministry of Justice or the president of a higher court, they will refer it to the president of the relevant court and may request a report on the measures undertaken to expedite the proceedings. 26. The Minister of Justice or the Judicial Council may request the president of the court to submit a report on all requests for supervision lodged within a certain period and the measures undertaken to resolve the issues. 27. In accordance with section 73, the president of a higher court may, of his own motion or at the request of the Minister of Justice, a disciplinary prosecutor or a disciplinary court, request an examination of the functioning of the court and submit the findings to the Ministry. 28. As part of a package of measures to guarantee the effectiveness of the Convention machinery, the Committee of Ministers of the Council of Europe adopted a resolution on 12 May 2004 (Res(2004)3) on judgments revealing an underlying systemic problem. After emphasising the interest in helping the State concerned to identify the underlying problems and the necessary execution measures (paragraph 7 of the preamble), it invited the Court “to identify in its judgments finding a violation of the Convention what it considers to be an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments” (paragraph I of the resolution). This resolution has to be seen in the context of the growth in the Court's caseload, particularly as a result of series of cases deriving from the same structural or systemic cause.

dev

001-60643

ENG

GBR

CHAMBER

CASE OF CUSCANI v. THE UNITED KINGDOM

Violation of Article 6+6-3-e - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-e - Free assistance of interpreter);Pecuniary damage - claim dismissed

Matti Pellonpää;Nicolas Bratza

8. The applicant formerly managed “The Godfather Restaurant” in Newcastle upon Tyne, which was operated by a company of which the applicant was a director. Following an inquiry by the Inland Revenue and Customs and Excise in 1988 into the restaurant and the applicant, the company went into liquidation and ownership of the lease of the restaurant was transferred to a new company controlled by the applicant. However, the restaurant was run by a succession of management companies under short-term management contracts. The various companies were all registered for Value Added Tax (“VAT”) purposes but failed to make any VAT payments or returns to the Customs and Excise authorities. In addition, wages were paid to employees in cash and were not declared to the Inland Revenue. The resulting loss of VAT was assessed at approximately 460,000 pounds sterling (“GBP”) and the accumulated losses in respect of Income Tax and National Insurance contributions were assessed at GBP 360,000. In September 1994 the applicant was declared bankrupt as a result of civil proceedings brought by the Inland Revenue to recover unpaid tax. 9. On 25 November 1994 the applicant was arrested and on 26 November 1994 charged with various offences of fraudulently evading VAT. He was remanded in custody. His applications for bail on 12 April 1995, 13 June 1995 and 7 December 1995 were refused. 10. The applicant was granted legal aid on 1 March 1995. The legal aid order covered both the committal hearings and the actual trial. The applicant was represented throughout the proceedings by a Queen's Counsel (“QC”), who was also a Recorder, a very experienced junior counsel and two different firms of solicitors. 11. On 3 March 1995 the Newcastle upon Tyne Magistrates' Court committed the applicant for trial before the Crown Court at Newcastle. 12. Preliminary hearings were held on 10 April 1995 and 2 June 1995. At the hearing of 16 June 1995 the applicant was indicted with two others on two counts of being knowingly concerned in the fraudulent evasion of VAT (between 22 May 1989 and 25 July 1994) and of taking steps with a view to the fraudulent evasion of VAT (between 25 July 1994 and 24 November 1994). The applicant pleaded not guilty. 13. At none of these hearings did either the applicant or his legal team request the provision of an interpreter, nor suggest to the court that the applicant required the services of an interpreter. 14. At the trial on 4 January 1996, the applicant, on the advice of counsel, changed his plea to guilty. He was also indicted on another count of cheating the public revenue and pleaded guilty to that charge too. The court was informed that the applicant disagreed on the quantum of the sums which formed the basis of the plea with the consequence that further discussion was needed on this matter with the prosecution. Defence counsel informed the court for the first time that the applicant had: “considerable difficulty in communicating, save in very simple concepts, in English. Now for the purpose of consultation we can get by, but one of the difficulties is that his English is very poor and his Italian is very Southern”. 15. Counsel invited the court to direct that an interpreter be present at the subsequent hearing, given that at either a hearing or indeed a plea: “... certain complicated matters might well have to be put before the court, and which he should understand as they are being put”. 16. The court granted this request and adjourned for reports to be written and for the parties to reach agreement on the issue of quantum, after convicting the applicant of all charges. 17. At the following hearing concerning sentence held on 26 January 1996, the court noted that no professional interpreter was present despite its earlier direction. The applicant's counsel stated that: “... it appears that no arrangements have been made, in which case I think that we shall have to make do and mend. It may require an occasional adjournment if something needs to be explained. It has been discussed extensively and obviously already with the [applicant] and, although he may not follow the detail of the proceedings, he certainly knows the outline of what the prosecution will say. I imagine that their case will very much follow the summary, and he knows the burden of what I intend to say.” 18. The trial judge asked whether anyone in court who knew the applicant was fluent in both English and Italian and could provide interpretation for the applicant. The applicant's counsel, without consulting his client, pointed out that the applicant's brother was present, and the court agreed to make use of him, if need be. The applicant's brother was never requested to translate any statement during the course of the hearing. 19. The applicant was sentenced to a total of four years' imprisonment and disqualified from being a company director for ten years. 20. On 14 May 1996 the applicant applied to the Court of Appeal Criminal Division seeking leave to appeal against sentence. In his application, the applicant was represented by the same legal team that had defended him at trial. In a letter to the Court of Appeal, the applicant stated that he had been sentenced on the basis, which was incorrect, that he had pleaded guilty to frauds totalling GBP 800,000 and that the real amount of the fraud was GBP 140,000. The applicant did not maintain in his application that he had been unable to understand the proceedings at the trial or to communicate effectively in court; nor did he allege in his application that he should have been provided with the services of an interpreter. 21. Leave to appeal was refused by the Single Judge on 3 May 1996 and by the full Court of Appeal on 15 July 1996. 22. On 2 September 1996 the applicant sought advice from the President of the Law Society on what action to take against his defence lawyers but did not receive any reply. 23. On 3 September 1996 the applicant wrote to the Home Secretary, admitting that he had not declared GBP 2,000 per week for staff wages due to the recession, and claiming that the real amount of the fraud was GBP 140,000 and not GBP 800,000. He further complained that his counsel had failed to secure him the services of an interpreter at the trial on 26 January 1996 and that this was of “paramount importance” for the purposes of the plea in mitigation. The applicant further observed that his QC had misled the trial court by stating that his brother would be able to act as a translator, when his brother was unable either to speak or write in English. 24. The Home Secretary forwarded the applicant's case to the Criminal Case Review Commission (“the Commission”). The applicant himself applied to the Commission, claiming inter alia that his lawyers should not have allowed him to plead guilty to the GBP 800,000 fraud, as he had only intended to accept guilt in respect of GBP 140,000. Furthermore, his lawyers had failed to ensure the presence of an interpreter both at conferences in preparation for the trial and in court. He maintained that his brother did not speak English well enough and that he had not understood the charges or the legal process. He complained about his counsel, who, he claimed, did not understand Italian but nevertheless did not insist on an interpreter being present at conferences; renounced the presence of a professional interpreter in court; did not understand the case; told him to plead guilty only at the trial, without explaining the consequences to him in detail and gave the court the wrong information that the applicant had accepted liability in respect of the total amount. 25. The Commission noted that it had interviewed the applicant via an Italian interpreter and that it was apparent from telephone conversations between the applicant and the Commission that he did not have a very good command of English. The Commission observed that the applicant's solicitor and counsel at trial did not accept that he lacked understanding either of the language or of the nature of the case against him. However, the Commission went on to note, inter alia, that a) in the course of the proceedings the applicant's solicitor had stated in counsel's brief that the applicant “has a grasp of English but is not very easily understood. At times, he says he wants an interpreter”; b) the trial judge had seen fit to order the presence of an interpreter; c) on appeal, the applicant's junior counsel had informed the court that the applicant did not have much of a command of English; d) the applicant's counsel told the Commission that he would have wanted an interpreter present had there been a trial on the basis of a not guilty plea. 26. The Commission accepted that the applicant would have been able to understand the generality of the prosecution case but expressed the view that an interpreter ought to have been present when the prosecution case was explained to the applicant by his own representatives, given the complex nature of the evidence. Furthermore, he should have had the benefit of an interpreter when it came to considering the matter of changing his plea to guilty. 27. The Commission also accepted that the applicant's brother was not an adequate interpreter, but considered that the lack of an interpreter at the trial was “of much less significance than it was at the earlier stage”. Further, the Commission found that too little time had been spent by the applicant's lawyers explaining the case to him. 28. The Commission concluded that there were grounds for finding that the plea was uninformed in that the applicant had not fully understood the nature of the case to which he was pleading, partly because of his inadequate understanding of the language, and because of the inadequate explanation of the case given to him by his legal representatives. 29. However, the Commission noted that the Court of Appeal no longer had the power to allow an appeal against conviction if it did not think the conviction was unsafe but was dissatisfied in some way with the trial process, since there was no longer room for the separate notion of an “unsatisfactory” conviction. In the view of the Commission, whilst the applicant's conviction was arguably unsatisfactory, it could not be said to be unsafe. Since the Commission did not consider that there was a real possibility that, if referred to the Court of Appeal, the conviction and sentence would not be upheld, it decided not to make such reference. 30. In the meantime, the applicant was released from prison on licence on 25 November 1996. 31. The leading domestic authorities on the provision of a interpreter are the cases of Lee Kun ([1916] 11 CrAppR 293) and Kunnath v the State ([1993] 1 WLR 1315). 32. In Lee Kun Lord Reading CJ, speaking on behalf of the Court of Appeal, set out the following statement of principle (pp. 301-302): “We have come to the conclusion that the safer, and therefore the wiser, course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him, except when he or counsel on his behalf expresses a wish to dispense with the translation, and the judge thinks fit to permit the omission; the judge should not permit it unless he is of the opinion that by reason of what has passed before the trial, the accused substantially understands the evidence to be given and the case to be made against him at the trial. To follow this practice may be inconvenient in some cases, and may cause some further expenditure of time; but such a procedure is more in consonance with that scrupulous care of the accused's interest which has distinguished the administration of justice in our criminal courts, and therefore it is better to adopt it.” 33. Lord Reading's judgment in Lee Kun was reinforced in the more recent case of Kunnath v the State in 1993. Speaking on behalf of the Privy Counsel, Lord Jauncey stated: “Their Lordships have no doubt that the course advocated by Lord Reading CJ in Rex v Lee Cunn is a highly desirable one and should be followed wherever a foreign defendant, not fully conversant with the language of the proceedings, is represented by counsel.”

dev

001-60876

ENG

AUT

CHAMBER

CASE OF L. AND V. v. AUSTRIA

Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Christos Rozakis

9. The applicants were born in 1967 and 1968 respectively and live in Vienna. 10. On 8 February 1996 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) convicted the first applicant under Article 209 of the Criminal Code (Strafgesetzbuch) of homosexual acts with adolescents and sentenced him to one year's imprisonment suspended on probation for a period of three years. Relying mainly on the first applicant's diary, in which he had made entries about his sexual encounters, the court found it established that between 1989 and 1994 the first applicant had had, in Austria and in a number of other countries, homosexual relations either by way of oral sex or masturbation with numerous persons between 14 and 18 years of age, whose identity could not be established. 11. On 5 November 1996 the Supreme Court (Oberster Gerichtshof), upon the first applicant's plea of nullity, quashed the judgment regarding the offences committed abroad. 12. On 29 January 1997 the Vienna Regional Criminal Court resumed the proceedings, which had been discontinued as far as the offences committed abroad were concerned, and found the first applicant guilty under Article 209 of the Criminal Code of the offences committed in Austria, sentencing him to eleven months' imprisonment suspended on probation for a period of three years. 13. On 27 May 1997 the Supreme Court dismissed the first applicant's plea of nullity in which he had complained that the application of Article 209 of the Criminal Code violated his right to respect for his private life and his right to non-discrimination and had suggested that the Supreme Court request the Constitutional Court to review the constitutionality of that provision. 14. On 31 July 1997 the Vienna Court of Appeal (Oberlandesgericht), upon the first applicant's appeal, reduced the sentence to eight months' imprisonment suspended on probation for a period of three years. 15. On 21 February 1997 the Vienna Regional Criminal Court convicted the second applicant under Article 209 of the Criminal Code of homosexual acts with adolescents, and on one minor count of misappropriation. It sentenced him to six months' imprisonment suspended on probation for a period of three years. The Court found it established that on one occasion the second applicant had had oral sex with a 15-year-old. 16. On 22 May 1997 the Vienna Court of Appeal dismissed the second applicant's appeal on points of law, in which he had complained that Article 209 of the Criminal Code was discriminatory and violated his right to respect for his private life and had suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. It also dismissed his appeal against sentence. The decision was served on 3 July 1997. 17. Any sexual acts with persons under 14 years of age are punishable under Articles 206 and 207 of the Criminal Code. 18. Article 209 of the Criminal Code, in the version in force at the material time, read as follows: “A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.” 19. This provision was aimed at consensual homosexual acts, as any sexual act of adults with persons up to 19 years of age are punishable under Article 212 of the Criminal Code if the adult abuses a position of authority (parent, employer, teacher, doctor, etc.). Any sexual acts involving the use of force or threats are punishable as rape, pursuant to Article 201, or sexual coercion pursuant to Article 202 of the Criminal Code. Consensual heterosexual or lesbian acts between adults and persons over 14 years of age are not punishable. 20. Offences under Article 209 were regularly prosecuted, an average of sixty criminal proceedings being opened per year, out of which a third resulted in a conviction. As regards the penalties applied, a term of imprisonment usually exceeding three months was imposed in 65 to 75% of the cases, of which 15 to 25% were not suspended on probation. According to information given by the Federal Minister of Justice in reply to a parliamentary question, in the year 2001 three persons were serving a term of imprisonment based only or mainly on a conviction under Article 209 of the Criminal Code and four others were held in detention on remand in proceedings relating exclusively to charges under Article 209. 21. On 10 July 2002, following the Constitutional Court's judgment of 21 June 2002 (see below), Parliament decided to repeal Article 209. It also introduced Article 207b, which penalises sexual acts with a person under 16 years of age if that person is for certain reasons not mature enough to understand the meaning of the act and the offender takes advantage of this immaturity or if the person under 16 is in a predicament and the offender takes advantage of that situation. Article 207b also penalises inducing persons under 18 years of age to engage in sexual activities in return for payment. Article 207b applies irrespective of whether the sexual acts at issue are heterosexual, homosexual or lesbian. The above amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002. 22. According to the transitional provisions, the amendment does not apply to criminal proceedings in which the judgment at first instance has already been given. It does exceptionally apply, subject to the principle of the application of the more favourable law, where a judgment is set aside, inter alia, following the reopening of the proceedings or in the context of a renewal of the proceedings following the finding of a violation of the Convention by the European Court of Human Rights. Apart from these situations, convictions under Article 209 remain unaffected by the amendment. 23. In a judgment of 3 October 1989, the Constitutional Court found that Article 209 of the Criminal Code was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein. That judgment was given upon the complaint of a person who subsequently brought his case before the Commission (see Zukrigl v. Austria, no. 17279/90, Commission decision of 13 May 1992, unreported). 24. The relevant passage of the Constitutional Court's judgment reads as follows: “The development of the criminal law in the last few decades has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders, which have become known under the general heading of 'decriminalisation'. This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied. The criminal provision which has been challenged relates to the group of acts declared unlawful in order to protect – in so far as strictly necessary – a young, maturing person from developing sexually in the wrong way. ('Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ...' Pallin, in Foregger/Nowakowski (publishers), Wiener Kommentar zum Strafgesetzbuch, 1980, paragraph 1 on Article 209 ...) Seen in this light, it is the conviction of the Constitutional Court that from the point of view of the principle of equality contained in Article 7 § 1 of the Federal Constitution and Article 2 of the Basic Law those legislating in the criminal sphere cannot reasonably be challenged for taking the view, by reference to authoritative expert opinions coupled with experience gained, that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age, and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males, as provided for under Article 209 of the Criminal Code. This conclusion was also based on their views of morality, which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences (while carefully weighing up all the manifold advantages and disadvantages). Taking everything into account, we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of Article 7 § 1 of the Federal Constitution read in conjunction with Article 2 of the Basic Law.” 25. On 29 November 2001 the Constitutional Court dismissed the Innsbruck Regional Court's request to review the constitutionality of Article 209 of the Criminal Code. 26. The Regional Court had argued, inter alia, that Article 209 violated Articles 8 and 14 of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which the Constitutional Court had relied in its previous judgment had since been refuted. The Constitutional Court found that the issue was res judicata. It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew, if there was a change in the relevant circumstances or different legal argument. However, the Regional Court had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age-limit for consensual homosexual relations than for consensual heterosexual or lesbian relations. 27. On 21 June 2002, upon a further request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional. 28. The Regional Court had argued, firstly, as it had done previously, that Article 209 of the Criminal Code violated Articles 8 and 14 of the Convention and, secondly, that it was incompatible with the principle of equality under constitutional law and with Article 8 of the Convention, as a relationship between male adolescents aged between 14 and 19 was first legal, but became punishable as soon as one reached the age of 19 and became legal again when the second one reached the age of 18. The Constitutional Court held that the second argument differed from the arguments which it had examined in its judgment of 3 October 1989 and that it was therefore not prevented from considering it. It noted that Article 209 concerned only consensual homosexual relations between men aged over 19 and adolescents between 14 and 18. In the 14 to 19 age bracket homosexual acts between persons of the same age (for instance two 16-year-olds) or of persons with a one- to five-year age difference were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209 of the Criminal Code. They became legal again when the younger partner reached the age of 18. Given that Article 209 did not only apply to occasional relations but also covered ongoing relationships, it led to rather absurd results, namely a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again and could therefore not be considered to be objectively justified. 29. In the spring of 1995 the Social Democratic Party, the Green Party and the Liberal Party brought motions in Parliament to repeal Article 209 of the Criminal Code. They argued in particular that in the 1970s the legislator had justified this provision on the theory that male adolescents were at a risk of being recruited into homosexuality while female adolescents were not. However, modern science had shown that sexual orientation was already established at the beginning of puberty. Moreover, different ages of consent were not in line with European standards. In this connection they referred in particular to Recommendation 924 (1981) of the Parliamentary Assembly of the Council of Europe which had advocated equal ages of consent for heterosexual and homosexual relations. Protection of juveniles against sexual violence and abuse was sufficiently afforded by other provisions of the Criminal Code, irrespective of their sexual orientation. 30. Subsequently, on 10 October 1995, a sub-committee of the Legal Affairs Committee of Parliament heard evidence from eleven experts in various fields such as medicine, sexual science, Aids prevention, developmental psychology, psychotherapy, psychiatry, theology, law and human rights law. Nine were clearly in favour of repealing Article 209, an important argument for the experts in the fields of medicine, psychology and psychiatry being that sexual orientation was, in the majority of cases, established before the age of puberty, which disproved the theory that male adolescents were recruited into homosexuality by homosexual experiences. Another recurring argument was that penalising homosexual relations made Aids prevention more difficult. Two experts were in favour of keeping Article 209: one simply stated that he considered it necessary for the protection of male adolescents; the other considered that despite the fact that there was no such thing as being recruited into homosexuality, not all male adolescents were already sure of their sexual orientation and it was therefore better to give them more time to establish their identity. 31. On 27 November 1996 Parliament held a debate on the motion to repeal Article 209 of the Criminal Code. Those speakers who were in favour of repealing Article 209 relied on the arguments of the majority of the experts heard in the sub-committee. Of those speakers who were in favour of keeping Article 209, some simply expressed their approval while others emphasised that they still considered the provision necessary for those male adolescents who were not sure of their sexual orientation. There was an equal vote at the close of the debate (ninety-one to ninety-one). Consequently, Article 209 remained on the statute book. 32. On 17 July 1998 the Green Party again brought a motion before Parliament to repeal Article 209 of the Criminal Code. The ensuing debate followed much the same lines as before. The motion was rejected by eighty-one votes to twelve. 33. On 10 July 2002 Parliament decided to repeal Article 209 of the Criminal Code (see paragraph 21 above).

dev

001-76143

ENG

HRV

CHAMBER

CASE OF POCUCA v. CROATIA

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

Christos Rozakis

4. The applicant was born in 1935 and lives in Split. He is a pensioner. 5. The applicant submitted that his pension had been regularly adjusted in line with the increase in wages according to section 30 of the 1991 Pension Insurance Act (Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja, Official Gazette no. 53/1991 of 8 October 1991). 6. On 19 February 1997 the Act on Adjustment of Pensions and Other Benefits from Pension and Invalidity Insurance Funds and on Management of the Pension and Invalidity Insurance Funds (Zakon o usklađivanju mirovina i drugih novčanih primanja iz mirovinskog i invalidskog osiguranja, te upravljanju fondovima mirovinskog i invalidskog osiguranja, Official Gazette no. 20/1997 of 19 February 1997 – “the Pension Adjustment Act”) entered into force, derogating, inter alia, section 30 of the 1991 Pension Insurance Act. Section 3 of the new law provided that the pensions were to be adjusted in line with the increase in living expenses. 7. On 12 May 1998 the Constitutional Court quashed certain provisions, including section 3, of the aforementioned 1997 legislation as unconstitutional. The Government submitted that, as a result thereof, 427,809 applications had been filed with the Croatian Pension Fund’s regional offices by those seeking adjustment of their pensions in accordance with the Constitutional Court’s decision, that is, in line with the increase in wages. 8. On 23 June 1998 the applicant applied to the Croatian Pension Fund, Split Office seeking adjustment of his pension for the period between August 1993 and June 1998. 9. Since the Split Office did not render a decision within the statutory time-limit of two months, on 25 August 1998 the applicant lodged an appeal for failure to respond (see paragraph 25 below) with the Croatian Pension Fund, Central Office as if his request had been denied. 10. Given that the Central Office also failed to decide on this appeal within the statutory time-limit of two months, on 5 November 1998 the applicant brought an action for failure to respond (see paragraph 26 below) with the Administrative Court (Upravni sud Republike Hrvatske) under the Administrative Disputes Act. 11. On 8 December 2000 the Pensions Increase Act (Zakon o povećanju mirovina radi otklanjanja razlika u razini mirovina ostvarenih u različitim razdobljima, Official Gazette no. 127/2000 of 20 December 2000) entered into force. Stating as its aim the implementation of the Constitutional Court’s decision, the Act increased the pensions of those retired before 31 December 1998. On 19 December 2001 the Constitutional Court refused to institute proceedings for abstract constitutional review of the Act. 12. On 28 December 2001 the Administrative Court adopted a judgment ordering the Central Office to decide on the applicant’s appeal within 60 days. It also instructed the Central Office to adjust the applicant’s pension for the period between January 1997 and June 1998 in line with the increase in wages, pursuant to the section 30 of the 1991 Pension Insurance Act, but also taking into consideration the increase already provided by the Pensions Increase Act. 13. On 5 March 2002 the applicant lodged a constitutional complaint challenging the Administrative Court’s judgment and complaining about the length of the proceedings. He argued that the court had instructed the Central Office wrongfully. He also alleged that the Croatian Pension Fund and the Administrative Court had failed to decide on his case within a reasonable time. 14. On 4 July 2002 the Constitutional Court declared the applicant’s complaint inadmissible. In respect of the Administrative Court’s judgment, it found the complaint premature since the administrative proceedings were still pending. In respect of the length of the proceedings, it held that the applicant had lodged the constitutional complaint when the case had already been decided; however that remedy could only be used while the proceedings before the Administrative Court were still pending. 15. Meanwhile, following the judgment of the Administrative Court of 28 December 2001, on 2 April 2002 the Central Office ordered the Split Office to issue a decision in the applicant’s case. 16. On 23 July 2002 the Split Office dismissed the applicant’s request. It held that it was not possible to adjust the applicant’s pension for the period and in the manner indicated by the Administrative Court since no subordinate legislation had been adopted enabling the Fund to calculate the exact amount of the applicant’s pension for that period in line with increase of wages. In any event, the applicant’s pension had been increased by the Pensions Increase Act, which had fully implemented the Constitutional Court’s decision of 12 May 1998. The applicant appealed. 17. On 21 October 2002 the Central Office dismissed the appeal. 18. On 29 November 2002 the applicant brought an action with the Administrative Court challenging the decision of the Central Office. 19. On 5 August 2004 the Act on the Implementation of the Constitutional Court’s Decision of 12 May 1998 (Zakon o provođenju odluke Ustavnog suda od 12. svibnja 1998., Official Gazette no. 105/2004 of 28 July 2004 – “the Implementation Act”) entered into force. Section 2 provides that retired persons whose pensions were reduced in the period between 1 September 1993 and 31 December 1998 (“the pensioners”) have a right to compensation calculated as a difference between the pension to which they had been entitled and the pension actually received during that period, taking into account the increases provided by the Pensions Increase Act. The compensation was to be obtained through a special fund that was to be established by subsequent legislation. 20. On 29 July 2005 the Pensioners Fund Act (Zakon o umirovljeničkom fondu, Official Gazette no. 93/2005 of 29 July 2005) entered into force. The Act provides that each pensioner has a right to a share in the Fund depending on the amount of compensation he or she is entitled to. In particular, section 41(1) provides that pensioners, who had already been compensated on the basis of a final and enforceable court decision, are not entitled to compensation from the Pensioners Fund. Section 41(2) provides that pensioners involved in pending administrative proceedings, instituted with a view to obtaining compensation (adjustment of their pensions), shall obtain that compensation pursuant to the Pensioners Fund Act. 21. On 29 December 2005 the Administrative Court gave judgment dismissing the applicant’s claim. It found that the applicant actually retired under a special statute regulating the pensions of military personnel and that therefore the Constitutional Court’s decision of 12 May 1998 had not mandated the increase of his pension. This had been confirmed by the subsequent legislation (see paragraphs 11, 19 and 20 above) implementing that decision. In any event, the legal gap that had followed the decision of the Constitutional Court had been overcome by that legislation. Therefore, the applicant’s claim for the adjustment of his pension would have already been satisfied by increases provided therein. The judgment was served on the applicant on 26 January 2006. 22. On 17 February 2006 the applicant lodged a constitutional complaint with the Constitutional Court against that judgment. The proceedings are currently pending before that court. 23. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 24. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” 25. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991 of 8 October 1991) provide as follows: Section 218(1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority shall give a decision and serve it on a party within one month following the submission of an application. In all other, more complex cases, the authority shall give a decision and serve it on a party within two months. Section 218(2) provides that a party whose application has not been decided and served within the time-limits set out in paragraph (1) may lodge an appeal (appeal for failure to respond, žalba zbog šutnje administracije) as if his or her application had been dismissed. Section 247(1) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within two months following the submission of the appeal. Section 246(1) provides that the second-instance administrative authority deciding on the appeal for failure to respond shall request the first-instance authority to give reasons for its omission. If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified, the second-instance authority shall order the first-instance authority to give a decision within one month. If it finds that the omission was not justified, it shall request the case-file. Section 246(2) provides that if the case-file contains sufficient information, the second-instance administrative authority shall decide the case. Otherwise, it shall first hear the case and take evidence, and then give a decision. Exceptionally, if it considers that such a procedure would save time and costs, it shall order the first-instance authority to hear the case and take evidence within a specified time-limit, whereupon it shall decide the case itself. Such a decision shall be final. 26. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows: Section 26(1) provides that if the appellate authority fails to give a decision on a party’s appeal against the first-instance decision within sixty days, and fails to do so upon a repeated request within a further period of seven days, the party may bring an action in the Administrative Court (action for failure to respond, tužba zbog šutnje administracije), as if his or her appeal had been dismissed. Section 26(2) provides that when the first-instance administrative authority fails to give a decision against which no appeal lies, the party may directly bring an action in the Administrative Court. Section 26(3) provides that, in matters where the right of appeal exists, if a first-instance administrative authority fails to give a decision on a party’s application within sixty days, the party may submit his or her application to the appellate administrative authority. Against the latter authority’s decision the party may bring an action in the Administrative Court, and if the authority fails to give a decision, the party may bring an administrative action under the conditions set out in paragraph 1. Section 42(5) provides that when the Administrative Court, following the action for failure to respond, finds for the plaintiff, it shall either instruct the respondent administrative authority how to decide the case on points of law, or shall itself rule on the application (acting as a court of full jurisdiction under paragraph 2 of section 64). Section 64(1) provides that, in the execution of the judgment rendered under section 42(5), the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so. If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court. Section 64(2) provides that if such an application is made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision entirely substituting for the decision of the administrative authority. 27. In case no. U-IIIA/635/2004 of 25 November 2004, the Constitutional Court was seized under Section 63 of the Constitutional Court Act to examine the length of administrative proceedings instituted in July 1996 when the complainant had brought an action in the Administrative Court for the Ministry of Defence’s failure to give a decision in his case. In October 1998 the Administrative Court ordered the Ministry to give a decision within 30 days. The Ministry gave a negative decision in July 1999. The complainant then brought a second administrative action, challenging that decision. In September 2000 the Administrative Court quashed the impugned decision and remitted the case. The Ministry again gave a negative decision and served it on the complainant in January 2004. On 18 February 2004 the complainant had brought a third administrative action, which was dismissed by the Administrative Court in June 2004. Meanwhile, on 25 February 2004 he lodged his constitutional complaint arguing that the Constitutional Court should, like the European Court of Human Rights, take into consideration the overall length of administrative proceedings when examining whether or not they exceeded a reasonable time. Following its previous practice (decisions no. U-III-2467/2001 of 27 February 2002, and U-IIIA/3638/2003 of 18 February 2004), the Constitutional Court held that only the inactivity of the judicial authorities was relevant for a breach of Article 29 § 1 of the Constitution. In its view it was not possible for proceedings before the administrative authorities to last unreasonably long because the statutes regulating those proceedings contained the presumption that the application had been dismissed if the administrative authorities failed to give a decision within the statutory time-limits (see paragraphs 25 and 26 above). The Constitutional Court therefore examined only the length of the proceedings in their part between the introduction of the complainant’s third action in the Administrative Court and the lodging of the constitutional complaint. It dismissed the constitutional complaint finding that the proceedings had lasted only seven days.

dev

001-102888

ENG

POL

COMMITTEE

CASE OF GUT v. POLAND

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

Ján Šikuta;Lech Garlicki;Vincent A. De Gaetano

4. The applicant was born in 1958 and lives in Biskupiec. 5. On 19 June 2002 the applicant was arrested on charges of arson and uttering threats. On an unknown later date he was indicted before the Biskupiec District Court. 6. Between 19 March and 19 June 2006 the applicant was detained on remand. 7. On 3 June 2003 the District Court convicted him as charged and sentenced him to three years’ imprisonment. 8. On 26 June 2003 the applicant appealed against his conviction. 9. On 16 October 2003 the Olsztyn Regional Court quashed the judgment and remitted the case. 10. Between 19 October 2005 and 29 March 2006 the District Court held seven hearings. On several occasions the applicant who was duly summoned, refused to appear at hearings. However, the court proceeded with the trial in his absence. 11. On 31 March 2006 the Biskupiec District Court convicted the applicant as charged and sentenced him to three years’ imprisonment. 12. On 14 September 2006 the Olsztyn Regional Court again quashed the judgment and remitted the case. 13. On 3 June 2009 the Gizycko District Court again convicted the applicant as charged. 14. On 27 July 2009 the applicant filed his appeal against this judgment. It appears that the proceedings are pending before the Olsztyn Regional Court. 15. On 16 and 21 August 2007 the applicant lodged complaints with the Białystok Court of Appeal 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”). The applicant sought a ruling that the length of the proceedings before the Olsztyn Regional Court had been excessive and an award of just satisfaction. 16. On 7 November 2007 the Court of Appeal gave a decision and dismissed the applicant’s complaint. 17. On 19 June 2008 the Olsztyn Regional Court dismissed yet another complaint under 2004 Act lodged by the applicant. The court considered that there had been no significant delays in the proceedings. 18. The applicant was also involved in several other sets of criminal and civil proceedings, in particular, proceedings concerning assaulting a judge and contempt of court. The proceedings were terminated respectively on 24 October 2005 and 14 March 2007 by the Olsztyn Regional Court. 19. 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 no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

dev

001-83321

ENG

SVK

ADMISSIBILITY

KAVEKO INTERNATIONAL S.R.O. AND OTHERS v. SLOVAKIA

Inadmissible

Nicolas Bratza

The three applicants are identified below. The respondent Government were represented by Ms A. Poláčková, their Agent, who was succeeded in that function by Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant, KAVEKO INTERNATIONAL spol.s r.o. Košice, is a private commercial limited liability company having its head office in Košice and a separate legal personality under Slovakian law, distinct from that of its owners. The second and third applicants, Mr Vladimír Kamarič and Ms Helena Kamaričová, are Slovakian nationals who were born in 1958 and 1956 respectively and live in Košice. In 1997 the second applicant and the third applicant acquired jointly 75% of the shares in the first applicant. The second applicant is the first applicant’s statutory representative. The second applicant at the same time holds shares in and is one of the statutory representatives of another commercial limited liability company (“company K”). Company K was the founder of and held shares in the first applicant. In the early 1990s company K made a credit arrangement with a bank in order to pay for the lease of machinery from a private lessor. In 1992 the bank entered the leasing arrangement in that it obtained an option to buy the machinery at the end of the lease term for a residual value. In 1994 the first applicant took over the debt owed to the bank on the condition that, at the end of the lease term, the bank would exercise its option and obtain and subsequently transfer the ownership of the machinery to the first applicant. The bank did not exercise the option, as a result of which the lessor was free to sell and did in fact sell the machinery to a third party. Company K thus lost a substantial component of its operations. In 1996 the bank brought several actions against the first applicant claiming that it was in default of payment of the bank credit. The bank claimed damages. The actions were subsequently stayed pending the outcome of insolvency proceedings in respect of the first applicant (see below). The proceedings have still not been resolved. On 17 June 1998 the bank petitioned for an insolvency order against the first applicant. It was argued that the first applicant was in default of payment of the debt owed to the bank; that it had several creditors; and that it would be unable to meet its obligations in the near future. On 3 August 1998 the Košice Regional Court (Krajský súd) made the order, appointed an insolvency administrator and invited creditors to register their claims within sixty days. The order was upheld on the first applicant’s appeal by the Supreme Court (Najvyšší súd) on 4 June 1999, and became final and binding on 3 August 1999. By virtue of the insolvency order, pursuant to Article 14 § 1 (a) and (h) of the Insolvency Code, the capacity to make dispositions in respect of the insolvent estate and to exercise rights and duties related to the making of dispositions in respect of the estate was transferred to the insolvency administrator and all powers of attorney granted by the first applicant automatically ceased to exist. The bank’s claims against the first applicant were contested and, as a result, the bank had to seek their judicial recognition by way of a separate action (incidenčná žaloba). The action was allowed at first instance on 25 March 2003, but the judgment was quashed on appeal on 29 April 2005 and is still pending. By decisions (opatrenie) of 25 October 1999 and 25 June 2001 the Regional Court authorised a direct sale without a public auction by the administrator of various movable and immovable items from the assets of the first applicant. The authorisation was not subject to appeal. Further items from the insolvent estate of the first applicant have been sold off in the course of the proceedings. The applicants maintain that the sales were based on manifestly unfavourable terms and that they were contrary to both substantive law and procedural rules. They complained on numerous occasions to the Regional Court that the actions of the insolvency administrator in connection with the sale were illegal and contrary to their interests. All their complaints were to no avail. The insolvency proceedings as such are still pending. Under Article 8 § 5 of the Insolvency Code, an insolvency court can replace the insolvency administrator on the motion of the insolvent person or the trustee provided there are important reasons. On 24 October 2000 the first applicant, acting through a lawyer, lodged a petition (podnet) under Article 130 § 3 of the Constitution with the Constitutional Court (Ústavný súd) contesting the insolvency order of 3 August 1998. On 28 June 2001 the Constitutional Court declared the petition inadmissible as being manifestly ill-founded. The first applicant’s objections were held to be of a fourth-instance nature and, as such, fell outside the scope of the Constitutional Court’s review. On 6 May 2003 the second applicant lodged a fresh complaint (sťažnosť) under Article 127 of the Constitution with the Constitutional Court. He sought to contest, in the name of the first applicant, the length of the proceedings in the bank’s civil actions and asserted that those proceedings had been marked by the violation of a variety of procedural rights. On 18 June 2003 the Constitutional Court declared the complaint inadmissible ratione personae. It observed first of all that the complaint was intended to be brought in the name of the first applicant. However, by virtue of the insolvency order, the capacity to act in the name of the first applicant had passed to the administrator (Article 14 § 1 (a) of the Insolvency Code), civil actions against it had been ex lege stayed (Article 14 § 1 (d) of the Insolvency Code) and could be resumed solely on motion by the administrator (Article 14 § 5 of the Insolvency Code) and any new proceedings could commence only on motion by the administrator (Article 14 § 1 (c) of the Insolvency Code). The present complaint had however not been brought by the administrator or her lawful agent and, therefore, could not be accepted as having been lodged in the name of the first applicant.

dev

001-22833

ENG

GBR

ADMISSIBILITY

MARLOW v. THE UNITED KINGDOM

Inadmissible

Nicolas Bratza

The applicant is a British national, born in 1944 and living in Gloucester, England. The applicant, using a pseudonym, published a book about the cultivation and production of cannabis. The book was advertised for sale in three magazines. Some five hundred copies were sold. The police obtained the names of various customers, established the identity of the applicant and arrested him. When questioned by the police the applicant denied that the book was intended to incite buyers to cultivate cannabis. When pressed about the question of encouragement and incitement, the applicant, on the advice of his solicitor, declined to answer questions saying that the questions were “too conjectural”. The applicant was subsequently charged with three offences under the Misuse of Drugs Act 1971 (“the 1971 Act”). He stood trial before a jury at Worcester Crown Court in February 1996. The applicant pleaded guilty to the charges of producing and having in his possession cannabis and not guilty to the charge of incitement to commit an offence under the 1971 Act. The prosecution case was that the applicant’s book amounted to an incitement of those who bought it to cultivate cannabis and was in effect a grower’s guide. The prosecution relied on the fact that when the police raided the homes of a number of buyers, cannabis plants were found being cultivated according to methods similar to those described in the book. According to the prosecution, the applicant’s intention in writing and publishing the book could be inferred from the book itself and from the effect which it had on the purchasers of the book. The prosecution called as witnesses several such purchasers who were found to be using the method advocated in the book (“the Tricameral method”) to grow cannabis. The applicant’s counsel contended in his defence that his book was a genuine contribution to the debate about the legalisation of cannabis, that it only contained general advice and information freely available elsewhere, that it made it clear that growing cannabis was an offence and that its contents were too remote from the likely actions of those who read it. The applicant relied, inter alia, on the testimony of an expert witness to the effect that many books had been published about the cultivation of cannabis. The expert sought to establish with reference to the contents of those books that the applicant did not intend to incite others to break the law. According to the applicant, his counsel informed the trial judge that he would not be giving evidence on medical grounds and submitted a medical report indicating that the applicant’s performance in the witness box might be prejudiced on account of the stressful circumstances of his court appearance. As to the ingredients of the offence of incitement, the judge in his summing up directed the jury that they had to decide whether they were sure that the book: “may encourage or persuade, or if you like to put it another way, is capable of encouraging and persuading other people to produce the drug cannabis and thus to break the law. The prosecution do not have to prove that it may encourage and persuade, or is capable of doing that, in relation to people who have never grown cannabis before or who had stopped growing cannabis. As I have said, if it may encourage and persuade people to start up again or to carry on and produce more cannabis that would be quite sufficient for proof of the offence. ... If ... you say that it is an encouragement and persuasion, then you must be sure of something else before you can convict the [applicant], and that is that he knew at the time he was disseminating the book that what he was inciting other people to do would be a crime on their part if they did it but that he nevertheless intended to go ahead and do it anyway. It does not have to be proved of course that that was his only intention in publishing the book. It would be quite enough to show that it was one of his intentions. ...” As to the applicant’s silence during police interview and at his trial, the judge directed the jury in the following terms: “... You have had a summary of the [applicant’s] police interviews from which you know that, although he answered many of the police questions, he declined to answer others. The answers which he gave you will of course give such weight to as you think right. ... Some of the questions in the interview, as I have said, he did not want to answer. He did not want to answer questions on the central question of incitement when the police officers were putting them to him. He was quite entitled not answer questions if he did not want to. He could of course have done so but he had an absolute right not to do so. Where he was silent or said, ‘I don’t have any comment’ or, ‘I don’t want to answer that question’ you must not use that as any evidence that he is guilty or take the view that it makes the prosecution case any stronger than it otherwise would do. Then there is the question of him not giving evidence in the witness box in court to you. That stands on a slightly different footing. He has an absolute right not to do that but, as he has been told by me through his barrister, the law is that you are allowed to draw any inference, deduction that is, which you think right from the fact that he had declined to go into the witness box and give evidence on oath. The prosecution cannot prove their case simply by the fact of his silence. What you should do is ask yourselves whether, on the evidence that you have heard, there is a case against him which calls for an answer from him. If not, if there is not, then his silence would have no significance. But if there is a case against him then you would be entitled to come to the conclusion that the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him or no answer which would stand up to being cross-examined by counsel for the prosecution. You are entitled to use that inference, together with all the other evidence in the case, in concluding that he must be guilty of the charge if that is the inference you choose to draw. But it is entirely up to you to say whether you think it is right to do so or not. Of course you will also ask yourselves first of all whether there may be any other harmless reason, if I can use that phrase, for his silence. You may think that no such reason is readily obvious and that he is the person in the best position to tell you what his intention was, for example, in producing this book if he thought that it would advance his case to tell you. As I say, it is up to you what inferences you draw, if any.” Later on in his summing up the judge stated: “What he has never told you of course or told the police is what other books he knows about or has read, nor has he told you how any such books may have affected his own intentions in writing his own. As I say, he could have done because the question of intention has been very much in issue, but he has not. His counsel has made certain suggestions about that but you may think the person best able to explain all that would have been the defendant himself. ... The police then pressed him on the question of encouragement and incitement and it was at that point that he asked his solicitor how he should answer ... .” On 18 March 1996 the jury by an eleven to one majority found the applicant guilty of the offence of incitement. The applicant received a twelve month prison sentence concurrent on the three offences with which he was charged. The applicant applied for leave to appeal. In his amended grounds of appeal the applicant maintained that the trial judge failed to give the jury a proper direction on the inferences which could be drawn from his silence at the police interview and at his trial. In particular, he alleged that the trial judge failed to inform the jury that there was medical evidence which could explain his silence at the trial. The applicant further stated that the trial judge misdirected the jury on the notion of incitement. The full Court of Appeal gave the applicant leave to appeal on the last ground only. On 14 July 1997 the Court of Appeal dismissed the applicant’s appeal. Delivering judgment, Lord Justice Potter, with reference to precedent, considered that the trial judge in his direction should have invited the jury to ask itself whether the book encouraged or persuaded rather than whether it may encourage or persuade or was capable of encouraging or persuading readers to produce cannabis and thus to break the law. However, having regard to the trial judge’s direction as a whole with respect to the defence relied on by the applicant, Lord Justice Potter considered that the jury was properly apprised of the requisite ingredients of the offence. He also rejected the applicant’s contention that sections 18 and 19 of the Misuse of Drugs Act 1971, which set out the offence of incitement, did not refer to the production of cannabis. According to Lord Justice Potter, this was an obvious drafting error and sections 18 and 19 were to be construed in relation to section 4 of the same Act which criminalised the production of cannabis. The Court of Appeal substituted a sentence of six months’ imprisonment in respect of the applicant’s convictions for possession and production of cannabis but upheld the twelve month prison sentence he received in respect of the offence of incitement. The relevant domestic law and practice relating to the drawing of adverse inferences from an accused’s silence during police interview or at his trial is described in detail in the Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97).

dev

001-86052

ENG

EST

CHAMBER

CASE OF DOROZHKO AND POZHARSKIY v. ESTONIA

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

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

4. Mr Aleksandr Dorozhko, the applicant in application no. 14659/04 (“the first applicant”), was born in 1960. Mr Vyacheslav Pozharskiy, the applicant in application no. 16855/04 (“the second applicant”), was born in 1981. Both of them are currently serving prison sentences. 5. The applicants were arrested around midnight on the night of 8 to 9 November 2002. They were initially suspected of having caused grievous bodily harm and of temporary unauthorised use of other persons’ movable property (cars). Subsequently, the applicants were also charged with robbery. 6. On 20 November 2002 the Tallinn City Court (linnakohus) refused to extend the applicants’ detention. The second applicant was released. The first applicant, however, was not released by the police; he was kept under arrest and declared under suspicion of an offence of threatening behaviour. On 22 November 2002 the City Court authorised his further detention. 7. In the meantime, on 20 November 2002, the police chief inspector I. P. ordered that a team of investigators be set up for the criminal case concerned. The team consisted of I. P. himself as the head of the team and three other senior police inspectors: L., G. and K. 8. In the submission of the Government, the further criminal investigation was practically solely carried out by police investigator L., while only a few procedures were performed by investigators G. and K. The criminal case file did not contain any indication that I. P. personally performed any investigative actions or that he issued any instructions or guidelines to the members of the team. 9. Nevertheless, the first applicant was informed by the Tallinn Police Prefecture and the Public Prosecutor’s Office during the pre-trial investigation, in response to his complaints, that I. P. was a member of the team of investigators set up for the criminal case concerned and he had the powers to conduct all investigative activities. 10. On 14 March 2003 the Lääne County Court (maakohus) authorised the second applicant’s detention until 14 May 2003 in different criminal proceedings not related to the present case. 11. In the meantime, on 3 February and again on 29 April 2003, after the Public Prosecutor’s Office had amended the charges, the applicants were committed for trial by the Tallinn City Court. The case was heard by a court composed of a professional judge, E. P., and two lay judges. The hearings before the City Court took place on several dates. 12. At a City Court hearing on 30 May 2003 the first applicant said in his closing statement that because he had refused to cooperate with the police investigators B., I. P. and K., the charges against him had been changed. He also said that although a judge had ordered his release, police investigators I. P. and K. had not released him from the police cell but had detained him again on suspicion of threatening behaviour. 13. On 30 May 2003 the City Court convicted the applicants of robbery and temporary unauthorised use of other persons’ movable property. The first applicant was also convicted of an offence of threatening behaviour. The first applicant was sentenced to nine years’ and the second applicant to seven years’ imprisonment. 14. The applicants and the first applicant’s lawyer appealed against the judgment. The applicants in their appeals challenged, inter alia, the impartiality of the City Court’s judge E. P., as her husband, I. P., had headed the team of investigators which had been set up for the investigation of the criminal case concerned. The second applicant noted that this issue had been raised at a City Court hearing but judge E. P. had not withdrawn. 15. On 6 June 2003 the first applicant’s wife also lodged a complaint to the Court of Appeal, arguing, inter alia, that judge E. P. should have withdrawn because her husband had been involved in the pre-trial investigation. 16. At the hearing before the Court of Appeal on 9 October 2003 the first applicant raised the issue of impartiality of the City Court judge E. P. According to the record of the hearing, he stated as follows: “The presiding judge was [E. P.]. Her husband was the person who carried out the preliminary investigation. I only learned about it after the court hearing. This fact affected the impartiality of the judge. It could also be seen from the record [of the court hearing] because it is imprecise. ... It affected the judicial investigation. The judge did not grant my requests, everything happened very quickly. She[] wanted to have me imprisoned. I did not request the removal of the judge. I did not know at that time that her husband had been the head of the preliminary investigation.” 17. According to the prosecutor the applicants had not been aware that E. P. and I. P. were married to each other when the City Court began to hear the case. In her submission they had become aware of it later, by the time of the subsequent hearings. However, no requests for removal of the judge had been made. 18. At the end of the Court of Appeal hearing the second applicant said that I. P. had interrogated him. He added: “[I. P.] threatened me [and said] that if I confessed, I would not go to prison.” 19. On 9 October 2003 the Tallinn Court of Appeal (ringkonnakohus) acquitted the applicants in respect of the second count of temporary unauthorised use of other persons’ movable property. It upheld the City Court’s judgment in the remaining part. 20. Referring to Article 20 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), which concerned grounds for disqualification of a judge, the Court of Appeal found that the applicants’ allegations did not warrant quashing the City Court’s judgment and referring the case to the first-instance court for a new trial. Moreover, it was noted that none of the parties to the proceedings had requested judge E. P.’s disqualification during the proceedings in the City Court; neither had the impartiality of the judge nor that of the court been put into doubt in the appeals. The first applicant had submitted at the Court of Appeal hearing that he had become aware of the fact that I. P. was the judge’s husband during the court proceedings. The Court of Appeal found, however, that the judge’s possible relationship with an official participating in the preliminary investigation did not prove the judge’s partiality. It noted that although I. P. had been the head of the team of police officers investigating the case, the investigation had in fact been carried out by another police investigator. None of the reports concerning various investigative activities (uurimistoimingu protokoll) in the case file had been drawn up by I. P. Moreover, besides judge E. P., two lay judges had taken part in deciding the case. The Court of Appeal considered that the allegation concerned was artificial and had been submitted with a view to delaying the proceedings. 21. In his appeal to the Supreme Court (Riigikohus), the first applicant argued that judge E. P. could not have been unaware of the fact that her husband had led the team of investigators and that the applicant had made several complaints during the preliminary investigation to the Public Prosecutor’s Office against the police investigators, including I. P. He asserted that judge E. P. should have withdrawn from hearing the case. In his view the judicial investigation in the City Court had not been impartial; the lack of impartiality had particularly been reflected in the severity of the sentence. The applicant had not requested E. P.’s removal because he had found out too late and through informal sources that she was married to I. P. Nevertheless, he was of the opinion that his failure to request the judge’s removal should not deprive him of the right to impartial adjudication of the charges against him. 22. The second applicant argued in his appeal to the Supreme Court that judge E. P. had had no right to administer justice in respect of him because she was the wife of the head of the team of police investigators. 23. On 21 January 2004 the Supreme Court refused the applicants leave to appeal. 24. According to Article 20 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, a judge could not participate in criminal proceedings and had to be disqualified if he or she had a direct or indirect personal interest in the case or if other circumstances gave reasons to doubt his or her impartiality. Article 20 § 3 provided that a person who was related to an official conducting a preliminary investigation or court proceedings in a criminal case could not participate in the proceedings as an expert, specialist, defence counsel or representative of a victim, plaintiff or defendant, or as an interpreter or translator. 25. Article 26 § 1 (2) of the Code stipulated that a person whose spouse had participated in the proceedings of a criminal case (menetlusosaline kriminaalasjas) could not act as a judge in that case. The same applied in respect of a person with regard to whom facts were presented which gave reason to doubt his or her impartiality (Article 26 § 1 (4)). 26. Article 34 § 1 of the Code provided that participants in the criminal proceedings (kriminaalmenetluse osaline; menetlusosaline) were: suspect, accused, accused at trial and his or her defence counsel, prosecutor in court proceedings, and victim, plaintiff, defendant and their representative. 27. In Article 107-1 § 1 of the Code the rights and obligations of a head of the investigation (uurimisjuht) were enumerated. He or she could monitor the activities of a preliminary investigator and give him or her instructions; form teams of investigators (uurimisgrupp); annul unlawful or unjustified orders of preliminary investigators; participate in the actions of preliminary investigators or personally perform actions in a criminal matter. 28. Under Article 178 of the Code a head of the investigation could form a team of investigators by his or her order. The head of the team of investigators (uurimisgrupi vanem) had to be named in the order. The latter had to coordinate the activities of the team of investigators. 29. Article 231 of the Code provided that after a judge had announced the panel of the court, he or she had to explain to the participants in the proceedings their right to request the judge’s or lay judges’ disqualification. 30. Article 232 of the Code stipulated that judges and lay judges had to withdraw from hearing of the case, and the participants in the proceedings had the right to request their disqualification, under the circumstances specified in Article 20 or 26 of the Code.

dev

001-76600

ENG

TUR

ADMISSIBILITY

YILMAZ v. TURKEY

Inadmissible

The applicant, Mr Yusuf Yılmaz, is a Turkish national who was born in 1950 and lives in Istanbul. He is represented before the Court by Mr Selim Okçuoğlu, a lawyer practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant at one time lived with his parents and brothers in the Kalkanlı village of Bingöl. Their house was on the outskirts of the village. The applicant later moved to Istanbul. His family continued to live in Kalkanlı. On an unspecified date in 1994 the applicant learned that the security forces had chopped down his family’s fruit trees in the village. On an unspecified date, the local gendarme commander orally stated that the soldiers who had chopped the trees had subsequently been disciplined. The applicant’s family did not make any formal complaints. In the unspecified past, the soldiers had allegedly burned five houses in the centre of the village and compelled the villagers to leave the village. In the evening of an unspecified day in 1994, while the applicant’s father was visiting him in Istanbul, some soldiers opened fire in the direction of the house, presumably in the course of a clash with the PKK. The soldiers’ bullets caused a fire near the house of the applicant’s family, burning dry leaves and chopped wood only. The applicant’s family informed him about these incidents and expressed their fears. They did not feel secure to live in this region. The applicant came to the village in order to take his family to Istanbul. His family left all their belongings in the house and voluntarily gave the keys to the local gendarme station for potential house searches. The applicant’s family began to live with him in Istanbul. In 1996 the father of the applicant died. From 1994 to 1996 the applicant went to the village every year in order to check the house. In June 1996 he noticed that some of their belongings and some food supplies were missing. Moreover the doors and the windows of the house had been removed. On 6 June 1996 the applicant wrote to the Yayladere County Governor’s Office. He explained that he wanted to return to his village that he had left in 1994. He reported about the damage caused to his house and belongings and requested that his damage be assessed. He further requested financial aid to repair his house. On 19 July 1996 the State of Emergency Bureau of the Yaylıdere County Governor’s Office wrote in reply that an investigation had been carried out by the Yaylıdere Gendarme Command. It was observed that there were no residents in the village as a result of the acts of terror. According to the Office, the damage had been caused by severe weather conditions and lack of proper care and maintenance. It was noted that the damage had accelerated after the roof of the house was ruined. The Office concluded in the light of these facts and under the relevant law that it was not possible to provide any compensation or financial aid, as requested. The applicant did not challenge this decision. In September 1996 the applicant went to the village again. He observed that the roof of the house had suffered some more damage since June 1996. He further noticed that some – unspecified – family belongings had been stolen. On 25 October 1996 the applicant wrote a second letter similar to the letter of 6 June 1996. He did not submit a copy of it to the Court. On 8 January 1997 the State of Emergency Bureau wrote in reply to the second letter that an investigation had been carried out. It referred to an internal directive of 27 September 1996 of the State of Emergency Bureau of the Bingöl Governor’s Office. The referred directive had ordered the identification of the families who had emigrated as a result of the acts of terror but subsequently returned and built houses, or those who wished to return. The letter noted that, under the relevant law, it was not possible to provide any compensation or help from the Yaylıdere County Governor’s Office and the Social Aid and Solidarity Foundation. The letter nevertheless stated that, on the condition that the applicant would return to the village, his situation would be reconsidered in the light of a new investigation to be conducted on site. The letter further stated that if his request were found to be well-suited, necessary aid could be provided. The applicant did not find the letter sincere. He was of the opinion that the local gendarme commander would not allow any construction work in the village. He also believed that various unreasonable security measures in the village would make it undesirable to live there. The applicant neither returned to the village nor wrote to any other State institution. In the autumn of 1997, the applicant learned from unspecified sources that his house was destroyed to a greater extent and the village forests were burned. The security forces had not destroyed or stolen the applicant’s belongings. Furthermore, the official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004- VI)

dev

001-90457

ENG

TUR

CHAMBER

CASE OF HASEFE v. TURKEY

Violation of Article 6 - Right to a fair trial

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

5. The applicants were born in 1923, 1948 and 1952 respectively and live in Istanbul. 6. The first applicant is the mother and the remaining two applicants are the sister and brother of Ms Nilgün Hasefe, who was employed by Sabancı Holdings in Istanbul. On 9 January 1996 a number of armed persons raided the Holdings' premises and killed Nilgün Hasefe and two others. 7. On 11 November 1996 the applicants wrote to the Ministry of the Interior (“the Ministry”) and claimed compensation in accordance with Article 125 of the Constitution on the ground of the State's failure to protect Nilgün Hasefe's right to life. The Ministry rejected the claim on 9 December 1996. 8. On 14 February 1997 the applicants filed a compensation claim against the Ministry before the Istanbul Administrative Court (hereafter “the Istanbul court”). 9. On 14 October 1999 the Istanbul court partly allowed their claims for compensation and ordered the Ministry to pay certain sums of compensation to the applicants in respect of pecuniary and non-pecuniary damage. 10. On 9 March 2000 the applicants asked the Ministry to pay them the amounts of compensation awarded by the Istanbul court. 11. The Ministry appealed against the decision on 22 March 2000 and asked for an interim injunction suspending the execution of the Istanbul court's decision. In his written submissions the prosecutor at the Supreme Administrative Court agreed with the Ministry and requested that an interim injunction be granted and that the decision of the Istanbul court be quashed. The prosecutor's written submissions were not forwarded to the applicants. 12. On 18 May 2000 the Supreme Administrative Court granted the injunction sought by the Ministry and on 6 March 2002 it quashed the Istanbul court's decision of 14 October 1999. 13. The case was remitted to the Istanbul court, which decided on 31 January 2003 to reach the same conclusion as it had in its decision of 14 October 1999. It ordered the Ministry to pay the same amounts of compensation to the applicants as those awarded in its previous decision. The Ministry appealed. The applicants also appealed and argued that the amounts of compensation ordered by the Istanbul court were no longer satisfactory owing to the low rates of interest. 14. On 14 April 2005 the Supreme Administrative Court's General Council of the Administrative Chambers (Danıştay İdari Dava Daireleri Genel Kurulu) dismissed the Ministry's appeal and accepted the applicants' claims for higher rates of interest in respect of non-pecuniary damage. 15. A request by the Ministry for rectification of the Istanbul court's decision of 31 January 2003 was rejected on 16 March 2006. 16. On 31 October 2006 the Istanbul court adopted a decision in line with the decision of the Supreme Administrative Court's General Council of the Administrative Chambers in so far as it concerned the rates of interest for non-pecuniary damage, and awarded compensation to the applicants. On 2 March 2007 the Ministry appealed against the decision. According to the information provided by the Government, the appeal proceedings are still pending. 17. On 10 December 2007 the Ministry paid the applicants the amounts of compensation awarded by the Istanbul court in its decision of 14 October 1999 and the interest awarded in the same court's decision of 31 October 2006. The total sum paid to the three applicants was 63,080 new Turkish liras (TRY – approximately 37,000 euros (EUR) at the time). 18. Article 13 of the Code of Administrative Procedure provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. The victim must first apply to the relevant administrative entity and claim compensation for the damage before he or she can lodge a compensation claim in the administrative courts. If this claim is dismissed in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 19. Article 28 of the Code of Administrative Procedure provides: “(1) The authorities shall be obliged to adopt a decision without delay or to take action in accordance with the decisions on the merits or a request for a stay of execution issued by the Supreme Administrative Court, the ordinary or regional administrative courts or the courts dealing with tax disputes. Under no circumstances may the time taken to act exceed thirty days following service of the decision on the authorities. ... (3) Where the authorities do not adopt a decision or do not act in accordance with a decision by the Supreme Administrative Court, the ordinary or regional administrative courts or the tax courts, a claim for compensation for pecuniary or non-pecuniary damage may be brought before the Supreme Administrative Court and the relevant courts against the authorities. (4) In the event of deliberate failure on the part of civil servants to enforce judicial decisions within the thirty days [following the decision], compensation proceedings may be brought both against the authorities and against the civil servant who refuses to enforce the decision in question.”

dev

001-86115

ENG

ROU

CHAMBER

CASE OF PETREA v. ROMANIA

Violation of Article 3 - Prohibition of torture (Substantive aspect)

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

4. The applicant was born in 1970 and lives in Iaşi. 5. On 23 November 1999 the prosecutor attached to the Piteşti Court of Appeal issued an arrest warrant against the applicant, who was accused of tax evasion. 6. The applicant was apprehended on 5 September 2000 and was placed in police custody for a period of thirty days. The Piteşti District Court, to which the applicant was first brought on 28 September 2000, repeatedly extended his pre-trial detention, until the end of the proceedings before it. 7. The District Court gave judgment on 19 February 2002. On the basis of the depositions made by the applicant, four co-defendants and twenty-one witnesses, the court convicted the applicant under several heads of tax evasion and forgery, and sentenced him to six years and six months’ imprisonment with an obligation, under Article 113 of the Criminal Code, to undergo medical treatment for his mental disorder as identified by the medical reports adduced in the case. The court ordered that the medical treatment be administered through the prison hospitals, while the applicant was in detention, and continue after his release until his complete recovery. It also upheld the order for the applicant’s detention. 8. In a decision of 25 June 2002, the Argeş County Court allowed appeals against the judgment and, based on the evidence in the case and the defendants’ depositions, reduced the applicant’s sentence to five years and six months’ imprisonment. It upheld the remainder of the District Court’s judgment. 9. This decision was confirmed, upon an appeal on points of law by the defendants, in a final decision of 8 October 2002 of the Piteşti Court of Appeal. 10. On 20 September 2000 the applicant’s lawyer filed a request with the prosecutor for the applicant’s psychiatric evaluation. The Argeş Forensic Medicine Institute examined the applicant and concluded, on 2 October 2000, that he had been mentally competent for legal purposes both when the alleged offences had been committed and at the date of the evaluation. The applicant contested the conclusion of the report. 11. On 18 December 2000 the “Mina Minovici” Forensic Medicine Institute in Bucharest confirmed the Argeş Forensic Institute’s report, after having examined the applicant. It also recommended that, pursuant to Article 113 of the Criminal Code, the applicant be required to undergo medical treatment for his mental disorder both during the detention and after his release. 12. On 29 November 2000 the applicant underwent a full medical examination at the Argeş Forensic Medicine Institute. The medical commission concluded that the applicant’s mental disorder did not render him unfit for detention. 13. According to the detailed medical record from the period of pre-trial detention, submitted by the Government, the applicant was hospitalised seven times in prison hospitals. He was mainly diagnosed with thrombophlebitis, venous insufficiency and a mental disorder. Each time he was discharged, the doctors recommended treatment for his various illnesses, periodical re-evaluations and medical check-ups when needed. During this interval he was seen twenty-seven times by the prison doctors, on 23 and 30 October, 6, 13 and 27 November, 11 and 20 December 2001, 11 February, 17 June, 1, 8, 20, 22 and 29 July, 5, 12, 16, 19 and 26 August, 2, 9, 20, 23 and 30 September, and 7, 13 and 19 October 2002. Records indicate that medicine was systematically administered for his venous insufficiency and until 20 December 2001 for his mental disorder. The latter treatment was interrupted until 5 August 2002 and after this date was given sporadically. 14. During his detention, several disciplinary measures were taken against the applicant. Accordingly, his visit and parcel rights were withdrawn on 26 March 2001, 28 December 2001, 10 January and 8 April 2002, for possession of forbidden objects. From 4 to 14 January 2002 he was kept in solitary confinement. 15. Lastly, on 5 February 2002 the penitentiary authorities placed the applicant in restrictive confinement (“regim restrictiv”), for twelve months due to his recalcitrant behaviour and repetitive infringements of the prison regulations. However, on 14 June 2002 he was reintegrated into the normal detention regime, for good behaviour. The applicant claimed that while subject to the restrictive detention regime he had been kept in a cold cell wearing worn clothes that had been inadequate for the temperature, sometimes handcuffed with his hands above his head, and that for the first month he had not been seen by a doctor and that correspondence to and from his family had been tampered with. 16. In October 2002, after the adoption of the final decision in the case, the applicant was transferred to Iaşi high-security Prison and placed in the section designated for extremely dangerous prisoners. 17. The applicant claimed that, despite his repeated requests to be seen by a specialist doctor and administered adequate medical treatment, during the first eight months of detention he had only been examined by the prison doctor, who had consistently informed him that there had been no funds for continuing his treatment. The prison doctor had told him: “there is no problem if you die, we have a priest and there is wood in the store house” (“nu e nici o problemă dacă mori, avem preot şi scânduri la magazie”). On an unspecified date, upon repeated requests by his family to the prison authorities, the applicant was transferred to a different dormitory. 18. According to the Government, the applicant was placed in shared dormitories, the first measuring 41.12 sq. m and the latter 60.69 sq. m, which he shared respectively with nine and fifty-three other prisoners. The dormitories had windows. Hygiene facilities were permanently accessible to prisoners in a separate room. Warm water was available once a week. The applicant had daily one-hour walks, frequently received visits from members of his family and participated in the social programme of the penitentiary. His medical treatment continued. 19. On 11 July 2003, the Iaşi prison authorities informed the applicant’s counsel that the applicant was not receiving any medical treatment at that moment, but that such treatment would be administered if necessary. 20. From 3 February 2004 to 7 February 2005, the execution of the sentence was suspended for medical reasons. On 16 June 2005 the applicant was released on probation. 21. Article 195 of the Criminal Code (“CC”) and the relevant provisions of Law no. 23/1969 on the execution of sentences are described at paragraphs 23 and 25 of the Năstase-Silivestru judgment (see NăstaseSilivestru v. Romania, no. 74785/01, 4 October 2007). 22. Law 23/1969 was replaced by Emergency Ordinance no. 56/2003 (“Ordinance 56”) on the rights of prisoners, adopted by the Government on 25 June 2003 and ratified by Parliament on 7 October 2003. This Ordinance constituted a general measure taken by the Government in the execution of the judgment adopted by the Court in the case Petra v. Romania (judgment of 23 September 1998, Reports of Judgments and Decisions 1998VII; see the Committee of Minister’s Resolution CM/ResDH(2007)92). The relevant parts of the Ordinance read as follows: “(2) Prisoners may complain against the measures taken by prison authorities (...). (5) In examining a complaint, the court takes one of the following decisions: (a) allows the action and orders the annulment, revocation or change of the measure taken by the penitentiary authority; (b) dismisses the action if it is ill-founded.” 23. That Ordinance was replaced by Law no. 275/2006 on the execution of sentences, which in its Article 38 provides for a similar appeal lodged with the judge responsible for the execution of sentences, who has the powers described in Article 3 § 5 of Ordinance 56 and whose decision can be appealed against before a court. 24. The legislation on the organisation of the military prosecutors’ offices and military tribunals is summarised in paragraph 40 of the Barbu Anghelescu judgment (see Barbu Anghelescu v. Romania, no. 46430/99, 5 October 2004) and in paragraph 68 of the Bursuc judgment (see Bursuc v. Romania, no. 42066/98, 12 October 2004). Until 28 September 2004 when Law no. 293/2004 entered into force, the penitentiary commanders were active military officers (see Articles 1 and 2 of Law no. 10/1990 and Article 4 § 24 of Government Decision no. 736/2003). 25. The findings of the European Committee for the Prevention of Torture (“the CPT”) following visits to Romanian prisons, as well as the Committee’s general findings, are summarised at paragraphs 73-75 of the Bragadireanu judgment (see Bragadireanu v. Romania, no. 22088/04, 6 December 2007).

dev

001-57511

ENG

DEU

CHAMBER

CASE OF KÖNIG v. GERMANY (ARTICLE 50)

Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

8. The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving some brief particulars; for the remaining details, reference should be made to paragraphs 15 to 81 of the Court’s judgment of 28 June 1978 (ibid., pp. 7-27). 9. That judgment concerned the length of actions brought by Dr. König before the Frankfurt Administrative Court in 1967 and in 1971 to challenge, respectively, the withdrawal of the permit to run his clinic and the withdrawal of the authorisation to practise medicine. In the second matter, the Administrative Court had dismissed the applicant’s action by a judgment delivered on 9 June 1976 which had been affirmed by the Hessen Administrative Court of Appeal on 2 May 1978. Dr. König lodged an appeal (Nichtzulässigkeitsbeschwerde) and an application to quash (Revision) but these were rejected by the Federal Administrative Court (Bundesverwaltungsgericht), in two final decisions, on 10 September and 18 October 1979. In the case concerning the clinic, the Frankfurt Administrative Court had dismissed Dr. König’s action on 22 June 1977. An appeal by him against that decision is still pending before the Hessen Administrative Court of Appeal which, with the agreement of the parties, stayed the proceedings on 21 February 1979 pending the outcome of the above-mentioned proceedings before the Federal Administrative Court. 10. After delivery of the Court’s judgment of 28 June 1978, the Government and the applicant attempted, with the Commission’s assistance, to arrive at a friendly settlement of the latter’s claims, details whereof had been given by Mr. Hofferbert in his letter of 18 September 1978 (see paragraph 3 above). The attempt met with failure in November 1978: Dr. König found that the Government’s offer of DM 20,000 in full and final settlement was not sufficient. 11. The applicant seeks pecuniary compensation for the two heads of damage allegedly caused to him by the violation of Article 6 par. 1 (art. 6-1): he maintains that his financial and professional situation may have been permanently ruined and, secondly, that his personal and professional reputation had been indirectly lowered. Without quantifying his claims, he furnishes certain particulars – regarding notably the average annual income he could have anticipated as a medical practitioner and as the head of a clinic - on the basis of which he considers it possible to gauge the extent of his aggregate loss and to assess the fraction thereof attributable to the fact that the "reasonable time" was exceeded. In addition, the applicant asks for reimbursement of the expenses he incurred both in Germany, in order to expedite the hearing of his actions, and before the Convention institutions. Dr. König leaves the assessment of the sum to be awarded to him to the Court’s discretion, thereby confirming the position he had adopted in 1977 (Series A no. 27, p. 41, par. 113). 12. In their observations of 6 October 1978 (see paragraph 3 above), the Commission’s Delegates stated that they did not wish to comment on the first of the applicant’s claims which they saw as being concerned with the consequences of the two withdrawals of authorisation; at the hearing, they submitted that in their opinion the attribution of specific material losses to the breach found by the Court was impossible, at least on the strength of the evidence before it. On the other hand, the Delegates suggest that account should be taken of the fact that the applicant was left in a prolonged state of uncertainty as to his professional future, and this at a time of life - between the ages of forty-nine (in 1967) and sixty (in 1978) - when a man is normally at the peak of his career. They also consider that the breach of Article 6 par. 1 (art. 6-1), taken by itself, may be another factor having a bearing on an award of just satisfaction. As far as concerns the costs of the proceedings, the expenditure incurred by Dr. König in order to expedite the domestic litigation and to present his case in Strasbourg is regarded by the Delegates as a relevant item. They express no firm view as to whether the same applies to the expenditure arising from his applications to the German courts for restoration of the suspensive effect of his appeal against the withdrawal of the authorisation to practise; in their opinion, those applications were aimed not at speeding up the proceedings but at limiting the consequences of their excessive length. Neither do the Delegates comment on the justification for the figures given by the applicant. 13. The Government’s position is as follows: there is no causal link between the breach found by the Court and the alleged damage to Dr. König’s professional career; on the other hand, "reasonable", "necessary" and proven costs resulting from the exercise of the domestic legal remedies can give rise to compensation to the extent that those remedies were aimed at accelerating the procedure; furthermore, the "reasonable costs" incurred in connection with the proceedings before the Convention institutions should be reimbursed; finally, it is for the Court to determine whether the applicant should be awarded monetary compensation for the "non-material" injury he suffered by reason of the mere fact that the "reasonable time" was exceeded.

dev

001-5431

ENG

TUR

ADMISSIBILITY

AYDIN v. TURKEY

Inadmissible

Christos Rozakis

The applicant is a Turkish national, born in 1960 and living in Batman. He is represented in the proceedings before the Court by Mr Mesut Bektaş, and Mrs Meral Bektaş, lawyers practising in Diyarbakır. The applicant was detained for interrogation on 18 January 1981. On 12 March 1983 the Diyarbakır Martial Court ordered his formal arrest. On 23 September 1988, the Diyarbakır Martial Court found the applicant guilty of membership of the PKK, involvement in the bombing of a junior officer’s house and attempted murder. The court sentenced him to sixteen years and eight months’ imprisonment. The court ordered the applicant’s conditional release. On 10 February 1991 the Military Court of Cassation upheld the lower court’s judgment. Meanwhile, on 4 October 1990 the applicant was detained for the second time and on 18 October 1990 was formally arrested. On 17 March 1993 the Diyarbakır State Security Court No. 2 found the applicant guilty of separatist acts and sentenced him to life imprisonment. On 5 November 1993 the Court of Cassation upheld the Diyarbakır State Security Court’s judgment. On 13 February 1998 the applicant requested the Diyarbakır State Security Court No. 2 to sentence him on the basis of the principle of multiplicity of sentences. On 20 March 1998 the Diyarbakır State Security Court No. 2 accepted the applicant’s submissions. The Diyarbakır State Security Court No. 2 sent its final decision to the Bursa Public Prosecutor’s Office in order to have its decision of 20 March 1998 executed. On 27 March 1998 the Office of the Bursa Public Prosecutor objected to the decision to apply to the applicant the principle of multiplicity of sentences and requested the Diyarbakır Public Prosecutor’s Office to contest the decision or, alternatively, to forward its objection to the Diyarbakır State Security Court. On 1 April 1998 the Diyarbakır Public Prosecutor sent the correspondence of the Office of the Bursa Public Prosecutor to the Diyarbakır State Security Court No. 3. On 1 April 1998 the Diyarbakır State Security Court No. 3 accepted the objections of the Bursa Public Prosecutor’s Office and cancelled the earlier decision on multiplicity of sentences. The Diyarbakır State Security Court No. 3 concluded that the multiplicity of sentences principle was only to be applied in circumstances where a person is convicted of several crimes. As regards the applicant, the court found that he had no right to invoke the multiplicity of sentences principle since his first sentence in respect of which he was conditionally released had already been executed. The court relied on Law no. 647 which provides that if a person is conditionally released his sentence is considered to have been executed.

dev

001-94162

ENG

TUR

GRANDCHAMBER

CASE OF VARNAVA AND OTHERS v. TURKEY

Preliminary objections dismissed (substantially the same, disappearance of object of proceedings, ratione temporis, six month period);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5;No violation of Art. 5;Non-pecuniary damage - award

Anatoly Kovler;Dean Spielmann;Françoise Tulkens;Gönül Erönen;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Päivi Hirvelä;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva

20. The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. These events gave rise to four applications by the Government of Cyprus against the respondent State, which have led to various findings of violations of the Convention. The history is set out in the Court’s judgment in Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-18, ECHR 2001IV; hereinafter “the fourth inter-State case”) and the Court sees no reason for repetition. 21. The facts are disputed by the parties. The Court notes that the summary of their versions of events given in the Chamber judgment have not been; these are in large part reproduced below, with the addition of some new information submitted by the parties and identified as such in the text. 22. The first applicant, an ironmonger, was born in 1947; he has been considered missing since 1974. His wife, the second applicant, was born in 1949 and resided in Lymbia. 23. In July 1974 the first applicant, responding to the declared general mobilisation, enlisted as a reservist in the 305 Reservists Battalion which had its headquarters in Dhali village. On 8 to 9 August 1974 the reserve soldiers of the 305 Reservists Battalion, among them the applicant, took up the manning of Cypriot outposts along the front line opposite the Turkish military forces which extended between Mia Milia and Koutsovendis. 24. On the morning of 14 August 1974, Turkish military forces, supported by tanks and air cover, launched an attack against the Cypriot area where the applicant and his battalion were serving. The Cypriot line of defence was broken and the Turkish military forces began advancing towards the area of Mia Milia; the Cypriot forces began retreating and dispersed in all directions. After a while the area was captured by the Turkish military forces and the applicant was trapped within. There has been no trace of the applicant since. 25. Mr Christakis Ioannou of Pano Dhikomo and now of Stavros Refugee Camp Strovolos, who had been a prisoner of the Turkish military forces and/or the Turkish authorities, stated that at Adana Prison in Turkey, where he had been taken on 31 August 1974, there were another forty persons in the same room for three to four days. Among them was the applicant. After the said period they were split up and he had not seen the applicant since. 26. The first applicant, a student, was born in 1954; he has been considered missing since 1974. His father, the second applicant, was born in 1907 and resided in Nicosia. 27. In July 1974 the first applicant was serving as a second lieutenant in the 1st Company of the 256 Infantry Battalion stationed at Xeros. On about 30 July 1974 the battalion moved to the Lapithos area. The soldiers were split up into various groups; the applicant’s group, consisting of ten men, was ordered to take up positions on the Lapithos heights. 28. On 5 August 1974 Turkish forces launched a strong attack from all sides against the Cypriot forces’ positions while other Turkish troops managed to encircle Lapithos. Owing to the Turkish superiority in men and weapons the Cypriot forces were ordered to retreat towards the centre of the village to the company base. The applicant arrived there with his men and was informed by the inhabitants that Lapithos was surrounded by Turkish troops. They hid their weapons in an orchard and put on civilian clothing. The same afternoon the applicant and others attempted unsuccessfully to break through the Turkish lines. They then returned to Lapithos where they spent the night. At about 9 a.m. on 6 August 1974 Turkish troops entered Lapithos and started extensive house-to-house searches. The applicant and his comrades were warned by the villagers and they dispersed in order to avoid capture. Since then, none of the members of the group has seen the applicant. 29. Nicos Th. Tampas of the 256 Infantry Battalion, also on the Lapithos heights on 5 August 1974, mentioned in a statement that at approximately 9 p.m. on 6 August 1974 he entered a warehouse in the village where he found the applicant looking after a wounded man. After talking with the applicant, he left. That was the last time that he saw the applicant. He was himself arrested by the Turks on 9 August 1974 in Lapithos, detained in various prisons in Cyprus and Turkey and released on 22 October 1974. 30. Christodoulos Panyi of Vatyli, now of Strovolos, in his statement declared that while he was a prisoner in Adana Prison he saw and recognised the applicant, whom he had previously met. 31. The first applicant, a student, was born in 1954; he has been considered missing since 1974. His father, the second applicant, was born in 1929 and resided in Nicosia. 32. In July 1973 the first applicant enlisted to do his national service. He was posted to the 70 Engineers Battalion. On 5 August 1974, a section of the battalion, including the applicant, was sent on a mission in the Lapithos and Karavas area (Kyrenia district). The men spent the night at Lapithos and intended to complete the mission the following morning. 33. At about 4.30 a.m. on 6 August 1974 the Turkish Army launched a fullscale attack from all sides in the Karavas and Lapithos area. The applicant’s group leader ordered his men to split up into three groups and to withdraw towards Vasilia (also in the Kyrenia district). The applicant was in one of the groups which intended to withdraw by following a route along the coast. 34. The men first reached the main NicosiaKyrenia road near the “Airkotissa” restaurant. While resting, they heard shouting and the group leader sent the applicant and another soldier to investigate. As they had not returned after about fifteen minutes the remainder of the group left for Panagra (also in the Kyrenia district). On their way, they were ambushed by Turkish soldiers and the remaining group dispersed. 35. Costas A. Sophocleous, of Nicosia, stated that, when he was a prisoner in Turkey from 30 July until 28 October 1974, he had met the applicant. They were in the same prison in Turkey and were subsequently transferred to Cyprus, at which point he had been released but not the applicant. 36. Alexandros Papamichael, of Limassol, stated that he recognised the first applicant from a photograph that was shown to him by the second applicant and he had been with him in Adana Prison. 37. Finally, the second applicant mentioned in a signed statement that he identified his missing son in a photograph published in Athinaiki, a Greek newspaper, on 28 September 1974. In this photograph Greek Cypriot prisoners were shown on a boat en route to Turkey. 38. The first applicant, a photographer, was born in 1953; he has been considered missing since 1974. His mother, the second applicant, was born in 1914 and resided in Nicosia. 39. On 20 July 1974 the first applicant enlisted as a reservist. He was posted to the 1st Company of the 301 Infantry Battalion. On 22 July the whole battalion was ordered to move on the following day to the area of Ayios Ermolaos. The 1st Company took up defensive positions at a height called “Kalambaki”, near the Turkish Cypriot village of Pileri. 40. At about 4.30 a.m. on 26 July 1974 the 1st Company came under attack from the Turkish Cypriot villages of KriniPileri. The Turkish military forces consisted of a paratroop battalion, twenty tanks and high-angle guns. They succeeded in breaking through the Cypriot lines and infiltrated the right flank of the 1st Company in order to encircle it. The commander ordered the company to regroup at the village of Sysklepos; from there they were ordered to regroup at Kontemenos, where they arrived at about 3 p.m. After a roll call they found out that six soldiers of the 1st Company were absent, including the applicant. The area in which the 1st Company had been initially stationed was captured by the Turkish military forces. 41. Mr Nicos Nicolaou of Strovolos, who was a prisoner at Adana in September 1974, stated that one day he heard a Turk calling the applicant’s name. He also saw the applicant whom he happened to know previously and noticed that he was lame in one leg. On 11 September 1974 Mr Nicolaou was taken to Antiyama Prison in Turkey and he had not seen the applicant since. 42. The first applicant, a student, was born in 1955; he has been considered missing since 1974. His mother, the second applicant, was born in 1935 and resided in Limassol. 43. In 1972 the first applicant enlisted in the National Guard to do his military service. 44. On 23 July 1974 the applicant’s father was informed by Andreas Komodromos that the applicant had left Synchari with the men of the Headquarters Company and had gone to Aglandjia. 45. On 24 July 1974 Nikiforos Kominis with seventeen soldiers, including the applicant, set out from Aglandjia in two vehicles to reconnoitre the ground of the Koutsovendis-Vounos area. Three buses were seen driving along a street from the direction of Vounos village. An officer by the name of Votas ordered three or four soldiers to search the buses. The buses were full of Turkish soldiers who started firing at the Greek Cypriot men. The applicant was wounded in the right hand and on the left side of his ribs. Mr Andreas Komodromos cleaned his wounds with water, loaded his gun and told him to go back. After that the applicant was not seen again by his unit. 46. According to the statement of Yiannis Melissis, who had been a prisoner of the Turks at Adana and Amasia in September 1974, he happened to meet the applicant during his captivity. They both stayed with others in cell no. 9 until 18 September. They had chatted together every day and became friends. On 18 September Yiannis Melissis was brought back to Cyprus and was released on 21 September 1974. The applicant had given him a letter to pass on to his father but he left it in his pocket when he changed his clothes. All the clothes belonging to the prisoners were burned. 47. The second applicant in her statement mentioned that she had recognised her son in a photograph that was published in the Greek newspaper Athinaiki on 28 September 1974 and showed Cypriot prisoners being transported to Turkey on a Turkish destroyer in July 1974. 48. The first applicant, a car mechanic, was born in 1951; he has been considered missing since 1974. His father, the second applicant, was born in 1921 and resided in Strovolos. 49. In July 1974, in response to the general mobilisation, the first applicant enlisted as a reserve sergeant in the Headquarters Company of the 251 Infantry Battalion. 50. On 20 July 1974, all the men of the Headquarters Company, including the applicant, were trying to prevent the Turkish landing which was taking place in the area of “Pikro Nero”, Kyrenia. At around 12 noon on 21 July the Turkish military forces which had landed, supported by tanks and air cover, attacked the Cypriot forces that were defending the area. Owing to the superiority of the Turkish military forces in men and weapons the 251 Infantry Battalion was ordered to retreat towards Trimithi village. The applicant was present during the regrouping of the battalion. Two hours after the regrouping the commander of the battalion led his men out of Trimithi village, reaching a ravine between the villages of Ayios Georghios and Templos where they took up battle positions. A number of commandos of the 33rd Battalion arrived in the same ravine. At around 3 p.m. on 22 July 1974, Turkish military forces surrounded the Cypriot forces in the ravine and opened fire. The commander ordered a counterattack intending to break the Turkish military forces’ lines and retreat towards Kyrenia. No trace of the applicant was found during the counter-attack and retreat. 51. On 4 September 1974 the Special News Bulletin – a daily communication by the Turkish Cypriot administration – published a photograph of Greek Cypriot prisoners of war under the caption “Greek Cypriot prisoners of war having their lunch. Yesterday they were visited by a representative of the Turkish Red Crescent”. In that photograph the first applicant was identified by the second applicant. 52. A former prisoner, Mr Efstathios Selefcou, of Elio, now at Eylenja, in a signed statement to the Cypriot police said that during his transportation from Cyprus to Turkey he saw and talked to the first applicant, whom he knew very well since they had attended the same secondary school. 53. The first applicant, a bank employee, was born in 1938 and lived at Yialousa; he has been considered missing since 1974. His wife, the second applicant, was born in 1938 and resided in Nicosia. 54. On 18 August 1974 about three or four saloon cars, a bus and two tanks, all full of Turkish and Turkish Cypriot soldiers, turned up at Yialousa and stopped near the police station. The soldiers got out and ordered everyone to assemble at the nearby coffee house. About thirty-five persons gathered there. A Turkish officer told them that from that time they would be under Turkish administration and ordered them to make a census of the Greek Cypriot inhabitants of the village from the age of 7 to 70 and that he would be back on the following day to collect the lists. On the following day, the same civilian and military vehicles (tanks) returned. A number of Turks got out, marched to the coffee house and asked for the lists. Another group of Turkish soldiers was carrying out a house-to-house search. They imposed a curfew and, having taken the lists, they took with them for questioning nine persons, including the first applicant. They put them on a bus and drove them outside the village in the direction of Famagusta. 55. On the same day, Yialousa was visited by United Nations men to whom the arrest of the nine Greek Cypriots was reported by their co-villagers. 56. According to the applicants, representatives of the International Committee of the Red Cross (“the ICRC”) in Cyprus visited Pavlides Garage in the Turkish-occupied sector of Nicosia and on 28 August 1974 recorded the names of twenty Greek Cypriots held there, including the nine persons from Yialousa (they cited document EZY284D). Costas M. Kaniou, Sofronios Mantis and Ioannis D. Constantis also saw the said detainees at the Pavlides Garage, during the same period that they were detained there; they were released later. 57. On 27 August 1974 a group of Turkish Cypriot civilians came to Yialousa looking for Pentelis Pantelides, Loizos Pallaris, Michael Sergides and Christakis Panayides. Having found them, they led them to the Savings Bank. After having emptied two safes they ordered that the third one should be opened, but they were told that the keys were with the applicant. Subsequently they left, having shut and sealed the outside door. After ten to twelve days the same group looked for the same persons and went again to the bank building. They had the two keys for the safe, which the applicant always carried with him. Loizos Pallaris opened the safe. The keys were in a leather case which the applicant used to carry, but his personal keys had been removed. The Turkish Cypriots took the contents of the safe, sealed the gate and left. 58. The first applicant, a moulder, was born in 1955; he has been considered missing since 1974. His father, the second applicant, was born in 1928 and resided in Strovolos. 59. In 1974 the first applicant was doing his national service in the 70 Engineers Battalion stationed in Nicosia. On 5 August 1974 a section of the battalion, including the applicant, was sent on a mission in the Karavas and Lapithos area. The men spent the night at Lapithos and intended to complete their mission the following morning. At about 4.30 a.m. on 6 August 1974 the Turkish military forces launched a fullscale attack from all sides in the area of Karavas and Lapithos. The commander ordered his men to split up into three groups, withdraw towards Vasilia and meet there. On their way they were ambushed by the Turkish military forces and in the confusion dispersed. 60. Later Mr Costas Themistocleous of Omorphita, now of Nicosia, who was a prisoner at Adana Prison, saw there the applicant, whom he had known from his childhood; this was on or about 17 October 1974, while he was about to return to Cyprus. They did not speak to each other but waved. 61. The first applicant was born in 1947; he has been considered missing since 1974. His wife, the second applicant, was born in 1949 and resided in Limassol. 62. On 20 July 1974, following the general mobilisation, the first applicant enlisted as a reservist in the 399 Infantry Battalion. He was put in the Support Company. On 22 July the battalion moved to the Mia Milia area to reinforce the Greek Cypriot forces and to man outposts on the front line. 63. On the morning of 14 August 1974 Turkish military forces, supported by tanks and air cover, launched a heavy attack against the Greek Cypriot forces in the area, where the applicant was with his battalion. Owing to the superiority of the Turkish military forces the Greek Cypriot defence line was broken, the Turkish military forces advanced towards the Mia Milia area, and the Greek Cypriot forces began to retreat. The area was, in a short period of time, occupied by the Turkish military forces and the applicant was trapped within. No trace of the applicant has been found since. 64. An ex-prisoner of war, Mr Costas Mena of Palaekythro, now at Korakou, stated that during his detention at Antiyama Prison in Turkey he had seen the applicant, who was detained in cell no. 9. On 18 October 1974 all the prisoners at Antiyama Prison were taken to Adana Prison. There they were all lined up in four rows. A Turkish military officer picked out some of the prisoners, including the applicant, who were taken away. Mr Mena had not seen the applicant since. 65. The respondent Government disputed that the applicants had been taken into captivity by the Turkish army during the military action in Cyprus in 1974. They considered that the inevitable conclusion from the information provided in the application forms was that all the alleged “missing persons”, except Savvas Hadjipanteli, were military personnel who died in action during the period July to August 1974. 66. The respondent Government noted that, since the introduction of these applications, files relating to the same “missing persons” had been submitted by the Government of Cyprus to the United Nations Committee on Missing Persons (“the CMP”) in Cyprus during 1994 and 1995. In these files there were no assertions that these people had been seen in any of the prisons in Turkey. The names of the alleged witnesses listed in applications nos. 16064/90 (Christakis Ioannou), 16065/90 (Christodoulos Panyi), 16066/90 (Costas A. Sophocleous), 16068/90 (Nicos Nicolaou), 16069/90 (Yiannis Melissis), 16070/90 (Efstathios Selefcou), 16072/90 (Costas Themistocleous) and 16073/90 (Costas Mena) were not cited in support. The alleged sightings were therefore without foundation. 67. As regards Savvas Hadjipanteli (no. 16071/90), who was a civilian, the respondent Government noted that the ICRC had visited the Pavlides Garage where he had allegedly been held but his name, contrary to the applicants’ assertion, did not appear in the list of Greek Cypriots held. In any event, it was a transit centre where people were not held for more than a few days before being released or moved elsewhere. In the file submitted to the CMP, there was only a reference to witnesses seeing the key case which he was alleged to always carry on his person. The materials of the ICRC, who paid regular visits to prisoners and internees in Turkey, also showed that none of the alleged missing persons had been brought to Turkey or detained. All prisoners that had been taken to Turkey were repatriated between 16 September 1974 and 28 October 1974 and lists of those concerned had been handed over to the Greek Cypriot authorities. 68. As concerned the alleged identification of the missing persons in photographs, the Government pointed out that a scientific investigation of certain published photographs and documentary film had been carried out by Professor Pierre A. Margot of the Institute of Forensic Science and Criminology of the Law Faculty of the University of Lausanne at the request of the third member of the CMP. This had shown that it was extremely dubious that anyone could be identified from these documents and that any alleged identification by relatives was unreliable given the quality of the material and their emotional feelings. 69. The Government of Cyprus submitted that the first applicants went missing in areas under the control of the Turkish forces. 70. These two applicants had been brought with their units to the area of Mia Milia to man Cypriot outposts along the front line. On 14 August 1974 Turkish armed forces launched the attack which gained them control over the whole of northern and eastern Cyprus by 16 August 1974. When the Turkish forces broke through the Cypriot line of defence and advanced on Mia Milia, the Cypriot forces retreated and dispersed in all directions. The Turkish forces rapidly gained control of the entire surrounding area. Many Greek Cypriot soldiers, including the two applicants, were hemmed in and completely surrounded. They could not have escaped as the intervening Government would have known of their fate. 71. This applicant was in charge of the soldiers who were defending Lapithos. After the Turkish forces encircled Lapithos, the Greek Cypriot forces were ordered to retreat. The applicant’s group put on civilian clothing and unsuccessfully tried to break out of the village. When the Turkish forces entered the village the next morning, the applicant’s group dispersed to avoid capture. At about 9 p.m. on 6 August 1974, the applicant was seen by Nicos Th. Tampas in a warehouse tending a soldier with a head injury. Mr Tampas was later captured and detained. His was the last reported sighting of the first applicant. It was most likely that the first applicant had remained with the injured man and was taken into detention by the Turkish forces who were in control of the entire area. Only one man was known to have escaped from the village and he, unlike the first applicant, had local knowledge of the terrain. 72. Under attack from the Turkish army, the first applicant’s unit was ordered to split into three groups and withdraw westwards. The applicant’s group reached the Nicosia-Kyrenia road, 200 metres from the “Airkotissa” restaurant. The applicant and another man were sent to investigate shouting coming from the restaurant. After fifteen minutes when they did not return, the group left for Panagra. At the time that the applicant and the other soldier were sent to the restaurant, there were Turkish forces in the area. The most plausible explanation for the two men not returning, in the absence of any sound of fighting or shooting, was that they had been detained, either to prevent them giving away the Turkish positions, for information or as prisoners of war. 73. On 26 July 1974 the first applicant was discovered to be missing from his unit at roll call after they had broken through encircling Turkish forces. The area in which his unit had been stationed was captured by Turkish forces. Whatever happened to the applicant afterwards occurred in an area controlled by the Turkish forces. 74. This applicant was seen wounded in his right hand and on the left side of his ribcage after a clash between Greek Cypriot forces and three buses full of Turkish soldiers coming from Vounos village. His wounds were cleaned by a witness named Komodromos and he was told to make his way uphill with two other men, one of whom was also injured, to the monastery where the Greek Cypriot forces were. The other two men were discovered dead two days later when the Turkish forces withdrew. It was clear that the applicant had either been found dead by the Turkish forces or, as was more likely, found and detained in an injured condition. 75. This applicant was among those attempting to prevent the invasion of Kyrenia. Some individuals were identified as killed in the operation; the applicant was not among them. The intervening Government had no evidence that this applicant was dead. It had to be assumed that the applicant had been detained alive. 76. This was further corroborated by the photograph published in the Special News Bulletin, issued daily by the Turkish Cypriot administration, on 4 September 1974, of Greek Cypriot prisoners of war having their lunch. The first applicant was identified at the time by his father, the second applicant. 77. In their observations before the Grand Chamber, the intervening Government provided a copy of a statement dated 31 July 1976 by Efstathios Selefcou taken by a police officer which stated that while being carried as a prisoner on a ship from Cyprus to Turkey he had seen and spoken briefly to Eleftherios Thoma, whom he knew from school. They also provided a copy of the ICRC Central Tracing Agency sheet (ref. no. EZG 14023/2) according to which Thoma had been sighted in a Turkish army hospital in Mintzeli in mid-October 1974. The intervening Government explained that they had not provided this information to the CMP as it had no mandate to investigate outside the territory of Cyprus and a policy decision had been taken when submitting documents to the CMP on 7 June 1994 not to antagonise Turkey whose cooperation was necessary if the CMP was to begin effective operation. 78. By 16 August 1974 Turkish forces were in control of northern and eastern Cyprus, including the Karpas peninsula where the first applicant worked as general cashier in the Savings Bank in Yialousa. On 18 August Turkish and Turkish Cypriot soldiers arrived in the village and a Turkish officer ordered a census of the Greek Cypriots between 7 and 70 years of age. The next day, the lists were handed over and Turkish soldiers carried out searches. They left, taking with them on a bus, nine individuals, including the first applicant. This was reported by fellow villagers. 79. Turkish Cypriots came to the village in the circumstances reported by the applicants (see paragraphs 54-57 above). They had the two keys for a safe, which the first applicant always carried with him. It was highly probable that the Turkish Cypriots had obtained the keys by informing those holding the first applicant, showing that he was alive and in detention for at least nine days. There was some evidence that he was detained after those nine days, at least until 28 August 1974, at Pavlides Garage. 80. The list of persons seen by the ICRC detained at Pavlides Garage on 28 August 1974 included Savvis Kalli, which was the name under which this first applicant had been recorded (the first name being misspelled and the surname of his father (Kallis), as appearing on the first applicant’s identity card, also being misspelled). 81. An affidavit dated 6 November 2007 by Lakis N. Christolou, a lawyer of the firm representing the applicants in this application, was submitted to the Grand Chamber. It stated that the son of the missing man, Mr Georgios Hadjipanteli, recounted that at the end of 2005 he had met a Turkish Cypriot writer who had informed him that, while investigating disappearances, she had discovered evidence indicating that the nine missing persons from Yialousa had been buried near the Turkish Cypriot village of Galatia. When the son conveyed this information to the CMP he was informed that the inhabitants of Galatia had already given information to the CMP about the execution and burial of Greek Cypriot prisoners near their village. 82. This first applicant withdrew with his section from Lapithos towards Vasilia. They were ambushed by Turkish military forces and dispersed. There has been no news of the applicant since. The intervening Government had no knowledge of the first applicant, which meant that he had not escaped. Nor was there any evidence that he was killed in the ambush. It was more than likely that he had been detained by the Turkish armed forces. 83. In 2007, in the context of the activity of the CMP (see paragraphs 86-88 below), human remains were exhumed from a mass grave near the Turkish Cypriot village of Galatia in the Karpas area. After anthropological and genetic analyses, the remains of Savvas Hadjipanteli (named as the first applicant in application no. 16071/90) were identified, along with the remains of the other eight missing persons from Yialousa village and two other missing Greek Cypriots. The bodies of the nine missing persons from Yialousa were lined up next to each other in the grave, with two other bodies on top close to the ground surface. The forensic report dated 13 November 2007 detailed the process of exhumation and noted that it appeared to be a primary and synchronous burial site as the condition of the bodies indicated that they were buried while soft tissue was still present and placed in direct contact with each other. According to the report, the main object of the analysis of the human remains was their identification. 84. Several bullets from firearms were found in the grave. In regard to Savvas Hadjipanteli, the medical certificate for the cause of death, signed by a doctor on 12 July 2007, indicated bullet wounds to the skull and right arm and a wound to the right thigh. His family was notified and a religious funeral took place on 14 July 2007. 85. The CMP was officially set up in 1981. The following paragraphs are taken from the Commission’s Report in the fourth inter-State case (paragraphs 181-91): “181. ... According to its terms of reference, it ‘shall only look into cases of persons reported missing in the intercommunal fighting as well as in the events of July 1974 and afterwards’. Its tasks have been circumscribed as follows: ‘to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are alive or dead, and in the latter case approximate time of the deaths’. It was further specified that ‘the committee will not attempt to attribute responsibility for the deaths of any missing persons or make findings as to the cause of such deaths’ and that ‘no disinterment will take place under the aegis of this committee. The committee may refer requests for disinterment to the ICRC for processing under its customary procedures’. ‘All parties concerned’ are required to cooperate with the committee to ensure access throughout the island for its investigative work. Nothing is provided as regards investigations in mainland Turkey or concerning the Turkish armed forces in Cyprus. 182. The CMP consists of three members, one ‘humanitarian person’ being appointed by the Greek Cypriot side and one by the Turkish Cypriot side and the third member being an ‘official selected by the ICRC ... with the agreement of both sides and appointed by the Secretary-General of the United Nations’. 183. The CMP has no permanent chairman, the presidency rotating on a monthly basis between all three members. Decisions are to be taken by consensus to the extent possible. According to the procedural rules agreed upon in 1984, the procedure is to be conducted as follows: ‘1. Individual or collective cases will be presented to the CMP with all possible information. The CMP will refer each case to the side on whose territory the missing person disappeared; this side will undertake a complete research and present to the CMP a written report. It is the duty of the CMP members appointed by each side, or their assistants, to follow the enquiries undertaken on the territory of their side; the third member and/or his assistants will be fully admitted to participate in the enquiries. 2. The CMP will make case decisions on the basis of the elements furnished by both sides and by the Central Tracing Agency of the ICRC: presumed alive, dead, disappeared without visible or other traceable signs. 3. If the CMP is unable to reach a conclusion on the basis of the information presented, a supplementary investigation will be undertaken at the request of a CMP member. The third CMP member and/or his assistants will participate in each supplementary investigation, or, as the case may be, investigators recruited by the CMP with the agreement of both sides.’ 184. The 1984 rules state as ‘guiding principles’ that ‘investigations will be conducted in the sole interest of the families concerned and must therefore convince them. Every possible means will be used to trace the fate of the missing persons’. The families of missing persons may address communications to the committee which will be passed on to its appropriate member. That member will eventually provide the family with ‘final information as to the fate of a particular missing person’, but no interim information must be given by any member of the committee to the family of a missing person during the discussion of a particular case. 185. The committee’s entire proceedings and findings are strictly confidential, but it can issue public statements or reports without prejudice to this rule. According to the 1984 procedural rules, a press release will be issued at the close of a meeting or series of meetings and occasional progress reports will also be published. Individual members may make additional statements to the press or the media, provided they comply with the rule of confidentiality, avoid criticism or contradiction to the joint statement and any kind of propaganda. 186. Due to the strict confidentiality of the CMP’s procedure, no detailed information about the progress and results of its work is available. However, from the relevant sections of the regular progress reports on the UN Operation in Cyprus submitted by the UN Secretary-General to the Security Council it appears that the committee’s work started in May 1984 with a limited, equal number of cases on both sides (Doc. S/16596, of 1.6.1984, para. 51); that by 1986 an advanced stage had been reached in the investigation of the initial 168 individual cases, supplementary investigations being started in 40 cases in which reports had been submitted (Doc. S/18102/Add. 1, of 11 June 1986, para. 15); and that, while no difficulties were encountered as regards the organisation of interviews or visits in the field, real difficulties then arose by the lapse of time and, even more importantly, lack of cooperation by the witnesses. 187. This prompted the committee to issue a lengthy press release on 11 April 1990 (Doc. S/21340/Annex). There the committee stated that it considered the cooperation of the witnesses as absolutely fundamental, but that the witnesses were often reluctant, unwilling or unable to give full information as to their knowledge about the disappearance of a missing person. However, the committee could not compel a witness to talk. The explanation of the witnesses’ reluctance to testify was that they were afraid of incriminating themselves or others in disappearances, and this despite the witnesses being told by the committee that the information given would be kept strictly confidential and being reassured that they would ‘not be subject to any form of police or judicial prosecution’. The committee appealed to the parties concerned to encourage the witnesses to give the very fullest information in their knowledge. It further stated: ‘In order to further allay the fears of the witnesses, the committee, so as to give the strongest guarantees to the witnesses, is examining measures that could be taken to ensure that they would be immune from possible judicial and/or police proceedings solely in connection with the issue of missing persons and for any statement, written or oral, made for the committee in the pursuit of activities within its mandate.’ 188. In the same press release, the committee pointed out that it considered as legitimate the desire of the families to obtain identifiable remains of missing persons. However, despite systematic enquiries on burial places of missing persons, on both sides, it had not been successful in this respect. It recalled that according to its terms of reference it could not itself order disinterments. Moreover, while there was access to all evidence available, the committee had not reached the stage of finding a common denominator for the appreciation of the value of this evidence. Finally, the committee stated that it was considering the possibility of requesting that the two sides furnish it with basic information concerning the files of all missing persons, so as to allow it to have a global view of the whole problem. 189. In December 1990, the UN Secretary-General wrote a letter to the leaders of both sides observing that so far the committee had been given details on only about 15% of the cases and urging them to submit all cases. He further emphasised the importance of reaching consensus on the criteria that both sides would be ready to apply in their respective investigations. Moreover, the committee should consider modalities for sharing with affected families any meaningful information available (Doc. S/24050, of 31 May 1992, para. 38). On 4 October 1993, in a further letter to the leaders of both communities the UN Secretary-General noted that no improvement had been made and that the international community would not understand that the committee, nine years after it had become operational, remained unable to function effectively. Only 210 cases had been submitted by the Greek Cypriot side and only 318 by the Turkish Cypriot side. He again urged both sides to submit all cases without further delay and the committee to reach a consensus on the criteria for concluding its investigations (Doc. S/26777, of 22 November 1993, paras. 88-90). 190. On 17 May 1995 the UN Secretary-General, on the basis of a report of the CMP’s third member and proposals by both sides, put forward compromise proposals on criteria for concluding the investigations (Doc. S/1995/488, of 15 June 1995, para. 47), which were subsequently accepted by both sides (Doc. S/1995/1020, of 10 December 1995, para. 33). By December 1995, the Greek Cypriot side submitted all their case files (1493). However, the committee’s third member withdrew in March 1996 and the UN Secretary-General made it a condition for appointing a new one that certain outstanding questions, including classification of cases, sequence of investigations, priorities and expeditious collection of information on cases without known witnesses, be settled beforehand (Doc. S/1996/411, of 7 June 1996, para. 31). After being repeatedly urged to resolve these issues (Doc. S/1997/437, of 5 June 1997, paras. 24-25), both parties eventually came to an agreement on 31 July 1997 on the exchange of information on the location of graves of missing persons and return of their remains. They also requested the appointment of a new third member of the CMP (Doc. S/1997/962, of 4 December 1997, paras. 21 and 29-31). However, by June 1998, no progress had been made towards the implementation of this agreement. The UN Secretary-General noted in this context that the Turkish Cypriot side had claimed that victims of the coup d’état against Archbishop Makarios in 1974 were among the persons listed as missing and that this position deviated from the agreement (Doc. S/1998/488, of 10 June 1998, para. 23). 191. A new third member of the CMP had, by the time of the Commission’s report, been appointed (ibid. para. 24). The committee has not completed its investigations and accordingly the families of the missing persons have not been informed of the latter’s fate.” 86. From August 2006 the CMP began a substantial exhumation project on identified burial sites with a view to identifying the remains of bodies and ensuring their return to their families. A special unit to provide information to families was also set up. 87. According to the information provided by the respondent Government, 430 sets of remains had been located; 275 remains had been submitted for analysis and identification by the anthropological laboratory; since June 2007, 105 bodies had been identified (76 Greek Cypriots, 29 Turkish Cypriots); by 13 March 2008, 84 files of missing persons had been closed; by the date of the hearing, 5% of missing persons had been identified and their remains returned to their relatives for burial; by 10 September 2008, 180 sites had been visited by bi-communal teams (155 in the north, 25 in the south). 88. In the ongoing monitoring process concerning Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001IV), the Committee of Ministers looked at the question of missing persons and, inter alia: “2. considered that it was crucial that the current work of the CMP be carried out under the best possible conditions and without delay; 3. in consequence, while reaffirming that the execution of the judgment requires effective investigations, notes that these should not jeopardise the CMP’s mission; 4. considered that the sequence of measures to be taken within the framework of the effective investigations, and carrying out of the work of the CMP should take into consideration these two essential aims; 5. underlined in any event the urgent need for Turkish authorities to take concrete measures having in mind the effective investigations required by the judgment, in particular relating to the CMP’s access to all relevant information and places; 6. in that context, underlined, moreover the importance of preserving all the information obtained during the Programme of Exhumation and Identification carried out by the CMP; ...” 89. The Declaration provides, inter alia: “1. An act of enforced disappearance is an offence to human dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. 2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life.” “1. No State shall practise, permit or tolerate enforced disappearances. 2. States shall act at the national and regional levels and in cooperation with the United Nations to contribute by all means to the prevention and eradication of enforced disappearance.” “Each State shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction.” “1. Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remained unclarified. 2. When the remedies provided for in Article 2 of the International Covenant on Civil and Political Rights are no longer effective, the statute of limitations relating to acts of enforced disappearance shall be suspended until these remedies are re-established. 3. Statutes of limitations, where they exist, relating to acts of disappearance shall be substantial and commensurate with the extreme seriousness of the offence.” “The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependents shall also be entitled to compensation.” 90. The United Nations Working Group on Enforced or Involuntary Disappearance has issued, inter alia, the following General Comments on the above Declaration: “General Comment on Article 17 of the Declaration (E/CN.4/2001/68/18 December 2000) ... 27. Article 17 establishes fundamental principles intended to clarify the nature of enforced disappearances and their criminal consequences. The sense and general purpose of the Article is to ensure conditions such that those responsible for acts constituting enforced disappearance are brought to justice within a restrictive approach to statutory limitations. ... 28. The definition of ‘continuing offence’ (para. 1) is of crucial importance for establishing the responsibilities of the State authorities. Moreover, this Article imposes very restrictive conditions. The Article is intended to prevent perpetrators of those criminal acts from taking advantage of statutes of limitations. ...” “General Comment on Article 19 of the Declaration (5/CN.4/1998/43, 12 January 1998) 72. Article 19 also explicitly mentions the right of victims and their family to ‘adequate compensation’. States are, therefore, under an obligation to adopt legislative and other measures in order to enable the victims to claim compensation before the courts or special administrative bodies empowered to grant compensation. In addition to the victims who survived the disappearance, their families are also entitled to compensation for the suffering during the time of disappearance and in the event of the death of the victim, his or her dependants are entitled to compensation. 73. Compensation shall be ‘adequate’ i.e. proportionate to the gravity of the human rights violation (e.g. the period of disappearance, the conditions of detention, etc.) and to the suffering of the victim and the family. Monetary compensation shall be granted for any damage resulting from an enforced disappearance such as physical or mental harm, lost opportunities, material damages and loss of earnings, harm to reputation and costs required for legal or expert assistance. Civil claims for compensation shall not be limited by amnesty laws, made subject to statutes of limitation or made dependent on penal sanctions imposed on the perpetrators. 74. The right to adequate compensation for acts of enforced disappearance under Article 19 shall be distinguished from the right to compensation for arbitrary executions. In other words, the right of compensation in relation to an act of enforced disappearance shall not be made conditional on the death of the victim. ‘In the event of the death of the victim as a result of an act of enforced disappearance’, the dependants are, however, entitled to additional compensation by virtue of the last sentence of Article 19. If the death of the victim cannot be established by means of exhumation or similar forms of evidence, States have an obligation to provide for appropriate legal procedures leading to the presumption of death or a similar legal status of the victim which entitles the dependants to exercise their right to compensation. ... As a general principle, no victim of enforced disappearance shall be presumed dead over the objections of the family.” 91. This Convention provides, inter alia: “1. No one shall be subjected to enforced disappearance. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.” “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” “Each State Party shall take appropriate measures to investigate acts defined in Article 2 committed by persons or groups of persons acting without the authorisation, support or acquiescence of the State and to bring those responsible to justice.” “Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.” “The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.” “Without prejudice to Article 5, 1. A State Party which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings: (a) Is of long duration and is proportionate to the extreme seriousness of this offence; (b) Commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature. 2. Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation.” 92. This Convention provides, inter alia: “The States Parties to this Convention undertake: a. Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees; b. To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories; c. To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons; d. To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.” “For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the State or by persons or groups of persons acting with the authorisation, support, or acquiescence of the State, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.” “The States Parties undertake to adopt, in accordance with their constitutional procedures, the legislative measures that may be needed to define the forced disappearance of persons as an offense and to impose an appropriate punishment commensurate with its extreme gravity. This offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined ...” 94. In Blake v. Guatemala, the IACHR had to deal with the ratione temporis exception raised by the government in that case, since the disappearance itself had taken place before the critical date (acceptance of the compulsory jurisdiction in 1987). The court considered that forced disappearances implied the violation of various human rights and that the effects of such infringements – even though some may have been completed – “may be prolonged continuously or permanently until such time as the victim’s fate or whereabouts are established” (see Blake, 2 July 1996, preliminary objections, § 39). 95. Mr Blake’s fate or whereabouts were not known to his family until 14 June 1992, after the date on which Guatemala accepted the jurisdiction of the court. This led to the IACHR declaring itself competent ratione temporis to examine the “effects and actions” subsequent to the critical date. However, it accepted the government’s preliminary objection as regards the deprivation of Mr Blake’s liberty and his murder, which had been completed before the critical date and could not be considered per se to be continuous. 96. In its judgment on the merits (24 January 1998, p. 54), the IACHR considered the disappearance as marking the beginning of a “continuing situation”. It proceeded to examine the complaint under Article 8 in relation to Article 1 § 1 and declared that Guatemala had violated the right of Mr Blake’s relatives to have his disappearance and death effectively investigated, to have those responsible prosecuted and punished where appropriate, and to be compensated, notwithstanding the lack of temporal competence to deal with the substantive complaints. 97. The IACHR came to a similar conclusion in cases of disappearances in which the victim’s whereabouts had never been established. In Serrano- Cruz Sisters v. El Salvador (judgment of 23 November 2004, preliminary objections), the court found that it had no competence to examine, under Articles 4, 5 and 7 (right to personal liberty), the disappearances of the sisters as such, since they had allegedly taken place thirteen years before El Salvador had accepted the contentious jurisdiction of the court. It came to the same conclusion as regards the procedural violations invoked under Article 4 by the Inter-American Commission, since they were linked to the alleged forced disappearance (§ 95). However, the IACHR considered that all the facts that occurred following the critical date and which referred to Articles 8 and 25 of the Convention (filing of a petition for habeas corpus, criminal proceedings), were not excluded by the temporal limitation established by the State, since they constituted “independent facts” or “specific and autonomous violations concerning denial of justice” (§ 85). On the merits, it declared that the State had violated Articles 8 and 25 of the Convention, to the detriment of both sisters and their next of kin (judgment of 1 March 2005). 98. In a more recent judgment, Heliodoro Portugal v. Panama of 12 August 2008, the San José Court made a clear distinction between forced disappearances and extrajudicial killings for the purposes of its jurisdiction ratione temporis. The case concerned the forced disappearance in 1970 (twenty years before Panama accepted the compulsory jurisdiction of the court) of Heliodoro Portugal, whose remains were found in 2000. It considered that the victim should be presumed dead before the date of acceptance of the court’s jurisdiction (9 May 1990), with regard to the fact that twenty years had elapsed since his disappearance. It characterised the extrajudicial killing as an instantaneous act and accepted the government’s preliminary exception as regards the right to life (Article 4). However, with regard to the forced disappearance as such, it applied its previous case-law and found that it was a permanent or continuous violation, since it had been prolonged after the critical date until the victim’s remains were found in 2000. It was competent to examine the following violations arising out of the disappearance: the deprivation of liberty of the victim (Article 7), the violation of the relatives’ right to humane treatment (Article 5), the non-compliance with the obligation to investigate into the alleged disappearance, the failure to incriminate forced disappearances and tortures in domestic law and the failure to investigate and punish acts of torture. On the merits, the IACHR went on to find a violation of the right to liberty (Article 7) and a violation of Articles 1 and 2 of the Inter-American Convention on Forced Disappearance of Persons with regard to the deceased. It further found a breach of Articles 5 (right to humane treatment), 8 and 25 in respect of his relatives. 99. As regards forced disappearances, the HRC recognised “the degree of suffering involved in being held indefinitely without contact with the outside world” and held that they constituted “cruel and inhuman treatment” contrary to Article 7 of the International Covenant on Civil and Political Rights (“the Covenant”) with regard to the disappeared. Disappearances often resulted in breaches of the right to life, embodied in Article 6 of the Covenant. In General Comment No. 6 on the right to life, the HRC stated: “States Parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.” 100. In a number of cases, the HRC has found that a breach of Article 6 of the Covenant has occurred, but has been unable to make a final decision in that regard in the absence of confirmation of death. Disappearances may also lead to violations of Articles 9 (right to liberty and security of person), 10 (right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person) and 7 with regard to the relatives of the disappeared, in view of the stress, anguish and uncertainty caused by the disappearance. 101. The positive obligation to investigate disappearances (mentioned in the General Comment on the right to life) may also be breached in this type of case; in these situations there may be a breach of Article 2 § 3 (which enshrines the right to an effective remedy) in conjunction with Article 6. The HRC, in General Comment No. 31 on Article 2 §§ 2 and 3 of the Covenant, emphasised that the failure to investigate in respect of grave violations such as enforced disappearances or torture, as well as the failure to bring to justice perpetrators of such violations, could give rise to a separate breach of the Covenant. The Committee was thus empowered to find a violation of Articles 6, 7 and 9 read in conjunction with Article 2 § 3 of the Covenant. 102. However, when the disappearance occurred before the date that the Covenant or the Optional Protocol entered into force for a State, the approach of the HRC to whether it has temporal jurisdiction has evolved over recent years. 103. In the cases of missing persons in Argentina (S.E. v. Argentina, 4 April 1990), the Committee had found that Article 2 § 3 of the Covenant could not be violated by a State Party in the absence of jurisdiction over a substantive violation. In Maria Otilia Vargas v. Chile, 26 July 1999, the HRC declared the communication inadmissible ratione temporis in respect of the author’s son, whose body had never been recovered since his death in 1973. The Committee held that the Supreme Court’s judgment of 1995 rejecting the author’s complaint as regards the application of the 1978 amnesty decree could not be regarded as a new event that could affect the rights of a person who was killed in 1973, prior to the international entry into force of the Covenant and the entry into force of the Optional Protocol for Chile. 104. In Sarma v. Sri Lanka, 16 July 2003, the author alleged that his son had been removed by members of the military in June 1990 and was last seen in October 1991. Sri Lanka became a party to the Optional Protocol in October 1997 with a declaration limiting the Committee’s competence to facts arising after this date. The Committee found that although the initial abduction occurred outside their temporal jurisdiction “the alleged violations of the Covenant, if confirmed on the merits, may have occurred or continued after the entry into force of the Optional Protocol”. The Committee went on to find a violation of Articles 7 and 9 with regard to the son and Article 7 with regard to the author and his wife due to their anguish and stress at not knowing their son’s whereabouts. The HRC also emphasised that the State had a duty under Article 2 § 3 “to provide the author and his family with an effective remedy, including a thorough and effective investigation into the disappearance and fate of the author’s son ...” which implied that the State might have an obligation to investigate matters which had occurred before the entry into force of the Optional Protocol. Finally, it refrained from finding a violation of Article 6, since the author had not abandoned hope for his son’s reappearance. 105. However, in Yurich v. Chile, 2 November 2005, the Committee, although describing enforced disappearance as a continuing act, noted that the original acts of arrest and abduction, as well as the refusal to give information about the deprivation of freedom, had occurred before the entry into force of the Covenant for Chile. The HRC further considered that the author had made no reference to any action of the State after the crucial date (entry into force of the Optional Protocol) that would constitute “a confirmation of the enforced disappearance”. For these reasons, it declared the application inadmissible. 106. More recently in Mariam Sankara et al. v. Burkina Faso, 28 March 2006 (see Appendix III, p. 52), the HRC applied this act of confirmation approach, and also changed its analysis in considering a failure to investigate a death which had taken place prior to the critical date. Although it found that it had no jurisdiction ratione temporis over the death of Mr Sankara, it went on to consider the subsequent proceedings and failure to correct his death warrant (which stated the cause of death as natural) and their effect on Mr Sankara’s wife and two children. It found that there had been a failure to conduct an inquiry into Mr Sankara’s death, to prosecute those responsible and to conclude legal proceedings begun by the author to remedy this situation. It concluded that the proceedings had been prolonged at the fault of the authorities, the delay continuing after the entry into force of the Covenant and Optional Protocol. The authors were therefore affected by the authorities’ failures after this entry into force, and that gave the Committee with jurisdiction ratione temporis over the Article 7 claim. 107. On the merits, the Committee went on to find that “the refusal to conduct an investigation into the death of Thomas Sankara, the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. Sankara and her sons, in breach of Article 7 of the Covenant”.

dev

001-121777

ENG

HUN

CHAMBER

CASE OF GÁLL v. HUNGARY

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

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

5. The applicant was born in 1954 and lives in Szolnok. 6. The applicant, a civil servant for more than thirty years, had been in the service of the Hungarian Tax Authority. On 31 March 2011 she was dismissed, with effect from 1 June 2011. Her dismissal was part of a wave of similar measures throughout the entire civil service. 7. On dismissal, the applicant was statutorily entitled to two months’ salary for April and May 2011, during which time she was exempted from working. In addition, she was to receive severance pay amounting to twelve months’ salary in application of section 19(2) of Act no. XXIII of 1992 on the Status of Civil Servants (see paragraph 8 below). These benefits were subsequently taxed at 98% in their part exceeding 3,500,000 Hungarian forints (HUF). The exceeding part was HUF 3,903,529, the tax amounting to HUF 3,825,458. This represented an overall tax burden of approximately 60% on the entirety of the severance, as opposed to the general personal income tax rate of 16% in the relevant period. The tax amount in question was never disbursed to the applicant, but was withheld by the employer and directly transferred to the tax authority on 8 June 2011. 8. Section 19 of Act no. XXIII of 1992 on the Status of Civil Servants provides as follows: “(1) A civil servant ... shall be entitled to severance if his service relationship is terminated by ordinary dismissal ... . (2) The amount of severance shall be, if the civil servant’s service has been at least: ... g) 20 years: eight months’ salary ... The amount of severance shall be increased by four months’ salary if the service relationship is terminated within the five-year period prior to the civil servant’s qualification for old-age pension [section 19/A § 1(a)] or anticipated old-age pension.” 9. On 22 July 2010 Parliament adopted Act no. XC of 2010 on the Adoption and Modification of Certain Economic and Financial Laws (“the Act”). The Act, which was published in the Official Gazette on 13 August 2010, introduced inter alia a new tax on certain payments to employees in the public sector whose employment was terminated. Consequently, severance pay and other payments related to the termination of employment exceeding HUF 2 million became subject to a 98% tax. However, income tax and social security contributions already paid could be deducted from the tax. Notwithstanding the limit of HUF 2 million, the statutory provisions on the sum of severance pay – in some cases amounting to twelve months’ remuneration – were not modified. The bill preceding the Act justified the tax with reference to public morals and the unfavourable budgetary situation of the country. 10. The Act entered into force on 1 October 2010; however, the tax was to be applied to the relevant revenues as from 1 January 2010. Simultaneously, the Constitution was also amended, establishing retroactive tax liability in respect of the given tax year concerning “any remuneration against good morals” paid in the public sector. 11. The Act was challenged before the Constitutional Court within the framework of an abstract ex post facto control. This court found the relevant provisions unconstitutional in decision no. 184/2010. (X.28.)AB on 26 October 2010. According to the Constitutional Court, revenues earned solely on the basis of relevant statutory provisions (that is, the overwhelming majority of the revenues concerned by the disputed legislation) could not be regarded as being against good morals, and therefore not even the constitutional amendment justified a retroactive 98% tax. The Constitutional Court pointed out that it reviewed the rate or amount of taxes only exceptionally; however, it held that a pecuniary burden was unconstitutional if it was of a confiscatory nature or its extent was clearly exaggerated, i.e. was disproportionate and unjustified. Considering also the “fifty-percent rule” (Halbteilungsgrundsatz) set out by the German Federal Constitutional Court – according to which the overall tax load on assets must be limited to 50-60% of the yield on those assets – the court found that the 98% tax was excessive and punitive, yet it equally applied to severance pay earned in a fully untainted manner. The tax was levied on or deducted from the revenues concerned even if their morally doubtful origin could not be established. The Constitutional Court annulled the relevant provisions retroactively, that is, from the day of the Act’s entry into force. It relied on the above arguments, rather than on considerations about the protection of property, to which its scrutiny did not extend in the case. 12. The Constitutional Court’s decision contained in particular the following considerations: “5.2. ... [The Act] applies to ... payments originating in unconditional statutory entitlements and defined by objective criteria, that is, to those ... received from any source specified in the Act and exceeding the [relevant] amount .... The Act does not apply only to budgetary institutions but to other, State-owned employers as well. The use of private resources depends on the citizens’ relatively free choices and autonomous decisions. However, decisions concerning public funds are different. [The impugned legislation] relates to public funds, and determines – at least indirectly – the use of public resources. 5.3. ... Depending on the circumstances, [the] 98% tax may apply to payments which derive from the obligatory application of cogent legal provisions. ... In these cases, the special tax does not function as a regulatory instrument, given its inescapable factual basis. Nor does it aim to prevent abusive payments; its purpose is rather to levy almost the entire income [in question] for the central budget. ... The volume of public duties is considered unconstitutional if they have a confiscatory nature or amount to an evidently excessive rate of the kind which can be regarded as disproportionate and unjustified. ... The material case concerns a substantial punitive tax which also applies to payments which are received, by virtue of law and within the limits of the proper exercise of rights, upon the termination of employment in the public sector. The Act would be applied also in cases where no infringement of law can be established in connection with the payments concerning the termination of a legal relation. It would deprive the taxable persons of incomes originating in unconditional statutory entitlements. ... To increase budgetary revenues and secure a general and proportionate distribution of public burden is only the secondary and eventual purpose of the legislator when introducing such a tax. The direct purpose of the legislator in this case is to set a certain barrier on incomes by using the means of tax law. However, imposing a tax or other similar duty is no constitutional means to achieve such purpose. Several constitutional instruments are at the disposal of the legislator to accomplish its objective. It may reduce or even abolish some State allowances falling under the scope of the Act for the future, or transform the allocation system so that in the future it should not be possible to acquire further entitlements to allowances above a certain limit. Nonetheless, the discretion of the legislator only prevails in the framework of international and European community law.” 13. Upon a new bill introduced on the same day as the date of the Constitutional Court’s decision, on 16 November 2010 Parliament re-enacted the 98 % tax with certain modifications, according to which this tax applied from 1 January 2005; however, for the majority of those affected (excluding some senior officials) it only applied to revenues above HUF 3.5 million. The new legislation was published in the Official Gazette of 16 November and entered into force on 30 December 2010. 14. At the same time, Parliament again amended the Constitution, allowing retroactive taxation going back five years. Furthermore, the Constitutional Court’s powers were limited: the amended articles of the Constitution contained a restriction on the Constitutional Court’s right to review legislation on budgetary and tax issues. This restriction – which has also been maintained in the new Basic Law in force from 1 January 2012 – allows for constitutional review only in respect of violations of the right to life and human dignity, the protection of personal data, freedom of thought, conscience and religion, and the rights related to Hungarian citizenship. 15. Upon a petition for an abstract ex post facto control, on 6 May 2011 the Constitutional Court annulled – notwithstanding its limited powers – the five-year retroactive application of the 98% tax in decision no. 37/2011(V.10.)AB, relying on the right to human dignity. However, the reasoning of the decision underlined that only the taxation of revenues gathered before the 2010 tax year constituted a violation of the right to human dignity. The Constitutional Court did not find unconstitutional as such the Act’s presumption that the relevant revenues infringed good morals; however, it ruled that this presumption should be susceptible to a legal challenge. In view of its limited jurisdiction, it did not consider the substantive aspects of the tax. 16. The Constitutional Court’s decision contained in particular the following considerations: “1. ... The Constitutional Court has held that the retroactive effect of the Act does not only apply to incomes earned contra bonos mores, but also to incomes originating in unconditional statutory entitlements. Payments of statutory amounts [which have not been abolished] cannot be regarded as being contra bonos mores. As regards the prospective provisions of the Act, the Constitutional Court has pointed out that the tax in issue is also applicable to payments received legally and within the limits of proper exercise of rights upon termination of employment in the public sector, and that it deprives the persons concerned of incomes originating in unconditional statutory entitlements. However, in this case the legislator interpreted the “special rate” as an entire withdrawal of the income, by which it overstepped its constitutional mandate and breached the amended constitutional rule of distributing public burden. 2. In pursuit of decision [no. 184/2010 (X.28.)AB], Parliament amended the rules on the Constitutional Court’s competence as well as the provision of the Basic Law determining the distribution of public burden, and re-enacted the special tax. ... 2.2. ... [The new legislation] contains no reference to the notion “contra bonos mores”, and allows for retroactive law-making with regard to the fifth tax year in arrears as well as for [any] imposition falling short of [the total] deprivation of income. ... 4.1.1. ... The legal relations falling under the scope of the special tax are typically regulated by the so-called “legal status” Acts [i.e. the Acts concerning the legal status of civil servants]. [In this context, the] salary is specified by the so-called “pay scale”, which is independent from the parties and obligatory for them. [Moreover,] the personal scope of the special tax also includes employers and employees, mainly those who belong under the Labour Code, who can significantly influence the amount of the allowance received upon the termination of employment. ... In this respect, the special tax is a tax whose purpose is not to generate [State] revenue. It is, in this connection, a regulatory instrument. ... Certain taxes may serve not only the purpose of increasing State revenue, but also function as regulatory instruments. Secondarily, but not insignificantly, [this] taxation can be also seen as part of the State’s economic policy. In this regard the legislature is afforded an exceptionally broad constitutional margin of discretion. ... 4.1.4. ... The special tax is not a general income tax applicable to all types of income, but rather a particular tax levied on non-repetitive, non-regular payments which relate to certain factual circumstances (i.e. the termination of a legal relation) and which exceed a certain limit. ... Such a tax with ex nunc effect cannot be considered to violate the right to protection of human dignity or to constitute an improper interference by the State with individual autonomy. Taking into account its base, the incomes not belonging in that base and their amounts, the special tax cannot be considered as completely dispossessing the tax subjects. ... The individual’s acquisition of the income subject to the special tax is restricted by a public-law limitation originating in that tax ... 4.2.4. ... In case of misuse of public resources, the limitation on payments might even have retroactive effect, [under] section 70/I (2) of the Constitution. The Constitutional Court has already emphasised in its decision [no. 184/2010 (X.28.)AB] that a retroactive special tax may be imposed on unfairly high payments, on certain types of severance pay or on compensation for significant periods of unused vacation time accumulated over years; the Act aiming at preventing abuses and endorsing the society’s sense of justice is not unconstitutional in itself, but must remain within the framework of the amended Constitution. 4.2.5. However, to impose tax on incomes [lawfully] acquired during the tax year ... cannot be considered as the implementation of the new paragraph (2) of section 70/I of the Constitution, but rather interference by a public authority with individual autonomy going to such lengths that cannot have constitutional justification, and therefore violates the taxpayers’ human dignity. ... The special tax does not provide for a fair and just assessment of individual circumstances; its retroactive rules apply to everyone [with two exceptions mentioned above] without differentiation. Nor does it take into account objective circumstances concerning a wide range of taxpayers, such as the economic crisis or emergency situations, which may disadvantageously influence the individuals’ circumstances. ...” 17. On 9 May 2011 Parliament again re-enacted the retroactive application of the 98% tax. The amendment to Act no. XC of 2010 was published in the Official Gazette on 13 May and entered into force on 14 May 2011. It provided that only relevant revenues earned after 1 January 2010 should be subject to the tax. The amended legislation did not contain any remedy available to those affected. 18. The Act, as in force as of 14 May 2011, provides (in sections 8-12/B) that the special tax rules are applicable to incomes received on 1 January 2010 or after. Incomes shall be subject to a 98% special tax where the private individual has worked at an economic operator or an organisation operating from public money, the payment is effected on account of the termination of the private individual’s work relationship, and the amount of the income exceeds HUF 3.5 (in certain cases 2) million. Incomes received between 1 January 2010 and 29 December 2010 were declared by private individuals by means of self-assessment, in tax returns submitted by 25 February or 10 May 2011 (depending on the taxpayer group). The tax was payable by the same dates. Members of Parliament, vice mayors and Members of the European Parliament declared their income earned in 2010 and subject to the special tax in a different manner, in a separate tax return submitted by 31 July 2011. They paid the special tax by the same date. Persons subjected to the payment of special tax declared their taxable incomes earned between 1 January 2011 and 13 May 2011 by way of tax returns submitted by 25 February or 20 May 2012 (depending on the taxpayer group), and paid the tax by the same dates. In all other cases, the special tax is deducted by the payment issuer as withholding tax, and the deduction is indicated in the private individual’s tax return for the given revenue year. Any charges paid by or deducted from the private individual including, in particular, personal income tax or individual contributions shall be regarded as tax advances paid on the special tax. 19. The Charter of Fundamental Rights of the European Union provides as follows: “1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.” The European Court of Justice held in Case C-499/08 Andersen v Region Syddanmark, [2010] ECR I-09343 as follows: “29. The aim pursued by the severance allowance of protecting workers with many years of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article 6(1) of Directive 2000/78.” European Commission Recommendation of 30 April 2009 on remuneration policies in the financial services sector (2009/384/EC) provides as follows: “1. Excessive risk-taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member States and globally.... 5. Creating appropriate incentives within the remuneration system itself should reduce the burden on risk management and increase the likelihood that these systems become effective. Therefore, there is a need to establish principles on sound remuneration policies.” In the case Michel Bourgès-Maunoury, Marie-Louise Heintz v Direction des services fiscaux d’Eure-et-Loir concerning the compatibility with European Union primary law of a national provision on the procedure for calculating a wealth tax, Advocate General Cruz Villalón reiterated that the principle that rules governing tax law and the exercise of fiscal power must not have confiscatory effects is a “well-known and widely-recognised idea” (Case C558/10, Michel BourgèsMaunoury, Marie-Louise Heintz v. Direction des services fiscaux d’Eure-et-Loir 12 Dec 2011, OJ C-46, 12, Opinion of AG Villalón). 20. In a judgment of 22 June 1995, the Federal Constitutional Court held that, according to Article 14 of the Basic Law, the use of property served the purpose of private gain and the public good. In that sense, property tax, combined with other taxes, might take no more than 50% of the income from property (Halbteilungsgrundsatz). The overall tax burden should moreover not run counter to the principle of equality demanding the division of burden depending on the contributing capacity (BVerfG, 2 BvL 37/91, 22.6.1995). In its subsequent decision of 18 January 2006 (BVerfG, 2 BvR 2194/99, 18.01.2006), the Federal Constitutional Court found that even though tax load fell within the ambit of Article 14 of the Basic Law, that is, the protection of property, the overall burden through business and personal income tax, in the particular circumstances, did not infringe the complainant’s right to property. In the instant case the overall tax burden in business and personal income tax combined amounted to 57.58%. The Federal Constitutional Court noted in this regard that it was permissible to charge high income with higher tax burden, as long as the taxable person, after deduction of the relevant tax, disposed of a remaining income representing his private performance. 21. In decision no. 2007-555 DC (16 August 2007; Act pertaining to work, employment and purchasing power), the Conseil constitutionnel held as follows: “24o The requirement deriving from Article 13 of the declaration of 1789 would not be complied with if taxation were to be of a confiscatory nature or subjected a certain category of taxpayers to an excessive burden in comparison with their ability to pay taxes. The principle of the capping of the proportion of a tax household’s income allocated to paying direct taxes, far from infringing the principle of equality before public burden sharing, is intended to avoid a patent infringement of this same principle;” 22. The Federal Supreme Court held that a taxation scheme that is confiscatory in its effects and not limited in time would infringe the essence of the right to property (Decisions of the Federal Supreme Court, BGE 106 Ia 342, 349; BGE 128 II 112, 126). To date, the Federal Supreme Court has not found that any taxation scheme was confiscatory. Decision no. BGE 128 II 112, 126 contains the following passage: “10 bb) ... In taxation matters, however, it [the guarantee of property, as set out in Article 26 of the Federal Constitution] does not go beyond the prohibition of confiscatory taxation. Therefore, a tax to be levied may not damage the very essence of private property. It is the task of the legislative branch to preserve the substance of the taxpayer’s assets and to allow him the chance to create new ones. In fact, a tax rate expressed in percentages is not the only decisive criterion in order to determine whether a taxation scheme has a confiscatory effect. It is necessary to examine the burden of the imposition for a rather long period and by not taking into account extraordinary circumstances. In order to accomplish this, all specific facts must be taken into consideration: the length and the gravity of the interference as well as the accumulation with other taxes or charges and the possibility to shift the tax to another person ...”. Decision of the Federal Supreme Court no. 2P.139/2004 contains the following passage: “4.2 The Federal Supreme Court has held that it is not compatible with Article 26 of the Federal Constitution if an annuity for life, inherited by bequest, of initially CHF 2200 per month is – regardless of the ability to pay other taxes of the person in receipt of the pension –taxed at 55 % in total, in terms of inheritance and income taxes as well as other expenses, which (taking into account of the tax sum due for over CHF 200,000) were necessary for their financing (Decision P.1704/1984, published in: ASA 56 p. 439 et seq.). In that specific case the specific circumstances were relevant because the heir could not secure her own existence after paying the taxes for the annuity for life.” 23. In United States v. Lovett, 328 U.S. 303, 315 (1946) the Supreme Court dealt with the following problem: According to the provisions of the Urgent Deficiency Appropriation Act, after 15 November 1943 no salary or compensation was to be paid to certain individuals, who were then government employees, out of any moneys then or thereafter appropriated, except for services as jurors or members of armed forces unless they were prior to that date again appointed to jobs by the President with advice and consent of the Senate. In the background of the statute challenged lay the House of Representatives’ feeling that in the late 1930s many ‘subversives’ were occupying influential positions in the Government and elsewhere and that their influence must not remained unchallenged. In 1943 the respondents, Lovett, Watson and Dodd, were and had been for several years working for the Government. The Government agencies which had lawfully employed them were fully satisfied with the quality of their work and wished to keep them employed in their jobs. The Supreme Court held that the purpose of the provision challenged was not merely to cut off the petitioners’ compensation through regular disbursing channels, but permanently to bar them from government service and it was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency. The Supreme Court reiterated that the Constitution barred such legislative acts by providing that “no Bill of Attainder or ex post facto Law shall be passed”. It found that the relevant provision was designed to apply to particular individuals and operated as a legislative decree of perpetual exclusion from a chosen vocation. It ruled that this permanent proscription from any opportunity to serve the Government was punishment of those individuals without a judicial trial and thus carried the usual characteristics of bills of attainder. The Supreme Court found that “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are ‘bills of attainder’ prohibited by the Constitution”. The subject matter of the case Armstrong v. United States, 364 U.S. 40, 49 (1960) was as follows: The petitioners (Armstrong and al.) furnished various materials to Rice for use in construction of boats. Upon Rice’s default, the Government exercised its option as to ten of the boat hulls still under construction and removed these properties to out-of-state naval shipyards for use in the completion of the boats. When the transfer occurred, the petitioners had not been paid for their materials and they were not paid afterwards, either. The petitioners therefore contended that they had liens. The Supreme Court held “that there was a taking of these liens for which just compensation is due under the Fifth Amendment. It is true that not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense. This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable ‘takings’ and what destructions are ‘consequential’ and therefore not compensable... The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A fair interpretation of this constitutional protection entitles these lienholders to just compensation here.” In Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) the Supreme Court held that the Coal Industry Retiree Health Benefit Act 1992 amounted to an unconstitutional regulatory taking of property. It held that the economic impact of the Act was substantial as to the petitioner, in that it required Eastern Enterprises to contribute large sums of money to a pension fund for employees employed in the 1950s and 1960s solely because those payments could not be allocated to other coal companies that were currently operating in the coal industry. The retroactive effect of the Act imposed a substantial economic injury on Eastern Enterprises that could not have been anticipated. Moreover, the challenged statute interfered with Eastern Enterprises’ expectations in that in 1987 the company sold off its remaining holdings in coal operations and completely quitted this industry. The statute’s requirement for Eastern Enterprises to undertake the obligation at issue clearly interfered with the expectations of Eastern when it sold off its interest in coal operations. Lastly, the nature of the government action was unusual because it retroactively applied a substantial economic burden on Eastern Enterprises. For the Supreme Court, the character of the government action was substantial and invasive. The balance of the factors resulted in the finding of an unconstitutional taking requiring just compensation.

dev

001-76307

ENG

DEU

GRANDCHAMBER

CASE OF JALLOH v. GERMANY

Violation of Art. 3;No separate issue under Art. 8;Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Alvina Gyulumyan;András Baka;Christos Rozakis;Elisabet Fura;Georg Ress;Giovanni Bonello;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Khanlar Hajiyev;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Rait Maruste;Snejana Botoucharova

9. The applicant was born in 1965 and lives in Cologne (Germany). 10. The facts of the case, as submitted by the parties, may be summarised as follows. 11. On 29 October 1993 four plain-clothes policemen observed the applicant on at least two different occasions take a tiny plastic bag (a socalled “bubble”) out of his mouth and hand it over to another person in exchange for money. Believing that these bags contained drugs, the police officers went to arrest the applicant, whereupon he swallowed another bubble he still had in his mouth. 12. The police officers did not find any drugs on the applicant. Since further delay might have frustrated the conduct of the investigation, the public prosecutor ordered that emetics (Brechmittel) be administered to the applicant by a doctor in order to provoke the regurgitation of the bag (Exkorporation). 13. The applicant was taken to a hospital in Wuppertal-Elberfeld. According to the Government, the doctor who was to administer the emetics questioned the applicant about his medical history (a procedure known as obtaining an anamnesis). This was disputed by the applicant, who claimed that he had not been questioned by a doctor. As the applicant refused to take the medication necessary to provoke vomiting, he was held down and immobilised by four police officers. The doctor then forcibly administered to him a salt solution and the emetic ipecacuanha syrup through a tube introduced into his stomach through the nose. In addition, the doctor injected him with apomorphine, another emetic that is a derivative of morphine. As a result, the applicant regurgitated one bubble containing 0.2182 grams of cocaine. Approximately an hour and a half after being arrested and taken to the hospital, the applicant was examined by a doctor and declared fit for detention. 14. When visited by the police in his cell two hours after being given the emetics, the applicant, who was found not to speak German, said in broken English that he was too tired to make a statement about the alleged offence. 15. Pursuant to an arrest warrant that had been issued by the Wuppertal District Court, the applicant was remanded in custody on 30 October 1993. 16. The applicant maintained that for three days following the treatment to which he was subjected he was only able to drink soup and that his nose repeatedly bled for two weeks because of wounds he had received when the tube was inserted. This was disputed by the Government, who stressed that the applicant had failed to submit a medical report to prove his allegation. 17. Two and a half months after the administration of the emetics, the applicant underwent a gastroscopy in the prison hospital after complaining of continuous pain in the upper region of his stomach. He was diagnosed as suffering from irritation in the lower area of the oesophagus caused by the reflux of gastric acid. The medical report did not expressly associate this condition with the forced administration of the emetics. 18. The applicant was released from prison on 23 March 1994. He claimed that he had had to undergo further medical treatment for the stomach troubles he had suffered as a result of the forcible administration of the emetics. He did not submit any documents to confirm that he had received medical treatment. The Government, for their part, maintained that the applicant had not received any medical treatment. 19. In his submissions dated 20 December 1993 to the Wuppertal District Court, the applicant, who was represented by counsel throughout the proceedings, objected to the use at his trial of the evidence obtained through the administration of emetics, a method he considered to be illegal. By using force to provoke the regurgitation of the bubble of cocaine, the police officers and the doctor concerned were guilty of causing him bodily harm in the course of their duties (Körperverletzung im Amt). The administration of toxic substances was prohibited by Article 136a of the Code of Criminal Procedure (see paragraph 34 below). His bodily functions had been manipulated, since bodily activity had been provoked by suppressing the control reactions of the brain and the body. In any event, administering emetics was a disproportionate measure and therefore not authorised by Article 81a of the Code of Criminal Procedure (see paragraphs 33 and 35-40 below). It would have been possible to obtain evidence of the alleged offence by waiting for the bubble to pass through his system naturally. The applicant further argued that the only other method authorised by Article 81a of the Code of Criminal Procedure would have been irrigation of the stomach. 20. On 23 March 1994 the Wuppertal District Court convicted the applicant of drug trafficking and sentenced him to one year’s imprisonment, suspended, and probation. It rejected the defence’s argument that the administration of emetics under Article 81a of the Code of Criminal Procedure was a disproportionate means of recovering a bubble containing just 0.2 g of cocaine. 21. The applicant appealed against the judgment. 22. On 17 May 1995 the Wuppertal Regional Court upheld the applicant’s conviction but reduced the length of the suspended prison sentence to six months. It further ordered the forfeiture (Verfall) of 100 German marks that had been found on the applicant at the time of his arrest on the ground that it was the proceeds of sale of two drug bubbles. 23. The Regional Court found that the evidence obtained following the public prosecutor’s order to provoke the regurgitation of the bubble of cocaine was admissible. The measure had been carried out because further delay might have frustrated the conduct of the investigation. Pursuant to Article 81a of the Code of Criminal Procedure, the administration of the substances in question, even if effected against the suspect’s will, was legal. The procedure had been necessary to secure evidence of drug trafficking. It had been carried out by a doctor and in compliance with the rules of medical science. The defendant’s health had not been put at risk and the principle of proportionality had been adhered to. 24. The applicant appealed against this judgment on points of law. He argued in particular that Article 81a of the Code of Criminal Procedure did not authorise the administration of emetics, as it did not permit the administration of life-threatening substances by dangerous methods. Furthermore, Article 81a prohibited measures such as the one in question that resulted in a suspect effectively being forced to contribute actively to his own conviction. He further submitted that the impugned measure had violated Articles 1 and 2 of the Basic Law (Grundgesetz – see paragraphs 31-32 below), and disregarded in particular the right to respect for human dignity. 25. On 19 September 1995 the Düsseldorf Court of Appeal dismissed the applicant’s appeal. It found that the Regional Court’s judgment did not contain any error of law that was detrimental to the accused. 26. The applicant lodged a complaint with the Federal Constitutional Court. He reiterated that the administration of emetics was a disproportionate measure under Article 81a of the Code of Criminal Procedure. 27. On 15 September 1999 the Federal Constitutional Court declared the applicant’s constitutional complaint inadmissible under the principle of subsidiarity. 28. It considered that the administration of emetics, including apomorphine, a morphine derivative, raised serious constitutional issues with respect to the right to physical integrity (Article 2 § 2 of the Basic Law – see paragraph 32 below) and to the principle of proportionality which the criminal courts had not yet addressed. 29. The Federal Constitutional Court found that the applicant had not availed himself of all the remedies at his disposal (alle prozessualen Möglichkeiten) to contest the measure before the criminal courts in order to avoid any underestimation of the importance and scope of the fundamental right laid down in Article 2 § 2, first sentence, of the Basic Law (um eine Verkennung von Bedeutung und Tragweite des Grundrechts des Art. 2 Abs. 2 Satz 1 GG zu verhindern). 30. It further stated that the administration of emetics did not give rise to any constitutional objections of principle either with respect to human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination guaranteed by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. 31. Article 1 § 1 of the Basic Law reads as follows: “The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.” 32. Article 2, in so far as relevant, provides: “1. Everyone shall have the right to the free development of their personality provided that they do not interfere with the rights of others or violate the constitutional order or moral law [Sittengesetz]. 2. Every person shall have the right to life and physical integrity. ...” 33. Article 81a of the Code of Criminal Procedure, in so far as relevant, reads as follows: “1. A physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. To this end, blood samples may be taken and other bodily intrusions effected by a doctor in accordance with the rules of medical science for the purpose of examination without the accused’s consent, provided that there is no risk of damage to his health. 2. Power to make such an order shall be vested in the judge and, in cases in which delay would jeopardise the success of the examination, in the public prosecutor’s office and officials assisting it ...” 34. Article 136a of the Code of Criminal Procedure on prohibited methods of interrogation (verbotene Vernehmungsmethoden) provides: “1. The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception or hypnosis. Coercion may be used only in so far as it is permitted by the law on criminal procedure. Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited. 2. Measures which impair the accused’s memory or ability to understand and accept a given situation [Einsichtsfähigkeit] shall not be permitted. 3. The prohibition under sub-paragraphs 1 and 2 shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.” 35. German criminal courts and legal writers disagree as to whether Article 81a of the Code of Criminal Procedure authorises the administration of emetics to a suspected drug dealer who has swallowed drugs on arrest. 36. The view taken by the majority of the German courts of appeal (see, inter alia, the decision of the Bremen Court of Appeal of 19 January 2000, NStZ-RR 2000, p. 270, and the judgment of the Berlin Court of Appeal of 28 March 2000, JR 2001, pp. 162-64) is that Article 81a of the Code of Criminal Procedure can serve as a legal basis for the administration of emetics in such circumstances. 37. For example, in its judgment cited above, the Berlin Court of Appeal had to deal with the case of a suspected drug dealer who agreed to swallow ipecacuanha syrup after being threatened with its administration through a nasogastric tube if he refused. It found: “Pursuant to Article 81a § 1, first sentence, of the Code of Criminal Procedure, a physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. ... (a) Contrary to the view taken by the appellant, legal commentators are almost unanimous in agreeing that the administration of emetics in order to obtain quantities of drugs the accused has swallowed involves a bodily intrusion within the meaning of that provision (see HK-Lemke, StPO, 2nd edition, § 9; Dahs in LöweRosenberg, StPO, 24th edition, § 16; KK-Senge, StPO, 4th edition, §§ 6, 14; see, with regard to Article 81a of the Code of Criminal Procedure, Rogall, SKStPO, Article 81a, § 48 and NStZ 1998, pp. 66-67, and Schaefer, NJW 1997, pp. 2437 et seq.; contrast Frankfurt Court of Appeal, NJW 1997, p. 1647 with note by Weßlau, StV 1997, p. 341). This intrusion also does not violate human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination contained in Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. Pursuant to Article 2 § 2, third sentence, of the Basic Law, interferences with these basic rights are permitted if they have a statutory basis. The Federal Constitutional Court has already found on several occasions that, as a statutory provision enacted by Parliament, Article 81a of the Code of Criminal Procedure meets this requirement ... Furthermore, it has found more specifically that the administration of emetics in reliance on that provision did not give rise to any constitutional objections of principle either (see Federal Constitutional Court, StV 2000, p. 1 – the decision in the present case). It did not, therefore, find it necessary to discuss in detail the opinion expressed by the Frankfurt (Main) Court of Appeal (NJW 1997, pp. 1647-48) which is occasionally shared by legal writers (see Weßlau, StV 1997, pp. 341-42), ... that the administration of emetics forces the accused to contribute to his own conviction and to actively do something he does not want to, namely regurgitate. This Court does not share the [Frankfurt Court of Appeal’s] view either, as the right of an accused to remain passive is not affected by his or her having to tolerate an intervention which merely provokes ‘involuntary bodily reactions’. ... (e) ... this Court does not have to decide whether the evidence obtained by the administration of emetics may be used if the accused has refused to comply with his duty to tolerate the measure and his resistance to the introduction of a tube though the nose has been overcome by physical force. That point is not in issue in the present case ... The Regional Court ... stated that [on the facts of] the case decided by the Frankfurt (Main) Court of Appeal it too would have excluded the use of the evidence obtained because of the clearly disproportionate nature of the measure. It did, however, expressly and convincingly demonstrate that the facts of the present case were different.” 38. In its judgment of 11 October 1996, however, the Frankfurt (Main) Court of Appeal held that Article 81a of the Code of Criminal Procedure did not authorise the administration of emetics. The case concerned the administration of an overdose of ipecacuanha syrup to a suspected drug dealer by force through a nasogastric tube and his injection with apomorphine. The court found: “The forced administration of emetics was not covered by the Code of Criminal Procedure. Even Article 81a does not justify the administration of an emetic by force. Firstly, the administration of an emetic constitutes neither a physical examination nor a bodily intrusion carried out by a doctor for examination purposes within the meaning of that provision. It is true that searching for foreign objects may be justified by Article 81a ... However, the emetic was used not to search for foreign objects, but to retrieve objects – whose presence was at least probable – in order to use them in evidence ... This aim was more akin to searching for or seizing an object within the meaning of Articles 102, 94 et seq. of the Code of Criminal Procedure than to a physical examination ... – although those provisions do not, on the face of it, include forcible interference with a person’s physical integrity as a possible measure. ... Secondly, an accused is not the object of criminal proceedings ... The forced administration of emetics violates the principle of passivity [Grundsatz der Passivität], since its purpose is to force the accused actively to do something that he is unwilling to do, namely regurgitate. This is neither permitted under Article 81a of the Code of Criminal Procedure nor compatible with the position of the accused in criminal proceedings. ... Consequently, the conduct of the prosecuting authorities constitutes unlawful interference with the accused’s physical integrity (Article 2 § 1, first sentence, of the Basic Law). ... The forcible administration of emetics in the absence of any legal basis therefor also violates the duty to protect human dignity and the accused’s general personality rights (Articles 1 § 1 and 2 § 1 of the Basic Law). ... The prohibition on obtaining the evidence [in that manner] ...” 39. According to many legal writers, Article 81a of the Code of Criminal Procedure authorises the administration of emetics to suspected drug dealers in order to obtain evidence (see also the authors cited above at paragraph 37). This view is taken, for example, by Rogall (NStZ 1998, pp. 66-68 and Systematischer Kommentar zur Strafprozeßordnung und zum Gerichtsverfassungsgesetz, München 2005, Article 81a StPO, § 48) and by Kleinknecht and Meyer-Goßner (StPO, 44th edition, Article 81a, § 22 – administration of emetics permitted for the investigation of serious offences). 40. A considerable number of legal writers, however, take the view that the Code of Criminal Procedure, Article 81a in particular, does not permit the administration of emetics. This opinion is held, for example, by Dallmeyer (StV 1997, pp. 606-10, and KritV 2000, pp. 252-59), who considers that Article 81a does not authorise a search – as opposed to an examination – of the interior of a defendant’s body. Vetter (Problemschwerpunkte des § 81a StPO – Eine Untersuchung am Beispiel der Brechmittelvergabe im strafrechtlichen Ermittlungsverfahren, Neuried 2000, pp. 72-82, 161) considers that the forcible administration of emetics through a nasogastric tube is irreconcilable with the rules of medical science, disproportionate and liable to damage the defendant’s health. 41. Medical experts disagree as to whether the forcible administration of emetics through the insertion of a nasogastric tube is advisable from a medical point of view. While some experts consider that emetics should be administered to a suspect in order to protect his health even if he resists such treatment, others take the view that such a measure entails serious health risks for the person concerned and should not therefore be carried out. 42. The medical experts who argue in favour of the forcible administration of emetics stress that even if this measure is not primarily carried out for medical reasons, it may nevertheless serve to prevent a possibly life-threatening intoxication. As the packaging of drugs swallowed on arrest is often unreliable, it is preferable from a medical standpoint for emetics to be administered. This measure poses very few risks, whereas there is a danger of death if the drugs are allowed to pass through the body naturally. Drugs can be extracted from the stomach up to one hour, in some cases two, after being swallowed. Administering emetics is a safe and fast method (the emetic usually takes effect within 15 to 30 minutes) of retrieving evidence of a drugs offence, as it is rare for them not to work. Even though the forcible introduction of a tube through the nose can cause pain, it does not pose any health risks as the act of swallowing can be induced by the mechanical stimulus of the tube in the throat (see, inter alia, Birkholz, Kropp, Bleich, Klatt and Ritter, “Exkorporation von Betäubungsmitteln – Erfahrungen im Lande Bremen”, Kriminalistik 4/97, pp. 277-83). 43. The emetic ipecacuanha syrup has a high margin of safety. Sideeffects to be expected merely take the form of drowsiness, diarrhoea and prolonged vomiting. Rare, more serious complications include Mallory-Weiss syndrome or aspiration pneumonia. These may occur if the person concerned has sustained previous damage to his or her stomach or if the rules governing the administration of emetics, notably that the patient is fully alert and conscious, are not observed (see, for example, Birkholz, Kropp, Bleich, Klatt and Ritter, cited above, pp. 278-81, and American Academy of Clinical Toxicology/European Association of Poisons Centres and Clinical Toxicologists, “Position Paper: Ipecac Syrup”, Journal of Toxicology, Clinical Toxicology, vol. 42, no. 2, 2004, pp. 133-43, in particular, p. 141). 44. Those medical experts who argue against the administration of emetics by force point out in particular that the forcible introduction of emetics through a nasogastric tube entails considerable health risks. Even though it is desirable for drugs to be eliminated from the suspect’s body as quickly as possible, the use of a nasogastric tube or any other invasive method can be dangerous because of the risk of perforation of the drug packaging with potentially fatal consequences. Furthermore, if the tube is badly positioned liquid may enter the lungs and cause choking. Forced regurgitation also involves a danger of vomit being inhaled, which can lead to choking or a lung infection. The administration of emetics cannot therefore be medically justified without the consent of the person concerned, and, without this consent, this method of securing evidence will be incompatible with the ethics of the medical profession, as has been illustrated in particular by the death of a suspect following such treatment (see, inter alia, Odile Diamant-Berger, Michel Garnier and Bernard Marc, Urgences MédicoJudiciaires, 1995, pp. 24-33; Scientific Committee of the Federal Medical Council, report dated 28 March 1996 in response to the Federal Constitutional Court’s request to assess the dangers involved in the forcible administration of emetics; and the resolution adopted by the 105th German Medical Conference, Activity Report of the Federal Medical Association, point 3). 45. There is no uniform practice on the use of emetics to secure evidence of a drugs offence in the German Länder. Since 1993, five of the sixteen Länder (Berlin, Bremen, Hamburg, Hesse and Lower Saxony) have used this measure on a regular basis. Whereas some Länder discontinued its use following the death of a suspect, others are still resorting to it. In the vast majority of cases in which emetics have been used, the suspects chose to swallow the emetic themselves, after being informed that it would otherwise be administered forcibly. In other Länder, emetics are not forcibly administered, partly because, on the basis of medical advice, it is regarded as a disproportionate and dangerous measure, and partly because it is not considered a necessary means of combating drugs offences. 46. There have been two fatalities in Germany as a result of the forcible administration of ipecacuanha syrup to suspected drug dealers through a tube introduced through the nose into the stomach. In 2001 a Cameroonian national died in Hamburg. According to the investigation, he had suffered a cardiac arrest as a result of stress caused by the forcible administration of emetics. He was found to have been suffering from an undetected heart condition. In 2005 a Sierra Leonean national died in Bremen. The investigation into the cause of his death has not yet been completed. The emergency doctor and a medical expert suggested that the applicant had drowned as a result of a shortage of oxygen when water permeated his lungs. Criminal investigations for homicide caused by negligence have been launched against the doctor who pumped the emetic and water into the suspect’s stomach and against the emergency doctor called to attend to him. 47. As a consequence of the fatality in Bremen, the Head of the Bremen Chief Public Prosecutors (Leitender Oberstaatsanwalt) has ordered the forcible administration of emetics to be discontinued in Bremen for the time being. Pending the outcome of the investigation, a new procedure has been set up by the Senators for Justice and the Interior. Under this procedure, a person suspected of swallowing drugs must be informed by a doctor about the risks to his health if the drugs remain in his body. The suspect can choose to take emetics or a laxative if a medical examination discloses that it poses no risks to his health. Otherwise, he is detained in a specially equipped cell until the drug packages are passed naturally. 48. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.” 49. In Rochin v. California (342 US 165 (1952)), the United States Supreme Court reversed the petitioner’s conviction for unlawful possession of drugs. On the basis of information that the petitioner was selling narcotics, three state officers entered his home and forced their way into his bedroom. They unsuccessfully attempted to extract by force drug capsules which the petitioner had been observed to put into his mouth. The officers then took him to a hospital, where an emetic was forced through a tube into his stomach against his will. He regurgitated two capsules which were found to contain morphine. These were admitted in evidence in the face of his objection. The Supreme Court held on 2 January 1952 that the conviction had been obtained by methods in violation of the Due Process Clause in the Fourteenth Amendment. 50. Mr Justice Frankfurter, delivering the opinion of the Court, found: “Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. ... It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach. To attempt in this case to distinguish what lawyers call ‘real evidence’ from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.” 51. In State of Ohio v. Dario Williams (2004 WL 1902368 (Ohio App. 8 Dist.)), the Ohio Court of Appeals held on 26 August 2004 that the pumping of the defendant’s stomach in the face of his objections was not an unreasonable search and seizure. The defendant was observed engaging in a hand-to-hand transaction typical of drug dealing. When police officers ordered the defendant to their vehicle, he put something in his mouth and ran off. In the opinion of the court, flushing out the defendant’s stomach by gastric lavage by a physician in a hospital setting was not an unreasonable measure, even though the defendant violently objected to the procedure and had to be sedated. Swallowing the cocaine, which had been seen in the defendant’s mouth, put his life in jeopardy and he was destroying evidence. 52. Mr Justice T.E. McMonagle, delivering the Court of Appeals’ opinion, found: “19. Williams directs us to Rochin v. California, 342 US 165 (1952), ... one of the prominent cases on intrusive searches. ... 21. Rochin is not dispositive, however. After Rochin, the United States Supreme Court decided Schmerber v. California, 384 US 757 (1966), 86 S.Ct. 1826, 16 L.Ed.2d 908, in which a police officer ordered an individual suspected of driving while intoxicated to submit to a blood test at the hospital where he was being treated for injuries sustained in an automobile collision. The Supreme Court noted that ‘the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner’. ... Finding no Fourth Amendment violation, the Court set forth several criteria to be considered in determining the reasonableness of an intrusive search: 1) the government must have a clear indication that incriminating evidence will be found; 2) the police officers must have a warrant, or, there must be exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and 3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner. ... 23. Applying the Schmerber factors to the facts of this case, it is apparent that the pumping of Williams’ stomach was a lawful search and seizure. First, the officers observed Williams in an area known for illegal drug activity engage in a hand-to-hand transaction indicative of drug activity. When he saw the officers, he put whatever was in his hand in his mouth and then ran away. This behavior was a ‘clear indication’ to the officers that Williams had secreted drugs in his mouth. Moreover, it was reasonable for the officers to conclude that Williams’ life could be in jeopardy after they observed crack cocaine in his mouth and saw him trying to chew it and swallow it. Furthermore, Williams was destroying the evidence necessary to convict him of drug possession. Accordingly, this case falls within the exigent circumstances exception to the warrant requirement. 24. Finally, it is apparent that the method and manner of the search were not unreasonable. The facts indicate that a physician administered Williams’ medical treatment in a hospital setting, according to accepted medical procedures ... 25. In Schmerber, the United States Supreme Court expressed an acceptance of a search conducted in a reasonable manner by a physician. The physician is certainly more qualified than a police officer to determine the extent to which a procedure is life threatening. 26. Assuming that [a defendant] swallowed the cocaine, if the drugs were packaged in such a way as to be impervious to intestinal processes, the physician would certainly be in a position to pump the stomach of the [defendant], which is a reasonable medical procedure less traumatic than the forced emetic in Rochin. Again, this is the kind of conduct that Schmerber finds more reasonable because it is done in the confines of a hospital with appropriate medical supervision.” 53. The Government submitted a survey based on information obtained from the governments of the member States of the Council of Europe via their Agents or, if the government concerned had not provided information, from the German Embassy in the country concerned. According to the survey, emetics are forcibly administered to suspected drug dealers in practice in four countries (Luxembourg, Norway, “the former Yugoslav Republic of Macedonia” and Germany). In thirty-three countries emetics are not used against a suspect’s will to retrieve drug bubbles that have been swallowed (Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, Moldova, the Netherlands, Portugal, Romania, Russia, Serbia and Montenegro, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom). In three countries (Croatia, Poland and Slovenia) there is a legal basis for the use of emetics, but no information was supplied as to whether this measure is applied in practice. No information with respect to the use of emetics in practice was obtained from six member States (Andorra, Azerbaijan, Bulgaria, Liechtenstein, San Marino and Monaco). 54. The applicant partly contested the Government’s findings. He noted that the Government had said that three countries other than Germany (Luxembourg, “the former Yugoslav Republic of Macedonia” and Norway) permitted the administration of emetics to suspected drug dealers and used the measure in practice. However, he said that the Government had failed to adduce any evidence of emetics being administered by force against the accused’s will in those member States. With respect to Norway in particular, the applicant disputed that the forcible introduction of a nasogastric tube as in his case was legal. As regards the administration of emetics in Croatia, Poland and Slovenia, he contested the existence of any legal basis for such a measure in those countries, irrespective of the position in practice. Consequently, Germany was the only Contracting State which was proven to actually resort to the impugned measure. In all the other member States the authorities waited for the drugs to pass through the body naturally. 55. Other materials before the Court confirm the parties’ findings that emetics are not forcibly administered in practice in several Convention States examined (Belgium, Estonia, France, Ireland, the Netherlands, Spain and the United Kingdom). In these States, the authorities wait for the drugs to pass through the body naturally. Use is routinely made of special toilets to recover and clean drugs that have been swallowed. The materials further indicated that in Norway special toilets (so-called Pacto 500 toilets) are generally used in order to recover ingested drugs. However, during its visit to Norway in 1993, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) witnessed the administration of an emetic (brine) to a detainee in Oslo police headquarters (see the CPT report on its visit to Norway in 1993, § 25). With respect to Poland, it has not been confirmed whether emetics are administered by force in practice.

dev

001-80550

ENG

LTU

ADMISSIBILITY

MORKUNAS v. LITHUANIA

Inadmissible

The applicant, Mr Artūras Morkūnas, is a Lithuanian national who was born in 1962 and lives in Šiauliai. He was represented before the Court by Mr R. Andrikis, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who had a criminal record of two convictions, was arrested on 1 March 1999 and questioned on suspicion of blackmail and extortion committed against a businessman. On 2 March 1999 his detention on remand was authorised for 10 days by the Šiauliai City District Court for fear that the applicant might commit fresh offences and obstruct the investigation. The applicant and his lawyer were present at the hearing. On 9 March 1999 the applicant was charged with attempted extortion committed in an organised group. On the same date, the Šiauliai City District Court extended the term of the applicant’s detention until 12 May 1999 on the same grounds, the applicant’s lawyer being present. The applicant’s appeal against that order was rejected by the Šiauliai Regional Court on 22 March 1999, in the presence of his lawyer. On 12 May 1999 the Šiauliai City District Court extended the term of the applicant’s remand in custody until 12 July 1999 on the same grounds, i.e., for fear that the applicant might commit new crimes or obstruct the investigation. Both the applicant and his lawyer were present. His appeal against the extension order was rejected on 25 May 1999, the applicant’s defence counsel being present. On 12 July 1999 the term of the applicant’s remand was extended until 1 September 1999 by the Šiauliai City District Court on the same grounds as before, the applicant and his lawyer being present. The applicant appealed, requesting the variation of his remand. He pleaded not guilty and alleged that there was no fear of him absconding since he had a family and a permanent place of residence. The appeal was dismissed by the Šiauliai Regional Court on 21 July 1999, in the presence of the applicant’s defence counsel. The court considered that the grounds for his detention persisted. On 30 August 1999 the Šiauliai Regional Court authorised the applicant’s detention on remand until 31 December 1999, in the presence of the applicant and his lawyer. The court briefly noted that the applicant “was accused of having committed serious offences, hence there was a reason to believe that he may commit new crimes if released.” On 21 September 1999 the Court of Appeal dismissed the applicant’s appeal against the decision, his representative being present. The appellate court noted, inter alia, that the applicant was suspected of heading a criminal organisation, thereby justifying the fear of his committing fresh crimes and influencing witnesses. On 23 December 1999 the Šiauliai Regional Court extended the applicant’s detention on remand until 1 February 2000. While the court emphasised the necessity to expedite the investigation of the case, it considered that continued detention was justified by the fear that the applicant might abscond and commit fresh crimes. The applicant and his defence counsel were present. The applicant’s appeal against that order was dismissed by the Court of Appeal on 6 January 2000, his lawyer being present. During 1999, in the context of several other sets of criminal proceedings, the applicant was charged with attempted aggravated murder, the destruction of property by organising explosions, forming a criminal organisation, and false reporting of a crime. Those charges were subsequently added to the original proceedings against the applicant. On 27 January 2000 the Šiauliai Regional Court extended the term of the applicant’s detention until 1 April 2000 for fear of his absconding and committing new offences. The court found that the serious charges against the applicant and his two previous convictions justified that fear. The applicant and his defence counsel were present at the hearing. On 14 February 2000 the Court of Appeal dismissed the applicant’s appeal against the extension of the term of his detention on remand, upholding the reasoning of the lower court. On 30 March 2000 the Šiauliai Regional Court extended the term of the detention until 1 May 2000 on the same grounds as before, the applicant and his lawyer being present. The bill of indictment in the applicant’s case was confirmed on 17 April 2000. He was indicted on five counts, including attempted murder, extortion, involvement in a criminal association, the destruction or property and the illegal acquisition of explosives. Four other co-accused were indicted with the applicant; 29 witnesses were identified, and the case materials comprised five volumes. On the same date, the Court of Appeal dismissed the applicant’s appeal against the prolongation of his detention on remand. On 1 May 2000 the Šiauliai Regional Court held a hearing in the presence of the applicant and his defence counsel and decided further to extend the applicant’s remand in custody until 10 July 2000, for fear of his absconding, committing new crimes and obstructing the investigation. The court mentioned the gravity of the charges against the applicant and the strength of the evidence in the case file to justify that fear. The applicant appealed, claiming that the evidence against him was not sufficient to warrant his prolonged detention. On 18 May 2000 the Court of Appeal rejected the applicant’s appeal in the presence of his lawyer. On 12 May 2000 the Regional Court held a directions hearing in the presence of the applicant’s defence counsel, whereby it decided to return the case to the investigators. On the same occasion, the court dismissed the applicant’s request to vary the remand measure. On 12 June 2000 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 12 September 2000 on the same grounds as before. The applicant and his defence counsel were present at the hearing. On 30 June 2000 the Court of Appeal dismissed his appeal against the order in the presence of counsel. On 6 September 2000 the Court of Appeal quashed the decision of 12 May 2000, returning the case to the Regional Court for trial. On the same occasion, the court extended the term of the applicant’s detention on remand until 12 November 2000, noting that the grounds for the continued detention on remand persisted. The applicant and his lawyer were present at the hearing. The applicant lodged a cassation appeal against the decision of 12 May 2000, but it was dismissed by the Supreme Court on 7 November. On 9 November 2000 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 February 2001 for fear of his obstructing the investigation and committing fresh crimes. The court noted the applicant’s criminal record, the gravity of the charges against him and the strength of the evidence in the case file to justify that fear. The applicant and his representative were present at the hearing. On 23 November 2000 the Šiauliai Regional Court committed the applicant for trial. On the same date the Šiauliai Regional Court extended the term of the applicant’s detention on remand until 9 May 2001 on the same grounds. The applicant and his defence counsel were present at the hearing. The applicant’s appeal against that order was dismissed by the Court of Appeal on 27 December 2000. The Court of Appeal observed that the trial of the case had been prolonged, but noted that the delay was not imputable to the trial court. On 2 May 2001 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 August 2001 on the same grounds, the applicant’s lawyer being present. The applicant’s appeal against the order was dismissed by the Court of Appeal on 22 May 2001. On 5 June 2001 a prosecutor confirmed a bill of indictment in another criminal case whereby the applicant was charged on eight counts, including causing grievous bodily harm, theft and extortion. Two other persons were indicted with the applicant. Seven victims and nine witnesses were identified. On 25 June 2001 the Šiauliai Regional Court committed the applicant for trial in that case. On 4 July 2001 the Šiauliai Regional Court extended the applicant’s detention on remand until 9 November 2001 on the same grounds, in the presence of his lawyer. The applicant appealed, requesting his release on bail. He claimed that his detention was unjustified since he could live with his family. On 20 July 2001 the Court of Appeal dismissed the applicant’s appeal against the extension order. The applicant’s lawyer was present at the hearing. On 4 October 2001 the Šiauliai Regional Court extended the term of the applicant’s detention on remand until 9 February 2002, the applicant’s defence counsel being present. The court referred to the strength of the evidence in the case file and the fear that the applicant might commit new crimes and obstruct the investigation by influencing the witnesses. The applicant’s appeal against the above order was dismissed - in the presence of the applicant’s lawyer - by the Court of Appeal on 17 October 2001. The court took into account the fact that the applicant had been detained on remand for a considerable period of time, but noted that this was justified by the complexity and volume of the case (numerous charges against five co-accused and a case file in nine volumes). The Court of Appeal did not find any indication of procrastination in the proceedings. It noted that the examination of the case had been delayed due to objective circumstances. In particular, several hearings had been adjourned due to the failure of the witnesses or defence lawyers to appear before the court. The co-defendants had requested the adjournment of the trial on several occasions. The court finally observed that the applicant had submitted no serious reason that would prompt it to vary the remand measure. On 7 December 2001 the two cases against the applicant were joined, and the prosecution presented a new set of charges. These included creating a criminal organisation, the illegal acquisition of explosives, extortion, the destruction of property in dangerous ways, causing serious bodily harm and the attempted murder of several people. These charges covered more than 11 episodes which took place at different times. On 6 February 2002 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 May 2002 on the same grounds as before. The Regional Court also noted the fact of the applicant having denied his guilt amongst the reasons justifying the fear of his absconding, obstructing the investigation and committing fresh crimes. The applicant’s lawyer was present at the hearing. On 27 February 2002 the Court of Appeal dismissed the applicant’s appeal against the decision, his lawyer being present. While the Court of Appeal acknowledged that the length of the applicant’s detention on remand had been somewhat prolonged, it considered the length to be justified in view of the complexity of the case, the gravity and number of charges against the applicant, and the strength of the evidence in the case file. The Court of Appeal noted that the investigation and trial had been adjourned a number of times for the purpose of satisfying various procedural requests of the defendants and their lawyers to investigate or re-evaluate evidence. In addition, witnesses, complainants and the defendants’ lawyers had failed to attend certain court hearings. At the same time, the appellate court eliminated from the reasoning of the Regional Court’s decision of 6 February 2002 the reference to the applicant denying his guilt as an element justifying his remand in custody. In this connection the Court of Appeal emphasised that taking account of such an element could unlawfully prejudge the assessment by a trial judge of the merits of the charges against the applicant. The Court of Appeal underlined that the reasons for detention must pertain solely to the need to ensure the attendance of a person at trial, and that remand in custody could not be authorised on the ground of any premature assessment of the evidence against the defendant or his plea in regard to the charges. The Court of Appeal further observed that the applicant had submitted no valid reasons to prompt varying his remand, all his requests for release being motivated exclusively by the alleged lack of evidence, and there being no element in the applicant’s appeals to allay the fear that he might abscond, obstruct the investigation or commit fresh crimes. The Court of Appeal reiterated in this respect that it was not its function to rule on the merits of the charges against the applicant when deciding the question of his remand. The appellate court concluded that the likelihood of the applicant absconding, obstructing the investigation or committing fresh crimes persisted regardless of the relatively lengthy period of his remand in custody. On 9 May 2002 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 August 2002, again for fear of his absconding, obstructing the investigation and committing new crimes. The applicant’s lawyer was present at the hearing. On 19 July 2002 the Šiauliai Regional Court convicted the applicant on eight counts, including attempted murder, causing grievous bodily harm, involvement in a criminal association, the destruction of property and theft. He was acquitted on three other counts. The applicant was sentenced to 18 years’ imprisonment, including the time already spent in detention on remand. He was also fined in the amount of LTL 2200 (approximately EUR 629), and confiscation of his property was ordered. The judgment was 36 pages long, and five other persons were convicted with the applicant. The court heard 19 victims and 10 witnesses. In response to the applicant’s complaint about the length of the proceedings, the court noted that, while they were somewhat protracted, the essence of the applicant’s right to be tried within a reasonable time was not breached. The Regional Court observed that the length of the proceedings had been largely determined by the conduct of the co-accused and their lawyers. In particular, 10 hearings had to be adjourned due to the failure of defence lawyers (including the applicant’s representative) to appear before the court, or their inability to take part in the proceedings due to illness. Three more hearings had been adjourned because of the defendants’ illness, the change of lawyers, or the refusal of the defendants to participate in the trial. The applicant appealed, complaining that the case against him had been fabricated, that the charges had been imprecise and had been changed a number of times, that he had not been given access to the case file, that his defence rights had been breached, that the trial court had refused to call certain witnesses, that the judges had been biased, and that certain other irregularities had rendered the trial unfair. The applicant also complained about the length of the proceedings. On 4 September 2003 the Court of Appeal amended the judgment, acquitting the applicant on a number of counts, including attempted murder, involvement in a criminal association and theft, on the grounds that the evidence supporting his guilt was contradictory. The prosecution for false reporting of a crime was discontinued as time-barred. The applicant’s conviction for causing grievous bodily harm, extortion and destruction of property was upheld. The sentence was accordingly reduced to five years’ imprisonment, including the period that the applicant had already spent in custody (as of 1 March 1999). The court also ordered confiscation of the applicant’s property in the amount of LTL 2000 (approximately EUR 571). While the Court of Appeal acknowledged that some delays in the proceedings had been imputable to the authorities - namely, the delays which had occurred because of the changes in the composition of the trial court - it considered that the applicant’s right to “trial within a reasonable time” was not breached. Nor did it find any other irregularities which could have rendered the proceedings “unfair” as alleged by the applicant. On 2 December 2003 the applicant was released on licence. The applicant’s cassation appeal was dismissed by the Supreme Court on 2 March 2004. The Supreme Court found no indication of unfairness in the proceedings or a breach of the applicant’s procedural rights. On 18 June 2002 the applicant brought before the Šiauliai Regional Administrative Court an action against the Ministry of Justice, claiming pecuniary and non-pecuniary damages for his being infected with Hepatitis C during his stay in the remand prison. On 19 June 2002 the court disallowed his action for want of jurisdiction. The court observed that the applicant should have brought the claim before the Vilnius Regional Administrative Court, pursuant to the relevant procedural provisions. On 18 July 2002 the Supreme Administrative Court rejected the applicant’s appeal. On 1 August 2002 the applicant brought an action before the Šiauliai Regional Administrative Court, claiming pecuniary and non-pecuniary damages from the Šiauliai Remand Prison in relation to his Hepatitis C infection. On 8 August 2002 the court disallowed the action by reason of the applicant’s failure to comply with the relevant procedural requirements, namely, to state his factual and legal claims in a clear manner. The court gave the applicant time until 19 August 2002 to amend the action. On 13 August 2002 the applicant submitted a fresh action. However, it was disallowed by the Šiauliai Regional Administrative Court on 19 August 2002 on the same grounds. On 19 September 2002 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 19 August 2002. The prison doctors confirmed that the applicant was infected with Hepatitis C and prescribed appropriate treatment. The applicant’s condition was further monitored throughout 2002. The provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas), in force until 1 May 2003, provided as follows: “Detention on remand shall be used only ... in cases where a statutory penalty of at least one year’s imprisonment is envisaged. ... The grounds for the detention on remand shall be specified. The grounds ... shall be the reasonable suspicion that the accused will: (1) abscond from the investigation and trial; (2) obstruct the determination of the truth in the case [influence other parties or destroy evidence]; (3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... 105 [aggravated murder], 111 [serious bodily harm].... 227 [founding a criminal organisation], ... 271 [theft], 273 [extortion], 278 § 2 [aggravated destruction of property] ... of the Criminal Code ... . Where there is a reasonable fear that the accused will abscond from the investigation and trial, detention on remand may be ordered taking into account his family status, permanent place of residence, employment relations, health, criminal record, relations abroad and other circumstances. ...”. “... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person shall take part in the inquiry [unless the judge decides otherwise]. ... After having questioned the arrested person, the judge may maintain the arrest order by fixing the term of detention, or may vary or revoke the remand measure. ... After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand. ...” “Detention on remand cannot last longer than six months. A specific term of remand shall be fixed by a judge adopting the remand order; this term can be extended by the same judge or another judge of the same district court, but only for a period not exceeding six months. In view of the particular complexity or size of a case, a judge of a regional court may extend the maximum term specified in the first paragraph of this Article for a period not exceeding three months. The extension may be repeated, but the total length of the term at the stage of the pre-trial investigation may not exceed 18 months ... For the purpose of extending the term of detention on remand at the stage of the pre-trial investigation, ... a judge must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called ... .” [Once the case is transferred to a court], a court of first or appellate instance shall order detention on remand or extend its term upon the request of a prosecutor or on its own motion for a period not exceeding three months. The extension may be repeated – giving reasons – in view of the particular complexity, size of a case or other objective circumstances. The question of remand shall be resolved at a directions hearing or trial, or at a hearing specially convened for these purposes. The detainee, his defence lawyer, and a prosecutor must be summoned, and their presence before the court is obligatory. ... If the court decides to remit the case for additional investigation, the maximum length of detention on remand may be extended for a period not exceeding four months. In such cases, the question of remand shall be resolved by the court, and the case shall be remitted for further investigation. ...” “A person remanded in custody or his defence council shall have the right during the pre-trial investigation or trial to lodge [with an appellate court] an appeal against the detention on remand or the extension of its term ... . A judge or the appellate court must examine the appeal within seven days from its receipt. With a view to examining the appeal, a hearing may be convened, to which the arrested person and his counsel or counsel alone shall be summoned. The presence of a prosecutor is obligatory at such a hearing. The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal ... . A further appeal shall be determined when examining the extension of the term of the detention on remand.” Other relevant provisions of the Code of Criminal Procedure: Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.” “A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... (11) whether the remand measure has been selected appropriately.” “After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... (2) of the remand measure in respect of the accused ...” “[During the trial, the defendant] has the right to ... 3) submit requests; ... (11) appeal against the judgment and decisions of a court.” “In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.” “1. Damage caused by the unlawful acts of public institutions shall be compensated by the State from the budget, irrespective of the fault of an actual civil servant ... 3. For the purposes of this Article, the term “action” shall be taken to mean any action (active action or failure to act) of a public institution or its employees, which directly affects the rights, liberties or interests of persons ... . 4. The civil liability of the State ... shall arise if employees of public institutions fail to act in accordance with the law.” Article 6.273 of the Civil Code provides that, in cases where the State is liable to cover the damage, it shall be represented by the Government or an institution authorised by the Government.

dev

001-101936

ENG

RUS

CHAMBER

CASE OF ABUYEVA AND OTHERS v. RUSSIA

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

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

5. The applicants are the twenty-nine Russian nationals listed below: 1. Ms Marusa Abuyeva, born in 1948; 2. Ms Malika Abdulkerimova, born in 1957; 3. Ms Larisa Anzorova, born in 1972; 4. Ms Malika Akhtakhanova (also spelled as Akhmetkhanova), born in 1965; 5. Ms Maryam Akhtakhanova, born in 1986; 6. Mr Mamudtsalya Akhtakhanov, born in 1951; 7. Mr Avgazar Byutukayev, born in 1943; 8. Ms Malizh Byutukayeva, born in 1957; 9. Ms Raisa Vakhayeva, born in 1959; 10. Ms Khava Vakhayeva, born in 1987; 11. Ms Madina Vakhayeva, born in 1990; 12. Ms Nurzhan (also spelled as Nurshan) Vakhayeva, born in 1964; 13. Ms Elita Vakhayeva, born in 1986; 14. Mr MuslimVakhayev, born in 1981; 15. Mr Salambek Vakhayev, born in 1992; 16. Ms Aset Gaskalova, born in 1965; 17. Ms. Luiza Guchigova, born in 1969; 18. Ms. Khava Dadayeva, born in 1978; 19. Ms Tamara Dzhamaldinova, born in 1966; 20. Ms Aliya Debirova, born in 1932; 21. Ms Khadisht (also spelled as Khadishat) Ismailova, born in 1970; 22. Ms Maret Musayeva, born in 1970; 23. Ms Malizha Osmayeva, born in 1964; 24. Ms Bela Orsamikova, born in 1977; 25. Mr Makhmud Satuyev, born in 1967; 26. Mr Zula Soslambekova (also spelled as Zulay and Zura Soslanbekova), born in 1956; 27. Ms Zara Sulimanova (also spelled as Suleymanova), born in 1964; 28. Ms Mani (also spelled as Moni) Umalatova, born in 1957; and 29. Ms Roza Khankerkhanova (also spelled as Razet Khametkhanova), born in 1962. 6. Malika Abdulkerimova lives in Urus-Martan, Tamara Dzhamaldinova lives in Achkhoy-Martan and Bela Orsamikova lives in Grozny, Chechnya. The other applicants live in the village of Katyr-Yurt, in the AchkhoyMartan district, Chechnya. 7. The facts of the case are connected to the application Isayeva v. Russia, no. 57950/00, 24 February 2005, in that the applicants and their relatives were victims of the attack on the village of Katyr-Yurt that took place between 4 and 7 February 2000. In the Isayeva case the applicant and her relatives were trying to escape the fighting on 4 February 2000 when an aviation bomb exploded near their minivan, wounding the applicant and killing three of her relatives. In that case the Court established a number of facts relevant to the present case which can be summarised as follows. 8. Since the beginning of military operations by the Russian military and security forces in Chechnya in the autumn of 1999, the village of Katyr-Yurt had been treated as a “safe zone.” By the beginning of February 2000 up to 25,000 persons lived there, including local residents and internally displaced persons from elsewhere in Chechnya. Prior to 4 February 2000 the residents of Katyr-Yurt had not been informed by the State authorities about the possible advance of Chechen insurgent formations into the village, whereas such information had been available to federal military commanders. On 4 February 2000 the village was captured by a large group of Chechen fighters escaping from Grozny and the federal military forces subsequently carried out an assault, using weapons such as heavy freefalling aviation bombs, missiles and other arsenal. The two roads out of the village were controlled by the military by means of roadblocks. While the roadblock leading towards the district centre of Achkhoy-Martan allowed the residents to leave, the other one, placed on the road leading towards the neighbouring village of Valerick, remained closed for the majority of the fighting. The shelling of Katyr-Yurt continued until – and throughout – 7 February 2000. 9. At the material time, all of the applicants lived in Katyr-Yurt. As a result of the bombardment, twenty-four of the applicants' relatives died (see table attached). Some applicants also sustained various injuries, as summarised below. 10. In 2005 some of the applicants made detailed statements to their representative, the Stichting Russian Justice Initiative (SRJI), to describe the circumstances of the deaths and injuries resulting from the attack. Others submitted documents certifying the deaths of their relatives, without further explanations. The various statements and submissions can be summarised as follows. 11. Marusya Abuyeva lives with her family in Katyr-Yurt at 38 Kirova Street. In early February 2000 they heard rumours that their village could be taken over by fighters who had escaped from Grozny and who had already been spotted in the villages of Zakan-Yurt and Shaami-Yurt. On 2 February 2000 the applicant and her family tried to leave for Achkhoy-Martan in a horse-drawn cart. They were prevented from doing so by military servicemen at the roadblock, who explained to them that no one would be allowed to leave the village. 12. In the early hours of 4 February 2000 the applicant witnessed a large group of armed fighters entering the village from the direction of ShaamiYurt to the north of the village. The applicant and her family went into the cellar, anticipating and fearing the bombardment which started soon afterwards. 13. During the morning of 4 February 2000 there was a lull in the attack and the applicant's son, Ruslan Abuyev (born in 1979), went upstairs. Sometime later the applicant followed him upstairs and saw a group of men in the courtyard, who told her that Ruslan Abuyev had been killed. Their house had been destroyed by an artillery shell. 14. Marusya Abuyeva, her husband and her son Ali took the body of Ruslan Abuyev and tried to leave the village through the roadblock, heading north towards the village of Valerik. According to the applicant, it took them about two hours to cross the distance of six or seven hundred metres to the roadblock because of the shelling and confusion. By the time they reached the roadblock, there were already many other residents there. The military refused to let anyone through. 15. Marusya Abuyeva and her family, along with other refugees, spent the ensuing three days camping in houses situated near the roadblock, because the servicemen assured them that it would be safe to remain there. Nevertheless, the houses were shot at on at least one occasion, as a result of which three people were killed and about ten wounded. They could not return to the village because of the fighting. The applicant and other residents suffered from cold and hunger. On 8 February 2000 they were allowed to go to Valerik. 16. On 27 February 2000 the Achkhoy-Martan district civil registration office (hereinafter “the district civil registration office”) recorded Ruslan Abuyev's death and that it had occurred in Katyr-Yurt on 5 February 2000. 17. According to the applicant, upon returning home they found their house and property destroyed. In the summer of 2000 she was interviewed by R., an investigator from the military prosecutor's office, who assured her that the persons responsible for the attack would be identified and that she would receive compensation. She had not heard anything further in that regard. 18. Malika Abdulkerimova lived in Urus-Martan. In October 1999 she was trading in the Grozny market together with Tamara Mestoyeva. When the city came under bombardment she, together with her family, went to Katyr-Yurt where they all stayed with Tamara Mestoyeva's sister. The applicant considered Katyr-Yurt to be a safe place because there was a military unit stationed there and there was no fighting. The applicant and Tamara Mestoyeva traded in the local market and on Sundays went to the market in Urus-Martan. 19. On 2 February 2000 some Russian military servicemen stopped the applicant and Islam Orsamikov, Tamara Mestoyeva's son, on the road to the village of Valerik because they had an order not to let anyone out of the village. 20. Early in the morning on 4 February 2000 the applicant learned that the village had been occupied by fighters. Soon afterwards, shelling started from the direction of the north. 21. The applicant, her family and Tamara Mestoyeva's family took shelter in the basement of a house situated further down the road. About two hours later, an official from the village administration came to that house and told them that the military had allowed residents to leave in the direction of Achkhoy-Martan. Tamara Mestoyeva, her three sons – Islam, Omar and Ali Orsamikov – and the applicant's son, Sulambek Abdulkerimov (born in 1980), remained in the cellar because they wanted to collect their belongings and leave with their vehicles. 22. The applicant walked in a group of about twenty people, together with Mrs Mestoyeva's sister, daughter (Bela Orsamikova, applicant 24) and two grandchildren. Despite the shelling that had been going on, the applicant reached Achkhoy-Martan at about 6 p.m. on the same day. 23. On 8 February 2000 she returned to the village. Together with Tamara Mestoyeva's relatives, the applicant found that Tamara Mestoyeva's sister's house had been destroyed. 24. On 9 February 2000 some men helped them to clear the ruins. They found eight bodies in the cellar of the house, including those of Sulambek Abdulkerimov (the second applicant's son), Tamara Mestoyeva and her three sons. They had been killed by an explosion. There were also large craters left from bombs that had fallen near the house (see statement by Bela Orsamikova below). 25. On 29 April 2005 the district civil registration office issued a death certificate in respect of Sulambek Abdulkerimov. The date and place of death were recorded as 4 February 2000 in Katyr-Yurt. 26. Mrs Abdulkerimova submitted that during the summer of 2000 she had been interviewed by an investigator from the military prosecutor's office at the Katyr-Yurt village administration office. At the end of the interview, the applicant signed the transcript and was assured that she would be informed of the progress of the investigation. In May 2005 the applicant learned from other residents of Katyr-Yurt that the investigation had been closed in 2002 but that no one had been informed at the time. 27. Larisa Anzorova lives in Katyr-Yurt at 26 Gagarina Street. Shelling of the village started at about 9 a.m. on 4 February 2000. The applicant's family went down into the basement of their house. At about 10 a.m. the third applicant's father, Kharis Anzorov (born in 1936), was wounded in the courtyard as a result of a blast. The applicant and her mother brought Kharis Anzorov to the cellar of his cousin's house but were unable to give him any medical aid. There were a lot of people, including women and children, at the house. On the same day the applicant and other people went to Achkhoy-Martan under continuous shelling. 28. On 5 February 2000 the applicant's brother came to AchkhoyMartan and told them that their father had died of his wounds on the previous day. 29. On 28 February 2000 the district civil registration office issued a death certificate. The date and place of Kharis Anzorov's death were recorded as 4 February 2000 in Katyr-Yurt. 30. Mrs Anzorova submitted that around one or one and a half years after the events, she and her mother had been interviewed by an official from the military prosecutor's office. They had not heard further in that regard. 31. The applicants' family is from Grozny. In February 2000 they were staying with their relatives in Katyr-Yurt, at 5 Chkalova Street. The family consisted of Malika Akhtakhanova, her husband Mamudtsalya Akhtakhanov (born in 1951), their daughter Maryam (born in 1986), and two sons, Islam and Yakub (born in 1991 and 1997 respectively). Heavy shelling of the village started on the morning of 4 February 2000. 32. The applicants took shelter at 7 Chkalova Street. At about noon they got into a Kamaz truck and drove towards the centre of the village but because of the heavy shelling they had to abandon the vehicle and return to the cellar, under fire. 33. Soon afterwards a missile hit the house where they had been hiding. Each of the applicants was wounded and three other people were killed on the spot. The fourth applicant's son called their neighbours, who helped to take the wounded to another house. They remained there – without proper medical assistance – until the following morning. 34. During the morning of 5 February 2000 the family and two other relatives went towards Achkhoy-Martan in a car. On the same day, the fourth applicant was admitted to the Achkhoy-Martan hospital where she was operated upon. Her husband was immediately transferred to the hospital in Nazran, Ingushetia. 35. Malika Akhtakhanova remained in the hospital in Achkhoy-Martan until 6 March 2000. The document issued by the hospital upon discharge noted that she had suffered from several splinter wounds, including piercing of the left lung, severe loss of blood and inflammation, and that on 19 February 2000 she had been operated upon for a second time but that a splinter had remained in her body. 36. Mamudtsalya Akhtakhanov remained in the Nazran hospital until 6 March 2000. He was diagnosed with a shell wound to the head and with concussion and he was operated on at the Nazran hospital. He also continues to have a splinter in his head. He was granted disability of the first degree and for a long time was unable to move or eat without assistance. 37. Maryam Akhtakhanova sustained a wound to the face. In December 2000 she underwent surgery on her eyelids in a specialised hospital in Moscow. 38. Malika Akhtakhanova submitted that she had been interviewed by a military prosecutor on one occasion. The investigator assured her that she would be notified of the results and that compensation would be paid to the family. The applicants had not been informed of any further developments and had not received any compensation. 39. The applicants are brother and sister. They live with other members of their extended family in Katyr-Yurt at 11 Akharkho Lane. Avgazar Byutukayev is married and has four children. On the morning of 4 February 2000 the applicants saw a group of armed fighters in the village. Soon afterwards heavy shelling started. 40. During the morning of 5 February 2000, Avgazar Byutukayev was wounded in the left leg by a shell explosion in his courtyard. He lost a lot of blood and could not move. On the following day he was found in the courtyard of his house by a group of Russian servicemen who gave him first aid and transferred him to the Urus-Martan hospital. There he was diagnosed with shell wounds to the left leg, frost bite, loss of blood and hypothermia. On 15 February 2000 his left leg was amputated as a result of developing gangrene. He remained in the hospital until 6 May 2000. 41. Malizh Byutukayeva and other members of the family tried to escape the fighting through the exit towards Valerik. On 5 February 2000 they reached the roadblock but were not allowed to pass. The eighth applicant and other residents were advised by the servicemen to wait in three empty houses near the roadblock. On 6 February 2000 these houses were shot at from passing military vehicles, as a result of which both Malizh Byutukayeva and Avgazar Byutukayev's daughter, Malika, were wounded. The military then allowed the two women to leave the village. Other servicemen delivered them to the Urus-Martan district hospital where they were given first aid. 42. On 17 February 2000 Malizh Byutukayeva was transferred to the Sunzha district hospital in Ingushetia, where she was diagnosed with a shell wound to the right upper part of the torso, an open fracture of the right shoulder blade and infection of the wounds. She was operated upon and remained in hospital until 11 April 2000. No documents were submitted in relation to Malika Byutukayeva. 43. During the summer of 2000, an investigator from the military prosecutor's office interviewed Malizh Byutukayeva about the events of February 2000. She was told that she would be informed of the outcome of the proceedings. 44. Raisa Vakhayeva is Nurzhan Vakhayeva's sister-in-law (see statement by Nurzhan Vakhayeva, applicant 12, below). She had five children, including Khava Vakhayeva (born in 1987), Adlan Vakhayev (born in 1989), Madina Vakhayeva (born in 1990), and Musa Vakhayev, who at the relevant time was 9 years old. She lived at 53 Chkalova Street, Katyr-Yurt with her husband and children. At the material time, there were three internally displaced people from the village of Zakan-Yurt staying in their house. 45. Early in the morning on 4 February 2000 the applicants took shelter in the large basement of Nurzhan Vakhayeva's two-storey house. About 150 people gathered there, including old people and children. Heavy shelling continued all morning. 46. At about noon there were two strong blasts which destroyed the house and damaged the basement. Four people died immediately and another seven died later of their injuries. Raisa Vakhayeva received several wounds to the hands and body. Her three children, Adlan, Khava and Madina, were also wounded. 47. She and her three wounded children were taken by a fellow villager in a car to Achkhoy-Martan. In the confusion she had lost track of her son Musa. Having sent her three wounded children to the hospital in Urus-Martan, she returned to Katyr-Yurt to find Musa at her neighbours' house. Later on the same day Raisa Vakhayeva, her husband and their son Musa, along with other people, managed to leave the village under shelling. They were brought to the Ackhoy-Martan hospital. 48. Raisa Vakhayeva was diagnosed with a piercing wound to the chest, a shell wound to the right hand and with concussion. She remained in the hospital of Achkhoy-Martan until 3 March 2000. 49. Khava Vakhayeva was diagnosed with shell wounds to the left waist area and left shoulder. Madina Vakhayeva was diagnosed with a shell wound to the left hand. Both girls were discharged from the Urus-Martan hospital on 3 March 2000. 50. Raisa Vakhayeva's son Adlan Vakhayev died on 3 March 2000 in the hospital in Urus-Martan. On 31 March 2005 the district civil registration office issued a death certificate confirming this information. 51. Raisa Vakhayeva was interviewed as a witness by the officers of the military prosecutor's office. In April 2005 she learnt that the case had been closed in March 2002. 52. Nurzhan Vakhayeva lives in her own house in Katyr-Yurt at 2 Chkalova Lane. On 4 February 2000 she was at home with her six children: Muslim Vakhayev (applicant 14, born in 1981); Berlant Vakhayeva (born in 1983); Sulim Vakhayev (born in 1984); Elita Vakhayeva (applicant 13, born in 1986); Salambek Vakhayev (applicant 15, born in 1992); and Ramzan Vakhayev (born in 1994). 53. On 4 February 2000 the applicant's extended family and many neighbours gathered in the large basement of her house. Heavy shelling continued all morning. At about noon there were two strong blasts. The neighbours later told them that a large aviation bomb dropped by parachute had fallen on the house. 54. According to the applicant, four people died on the spot and seven others died soon after. Nurzhan Vakhayeva suffered wounds to her back and hands. Her daughter Elita suffered injuries to the face, hands, legs and back. 55. Nurzhan Vakhayeva and her children ran to another house under constant fire and shelling. However, shortly afterwards that house was also hit by a bomb, and her son Salambek suffered an injury to the head. 56. Nurzhan Vakhayeva, her daughter Elita and son Salambek were picked up in the street by a neighbour in a car who took them to a hospital in Achkhoy-Martan. They received first aid there, although no medical records of this were produced. 57. On the following day, 5 February 2000, the applicant's four other children arrived at Achkhoy-Martan. Her son Muslim had been wounded and taken by bus to the Achkhoy-Martan hospital. 58. The applicant submitted that they had remained in the Achkhoy-Martan hospital for one and a half months, after which they had been sent to a rehabilitation centre. The applicant did not submit any medical records. 59. At some point, Nurzhan Vakhayeva was interviewed by officials from the military prosecutor's office but did not receive any information about the progress of the investigation or any compensation. 60. Aset Gaskalova lives in Katyr-Yurt at 9 Chkalova Lane. On 4 February 2000 she was at home with her husband and four children (born between 1987 and 1997). Early in the morning, the applicant and her family went to the cellar of the Vakhayevs' house situated nearby. 61. Some time in the late morning two powerful blasts occurred. Several people were killed and wounded. The applicant's son Rustam Vakhayev, who was 13 at the time, was wounded in the head. The applicant, who was holding her youngest child in her hands, jumped out of the window, but had to climb back in because of the continued shelling. She and her four children then got out of the basement and were taken by neighbours to another house. The applicant did not see her husband. 62. At about 2 p.m. later that day, the applicant and her children escaped Katyr-Yurt in a bus, under heavy shelling. They received first aid in the hospital of Achkhoy-Martan and were subsequently taken in by their relatives. 63. On 7 February 2000 the applicant learnt that her husband, Khasmagomed Vakhayev (born in 1960), had died as result of the explosion at the Vakhayevs' house. On 18 February 2000 the district civil registration office certified the death of Khasmagomed Vakhayev in Katyr-Yurt on 4 February 2000. 64. In 2001 the applicant was summoned to the local prosecutor's office and interviewed by an investigator from the military prosecutor's office. The same investigator visited the Vakhayevs' house and took photographs at the site of the explosions. 65. In March 2005 she learnt from her fellow villagers that the investigation had been closed in March 2002. 66. Khava Dadayeva lives in Katyr-Yurt at 2 Chkalova Street. On the morning of 4 February 2000 her extended family gathered in their neighbours, the Vakhayevs', basement. Later in the morning, despite the shelling, the applicant left the basement and went to her house in order to fetch some food. When she was returning to the basement she saw two explosions – one near the house and one directly hitting it. There was a lot of smoke and debris thrown around. Among the wounded people taken out of the basement, the applicant saw her mother-in-law, Zara Masayeva (born in 1950), who had suffered injuries to the body and head. Zara Masayeva and the other wounded were taken by car to Achkhoy-Martan. 67. Khava Dadayeva and the rest of her family tried to get out of KatyrYurt later that day by a bus, but were forced to return to the basement of a nearby house because of air strikes. During the morning of 5 February 2000 they went by foot to the western edge of the village where a large number of people had gathered trying to escape the fighting. At first, the soldiers at the roadblock refused to let the men through, but after pressure from the families eventually let everyone go. In Achkhoy-Martan she learnt that Zara Masayeva had died. On 10 February 2000 the district civil registration office recorded Zara Masayeva's death as having occurred in Achkhoy-Martan on 5 February 2000 as a result of a head injury. 68. Several days later, the applicant returned to Katyr-Yurt and found her house destroyed. During the summer of 2000 she was interviewed by an investigator from the military prosecutor's office. She was assured that a criminal investigation was being carried out into the deaths of her mother-in-law and of other people and that she would be informed of its results. 69. Tamara Dzhamaldinova lives in Katyr-Yurt at 110 Lenina Street. In February 2000 the applicant lived there with her mother, daughter Khava (born in 1998), two nieces and nephew, Adam Dadayev (born in 1976). 70. On the night of 3 February 2000 the applicant and her family went to the basement of the house situated at 8 Melnichnaya Street, because they had heard artillery strikes at the neighbouring village of Shaami-Yurt. They spent the day of 4 February in the basement. At about 5 p.m. on 4 February, the applicant's nephew Adam Dadayev went out into the street and returned to tell them that women and children could leave the village. 71. The applicant and her family members walked towards the centre of the village. When they were about 100 metres away from their house, Adam Dadayev returned to the house to let the cattle out. As soon as he came out of the gates to their house, a RAF minivan in the street right in front of the gates was hit by a missile launched from a plane. The applicant was hit by a shock wave and her daughter Khava fell to the ground and broke her collar bone. When she stood up, the applicant saw the body of her nephew on the ground in front of their gates. Some other people held her back when she wanted to return home. Instead, the applicant ran towards the road out of the village. At some point they were picked up by a bus and taken to Achkhoy-Martan. 72. On 6 February 2000 the applicant returned to Katyr-Yurt and found the body of her nephew, who had sustained numerous shrapnel wounds to the head and torso. She kept his jacket, which was later taken from her by the military prosecutor's office. The applicant later learnt that the Isayevs' family were in the RAF minivan (see Isayeva v. Russia, cited above). 73. On 27 February 2000 the district civil registration office issued a death certificate in respect of Adam Dadayev, recording that he had died on 4 February 2000 in Katyr-Yurt. 74. During the spring of 2000, Tamara Dzhamaldinova was interviewed by the military prosecutor's office and she showed them the place where her nephew had been killed. On several later occasions she was again interviewed as a witness. The applicant did not recall being formally granted victim status, though she had asked for this on several occasions. 75. Aliya Debirova lives with her extended family in Katyr-Yurt at 29 Chkalova Street. On 4 February 2000 the applicant, her husband AbdulMuslim Debirov, their sons, Sultan and Ramzan Debirov, and some other relatives were at home. 76. Early in the morning they saw armed men in the streets of the village. Soon afterwards, shelling and aerial bombing began. The applicant and her family members went to the basement of their neighbours' house. Her son Sultan and her husband then went to another house. At about 11 a.m. the applicant's husband, Abdul-Muslim Debirov, was killed by an explosion in the courtyard of his house. 77. After that, the applicant and other members of her family walked to the centre of the village and got into a Kamaz truck going to AchkhoyMartan. The shelling continued, and at some point the roof of the truck's cabin was blown off by a splinter. The truck finally reached the roadblock, where the military inspected the vehicle and let it through. The applicant and her family remained in Achkhoy-Martan for six days. When they returned to Katyr-Yurt, their house had been destroyed and the cattle killed. Her husband's body had been already buried. 78. On 25 February 2000 the district civil registration office recorded the death from third and fourth degree burns of Abdul-Muslim Debirov, aged 72, on 4 February 2000 in Katyr-Yurt. 79. The applicant submitted that later that year she had been interviewed by officials from the military prosecutor's office. The officials had filmed the place where her husband had been killed and the destroyed house with a video camera. They had told her that she would receive compensation. 80. The applicant lives with her family at 4-b Chkalova Lane in KatyrYurt. On 4 February 2000 she and her family members were at home when a group of fighters came into their house. They told the family to go down into the basement in case the village was shelled. The applicant and her relatives went to the Vakhayevs' family house situated further along Chkalova Lane. There were a lot of people in the Vakhayevs' basement. 81. At about midday there was a powerful explosion. The applicant was wounded in the left side of her torso and suffered concussion. Her motherin-law, Lyuba Shakhayeva, and brother-in-law, Islam Shakhayev, were also injured. The applicant stated that eleven people had died as a result of the explosion at the Vakhayevs' house. 82. Neighbours put the applicant, her mother-in-law and another wounded woman into a car. Under shelling, the car reached the roadblock. At first, the military refused to let them through. Some time later, another man arrived at the roadblock with his mother, Zara Masayeva, who had also been wounded in the same house (see the statement of Khava Dadayeva, applicant 18, above). The military finally let them pass. 83. The applicant was admitted to the Achkhoy-Martan hospital. The doctors first treated Lyuba Shakhayeva and Zara Masayeva, as they had suffered more serious wounds. Later that day the applicant was operated upon and a piece of shrapnel was removed from her body. 84. In the meantime the applicant's brother-in-law had been taken by her husband, along with other wounded, in a Gazel utility vehicle towards Valerik. Islam Shakayev died of his wounds during the journey and his body was left in Valerik. The other wounded were taken to the Urus-Martan district hospital. 85. On 10 and on 28 February 2000, respectively, the district civil registration office issued death certificates for Lyuba Shakhayeva, aged 48, who had died on 5 February 2000 in Katyr-Yurt from piercing shell wounds to the abdomen, and for Islam Shakhayev, aged 12, who had died on 4 February 2000 in Katyr-Yurt from numerous splinter wounds to the head. 86. Khadisht Ismailova remained in the Achkhoy-Martan district hospital until 16 April 2000. She was operated on for splinter wounds to the left side of the body. 87. In 2001 she was interviewed by representatives of the military prosecutor's office who promised to inform her about the progress of the investigation and to award her compensation. In 2005 she learnt that the investigation had been closed. She stated that she continued to suffer from her injuries. 88. Maret Musayeva lives in Katyr-Yurt at 1 Chkalova Lane. Early in the morning on 4 February 2000 a group of fighters entered the applicant's house. When the shelling started the applicant took her two daughters, at that time aged two and a half and one and a half years, to her neighbours, the Vakhayevs', house. At about 12.30 p.m. a large bomb fell on the house. The applicant was wounded in the back. She stated that at least nine people had died on the spot and that two more later died in hospital. 89. The applicant and others were rescued by neighbours. She was brought to Achkhoy-Martan under fire. She remained there in hospital for about one month; she submitted no medical records in this respect. 90. Some time later, the applicant was questioned by an official from the military prosecutor's office who assured her that the persons responsible for the attack would be identified and that she would receive compensation. Only later, in April 2005, did she learn that the investigation had been terminated. 91. Malizha Osmayeva lives at 193 Lenina Street in Katyr-Yurt. In early February 2000 she lived there with her husband Malgabek Osmayev, their three children, her mother-in-law and other relatives. 92. The applicant's family hosted displaced people from other localities affected by the hostilities. The applicant submitted that the arrival of a large group of well-armed fighters in the morning on 4 February 2000 was unexpected. 93. At about 7 a.m. the village came under fire from planes and helicopters. The applicant, her extended family and her neighbours gathered in the basement of her house. According to the applicant, there were three families sheltering, with a total of thirteen children. At about 10 a.m. the applicant's husband went upstairs to get drinking water. There was an explosion nearby and Malgabek Osmayev was seriously wounded in the head. The people in the basement brought him back down but could not give him proper medical assistance. They remained there until 7 p.m. when a neighbour came to collect his family with a Gazel utility vehicle and picked up the applicant and her husband. 94. Under fire, the vehicle brought the applicant's husband to the hospital in Achkhoy-Martan, where he died on 5 February 2000. 95. On the morning of 5 February 2000 the applicant's three children and mother-in-law were taken out of Katyr-Yurt by the same neighbour. 96. On 2 October 2000 the Achkhoy-Martan district civil registration office recorded the death of Malgabek Osmayev on 5 February 2000 in Achkhoy-Martan from a piercing wound to the head. 97. At some point, the applicant was interviewed at her home by an investigator from the military prosecutor's office. The investigator inspected the site where the applicant's husband had been wounded. Some time later, two other investigators collected the clothes her husband had been wearing on that day from her. The clothes were never returned to the applicant. 98. At some point, an officer of the Achkhoy-Martan district prosecutor's office told the applicant that she would be informed of the outcome as soon as the investigation was over. 99. In April 2005 the applicant received a letter from the military prosecutor's office of the North Caucasus Military Circuit which informed her that the investigation had been closed. She did not receive any help from the State, although her husband had been the sole bread winner of the family. 100. Bela Orsamikova lives in Grozny with her family. In autumn 1999 her family fled to Katyr-Yurt. She stayed in her aunt's house on Ordzhonikidze Street. The following family members came to Katyr-Yurt with the applicant: her mother, Tamara Mestoyeva (born in 1950); her brothers, Islam Orsamikov (born in 1982), Umar Orsamikov (born in 1973), and Ali Orsamikov (born in 1972); and her daughters, Yakha Abdurzakova (born in 1997); and Kheda Abdurzakova (born in 1998). 101. Together with Malika Abdulkerimova (applicant 2, see her statement above) the applicant's relatives traded goods in the markets of Nazran and Urus-Martan. On 2 February 2000 they were prevented from leaving the village of Katyr-Yurt by the soldiers manning the roadblock on the main road. 102. Early in the morning on 4 February 2000 the shelling of the village started. The applicant, her two daughters, Malika Abdulkerimova and her other relatives decided to leave Katyr-Yurt on foot, while her mother and three brothers decided to wait for a quiet period so that they could leave with their trucks. 103. The applicant and the others reached the main road but could not proceed because of intense shelling. They took shelter in the cellar of a house along with about 100 other people, including many children. There was very little space inside. At about 6 p.m. everyone went out in the street and walked towards the roadblock. The military let them cross and they reached Achkhoy-Martan. 104. On 9 February 2000 the applicant learned that her mother, Tamara Mestoyeva, and her three brothers, Islam, Umar and Ali Orsamikov, had been killed in the cellar of the house at 61 Ordzhonikidze Street, together with Sulambek Abdulkerimov, Malika Abdulkerimova's son. Eight people were killed in the basement of that house as the result of an explosion of a large aviation bomb, which had left a huge crater. 105. On 25 April 2005 the district civil registration office issued four death certificates in respect of the applicant's mother and three brothers. The deaths were recorded as having occurred on 4 February 2000 in KatyrYurt. 106. At some point the applicant was interviewed by an investigator from the military prosecutor's office in the Katyr-Yurt administration. The applicant informed him of her relatives' deaths. Malika Abdulkerimova was interviewed on the same day. The applicant was assured that she and the other relatives of the victims would be informed as to the progress of the investigation. 107. In early May 2005 the applicant learnt from other residents of Katyr-Yurt that the investigation had been closed. She had never received any formal notification of that fact. 108. Zula Soslambekova lives in Katyr-Yurt at 61 Ordzhonikidze Street. As soon as the shelling started early in the morning of 4 February 2000, the applicant and her family members went to shelter in the cellar of their house. Later in the morning the applicant heard that the military would allow women and children to leave the village. 109. At about 9 a.m. the applicant, her three nephews (children of her brother Supyan Soslanbekov), Bela Orsamikova and the latter's relatives started walking towards Achkhoy-Martan (see statements by applicants 2 and 14 above). The applicant's mother, Zalpa Soslambekova, her brother, Supyan Soslambekov, and his wife, Raisa Soslambekova, decided to remain in the house. Five other people who had been displaced from Grozny remained with them: Tamara Mestoyeva, her three sons, Islam, Umar and Ali Orsamikov, and their friend, Sulambek Abdulkerimov. 110. The shelling continued as they walked, and at some point they were forced to look for shelter in a cellar of a house. They stayed there until 4 p.m. when there was a lull in the attack and they took the opportunity to walk further towards the roadblock. At first, the military objected to the men leaving the village but finally let everyone through. The applicant and others walked to Achkhoy-Martan. 111. On 9 February 2000 the military permitted the residents to enter the village for two hours. The applicant and her two male relatives found their house destroyed by a bomb blast. As a result of the blast, a wall of the cellar had collapsed and killed everyone who was inside. On 10 February 2000 the applicant and her relatives removed and buried the bodies. 112. On 28 February 2000 the district civil registration office noted the deaths of Zalpa Soslambekova, aged 64, Supyan Soslambekov, aged 41, and Raisa Soslambekova, aged 39, which had occurred on 4 February 2000 from numerous splinter wounds. 113. In 2000 the applicant was interviewed by an investigator from the military prosecutor's office in the presence of the village police officer. The investigator assured the applicant that she would be informed of the results of the investigation. In early March 2005 the applicant heard that the case had been closed, and upon application to the military prosecutor's office was officially informed that the case had been closed in 2002. 114. Zara Sulimanova lives in Katyr-Yurt at 76 Lenina Street, near the central mosque. On 4 February 2000 she was at home with her family: her father, Abdulshakhit Sulimanov (born in 1934), her brother and her sister. On that day they went down into the cellar because they heard the sound of military planes above them. Some time later that day, the applicant's father went to see the applicant's other sister, who lived with her family further down the street. Ten or fifteen minutes after he had left, there was a missile attack which, as the applicant later learned, had killed her father in the street. 115. Later in the afternoon of 4 February, the applicant's sister's ten-member family joined her. However, later that day they moved further away from the centre of the village, judging it to be safer. They spent the night and the following morning there. 116. In the afternoon of 5 February 2000 the applicant and her family members walked to the roadblock situated on the road out of the village towards Achkhoy-Martan. They were detained with numerous other residents of Katyr-Yurt, as the servicemen at the roadblock referred to orders not to let anyone out of the village. However, as a result of negotiations and mounting pressure the applicant and her relatives were allowed to pass. 117. Three days later the applicant and her sister returned to Katyr-Yurt. They learnt that their father had been killed on 4 February 2000 by a missile strike. The applicant found pieces of clothes in the street which she identified as belonging to her father and buried them. Their house was also destroyed. 118. On 9 March 2000 the district civil registration office issued a death certificate in respect of Abdulshakhit Sulimanov. The date and place of death were recorded as 4 February 2000 in Katyr-Yurt. 119. At some point, the applicant was interviewed by investigators from the military prosecutor's office and granted victim status in the criminal investigation. She had not been made aware of any other actions taken to further the investigation by the prosecutor's office. 120. Mani Umalatova lives in Katyr-Yurt at 32 Akharkho Street. Her family's house is situated near the edge of the village. In February 2000 a large number of relatives from Grozny stayed in their house and at some point their number reached thirty-seven people. On 1 February 2000 they notified their presence to the head of the village administration and learned that no one was allowed to leave the village. 121. On 2 and 3 February, the applicant's relatives tried to leave the village either by car or on foot – initially attempting to go to Achkhoy-Martan and afterwards trying to leave for Valerik. However, on both days they were prevented from leaving the village by the servicemen manning the roadblocks. The soldiers referred to a formal order from their superiors and at one point fired a shot in the air. 122. In the early hours of 4 February 2000 the applicant learned that fighters had entered the village. She saw several military trucks with Russian servicemen driving out of the village. Once the bombing started, the applicant and her family had to look for shelter in several basements before they found sufficient space. 123. During the morning of 5 February 2000, a relative told them that the military had allowed people to leave Katyr-Yurt if they did so within two hours. The group loaded into two Kamaz trucks, made a white flag out of a bed sheet and drove towards the centre of the village. However, because of aerial attacks on several occasions, they had to stop, get out of the trucks and seek shelter in the nearby houses. 124. The two vehicles turned towards the road out of the village leading to Valerik. When they reached the roadblock, the servicemen refused to let anyone through. The servicemen suggested that they join the people camped in three empty houses near the roadblock and assured them that they would be safe. However, later one of the houses was shot at from a tank. 125. On the morning of 6 February 2000, the applicant again went towards the roadblock – hoping that her family would be allowed to leave. As she did so, she saw a convoy of Russian military vehicles driving through the roadblock at the edge of the village. The military convoy opened fire towards the houses where people had sought shelter. The applicant's son, Salambek Umalatov (born in 1984), was shot dead while he reached for food in the cabin of their relative's Kamaz truck. The applicant submitted that another person was killed at the same time. 126. On the same day the applicant reached the roadblock and told the servicemen how her son had been killed. After a while she was helped to cross the roadblock by Chechen militiamen and taken to Valerik. 127. She returned to Katyr-Yurt several days later and found that her house and two other houses in their courtyard had been destroyed. 128. On 27 February 2000 the district civil registration office issued a death certificate stating that Salambek Umalatov had died on 5 February 2000 in Katyr-Yurt. 129. The applicant stated that she had obtained some compensation for the destruction of her house but not for the other buildings forming part of the household. At some point, Mani Umalatova was interviewed in relation to her son's death by investigator R. She signed the transcript of the interview and accompanied the investigator to the place where her son had been killed. She was assured that she would be informed of the results of the investigation. 130. Roza Khankerkhanova lives at 15 Molodezhnaya Street in KatyrYurt. Her extended family, including her mother, two brothers, sisterin-law and mother-in-law, lived with her at the same address. In total, the extended family had thirteen children, including the applicant's 12-year old son, Idris Dovletmurzayev. 131. Early in the morning of 4 February 2000, Russian military forces started to shell the village. Their neighbour's house was completely destroyed by a direct hit. The applicant's family and nine displaced people from Zakan-Yurt went down into the basement located in their courtyard, under a garage. They remained there for the whole of 4 February and the following night. 132. On the morning of 5 February 2000 the applicant's son Idris was wounded by shrapnel. The applicant saw two injuries on her son's body – one to his head and one on the left side of his chest. There were no medicines in the cellar and no one could give medical assistance. 133. Some time later, a neighbour told them that the residents would be allowed to leave through a “corridor,” although they did not know which direction that would be. The applicant and her family, including her wounded son, climbed onto the cart attached to their neighbour's tractor. 134. They drove towards the nearest way out of the village, leading to the village of Valerik. When they arrived there, there were already a lot of people – about 600 in the applicant's estimate. No one was allowed to get closer than 20-30 metres from the roadblock, otherwise the servicemen fired in the air. The applicant and others spent the whole day in the open. 135. During the evening of 5 February 2000, a group of Chechen militiamen came from the direction of the roadblock and took the people into the courtyard of a large empty house that was situated nearby. They told them to wait there. 136. The applicant's son died of his wounds early in the morning on 6 February 2000. He was buried in the courtyard of the house. 137. The applicant and others remained in that house until around noon on 8 February 2000, when they were all allowed to pass through to Valerik. On 11 February 2000 she returned to Katyr-Yurt and found her house partially destroyed. 138. On 19 June 2001 the district civil registration office recorded the death of Idris Dovletmurzayev, born in 1988, on 6 February 2000 in KatyrYurt. 139. The applicant was aware of criminal proceedings in relation to the events of February 2000. At some point, she was taken by the local police officer to Achkhoy-Martan, where she testified to some investigators about the death of her son and described his injuries. After the interview, she was assured that she would be informed of the outcome of the proceedings. 140. In May 2005 the applicant had learned from other residents of the village that the investigation had been closed. 141. Luiza Guchigova (applicant 17) submitted a copy of the death certificate issued by the district civil registration office on 27 September 2000 recording the death of her sister, Larisa Guchigova, on 4 February 2000 in Katyr-Yurt. According to the documents from the investigation file, she had been granted victim status in the proceedings in July 2001 (see below). 142. Makhmud Satuyev (applicant 25) submitted copies of death certificates issued by the district civil registration office in relation to his mother and step-mother respectively. Zaluba Dakhayeva, aged 62, had died in Achkhoy-Martan on 4 February 2000 from a piercing wound to the abdomen. The death was recorded on 10 February 2000. Zaybula Satuyeva, aged 94, had died in Katyr-Yurt on 11 February 2000 from numerous shrapnel wounds to the head and second and third degree burns. Her death was recorded on 18 February 2000. According to the file, Makhmud Satuyev was granted victim status in the criminal case in July 2001 (see below). 143. In their observations dated January 2009, the Government did not dispute the injuries and deaths of the applicants and of their relatives. They presented the following description of the events. Referring to the information obtained by the criminal investigation, they stated that on the night between 3 and 4 February 2000, a group of guerrilla fighters under the command of field commander Gelayev had entered Katyr-Yurt. According to information supplied by intelligence sources, the members of the illegal armed groups were well trained and equipped. They were armed with large-calibre weapons, grenade launchers and mortars. They also had armoured vehicles. Understanding that federal forces were pursuing them and that fighting was inevitable, they proceeded to occupy the local residents' stone and brick houses. In the cellars of those houses they prepared firing points and established fortified defence positions. The local residents remaining in the village were used as a “human shield”. 144. After Katyr-Yurt had been surrounded, reconnaissance groups tried to enter the village and ensure that the fighters were disarmed and detained. However, they were met with fire and one of the groups found itself surrounded. 145. The command corps of the operation took a decision to evacuate the civilians. Information about the opening of an exit corridor was delivered to the local residents between 7 and 11 a.m. on 4 February 2000 through a loudspeaker. Two control points were set up to allow for filtering of the population and checking of identity documents in order to prevent the fighters forcibly exiting the village. 146. At the same time the commanders of the operation decided to employ artillery and attack aircraft. This was done in view of the numerical superiority of the fighters and in order to prevent their grouping together and breaking through the army's position. After the strikes started the members of the illegal armed groups, unwilling to surrender, continued their resistance and used local residents as cover. They did not allow the federal authorities to organise the evacuation of the remaining population. Many residents were leaving Katyr-Yurt on their own, using their personal vehicles. In the process they were caught in the crossfire between the fighters and the federal forces and were wounded or killed. 147. The operation lasted between 4 and 7 February 2000. It involved the use of firearms, artillery and attack aircraft employed with pinpoint precision at the places where the fighters were grouped. The majority of the armed group (several hundred fighters) were killed, the remaining number dispersed, and the village was freed. 148. On 16 September 2000 the prosecutor's office of the Achkhoy-Martan district initiated a criminal investigation into the events of 27 February 2000 in KatyrYurt. 149. On 19 February 2001 the investigation was transferred to the military prosecutor's office of the North Caucasus Military Circuit (“the military prosecutor's office”). The case file was assigned the number 14/00/0004-01. 150. It appears that in 2000-2001 the investigators interviewed most of the applicants or members of their families, as well as other people who had been in Katyr-Yurt at the time. The applicants submitted that during the interviews they had been assured that the authorities would keep them informed of the progress of the investigation and that they would be granted compensation. 151. Per the submitted documents, the investigation established that as a result of the operation 43 civilians had been killed and 53 wounded. Nineteen of the applicants' relatives were listed among the dead (not including the second applicant's son and four relatives of the twenty-fourth applicant). The investigation listed ten of the applicants as wounded (applicants 4-7, 12-15, 21 and 22), as well as some of their relatives, for example, Malika Byutukayeva (the seventh applicant's daughter). 62 people were granted victim status in the proceedings, including eleven of the applicants (applicants 1, 4, 12, 17, 19, 22, 23, and 25-28). In addition, relatives of applicants 3, 18 and 20 were also interviewed and granted victim status. These steps were taken between May and July 2001. 152. On 13 March 2002 the military prosecutor's office terminated the proceedings in criminal case no. 14/00/0004-01. The decision referred to a large number of documents and to the statements of dozens of witnesses, including local residents, servicemen from various units and commanding officers. The decision heavily relied on the results of the military expert's report of 11 February 2002. That report established that the actions of the command corps involved in the special operation in Katyr-Yurt on 46 February 2000 had been appropriate to the circumstances and in line with applicable laws. On this basis, the investigation concluded that the actions of the command corps had been absolutely necessary and proportionate to the resistance put up by the fighters. It found an absence of corpus delicti in the actions of the servicemen of the Russian forces. By the same decision the victim status of sixty-two people was withdrawn. The people in question were to be informed of the possibility of seeking redress through civil proceedings. 153. The applicants submitted that, at that time, they and other victims had not been informed about the termination of the proceedings. It appears that nothing happened until January 2005, when the applicants learnt, mostly by hearsay, that the proceedings had been terminated. 154. Between January and March 2005, the majority of the applicants wrote to the military prosecutor's office seeking to obtain information about the progress of the investigation in case no. 14/00/0004-01. They referred to the circumstances of the deaths and wounding of their family members and asked to be granted formal victim status in the proceedings and/or to be provided with a copy of such a decision if it had already been taken. Twenty-three applicants submitted copies of such letters (save for applicants 2, 7, 8, 17, 24 and 29). 155. In response to these requests, between January and April 2005 the military prosecutor's office informed the applicants about the results of the military expert's report, the termination of proceedings in criminal case no. 14/00/0004-01 and the withdrawal of their victim status in 2002. The letters also confirmed that the investigation had established the deaths and injuries of which they had complained and informed them that they could apply to a civil court seeking to obtain compensation for damage. Some of these letters included a copy of the decision of 13 March 2002 as an enclosure. 156. On 6 June 2005 twenty-six of the applicants (not including applicants 7, 8 and 17) lodged a complaint with the military court of the North Caucasus Military Circuit. In their complaint, they stressed that they had not been informed of the progress of the investigation for a long time and that only in early 2005 had the military prosecutor's office forwarded a copy of the decision of 13 March 2002 to them. The applicants challenged the conclusions of the investigation as to the reasonableness and lawfulness of the use of lethal force which had resulted in numerous casualties. They referred to evidence which, in their view, contradicted the conclusion reached by the military prosecutor's office. They also questioned the thoroughness of the investigation in criminal case no. 14/00/0004-01. In particular, the applicants noted that the deaths of Sulambek Abdulkerimov, son of Malika Abdulkerimova (applicant 2) and of four relatives of Bela Orsamikova (applicant 24) had not been recorded by the investigation and that these people had not been mentioned in the list of people who had died in Katyr-Yurt in February 2000. They submitted copies of five death certificates and a written statement by Malika Abdulkerimova. They also pointed out that the investigation had failed to review the question of damage caused to the residents' property. They asked the court to quash the decision to terminate the criminal proceedings and to oblige the military prosecutor's office to resume the investigation in the criminal case concerning deaths and injuries to civilians, to grant each of them victim status in the criminal proceedings and to issue them with copies of the relevant decisions. 157. On 19 July 2005 the applicants' complaint was forwarded to the Grozny Military Garrison Court. On 6 March 2006 the Garrison Court quashed the decision of 13 March 2002 and sent the investigation back to the military prosecutor's office. By that time, the investigation had already been resumed by a decision of the military prosecutor's office dated 14 November 2005 made with reference to the conclusions drawn by the Court in the Isayeva case (cited above). The case file was assigned a new number – 34/00/0026-05D. It was conducted with reference to Articles 105 part 2 (e) (murder committed by universally dangerous means) and 286 (abuse of authority) of the Criminal Code. 158. Between March and June 2006 ten of the applicants were interviewed and were also granted victim status: applicants 2, 4, 5, 6, 7, 11, 13, 14, 16 and 21. The transcripts of interviews and decisions to grant victim status were submitted by the Government to the Court (except in respect of applicant 4). According to the Government, relatives of applicants 18 and 20 were also interviewed at that time and granted victim status, but the relevant statements were not submitted. The applicants confirmed their previous statements in relation to the events that took place between 4 and 7 February 2000 and about the deaths of their relatives and their injuries. All of the applicants stated that they had applied for administrative compensation for their housing and property which had been destroyed, but that they had not received any. 159. On 14 June 2007 the investigation was closed, with the same conclusions as in March 2002, on the basis of Article 39, part 1 of the Criminal Code. The decision confirmed the deaths of 46 and the wounding of 53 local residents, without listing their names. An additional expert report was produced by the Military Academy of the Armed Forces in June 2007, which found that the actions of the command corps in planning and executing the operation had been reasonable and in line with the domestic law. No copy of that report has been disclosed to the applicants or submitted to the Court. In particular, the decision stated in this respect: “... The actions of the fighters (the occupation of Katyr-Yurt by a group of fighters numbering three to four thousand persons, the fighters establishing strongholds in the houses, [their] fierce resistance and their using local residents as a “human shield”) ... represented a real danger to the lives and health of the local residents, and could have entailed unnecessary losses by the federal forces ... These circumstances required the taking of adequate measures by the command corps in order to prevent the danger of armed assault against the citizens and their lives and property (residents of Katyr-Yurt and military servicemen), in addition to [the need to safeguard] the interests of society and the State which are protected by law (the reinstatement of the constitutional order in Chechnya). After issuing a preliminary notification and giving the civilians a real opportunity to leave the village, the subsequent extermination of pockets of the fighters' resistance by means of artillery and attack aircraft, employing area-point method (зонально-объектовый метод), did not exclude deaths among civilians. At the same time, the use of such means of extermination was consistent with the circumstances and with the measures taken in order to minimise losses among civilians. The actions of the command corps (commanders) during the preparation and carrying out of the special operation aimed at the liberation of Katyr-Yurt between 4 and 7 February 2000 were in line with the requirements of relevant field manuals, internal regulations and instructions, were lawful and did not contain elements of criminally prescribed actions”. 160. The decision to grant victim status to 95 people was quashed. The military prosecutor of the United Group Alliance in the Northern Caucasus (UGA) forwarded the decision to the head of the Government of Chechnya and asked him to identify the victims' places of residence and to inform them about the closure of the investigation, as well as the possibility of seeking compensation through the civil courts. 161. The Government submitted that “the interested parties” had been informed of the decision in question on the day when it had been adopted. The applicants insisted that they had learnt of the decision from the Government's observations of January 2009. They had not appealed against it. 162. In their Court application form of 28 October 2005 seventeen of the applicants (applicants 1, 2, 6, 7, 9, 12, 16, 18, 20, 21, 22, 24, 25, 26, 27, 28 and 29) complained that there had been a violation of their right to property in that their houses and other possessions had been destroyed. No other details or documents were submitted at that time. In February 2009 the applicants submitted the documents detailed below in response to the Government's observations. It is unclear whether these documents have ever been submitted to any national authority. 163. In 2000, applicants 6, 12, 16, 18, 21, 22, 28 and the ninth applicant's husband obtained certificates from the village administration concerning the state of their houses. These certificates noted the destruction of their houses and indicated the costs of repair, including building materials and, in certain cases, construction costs. 164. In 2005, applicants 1, 2, 6, 9, 12, 16, 18, 21, 22, 24, 26, 27 and 28 drew up lists of their property and household items destroyed in February 2000. Each list was attested by two witnesses who were local residents. These applicants also submitted estimates of the replacement costs of their household goods which had been compiled in 2009. In 2005 and 2009, applicants 1, 2, 6, 16, 21, 26 and 27 noted their expenses in relation to their relatives' funerals. 165. Until 1 July 2002, criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 onwards, the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (“CCP”). 166. Article 42 of the CCP defines the procedural status of a victim in criminal proceedings and lists the rights and obligations vested in that person. It provides that the victim has the right to acquaint him or herself with the entire case file after the closing of the investigation. Article 42 also stipulates that the victims should be informed of procedural decisions to open or close criminal proceedings, grant or to refuse to grant victim status, and to adjourn proceedings. Copies of these decisions should be sent to the victims. The victims also have access to any decisions to order expert reports and to the conclusions of such reports (Article 198). 167. Article 125 of the CCP lays down a judicial procedure for the consideration of complaints. An order of the investigator or prosecutor to refuse to institute criminal proceedings or to terminate a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede the citizen's access to justice, may be appealed against to a local district court which is empowered to check the lawfulness and grounds of the impugned decisions. No time-limits are set for the lodging of such complaints. 168. Article 161 of the CCP prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and interests of the parties to the criminal proceedings or prejudice the investigation. Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited.

dev

001-118040

ENG

RUS

CHAMBER

CASE OF REZNIK v. RUSSIA

Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

5. The applicant was born in 1938 and lives in Moscow. He is a lawyer and President of the Moscow City Bar. 6. On 25 October 2003 Mr Khodorkovskiy, a co-owner of the Yukos company, was charged with criminal offences and placed in custody. On 27 October 2003 he was transferred to special-purpose remand centre IZ99/1 in Moscow operating under the authority of the Ministry of Justice of the Russian Federation (hereinafter “the remand centre”). 7. On 30 October 2003 a lawyer, Ms A., accepted to represent Mr Khodorkovskiy in the criminal proceedings. 8. On 11 November 2003 Ms A. visited her client in the remand centre. On leaving the centre, she was stopped by a prison inspector, Mr B., who accused her of carrying unauthorised material that Mr Khodorkovskiy had given her. 9. It appears from a personal inspection report (протокол личного досмотра) of the same date that Mr B. “examined the belongings and clothing of the lawyer, Ms A.” and seized two documents: a printed document concerning the case against Mr Khodorkovskiy’s co-defendant, and a torn handwritten note. The report was signed by Mr B., Ms A. and two prison officers who were present during the search. The parties agreed that one of them had been a man (Mr F.); the identity and sex of the second officer was in dispute: the Government claimed that it had been a woman, “L-va”; the applicant insisted that it had been a man, “L-vich”. 10. The investigators claimed that the note had contained instructions about exercising influence on witnesses and interfering with the investigation. On 22 December 2003 the Ministry of Justice asked the Moscow City Bar to disbar Ms A. for acting in breach of the law and the lawyers’ code of ethics. The applicant, as President of the Moscow City Bar, publicly criticised the request by the Ministry of Justice. 11. On 25 December 2003 the NTV channel invited the applicant and Mr Buksman, the Director of the Moscow Department of the Ministry of Justice, to the talk show, “The Country and the World” («Страна и мир»), for a discussion of the incident involving Ms A. The debate was broadcast live at about 10 p.m. 12. In the first few minutes of the discussion the applicant asked Mr Buksman about his view on the events and the grounds for making the request for disbarment. Mr Buksman did not give specific answers, stating that the issue was not within his competence. 13. The presenter then asked the applicant about the relationship between the Moscow City Bar and the Ministry of Justice, implying that it was rather strained. The applicant denied that any tension existed and added: “I have to say that we have now examined the matter of lawyer A. There was no attempt to pass any note from Mr Khodorkovskiy outside the remand centre. There were no grounds for carrying out a search (обыск) which, by the way, was performed by men who rummaged (шарили) about the body of the woman lawyer. Evidence obtained by criminal or unlawful means has no legal value. There is nothing, absolutely nothing, in Ms A.’s records that could warrant her disbarment.” 14. The presenter then gave the floor to Mr Buksman, who said that there existed a normal professional relationship between the Moscow City Bar and the Ministry of Justice. The show ended. 15. On 8 January 2004, remand prison IZ-99/1 and warders Mr B. and Mr F. lodged defamation claims against the applicant and the NTV television company with the Cheremushkinskiy District Court of Moscow. They claimed that the applicant had falsely stated that male officers had “rummaged” about Ms A.’s body and carried out a “search” on her, whereas they had merely “inspected” her documents. Since the domestic law made a distinction between a “search” (обыск) and an “inspection” (досмотр), the applicant’s statement amounted to an allegation of a breach of the Russian law that was false and damaging both to the professional reputation of the remand prison and to the honour and dignity of its officers. They sought a rectification and compensation in respect of non-pecuniary damage. 16. In the defamation proceedings the District Court heard many witnesses and, in particular, the warders of the remand prison who had taken part in the incident involving counsel A. One of them, Mr L-vich, testified as follows: “I received a phone call and I was invited to take part in the drafting of a report. When I arrived, Ms A., Mr B. and Mr F. were in the office. B. was drafting the report. A. snatched a piece of paper and began tearing it apart. We removed the document [from her], I signed the report and left.” 17. Ms A. described the way in which the documents had been removed from her: “I was subjected to a humiliating procedure, as a woman and as a lawyer. They took the materials of the defence away from me by force. How is it possible to take the materials, without touching me, while I was holding onto them? ... Could there be any contact, other than bodily contact, if I was clutching the materials to my chest and the prison employees were tearing them away from me? It was not just my hands that they touched. [They touched] the clothing that was covering my body.” 18. In the meantime, on 3 February 2004 the Council of the Moscow City Bar formally rejected the Ministry’s request for Ms A.’s disbarment. It found, in particular, that the inspection (досмотр) carried out on the person of Ms A. on 11 November 2003 and the seizure of her materials had been unlawful. 19. On 10 June 2004 the District Court gave judgment on the defamation claim, finding as follows: “It was established at the court hearing that on 25 December 2003 a televised discussion between ... Mr Buksman and the lawyer Mr Reznik had been broadcast live on the NTV channel. The presenters did not edit the text of the interventions by Mr Buksman or Mr Reznik ... Mr Buksman was connected with the presenter via a direct link, the defendant Mr Reznik was present in the studio. It can be seen from a video recording which the court examined ... that Mr Buksman and the defendant made statements of a controversial nature. The participants put questions to each other and replied to questions from the presenters. ... The court considers that the statements by the defendant [Mr Reznik] were simply an expression of his opinion on an event that had attracted public attention and was widely discussed at the time. During the show “The Country and the World” on 25 December 2003, a public official and a lawyer held a discussion in which they expressed different opinions on the same event. The statements by the defendant Mr Reznik were not offensive and did not damage the plaintiffs’ honour, dignity or professional reputation. The defendant, in his reply to the presenter’s question, did not mention either remand prison no. 1 or the plaintiffs F. and B. ... The plaintiff – remand prison no. 1 – alleged a violation of the rights of individuals rather than those of prison no. 1. ... In the instant case, the statements by the defendant, Mr Reznik, did not contain allegations about the plaintiff, remand prison no. 1, nor did Mr Reznik’s statements damage its reputation. It follows that the claims by remand prison no. 1 are unlawful and unjustified because the plaintiff seeks the rectification of allegations concerning its employees. The claims by the plaintiffs F. and B. are likewise unjustified because the statements by the defendant did not mention any names, still less the plaintiff’s names. Moreover, ... there was no mention of their place of work or place of residence, or of their appearance or characteristic features, their rank or their position; the discussion was not accompanied by any photographs or video footage of the plaintiffs; nor were their voices broadcast. It follows that the defendant’s statements did not contain any information damaging to the honour or dignity of Mr F. or Mr B. [The court rejects as] unfounded the arguments by remand prison no. 1 to the effect that the discussion was preceded by footage showing a building with its postal address, which could have enabled television viewers to recognise Matrosskaya Tishina remand prison no. 1. Neither Mr Buksman nor Mr Reznik mentioned remand prison no. 1 in their replies. Moreover, it was the NTV channel that decided to broadcast the footage featuring the building with its address at the beginning of the show, but the plaintiffs have lodged no defamation claim against the channel ... Having regard to the above-stated, the court finds that the claims are unjustified and must be rejected.” 20. The remand centre, Mr B., and Mr F., all lodged statements of appeal. 21. On 10 August 2004 the Moscow City Court quashed the District Court’s judgment and granted the defamation claims by all three plaintiffs, finding as follows: “... the conclusion of the [district] court to the effect that the statements made by the defendant in a live television show did not damage the reputation [of the plaintiffs] is not correct. The statements did damage the honour and dignity of the prison officers F. and B. and the professional reputation of remand prison no. 1 because they actually contained an accusation that the male prison officers had searched the female lawyer in a degrading manner. ... It can be seen from the statements by the witnesses Mr L-vich and Mr T., the personal inspection report, and the conclusions of the Qualifications Panel of the Moscow City Bar that the prison officers did not carry out a search on Ms A., contrary to what Mr Reznik alleged, but the [district] court did not take this fact into account ... The law distinguishes between the terms ‘inspection’ and ‘search’, and the defendant Mr Rezink, a professional lawyer, could not have been unaware of that distinction. Although he had at his disposal reliable information that the prison officers had carried out an inspection of Ms A.’s documents rather than searched her, he made untrue statements in a live television show ... Further, the [city] court cannot agree with the [district] court’s conclusion that the defendant [Mr Reznik] did not identify any of the plaintiffs by name ... That conclusion contradicted the operative part of the judgment, in which the [district] court found that the incident ... had taken place on the premises of remand prison no. 1 and concerned the removal of a note from Ms A. ... The NTV channel showed the building at 18 Matrosskaya Tishina Street, and the defendant Mr Reznik later made the contested statements. In those circumstances, the professional reputation of remand prison no. 1 had been undermined and it had standing to seek judicial protection from defamation. The plaintiffs F. and B., who were employees of the remand prison and who had taken part in the inspection of [Ms A.’s] papers ... also had standing to sue in defamation.” 22. The City Court ordered the applicant to pay 20 Russian roubles (RUB) to each of Mr B. and Mr F. in respect of compensation for non-pecuniary damage. The NTV channel was ordered to broadcast a rectification. 23. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 24. Article 152 provides that an individual may apply to a court with a request for the rectification of statements that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. 25. A personal inspection (личный досмотр) or an inspection of personal belongings may be carried out with a view to uncovering instruments or objects of an administrative offence (Article 27.7 § 1 of the Code of Administrative Offices). Personal inspections must be carried out by a person of the same sex, in the presence of two attesting witnesses (понятые) of the same sex (Article 27.7 § 3). 26. A suspect in a criminal case may be subjected to a body search (личный обыск) (Article 93 of the Code of Criminal Procedure). Body searches must be carried out by a person of the same sex, in the presence of attesting witnesses (понятые) or specialists of the same sex (Article 184 § 3). 27. The Pre-Trial Detention Act (Law no. 103-FZ of 15 July 1995) established that, if there were grounds to suspect visitors of passing prohibited objects, substances or food, prison officers were entitled to carry out an inspection of their clothes and belongings upon their entry or exit from the prison premises (part 6 of section 34).

dev

001-22555

ENG

RUS

ADMISSIBILITY

SHESTAKOV v. RUSSIA

Inadmissible

Nicolas Bratza

The applicant, Valeriy Filippovich Shestakov, is a Russian national, who was born in 1945 and lives in Pskov, Russia. The facts of the case, as submitted by the parties, may be summarised as follows. In May 1998 the applicant placed 2,200 US dollars on a three-month deposit account in the Pskov branch of the SBS-Agro Bank («СБС-Агро»), then one of the largest banks in Russia. In August 1998, during a financial crisis and rapid currency devaluation, the applicant requested the Bank to refund the capital with interest. The Bank refused. On 8 October 1998, at the applicant's request, the Pskov City Court ordered the Bank to pay him the money owed together with interest. In its judgment, the Pskov City Court excluded from the time for calculating interest the period from 28 August 1998 to 20 September 1998, pursuant to decisions of the Russian Central Bank temporarily to halt all operations on private deposits due to a banking crisis. The applicant appealed that part of the decision, and requested the Pskov branch of the Bank to be named as respondent, and not its Moscow headquarters. The Pskov Regional Court rejected the applicant's appeal and confirmed the decision of the City Court on 17 November 1998. The decision was forwarded by the Pskov City Court for enforcement to the Moscow Bailiff's service, as the Bank's headquarters were situated in Moscow. The applicant complained about this decision to various judicial and executive authorities, including the Pskov City Court, the Pskov Regional Court, the Pskov Regional and General Prosecutor's Office and the Ministry of Justice. On 22 and 28 April 1999 the applicant was informed by the Bailiff Service of the Moscow City Department of Justice that enforcement proceedings (исполнительное производство) had been initiated by a bailiff in Moscow on 8 January 1999. The applicant did not receive a copy of that decision. The applicant was also informed that the bailiff in charge of the case had taken measures under the Law on Enforcement Procedure (Закон «Об исполнительном производстве»), including the freezing of the Bank's assets, funds and real estate. However, the Bank's funds were not sufficient to satisfy the numerous creditors who also had enforcement proceedings pending against Bank. The applicant was informed that he had to wait until the Bailiff Service had money on its account to enforce the decision. On 7 May 1999 the applicant was informed by the Bailiff Department of the Russian Ministry of Justice that, by the end of March 1999, over 2,000 enforcement proceedings had been initiated against the Bank, with an additional 70-80 being initiated every week. The applicant was informed that the bailiffs had seized the Bank's cars, real property and other assets. The Department also informed the applicant that it was monitoring the enforcement of the court decisions against the Bank, and that the applicant would be notified as soon as funds were available to pay him. On 13 August 1999 the applicant was informed by the Moscow Bailiff Service that the consolidated enforcement proceedings were continuing, and that the applicant's number in the list of creditors was 430. The letter further stated that the applicant would be informed of developments in his case. On 16 August and 15 September 1999 the Central Bank of Russia declared a moratorium until 17 November 1999 on execution of all creditors' demands against the Bank. 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 (Закон «О реструктуризации кредитных организаций»). On 16 November 1999, in accordance with the same Law, a moratorium was f all creditors' demands against the Bank for a year. This period was prolonged by ARKO on 17 November 2000 for another six months, until 17 May 2001. On 3 July 2001 the Constitutional Court found unconstitutional the legislative provision that allowed ARKO unilaterally to extend the moratorium for another six months, and ruled that such decisions should be subject to judicial control. After the communication of the complaint to the Russian Government on 22 March 2000, the applicant continued his efforts to have the court decision enforced. In particular, he sued the Moscow City Department of Justice for compensation for pecuniary and non-pecuniary damage. His claim was rejected in the final instance by the Moscow City Court on 4 July 2001. He also filed a request with the Moscow Commercial Court (Арбитражный Суд г. Москвы) for the Bank to be declared bankrupt, but his request was rejected on 16 August 2000 for lack of standing under national law. It also appears that the applicant attempted to complain about the actions of the Bailiff Service. On 15 May 2000 and on 19 June 2000 the Presnenskiy District Court of Moscow adjourned consideration of the complaint, as the applicant failed to distinguish between a complaint and a claim for damages. On 30 October 2000 the same court rejected the applicant's request to have the requirement to pay a fee for bringing his civil claim against the Bailiff Service lifted. On 1 August 2000 the same court adjourned the applicant's complaint concerning the actions of ARKO on account of his failure to comply with formal requirements. In October 2001 the Meshchanskiy District Court of Moscow rejected the applicant's claim for compensation against the Central Bank for pecuniary and non-pecuniary damage On 8 May 2001 the Moscow Commercial Court approved the text of a tripartite friendly settlement involving the Association of the Bank's Creditors, the Bank and ARKO. The text of the friendly settlement was adopted at the general meeting of the Association of Creditors on 9 February 2001 by a majority of votes. The applicant, who had been invited to the meetings in November 2000 and February 2001, did not participate and it is not clear if he submitted his vote by post. According to the agreement, the applicant is entitled to the immediate refund in cash of 10 per cent of his deposit, and to two bonds of 1,000 USD each with maturity dates in 2007 and 2008. On 22 June 2001 the Appeal Chamber of the Moscow Commercial Court (апелляционная инстанция Арбитражного Суда г. Москвы по проверке законности и обоснованности решений арбитражных судов, не вступивших в законную силу), and on 11 August 2001 the Federal Commercial Court for the Moscow Region (Федеральный Арбитражный Суд Московского округа) confirmed the decision of 8 May 2001. In the same set of proceedings the courts reviewed the complaints of those creditors who were dissatisfied with various aspects of the friendly settlement. The courts found the settlement and the procedures leading to its conclusion to be in accordance with national legislation. In particular, the courts rejected the complaint that the moratorium, and later the friendly settlement, conflicted with the principles of compulsory execution of judgments and inviolability of property rights. The courts referred to the decision of the Russian Constitutional Court of 3 February 2000 on the constitutionality of a legislative provision allowing the Central Bank to declare a moratorium on the execution of a lending agency's debts. It noted that the aim of these provisions was to ensure a fair division of assets among all the creditors of a bank, which would not be possible if the “first-come-first-served” principle were to be applied. The courts also noted that the Law on Enforcement Procedure allowed closure of enforcement proceedings once a friendly settlement between the parties had been approved by a court. On 23 July 2001, following an order of the Basmanny District Court of Moscow, the Moscow Bailiff Service closed the consolidated enforcement proceedings on court decisions against the Bank. The applicant appealed against this order, and on 8 April 2002 the Basmanny District Court found the bailiff's actions lawful, as they were based on a previous court order. Throughout 2001 the applicant was informed by ARKO, the Bank and the Central Bank about the terms of the agreement. In December 2001 ARKO informed the applicant that over 97% of the total number of debtors had presented their claims and benefited from the terms of the agreement. The scheme would remain open until 1 April 2002, after which date the remaining liabilities would be deposited with a public notary. In an unrelated set of proceedings, the applicant complained that in 1997 his apartment was burgled. The burglars, G. and V., were convicted in December 1997, sentenced to prison terms and ordered to compensate the applicant for the value of the stolen items. These sums were not paid until October 1999, as the debtors were in prison and did not have any assets. The applicant applied to the Pskov City Court to have the amount adjusted to take account of inflation. The Pskov City Court rejected the claim on 6 May 1999. Its decision was confirmed by the Pskov Regional Court on 10 June 1999. On 17 March 2000 the Presidium of the Pskov Regional Court, acting upon a request for supervisory review lodged by the Pskov Regional Prosecutor, quashed the decisions of 6 May 1999 and 10 June 1999 and remitted the case for a new consideration. On 20 March 2001 the Pskov Regional Court awarded the applicant 6,700 roubles, to be paid jointly by G. and V. On 26 April and 7 May 2001 the Pskov Bailiff Service opened enforcement proceedings. On 17 July 2001 these proceedings were adjourned in respect of debtor G. as his location was unknown. The applicant did not appeal against this order. Article 9 of the Law on Enforcement Procedure provides that the bailiff shall issue within three days after receiving a court order an act initiating enforcement procedure (постановление о возбуждении исполнительного производства). Copies of the act are to be forwarded to the parties and to the court which made the order. Article 11 provides that the enforcement proceedings take place at the location of the debtor or his property. Article 13 provides that the bailiff shall enforce the order within two months from the date of receiving it. Article 90 provides that complaints about actions of the bailiff should be submitted to the district court for the area where the bailiff is located. The Law on Insolvency (bankruptcy) of Lending Agencies (Закон «О несостоятельности (банкротстве) кредитных организаций»), Article 26 thereof, provides that the Bank of Russia may introduce a three-month moratorium on execution of all debts of a bank/lending agency if there is a threat of bankruptcy. The Law on Restructuring of Lending Agencies gives details on the transfer of the management of a lending agency to the Agency on Restructuring of Lending Agencies (ARKO). Article 13 states that when ARKO takes over management of a bank/lending agency which is under threat of bankruptcy, a moratorium of 12 months is declared on execution of all its debts. ARKO may extend the moratorium for another six months. On 3 July 2001 the Constitutional Court adopted a decision (Постановление Конституционного Суда Российской Федерации № 10-П) by which it found unconstitutional the legislative provisions which allowed ARKO to extend a moratorium for six months. The Court noted that ARKO was not a public authority and that it enjoyed an unlimited discretion in this decision, which could interfere with the rights of creditors. It further noted that ARKO's actions should be subject to judicial control.

dev

001-107125

ENG

SWE

CHAMBER

CASE OF SAMINA v. SWEDEN

No violation of Art. 3 (in case of extradition to Pakistan)

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

6. The applicant was born in 1971 and currently lives in Uppsala. 7. On 2 May 2007, at the age of thirty-six, she arrived in Sweden. The following day she applied to the Migration Board (Migrationsverket) for asylum and a residence permit. 8. On 25 July 2007 counsel was appointed for the applicant, who in a communication of 5 September 2007 and during an interview on 25 October 2007 held by the Migration Board, stated her reasons for requesting asylum as follows. The applicant was born and raised in Karachi in a family which had been Christian for several generations. She had a university degree and had taught Urdu in a secondary school in Karachi from 1999 until she left the country. She was married, but had been separated from her husband since May 2006. Her parents and three of her siblings remained in Karachi. In 2004 she had become active in a Christian organisation called Franciscan Justice, Peace and Integrity of Creation Commission (Franciscan JPIC). She had worked as a volunteer in her free time and the purpose of the Franciscan JPIC had been to create understanding between Christians and Muslims and to carry out charity work on a local level. She had, inter alia, helped women in vulnerable situations. In March 2007 she and some of the members of the organisation had been threatened and harassed through letters and text messages to their mobile phones. She was convinced that religious fundamentalists were responsible for the threats because they wrongly believed that the Franciscan JPIC tried to convert Muslims to Christianity. Her father had destroyed the five or six letters which had come to their home and she had only read one of them. She had read three text messages, thereafter she disposed of her SIM card. In the morning of 27 March 2007, following a night mass, she had been travelling on the organisation’s minibus with the President, Vice-President and two other members when they had been stopped by three or four fundamentalists on motorbikes. She seemed to remember that the minibus had a red cross on the roof. The assailants had used cricket bats to try to break the windows of the minibus and had accused the group of blasphemy against Islam. The driver had succeeded in driving away from the assailants. The President of the organisation had reported the assault to the police. Thereafter, the applicant lived with her aunt in another town until she left Pakistan on 17 April 2007. 9. Following the applicant’s arrival in Sweden, she was informed by her father that she had been formally accused of blasphemy and that an arrest warrant had been issued against her. Her father sent her a copy of the arrest warrant and of a police report, but she did not know how her father had obtained them or where the originals were. She believed that the arrest order had only been shown to her father. Later, he also sent her a copy of a summons, but she was not sure whether it was an arrest warrant or a summons; she would have to verify that with her father. The said documents could be described as follows: “1. A copy of poor quality of a document in Urdu which was not translated. According to the applicant, the translation was the “First Information Report” (FIR) lodged by three named persons at a Karachi police station on 5 May 2007. It was registered as FIR. 65/2007 and contained accusations against the applicant and three other members of the Franciscan JPIC of having violated Articles 295(b) and 295(c) of the Penal Code. The document stated that the person who lodged the report attacked and assaulted the applicant and three others and tried to kill them. It further stated that the attackers searched for the applicant in her home with the intention of killing her. 2. A copy of a document in English, stating “the summons/warrant noted on the margin is forwarded herewith for service”. The names of the applicant and three other persons were inserted in handwriting as was case no. “315/2007”, “FIR no. 65/07” and Articles “295 (b) and 295(c)” of the Penal Code. It was allegedly issued by the Court of 12th Judicial Magistrate East and directed to the Police Station “Gulshan-e Jabel” (inserted in hand writing) in Karachi. It stated: “You are hereby directed to depute some responsible officer not less then the rank of ASI for the service and also direct him to present in person along with process and report on 5 June 2007 (the date in handwriting) at 8.30 a.m. without fail.” It was signed and stamped. 3. A copy of an alleged warrant for arrest in English. The document contained very few lines typed with an old type writer, for example “you are herewith directed to arrest the said ... and to produce him befo(deleted). Hereln fail not.” The main parts were inserted in hand writing such as FIR no. 65/07, case no. 315/07, the court as above, the same Articles of the Penal Code as above, and the names of the applicant and the same other three persons as the above, and the dates. Allegedly the police were asked to arrest them before 10 July 2007 and the warrant was signed and stamped on 20 June 2007.” 10. The applicant also submitted: “4. A copy of a certificate written by the President of Human Rights International Alliance, dated 16 April 2007, in which he certified that the applicant was an acting member of the Franciscan JPIC Pakistan and that she had visited him to ask for help because she felt threatened by religious fundamentalists. She and her colleagues had reported this to the police and the President had also looked into her claims together with his team and had found that the applicant’s life was endangered by religious fundamentalists. He considered that the applicant was in need of complete protection. 5. A copy of a certificate dated 4 April 2007 by the Director of the Franciscan Justice, Peace and Integrity of Creation Commission, Custody of St. John the Baptist, Pakistan. The Director certified that the applicant had been an active member of the organisation since 2004 and that she had voluntarily devoted her time to the organisation. The organisation worked for peace and justice and to bring harmony through interfaith dialogue in order to allow different religions to understand each other. They also assisted poor people, in particular women. It was further stated that the applicant and other members of the organisation had received life-threatening calls, letters and text messages. Four times, unknown persons had thrown stones at them. Muslim extremists wanted to kill them and their families because the extremists mistakenly believe that the organisation wants to convert Muslims to Christianity. The last threatening letter had stated that the members of the Franciscan JPIC were “kafar” and that the authors had commenced “jihad” against them and would kill them. They also threatened to have them punished through the blasphemy laws. The organisation had reported this to the police but without results so they had stopped their activities. The Director requested that the applicant be granted asylum in order to save her life. 6. A copy of a letter very similar to the one above but written by the President of the Franciscan JPIC, dated 5 April 2007.” 11. On 21 November 2007 the Migration Board rejected the application. It first noted that neither the general situation in Pakistan nor the general situation for Christians in Pakistan were such as to justify granting the applicant protection in Sweden. As concerned her personal grounds, the Board considered that the certificates from the Franciscan JPIC did not substantiate that she had been the victim of threats and harassment. Moreover, the arrest warrant did not state expressly why she was sought by the authorities. Hence, even if the documents were real, they did not show that she would risk being punished for blasphemy in a discriminatory manner. The Board further questioned whether the police report was genuine as the applicant had handed it in to the Board after she had submitted the arrest warrant. It also found it unlikely that persons would admit to crimes in a report to the police giving their names and details, since making threats and assaulting someone were also crimes in Pakistan. Lastly, it found it remarkable that the applicant could not explain how her father had obtained the documents. Hence, the documents did not substantiate the applicant’s story. Turning to her credibility, the Board considered that the applicant had given a rather vague and unclear account. She had also altered some of her statements and, in large parts, her story was based on information from her father, as he had read and destroyed the letters and obtained the documents concerning blasphemy. Furthermore, the applicant had not been able to explain why she had been of particular interest to the fundamentalists as opposed to the others who had been prominent members of the organisation. Her explanation, that she had been very active as a volunteer and thus visible, was not convincing to the Board. In any event, the acts of which she had been the victim were criminal acts and for the Pakistani authorities to deal with. Although some discrimination existed in Pakistani society, it was not so flagrant that it could be said that the authorities lacked ability or willingness to protect its citizens. In this respect, the Board observed that the applicant had not reported any of the threats, and that her family had not tried to find out the details about why the police were looking for her. It did not consider that the applicant faced a real and concrete risk of being punished for blasphemy. Furthermore, it noted that the applicant had an aunt in another city and that, since the Franciscan JPIC according to the applicant was a very small and local organisation, she should be able to avoid problems by settling in the same city as her aunt. Consequently, the Board concluded that the applicant was not in need of protection in Sweden. 12. The applicant appealed to the Migration Court (Migrationsdomstolen) and requested a change of lawyer. She alleged that her sister had been kidnapped and her parents had disappeared. She further alleged that she could not live with her aunt, as her cousin had abused her while she had been staying with them in April 2007. She pointed out that the warrant of arrest did state why she was sought by the authorities in that it made reference to Article 295(b) of the Penal Code which concerned defiling and similar of the Holy Koran and could lead to imprisonment for life. Reference had also been made to Article 295(c) of the Penal Code, which concerned the use of derogatory remarks and similar in respect of the Holy Prophet and could lead to the death sentence. Furthermore, she had received two leaflets from a friend in Pakistan showing that fatwas had been issued against her and her colleagues in the Franciscan JPIC. Also, it was clear that the applicant, as a Christian and as a woman, could not count on the protection of the police. Instead, going to a police station where there were only Muslim men would put her at further risk of abuse. Furthermore, the organisation had reported the threats to the police and the other members at risk had also fled the country. Lastly, she stated that she was in very poor mental health following the disappearance of her family, which she considered to be her fault. 13. She submitted, inter alia, the following documents: “7. A copy of a letter dated 7 April 2007 sent by the applicant to the President of Human Rights International Alliance informing him, inter alia, that the organisation had received threatening letters and that four times unknown persons had thrown stones at them. 8. A copy of a letter by the President of the Human Rights International Alliance in Pakistan, dated 14 April 2007, and addressed to the Inspector General of Police in Karachi. It referred to a letter from the applicant as “acting member, Franciscan JPIC Pakistan,” which the President had received and which he enclosed (it referred to the threats made by extremists against the applicant and other members of the Franciscan JPIC). The President was asking the Inspector General to take the necessary legal action in order to protect the life of the applicant and her colleagues. 9. A copy of a handwritten letter from the Franciscan JPIC to the Pirabad Police Station in Karachi in which they reported that they had been attacked, when travelling on their bus, by a group of unknown men who had thrown stones at them. The letter was stamped as received at the Police Station on 16 April 2007. 10. A one-page leaflet in Arabic which, allegedly, was a fatwa issued by Mufhta Jamelo Rehman and in which the applicant and the other named members of the Franciscan JPIC were accused of having insulted Allah and the Prophet. They should therefore be killed in Jihad and the person who carried out this deed would be allowed into heaven. He requested all Muslims to join in this work of justice. 11. A one-page leaflet in Arabic which, allegedly, described how Muslims were insulted by other religions and stated that the applicant and other named members of the Franciscan JPIC had insulted the Koran and the Prophet. It requested the Pakistani Government to arrest the guilty parties immediately and to hang them. If not, it was all Muslims’ duty to participate in Jihad against the infidels and to kill them. 12. A medical certificate by a physician in psychiatry dated 17 April 2008, which stated that the applicant had been treated at the clinic between 15 and 17 April 2008 for suicidal thoughts. According to the physician the applicant was suffering from serious depression and Post Traumatic Stress Disorder (PTSD), In particular, the applicant was worried about returning to Pakistan and her relatives in Pakistan. Some family members had fallen ill and her sister had been kidnapped. 13. A medical certificate, dated 28 October 2008, written by the same doctor as above. It stated that the applicant had been in treatment since December 2007. She had been committed to a closed psychiatric unit between 7 and 28 December 2007 because she had collapsed and had suffered from a serious mental disorder, including suicidal thoughts and depression. Due to her severe depression she had been treated with ECT (electric shocks). Since then she had been taking antidepressants and seeing a doctor every second month. In October 2008 she had been found still to be suffering from severe depression and she claimed to hear voices from her family and sometimes to see them in front of her.” 14. On 8 October 2008 the applicant’s request for a change of counsel was rejected by the Migration Court, notably because the case was almost ready for judgment and the acknowledged differences between counsel and the applicant could not justify a change of counsel. Leave to appeal against that decision was refused by the Migration Court of Appeal (Migrationsöverdomstolen) on 11 November 2008. 15. On 19 May 2009 the Migration Court held an oral hearing during which the applicant was heard. Her appointed counsel was present, as well as an adviser. The applicant maintained that her parents had disappeared the day after they had reported the kidnapping of her sister to the police. When the applicant had learned what had happened to her family, she was admitted to hospital. 16. By judgment of 4 June 2009 Migration Court found against the applicant. From the outset it considered that the written evidence submitted in the case was of low evidential value as the copies were of very poor quality and unclear. The leaflets allegedly containing fatwas issued against the applicant, for example, which were shown to the court in originals (documents nos. 10 and 11), could easily be produced and did not have much weight as evidence. Moreover, the applicant had not known how her father had obtained the alleged arrest warrant or the police report (FIR). As concerned the applicant’s credibility in general, the court found that her story had been vague and uncertain, in particular in respect of the content of the threats. She had claimed that her father had protected her from most of the threats arriving at the home by letter and telephone and, hence, she could not account for their content. She had also claimed that she did not know the identity of those who had threatened her. In the court’s view, however, this was rather contradictory since these persons allegedly had stated their names in the FIR. It thus appeared odd that they would have made anonymous threats. Furthermore, in the FIR the persons had written that they had sought the applicant at her home with the purpose of killing her. However, the applicant had not mentioned this at all. Also, the court considered that the threat against the applicant appeared disproportionate having regard to the fact that she had not been a member of the organisation, just a volunteer, and that she had not held any prominent or official role. Allegedly, the organisation was very small and worked only locally. As concerned the applicant’s family in Pakistan, the court noted that it was very unclear what had happened to them. In any event, it had not been substantiated that their alleged disappearance had anything to do with the threats against the applicant. Lastly, it considered that the applicant was suffering from poor mental health but that this was not life-threatening or so serious that it could justify the granting of asylum in Sweden. 17. The applicant appealed to the Migration Court of Appeal, relying on the same grounds as previously. She added that the President of the Franciscan JPIC had been granted asylum in Italy and that the Vice-President had been granted asylum in Canada. She submitted: “14. A medical certificate dated 3 July 2009 issued by the physician in psychiatry mentioned in documents 12 and 13. He stated that the applicant was still under treatment at the out-patient psychiatric unit and that she was suffering from an acute crisis reaction and a severely depressive period. He concluded that the applicant’s mental state of health was fairly bad and that the risk for suicide was probably high.” 18. Anew the applicant requested a change of counsel, which was refused by the Migration Court of Appeal on 15 July 2009. 19. On 22 September 2009 the Migration Court of Appeal refused leave to appeal on the merits. 20. On 26 October 2009, upon request by the applicant, the Court applied Rule 39 of the Rules of Court until further notice. 21. Before the Court the applicant submitted: “15. A letter from Rt. Rev Sadiq Daniel, Bishop of Karachi, dated 28 April 2009, stating that the Bishop had made enquiries about the applicant’s family but that all of them had been missing since the last week of November 2007. They were not at their home address and the local police had refused to cooperate in finding them.” 22. The Government requested assistance from the Swedish Embassy in Islamabad, which in return requested assistance from, inter alia, the Nordic Liaison Office in Islamabad in order to verify the authenticity of some of the documents submitted by the applicant. As to the copy of the FIR no. 65/2007 (document no. 1), an officer from the Nordic Police Liaison Office visited the police station in Gulshan Iqbal in Karachi. Without supplying background information, the police registrar at the above police station was asked to show FIR no. 65/2007, which he did. It related to a theft from a computer shop lodged at the police station on 4 February 2007 under Pakistani Penal Code 392 and 394. 23. The registrar of the police station provided a copy of a stamped FIR 65/2007 in Urdu. It was translated as follows: “16. FIR no. 65/2007 was the first information report regarding a crime and included a signed statement by the person reporting it to the police. The report was issued at the Gulshan Iqbal police station, district Gulshan Iqbal Town. The person reporting to the police, Mr. Touseef Ali, reported on 4 February 2007, an armed robbery committed by four unknown persons. The robbery had occurred earlier that day at the Playdium Computer Game Centre, where Mr. Ali worked. The thieves stole mobile phones and cash from people at the centre. They also stole a car which was parked outside the centre. The report is signed by the policeman who issued the report. Legal reference of the crime is made to rule 392-34 of the Pakistani Constitution.” 24. The office of the Judicial Magistrate XII was also visited for the purpose of verification of the alleged summons and the arrest warrant (documents nos. 2 and 3). The total number of cases registered with the office for the year 2007 was 249. Case number 315/07 does therefore not exist and there are no records at the Office of the Judicial Magistrate XII of the summons or of the arrest warrant. Furthermore, no arrest warrant was issued by the office in the name of the applicant and others on 20 June 2007. 25. The Office of the Judicial Magistrate XII stated that the text on the copied stamps on the two documents (documents nos. 2 and 3) was false. The text of the genuine, round stamps should read “Court of Civil/Judge Judicial Magistrate - XII Karachi - East”, whereas the round stamp seen on the alleged summons and arrest warrant reads “Court of XII. Judicial Magistrate First Class Karachi East”. As regards the second stamp on the alleged arrest warrant, the text of the genuine stamp underneath the initials of the magistrate should read “Civil Judge, Judicial Magistrate XII, Karachi-East”, whereas the stamp on the alleged warrant read “Judicial Magistrate First Class Court No. XII, Karachi East”. Finally, the Office of the Judicial Magistrate XII stated that the signature on the documents was not recognised. 26. The address provided by the applicant in her asylum application as being her home address, where she had lived with her parents until shortly before leaving Pakistan, was also visited by a contact person from the Nordic Police Liaison Office. The family still resided there and there was no indication that they had disappeared. 27. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the Aliens Act”), as amended on 1 January 2010 and described inter alia in N. v. Sweden, no. 23505/09, § 29-33, 20 July 2010. 28. The US Department of State “2009 Human Rights Report: Pakistan”, of 11 March 2010, stated among other things: “Arrest Procedures and Treatment While in Detention A First Information Report (FIR) is the legal basis for any arrest. Police may initiate FIRs when complainants offer reasonable proof a crime was committed. A FIR allows police to detain a named suspect for 24 hours, after which only a magistrate can order detention for an additional 14 days, if police show such detention is material to the investigation. In practice authorities did not observe fully these limits on detention. Authorities frequently issued FIRs without supporting evidence to harass or intimidate detainees, or did not issue them when adequate evidence was provided unless the complainant paid a bribe. Police sometimes detained individuals arbitrarily without charge or on false charges to extort payment for their release. Police also detained relatives of wanted individuals to compel suspects to surrender. ... Freedom of Religion The constitution states that adequate provisions shall be made for minorities to profess and practise their religions freely, but the Government limited freedom of religion in practice. Islam is the state religion, and the constitution requires that laws be consistent with Islam. The Federal Shariat court ensures that laws are consistent with Shari’a. All citizens are subject to the blasphemy laws. Freedom of speech is constitutionally subject to “any reasonable restrictions imposed by law in the interest of the glory of Islam”. According to the HRCP (Human Rights Commission of Pakistan) there was an increase in cases of violence against minorities during the year. Reprisals and threats of reprisals against suspected converts from Islam occurred. Members of religious minorities were subject to violence and harassment, and at times police refused to prevent such actions or charge persons who committed them, leading to an atmosphere of impunity. The constitution stipulates that the president and the prime minister must be Muslim. The prime minister, federal ministers, and ministers of state, as well as elected members of the Senate and National Assembly (including non-Muslims), must take an oath to “strive to preserve the Islamic ideology”, the basis for the creation of the country. Religious groups must be approved and registered; there were no reports that the government refused to register any group. ... The penal code calls for the death sentence or life imprisonment for anyone who blasphemes the Prophet Muhammad. The law provides for life imprisonment for desecrating the Koran and up to 10 years in prison for insulting another’s religious beliefs with the intent to offend religious feelings. The latter penalty was used only against those who allegedly insulted the Prophet Muhammad. On January 22 [2009], police arrested Hector Aleem, the country director of a Christian human rights NGO, after a member of a militant Islamic organization accused him of sending a blasphemous text message from his cell phone. Although the blasphemy charges were dropped after evidence showed the text message was not sent from Aleem’s cell phone, the charges of abetting blasphemy stood. A judge denied bail on April 30 and remanded Aleem in custody “for his own protection” after a religious extremist lawyer threatened his life in a court hearing ... At the end of the year, Aleem remained in jail awaiting trial on charges of abetting blasphemy. ... On December 14 [2009], a local court acquitted and freed Christian Gulsher Masih and his daughter, Sandal Gulsher. They had been detained in October 2008 in Faisalabad after the father was accused of desecrating the Koran. ...” 29. The Country of Origin Information (COI) Report produced by the United Kingdom Border Agency on 17 January 2011 stated among other things: “19. FREEDOM OF RELIGION ... 19.09 The USSD IRF Report 2010 (the US Department of State’s International Religious Freedom Report 2010) observed that: Approximately 95 percent of the population is Muslim (75 percent Sunni, 25 percent Shia). Groups composing 5 percent of the population or less include Hindus, Christians, Parsis/Zoroastrians, Baha’is, Sikhs, Buddhists, Ahmadis, and others... 19.18 The PHRG (Parliamentary Human Rights Group) Report 2010 stated that “The State of Pakistan is failing at all levels to address the problem of malicious complaints of violations of the blasphemy law being pursued against Ahmadis and Christians, as well as members of other religious communities. ... 19.20 The HRCP Report 2009 noted that “In 2009, a total of 41 complaints of blasphemy were registered by the police. Some 37 Ahmedis were booked under blasphemy laws and 57 Ahmedis were charged under Ahmedi-specific laws. However, many cases were registered against Muslims as the rival sects of Islam increasingly used the blasphemy law against each other... The HRCP Report gave a number of accounts of blasphemy cases filed during 2009. 19.21 The Freedom House special report Policing Belief: The Impact of Blasphemy Laws on Human Rights, published October 2010, noted that “According to data compiled by nongovernmental organizations (NGOs) and cited by the U.S. State Department, a total of 695 people were accused of blasphemy in Pakistan between 1986 and April 2006. Of those, 362 were Muslims, 239 were Ahmadis, 86 were Christians, and 10 were Hindus. The Pakistani daily newspaper Dawn has reported that some 5,000 cases were registered between 1984 to 2004, and 964 people were charged with blasphemy. 19.22 The AHRC (Asian Human Rights Commission) Report 2009 provided slightly different data and noted that “According to data collected by the National Commission for Justice and Peace (NCJP), at least 964 persons were alleged under these anti-blasphemy clauses from 1986 to August 2009, while over 30 persons were killed extra-judicially by the angry mob or by individuals. 19.23 According to the National Commission for Justice and Peace (NCJP), at least 112 cases were registered under the blasphemy laws during 2009. “Of the 112 persons, 57 were identified as Ahmadis, 47 Muslims, and eight Christians. A total of 1,032 persons have been charged under the blasphemy laws between 1987 and 2009. ...” 30. As to mental health, the COI report went on: “26.26 The HRCP Report 2009 recorded that “According to an expert every fifth person in the country suffers from some kind of psychological disease. The most common form of mental ailment is depression. Social behaviour creates hurdles in curing psychological diseases because people generally shy away from consulting doctors lest they attract stigma. There are only 400 qualified psychologists to handle the rapidly growing number of psychiatric cases in the country. 26.27 The World Health Organisation’s Mental Health Atlas 2005 for Pakistan stated that: The primary sources of mental health financing in descending order are: out of pocket expenditure by the patient or family, tax based, social insurance and private insurances. The country has disability benefits for persons with mental disorders. Disability benefit is paid to individuals who are not able to work due to mental illness. Mental health is a part of primary health care system. Actual treatment of severe mental disorders is available at the primary level. The programme has initially started in Punjab, the largest province, in 1985 and is being extended to others over the years. There are many residential and day-care facilities, especially for people with learning disabilities providing social, vocational and educational activities. Regular training of primary care professionals is carried out in the field of mental health. Training programmes have started in the province of Punjab as a part of in-service training for primary care personnel. Till now, approximately 2000 primary care physicians and 42 000 primary care workers have been trained. Community activists from NGOs (e.g. National Rural Support Programme (NRSP) are also being trained. Though there are training programmes for physicians, nurses and psychologists, there are no such facilities for social workers. Mental health training has been included in the programme of the District Health Development Centres. The Institute of Psychiatry, Rawalpindi Medical College, was the first WHO collaborating Centre-EMR and is acting as a resource centre at national and regional level for training, services information system and research. Multiple training manuals for primary health care physicians, paramedics, community workers and teachers have been developed. In an additional training package on counselling skills for health professionals, a package for rehabilitation of mentally ill has been developed... There are community care facilities for patients with mental disorders. ..More than 78 junior psychiatrists have been trained in community mental health to act as resource persons in the development of programmes in their areas. The National Steering Committee evaluates the quality of care delivery on a regular basis. ... 26.29 The Mental Health Atlas listed the following therapeutic drugs as generally being available at the primary health care level of the country: carbamazepine, phenobarbital, chlorpromazine, diazepam, haloperidol; imipramine (is supplied instead of amitriptylline); and procyclidine.”

dev

001-118734

ENG

HRV

CHAMBER

CASE OF ERKAPIĆ v. CROATIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Non-pecuniary damage - award

Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

4. The applicant was born in 1967 and lives in Zagreb. 5. On 19 October 2000 a Zagreb County Court (Županijski sud u Zagrebu) investigating judge questioned a witness, M.S., about alleged heroin trafficking in Zagreb. M.S. testified, inter alia, that in April 2000 he had transported one kilogram of heroin from B.S. to another person, known to him as “Mario”. 6. As part of a further police investigation of the organised supply of heroin in Zagreb, on 27 April 2001 the Drug Suppression Unit of the Zagreb Police Department (Policijska uprava Zagrebačka, Sektor kriminalističke policije, Odjel kriminaliteta droga; hereinafter “the police”) questioned a suspect, I.G.H., who stated that he had bought heroin from the applicant. During the questioning he was assisted by lawyer H.B. The questioning of I.G.H. commenced at 11.15 p.m., after a defence lawyer appeared at the police station at 11.10 p.m., and ended on 28 April 2001 at 1 a.m. 7. On 31 May 2001 the police questioned another suspect, V.Š., who stated that he was a heroin addict and that he had bought heroin from the applicant. During the questioning he was assisted by lawyer N.D. His questioning commenced at 4.26 p.m., after a defence lawyer appeared at the police station at 3.55 p.m., and finished at 5.43 p.m. on the same day. 8. On 6 June 2001 the applicant was arrested on suspicion of supplying heroin. The applicant was questioned by the police but chose to remain silent. 9. The next day the applicant was brought before an investigating judge at the Zagreb County Court. He denied all the charges against him but decided to remain silent and not to give any evidence. The applicant was again questioned by the investigating judge on 11 June 2001, but gave no evidence. 10. On 11 June 2001 an investigation was opened in respect of the applicant and eight other individuals, including I.G.H. and V.Š., in the Zagreb County Court in connection with a suspicion of conspiracy to supply heroin in Zagreb in the period between 1998 and 2001. 11. On 17 and 19 June 2001 the investigating judge sought to hear I.G.H., who chose to remain silent and not to give any evidence. When questioned by the investigating judge I.G.H. was not assisted by a lawyer. 12. On 21 June 2001 the investigation was extended to another defendant, I.S., who also chose to remain silent but denied all the charges against him. 13. On 25 June 2001 the police questioned another suspect, N.S. He stated that he had been a heroin addict for years and that he had been buying heroin from the applicant. During the questioning he was assisted by lawyer Ž.S. His questioning commenced at 5.50 p.m., after a defence lawyer appeared at the police station at 5.30 p.m., and finished at 6.55 p.m. on the same day. 14. On 16 July 2001 the investigating judge heard evidence from V.Š., who chose to remain silent. During the questioning V.Š. was not assisted by a lawyer, but he stated that his lawyer was I.K. 15. On 23 July 2001 the investigating judge heard evidence from witness M.S., who retracted his statement of 19 October 2000, stating that it had been given under coercion by the investigating judge and the police. He stated that it was not true that he had transported one kilogram of heroin to “Mario”. He also stated that he did not know the applicant. 16. On 26 July 2001 the investigating judge questioned the applicant in connection with the allegations made by N.S. The applicant denied the charges and refused to make any further statement. 17. On 31 July 2001 the investigating judge heard N.S., who complained that he had given his statement to the police under duress and that during his questioning he had been represented by a lawyer who was not of his choosing. Before the investigating judge N.S. was represented by lawyer D.G. On the same day the investigating judge extended the investigation to N.S. and two other individuals. 18. On 4 December 2001 the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) indicted the applicant and twelve other defendants in the Zagreb County Court. The applicant was charged with conspiracy to supply heroin in the period between mid-1998 and June 2001, whereas some of the co-accused were charged with supplying and possession of heroin. 19. The applicant lodged objections to the indictment on 14 and 21 December 2001, arguing that it had numerous substantive and procedural flaws. He requested, inter alia, that all official notes of the police interviews be excluded from the case file, as well as the record of I.G.H.’s oral statement given to the police. He contended that I.G.H. had been a heroin addict and that he had given his statement while at an advanced stage of withdrawal. 20. A three-judge panel of the Zagreb County Court dismissed the applicant’s objections against the indictment and remitted the case for trial on 11 April 2002. It excluded the official notes of the police interviews from the case file but not the record of I.G.H’s oral statement. 21. On 2 May 2002 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against that decision, and on 21 May 2002 the Supreme Court dismissed his appeal as ill-founded. 22. On 11 July 2002 the president of the trial panel of the Zagreb County Court commissioned a psychiatric report on the applicant’s mental capacity. The psychiatric report was drawn up on 27 July 2002. It confirmed that the applicant had full mental capacity and was intellectually able to participate in the proceedings. 23. After he had received some further documentation from the defence concerning the applicant’s psychiatric treatment, on 8 November 2002 the president of the trial panel commissioned another psychiatric report. The medical expert reiterated all his previous findings. 24. At a hearing held on 25 November 2002 the applicant pleaded not guilty. 25. Further hearings were held on 28 November 2002 and 21 February 2003, at which the trial court heard evidence from six witnesses and an expert witness in toxicology. A police officer, D.Z., gave oral evidence concerning a police trap they had set for one of the accused, D.L., and also concerning his questioning of another accused, Z.E. 26. On 8 April 2003 the president of the trial panel commissioned a psychiatric report on the mental capacity of N.S. at the time the alleged offence was committed. 27. At a hearing on 29 May 2003 a psychiatric expert testified that N.S., in the period concerning the charges held against him, had had diminished mental capacity but that he had been able to understand the nature of his acts. In that period he had been addicted and a user of illegal drugs. This meant that he did not have significant withdrawal crises. The parties made no objections to these findings. 28. At the same hearing the trial panel commissioned a psychiatric report in respect of the other accused, including V.Š. and I.G.H. 29. On 9 June 2003 the president of the trial panel informed the defence lawyers that he had received information from the Italian authorities that one of the witnesses, D.M., could be heard in Italy since he was serving his prison sentence there. The president of the trial panel asked the defence lawyers to inform him whether they wished to be present during the questioning of that witness in Italy. 30. On 18 June 2003 the psychiatric expert submitted his report commissioned at the hearing on 29 May 2003. He found that, in the period concerning the charges, V.Š. and I.G.H. had been heroin addicts. Their mental capacity had therefore been diminished but they were able to understand the nature of their acts at the time. In addition, I.G.H. had a personality disorder. 31. On 23 October 2003 the applicant’s defence lawyer informed the Zagreb County Court that he would not travel to Italy for the questioning of witness D.M. On 25 October 2003 witness D.M. was questioned by an investigating judge in court in Vasto, Italy. He did not provide any evidence concerning the applicant. The record of his statement was forwarded to the Zagreb County Court. 32. A further hearing was held on 8 March 2004, at which witness M.S. reiterated that he had made his first statement, on 19 October 2000, to the investigating judge under coercion and fear of ill-treatment by the police. He claimed that he had never transported any drugs as he had described in his statement. 33. At a hearing on 19 April 2004 the psychiatric expert confirmed his findings in respect of V.Š. and I.G.H. The defence lawyers raised objections concerning the methods used and the expert’s findings. 34. Another hearing was held on 23 March 2005, at which the defence lawyers asked for witness D.M., who had been heard by the Italian authorities, to be heard at the trial. The trial panel dismissed their request, on the grounds that there were significant impediments to securing his presence at the hearing, and that he had already been questioned by the Italian judicial authorities. 35. At a hearing on 24 March 2005 the applicant, V.Š. and I.G.H. all gave evidence. The applicant again denied all the charges against him and complained that he had been ill-treated by the police. 36. V.Š. testified that he did not know the other co-accused. As to the statement he had made to the police, he stated: “I have been a [heroin] addict for years and when I was in the police [station] nobody asked me anything but [a police officer] K.A., whose face I will never forget, drafted a record in another room. I asked for my lawyer, K. but the police told me that K. was a mafia lawyer and that he could not come ... I would like to add that when I was arrested the police told me that they needed me to give a statement. They knew I was soft and that I would sign everything they asked just to get out. That is how I signed this record, which was, as I said, drafted in another room ... I can answer the questions of the president of the trial panel by saying that I had a number of interviews with [the police officer] K.A. but he told me that this would never become part of a case file and he told me the same thing for this [statement]. However, since [K.A.] did not want to call my lawyer K., he called this other lawyer who never gave me any advice. He just told me that he had signed the record and that I could do whatever I wanted. I have to say that [this lawyer] was a woman. Nothing I said in that statement is true ... except the part in which I said that I was an addict. ... The only true information [in that statement] is my personal details and the fact that I was an addict but [the police officer] already knew that. The part where I said that I was not in withdrawal was absolutely not true ... I have known K.A. for six years, he has arrested me on a number of occasions and he once lodged a criminal complaint against me. Once he also threatened me that if I did not tell him something, he would lodge a criminal complaint, which he had previously prepared against me, but that never happened. He tolerated my [heroin] addiction but asked me to tell him from whom I was buying drugs, and sometimes would tell him. Sometimes I would tell him the truth but mostly not, I was trying to gain time. ... I trusted [K.A.] when he brought me that record and told me to sign it and that everything would be all right, that I could go. Therefore I signed it. As to the questions put by [the accused] I can answer that when I was in the police [station] the only thing that was important for me was to get out and to get myself a heroin fix, or methadone, which I was just going to pick up when the police arrested me.” 37. I.G.H. also testified that he had been ill-treated by police and that his statement was the result of ill-treatment. He stated: “ ... In [the police station] the ill-treatment started immediately. Two or three police officers, whom I did not know, told me to spread my legs and put my hands behind my back with my head pressed against the wall. Whenever somebody passed by me I was kicked, and when I fell they kicked me on the ground. They were jumping all over me. This lasted for some time and then they started to negotiate, asking me to give a statement. I asked for lawyers J.N. or S.B. but they told me as regards [lawyer J.N.] ‘why do you need that bitch’ and also that [lawyer S.B.] would not come. The ill-treatment ... started again and then [police officers] [K.]A. and [D.]Z. came. They told me that they were good policemen and asked me to give a statement. They also told me that [V.Š.] had already made a statement and that they had two to three other statements and that I should also make a statement, sign it and I could go. Then I signed that statement but I did not see what was in it. I remember that there was some police lawyer who told me ‘you just sign here kid’. The policeman also blackmailed me with an arrest warrant against me which had been issued previously, saying that they would withdraw it if I signed. ... I would like to confront policemen Z. and A. concerning everything I have just said. ... The policeman also did not provide me with any medical assistance from a doctor and when I asked for heptaton they told me that there was no chance I could get it before I signed. ... I used to buy drugs all over the place, but never from anybody who is present in this courtroom. ... Nothing [in the statement] is true except my personal details. ... I know [police officers] Z. and A. ... They did not physically ill-treat me but they were asking me to work for them. It is not true what was written, that I was not in withdrawal. I was, and the policeman waved the heptaton in front of my eyes. They were showing me the drugs. The defence lawyer did not see anything, but he was only there for about ten minutes, he signed [the statement] and left.” 38. Another hearing was held on 25 March 2005, at which N.S. gave evidence. As to his statement given to the police, he stated: “ ... [In the police station] I was held for four or five hours. I was asked about Erkapić and [the policeman] told me that if I confirmed what they said they would let me go. So I did that, I signed the record and left. I did it because I was having a severe physical crisis. ... I never asked for the defence lawyer Ž.S. He was just there at one moment and the policeman told me that he was my defence lawyer. I don’t remember but I don’t think I ever signed a power of attorney for him. The record was written previously, and not while the lawyer was there. In the presence of the lawyer I was just confirming what was written in the record and then I signed it. I signed it without reading it, because I could not wait to get out and take drugs ... During my police questioning I was never offered medical assistance, although I was in withdrawal. ... the policemen saw that I was in withdrawal ... because I told them so, and I asked for a doctor and heptaton, but they said no. 39. At the same hearing another co-accused, D.L., testified that while he had been in police custody he had heard police officers beating and interrogating N.S. for three hours. 40. After the accused had given evidence the applicant’s defence lawyer asked for the records of the oral statements given to the police by V.Š., I.G.H. and N.S. to be excluded from the case file as evidence obtained unlawfully. The defence lawyers of the other co-accused made the same request. 41. At a hearing on 14 April 2005 the trial court dismissed their requests, on the grounds that the records of the statements given to the police did not reveal any reason to exclude them from the case file. 42. At the same hearing I.G.H. added that he had been told by policeman K.A. that they wanted to put the applicant in prison for fifteen years or kill him. V.Š. and I.G.H. reiterated that their statements given to the police had been a result of withdrawal symptoms and crisis. 43. In their closing argument, the applicant’s defence lawyers argued that the only evidence against the applicant was the statements of his co-accused, which had been made to the police under duress and pressure. They asked for the applicant to be acquitted. 44. On 14 April 2005 the Zagreb County Court found the applicant guilty as charged and sentenced him to eight years’ imprisonment, and imposed a confiscation order on him in the amount of 690,134.4 Croatian kunas (HRK). 45. The Zagreb County Court based the applicant’s conviction solely on the statements V.Š., I.G.H. and N.S. had made to the police. In addition it considered that witness M.S. had also testified that he had transported one kilogram of heroin to the applicant. 46. As to the lawfulness and probative value of the records of oral statements given to the police by V.Š., I.G.H. and N.S., that court noted: “The request to exclude the record of the statement made by the fourth accused, I.G.H., to the police on 27 April 2001, made by the defence lawyer of the fourth accused I.G.H., on the ground that when giving the statement [I.G.H.] had been undergoing withdrawal from heroin, was dismissed. [The record of his statement] does not reveal any suspicion that [I.G.H.] was in withdrawal. Moreover, there was a defence lawyer present during his questioning who did not have any objection as to the manner of the questioning. This record does not reveal any circumstances which could raise the suspicion that the questioning of the fourth accused I.G.H. by the police on 27 April 2001 had been unlawful ... It was also requested that the records of the statements given to the police by the third accused V.Š., the fourth accused, I.G.H., and the eleventh accused, N.S., be excluded from the case file on the ground that these statements were made under duress and that as such they could not be used in the proceedings. The records referred to do not reveal any circumstances which could raise the suspicion that the statements had been made under coercion or pressure. The defence lawyers were present during the questioning and they did not have any objections. ... There is nothing credible to support the suspicion that the records referred to were obtained unlawfully, and therefore the request for their exclusion was dismissed ... Statements by the third accused, V.Š., the fourth accused, I.G.H., and the eleventh accused, N.S., made to the police in the presence of their defence lawyers, are accepted by this court as they are clear, specific and precise. These statements support each other, they have a number of details which could obviously be known only from personal experience (particularly the details of how they contacted the first accused, Mario Erkapić, and how the drugs were distributed and hidden) ... The statements these accused made during the trial, where they tried to show that their previous statements were a result of unlawful treatment by the police (threats, ploys, ill-treatment), are not accepted by this court, as their aim is to avoid criminal responsibility. Moreover, the records of the police interviews do not contain any element capable of placing their lawfulness in question. This court is not persuaded that various unlawful aspects [of the police questioning] alleged by I.G.H. did not provoke any reaction by the accused, who argued that [any reaction] would have been futile. These allegations were made almost four years after the events concerned had taken place and are therefore not credible and are an obvious fabrication aimed at avoiding criminal responsibility.” 47. On 3 October 2005 the applicant lodged appeals with the Supreme Court against the first-instance judgment. He argued, inter alia, that his conviction had been based solely on the statements made to police by his co-accused, although that had been evidence obtained unlawfully, as his co-accused had been ill-treated by police during the questioning. Moreover, they had been heroin addicts and at the time of the questioning were going through withdrawal. 48. He further complained that the first-instance court had failed to hear the defence lawyers who had allegedly been present during the police questioning, and the police officers who had questioned his co-accused. In a situation in which his co-accused had raised the issue of coercion and illtreatment during the police questioning, and in view of the fact that they had incriminated not only themselves but also him, the trial court had been obliged to check their testimony. As to the statement of witnesses M.S., the applicant pointed out that this witness had never said that the person he knew as “Mario” was the applicant. 49. On 22 February 2006 the Supreme Court dismissed the applicant’s appeal. It upheld the findings of the Zagreb County Court that there was no evidence in the case file to suggest anything unlawful in the records of interviews with the police by the applicant’s co-accused. The Supreme Court pointed out that they had been questioned in the presence of the defence lawyers and that there was nothing to indicate any withdrawal symptoms, coercion or oppression. The Supreme Court also added: “The psychiatric expert D.M. found that in April 2001 [I.G.H.], as an addict, had a high tolerance of heroin, but [the expert] did not say that he was experiencing a withdrawal crisis, which [the expert] reiterated at the hearing. The defence had no questions ... There was not a single piece of evidence, including the report drawn up by psychiatric expert D.M., to suggest that [I.G.H.] had been unable to understand the consequence of his actions, and particularly that he was unable to testify before the relevant authorities, regardless of his heroin addiction and diminished mental capacity at the time the offence was committed. Equally, there is not a single piece of evidence that the accused V.Š., and N.S. ..., on account of their heroin addiction, were unable to understand the nature of their actions or to testify before the authorities. ...“ 50. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the above judgment on 4 April 2006, reiterating his previous arguments. 51. On 17 September 2008 the Constitutional Court dismissed the applicant’s constitutional complaint, endorsing the reasoning of the Supreme Court. The decision of the Constitutional Court was served on the applicant on 26 September 2008. 52. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010) read as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 53. The relevant part of Section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/1999, 29/2002 and 49/2002) reads: “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a particular action on the part of a state body, a body of local and regional self-government, or a legal person with public authority, affecting his or her rights and obligations, or placing him under suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: “constitutional right”) ... 2. If another legal remedy exists against the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law, is allowed, remedies are exhausted only after the decision on these legal remedies has been given.” 54. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001) provide: “... (2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are designated by regulation as narcotic drugs shall be punished by imprisonment for one to ten years, or by long-term imprisonment. (3) If the criminal offence referred to in paragraph 2 of this Article is committed while the perpetrator is part of a group or a criminal organisation, or has organised a network to sell drugs, he shall be punished by imprisonment for not less than three years or by long-term imprisonment.” 55. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006) are as follows: “(1) The courts’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence). (2) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, law and the international law, and evidence obtained in breach of the rules of criminal procedure in so far as set out in this Act, as well as any other evidence obtained unlawfully. “ “(1) Where this Act provides that the judicial decision cannot be based on certain evidence, the investigating judge shall, at the motion of the parties or ex officio, exclude such evidence from the file before the conclusion of the investigation or before he gives consent for the indictment to be preferred without investigation (Article 191 paragraph 2). The decision of the investigating judge is subject to appellate review. ... (3) After the investigation and after the consent is given to prefer the indictment without the investigation (Article 191 paragraph 2), the investigating judge shall also proceed according to the provisions of paragraph 1 and 2 of this Article in respect of all information which according to Article 174 paragraph 4 and Article 173 paragraph 3 of this Act is given to the State Attorney or to police officers by citizens or by a suspect who has been interrogated contrary to the provisions of Article 177 paragraph 5 of this Act.” “ ... (5) In the course of the investigation the police authorities shall inform the suspect pursuant to Article 237 paragraph 2 of this Code. At the request of the suspect the police authorities shall allow him to appoint a lawyer, and for that purpose they shall stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect requested to appoint a lawyer. ... If the circumstances show that the chosen lawyer will not be able to appear within this period of time, the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police administrations by the Croatian Bar Association for the territory of a county ... If the suspect does not appoint a lawyer or if the requested lawyer fails to appear within the time period provided, the police authorities may resume their interview with the suspect ... The State Attorney has the right to be present during the interview. The record of any statement made by the defendant to the police authorities in the presence of a lawyer may be used as evidence in the criminal proceedings ... “ “(1) If an accused, while being questioned at a trial, contradicts a previous statement he has made, the president of the trial panel shall draw his attention to these contradictory statements and ask him why he is testifying differently. If necessary, his previous statement or part of that statement shall be read out. (2) If an accused refuses to testify at a hearing or refuses to answer a question, his previous statement or part of that statement shall be read out.” “The provisions of this chapter concerning the reopening of the criminal proceedings shall also be applicable ..., on the basis of a decision of the European Court for Human Rights which refers to some ground for the reopening of criminal proceedings or for an extraordinary review of the final judgement.” “A request for the extraordinary review of a final judgment may be lodged [in respect of]: ... 3. an infringement of the defence rights at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.” 56. The relevant provisions of the amended Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012) provide: “... (2) The relevant provisions concerning the reopening of the criminal proceedings shall be applicable in the case of a request for revision of any final courts’ decision in connection with the final judgment of the European Court of Human Rights by which, in respect of the defendant, a violation of the rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found. (3) The request for reopening of the proceedings in connection with the final judgment of the European Court of Human Rights can be lodged within a thirty-day time limit starting from the moment of the finality of the judgment of the European Court of Human Rights.” “... (2) If prior to the entry into force of this Code a decision was adopted against which a legal remedy is allowed pursuant to the provisions of the legislation relevant to the proceedings [in which the decision was adopted], ..., the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code. (3) Articles 497-508 of this Code shall be accordingly applicable to the requests for the reopening of the criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006).”

dev

001-107371

ENG

UKR

ADMISSIBILITY

TERESHCHENKO v. UKRAINE

Inadmissible

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

The applicant, Ms Iryna Mykolayivna Tereshchenko, is a Ukrainian national who was born in 1966 and lives in Kyiv. She was represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The facts of the case, as submitted by the applicant, may be summarised as follows. On 10 September 2004 the police officers took the applicant to the Holosiyivskyy District Police Department of Kyiv (“the Police Department”) in order to question her about a crime allegedly committed by I., one of the applicant’s colleagues. A number of the applicant’s co-workers were also taken to the Police Department for the same reason. According to the applicant, she was held in the Police Department from 3 p.m. on 10 September to 1 a.m. the next day. At 10 a.m. on 11 September 2004 the applicant was allegedly again taken to the Police Department, where she was questioned further and released at 7 p.m. that day. While the applicant was being held in the Police Department she was allegedly physically and psychologically coerced to testify against I.; the reasons why she had been brought to the Police Department were not immediately explained to her; and her relatives were not informed of her whereabouts. On 19 January 2005 the applicant lodged a complaint under Article 106 of the Code of Criminal Procedure (“the CCrP”) with the Holosiyivskyy District Court of Kyiv (“the District Court”) against the police officers. She claimed that her detention was unlawful and that the reasons for her arrest had not been explained to her. The applicant invoked Articles 29 and 55 of the Constitution in support of her complaint. By letter of 1 February 2005 the President of the District Court replied that her complaint under Article 106 of the CCrP could not be considered by the court since she had not been arrested as a suspect. On 22 February 2005 the applicant lodged with the Prosecutor’s Office of the Holosiyivsky District of Kyiv (“the Prosecutor’s Office”) an application for criminal proceedings to be instituted against the police officers. The applicant alleged that she had been unlawfully arrested, the reasons for the arrest had not been explained to her, and she had been illtreated by the police officers. By a letter of 24 March 2005 the Prosecutor’s Office informed the applicant that her application was unsubstantiated. It noted that at about 6 p.m. on 10 September 2004 the applicant and her co-workers were taken to the Police Department for an interview concerning a crime allegedly committed by I.; at 9 p.m. the applicant left the Police Department; no irregularities could be found in the acts of the police officers which necessitated the adoption of any decision under Article 97 of the CCrP. On 9 April 2005 the applicant challenged the Prosecutor’s Office’s reply of 24 March 2005 before the District Court in accordance with the procedure provided by Article 236-1 of the CCrP. The applicant alleged that the Prosecutor’s Office had unlawfully refused to institute criminal proceedings. On 22 June 2005 the District Court dismissed the applicant’s complaint. It noted that under Article 236-1 of the CCrP the courts could consider only complaints against formal decisions on refusal to institute criminal proceedings. No such a decision had been taken in the applicant’s case. On 29 June 2005 the applicant and her lawyer lodged an appeal against that decision. On 8 September 2005 the Kyiv City Court of Appeal upheld the decision of the District Court. The relevant provisions of the Constitution read as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent need to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bodies, officials and officers...” “A prosecutor, investigator, body of inquiry or a judge shall be obliged to accept applications or communications as to the committed or prepared crimes, including in cases that fall outside their competence. Following an application or communication about a crime the prosecutor, investigator, body of inquiry or a judge shall be obliged, within the three-day time limit, to adopt one of the following decisions: (1) to institute criminal proceedings; (2) to refuse to institute criminal proceedings; (3) to remit the application or communication for further examination according to jurisdiction. ...” “The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: 1. if the person is discovered whilst or immediately after committing an offence; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home. If there is other information which gives grounds for suspicion that a person has committed a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established. For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up minutes outlining the grounds, the motives, the day, time, year and month, the place of detention, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel, starting with the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The minutes of detention shall be signed by the person who drew it up and by the detainee. A copy of the minutes with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as grounds for the detention shall be sent to him as well. ... Within seventy-two hours of the arrest, the body of inquiry shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days of receiving it. The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful. The ruling of the judge may be appealed against within seven days of the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the minutes to that effect, and shall inform the official or body which carried out the arrest accordingly.” “Complaints against a decision of a prosecutor, an investigator or a body of enquiry to refuse to institute criminal proceedings shall be lodged with the district (city) court ...by the person whose interests are touched upon, or a representative of that person, ...within seven days of its receipt or information given by the prosecutor that he has refused to quash the decision.” “Complaints against a decision of a prosecutor, investigator or body of inquiry to refuse to institute criminal proceedings shall be examined by a single judge within ten days of the arrival of the complaint at the court. The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based, examine them and inform the prosecutor and the complainant of the date when it will be examined. If necessary, a judge shall hear explanations by the complainant. ... the judge shall take one of the following decisions: 1) to quash the decision refusing to initiate criminal proceedings and return the case file materials for additional examination; 2) to reject the complaint. Within seven days of its adoption the decision of a judge may be appealed against to the court of appeal by a prosecutor or a complainant. A copy of the judge’s decision shall be sent to the person who has adopted the contested decision, the prosecutor and the complainant.” Chapter 31-A of the Code dealt with complaints against decisions, acts or inactivity on the part of State and local self-government bodies as well as their officials. In particular, 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 on the part 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 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. According to this Resolution, inactivity on the part of a body of enquiry, investigator or prosecutor resulting in a decision not being taken under Article 97 § 2 of the Code of Criminal Procedure could be challenged by a procedure established in Chapter 31-А of the Code of Civil Procedure.

dev

001-91521

ENG

RUS

ADMISSIBILITY

BELKIN AND OTHERS v. RUSSIA

Inadmissible

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

The applicants are 16 Russian nationals, whose names and dates of birth are shown in the Annex. The Russian Government (“the Government”) are represented by Mr A. Savenkov, First Deputy Minister of Justice, and Mr G. Matyushkin, 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 applicants are victims of the Chernobyl nuclear disaster who live in the Rostov Region of Russia. Under domestic law they were entitled to social benefits. Because the authorities had failed to pay the benefits in full or in time, the applicants sought relief in courts of the Rostov Region. The courts held for the applicants, the judgments became binding, but their full enforcement was delayed. Details of the judgments are shown in the Annex.

dev

001-101734

ENG

ROU

ADMISSIBILITY

TIMCIUC v. ROMANIA

Inadmissible

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

1. The applicant, Mr Constantin Timciuc, is a Romanian national who was born in 1956 and lives in Satu Mare. 2. The present application consists of complaints lodged at different times by the applicant, each complaint concerning individual sets of domestic proceedings in respect of which he addressed the Court. 3. 4. From 31 October 1996 the applicant occupied the post of director of the Administration of Markets in Satu Mare, an administrative body under the authority of the mayor. At that time the mayor of Satu Mare was H.A. The applicant was also working as a part-time legal advisor for the Satu Mare Town Hall. After his arrest (see paragraph 7 below), he was released from his duties as director by a decision of the Local Council of 24 April 2003 and was dismissed from the post of legal advisor by a decision of the Mayor's Office of 9 May 2003. 5. From 2002, a series of articles was published in Gazeta de Nord Vest (“GNV”), a local daily newspaper, in which the applicant and the mayor were accused of having accepted bribes in their professional capacity. 6. On 13 January 2003 at 6 a.m. two police officers paid the applicant a visit and invited him to the police station in order to make a statement. On the same day he was taken from Satu Mare to Bucharest along with other individuals and questioned through the night, concerning alleged acts of corruption. The mayor was also under investigation. 7. On 14 January 2003 in the morning the prosecutor issued an arrest warrant in connection with the crimes of accepting bribes over a period of time and abuse of office (“luare de mită în formă continuată” and “abuz în seviciu în dauna intereselor publice”). The applicant was released on 17 November 2003 by an order of the Oradea Court of Appeal. 8. Throughout the criminal investigations, several articles were published in GNV concerning the mayor's and the applicant's alleged acts of corruption. Most of the articles appeared in the gossip column entitled Gura Târgului, where petty facts about local public figures were published without mention of the author. The director of GNV explained to the courts dealing with the defamation claims brought by the applicant against the newspaper that those articles were the creation of all the editors, thus could not be attributed to a particular individual. 9. On 23 and 24 February 2005 the newspaper published a “note” claiming that it was as a result of its whistle blowing that the mayor and the applicant had been arrested. 10. On 22 September 2003 the Prosecutor's Office against Corruption (Parchetul Naţional Anticorupţie) decided to close the criminal proceedings concerning certain counts of bribery while nevertheless continuing them on other counts. 11. On 17 October 2003 the prosecutor committed the applicant, the former mayor and five other persons to trial on several counts of corruption during the mayor's mandate. The applicant was indicted for abuse of office and giving bribes (dare de mită). 12. The prosecutor noted that the applicant had occupied the post of director without the legal formalities - competition for the post, decision of the Local Council confirming the nomination - having been completed. It also noted that the post of legal advisor did not appear in the Town Hall's organisational chart, and that nobody in the local administration knew that the applicant was occupying it. 13. Furthermore, in 1999 the applicant and the mayor had agreed that the former would get his law degree in 2000 and that the latter would keep a legal advisor post blocked for him until then. In exchange, the applicant promised H.A. that he would convince his mother and uncle to sell the mayor a plot of land. On 14 March 2003 the mayor bought that land for a small price, which he never paid. 14. The prosecutor also noted that the applicant had leased a booth in the market to a company administered by him and owned by his son and another person, and paid for the repair of the booth from the local budget. 15. The Alba County Court examined the case and rendered its 79-page long decision on 28 February 2008. The court dismissed as unfounded the accusations that the applicant had occupied his two posts in the local administration unlawfully. The court also considered unfounded the allegations concerning the sale of land to the mayor; it found that the price paid corresponded to the quality of the land and to the prices in the area, and noted that the applicant had never owned the plot in question therefore could never have offered it as a bribe; it reiterated that as the applicant had occupied his posts in the administration lawfully there was no causal link between them and the impugned sale. Lastly, the court considered that the applicant had not broken any regulations when attributing the space in the market to his son's company. 16. The applicant and the co-defendants were acquitted on all counts. 17. The judgment was upheld, by a decision of 5 March 2009 of the Alba Iulia Court of Appeal, and by a final decision of 19 November 2009 of the High Court of Cassation and Justice (the latter decision was rendered upon an appeal on points of law lodged by the applicant and the codefendants). 18. I.C. published an article in the 20-26 August 2002 issue of the satirical weekly magazine Academia Caţavencu. The article mainly concerned the mayor's alleged dubious business practices, and in this context it touched upon the relationship between the mayor and the applicant. 19. The applicant complained about a statement in that article which read that he “was made chief of the Administration of Markets, from where meat, eggs, milk and wool rain on him every month” and that the mayor sold some booths in the market at double their value and shared the money with the applicant and another individual. 20. On 15 March 2004 the Satu Mare District Court acquitted the journalist and dismissed the applicant's claim for damages. It found that the article had been written in the habitual style of a satirical paper and that the fact that the applicant had been arrested and committed to trial afterwards was a good indication for the journalists that he might have committed the alleged offences. On this point, it noted that the applicant had been arrested based on the evidence in the prosecution's file, and not exclusively on that article, as he had argued in his complaint. Lastly, the court considered that the author of the article, through journalistic means, had aimed to make public certain negative aspects of the work of civil servants, and not to defame the applicant. 21. The journalist did not participate in the proceedings, despite several summonses being delivered to him by the police with an order to appear in court (mandat de aducere). 22. In a final decision of 11 June 2004 the Satu Mare County Court upheld the judgment. It endorsed the first-instance court's reasoning and found, in addition, that the journalist had based his article on previously published material and on a press release issued by the Prosecutor's Office concerning the mayor and the applicant. 23. The applicant lodged his complaint with the Court on 20 September 2004. 24. On 27 November 2002 an article was published in GNV about the mayor's personal real estate acquisitions during his mandate, including the construction of a villa on land bought from the applicant. 25. The latter lodged a criminal complaint against V.M., the director of GNV. 26. V.M. did not participate in the trial. 27. On 13 December 2004 the Satu Mare District Court dismissed the criminal complaint and the civil claim for damages. It considered that even if the mayor had in fact bought that land from the applicant's mother, and not from the applicant himself, as the evidence proved, there was nothing defamatory in the impugned statement. 28. In a final decision of 1 April 2005 the Satu Mare County Court upheld the judgment. It endorsed the District Court's reasoning and added that the fact that V.M. had not participated in the trial and that he had refused to publish the applicant's comments (“dreptul la replică”) had no bearing on the case. It also dismissed the applicant's arguments of a violation of his right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, as it noted that in the case under examination he had not been accused of any criminal act. 29. The applicant lodged his complaint with the Court on 17 May 2005. 30. On 13 December 2002 F.C. published an article in GNV reporting on the sale of land by the applicant's mother to the mayor, which he described as a present from the applicant to the mayor in return for the applicant's post of director. 31. On 16 December 2002 the applicant made a criminal complaint against the journalist. 32. On 20 October 2005 the Satu Mare District Court acquitted F.C. and dismissed the civil claim for damages. On 20 January 2006 the Satu Mare County Court upheld the judgment, while nevertheless giving its own interpretation of the facts and evidence in the file. In particular, it noted that all the statements of fact made in the article were proven by the evidence in the file and that not even the applicant contested them. It considered that the following value judgments had been made: that the mayor had wanted a trustworthy person on his side; and that the applicant had paid the favour back by selling the plot of land to him. The court noted that F.C. had reported on matters of public interest and that a certain degree of exaggeration was acceptable. It also noted that he had acted in good faith and had not intended to defame the applicant. Lastly, the court pointed out that the applicant had in fact been sent to trial for acts of corruption concerning the sale of that plot of land. For all these reasons it acquitted the journalist. The court also rejected the civil claims for damages, as it considered that the applicant had not suffered any prejudice as a result of the publication. The decision was final. 33. The applicant complained to the Court on 28 June 2006. 34. On 9 January 2003 an article appeared in the “Gura târgului” column in GNV. The relevant parts read as follows: “Gura Târgului says that Timciuc would like to offer [the place in the market] to a favoured trader who would give him, probably as many others do, a present-fee (taxă tip cadou) of 500 euros. We do not know how this sum will appear in the balance sheets and we do not even think this will happen, but we would like to know for how much longer the traders in the market will keep the silence.” 35. The applicant lodged a criminal complaint against M.V. and D.C., director and editor-in-chief respectively of GNV at that time. 36. On 25 March 2004 the Satu Mare District Court considered that the information published was based on reliable sources and concerned acts presumably committed by the applicant; the information had been verified by the journalists before publication and their investigation was likely to have convinced them of its veracity. It also noted that shortly after, the applicant was arrested under the same suspicions. The court also considered that information on the applicant's activity was of interest to the public at the time. The journalists' intention had not been to defame the applicant but to bring those facts to public attention. It concluded that the journalists had not acted in bad faith. 37. In a final decision of 28 June 2004 the Satu Mare County Court upheld the judgment. It endorsed the first-instance court's arguments and added that the fact that the applicant had later been released from custody and committed to trial only on certain counts did not have an incidence on the alleged offence of defamation committed though the publication of that article. 38. The applicant lodged his complaint with the Court on 20 September 2004. 39. On 6 January 2004 another article was published in GNV that the applicant found defamatory. On 27 September 2004 he lodged a criminal complaint against the director and the editor-in-chief of the newspaper. 40. On 13 December 2004 the Satu Mare District Court noted that the applicant had not respected the time-limit set by the Code of Criminal Procedure for lodging his complaint. It therefore ended the criminal proceedings. In a final decision of 1 April 2005 the Satu Mare County Court upheld the judgment. 41. The applicant lodged his complaint with the Court on 17 May 2005. 42. On 3 February 2004 the “Gura Târgului” column in GNV carried an article entitled “Murgul mânat de Costică” (“Murgul led by Costică”) in which it was alleged that the applicant had advised someone from the Administration of Markets on how to undermine the authority of the new director who had replaced the applicant in that function, and that the applicant himself was interested in undermining the new director. The applicant lodged a criminal complaint against the director of the newspaper. 43. On 13 May 2005 the Satu Mare District Court dismissed the complaint and the claim for damages. The court considered that it did not need to hear the defendant, who refused to participate in the trial. On the merits it found that the imputations were not serious enough to expose the applicant to a criminal sanction or to public contempt. It relied on the Court's case-law on Article 10, notably in order to ascertain the degree of exaggeration allowed to journalists. As the applicant's public image had not been damaged, the court dismissed the civil claims for damages. 44. In a final decision of 7 October 2005, the Satu Mare County Court dismissed the applicant's appeal. 45. The applicant lodged his complaint with the Court on 28 November 2005. 46. On 24 July 2004, another article was published in the “Gura Târgului” column in GNV, entitled “One more mogul to go” (“Cu un baron în plus”). The following remarks were made about the applicant: “Former chief of markets arrested and then released, having dirtied his hands with some 'dough' (fost pieţar şef arestat şi apoi eliberat... s-a murdărit pe mâini cu oareşce verzişori) ... complains that he is being politically persecuted. He crows wherever he can that all barons are free, but he is not. So, our man thinks he is so important that he acts as if he really were in the shoes of a mogul.” 47. The applicant lodged a criminal complaint against the director and the editor-in-chief of GNV. 48. On 16 December 2004 the Satu Mare District Court considered that the remarks in the article were not capable of defaming the applicant and the mention of his arrest and subsequent release did not expose him to any criminal consequence. 49. On 26 April 2005 the Satu Mare County Court upheld the judgment. It endorsed the District Court's reasoning and it added that the mere fact that the applicant had not been sent to trial for some of the crimes he was arrested in connection with was not enough to prove bad faith on the part of the journalists. It also noted that “Gura Târgului” was a satirical column in the newspaper where pieces were published concerning public figures from the county. The decision was final. 50. The applicant lodged his complaint with the Court on 15 August 2005. 51. On 14 November 2005 the applicant lodged a criminal complaint against G.N., who had declared in the context of a criminal trial involving the mayor and the journalist V.M. that he had heard that the applicant had requested bribes from the traders in the market. G.N. had repeated those affirmations to the press and on national TV. The applicant considered the remarks defamatory. 52. On 16 October 2006 the Satu Mare District Court noted that the offence of defamation had been decriminalised by Law no. 278/2006 amending the Criminal Code and acquitted G.N. Consequently, it did not decide on the civil claims for damages. 53. On 12 October 2006 the applicant sent a letter to the President of the District Court, asking him to order that the civil claims be decided. He considered that in choosing not to examine the civil claims, the court had denied him access to court, in violation of Article 6 of the Convention. His letter was considered to be an appeal against the judgment and was therefore sent to the county court for examination. 54. On 15 December 2006 the Satu Mare County Court upheld the judgment and noted that while the criminal court was not competent to examine the civil claims, the applicant could lodge them with the civil courts. 55. It appears from the documents in the file that the applicant did not do so. However, after the Constitutional Court's decision nr. 62/2007 (see paragraph 97 from the “Relevant domestic law” part below), the applicant again brought an action for defamation against N.G. and sought damages. It seems that on 13 November 2006 the Satu Mare District Court acquitted G.N. because the act complained of was not punishable by the criminal law and the judgment was upheld on 12 January 2007 by the County Court. The applicant did not submit copies of those decisions to this Court. It appears that the applicant did not lodge a complaint with the civil courts. 56. The applicant submitted his complaint to the Court on 8 January 2007. 57. On 15 May 2006 the applicant filed a criminal complaint for defamation against the same G.N., whom he accused of having called him “dumb” (tâmpit) in his address to the court in a criminal trial where G.N. appeared as a witness. 58. On 13 November 2006 the Satu Mare District Court acquitted the defendant as the facts were no longer punishable by the criminal law. Accordingly it did not decide on the civil claims. The judgment was upheld on 26 January 2007 by the Satu Mare County Court. The applicant did not provide the full text of those decisions. It appears, however, that he did not seek damages with the civil courts. 59. On 15 February 2007 the applicant lodged his complaint with the Court. 60. The applicant complained in 2004 about several articles published in GNV which he found defamatory. He lodged his complaint against C.D., the director of the newspaper at that time. 61. On 16 October 2006 the Satu Mare District Court noted that defamation had been decriminalised by Law no. 278/2006 and therefore acquitted C.D. and left the civil claims unresolved. 62. On 15 December 2006 the Satu Mare County Court upheld the judgment and noted that the applicant could have pursued the civil claims before a civil court, which he chose not to do. The decision was final. 63. On 8 January 2007 the applicant brought the complaint to the Court. 64. On 10 October 2002 the applicant lodged a criminal complaint against an expert accountant who had been appointed by the court in the criminal trial against the applicant to assess some investments made by the local authorities. 65. On an unspecified date the prosecutor dismissed the complaint. The applicant objected, but the courts upheld the prosecutor's decision. The final decision in the case was that of 1 October 2004 by the Satu Mare County Court. 66. The applicant did not provide information on whether he sought civil damages in the proceedings. 67. He lodged his complaint with the Court on 17 November 2004. 68. The applicant filed a criminal complaint against S.T., the current director of the Administration of Markets in Satu Mare, accusing him of several illegalities in his activity. On 27 February 2007 the Chief Prosecutor attached to the Satu Mare District Court upheld the prosecutor's decision not to prosecute S.T. The applicant complained to the courts, but his complaint was dismissed on 15 June 2007 by the Satu Mare District Court as out of time. The appeal was also rejected on 9 August 2007 by the County Court (final decision). 69. The applicant lodged his complaint with the Court on 15 September 2007. 70. G.N. and S.I. were witnesses in the criminal trial against the applicant. In the proceedings before the courts they withdrew the initial statements they had made to the prosecutor, which were unfavourable to the applicant. In the autumn of 2003, the applicant filed a criminal complaint of false testimony against them. It appears that on 7 February 2006 the prosecutor attached to the Satu Mare County Court decided not to prosecute and that his decision was upheld by the Prahova County Court in a final decision of 29 October 2007. The applicant did not submit copies of the court decisions delivered in the case. 71. He lodged his complaint with the Court on 15 January 2008. 72. On 10 October 2005 the applicant lodged a criminal complaint against three judges from the Satu Mare County Court. He accused them of having arrested him and extended his detention unlawfully and of having behaved abusively towards him, in the knowledge that he had not committed any crime. 73. On 21 February 2008 the prosecutor attached to the High Court of Cassation and Justice decided not to prosecute as he considered that the judges had not committed any of the alleged crimes. 74. The applicant objected and brought his case before the courts. 75. On 19 September 2008 the Oradea Court of Appeal upheld the prosecutor's decision, and on 12 December 2008 the High Court upheld the judgment (final decision). 76. The applicant lodged his complaint with the Court on 11 May 2009. 77. The applicant lodged a criminal complaint against V.M., who had allegedly threatened him with “physical correction” during a court hearing on 10 February 2005. The applicant claimed that he had understood this remark to be a threat that V.M. would beat him up. There is no indication in the file as to whether the applicant sought civil damages from V.M. 78. On 6 May 2005 the Negreşti Oaş District Court dismissed the complaint, as it considered that the deed committed by V.M. was not severe enough to create in the applicant a “legitimate and serious fear”, the element required in order for the deed to constitute the offence of threatening behaviour. It also noted that there was a preexisting conflict between the applicant and V.M. caused by the numerous criminal proceedings they were both involved in. 79. In a final decision delivered on 7 October 2005 the Satu Mare County Court upheld the judgment. 80. On 28 November 2005 the applicant lodged his complaint with the Court. 81. On an unspecified date, the applicant filed an action against the Mayor's Office, seeking reinstatement to his former positions: part-time legal advisor at the Town Hall and Director of the Administration of Markets, and payment of his salary for 13 January 2003 to 30 January 2006. 82. On 31 May 2006 the Satu Mare County Court noted that the administrative decision ordering the applicant's dismissal from the post of legal advisor was null and void as it had not been issued in conformity with the legal requirements. 83. However, it noted that during his preventive detention he was not entitled to receive a salary, and that for the damage allegedly suffered during that time he could lodge an action against the State for unlawful detention. Therefore he was not entitled to payment of his salary for that period. 84. The court also considered that from 17 November 2003, when he was released from detention, until 30 January 2006, when he lodged his present action, the applicant had been inactive and had not returned to work. Therefore, he was not entitled to payment of salary for that period. 85. Lastly, the court noted that the applicant had been released from the post of director by a decision of the Local Council of 24 April 2003 and that it was therefore for the administrative court to deal with that part of the request. 86. In sum, the court ordered the Mayor's Office to reinstate the applicant as legal advisor and to pay his salary from 30 January 2006 until effective reinstatement and sent his complaint seeking to be reinstated to his former position as director to the administrative section of the Satu Mare County Court. 87. On 11 October 2006 the Oradea Court of Appeal upheld the judgment, on appeals lodged by both parties. 88. On 7 November 2006 the applicant was reinstated as legal advisor by order of the Mayor's Office. 89. On 4 December 2006 the Oradea Court of Appeal ordered the Ministry of Finances to pay the applicant 500,000 Romanian Lei for illegal arrest and noted that the period spent in detention would count as time spent in work for the purposes of calculating the applicant's pension. 90. On 8 January 2007 the applicant lodged his complaint with the Court. He submitted no further information on the outcome of the case before the administrative courts. 91. On 20 July 2007 the applicant lodged a criminal complaint against I.I., the current mayor of Satu Mare, for abuse of office, accusing him of not having complied with the decisions ordering the applicant's reinstatement and payment of salary. 92. On 14 March 2007 the prosecutor attached to the Satu Mare District Court decided not to prosecute, noting that the mayor had appealed against the 31 May 2006 judgment ordering the reinstatement and that on 11 August 2006 the Oradea Court of Appeal had suspended the enforcement until the appeal had been examined. Therefore, I.I. had been right not to enforce the decisions. 93. On 27 April 2007 the chief prosecutor upheld the prosecutor's decision. The prosecutor's decisions were upheld by the District Court on 16 November 2007 and by the County Court in a final decision of 11 January 2008, with the same reasoning as that set out in the prosecutor's initial decision. The County Court also noted that on 7 November 2006, after the appeal proceedings had ended, the applicant had been reinstated. 94. The applicant lodged his complaint with the Court on 15 January 2008. 95. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008. 96. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (Law no. 278/2006; for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008). 97. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal of the Articles on insult and defamation from the Criminal Code.

dev

001-88523

ENG

GBR

ADMISSIBILITY

HORNBY v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Clarence Hornby, is a British national who was born in 1945 and lives in Wigan. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 8 March 2001, leaving no dependent children. His claim for widows’ benefits was made on 17 June 2001 and was rejected on 31 June 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 8 October 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in 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

001-114098

ENG

POL

CHAMBER

CASE OF P. AND S. v. POLAND

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Educational supervision);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

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

5. The applicants were born in 1993 and 1974 respectively and live in Lublin. 6. On 9 April 2008 the first applicant went with a friend to the Public University Health Care Unit in Lublin. She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary. Dr E.D. reported the case to the police and notified the first applicant’s parents. 7. Later that day, after reporting that an offence of rape had been committed, the applicants attended at Public University Hospital no. 4 in Lublin, accompanied by a female police officer. The second applicant gave her consent for an examination of her daughter to be carried out. The first applicant was in a state of emotional shock. At the hospital, psychological help was offered to her. Bruises on her body were confirmed by a family doctor several days after the alleged event took place, between 9 and 14 April 2008. 8. The rape resulted in pregnancy. The applicants decided together that an abortion would be the best option, considering that the first applicant was a very young minor, that the pregnancy was the result of forced intercourse, and that she wanted to pursue her education. 9. On 19 May 2008 the first applicant was questioned by the police. Her mother and the alleged perpetrator’s defence lawyer were present during the questioning. The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance. 10. On 20 May 2008 the District Prosecutor, referring to section 4 (a) item 5 in fine of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) (“the 1993 Act”) (see paragraph 54 below) issued a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age. 11. The second applicant went to the Ministry of Internal Affairs and Administration Hospital in Lublin to ask for a referral for an abortion. She was advised there to contact Dr O., the regional consultant for gynecology and obstetrics. Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary. 12. The second applicant also went to another public hospital in Lublin (the Jan Boży hospital) and contacted a chief physician there, Dr W.S., who suggested that the applicants meet with a Catholic priest. The second applicant refused. 13. The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to “get her daughter married”. She left his office, but returned shortly afterwards as she was afraid that without the doctor’s referral it would not be possible to obtain an abortion. He told her to report to the Jan Boży hospital. 14. On 26 May 2008 the applicants reported to that hospital. They were received by the acting chief physician. They clearly stated their intention to have the pregnancy terminated. They were told that they would have to wait until the head of the gynecological ward, Dr W.S., returned from holiday. They were told that it would be best for the first applicant to be hospitalised, with a view to blood and urine tests and an ultrasound scan being carried out. On the same day the first applicant was admitted to that hospital. 15. On 30 May 2008 Dr W.S. returned from holiday and told the applicants that she needed time to make a decision. She asked them to return on 2 June. She then called the second applicant separately to her office and asked her to sign the following statement: “I am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter’s death.” On the same day the first applicant was discharged from the hospital for the weekend. 16. On the morning of 2 June 2008 the first applicant returned to the hospital alone as her mother was working. 17. The applicants submitted that Dr W.S. took the first applicant for a talk with a Catholic priest, K.P. The first applicant was not asked what her faith was or whether she wished to see a priest. During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it. 18. The Government disagreed with the above account by the applicants. They stated that the girl had wished to see the priest. 19. During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term. The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter. The priest asked her to give him her mobile phone number, which she did. She was given a statement written by Dr W.S. to the effect that she wanted to continue with the pregnancy and she signed it. The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest. 20. When the second applicant arrived later, the priest spoke to her. She told him that it was the family’s decision to terminate the pregnancy. Dr W.S. told the second applicant that she was a bad mother. She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy. An argument took place between the doctor and the second applicant. The first applicant, who was present in the room, started to cry. The doctor said that she would adopt both the first applicant and the baby. 21. Subsequently, Dr W.S. told the applicants that she would not perform the abortion, that under communism when abortion had been freely available no one had made her perform abortions, and that no doctor would have given permission for an abortion to be performed. According to the applicants, she also implied that none of the other doctors in the hospital would perform an abortion. 22. The applicants left the hospital. The second applicant contacted the Federation for Women and Family Planning (Federacja na rzecz Kobiet i Planowania Rodziny - hereinafter, “the Federation”) in Warsaw for help, as after their experience in Lublin she was afraid that no one in that town would perform an abortion. 23. On an unspecified date the Jan Boży hospital issued a press release to the effect that it would not perform an abortion in the applicants’ 24. The case became national news. A number of articles were published by various local and national newspapers. It was also the subject of various publications and discussions on the internet. 25. On 3 June 2008 the applicants went to Warsaw and contacted a doctor recommended by the Federation. They were informed about the procedure and about the available options. In the afternoon the first applicant was admitted to a hospital in Warsaw. She submitted to the hospital the certificate issued by the prosecutor (see paragraph 10 above), and a medical certificate issued by the national consultant in gynecology to the effect that she had a right to a lawful abortion. She signed a consent form to undergo an abortion and her parents also gave their written consent. Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the Lublin hospital that the first applicant did not wish to have an abortion. 26. On 4 June 2004 the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. On the same day the first applicant received a text message from Catholic priest K.P. that he was working on her case and that people from all over the country were praying for her. She also received numerous text messages along the same lines from a number of unknown third parties. The priest came to the Warsaw hospital later in the day together with Ms H.W., an antiabortion activist. They were allowed to see the first applicant. They talked to her in her mother’s absence and tried to persuade her to change her mind. In the evening an unidentified woman came to her room and tried to convince her to continue with the pregnancy. The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her. 27. On the same day the first applicant’s father came to the hospital, apparently as he had been informed that his consent to the abortion was also necessary. A psychologist spoke with the first applicant’s parents and then with the applicant. She apparently prepared an opinion on the case. The first applicant’s parents were not given access to it. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital was receiving numerous e-mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion. 28. On 5 June 2008, feeling manipulated and helpless, the applicants decided to leave the hospital. As they were leaving, they were harassed by Ms H.W. and Mr M.N.-K., anti-choice activists waiting at the hospital entrance. The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant. The driver refused to take them. Ms H.W. called the police. The police arrived promptly and took both applicants to the police station. 29. At the police station the applicants were questioned on the same day, from approximately 4 p.m. until 10 p.m. No food was offered to them. The officers showed the applicants the family court decision which the police had received by fax at about 7 p.m. from the Warsaw hospital. That decision, given by the Lublin Family Court, restricted the second applicant’s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately (see paragraph 34 below). 30. Subsequently the police took the first applicant to a car. She was driven around Warsaw in search of a juvenile shelter that would accept her. The second applicant was not permitted to accompany her daughter. As no place was found in Warsaw, the police drove the girl to Lublin, where she was placed in a shelter at approximately 4 a.m. on 6 June 2008. She was put in a locked room and her mobile phone was taken from her. On 6 June 2008 priest K.P. visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother’s home run by the Catholic church. 31. A psychologist and an education specialist talked to her. She summarised the conversation thus: “They wanted to know the entire story and the Assistant Principal was present. I told them again about the entire affair with the hospitals and the abortion. They said that it would be better for me to give birth. They did not ask me about my view. I stayed locked in the room all day. I felt as though I was in a correctional facility, I had bars on the window and a locked door, it was not very pleasant.” 32. Later in the morning of that day the first applicant felt pain and experienced bleeding. In the late afternoon she was taken to the Jan Boży hospital in Lublin. She was admitted to the maternity ward. A number of journalists came to see her and tried to talk to her. 33. On 3 June 2008, acting upon a letter from the Lublin III Police Station and two letters from the headmaster of the school attended by the first applicant dated 26 and 27 May, and a note drawn up by a nonidentified authority, apparently a court supervisor (kurator), also on 3 June 2008, the Lublin Family and Custody Court instituted proceedings to divest the second applicant of her parental rights. In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother’s assistance as she saw abortion as the only solution, and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term. She had also been concerned about the consequences, including psychological ones, that an abortion might have. The headmaster was of the view, relying on a conversation he had had with the class teacher and with the school social pedagogue, that the first applicant might be under pressure from her family. He was concerned that the second applicant had not sought psychological assistance for her daughter, who, it had been suggested by the school, might have suicidal tendencies. The second applicant had been requested to attend at the school; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist. Enclosed with the letter was a print-out of a chat between the first applicant and her friend dated 7 May 2008. It transpired therefrom that in reaction to the news about the minor’s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house; she also said that she did not know what to do and wanted her friend to help and the school to intervene. 34. On the same date that court, sitting in camera, ordered the first applicant’s placement in a juvenile shelter as an interim measure. In its decision the court stated that the documents referred to above demonstrated that the first applicant’s parents did not take appropriate care of their daughter. She was pregnant; she had been admitted to the Lublin Jan Boży hospital, which had refused to carry out an abortion having regard to the first applicant’s statement that she did not wish to have recourse to it. The court had regard to text messages she had sent to her friend. Doctor W.S. had informed her about the consequences of an abortion. It was reported that the first applicant had travelled to Warsaw with her mother in order to have an abortion performed there. The first applicant was under pressure from her mother and was unable to take a decision independently. Her hospital stays and the atmosphere in the family were harmful to her. She had to be separated from her family in her own interest. The court relied on Article 109 para 1 (5) of the Family Code. 35. On 6 June 2008 the second applicant appealed against that decision. On 9 June 2008 she filed with the court a written consent to her daughter’s abortion, which she also submitted to the Lublin hospital. On 10 June 2008 she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it. 36. On 13 June 2008 the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist, in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy. The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination. The questioning started at 7.30 p.m. and lasted for three hours. The first applicant’s parents were not permitted to be present. The first applicant did not have legal assistance or any other adult present to represent her as a minor. Later the same day the court allowed the second applicant to take her home. On 14 June 2008 she was discharged from the hospital. 37. On 18 June 2008 the Lublin Family Court quashed its decision concerning the first applicant’s placement in the shelter. 38. On 18 February 2009 the Lublin Family and Custody Court, relying mainly on an expert opinion prepared by the Family Diagnostic and Consultation Centre, held that there were no grounds on which to divest the first applicant’s parents of their parental rights. It discontinued the proceedings. 39. Between 9 and 13 June 2008 the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, and submitted relevant documents, in particular the prosecutor’s certificate. An official of the Ministry, K.U., informed the second applicant that her daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant informed him that the statement had in fact been signed in the presence of three witnesses, he told her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised. 40. On 16 June 2008 the second applicant was informed by telephone by a Ministry official that the issue had been resolved and that her daughter could undergo an abortion. She was notified that she would have to go to Gdańsk, in northern Poland, approximately 500 kilometers from their home in Lublin. 41. On 17 June 2008 the Ministry of Health sent a car for the applicants and they were driven to Gdańsk. The first applicant had an abortion in a public hospital there. The applicants submitted that the trip to Gdansk and the abortion were carried out in a clandestine manner, despite the termination being lawful. When the applicants came back home, they realised that information about their journey to Gdańsk had been put on the Internet by the Catholic Information Agency that day at 9 a.m. 42. On 1 July 2008 the Lublin District Court instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under Article 200 § 1 of the Criminal Code (sexual intercourse with a minor under 15 years of age). The first applicant was summoned to appear in court for questioning on 25 September 2008. 43. On 20 November 2008 the proceedings were discontinued. The court held that the first applicant could only be considered the victim of a criminal offence, not the perpetrator. 44. On 28 August 2008 the second applicant informed the prosecutor that her daughter had been raped. According to her submissions, she was not aware that reporting the rape to the prosecuting authorities in May was not sufficient for an investigation to be instituted. The investigation against the perpetrator of the alleged rape was ultimately discontinued on 10 June 2011. 45. On 14 July 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings against the second applicant, the first applicant’s father, Mrs W. N., and K.K., who worked for the Federation for Women and Family Planning, concerning a suspicion that the first applicant had been coerced into having an abortion against her will. The prosecutor found that they had no case to answer and observed that it was not open to doubt, in the light of the documents submitted by the applicants to the Warsaw hospital, that she had a right to a lawful abortion. 46. A second set of proceedings, discontinued on the same date, concerned a suspicion that unknown persons, including doctors from Lublin and Warsaw, Catholic priests and members of anti-abortion organisations, had exerted pressure on the first applicant to dissuade her from having an abortion. The prosecutor found that there was no case to answer, because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used. 47. The second applicant appealed against that decision. 48. On 21 November 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings that had been instituted against Ms H.W. and Mr M.N.-K., finding that they had accosted the applicants when they were leaving the hospital in Warsaw on 4 June 2008, but that they had no case to answer because no physical violence had been involved. On 19 September 2009 the WarsawŚródmieście District Court dismissed the applicants’ appeal. 49. On 17 September 2009 the Warsaw-Śródmieście District Court dismissed the first applicant’s appeal against a decision given on 26 May 2009 by the Warsaw-Sródmieście District Prosecutor to discontinue criminal proceedings against the police officers who had detained her at the police station on the basis of the placement order. The prosecutor and the court found that the police officers had no case to answer. 50. On 31 October 2008 the LublinPółnoc District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants’ personal data, finding that no criminal offence against the protection of personal data had been committed. No written grounds were prepared for these decisions as the law did not make it mandatory. The applicants appealed, submitting that when the first applicant had been in the Warsaw hospital, information about her real name, condition and predicament was available and discussed on many internet fora. This caused considerable stress to the applicants. The medical data were particularly sensitive and their disclosure to the general public was unlawful. It was therefore necessary to establish the identity of the persons who had leaked the information to the public. On 31 March 2009 the Lublin Regional Court dismissed the appeal, finding that the prosecutor’s decision was lawful and correct. 51. On 12 November 2008 the LublinPółnoc District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law, an punishable under Article 266 of the Criminal Code committed by Dr W.S., possibly also by other doctors working at that hospital, ²by the director of the hospital who had spoken to the press about the applicants’ case and by priest K.P. The applicants appealed submitting that information about the applicants’ situation had been disclosed to the general public. On 5 February 2009 the Lublin District Court dismissed the complaint, holding that the first applicant had not objected to the proposal to speak to the priest; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties. The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations engaged in the debate about such cases. 52. The applicable provisions of domestic law are extensively summarised in the judgments of Tysiąc v. Poland, no. 5410/03, 20 March 2007, and R.R. v. Poland, no. 27617/04, 26 May 2011. 53. In particular, the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), which is still in force, was passed by Parliament in 1993. Section 1 provided at that time: “every human being shall have an inherent right to life from the moment of conception”. 54. Section 4(a) of the 1993 Act reads, in its relevant part: “1. An abortion can be carried out only by a physician and where 1) pregnancy endangers the mother’s life or health; 2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable lifethreatening ailment; 3) there are strong grounds for believing that the pregnancy is the result of a criminal act. 2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; and in cases listed under 3) above, until the end of the twelfth week of pregnancy. 3. In the cases listed under 1) and 2) above, the abortion shall be carried out by a physician working in a hospital. ... 5. The circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life. The circumstances specified in paragraph 1, subparagraph 3) above shall be certified by a prosecutor. .”

dev

001-86729

ENG

ROU;GBR

CHAMBER

CASE OF DEAK v. ROMANIA AND THE UNITED KINGDOM

Violation of Art. 6-1 (Romania);No violation of Art. 6-1 (the UK);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Nicolas Bratza

5. The applicant, Mr Andrei Deak, is a Romanian national who was born in 1956 and lives in Bucharest. 6. The applicant married C.D. (hereinafter referred to as “the mother”), also a Romanian national, in January 1998. In July 1998 their son C.A. (hereinafter referred to as “the child”) was born. 7. In November 2000 they divorced and according to the divorce agreement between them, endorsed by a final court judgment, the mother was to have custody of the child, while the applicant obtained a right of access of 82 days per year and was to pay a monthly allowance. 8. In September 2002 the mother travelled to England to commence studying for a Master degree in Business and Administration and left the child in Romania with her parents. 9. In November 2002 the mother married a British national. She later returned to Romania and on 23 December 2002, without informing the applicant, took the child with her to London. 10. The applicant found out about the child’s removal from Romania to the United Kingdom in January 2003. 11. On 6 February 2003 he instituted proceedings in London before the High Court of Justice, Family Division (“the High Court”), under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The child and the mother were located by the British authorities; however, their place of residence was not disclosed to the applicant. 12. A directions hearing was held on 27 February 2003 before the High Court at which the parties were requested to file observations on the question whether the removal of the child from Romania was wrongful under Romanian law within the meaning of Article 3 of the Hague Convention. The judge in charge of the case also directed that the matter be set down for final hearing on 11 April 2003. 13. On 11 April 2003 the parties received permission to file further evidence. 14. By the time of the next hearing, on 9 May 2003, the High Court was presented by the applicant with documentary evidence emanating from the Ministry of Justice, the Romanian President’s Office, the Child Protection Authority and the Ombudsman, according to which the child’s removal was wrongful under Romanian law. However, the court was not convinced and, in accordance with Article 15 of the Hague Convention, requested a Romanian court decision on the matter. 15. On 11 June 2003 the applicant instituted civil proceedings before the Bucharest Third District Court (“District Court”) seeking a ruling that the child’s removal from Romania had been illegal. 16. On 16 July 2003 the applicant introduced a new application before the same court seeking a ruling that the child’s removal was contrary to Article 3 of the Hague Convention because he also had custody rights over the child. 17. On 1 September 2003 the District Court held the first hearing in respect of the applicant’s first action; however, as a result of the mother’s request for an adjournment, the proceedings were adjourned until 8 December 2003. 18. On 29 September 2003 the Romanian Ministry of Justice wrote to the High Court in London, informing it that the Romanian courts had exclusive competence in issuing decisions in accordance with Article 15 of the Hague Convention. 19. On 30 September 2003 the District Court in Bucharest held the first hearing in respect of the second action and adjourned the case on the grounds that the applicant had failed to sign the application and that the mother had failed to sign her request for an adjournment. 20. On 2 October 2003 the High Court in London resumed its examination of the case. The judge in charge of the case indicated that since his decision of May 2003 a number of documents from Romania had become available which seemed to indicate that the child’s removal from Romania by his mother was wrongful, and that, had these documents been available earlier, he would not have sought a declaration under Article 15 of the Hague Convention. Nevertheless, in view of the fact that the proceedings in Romania had commenced, and in view of the letter from the Romanian Ministry of Justice of 29 September 2003 it was decided to adjourn the proceedings to a date after 8 December 2003 (the date on which the District Court in Bucharest was to hear the case). The judge expressed concern about the time that had elapsed in the proceedings and indicated that if the 8 December hearing in Romania was not conclusive he would discharge the order he had made in May and proceed to adjudication. 21. On 31 October 2003 the mother submitted her observations concerning the applicant’s actions in the Romanian proceedings and introduced a counter-action seeking, inter alia, a ruling that the applicant did not have a right of custody over the child and that he did not have the right to decide on the child’s place of domicile. 22. On 8 December 2003 the District Court in Bucharest adjourned the hearing at the applicant’s request so that he could examine the mother’s observations and the counter-action lodged by her. On the same date the two actions lodged by the applicant and the mother’s counter-action were joined. 23. On 19 December 2003 the judge at the High Court in London, having learned that the final determination of the case before the Romanian court had yet again been put back, made an order that the final hearing in London should take place “as a matter of urgency” in January 2004. 24. On 5 January 2004 the District Court in Bucharest adopted a final ruling in the case and declared inadmissible the applicant’s actions without entering into the merits of the case. It decided not to examine the mother’s counter-action. Both parties appealed against the judgment. 25. On 14 January 2004 the proceedings in London were adjourned at the request of the parties to 1 March 2004 to allow time for receipt of the written reasons from the Romanian court. 26. On 20 January 2004 the District Court in Bucharest delivered its judgment and on 3 and 5 February the parties appealed against it. 27. On 6 February 2004 the case file was transmitted by the District Court to the Bucharest Court of Appeal and the latter fixed 6 April as the date of the hearing in the case. 28. On 23 February 2004 the applicant requested the Bucharest Court of Appeal to speed up the proceedings in view of the proceedings pending in London. His request was granted and the date of the hearing was set for 16 March 2004. 29. On 1 March 2004 the applicant applied for an adjournment in the High Court proceedings in London pending determination of the case by the Bucharest Court of Appeal. His request was granted and the judge in charge of the case ordered that the final hearing should take place as soon as possible after receipt of an authorised translation of the decision of the Bucharest Court of Appeal. 30. On 15 March 2004 the mother filed her observations with the Bucharest Court of Appeal. 31. On 16 March 2004 the applicant’s representative requested an adjournment from the Bucharest Court of Appeal in order to study the mother’s observations. 32. On 11 May 2004 the Bucharest Court of Appeal held a hearing in the case and heard submissions from the parties. The pronouncement of the judgment was adjourned to 25 May 2004. 33. On 25 May 2004 the Fourth Section of the Bucharest Court of Appeal quashed the judgment of the first-instance court in part. It examined the applicant’s action on the merits and dismissed it as ill-founded, finding that the applicant did not have custody rights over the child and that the child’s removal from Romania was legal under domestic law and not wrongful within the meaning of Article 3 of the Hague Convention. The judgment of the Court of Appeal was communicated to the parties on 19 July 2004. 34. On 3 August 2004 the applicant lodged an appeal on points of law with the Court of Cassation (Înalta Curte de Casaţie şi Justiţie) against the judgment of the Bucharest Court of Appeal. 35. On 16 August 2004 the case file was sent by the Bucharest Court of Appeal to the Court of Cassation of Romania. 36. On three occasions between November 2004 and March 2005 the applicant lodged requests with the Court of Cassation asking it for a speedier examination of his case on grounds of the urgency of the matter. 37. It appears that during that period the Romanian Code of Civil Procedure was undergoing changes and that it was not clear which court was competent under the new rules to examine the applicant’s appeal on points of law. On 16 March 2005 the Court of Cassation declined jurisdiction in favour of the Bucharest Court of Appeal and on 28 March the case file was sent back to that court. 38. The Bucharest Court of Appeal scheduled the first hearing in the case for 16 June 2005. 39. On 13 May 2005 the applicant requested that the proceedings be speeded up in view of an upcoming hearing in the London proceedings. On 19 May the applicant’s request was upheld and the hearing was rescheduled for 26 May 2005. 40. On 26 May 2005 the Third Section of the Bucharest Court of Appeal held a hearing; however, it decided to adjourn the proceedings to 9 June 2005. 41. On 9 June 2005 the Court of Appeal resumed the examination of the case and dismissed the applicant’s appeal on points of law. It found, inter alia, that, under Romanian family law, after divorce the parents of a child do not have equal rights in respect of their child. In particular, the parent who has custody of the child does not need the consent of the other parent in respect of measures concerning the child except for matters relating to adoption and/or losing or re-obtaining Romanian nationality. The parent who does not enjoy custody cannot veto a decision of the other parent concerning the child’s domicile. Accordingly, the removal of the child from Romania by the mother was lawful under Romanian law. 42. In July 2005, after the Romanian proceedings had ended and the final Romanian judgment had become available in English, the High Court in London resumed its proceedings and listed the case for a final hearing on 3 and 4 August 2005. 43. On 1 August 2005 the judge in charge of the case at the High Court in London acceded to the applicant’s application for an expert opinion on the law of Romania. The expert was to file his report by 16 September 2005. 44. Both parties agreed to instruct Dr Mihai to draft a report on Romanian family law and on 14 September 2005 the High Court confirmed the joint instructions to the expert and the time for lodging of the expert report was extended to 7 October 2005 with the final hearing listed for 14 October 2005. 45. On 28 September 2005 the High Court in London extended the time-limit for the expert report to 11 October and relisted the case for 31 October 2005. 46. The expert’s report was ready on 11 October 2005; however, the parties wished to put more questions to him. Therefore, on 31 October 2005, on an application from the applicant, the court adjourned the proceedings to 8 December 2005 and made further procedural directions in relation to any further questions to be put to the expert. 47. On 8 December 2005 the final hearing was listed before the High Court in London for 28 February and 1 March 2006. 48. On 28 February and 1 March 2006 the High Court held the final hearings in the case and gave judgment on 28 March 2006. The court found in favour of the applicant, choosing to rely on the expert opinion and to disregard the decisions of the Romanian courts. It found that the applicant had custody rights within the meaning of Article 5 of the Hague Convention and that therefore the child’s removal from Romania had been wrongful under Article 3 of the same Convention. The court also rejected an objection based on Article 13(b) of the Hague Convention raised by the mother and issued an order for the return of the child to Romania. 49. On 7 April 2006 the mother sought leave to appeal. This was granted on 10 April 2006 and the case was fixed for hearing in the Court of Appeal on 25 May 2006. 50. On 25 May 2006 the Court of Appeal heard and dismissed the mother’s appeal while varying the order for the peremptory return of the child until the end of the school term. 51. The mother appealed to the House of Lords. Her appeal was heard between 9 and 11 October 2006 and on 16 November 2006 the House of Lords gave judgment allowing the appeal. The House of Lords reversed the judgment of the High Court, finding that the applicant did not have custody rights within the meaning of Article 5 of the Hague Convention and that therefore the child’s removal from Romania was not wrongful under Article 3 of the same Convention. The House of Lords criticised the decision of the High Court to seek a further expert opinion after having obtained a final decision on the matter from the Romanian courts and expressed regret about the length of the proceedings. 52. Lord Hope of Craighead observed, inter alia, that: “Article 15 of the Convention contemplates that the court may need to be provided with a determination from the authorities of the state of the child’s habitual residence that the removal was wrongful. So a judge is not to be criticised if he decides to use this procedure because he cannot responsibly resolve the issue on the information provided by the applicant. Nevertheless if he decides on this course delay will be inevitable. Great care must therefore be taken, in the child’s best interests, to keep this to the absolute minimum. The misfortunes that have beset this case show that, once the court has received the response, it should strive to treat the information which it receives as determinative. In this case the response that was received from Romania was sufficient to show that the child’s removal was not wrongful within the meaning of article 3. On 9 June 2005 the final Court of Appeal of Bucharest, upholding the court of first appeal, stated in the clearest terms that, under the law as it then stood in Romania, termination of marriage through divorce brings joint custody to an end, that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited, and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child’s place of residence. It is wholly understandable that the father should feel aggrieved by what has happened in this case. The effect on his ability to exercise his rights of access is plain to see. But the phrase “rights of custody” has been given a particular definition by the Convention. It is only if there has been a breach of rights of custody as so defined that the removal can be described as wrongful for its purposes. The information provided by the Romanian court shows that, as the law stood at the time of the child’s removal, the father had no such rights.” 53. Baroness Hale of Richmond commented, inter alia, that: “...the Bucharest Court of Appeal concluded that the removal of the child in December 2002 had not been wrongful... How then should the courts of the requested state respond to such a determination? Most certainly not as they did in this case. Having received a determination, binding between the parties, in the final court of the requesting state, the English High Court proceeded in effect to allow the father to challenge that ruling by adducing fresh expert evidence. The fact that the expert was jointly instructed does not cure the vice.” 54. Lord Carswell stated that: “It was quite wrong to permit the father to adduce further expert evidence from Dr Mihai which challenged not only the conclusion but the statement of the content of the father’s rights set out in the judgment of the Romanian court. The English court should have considered the terms of the judgment itself, without any subsequently obtained expert evidence. If it had done so it could only have come to the same conclusion as the Romanian court, even without applying any presumption in its favour.” 55. Lord Brown commented as follows: “This is an extraordinary case. It is, we are told, unique in the length of time which elapsed before the judge’s order for the child’s summary return to Romania (over three years after the commencement of Hague Convention proceedings); and unique too in being the only case in which a United Kingdom court has rejected a foreign court’s article 15 determination that the child’s removal was not in the event wrongful within the meaning of article 3... In circumstances like these it seems to me almost inconceivable that the court requesting the article 15 determination would then not simply accept it. Certainly there would need to be some compelling reason to reject it such as a flagrant breach of the rules of natural justice in the foreign judicial process or a manifest misdirection as to the autonomous meaning of the Convention term “rights of custody”. There is nothing of that sort here. On the contrary, the judge - neither Johnson J (who had requested the determination) nor Hogg J (who later ordered the child’s return to Romania) - on 1 August 2005, acting merely on the father’s request, ordered that an expert in Romanian law be jointly instructed by both parties to cover exactly the same ground as the Romanian Appeal Courts had themselves just covered...” 56. Throughout the entire proceedings in the United Kingdom the applicant was allowed to meet his child on a number of occasions in special contact centres for periods not exceeding two hours. According to him, however, over the last four years he has only been able to spend about thirty hours with his son. 57. It does not appear that the applicant ever applied to the United Kingdom courts in order to obtain a judgment from them giving him access to the child. However, on an unspecified date in 2007 he applied to the High Court in London for the recognition of the Romanian judgment of November 2000 (see paragraph 7 above). The Court is not aware of the outcome of those proceedings. 58. The relevant provisions of the Romanian Family Code read as follows: 1. The divorced parent who was entrusted with the child shall exercise the parental rights... 3. The divorced parent, who was not entrusted with the child, keeps the right to have personal ties with the child, as well as to observe his or her bringing up, education, studies and professional instruction. 59. The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction provide: “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” “For the purposes of this Convention – a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures - a) to discover the whereabouts of a child who has been wrongfully removed or retained; b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; d) to exchange, where desirable, information relating to the social background of the child; e) to provide information of a general character as to the law of their State in connection with the application of the Convention; f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; i) to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child...” “The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 15 “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.” Article 21 “An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”

dev

001-108992

ENG

GBR

ADMISSIBILITY

TABASSUM v. THE UNITED KINGDOM

Inadmissible

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

1. The applicant, Mr Naeem Anwar Tabassum, was born in 1966 and lives in West Drayton. His nationality is in dispute. He maintains that he is a national of the United Kingdom; the Government maintain that he is a Pakistani national. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. The applicant claims to have been born in the United Kingdom to a British mother and a Pakistani father, and thus to have British nationality. He claims that he returned as a young child with his father to Pakistan, where he lived until he re-entered the United Kingdom in 2000, travelling with both his expired child’s British passport and his valid Pakistani passport. There is no evidence to support this account, as he claims that both passports were subsequently stolen from him. 4. In November 2001, the applicant was convicted for persistently soliciting a woman for prostitution and fined. He was convicted in July 2004 of obtaining property by deception, for which he was sentenced to two years’ imprisonment. He was convicted in May 2005 of soliciting persons for car hire without a licence and driving whilst uninsured, for which he received a fine. He was convicted in September 2008 of driving whilst uninsured, for which he was fined and disqualified from driving for six months. On 19 September, he was convicted of forgery. He was sentenced to eighteen months’ imprisonment and deportation proceedings against him were initiated. He was notified of his liability to deportation on 29 October 2008 and did not make any representations in response. Nor did he appeal against deportation. On 10 December 2008, he was served with a signed deportation order. At the expiry of his sentence on 12 June 2009, the applicant was taken into immigration detention pending his deportation. 5. On 1 December 2008, whilst still in prison, the applicant refused to attend an interview with the High Commission for Pakistan in London to obtain a travel document. Following a warning, however, he attended an interview on 23 June 2010. The Pakistani authorities were not prepared to accept that the applicant was a national of Pakistan; however, subsequent to the interview, further documentation was sent to the High Commission by the British authorities in evidence of the applicant’s connection to Pakistan. Regular reminders have since been sent by the British authorities and, on 17 June 2011, a response was received from the High Commission, stating that the applicant’s national status was required to be verified from Pakistan. 6. The applicant sought permission to apply for judicial review of the legality of his detention. Permission was granted and a substantive hearing was held before the High Court on 15 July 2011. The onus was on the applicant to prove his claimed British citizenship and the judge found that, on the evidence before him and having regard to the applicant’s dishonesty and use of false identities in the past, he had not done so. He had not established that any of the identities he had claimed in the past were actually his, or that he had been born in the United Kingdom to a British mother, as he claimed. Having failed to prove that he was British, he must be treated as a foreign criminal, and was thus liable to detention pending his deportation. The judge was satisfied that the Secretary of State was genuinely using the power to detain for the purposes of effecting the applicant’s deportation. While the two-year period of immigration detention was long, it was not unreasonable, given the applicant’s insistence that he was British when he was not, and his failure to disclose sufficient details about his years in Pakistan to enable the Pakistani authorities to issue him with a travel document. The judge also accepted the Secretary of State’s decision that the applicant presented a high risk of absconding and of committing further offences if granted immigration bail; the fact that the applicant was failing to cooperate in obtaining a travel document only reinforced this risk. The key point was that the obstacles to the applicant’s deportation had been created by the applicant himself and his failure to give an honest account to either the British or Pakistani authorities. Given that his claim to be British had now been examined and rejected by a court, the judge found that the applicant might now be minded to disclose the necessary information to the authorities to enable a travel document to be issued. There was a sufficiently realistic prospect that the applicant’s deportation would take place within a reasonable time to render his continued detention lawful. The applicant notified the Court on 21 December 2011 that he had been released from detention. He did not provide any information as to why he had been released. 7. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. 8. Section 3(8) of the same Act provides that when any question arises as to whether a person is a British citizen or not, the onus shall be on the person asserting such citizenship to prove it. 9. Paragraph 2 of Schedule 3 of the same Act provides that, where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom. 10. The Supreme Court recently reaffirmed principles that had been set down in the case of R. v. Governor of Durham Prison, ex parte Hardial Singh (1984) 1 WLR 704 regarding the Secretary of State’s power to detain those whose deportation is pending, in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12. The principles are as follows: i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) the deportee may only be detained for a period that is reasonable in all the circumstances; iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, he should not seek to exercise the power of detention; and iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.

dev

001-79494

ENG

BGR

CHAMBER

CASE OF ANGEL ANGELOV v. BULGARIA

Violation of Art. 6-1;No violation of Art. 6-1 (length);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Peer Lorenzen

6. The applicant was born in 1958 and lives in Plovdiv. 7. On 27 July 1993 the applicant, who was a taxi driver, hit a pedestrian with his car. The applicant brought the victim to the nearest hospital, where he died several days later despite the efforts of the medical doctors. 8. On 4 August 1993 or 20 October 1993 the applicant was charged with involuntary manslaughter. 9. On an unspecified date in the beginning of 1994, after the completion of the investigation, an indictment was submitted to the Plovdiv Regional Court. The relatives of the victim joined the proceedings as civil plaintiffs. 10. After a hearing, on 18 March 1994 the court convicted the applicant and sentenced him to one year's imprisonment, suspended. The court also ordered the suspension of the applicant's driving licence for two years and ordered him to pay damages to the relatives of the victim. 11. Upon the applicant's appeal, on 10 June 1994 the Supreme Court quashed the lower court's judgment and referred the case back for reexamination at the investigation stage, instructing the competent authorities to commission a new expert report in order to clarify certain additional facts. 12. The renewed investigation lasted until 5 December 1995 when a fresh indictment was submitted to the Plovdiv Regional Court. 13. By judgment of 3 June 1997 the Regional Court convicted the applicant and sentenced him to one year's imprisonment, suspended. The court also ordered the suspension of the applicant's driving licence for one year. 14. On 10 June 1997 the applicant appealed to the Supreme Court of Cassation. 15. On 14 November 1997 the Supreme Court of Cassation, acting as a court of appeal in a chamber of three judges, dismissed the appeal. 16. On 6 May 1998 the applicant filed with the Plovdiv Regional Court a petition for review (cassation), which would have fallen to be examined by a five-member chamber of the Supreme Court of Cassation in the transitional period following the 1998 legislative amendments (see paragraph 20 below). 17. On an unspecified date the Plovdiv Regional Court transmitted the petition and the case file to the Supreme Court of Cassation. 18. On 24 March 1999 a judge of the Supreme Court of Cassation dismissed as time-barred the petition for review (cassation) and ordered the return of the case file back to the Regional Court. The order was made on a standard form which stated that the petition for review had been dismissed as time-barred, without mentioning any dates. The name of the judge who issued the order was not indicated. 19. In accordance with the Code of Criminal Procedure and the practice, appeals are filed with the registry of the court whose decision is being appealed against. That court then transmits the appeal, together with the case-file, to the higher court in which the power to examine the appeal is vested. 20. By amendment of the Code of Criminal Procedure published on 20 February 1998 and in force as of 1 April 1998, the system of appeals against convictions and sentences was reformed. In accordance with section 37 § 2 of the transitory provisions to the Act amending the Code of Criminal Procedure, the timelimit for submission of a petition for review (cassation) against judgments delivered prior to the amendment's entry into force was six months from the date on which the judgment had become enforceable. Under Article 371 § 1 of the Code of Criminal Procedure, as in force at the relevant time, appellate judgments upholding the first instance judgment became enforceable on the date of delivery.

dev

001-58257

ENG

GBR

GRANDCHAMBER

CASE OF OSMAN v. THE UNITED KINGDOM

No violation of Art. 2;No violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Franz Matscher;John Freeland;R. Pekkanen;Simon Brown

10. The applicants are British citizens resident in London. The first applicant, Mrs Mulkiye Osman, was born in Cyprus in 1948. She is the widow of Mr Ali Osman who was shot dead by Mr Paul Paget-Lewis on 7 March 1988. The second applicant, Ahmet Osman, is her son, born in England in 1972. He was a former pupil of Paul Paget-Lewis at Homerton House School. Ahmet Osman was wounded in the shooting incident which led to the death of his father. The applicants complaints are directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that Paul Paget-Lewis represented a serious threat to the physical safety of Ahmet Osman and his family. There is disagreement between the applicants and the respondent State on essential aspects of the circumstances leading to the tragedy. The applicants have disputed in this respect the completeness of the facts as found by the Commission. 11. In 1986 the headmaster of Homerton House School, Mr John Prince, noticed that one of his teaching staff, Paul Paget-Lewis, had developed an attachment to Ahmet Osman, a pupil at the school. According to a statement which he made to the police on 10 March 1988, Mr Prince indicated that he “made a point of personally keeping an eye on the situation”. As a result of this attachment, Paget-Lewis informed Mr Prince that he intended to leave the school and become a supply teacher. Mr Kenneth Perkins, a deputy head teacher, spoke with Paget-Lewis and managed to persuade him to remain at the school. 12. In January 1987 Mrs Green, the mother of Leslie Green, another pupil at the school and the applicants’ neighbour, telephoned Mr Fleming – another deputy head teacher – to complain that Paget-Lewis had been following her son home after school and harassing him. She alleged that Paget-Lewis had been spreading rumours that her son had engaged in deviant sexual practices and that he objected to her son’s friendship with Ahmet Osman. Mrs Green made a formal complaint to this effect to Mr Prince on 2 March 1987. 13. On 3 March 1987 Mr Perkins interviewed Leslie Green, who confirmed that Paget-Lewis had been following him and had been spreading rumours of a sexual nature about him because of his friendship with Ahmet Osman. 14. Also on 3 March 1987 Mr Fleming interviewed Ahmet Osman. In the typed record of this interview dated 6 March 1987, Ahmet confirmed that Paget-Lewis had warned him about Leslie Green, accusing Leslie of sexual misconduct with another boy at the school. Ahmet also reported to Mr Fleming during the interview that on one occasion Paget-Lewis had followed Leslie and himself home in his car. He also stated that Paget-Lewis had asked him to come and see him in his classroom at lunch times, apparently to learn Turkish, and that Paget-Lewis had taken photographs of him and given him money, a pen and a Turkish dictionary. However, he later took the pen and deliberately snapped it in half during a lesson. 15. On 6 March 1987 Mr Perkins interviewed Paget-Lewis. In the course of the interview Paget-Lewis stated that he had a special relationship with Ahmet Osman which had developed over a period of a year and which Leslie Green was trying to disrupt and that he was so upset on one occasion that he confronted Leslie and accused the boy of being a sexual deviant. He admitted that he had followed Leslie home on one occasion and had waited outside his parents’ house for 45 minutes. Paget-Lewis mentioned to Mr Perkins that he had told Leslie Green that he would become “very angry” if anything happened to his relationship with Ahmet, although he indicated to Mr Perkins that this was not to be seen as a threat. He also acknowledged that he had given Ahmet money and presents, and had taken photographs of him for “sentimental reasons”. In a later memorandum dated 5 May 1988, Mr Perkins described Paget-Lewis as having been in a highly irrational state during this interview and unwilling to admit that his behaviour displayed a serious lack of wisdom and professionalism. 16. On 9 March 1987 Paget-Lewis submitted a written statement to Mr Perkins regarding the complaint made by Mrs Green. In his memorandum of 5 May 1988 (see paragraph 15 above) Mr Perkins stated that he found the statement “disturbing” since it showed clearly that Paget-Lewis was “overpoweringly jealous” of the friendship between Ahmet Osman and Leslie Green and provided clear evidence that he “was not in control of his emotions”. Leslie was presented as devious, malicious and an evil influence. Mr Perkins again interviewed Paget-Lewis on his written statement during which he pointed out his concerns about the content of the statement and suggested to Paget-Lewis that he seek psychiatric help. Mr Perkins informed Mr Prince of everything which had happened up until that date. 17. Prior to 13 March 1987 Mr Prince had an informal discussion with Paget-Lewis in which he admitted telling pupils at the school that Leslie Green had engaged in acts of oral sex with Ahmet Osman in revenge for rumours spread by Leslie concerning his relationship with Ahmet. On 13 March 1987 Mr Prince formally interviewed Paget-Lewis on the basis of the notes of the interview between Paget-Lewis and Mr Perkins. The contemporaneous notes taken of the meeting reveal that Paget-Lewis admitted that he had become attached to Ahmet Osman; that he had accused Leslie Green of trying to turn Ahmet against him; and that he had parked outside Leslie’s house to show that he was not to be scared away. Paget-Lewis denied that he had accused Leslie of deviant sexual practices. The notes of the meeting conclude with the sentence “the situation has now escalated and Mr Prince has no confidence in his own ability to contain it”. 18. Mr Prince was informed on 16 March 1987 in an interview with Leslie Green and his mother that Paget-Lewis had been spying on Ahmet Osman and that Paget-Lewis had told Ahmet that “he knew where his mother worked and how much money she earned and that if Ahmet left school, he would find him”. 19. During this period another deputy head teacher, Mr Youssouf, also interviewed Ahmet Osman on a number of occasions. These interviews revealed that Paget-Lewis had told Ahmet that he would be able to find him if he left the school. Paget-Lewis claimed to have discovered Ahmet’s previous address and the name of his previous school and said he had visited the area and had spoken to his former neighbours. 20. On 17 March 1987 Mr Prince met with the Osman family to explain his concerns about the interest Paget-Lewis had taken in Ahmet. He explained that the school was quite satisfied that nothing improper had taken place between Paget-Lewis and Ahmet. He told them that the school would monitor the situation closely to ensure that Ahmet would be safe. Ahmet was told never to be alone with Paget-Lewis. During this meeting Ahmet’s mother expressed her wish that her son should be transferred to another school. 21. According to the diary of Mr Prince between 3 March 1987 and 17 March 1987 he met with PC Williams on four occasions. The applicants state that during these meetings information concerning Paget-Lewis’ conduct towards Ahmet Osman was passed on to the police. The Government state that PC Williams had no recollection of being told about the presents which Paget-Lewis had given to Ahmet or that Paget-Lewis had followed Ahmet home. PC Williams did not keep any record of the meetings, nor did he make any report concerning the nature and extent of the information that was communicated to him, or if he did no such record now exists. The Government stress that all concerned were satisfied that there was no sexual element to Paget-Lewis’ attachment to Ahmet and the matter could be dealt with internally by the school. 22. By 17 March 1987 graffiti had appeared at six locations around the school which read “Leslie, do not forget to wear a condom when you screw Ahmet or he will get Aids.” The words had been written with spray paint and a stencil. 23. Following the discovery of the graffiti, Mr Perkins interviewed Paget-Lewis and asked him if he was responsible. He denied this. However, Mr Perkins noted in his report that Paget-Lewis knew the precise wording and the exact locations of all the graffiti. 24. On 19 March 1987 a further discussion took place between Mr Prince and the Osman family regarding Ahmet’s transfer to another school. For his safety Mr Prince told Ahmet not to give his new school address to anyone from Homerton House. While attempting to arrange his transfer, Mr Youssouf discovered that the files relating to Ahmet and Leslie Green had been stolen from the school office. The file relating to staff disciplinary matters was also found to be missing. Mr Perkins considered that the stolen files were the likely source of the information that Paget-Lewis had acquired about Ahmet Osman’s previous address and school (see paragraph 19 above). He subsequently questioned Paget-Lewis, who denied any involvement in the theft and denied having made any comments about Ahmet’s previous address and school or visiting the area in which Ahmet used to live. 25. On 23 March 1987 Ahmet Osman was transferred to a different school, but owing to curriculum difficulties he had to return to Homerton House fourteen days later. 26. On 14 April 1987, Paget-Lewis changed his name by deed poll to Paul Ahmet Yildirim Osman. On 1 May 1987, Mr Prince wrote to the Inner London Education Authority (ILEA) informing them that Paget-Lewis had changed his name and that he was worried that some psychological imbalance might pose a threat to the safety of Ahmet Osman. He also stated that he was of the opinion that Paget-Lewis should be removed from the school as soon as possible. 27. On 4 May 1987 Mr Prince spoke with two police officers, Detective Chief Inspector Newman and Detective Inspector Clarke. According to the applicants during this meeting the headmaster informed them of the missing files and the graffiti incident and discussed the fact that Paget-Lewis’ real name was Ronald Stephen Potter. He had previously changed his name by deed poll to name himself after a pupil called Paget-Lewis whom he had taught at Highbury Grove School. The Government state that the two police officers have no recollection of having been informed of these matters. 28. Following his letter of 1 May 1987 (see paragraph 26 above), Mr Prince wrote to the Head of Discipline at ILEA in a letter dated 8 May 1987 stating that while he believed Paget-Lewis needed medical help, his continued presence in the school jeopardised the welfare, safety and education of the pupils. An internal memorandum from the Head of Discipline at ILEA dated the same day makes reference to “a fear that [Paget-Lewis] might seek to take the boy out of the country” and that the police are investigating the complaint that “he has removed certain files about the matter from the school”. Undated notes written by the same official between 14 April and 8 May 1987 indicate that it was feared that Ahmet Osman may be harmed and that by changing his name Paget-Lewis may abscond with the boy. The notes refer to the fact that the police had stated that Mr Prince should contact them if Ahmet goes missing for more than an hour. In addition, the police would investigate the disappearance of the missing files, search Paget-Lewis’ home and check up on his background. The Government deny that the police said that they should be contacted if Ahmet went missing or that they intended to search Paget-Lewis’ house. 29. On 19 May 1987 Paget-Lewis was seen by Dr Ferguson, the ILEA psychiatrist. Dr Ferguson was provided with, inter alia, the documents showing Paget-Lewis’ change of name; the records of the interviews conducted in March 1987; and the memorandum prepared by Mr Perkins on 5 May 1987 (see paragraph 15 above). Dr Ferguson reported: “This teacher must indeed give cause for concern. He does not present ill in formal terms, nor does he seem sexually deviant. He does have personality problems, and his judgment regarding his friendship with a pupil is reprehensibly suspect.” Dr Ferguson recommended that Paget-Lewis remain teaching at the school but that he should receive some form of counselling and psychotherapy. 30. On or about 21 May 1987, a brick was thrown through a window of the applicants’ house. The police were informed and a police officer was sent to the house and completed a crime report. On two occasions in June 1987 the tyres of Ali Osman’s car were deliberately burst. Both incidents were reported to the police, but no police records relating to the offences can be found. 31. On 1 June 1987 Mr Prince requested Paget-Lewis to take sick-leave. On 2 June 1987 Paget-Lewis was examined again by Dr Ferguson. He described a continuing strong urge to speak with Ahmet Osman and said that he felt angry that Ahmet seemed content with the situation of non-contact. Dr Ferguson concluded that under the circumstances, Paget-Lewis should remain away from Homerton House and was designated temporarily unfit to work. Paget-Lewis subsequently informed Mr Perkins that he would be taking medical leave for the remainder of the school term. He then left Homerton House and did not return again. 32. On 16 June 1987, following a further interview with Paget-Lewis, Dr Ferguson recommended that he should no longer teach at Homerton House and that transfer on medical grounds was strongly and urgently recommended. 33. On 4 June 1987 Mrs Green telephoned Mr Perkins making further complaints about Paget-Lewis following her son. She also informed him that she had sent her son to stay with her sister. 34. On 18 June 1987, Paget-Lewis was suspended pending an ILEA investigation for “unprofessional behaviour” towards Ahmet Osman. He submitted a statement dated 6 July 1987 in which, inter alia, he admitted taking photographs of Ahmet and giving him money but denied stealing files or painting graffiti. He accused Mr Perkins of lying about him and said that Mr Perkins has stated his intention of breaking him. 35. On 7 August 1987, ILEA sent a letter to Paget-Lewis officially reprimanding and severely warning him but lifting the suspension. The letter also stated that he was not to return to Homerton House. Shortly afterwards he began working as a supply teacher at two other local schools, Haggerston School and Skinners School. 36. In August or September 1987, a mixture of engine oil and paraffin was poured on the area outside the Osman family home. On 18 October 1987, the windscreen of Ali Osman’s car was smashed. During November 1987, in a series of incidents, the applicants’ front door lock was jammed with superglue, dog excrement was smeared on their doorstep and on their car, and on more than one occasion the light bulb was stolen from the light in the outside porch. Around this time all the windows of their car were also broken. All these incidents were reported to the police and on two occasions Ali Osman visited Hackney police station to discuss the vandalism and criminal damage to his property. 37. At some point during November 1987, PC Adams visited the Osmans’ home and then spoke to Paget-Lewis about the acts of vandalism. In a later statement to the police, Paget-Lewis alleged that he told PC Adams that the loss of his job was so distressing that he felt that he was in danger of doing something criminally insane. The Government deny that this was said, and refer to the fact that during the interview with PC Adams Paget-Lewis denied any involvement in the acts of vandalism and criminal damage. No detailed records were made by PC Adams of his contacts with Paget-Lewis or the Osman family. Any entries in notebooks or duty registers (crime reports or parade books) could not later be traced by the Metropolitan Police Solicitor’s Department. 38. On 7 December 1987 a car driven by Paget-Lewis collided with a van in which Leslie Green was a passenger. According to the driver of the van, Paget-Lewis claimed that his accelerator had jammed and that he could not help what happened. After the police arrived at the scene of the accident they cautioned Paget-Lewis, and provided him with a form requesting him to produce his driving documents. 39. On 10 December 1987 Paget-Lewis attended Hackney police station and produced his driving documents for inspection. Since he failed to produce a road worthiness (MOT) certificate for his car he was cautioned by the police. 40. In a statement taken by the police on 22 December 1987 from the driver of the van that had been allegedly rammed by Paget-Lewis, the driver recalled that after the accident Paget-Lewis had said: “I’m not worried because in a few months I’ll be doing life.” 41. On 8 December 1987, following the collision incident, Detective Sergeant Boardman contacted ILEA stating that he wished to interview Paget-Lewis and the headmaster. The applicants state that Detective Sergeant Boardman assured ILEA that the Osman family would be protected. The Government deny that such an assurance was given. An ILEA memorandum dated 8 December 1987 referred to the harassment of the Osman family and Paget-Lewis’ alleged admission of responsibility for the van collision saying that Leslie Green had lured Ahmet Osman away from his affections. It noted that the police were pursuing enquiries but that if nothing was heard the matter should be “chased”. It concluded with the note “Families getting police protection”. 42. On 9 December 1987 Detective Sergeant Boardman took a detailed statement from Leslie Green and his mother concerning, inter alia, the fact that Paget-Lewis had followed Leslie home, the acts of harassment and the graffiti which had appeared at the school. In his statement Leslie claimed that Paget-Lewis had threatened to “get him” whether it took “thirty days or thirty years”. He also said that he had not been to school for two weeks as he was afraid to travel there and that he had moved in with his aunt, so as to be safe from Paget-Lewis. 43. On 14 December 1987 Detective Sergeant Boardman visited Homerton House and inspected the graffiti. A police photographer took photographs of the graffiti. 44. On or about 15 December 1987 Detective Sergeant Boardman visited the Osman family and discussed the criminal damage and Paget-Lewis’ relationship with Ahmet. The applicants allege that Detective Sergeant Boardman told the family that he knew Paget-Lewis was responsible for the acts of vandalism, and gave them assurances that he would cause the incidents to stop. The Government deny that Detective Sergeant Boardman said that he knew Paget-Lewis was responsible, and that he gave assurances as to the family’s safety. 45. In his report on the case which was completed on or about 15 December 1987, Detective Sergeant Boardman observed: “It should be pointed out at this stage that there is no evidence to implicate Paget-Lewis in either of these offences [the graffiti at the school] or the acts of vandalism against Osmans’ address, although there is no doubt in everybody’s mind that he was in fact responsible and this was just another example of his spite.” 46. On 15 December 1987 Paget-Lewis was interviewed by officers of ILEA at his own request. An ILEA memorandum dated the same day recorded that Paget-Lewis felt in a totally self-destructive mood, stating that it was all a symphony and the last chord had to be played. He admitted being deeply in debt and as a result was selling all his possessions. He blamed Mr Perkins for all his troubles but would not do a “Hungerford” in a school but would see him at his home. The memorandum stated that the concerns of ILEA should be passed on to the police and noted that a call was made to Detective Sergeant Boardman, who was unavailable. Nevertheless, a detailed message was left with the receptionist. One of the officers of ILEA recalled later in a statement dated 9 March 1988 that Paget-Lewis spoke in a manner which was very disturbing, said that he blamed Mr Perkins for the loss of his job, that he knew where he lived and that he was going to do something though not at the school. The other officer recalled in her statement of 9 March 1988 that Paget-Lewis had stated that he was going to do something that would be “a sort of Hungerford”. She recalled that as a result of this conversation she informed the police and the school that she considered that the head and deputy head were at risk of violence. Although the applicants state that the content of the interview was passed on to the police, the Government deny that mention was made of the “Hungerford” reference or that there was any suggestion that the Osmans might be in danger. 47. On 15 December 1987 after receiving the message of the officer of ILEA (see paragraph 46 above), Detective Sergeant Boardman sent a telex to the local police station near Mr Perkins’ home referring to the fact that vague threats had been made and that the school authorities were very concerned. He asked them to pay casual attention to the address, giving a brief description of Paget-Lewis and the registration number of his car. 48. On 16 December 1987 Detective Sergeant Boardman contacted ILEA with a view to tracing Paget-Lewis and was provided with his address. He requested the official at ILEA to ask Paget-Lewis to contact the police. On the same day, Detective Sergeant Boardman met with Mr Prince and Mr Perkins. The applicants state that he assured Mr Prince that the police would undertake the necessary measures to protect both Mr Perkins and the applicants. A diary entry of Mr Prince dated 16 December 1987 refers to Detective Sergeant Boardman and contains a heading “OSMAN/PERKINS/POLICE PRESENCE ARRANGED” and a note that ILEA had called “to finalise arrangements re protection for Perkins/Osman families”. According to the Government no assurance of protection was given. Detective Sergeant Boardman received the impression from his meetings with Mr Prince and Mr Perkins that Paget-Lewis was angry at being removed from the school but that the anger was directed against the deputy head, who in any case did not feel in danger. 49. On 17 December 1987 Detective Sergeant Boardman and other police officers arrived at Paget-Lewis’ house with the intention of arresting him on suspicion of criminal damage. Paget-Lewis was absent. The police were unaware that he was teaching at Haggerston School that day. 50. On 18 December 1987 pursuant to the request of the police, ILEA sent a letter to Paget-Lewis requesting him to contact Detective Sergeant Boardman. The same day ILEA informed the police that Paget-Lewis had not attended Haggerston School. He did not return to the school again. 51. In early January 1988 the police commenced the procedure of laying an information before the Magistrates’ Court with a view to prosecuting Paget-Lewis for driving without due care and attention. In addition, Paget-Lewis’ name was put on the Police National Computer as being wanted in relation to the collision incident and on suspicion of having committed offences of criminal damage. 52. On 8 January an officer of ILEA rang Detective Sergeant Boardman for an update on the case but he was unavailable. Three days later he returned her call saying there had been no progress. 53. Between January and March 1988 Paget-Lewis travelled around England hiring cars in his adopted name of Osman and was involved in a number of accidents. He spent time at his home address during this period and continued to receive mail there. 54. On 17 January 1988 Paget-Lewis broke into a car parked near a clay-pigeon shoot near Leeds in Yorkshire and stole a shotgun. He sawed off both barrels. While the theft was reported to the local police, because there was nothing to connect the incident to Paget-Lewis the theft did not come to the attention of the Metropolitan police dealing with the case. 55. On 1, 4 and 5 March 1988 Leslie Green saw Paget-Lewis wearing a black crash helmet near the applicants’ home. According to the applicants, Mrs Green informed the police on each occasion, but her calls were not returned. The Government accept that, on 5 March 1988, Detective Sergeant Boardman received a message which stated “phone Mrs Green” but since there was no phone number on the note he did not connect the message with the mother of Leslie Green. 56. On 7 March 1988 Paget-Lewis was seen near the applicants’ home by a number of people. At about 11 p.m. Paget-Lewis shot and killed Ali Osman and seriously wounded Ahmet. He then drove to the home of Mr Perkins where he shot and wounded him and killed his son. 57. Early the next morning Paget-Lewis was arrested. On being arrested he stated “why didn’t you stop me before I did it, I gave you all the warning signs?” 58. Later that day Paget-Lewis was interviewed by the police. According to the record of the interview, Paget-Lewis said that he had been planning the attacks ever since he lost his job, and for the previous two weeks he had been watching the Osmans’ house. Although he considered Mr Perkins as his main target, he also regarded Ali and Ahmet Osman as being responsible for his losing his position at Homerton House. Paget-Lewis stated that he had been hoping in the back of his mind that the police would stop him. He admitted holding the family at gunpoint as they returned to the house, making Ali and Ahmet Osman kneel down in the kitchen, turning out the light and shooting at them. He denied that on earlier occasions he had damaged the windows of the Osmans’ house but admitted that he had let down the tyres of their car as a prank. He also denied responsibility for the graffiti and taking the files from the school office. 59. On 28 October 1988 Paget-Lewis was convicted of two charges of manslaughter having pleaded guilty on grounds of diminished responsibility (see paragraph 73 below). He was sentenced to be detained in a secure mental hospital without limit of time pursuant to section 41 of the Mental Health Act 1983. 60. An inquest was held into the death of Ali Osman after the conclusion of the criminal proceedings. Since a person had been convicted in connection with the death, the Coroner did not hold a full inquest (section 16 of the Coroner’s Act 1988). 61. On 28 September 1989 the applicants commenced proceedings against, inter alios, the Commissioner of Police of the Metropolis alleging negligence in that although the police were aware of Paget-Lewis’ activities since May 1987 they failed to apprehend or interview him, search his home or charge him with an offence before March 1988. Orders for discovery of documents were made on 24 April 1990. 62. On 19 August 1991 the Metropolitan Police Commissioner issued an application to strike out the statement of claim on the ground that it disclosed no reasonable cause of action. The High Court judge dismissed the application. 63. On 7 October 1992 the Court of Appeal upheld the appeal by the Commissioner (Osman and another v. Ferguson and another [1993] 4 All England Law Reports at p. 344). In its judgment, the court held that in light of previous authorities no action could lie against the police in negligence in the investigation and suppression of crime on the grounds that public policy required an immunity from suit. 64. Lord Justice McCowan found, inter alia: “In my judgment the plaintiffs [the applicants] have therefore an arguable cause that as between [the second applicant] and his family, on the one hand and the investigating officers, on the other, there existed a very close degree of proximity amounting to a special relationship.” 65. However, having regard to the judgment of the House of Lords in the case of Hill v. Chief Constable of West Yorkshire (see paragraphs 90–92 below), from which he found no relevant distinction, he considered that the matters in issue were failures in investigation of crime and thus public policy doomed the action to failure. He rejected the argument that where the class of victim was sufficiently proximate and sufficiently small the public policy argument might not apply. He found that Lord Keith in the Hill case had treated public policy as a separate point that is not reached unless there is a duty of care. The second judge in the Court of Appeal, Lord Justice Beldam, also held that on grounds of public policy the claims were not maintainable but refrained from expressing an opinion as to whether the facts, if proved, were sufficient to establish a relationship sufficiently proximate to found a duty of care. Lord Justice Simon Brown agreed with the judgment of Lord Justice McCowan. The applicants’ claim was accordingly struck out. 66. The Court of Appeal refused leave to appeal to the House of Lords and the application to the House of Lords for leave to appeal was refused on 10 May 1993. 67. The domestic courts had not established the full facts of the case since Paget-Lewis pleaded guilty to the charges against him and a full inquest was not conducted into the death of Ali Osman (see paragraph 60 above). Furthermore, the applicants’ civil action against the police was struck out as showing no reasonable cause of action (see paragraph 65 above). Having examined the submissions and materials of the parties especially as regards the facts in dispute the Commission proceeded to the establishment of the facts of the case. Its findings may be summarised as follows. 68. As to the four meetings which took place between the police and the school between 3 March and 17 March 1987 (see paragraph 21 above), the Commission was satisfied that the police were made aware of the substance of the events and of the school’s concerns about the disturbing attachment which Paget-Lewis was showing towards Ahmet Osman as well as Paget-Lewis’ worrying reaction towards Leslie Green. Furthermore, Mr Prince had in all probability informed Detective Inspectors Newman and Clarke on 4 May 1987 (see paragraph 27 above) about the graffiti incident, the theft of the school files and Paget-Lewis’ change of name, even if both officers had no recollection of having been told about the first two matters. Like the meetings between PC Williams and Mr Prince, no police notes appear to have been taken. However, the Commission did not find it established that at this stage the police had made any commitment to searching Paget-Lewis’ home or were seriously concerned about the possibility of Paget-Lewis kidnapping Ahmet. These hypotheses emerge from the memoranda drawn up by ILEA officers around this time (see paragraph 28 above) and were probably based on the contacts which the officers had with Mr Prince and not on any direct contact between the officers and the police. 69. While all the vandalism on the Osmans’ home and property between May and November 1987 had been reported to the police and the family had informed the police of its concern that Paget-Lewis was behind the attacks, the only step taken during that period was to invite Paget-Lewis to the police station for an interview (see paragraph 37 above). In the Commission’s opinion, little reliance could be placed on Paget-Lewis’ later assertions that he told PC Adams during the interview that he was in danger of doing something criminally insane. No police notes or records of this meeting which took place on an unspecified date could be traced. 70. Following the alleged ramming incident (see paragraph 38 above), the police immediately interviewed the Greens and the Osmans and photographed the graffiti at the school (see paragraphs 42 and 43 above). Although Detective Sergeant Boardman in his undated report (see paragraph 45 above) had stated that there was no evidence that Paget-Lewis was responsible for the graffiti and the attacks on the Osmans’ home the police had nevertheless taken the view that he was presenting a sufficient threat that formal steps should be taken against him. Thus the decision was taken on 16 December 1987 to arrest Paget-Lewis on suspicion of criminal damage. The Commission was also satisfied that there was no evidence that Paget-Lewis had made any direct or indirect threats against the Osmans during his meeting with ILEA officers on 15 December 1987 (see paragraph 46 above). It placed greater weight on the contemporaneous notes of the meeting rather than on the statement of one of the officers taken several months later that Paget-Lewis threatened at the meeting to commit a “Hungerford massacre”. According to the notes of the meeting, Paget-Lewis is reported as having stated that he would not do a “Hungerford” at the school but would see the deputy at home. In the Commission’s view, this would explain why the police requested that a casual watch should be kept on Mr Perkins’ address. Furthermore, despite the wording of the ILEA memorandum of 8 December and of Mr Prince’s rather cryptic diary entry on 16 December 1987 (see paragraphs 41 and 48 above) it seemed unlikely that the police had referred to or promised police protection to the Osman family especially since none was in fact envisaged or provided. The school authorities had probably received this impression from the assurances given by the police that the necessary measures were being taken to deal with the situation including the vague threats made against Mr Perkins. 71. The Commission did not find it established that the letter sent by the ILEA to Paget-Lewis at the request of the police following the failed arrest attempt on 17 December 1987 caused Paget-Lewis to disappear (see paragraph 50 above). It was also satisfied that the police took no further active steps to trace the whereabouts of Paget-Lewis from 18 December 1987 to March 1988 apart from placing his name on the Police National Computer in January 1988. In addition, there were no contemporaneous records to support the assertion that Mrs Green had informed the police about Paget-Lewis being seen by her son around the Osman home in early March 1988 (see paragraph 55 above). It may have been the case that Mrs Green merely left a message with the police station that Detective Sergeant Boardman should ring her back. In that event, it was not surprising that Detective Sergeant Boardman had not been able to make a connection between a Mrs Green and the Paget-Lewis file since the case had been dormant for three months. 72. The offence of murder is committed if a person of sound mind unlawfully kills any human being with malice aforethought. The mental element of murder, “malice aforethought”, is established if it is proved that there was, on the part of the accused, an intention to kill, an intention to cause grievous bodily harm or an intention to do an act knowing it to be highly probable that the act will cause death or grievous bodily harm. The sentence for murder is life imprisonment. 73. The offence of manslaughter is committed if the victim is unlawfully killed by a person who, by reason of abnormality of mind, suffered from diminished responsibility – i.e. who suffered from such abnormality of mind as substantially impaired his mental responsibility for his acts. The sentence of manslaughter is imprisonment for life or for any shorter term. 74. The power to obtain a warrant to search for items that have been used, or are intended for use, in committing criminal damage is governed by section 6(1) of the Criminal Damage Act 1971 which provides: “If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used or is intended for use without lawful excuse – (a) to destroy or damage property belonging to another; or (b) to destroy or damage any property in a way likely to endanger the life of another, the Justice of the Peace may grant a warrant authorising any constable to search for and seize that thing.” 75. In order for an arrest to be lawful it must first satisfy either section 24 or 25 of the Police and Criminal Evidence Act 1984 (“the 1984 Act”). 76. Under section 24 a police officer may arrest any person whom he has reasonable grounds to believe is guilty of an arrestable offence. All offences which carry a maximum sentence of five years’ imprisonment or more are considered arrestable offences (section 24(1)). 77. Under section 25 a police officer may arrest without warrant any person whom he has reasonable grounds to suspect is guilty of a non-arrestable offence provided that one of the general interest conditions apply. These include: (a) that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as a name is in fact his real name (section 25(3)(a)); (b) that the constable has reasonable grounds to believe that an arrest is necessary to prevent the relevant person causing physical injury to any person or causing loss or damage to property (section 25(3)(d)(i) and (ii)); (c) that the constable has reasonable grounds to believe that an arrest is necessary to protect a child or other vulnerable person from the relevant person (section 25(3)(e)). 78. In determining whether the available information is sufficient to give rise to a reasonable suspicion, the test to be applied is that laid down by the House of Lords in Hussein v. Chang Fook Kam [1970] Appeal Cases at p. 942: “Suspicion in its ordinary meaning is a state of conjuncture or surmise where proof is lacking: ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end.” 79. Where a person is arrested for an offence without a warrant, or under a warrant not endorsed for bail, the custody officer at the police station where he is detained after his arrest must determine whether he has sufficient evidence to charge the person for the offence for which he has been arrested (section 37(1)(b) of the 1984 Act). In reaching this decision the custody officer must have “reasonable and probable” cause to prosecute. In Hicks v. Faulkner [1878] 8 Queen’s Bench Division at p. 167, Judge Hawkins interpreted this requirement to mean: “… an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser to the conclusion that the person was probably guilty of the crime imputed.” 80. The custody officer is not required to be sure that the accused person is guilty before charging him (Tempest v. Snowden [1952] 1 King’s Bench Reports at p. 130). Nor is it necessary for a charging officer to believe that the prosecution will result in a conviction (Dawson v. Vasandau [1863] 11 Weekly Reporter at p. 516). The charging officer is simply required to make an assessment of whether there is sufficient evidence to withstand examination in the course of “a fair and impartial trial” (Glinski v. McIver [1962] Appeal Cases at p. 726). 81. If the custody officer does not have sufficient evidence to charge, the arrested person must be released either on bail or without bail. However, if the custody officer has reasonable grounds to believe that the suspect’s detention is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, the custody officer may authorise the suspect’s further detention (section 37(2) of the 1984 Act). 82. In determining whether to bring criminal charges against a person, the custody officer may take into account evidence disclosing a pattern of offending. However, in D.P.P. v. P. [1991] 2 Appeal Cases at p. 447 the House of Lords stated that admissibility of such evidence is to be determined by the degree of its probative worth. The Lord Chancellor, Lord Mackay of Clashfern, said: “… the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime… Once the principle is recognised that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative weight to outweigh its prejudicial effect must in each case be a question of fact and degree.” (at p. 460) He continued: “Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.” (at p. 462) 83. Section 38 of the 1984 Act provides that where an arrested person is charged with an offence, the custody officer shall order his release from police detention, either on bail or without bail, unless, inter alia, his name or address cannot be ascertained; detention is necessary for the person’s own protection or to prevent him causing physical injury to any other person or damage to property; or the person arrested will fail to appear in court to answer bail. 84. If the custody officer decides not to release the defendant, he must be produced before a Magistrates’ Court within 24 hours after his arrest who shall either commit him in custody or release him on bail. Pursuant to section 13 of Schedule 1 Part 1 to the Bail Act 1976: “The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would – (a) fail to surrender to custody, or (b) commit an offence while on bail, or (c) interfere with witnesses or otherwise obstruct the course of justice, either in relation to himself or any other person.” In taking this decision the Magistrates’ Court is required, pursuant to section 9 of Schedule 1 Part 1, to have regard to such of the following considerations as appear to it to be relevant, namely: “(a) the nature and seriousness of the offence…; (b) the character, antecedents, associations and community ties of the defendant; (c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings; (d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted.” 85. Section 136 of the Mental Health Act 1983 provides: “(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person, or for the protection of other persons, remove that person to a place of safety… (2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.” 86. Both the Magistrates’ Court and the Crown Court have the power to remand an accused person to a specified hospital for the preparation of a report on his mental condition. Section 35(2) defines an accused person as follows: “(a) in relation to the Crown Court, any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such an offence and has not yet been sentenced or otherwise dealt with for the offence on which he has been arraigned; (b) in relation to a Magistrates’ Court any person who has been convicted by the court of an offence punishable on summary conviction with imprisonment and any person charged with such an offence if the court is satisfied that he did the act or made the omission charged or he has consented to the exercise by the court of the powers conferred by this section.” If these requirements are met the court may, pursuant to section 35(3), remand the accused person to a hospital for a report if: “(a) the court is satisfied on the written or oral evidence of a registered medical practitioner, that there is reason to suspect that the accused person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and (b) the court is of the opinion that it would be impracticable for a report on his mental condition to be made if he were remanded on bail…” 87. The Crown Court may remand an accused person to a specified hospital for treatment, if it is satisfied on the evidence of two medical practitioners that he is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be so detained (section 36(1)). 88. Following conviction for an offence punishable with imprisonment, both the Magistrates’ Court and the Crown Court have the power under section 38(1) to make an interim hospital order, where: “… the court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners (a) that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and (b) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case…” Pursuant to section 37(2) both the Magistrates’ Court and the Crown Court may also admit an offender to a hospital if: “(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that… (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition… (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.” 89. In the case of Dorset Yacht Co. Ltd v. the Home Office ([1970] Appeal Cases at p. 1004), the owners of a yacht damaged by borstal boys who had escaped from the supervision of prison officers sought to sue the Home Office alleging negligence by the prison officers. The House of Lords held that in the particular case a duty of care could arise. Lord Diplock said: “I should therefore hold that any duty of a borstal officer to use reasonable care to prevent a borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situated in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and capture.” 90. In the case of Hill v. Chief Constable of West Yorkshire ([1989] Appeal Cases at p. 53), the mother of a victim of the Yorkshire Ripper instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members of the public who might be his victims. Lord Keith in the House of Lords found: 91. While he considered this sufficient to dispose of the appeal, Lord Keith went on to set out public-policy objections to the existence of an action in negligence against the police in the performance of their duties in the investigation and suppression of crime. “Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure – for example that a police officer negligently tripped and fell while pursuing a burglar – others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted.” 92. Lord Templeman commented: “... if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties. This action is misconceived and will do more harm than good.” 93. In Swinney and another v. the Chief Constable of Northumbria ([1997] Queen’s Bench Reports at p. 464), the plaintiff had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to be traced back to her. The information was recorded, naming the plaintiff, in a document which was left in an unattended police vehicle, which was broken into with the result that the document was stolen, came into the possession of the person implicated and the plaintiff was threatened with violence and arson and suffered psychiatric damage. The plaintiff’s claim in negligence against the police was struck out but allowed on appeal by the High Court judge. The Chief Constable appealed contending that the police owed no duty of care or alternatively that public policy precluded the prosecution of the claim since the police were immune for claims arising out of their activities in the investigation or suppression of crime. The Court of Appeal dismissed the appeal. In his judgment Lord Justice Hirst referring to the cases of Dorset Yacht and Hill (see paragraphs 89–92 above) stated that he could not accept a claim of blanket immunity for the police in this case, but that there were other considerations of public policy in this case, namely, the need to protect springs of information, to protect informers and to encourage them to come forward. On the facts of the case, it was arguable that the police had assumed a responsibility of confidentiality towards the plaintiff. The case should therefore proceed to trial. 94. Lord Justice Ward held that it was arguable that: “There is a special relationship between the plaintiffs and the defendant, which is sufficiently proximate. Proximity is shown by the police assuming responsibility, and the plaintiffs relying upon that assumption of responsibility, for preserving the confidentiality of the information which, if it fell into the wrong hands, was likely to expose the first plaintiff and members of her family to a special risk of damage from the criminal acts of others, greater than the general risk which ordinary members of the public must endure with phlegmatic fortitude. It is fair, just and reasonable that the law should impose a duty, there being no overwhelming dictate of public policy to exclude the prosecution of this claim. On the one hand there is, as more fully set out in Hill v. the Chief Constable ... an important public interest that the police should carry out their difficult duties to the best of their endeavours without being fettered by, or even influenced by, the spectre of litigation looming over every judgment they make, every discretion they exercise, every act they undertake or omit to perform, in their ceaseless battle to investigate and suppress crime. The greater good rightly outweighs any individual hardship. On the other hand it is incontrovertible that the fight against crime is daily dependent upon information fed to the police by members of the public, often at real risk of villainous retribution from the criminals and their associates. The public interest will not accept that good citizens should be expected to entrust information to the police without also expecting that they are entrusting their safety to the police. The public interest would be affronted were it to be the law that members of the public should be expected, in the execution of public service, to undertake the risk of harm to themselves without the police, in return, being expected to take no more than reasonable care to ensure that the confidential information imparted to them is protected...” 95. The police have been held liable in negligence or failure in their duties in other cases. In Kirkham v. the Chief Constable of Manchester ([1989] 2 Queen’s Bench Reports at p. 283), the Court of Appeal upheld a finding of liability in negligence under the Fatal Accidents Act 1976 where the police had taken a man into custody, knew he was a suicide risk but did not communicate that information to the prison authorities. The man, diagnosed as suffering from clinical depression had committed suicide in remand prison. The police, which had assumed responsibility for the man, had owed a duty of care, which they had breached with the result that his death had ensued. 96. In Rigby and another v. Chief Constable of Northamptonshire ([1985] 2 All England Law Reports at p. 986), the High Court found the police liable to pay damages for negligence in that they had fired a gas canister into the plaintiffs’ premises in order to flush out a dangerous psychopath. There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was firefighting equipment available to put the fire out at an early stage. No equipment had been present at the time and the fire had broken out and spread very quickly. Negligence was also found in Knightley v. Johns and others ([1982] 1 All England Law Reports at p. 301) where a police inspector at the site of an accident failed to close a tunnel and ordered officers to go back through the tunnel in the face of traffic, thereby leading to a further accident. 97. In R. v. Dytham ([1979] 1 Queen’s Bench Reports at p. 722), where a police officer stood by while a man died outside a club in a murderous assault, the Court of Appeal upheld the conviction of the officer for wilful neglect to perform a duty.

dev

001-57857

ENG

FRA

CHAMBER

CASE OF NAVARRA v. FRANCE

Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 5-4

N. Valticos

7. Mr Paul Navarra, a farmer, lives in Bastia, Upper Corsica. On 22 November 1985 he was remanded in custody on a charge of armed robbery. During his detention on remand in Nice prison, he filed six applications for release. 8. An investigating judge of the Nice tribunal de grande instance dismissed the first two applications, lodged on 28 November and 30 December 1985, by orders of 2 December 1985 and 3 January 1986. No appeal was filed from the first order; the second was confirmed by the Indictment Division of the Aix-en-Provence Court of Appeal on 29 January 1986. 9. On 24 March 1986 the investigating judge also dismissed the third application, which had been made on 19 March. 10. On 23 April 1986 the Indictment Division found inadmissible the appeal filed by the applicant on 25 March against that decision, which it declared void inasmuch as it had been made in respect of an application which did not comply with procedural requirements, not having been filed in the manner prescribed in the Code of Criminal Procedure. 11. On 28 May 1986 the applicant appealed to the Court of Cassation, which received the file on 19 June. On 13 September 1986 it quashed the contested decision and remitted the case to the Indictment Division of the Montpellier Court of Appeal. 12. The file reached the registry on 1 October 1986. On 9 October the principal public prosecutor at the Montpellier Court of Appeal notified the applicant that the hearing had been set down for 21 October. In a memorial of 17 October 1986 Mr Navarra’s lawyer complained of the failure to comply with the time-limit within which, according to Article 194 of the Code of Criminal Procedure (see paragraph 18 below), the appeal of 25 March 1986 should have been examined. He also maintained that the matter had not been decided "speedily", as required by Article 5 para. 4 (art. 5-4) of the Convention. 13. On 24 October 1986 the Montpellier Indictment Division declared the appeal of 25 March 1986 ill-founded and confirmed the order made on 24 March dismissing the application for release of 19 March. It noted as follows: "... The proceedings followed a normal course and in these circumstances it does not appear that there was a failure to comply with the provisions of Article 194 of the Code of Criminal Procedure, as is claimed by Paul Navarra’s lawyer in his memorial. ..." 14. On 19 November 1986 the applicant appealed to the Court of Cassation, alleging that the Indictment Division had not replied to the submission based on Article 5 para. 4 (art. 5-4) of the Convention. The Court of Cassation dismissed this appeal on 24 February 1987, on the following grounds: "... the Indictment Division, which found, moreover correctly, that the judgment quashed had been given within the time-limit laid down in Article 194 of the Code of Criminal Procedure, replied sufficiently, albeit implicitly, to the submission in the memorial before it complaining of a failure to comply with the time-limit, and was not open to the criticism levelled in the second limb of the submission, which must accordingly be dismissed; ..." 15. On 20 March and 18 May 1987 the applicant lodged his fourth and fifth applications for release. The investigating judge of the Nice tribunal de grande instance dismissed them by orders of 25 March and 22 May, which were upheld by the Indictment Division of the Aix-en-Provence Court of Appeal on 21 April and 17 June 1987. On the other hand, on 27 November 1987 the investigating judge allowed the sixth and last application, which had been lodged two days earlier. 16. On 17 December 1987 the investigating judge made an order finding that Mr Navarra had no case to answer. 17. On 17 March 1988, pursuant to Article 149 of the Code of Criminal Procedure, the applicant sought 400,000 French francs in compensation for the detention on remand that he had undergone from 22 November 1985 to 27 November 1987. On 26 May 1989 the Compensation Board of the Court of Cassation declared the claim admissible but ill-founded. 18. As applicable at the material time, the relevant provisions of the Code of Criminal Procedure are as follows: "Whatever the classification of the offence, the accused or his lawyer may lodge at any time with the investigating judge an application for release ... The investigating judge shall immediately communicate the file to the public prosecutor for his submissions. He shall at the same time, by whatever means, inform any party seeking damages, who may submit observations ... The investigating judge shall rule, by an order giving specific grounds ..., not later than five days after the communication of the file to the public prosecutor. ... When an order is made releasing the accused it may be accompanied by an order placing him under court supervision. ..." The Law of 6 July 1989 added to the third paragraph a sentence, which is worded as follows: "However, where a decision has not yet been made on a previous application for release or on the appeal from a previous order refusing release, the five-day prescribed period begins to run with effect from the decision given by the investigating authority." "Any court called upon to rule ... on an application for release shall give its decision after hearing the prosecution and the accused or his counsel. Where the accused is not in custody, he and his counsel shall be summoned by registered letter at least forty-eight hours before the date of the hearing. The court hearing the application shall give its decision within ten days of receipt of the application at first instance or within twenty days of the appeal at second instance; ... where no decision is forthcoming on expiry of the above time-limits, the detention on remand shall be terminated and the accused, if not detained in connection with other matters, shall automatically be released. The [first instance] court’s decision shall be immediately enforceable notwithstanding any appeal; where the accused remains in detention, the Court of Appeal shall give its decision within twenty days of the appeal, failing which, if he is not detained in connection with other matters, the accused shall automatically be released." "... a person who has been held in detention on remand during proceedings which have been terminated in so far as he is concerned by a finding that he has no case to answer (non-lieu) that has become final or by an acquittal that has become final shall be entitled to compensation where such detention has caused him damage of a clearly exceptional and particularly serious nature." "The principal public prosecutor [at the Court of Appeal] shall prepare the case file for hearing within forty-eight hours of receiving the documents for questions relating to detention on remand, and within ten days in all other cases, and shall forward it, together with his submissions, to the Indictment Division. The Indictment Division shall, when dealing with questions relating to detention on remand, give its decision as speedily as possible and not later than thirty days after the appeal provided for in Article 186, failing which the accused shall automatically be released, except where verifications concerning his application have been ordered or where unforeseeable and insurmountable circumstances prevent the matter being decided within the time-limit laid down in the present Article." A Law of 30 December 1987, which came into force on 1 October 1988, reduced the time-limit from thirty to fifteen days. "The criminal division hearing an appeal on points of law against the decision of the Indictment Division concerning detention on remand shall rule within three months of the file’s receipt at the Court of Cassation, failing which the accused shall automatically be released. ..."

dev

001-101019

ENG

POL

COMMITTEE

CASE OF FLORCZYK AND OTHERS v. POLAND

Violation of Art. 6-1

Lech Garlicki;Nebojša Vučinić

6. The applicants, Mr Zygmunt Florczyk, Ms Grażyna Florczyk, Mr Wojciech Florczyk and Ms Maria Florczyk, are Polish nationals who were born in 1951, 1949, 1950 and 1974 respectively and live in Łódź and Cracow, Poland. 7. On 18 January 2002 the applicants requested the Cracow Municipal Office to pay compensation for part of their predecessor's plots of land which had been expropriated as a part of the land development plans, namely for the construction of a road. 8. On 9 August 2002 the Cracow Municipal Office requested the Małopolski Governor to issue a formal confirmation that the expropriation had taken place. 9. On 25 September 2002 the applicants submitted a copy of the Cracow District Court's decision declaring them successors as to 1/6 of the property of their predecessor in title. 10. On 12 May 2003 the Małopolski Governor informed the applicants that there had been a delay in the proceedings and that they would not end until 30 August 2003. The Governor also summoned them to submit certain documents. 11. On 12 May 2003 the applicants lodged a complaint with the President of the Office for Housing and Town Development about inactivity on the part of the Małopolski Governor. On 30 June 2003 the President of the Office for Housing and Town Development dismissed their complaint finding that the delay in the proceedings was caused by difficulties in finding other successors. 12. On 3 October 2003 the Cracow Municipal Office informed the applicants that the proceedings would lie dormant until the delivery of a decision by the Małopolski Governor. 13. On 17 November 2003 the applicants requested the Cracow Municipal Office to take action with a view of establishing the whereabouts of other parties to the proceedings. 14. On 27 November 2003 the Cracow Municipal Office informed the applicants that they had established a address of a certain W.P. 15. On 23 January 2004 the Governor informed the applicants about further delays in the proceedings and that they would not end until 23 March 2004. 16. On 23 March 2004 the Governor again informed the applicants about further delays in the proceedings. 17. On 21 May 2004 the Cracow Municipal Office informed the Governor of the addresses of two successors in title, W.P. and E.S-S. 18. In October 2004 the Governor requested the Cracow District Court to appoint a guardian for persons whose whereabouts remained unknown. 19. On 13 January 2005 the Cracow District Court stayed the proceedings since the Governor's representative had failed to comply with the court's order to submit certain information concerning the case. The proceedings were resumed on a later unknown date. 20. On 21 March 2005 the applicants lodged a complaint with the Cracow Regional Administrative Court about inactivity on the part of the Małopolski Governor. On 29 March 2006 the Cracow Regional Administrative Court allowed the applicants' complaint, held that the proceedings had not been conducted with necessary diligence and obliged the Governor to issue a decision on the merits. 21. On 11 July 2006 the Małopolski Governor informed the applicants about further delays in the proceedings. 22. On 25 October 2006 the Małopolski Governor appointed an expert to prepare an estimate of the value of plots. 23. On 12 December 2006 the Małopolski Governor gave a decision confirming that on 1 January 1999 the Cracow Municipality had acquired ownership of the property concerned which had been expropriated for the purposes of implementing the land development plans. 24. On 2 and 3 July 2007 the Cracow Mayor gave two decisions granting compensation to the applicants.

dev

001-77266

ENG

RUS

CHAMBER

CASE OF ZAKHAROV v. RUSSIA

Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

Christos Rozakis

7. The applicant was born in 1947 and lives in the Moscow Region. 8. On 17 July 2002 the applicant privately sent a complaint to the deputy Governor of the Moscow Region. He reported on usurpation of a plot of communal land, adjacent to a public street in Iksha, by the private person Ms V. The applicant alleged that Ms A., the head of the Iksha town council, not only had failed to stand up for the rights of other Iksha residents but actively contributed to making the usurpation possible. In particular, Ms A. had allegedly brought about premature retirement of a land surveyor who had objected to the usurpation; she had interfered with the activities of court bailiffs who had come to reclaim the usurped land; she had assisted V. in obtaining title to the land by adverse possession; and she had ostensibly made an exemption for V. from regulations prohibiting planting of vegetables in the protected areas. The letter concluded as follows: “Such outrageous conduct of the appointed (not elected!) head of the town council vis-à-vis the town residents, – in full view of everyone – discredits the power that appointed A. and sets an example of breaking the law with impunity provided that you can 'make a deal' with the council head. I ask you to state your opinion on A.'s anti-social behaviour and assist [us] in returning the land plot into communal use, notwithstanding her opposition...” 9. On 27 September 2002 Ms A. lodged a civil action against the applicant for refutation of information damaging to her honour and dignity and compensation for non-pecuniary damage. She maintained that the applicant's letter had contained untrue facts and insulting value-judgments, which could have damaged her reputation in the eyes of her hierarchical superiors, thereby causing her non-pecuniary damage. 10. On 27 January 2003 the Dmitrov Town Court of the Moscow Region granted Ms A.'s defamation action, finding that the applicant had failed to prove the truthfulness of his allegations contained in the letter of 17 July 2002. Assessing the allegedly insulting value-judgments in the concluding paragraphs of the letter, the court held as follows: “In addition to failing to substantiate the said allegations with any proof, [the applicant] used expressions which, in their form and contents, are not appropriate in respect of an official, which the plaintiff is... Also, the court considers that the judgments used by the [applicant] in his letter – such as 'A. knows that by law protected areas may not be occupied, but ostensibly makes an exemption for V.', 'such outrageous conduct... discredits the power that appointed A. and sets an example of breaking the law with impunity provided that you can 'make a deal' with the council head', 'A.'s anti-social behaviour' – are not only untrue because the [applicant] failed to prove that these facts had occurred, but also insulting for the Town Council Head; this information, phrased as insults, damages dignity and honour of the plaintiff, and it was sent to a deputy Governor of the Moscow Region, which might have led to belittlement of the plaintiff's authority in the eyes of regional managers...” 11. The court bound the applicant to make a rectification by way of a letter to the deputy Governor of the Moscow Region and to pay 300 Russian roubles (EUR 10) to Ms A. for non-pecuniary damage. 12. The applicant lodged a statement of appeal, maintaining that his letter had stated his subjective view on the existing problem. 13. On 4 March 2003 the Moscow Regional Court partly upheld, on the applicant's appeal, the judgment of 27 January 2003. It did not analyse the truthfulness of the factual allegations and grounded its judgment on the three expressions quoted above in the last paragraph of the judgment of 27 January 2003. The appeal court struck down the obligation to send a rectification, but upheld the award in respect of non-pecuniary damage. 14. Article 29 guarantees freedom of ideas and expression. 15. Article 33 provides that Russian citizens shall have the right to petition in person, as well as to submit individual and collective appeals to, State authorities and local self-government bodies. 16. Article 152 provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. 17. Resolution no. 11 of the Plenary Supreme Court of 18 August 1992 “on certain issues that have arisen in the course of judicial examination of claims for the protection of honour and dignity of individuals, and professional reputation of individuals and legal entities” (as amended on 25 April 1995, in force at the material time) established that the notion “dissemination of information” employed in Article 152 of the Civil Code was understood as the publication of statements or their broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one another person. It specified, however, that “communication of such information to the person whom it concerned could not be treated as dissemination”.

dev

001-91278

ENG

NLD

ADMISSIBILITY

COOPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE KOKKELVISSERIJ U.A. v. THE NETHERLANDS

Inadmissible

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant, Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A., is an association based in Kapelle, the Netherlands. The applicant association was represented before the Court by Mr G. van der Wal, a lawyer practising in Brussels (Belgium) and The Hague (the Netherlands). The applicant association is comprised of individuals and enterprises engaged in mechanical cockle fishing in waters including, prior to the events complained of, the Wadden Sea. The Wadden Sea is a tidal wetlands area linked directly to the North Sea. The western part belongs to the internal waters of the Netherlands. It provides feeding and breeding grounds for a variety of wildlife including a number of species of molluscs and seabirds. With the exception of passages left open for shipping and military training grounds, it is subject to an environmental protection regime under domestic law. In the part of the Wadden Sea under the sovereignty of the Netherlands, the regime was defined at the relevant time by decrees issued under the 1967 Nature Conservation Act (Natuurbeschermingswet). Section 16 of that Act made activities, including the catching and killing of animals in protected areas, subject to the granting of a licence by the Minister of Agriculture, Nature Conservation and Fisheries (Minister van Landbouw, Natuurbeheer en Visserij). The cockle (cerastoderma edule or cardium edule) is an edible bivalve mollusc found in tidal flats and on the seabed in shallow coastal waters. Its natural predators in the Wadden Sea include several bird species, particularly eider ducks (somateria mollissima) and oystercatchers (haematopus ostralegus). Cockles are fished commercially, using both manual and mechanical methods: the mechanical techniques used are dredging and suction. On 1 July 1999 the Deputy Minister (Staatssecretaris) of Agriculture, Nature Conservation and Fisheries (“the Deputy Minister”) granted a licence to the applicant association entitling its members collectively to a total catch of up to 10,000 tonnes of cockle meat from the Wadden Sea over a period of approximately three and a half months in the following autumn. On 11 August 1999 the Wadden Sea Society (Landelijke Vereniging tot Behoud van de Waddenzee, also known as Waddenvereniging), a nongovernmental organisation whose stated aim was to protect the Wadden Sea environment, lodged an objection (bezwaar) on its own behalf and on behalf of another non-governmental organisation, the Netherlands Society for the Protection of Birds (Nederlandse Vereniging tot Bescherming van Vogels, also called Vogelbescherming Nederland). The Society stated, in so far as relevant to the case before the Court, that mechanical cockle fishing caused long-term and possibly irreversible damage to ecologically vulnerable areas and that the quota set was too high in relation to the feeding needs of seabirds, including oystercatchers. On 23 December 1999 the Deputy Minister gave a decision dismissing the objection as unfounded, on the grounds that much of the Wadden Sea was closed to mechanical cockle fishing; at all events, in the absence of empirical evidence, it was not established that the effects of such fishing were irreversible. The estimated quantities of cockles in 1999 were such that there was no need to reserve them all for seabirds that year, particularly since the birds could also feed on protected mussel banks. The Wadden Sea Society appealed against that decision to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State). On 7 July 2000 the Deputy Minister granted a licence to the applicant association entitling its members collectively to a total catch of up to 9,775 tonnes of cockle meat from the Wadden Sea over a period of approximately three and a half months in the autumn of that year. On 30 July 2000 the Wadden Sea Society lodged an objection, again acting on its own behalf and on behalf of the Netherlands Society for the Protection of Birds. It mainly restated the grounds of its objection of 11 August 1999. A serious reduction in the numbers of eider ducks and oystercatchers had been noted in recent years, presumably as a result of the partial destruction of their feeding grounds. In addition, the Deputy Minister’s decision was incompatible with Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive” – see below), which required a stricter assessment of the likely environmental effects than the applicable domestic legislation. On 19 February 2001 the Deputy Minister dismissed the objection as unfounded. He dismissed the argument that the environmental impact assessment was incompatible with the Habitats Directive, since in his view the assessment under the applicable domestic legislation was equivalent in scope and was based on the latest available scientific information. No grounds for serious concern as to possible irreversible environmental damage had been made out, nor had the reality of the supposed threat to the feeding grounds of eider ducks and oystercatchers been established. The Wadden Sea Society lodged an appeal against that decision also. The Administrative Jurisdiction Division joined the cases and held a hearing on 20 November 2001. The applicant association appeared as an interested party. On 27 March 2002 the Administrative Jurisdiction Division gave its decision. It rejected the arguments of the appellant non-governmental organisations in so far as they called into question the Deputy Minister’s assessment of the likelihood of harm to the Wadden Sea environment and wildlife. It accepted, however, that questions arose with regard to the interpretation and application of the Nature Conservation Act in the light of the binding substantive standards of European Community law, in particular the Habitats Directive. It was therefore necessary to seek a preliminary ruling of the Court of Justice of the European Communities (“the ECJ”) under Article 234 of the Treaty establishing the European Community (“the EC Treaty” – see below). The questions submitted to the ECJ were the following: “1.(a) Are the words ‘plan or project’ in Article 6 § 3 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora to be interpreted as also covering an activity which has already been carried on for many years but for which an authorisation is in principle granted each year for a limited period, with a fresh assessment being carried out on each occasion as to whether, and if so in which sections of the area, the activity may be carried on? (b) If the answer to Question 1.(a) is in the negative, must the relevant activity be regarded as a ‘plan or project’ if the intensity of this activity has increased over the years or an increase in it is made possible by the authorisations? 2.(a) If it follows from the answer to Question 1 that there is a ‘plan or project’ within the meaning of Article 6 § 3 of the Habitats Directive, is Article 6 § 3 of the Habitats Directive to be regarded as a special application of the rules in Article 6 § 2 or as a provision with a separate, independent purpose in the sense that, for example: (i) Article 6 § 2 relates to existing use and Article 6 § 3 to new plans or projects; or (ii) Article 6 § 2 relates to management measures and Article 6 § 3 to other decisions; or (iii) Article 6 § 3 relates to plans or projects and Article 6 § 2 to other activities? (b) If Article 6 § 3 of the Habitats Directive is to be regarded as a special application of the rules in Article 6 § 2, can the two sub-paragraphs be applicable cumulatively? 3.(a) Is Article 6 § 3 of the Habitats Directive to be interpreted as meaning that there is a ‘plan or project’ once a particular activity is likely to have an effect on the site concerned (and an ‘appropriate assessment’ must then be carried out to ascertain whether or not the effect is ‘significant’) or does this provision mean that an ‘appropriate assessment’ has to be carried out only where there is a (sufficient) likelihood that a ‘plan or project’ will have a significant effect? (b) On the basis of which criteria must it be determined whether or not a plan or project within the meaning of Article 6 § 3 of the Habitats Directive not directly connected with or necessary to the management of the site is likely to have a significant effect thereon, either individually or in combination with other plans or projects? 4.(a) When Article 6 § 3 of the Habitats Directive is applied, on the basis of which criteria must it be determined whether or not there are ‘appropriate steps’ within the meaning of Article 6 § 2 or an ‘appropriate assessment’, within the meaning of Article 6 § 3, in connection with the certainty required before agreeing to a plan or project? (b) Do the terms ‘appropriate steps’ or ‘appropriate assessment’ have independent meaning or, in assessing these terms, is account also to be taken of Article 174 § 2 EC [the EC Treaty] and in particular the precautionary principle referred to therein? (c) If account must be taken of the precautionary principle referred to in Article 174 § 2 EC, does that mean that a particular activity, such as the cockle fishing in question, can be authorised where there is no obvious doubt as to the absence of a possible significant effect or is that permissible only where there is no doubt as to the absence of such an effect or where the absence can be ascertained? 5. Do Article 6 § 2 or Article 6 § 3 of the Habitats Directive have direct effect in the sense that individuals may rely on them in national courts and those courts must provide the protection afforded to individuals by the direct effect of Community law, as was held, inter alia, in Case C-312/93 Peterbroeck [1995] ECR I-4599?” The Wadden Sea Society, the Netherlands Society for the Protection of Birds, the applicant association, the respondent Government and the European Commission all submitted observations to the ECJ. Following proceedings in writing, the ECJ held an oral hearing on 18 November 2003. On 29 January 2004 the Advocate General’s advisory opinion was read out in public. Its conclusions were as follows: “153. I propose that the Court [i.e. the ECJ] answer the questions referred for a preliminary ruling by the Raad van State as follows: (1) The words ‘plan and project’ in Article 6 § 3 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora also cover an activity which has already been carried on for many years but for which an authorisation is in principle granted each year for a limited period. (2) Article 6 § 3 of Directive 92/43 lays down the procedure for authorising plans and projects which do not affect the integrity of protection sites, whereas Article 6 § 2 thereof lays down permanent obligations irrespective of the authorisation of plans and projects, namely to avoid deterioration and disturbance which could be significant in relation to the objectives of the directive. (3) An appropriate assessment is always necessary where reasonable doubt exists as to the absence of significant adverse effects. Any effect on the conservation objectives has a significant effect on the site concerned. (4) An appropriate assessment must: – precede agreement to a plan or project; – take account of cumulative effects; and – document all adverse effects on conservation objectives. The competent authorities may agree to a plan or project only where, having considered all the relevant information, in particular the appropriate assessment, they are certain that the integrity of the site concerned will not be adversely affected. This presupposes that the competent authorities are satisfied that there is no reasonable doubt as to the absence of such adverse effects. Where Article 6 § 2 of Directive 92/43 applies to the authorisation of a scheme such authorisation must, in substantive terms, provide the same standard of protection as authorisation granted pursuant to Article 6 § 3 of the Habitats Directive. (5) Individuals may rely on Article 6 § 3 of Directive 92/43 in so far as avenues of legal redress against measures infringing the above-mentioned provisions are available to them under national law. They may, under the same conditions, rely on Article 6 § 2 of Directive 92/43 in so far as error of assessment is claimed. An indirect burden on citizens which does not encroach on legal positions protected by Community law does not preclude the recognised (vertical) binding of State authorities to directly applicable directives.” This concluded the oral procedure. In a letter of 11 February 2004 the applicant association sought permission to submit a written response to the Advocate General’s opinion; it sought, in the alternative, an order for the reopening of the oral procedure, and in the further alternative, some other opportunity to revisit the opinion. On 28 April 2004 the ECJ gave an order containing the following reasoning: “5. To begin with, PO Kokkelvisserij [the applicant association] contends that the positions taken in that opinion are incorrect as to both the facts and the law. In support of its primary and further alternative requests PO Kokkelvisserij invokes the right to adversarial proceedings under the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (hereafter ‘the Convention’), as construed by the European Court of Human Rights. The alternative request is based on Article 61 of the Rules of Procedure. PO Kokkelvisserij states that it would run counter to the proper conduct of the proceedings to set out the merits of its objections against the Advocate General’s opinion in its letter of 11 February 2004. 6. It should be pointed out that the Statute of the Court of Justice and the Court’s Rules of Procedure make no provision for parties to submit observations in reply to the opinion of the Advocate General (see the decision of 4 February 2000 in Case C17/98 Emesa Sugar [2000] ECR (European Court Reports) I-665, point 2). This circumstance, however, does not violate a party’s right to adversarial proceedings flowing from Article 6 § 1 of the Convention as construed by the European Court of Human Rights (see the above-mentioned Emesa Sugar decision, points 3-16). 7. PO Kokkelvisserij’s request to submit written observations in reply to the opinion of the Advocate General, or to be granted the opportunity otherwise to revisit the opinion, must therefore be rejected. 8. In view of the purpose of adversarial proceedings, which is to prevent the Court from being influenced by arguments to which parties have not been able to respond, the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, as applicable, reopen the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see the above-mentioned Emesa Sugar decision, point 18). 9. In the instant case PO Kokkelvisserij’s request contains no precise information indicating that it would be either useful or necessary to reopen the procedure. 10. PO Kokkelvisserij’s request for the reopening of the oral procedure must therefore be dismissed.” On 7 September 2004 the ECJ delivered its judgment. The preliminary ruling which it contained was worded as follows: “1. Mechanical cockle fishing which has been carried on for many years but for which a licence is granted annually for a limited period, with each licence entailing a new assessment both of the possibility of carrying on that activity and of the site where it may be carried on, falls within the concept of ‘plan’ or ‘project’ within the meaning of Article 6 § 3 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. 2. Article 6 § 3 of Directive 92/43 establishes a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site, while Article 6 § 2 of that directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive’s objectives, and cannot be applicable concomitantly with Article 6 § 3. 3.(a) The first sentence of Article 6 § 3 of Directive 92/43 must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects. (b) Pursuant to the first sentence of Article 6 § 3 of Directive 92/43, where a plan or project not directly connected with or necessary to the management of a site is likely to undermine the site’s conservation objectives, it must be considered likely to have a significant effect on that site. The assessment of that risk must be made in the light, inter alia, of the characteristics and specific environmental conditions of the site concerned by such a plan or project. 4. Under Article 6 § 3 of Directive 92/43, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site’s conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects. 5. Where a national court is called on to ascertain the lawfulness of an authorisation for a plan or project within the meaning of Article 6 § 3 of Directive 92/43, it can determine whether the limits on the discretion of the competent national authorities set by that provision have been complied with, even though it has not been transposed into the legal order of the member State concerned despite the expiry of the time-limit laid down for that purpose.” The Administrative Jurisdiction Division of the Council of State allowed the participants in the proceedings before it to respond in writing to the judgment of the ECJ. It held a further hearing on 11 November 2004 at which the Wadden Sea Society, the Netherlands Society for the Protection of Birds, the Deputy Minister and the applicant association were represented. The applicant association argued that the ECJ had acted ultra vires by finding, as a matter of fact, that mechanical cockle fishing in the Wadden Sea was to be considered a “plan” or a “project” within the meaning of Article 6 § 3 of the Habitats Directive; moreover, that finding had been based on an incorrect assessment of the facts. The applicant association further argued that the judgment of the ECJ should be disapplied, having been delivered following proceedings that violated Article 6 § 1 of the Convention. On 22 December 2004 the Administrative Jurisdiction Division delivered its judgment. It rejected the argument that the ECJ had acted ultra vires and found that the applicant association had not established that the ECJ had based its judgment on facts other than those set out in the Administrative Jurisdiction Division’s own judgment of 27 March 2002. Finding it established, in the absence of scientific evidence to the contrary, that the impact of mechanical cockle fishing on natural habitats appeared likely to be “significant”, it revoked the cockle-fishing licences issued to the applicant association on the ground that they contravened Article 6 § 3 of the Habitats Directive. As far as the Court is aware, mechanical cockle fishing in the Netherlands waters of the Wadden Sea has ceased entirely since then. The provisions of the EC Treaty relevant to the present case provide as follows: “The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed. In addition, judicial panels may be attached to the Court of First Instance under the conditions laid down in Article 225a in order to exercise, in certain specific areas, the judicial competence laid down in this Treaty.” “The Court of Justice shall consist of one judge per member State. The Court of Justice shall sit in chambers or in a Grand Chamber, in accordance with the rules laid down for that purpose in the Statute of the Court of Justice. When provided for in the Statute, the Court of Justice may also sit as a full Court.” “The Court of Justice shall be assisted by eight Advocates General. Should the Court of Justice so request, the Council, acting unanimously, may increase the number of Advocates General. It shall be the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require his involvement.” “The Judges and Advocates General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence; they shall be appointed by common accord of the governments of the member States for a term of six years. Every three years there shall be a partial replacement of the Judges and Advocates General, in accordance with the conditions laid down in the Statute of the Court of Justice. The Judges shall elect the President of the Court of Justice from among their number for a term of three years. He may be re-elected. Retiring Judges and Advocates General may be reappointed. ...” “The Court of Justice shall have jurisdiction to give preliminary rulings concerning (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB [European Central Bank]; ... Where such a question is raised before any court or tribunal of a member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.” “The Community shall have legal personality.” The Statute of the ECJ is in the form of a Protocol to the EC Treaty. In so far as relevant to the case before the Court, it provides as follows: “Before taking up his duties each Judge shall, in open court, take an oath to perform his duties impartially and conscientiously and to preserve the secrecy of the deliberations of the Court.” “The Judges shall be immune from legal proceedings. After they have ceased to hold office, they shall continue to enjoy immunity in respect of acts performed by them in their official capacity, including words spoken or written. The Court, sitting as a full Court, may waive the immunity. Where immunity has been waived and criminal proceedings are instituted against a Judge, he shall be tried, in any of the member States, only by the court competent to judge the members of the highest national judiciary. Articles 12 to 15 and Article 18 of the Protocol on the privileges and immunities of the European Communities shall apply to the Judges, Advocates General, Registrar and Assistant Rapporteurs of the Court, without prejudice to the provisions relating to immunity from legal proceedings of Judges which are set out in the preceding paragraphs.” “The Judges may not hold any political or administrative office. They may not engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the Council. When taking up their duties, they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom, in particular the duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. Any doubt on this point shall be settled by decision of the Court.” “Apart from normal replacement, or death, the duties of a Judge shall end when he resigns. Where a Judge resigns, his letter of resignation shall be addressed to the President of the Court for transmission to the President of the Council. Upon this notification a vacancy shall arise on the bench. Save where Article 6 applies, a Judge shall continue to hold office until his successor takes up his duties.” “A Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if, in the unanimous opinion of the Judges and Advocates General of the Court, he no longer fulfils the requisite conditions or meets the obligations arising from his office. The Judge concerned shall not take part in any such deliberations. The Registrar of the Court shall communicate the decision of the Court to the President of the European Parliament and to the President of the Commission and shall notify it to the President of the Council. In the case of a decision depriving a Judge of his office, a vacancy shall arise on the bench upon this latter notification.” “A Judge who is to replace a member of the Court whose term of office has not expired shall be appointed for the remainder of his predecessor’s term.” “The provisions of Articles 2 to 7 shall apply to the Advocates General.” “No Judge or Advocate General may take part in the disposal of any case in which he has previously taken part as agent or adviser or has acted for one of the parties, or in which he has been called upon to pronounce as a member of a court or tribunal, of a commission of inquiry or in any other capacity. If, for some special reason, any Judge or Advocate General considers that he should not take part in the judgment or examination of a particular case, he shall so inform the President. If, for some special reason, the President considers that any Judge or Advocate General should not sit or make submissions in a particular case, he shall notify him accordingly. Any difficulty arising as to the application of this Article shall be settled by decision of the Court. ...” “The procedure before the Court shall consist of two parts: written and oral. The written procedure shall consist of the communication to the parties ... of applications, statements of case, defences and observations, and of replies, if any, as well as of all papers and documents in support or of certified copies of them. ... The oral procedure shall consist of the reading of the report presented by a Judge acting as Rapporteur, the hearing by the Court of agents, advisers and lawyers and of the submissions of the Advocate General, as well as the hearing, if any, of witnesses and experts. Where it considers that the case raises no new point of law, the Court may decide, after hearing the Advocate General, that the case shall be determined without a submission from the Advocate General.” “In the cases governed ... by Article 234 of the EC Treaty ... the decision of the court or tribunal of a member State which suspends its proceedings and refers a case to the Court shall be notified to the Court by the court or tribunal concerned. The decision shall then be notified by the Registrar of the Court to the parties, to the member States and to the Commission, and also to the Council or to the European Central Bank if the act the validity or interpretation of which is in dispute originates from one of them, ... Within two months of this notification, the parties, the member States, the Commission and, where appropriate, ... the Council ... shall be entitled to submit statements of case or written observations to the Court. ...” In so far as relevant to the present case, the provisions of the ECJ’s Rules of Procedure (Official Journal of the European Communities) L 176 of 4 July 1991, p. 7, as amended and corrected) read as follows: “1. The Advocate General shall deliver his opinion orally at the end of the oral procedure. 2. After the Advocate General has delivered his opinion, the President shall declare the oral procedure closed.” “The Court may, after hearing the Advocate General, order the reopening of the oral procedure.” In its order of 4 February 2000 in Case C-17/98 Emesa Sugar [2000] ECR I-665, the ECJ held as follows: “5. In its judgment in Vermeulen v. Belgium, cited above, the European Court of Human Rights found that the procureur général’s department at the Belgian Court of Cassation had as ‘its main duty, at the hearing as at the deliberations, ... to assist the Court of Cassation and to help ensure that its case-law is consistent’ (paragraph 29) ‘with the strictest objectivity’ (paragraph 30); it also considered that ‘great importance must be attached to the part actually played in the proceedings by the member of the procureur général’s department, and more particularly to the content and effects of his submissions. These contain an opinion which derives its authority from that of the procureur général’s department itself [in the French version, ‘ministère public’]. Although it is objective and reasoned in law, the opinion is nevertheless intended to advise and accordingly influence the Court of Cassation’ (paragraph 31). 6. The [European] Court of Human Rights went on to consider that ‘the fact that it was impossible for Mr Vermeulen to reply to them [the submissions] before the end of the hearing infringed his right to adversarial proceedings. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service [in the French version, ‘magistrat indépendant’], with a view to influencing the court’s decision’. Accordingly, the [European] Court of Human Rights found that this fact in itself amounted to a breach of Article 6 § 1 [of the Convention] (paragraph 33) (see also, to the same effect, the judgments of: 20 February 1996 in Lobo Machado v. Portugal, Reports of Judgments and Decisions 1996-I, p. 195, paragraphs 28 to 31; 25 June 1997 in Van Orshoven v. Belgium, Reports of Judgments and Decisions 1997-III, p. 1040, paragraphs 38 to 41; 27 March 1998 in J.J. v. the Netherlands, Reports of Judgments and Decisions 1998II, p. 604, paragraphs 42 and 43; and 27 March 1998 in K.D.B. v. the Netherlands, Reports of Judgments and Decisions 1998-II, p. 621, paragraphs 43 and 44). 7. Emesa takes the view that this case-law applies to the opinion delivered before the Court by the Advocate General and accordingly seeks leave to reply to it. 8. As the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures (see, in particular, opinion 2/94 of 28 March 1996 [1996] ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the member States and from the guidelines supplied by international treaties for the protection of human rights on which the member States have cooperated or of which they are signatories. The Convention has special significance in that respect (see, in particular, Case C-260/89 ERT [1991] ECR I-2925, paragraph 41). 9. Moreover, those principles have been incorporated in Article 6 § 2 of the Treaty on European Union, according to which ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the member States, as general principles of Community law’. According to Article 46(d) of the Treaty on European Union, the Court is to ensure that this provision is applied ‘with regard to action of the institutions, in so far as [it] has jurisdiction under the Treaties establishing the European Communities and under [the] Treaty [on European Union]’. 10. It is also appropriate to recall the status and role of the Advocate General within the judicial system established by the EC Treaty and by the EC Statute of the Court of Justice, as set out in detail in the Court’s Rules of Procedure. 11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both Judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence. 12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain member States. They are not entrusted with the defence of any particular interest in the exercise of their duties. 13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that in the interpretation and application of the Treaty, the law is observed. 14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which ‘derives its authority from that of the procureur général’s department [in the French version, ‘ministère public’]’ (judgment in Vermeulen v. Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a member of the Court of Justice itself. 15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the opinion is published together with the Court’s judgment. 16. Having regard to both the organic and the functional link between the Advocate General and the Court, referred to in paragraphs 10 to 15 of this order, the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the opinion of the Court’s Advocates General. 17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure. 18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, with regard to the reopening of the oral procedure, the order of 22 January 1992 in Case C-163/90 Legros and Others, not published in the ECR, and the judgment of 16 July 1992 in Case C-163/90 Legros and Others [1992] ECR I4625; the order of 9 December 1992 in Case C-2/91 Meng, not published in the ECR, and the judgment of 17 November 1993 in Case C-2/91 Meng [1993] ECR I5751; the order of 13 December 1994 in Case C-312/93 Peterbroeck, not published in the ECR, and the judgment of 14 December 1995 in Case C-312/93 Peterbroeck [1995] ECR I-4599; the order of 23 September 1998 in Case C-262/96 Sürül, not published in the ECR, and the judgment of 4 May 1999 in Case C-262/96 Sürül [1999] ECR I-2685; and the order of 17 September 1998 in Case C-35/98 Verkooijen, not published in the ECR). 19. In the instant case, however, Emesa’s application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.” On 28 June 2007 Advocate General Sharpston delivered an opinion in Case C-212/06 Government of the French Community and Walloon Government v. Flemish Government. It included the following passage (footnote reference omitted, emphasis added): “156. ... I am fully conscious of the fact that, in the present case, only one member State ... has intervened. It would seem desirable for a proper exploration of the elements that I have canvassed above to take place against the background of fuller participation from the member States and (as a corollary) a more developed presentation by the Commission. It might be that, on more detailed examination, the prima facie case that I have outlined above is refuted. 157. The Court would not, I suspect, wish to decide such a fundamental point in the present case (unless, of course, it decides to reopen the oral procedure and invite member States to make their views on this issue known); and I do not see an overriding need for it to do so. ...” Article 6 of the Habitats Directive provides: “1. For special areas of conservation, member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites. 2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive. 3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. 4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.”

dev

001-78838

ENG

UKR

CHAMBER

CASE OF OLEG SEMENOV v. UKRAINE

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

Peer Lorenzen

4. The applicant was born in 1975 and lives in the town of Nova Kakhovka, Kherson Region, Ukraine. He is a former employee of the Stateowned OJSC “Pivdenelektromash” (“the Company,” ВАТ “Південелектромаш”). 5. The background facts for the case are described in the case of Semenov v. Ukraine (no. 25463/03, §§ 5-8, 13 December 2005). 6. On 5 December 2002 the Nova Kakhovka City Court (Новокаховський міський суд Херсонської області) ordered the Company to pay the applicant UAH 4,393 in salary arrears. This judgment became final and the writs of execution were transferred to the Bailiffs' Service. 7. By letters of 26 February 2003 and 15 April 2003, the Bailiffs' Service and the Kherson Regional Department of Justice informed the applicant that the enforcement proceedings had been suspended due to the proceedings of financial rehabilitation of the debtor. 8. On 11 August 2003 the Nova Kakhovka City Court rejected the applicant's complaint about the allegedly unlawful inactivity of the Bailiffs' Service. The court stated that there was no fault attributable to the defendant. 9. On 15 January 2004 the Bailiffs' Service resumed the execution proceedings in the applicant's case. On 23 January and 10 February 2004, it ordered the seizure of the Company's accounts. However, on 27 February 2004 the Kherson Regional Commercial Court, on the trustee's appeal, quashed these decisions because the Bankruptcy Act envisaged the obligatory suspension of enforcement proceedings pending the resolution of a bankruptcy case. 10. The judgment in the applicant's favour remains unenforced. 11. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005).

dev

001-23736

ENG

RUS

ADMISSIBILITY

VORSINA and VOGRALIK v. RUSSIA

Inadmissible

Georg Ress

The applicants, Irina Aleksandrovna Vorsina and Natalya Aleksandrovna Vogralik, are Russian nationals, who were born in 1934 and 1947 and live in Novosibirsk. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are great-granddaughters of Mr Aleksandr Fyodorovich Vorsin, a prominent factory owner, one of the first brewers in the Altay Region. He founded a brewery in Barnaul in 1882. The only surviving portrait of the grandfather was kept in the applicants’ family archives. In 1991 the applicants passed a copy of the portrait to the Altay Museum of local lore for exhibiting. The museum, in its turn, passed it to OAO “Barnaulskiy Pivovarennyy Zavod”, a joint-stock company producing beer. The brewery produced several kinds of beer under the common brand “Vorsinskoye”—a derivative from the grandfather’s name. His portrait, obtained from the museum, was reproduced on beer bottles. The portrait was also extensively used on external advertising boards. One of the boards depicted a beer bottle (with the grandfather’s portrait on it) playing saxophone. On an unspecified date the applicants brought an action against the brewery in the Industrialnyy District Court of Barnaul. They asked to remove the grandfather’s name and portrait from the beer advertisements because it interfered with their right to confidentiality of family life. The applicants claimed that they felt uneasy when strangers asked them about their relation to the person depicted on the beer bottles. They also claimed that they anguished at the sight of bottles—with their name and the portrait of a relative on them—littered about. On 26 June 2000, the Industrialnyy District Court dismissed the action having found as follows: “... The label of the ‘Vorsinskoye’ beer has not yet been registered as a trademark. The [brewery] has filed a [relevant] application... The court considers that pursuant to section 7 § 2 of the Law on Trademarks, Service Marks and Geographic Origin of Goods, great-granddaughters, and [the applicants] in particular, cannot be recognised as heirs. In accordance with the Civil Code, two forms of succession exist: intestate and testamentary. [The applicants] did not claim that a last will and testament had existed. In accordance with Article 532 of the Civil Code, the testator’s grandchildren and great-grandchildren become intestate heirs if by the moment of the commencement of succession no parent, who would have otherwise inherited, is alive. A. F. Vorsin died in 1919, at that time his son N. A. Vorsin (1875-1942) ... was alive. Therefore, A. F. Vorsin’s great-granddaughters cannot be considered as his intestate heirs. In these circumstances, the court considers that section 7 § 2 of the Law on Trademarks cannot be applied to the present case even by analogy. In their statement of action [the applicants] claimed that they had made a copy of the portrait of the great-grandfather and had given it to the Altay Museum of local lore. Pursuant to section 35 of the Law on Museum Stock and Museums, items and collections included in the museum stock of Russia and held in Russian museums shall be open for public access. Pursuant to section 36 § 2 of the same Law, the production of graphic and printed merchandise, souvenirs and other replicated material and consumer goods with the use of images of museum items and collections, museum buildings and objects located on museums’ premises, as well as with the use of museums’ titles and insignia is to be carried out with the consent of the museums’ administration. When applying for registration of the trademark [the brewery] did receive the permission of the museum for the reproduction of Mr Vorsin’s portrait in the label of the ‘Vorsinskoye’ beer. The information about the Vorsin family of merchants, their photographs, were published in local lore publications ... and thus made publicly known. The same can be said about the portrait which was exhibited in the museum. The explanatory dictionary by Ozhegov and Shvedov understands ‘secret’ as (1) something undiscovered, not yet known; (2) something concealed from others, not known to many. The court takes the view that the defendant did not breach [the applicants’] right to the secrecy of their family life. The court draws a similar conclusion in respect of the alleged infringement of the inviolability of [the applicants’] private life. According to the Ozhegov dictionary, ‘inviolable’ means complete, immune from any encroachment. The court considers that the use of Mr Vorsin’s name and portrait in no way encroaches on [the applicants’] private life since this information is known to the general public...” On an unspecified date, the applicants filed an appeal against the judgment. They argued that the lack of registration of the trademark should not have been considered as an obstacle to the application of the Trademark Law. According to the applicants, the Trademark Law provided a regulation of similar situations, and therefore it should have been applied by analogy. The applicants also claimed that the Trademark Law did not specify the notion of “heir” separate from that described in the Civil Code, and that the moment of the commencement of succession had been of little importance since the right infringed—the feeling of kinship—was of a non-pecuniary nature. The applicants maintained also that the fact that they had passed a copy of the portrait to the museum in no way implied their consent to see it on beer bottles. On 30 August 2000, the Altay Regional Court disallowed the appeal on the following grounds: “... Articles 527-561 of the Civil Code permit the conclusion that succession usually extends to the right of property and other property interests which make part of contract, copyright and inventor obligations. At the same time, heirs may also inherit certain non-pecuniary rights ... if the law so stipulates. However, the [trial] court was correct in assuming that [the applicants] could not be considered as heirs. The [appeal court] can neither accept [the applicants’] argument that their family secret, guaranteed and protected by Article 23 of the Constitution, had been disrespected. The [trial] court assessed these arguments and the [appeal court] upholds this view. A.F. Vorsin is a prominent figure, the founder of beer production in the Altay Region, and this well-known fact cannot be regarded as a family secret. [The applicants] and [the brewery] have a dispute in connection with the right of reproduction of the portrait of A.F. Vorsin in [the brewery’s] trademark. The current legislation does not impose such restrictions. The reproduction of the great-grandfather’s portrait in the trademark of OAO “Barnaulskiy Pivovarennyy Zavod”, which was founded by A.F. Vorsin, does not infringe or prejudice [the applicants’] personal non-pecuniary interests. The information about A.F. Vorsin is not only the family’s asset, but is also part of the public domain as information about a famous businessman of the Altay Region... The fact that the great-grandfather’s portrait existed in one single copy in [the applicants’] possession does not mean that their family secret was breached. [The applicants] by their own initiative passed a copy of the portrait to the Museum of local lore, and [the brewery] obtained, in accordance with [section 35 of the Law on Museums], a permission of the museum to use the portrait...”

dev

001-86181

ENG

GBR

ADMISSIBILITY

ALDERSON v. THE UNITED KINGDOM

Inadmissible

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

The applicant, Mr Philip Alderson, is a British national who was born in 1952 and lives in Newport. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 4 February 2002, the applicant received a letter from the West Mercia Constabulary asking him to provide information about who was driving his car on 31 January 2002 when it failed to comply with the speed limit. The letter also stated that the police intended to prosecute the driver and that failing to supply information as to the driver was a criminal offence under section 172 of the Road Traffic Act 1988. The applicant replied that he was responding under duress and that he was the driver. On 18 September 2002, before the Magistrates’ Court, the applicant pleaded not guilty to the speeding offence and the prosecution sought to rely on his admission. The Magistrates rejected the applicant’s arguments that the use of the confession violated the Convention. He was convicted of speeding and fined GBP 125, with GBP 263 costs and three penalty points endorsed on his licence. The relevant domestic law and practice is set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007...

dev

001-99990

ENG

NLD

ADMISSIBILITY

VAN ANRAAT v. THE NETHERLANDS

Inadmissible

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

1. The applicant, Mr Frans Cornelis Adrianus van Anraat, is a Dutch national who was born in 1942. He is currently serving a sentence of imprisonment (gevangenisstraf) in Zoetermeer Prison, the Netherlands. He was represented before the Court by Mr G. Spong, a lawyer practising in Amsterdam. 2 3. The applicant was a businessman. Between April 1984 and August 1988 he purchased quantities in excess of eleven hundred metric tons of the chemical thiodiglycol in the United States and Japan, and, acting through companies based in a variety of countries, he supplied it to the Government of Iraq. After 1984 he was the Iraqi Government's sole supplier of this substance. 4. Thiodiglycol is a precursor in a chemical reaction at the final stage of formation of 1,5-dichloro-3-thiopentane. One of a group of compounds known as sulphur mustards and better known as mustard gas, 1,5-dichloro-3-thiopentane has severe vesicant properties. In contact with the skin, it causes severe and potentially lethal chemical burns; in contact with the eyes, it causes inflammation possibly resulting in blindness; if inhaled, it blisters mucous membrane and lung tissue and can cause pulmonary oedema. Its known long-term effects on survivors include an increased risk of cancer in later life. Mustard gas, so called because of its smell, was first used as a battlefield weapon during the First World War, at the Third Battle of Ypres (July-November 1917). 5. Mustard gas is known to have been used by the Iraqi military, along with other chemical weapons, against Iranian armed forces and civilians during the Iran-Iraq War (1980-1988) and in attacks against the Kurdish population of northern Iraq (1988). One such attack, carried out on the town of Halabja in March 1988, killed thousands of non-combatant civilians and injured thousands more. Among those later considered primarily responsible were Saddam Hussein Abd al-Majid al-Tikriti (known as Saddam Hussein), President of Iraq from 1979 until 2003, and Ali Hassan Abd al-Majid al-Tikriti, Secretary General of the Ba'ath Party in northern Iraq between 1987 and 1989, nicknamed “Chemical Ali”. 6. Saddam Hussein was charged before the Special Iraqi Tribunal (later re-named Supreme Iraqi Criminal Tribunal) with the use of poison gas against Kurdish civilians in Halabja. However, he never stood trial on this charge; he was hanged on 30 December 2006 for another crime. 7. Ali Hassan Abd al-Majid al-Tikriti was tried by the Special Iraqi Tribunal/Supreme Iraqi Criminal Tribunal on a plurality of charges; these included the 1988 Halabja gas attack, in respect of which he was found guilty. He was hanged on 25 January 2010. 8. Charges were brought against the applicant in the Netherlands which may be summarised as follows: (1) aiding and abetting genocide committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti against the Kurdish population of northern Iraq in a number of places including Halabja; in the alternative, aiding and abetting violations of the laws and customs of war committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti, as regards gas attacks on the Kurdish population of northern Iraq in Halabja and elsewhere; and (2) aiding and abetting violations of the laws and customs of war committed by named individuals including Saddam Hussein and Ali Hassan al-Majid al-Tikriti, as regards gas attacks on the territory of Iran. 9. The acts constitutive of these crimes were stated to be the supply of various named chemicals, including thiodiglycol, to the Republic of Iraq as well as materials and advice for the manufacture of chemical weapons in violation of international law. The charges referred to several provisions of domestic legislation, including, as relevant to the case before the Court, section 8 of the War Crimes Act (Wet Oorlogsstrafrecht), taken together with Article 48 of the Criminal Code (Wetboek van Strafrecht). 10. The trial opened before the Regional Court (rechtbank) of The Hague on 18 March 2005. On 23 December 2005 the Regional Court delivered its judgment. It acquitted the applicant of the first primary charge, aiding and abetting genocide, finding that genocidal intent on his part could not be proved; but it convicted him on the first alternative charge and the second charge. It sentenced him to fifteen years in prison and ordered him to pay sums of money in compensation to a number of named individuals who had joined the proceedings as civil parties. 11. Both the prosecution and the applicant appealed against the Regional Court's judgment to the Court of Appeal (gerechtshof). 12. In its judgment of 9 May 2007, the Court of Appeal of The Hague acquitted the applicant of aiding and abetting genocide as the Regional Court had done. It convicted him, however, of aiding and abetting violations of the laws and customs of war committed by Saddam Hussein, Ali Hassan al-Majid al-Tikriti and another person or other persons in a non-international or international conflict as the case might be, as regards gas attacks on the Kurdish population of northern Iraq in Halabja and elsewhere (the first alternative charge), and of aiding and abetting violations of the laws and customs of war committed by Saddam Hussein, Ali Hassan al-Majid al-Tikriti and another person or other persons in an international conflict, as regards gas attacks on the territory of Iran. 13. The Court of Appeal's judgment concluded as follows (translation published by the Court of Appeal itself): “12.5 Conclusion Based on the above, the following conclusions can be made: a) The defendant played an important part by supplying the precursor Thiodiglycol [or TDG] to the Iraqi regime for the production of mustard gas: at least 38% of this substance had been supplied by him in the years 1980 up to and including 1988. If any TDG would also have been supplied from the United Kingdom to Iraq in those same years, this fact does not impair the qualification of 'important' regarding defendant's part in this matter. b) When the supplies by others eventually stopped no later than in the course of 1984, the defendant supplied at least another 1,116 tons of this precursor until the spring of 1988. c) The first shipment of TDG supplied by the defendant arrived in Iraq towards the summer of 1985; in that year he supplied a total of approximately 197 tons. Based on the considerations written under item 12.3 above, the Court deems it very likely that in the course of that year TDG supplied by the defendant was also used for the production and finally ended up in ammunition that was used for the attacks as mentioned in the charges. Conclusive evidence for his co-responsibility regarding the attacks mentioned in the charges (in so far as mustard gas was deployed in those attacks) is the following: d) As of 1985, the supplementation of the essential precursor TDG to the Iraqi regime depended completely on the supplies made by the defendant. e) For that reason, the unwholesome policy that was continuously carried out by the regime that from 1984 onwards seemed to find it necessary to deploy hundreds of tons of this poison gas during combat, depended to a decisive extent if not totally on those supplies. Taking into consideration the crucial significance that the shipments of TDG supplied by the defendant since 1985 had for the chemical weapon program of the regime, the Court finds the defendant (together with his co-perpetrators) guilty of being an accessory to providing the opportunity and the means for the proven attacks with mustard gas in the years 1987 and 1988. 13. Liability to punishment on account of the proven charges The proven charges constitute a punishable offence: Regarding the proven charges under count 1. alternatively: The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war, while that offence resulted in the death or grievous bodily harm of another person or that offence was an expression of a policy of systematic terror or wrongful actions against the whole population or a specific group thereof, committed several times. Regarding the proven charges under count 2: The defendant is found guilty of the offence of complicity in being an accessory to a violation of the laws and customs of war, while that offence resulted in the death or grievous bodily harm of another person, committed several times. 14. Liability to punishment of the defendant No circumstance has become plausible that would rule out the punishability of the defendant. Therefore the defendant is liable to punishment. 15. Considerations regarding the applicable legislation The [War Crimes Act] which was applicable at the time of the period referred to in the charges, was amended several times afterwards; following the entry into force of the International Crimes Act (...) on 1 October 2003, the war crimes were devolved from the [War Crimes Act] to the [International Crimes Act]. Only the amendments to the law dated 27 March 1986 (...) and dated 14 June 1990 (...) are important when determining whether the later legal provisions are more favourable for the defendant than the law that was applicable during the period referred to in the charges. Pursuant to Act of Parliament dated 27 March 1986, a new [section] 10a was inserted into the [War Crimes Act], which makes it possible to impose an additional sentence provided by article 28, first paragraph, under 3o, of the Penal Code (deprive a person of his/her active and passive right to vote) on account of – inter alia – a conviction for being found guilty of war crimes, while by Act of Parliament dated 14 June 1990, the death penalty as possible punishment was removed from the [War Crimes Act]. The [War Crimes Act] as it reads as of 1 January 1991, after the amendment by Act of Parliament of 14 June 1990, is more favourable to the defendant in terms of an eventual penalty. From the devolvement of the penal provisions that refer to war crimes from the [War Crimes Act] to the International Crimes Act, as from 1 October 2003, it cannot be said that they result in more favourable provisions for the defendant. Based on the provisions in article 1, paragraph 2, of the Penal Code, the [War Crimes Act] will have to be the starting point as it read on 1 January 1991. Furthermore with regards to complicity, the Court has taken into consideration article 49, paragraph 2, of the Penal Code, as it read until 1 February 2006 (the date of entry into force of the Act regarding reassessment of maximum penalties). Pursuant to article 10 (old), 49, paragraph 2 (old), 57 and 78 of the Penal Code and [section] 8 of the [War Crimes Act], as it read on 1 January 1991, viewed together and in relation to each other, the Court cannot draw any other conclusion than that in this case the defendant is liable to a maximum term of twenty years imprisonment. 16. Grounds for the punishment During the appeal trial, the advocate general moved that the sentence of the court of first instance be set aside and on account of the principal charge under counts 1. and 2. he demanded that the defendant be sentenced to a term of imprisonment of 15 years, less the period spent in pre-trial detention. In making its assessment as to what penalty should be imposed, the Court has taken into account the following considerations. During a number of years the defendant supplied raw material to the Iraqi regime for the production of chemical weapons. From 1985 until early 1988, in a total of twenty shipments he supplied at least more than 1,100 tons of Thiodiglycol (TDG) on the basis of three Letters of Credit. That substance was used for the production of mustard gas that was deployed during the war in Iran as well as in Iraq. By doing so during a number of years, the defendant has consciously made a substantial contribution to the continuing violation of the laws and customs of war committed by the Iraqi regime. Based on Dutch criminal law that was applicable at that time, a person who is found guilty of complicity in a criminal offence which carries a life sentence can be sentenced to a term of imprisonment of a maximum of 15 years. Seen the fact that the defendant committed the offence of complicity several times, in his case the penalty to be imposed will be a maximum term of twenty years imprisonment, which is based on the regulation set out in article 57, paragraph 2, of the Penal Code, concerning various offences for which one sentence is pronounced. In determining the punishment in this case, the Court has taken into account the following circumstances, that on the one hand relate to the seriousness of the offences, the circumstances in which they were committed, as well as the intended purposes of the punishment to be considered when fixing the punishment, and on the other hand the personal circumstances of the defendant. As results from the case file (in the period referred to in the charges), the Iraqi regime carried out multiple attacks with (among others) mustard gas during the war with Iran on places in that country, as well as on the border region between Iraq and Iran, where Kurdish population groups lived that were suspected of collaboration with the Iranian enemy. Those attacks caused the death of at least thousands of civilians (that did not participate in the conflict) and caused permanent and severe health problems to very many persons. It is beyond doubt that the regime in Bagdad by doing so committed extensive and extremely gross violations of the international humanitarian law by using a weapon that was already prohibited by the Geneva (Gas) Protocol of 17 June 1925. The defendant has made an essential contribution to these violations – at a time that many, if not all other suppliers 'pulled out' with regard to the increasing international pressure – by supplying many times in the course of several years (among other matters) very large quantities of a precursor for mustard gas; in doing so the defendant made significant profits. Those supplies enabled the Iraqi regime to (almost) continue their deadly (air) attacks in full force during a number of years. Apparently the defendant did not give his deliberate support to the afore mentioned gross violations out of sympathy for the targets of the regime, but – as it should be assumed – the defendant acted exclusively in pursuit of large gains and fully neglected the consequences of his actions. Even today the defendant does not show any sense of guilt or any compassion for the numerous victims of the mustard gas attacks. The Court recognizes that the proven offences were committed over more than twenty years ago and that the defendant is a man of advanced age, who is to be expected to spend a large part of the remaining years of his life in prison. The Court will only be able to attach limited weight to this slightly mitigating circumstance. In this case the most important aspect concerning the determination of the appropriate sanction – considering the extreme gross violation of the principles of humanitarian law that took place and the important supporting role that was played by the defendant – is to point out to the victims and survivors, as well as to the international legal community, how much value is put on the actions of the defendant and what severe punishment can only be the consequence of these actions. Finally in fixing the appropriate punishment, the Court has taken into account the general prevention aspect. People or companies that conduct (international) trade, for example in weapons or raw materials used for their production, should be warned that – if they do not exercise increased vigilance – they can become involved in most serious criminal offences. It should be made clear to them that they will have to face prosecution and long-term prison sentences, in accordance with the seriousness of the crimes they committed. Considering all of the above, the Court concludes that the only suitable and necessary reaction in these circumstances is a non-suspended prison sentence of a very long term as set out below.” 14. The Court of Appeal sentenced the applicant to seventeen years' imprisonment; however, it rejected the claims of the civil parties as unsuitable for summary decision. 15. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), submitting a statement of points of appeal on 14 April 2008. He argued, referring to section 1(1) of the War Crimes Act, that the Netherlands courts lacked jurisdiction since the Court of Appeal had not convicted him of aiding and abetting crimes committed in “time of war” (as distinct from non-international or international “conflict”); section 1(2) of that Act could not apply, since the conflict, whether international or not, did not in any way involve the Netherlands. He also alleged a violation of Article 7 of the Convention in that the concept of “laws and customs of war” as used in section 8 of the War Crimes Act was so vague and uncertain in scope that he could not reasonably have been found to have had the criminal intent to be an accessory to their violation. He further claimed that the 1925 Geneva Gas Protocol and the 1949 Geneva Conventions, as considered relevant by the Court of Appeal, had become a dead letter in the light of the use of weapons of mass destruction, nuclear in particular, and the widespread use of other indiscriminate weapons such as incendiary bombs and napalm (which he described as “chemical weapons”) during the Second World War (1939-45), the Korean War (1950-53) and the Vietnam War (1959-75). The 1925 Geneva Gas Protocol, moreover, had lost its force, or at the very least could no longer be seen as proof of the existence of customary law given widespread State practice to contrary effect. 16. The Procurator General (Procureur-Generaal) at the Supreme Court submitted an advisory opinion on 18 November 2008. He considered the Court of Appeal's reference to general international law an error which the Supreme Court could itself correct ex officio: it was sufficient to refer to the 1925 Geneva Gas Protocol, to the common Article 3 of the 1949 Geneva Conventions, and (in relation to the second charge) to Article 147 of the fourth Geneva Convention, all of which had been relied on by the Court of Appeal as setting out the applicable substantive standards. 17. The applicant submitted a response to the Procurator General's opinion on 27 November 2008, as permitted by Article 439 § 5 of the Code of Criminal Procedure (Wetboek van Strafvordering). He argued, among other things, that Saddam Hussein and Ali Hassan al-Majid al-Tikriti, whose crimes he had supposedly aided and abetted, had at the time been members of the government of a sovereign State (one of them its Head of State) and for that reason protected by that State's sovereign immunity. Since the Dutch courts had no jurisdiction over them, it followed that they were not entitled to try him as their accessory either. 18. On 30 June 2009 the Supreme Court gave judgment dismissing the appeal on points of law. It found that section 3 of the War Crimes Act conferred universal jurisdiction on Dutch courts in respect of the crimes set out in section 8 of that Act. In response to the applicant's complaint going to the supposed vagueness of the concept of “laws and customs of war” as used in section 8 of the War Crimes Act, it held as follows: “Contrary to the argument made in the point of appeal (middel), section 8 of the War Crimes Act is not contrary to the 'requirement of specificity' (bepaaldheidsgebod) contained in the statutory and Convention provisions relied upon. In the light, among other things, of the nature of its subject-matter, consisting of the setting of penal sanctions on the severest indictable offences which originate in a common legal consciousness – whether it be set out in laws and treaties or not –, the norm formulated in section 8 of the War Crimes Act makes it clear enough what behaviour will carry a penal sanction and sufficiently enables the suspect to adjust his behaviour accordingly, even though the nature and content of this provision inevitably entail a certain vagueness in the description of the crime (een zekere vaagheid in de delictsomschrijving).” 19. The relevant provisions of domestic law, in the versions applicable and applied in the applicant's case, read as follows: “... 5. Within two weeks from the transmission of the copy of the advisory opinion (of the Procurator General) the accused's counsel ... may submit his written comments thereon to the Supreme Court.” “The following persons are liable as accessories (medeplichtigen) to an indictable offence (misdrijf): 1. those who intentionally assist in the commission of the indictable offence; 2. those who intentionally provide the opportunity, means or information necessary to commit the indictable offence.” “1. In the case of complicity as an accessory, the maximum of the principal penalties (hoofdstraffen) prescribed for the indictable offence shall be reduced by one third. 2. In the case of an indictable offence carrying a sentence of life imprisonment, a term of imprisonment not exceeding fifteen years shall be imposed. 3. The additional penalties (bijkomende straffen) for complicity as an accessory shall be the same as for the indictable offence itself. 4. Only those acts that were intentionally facilitated or promoted by the accessory (die de medeplichtige opzettelijk heeft gemakkelijk gemaakt of bevorderd), and the consequences of such acts, shall be taken into consideration in sentencing.” “1. In the case of a concurrence of criminal acts which must be considered as separate and which constitute more than one indictable offence carrying equivalent principal penalties (gelijksoortige hoofdstraffen), a single sentence shall be imposed. 2. The maximum sentence shall be the total of the maximum penalties prescribed for the acts; however, in the case of imprisonment and penal detention (hechtenis), the sentence may not exceed the maximum of the most severe penalty by more than one third.” “1. The provisions of the present Act shall apply to crimes that are committed in time of war or that are criminal only in time of war, as set out in: ... 3o sections 4-9 of the present Act; ... 2. In the case of an armed conflict that cannot be described as war and in which the Netherlands is involved either for the purpose of individual or collective self-defence or to restore international order and security, sections 4-9 shall apply by analogy and We [i.e. the Crown; that is the Monarch together with the responsible Minister] may determine by order in council (algemene maatregel van bestuur) that the other provisions of the present Act shall apply in whole or in part. 3. The expression 'war' shall be understood to include civil war.” “Without prejudice to the relevant provisions of the Criminal Code and the Military Criminal Code (Wetboek van Militair Strafrecht), Dutch criminal law shall apply to: 1o anyone who commits the indictable offence set out in [section] 8 outside the Realm in Europe; ... 4o any Netherlands national who commits an indictable offence as referred to in section 1 outside the Realm in Europe.” “1. Anyone who commits a violation of the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years ... 2. A term of imprisonment not exceeding fifteen years ... shall be imposed: 1o if the criminal act is liable to result in someone else's death or cause them severe bodily injury; 2o if the criminal act involves inhuman treatment; 3o if the criminal act involves forcing someone else to do something, not to do something or suffer something to happen; 4o if the criminal act involves looting. 3. Life imprisonment or a temporary term of imprisonment not exceeding twenty years ... shall be imposed: 1o if the criminal act results in someone else's death or causes them severe bodily injury or involves rape; 2o if the criminal act involves violence by a plurality of persons acting in concert (geweldpleging met verenigde krachten) against one or more persons or violence against a dead, sick or injured person; 3o if the criminal act involves the destruction, damaging, putting beyond use or hiding, by a plurality of persons acting in concert, of any property belonging to someone else in whole or in part; 4o if the criminal act set out under 3o or 4o of the preceding paragraph is committed by a plurality of persons acting in concert; 5o if the criminal act is an expression of a policy of systematic terror or unlawful action (wederrechtelijk optreden) against the entire population or a particular group thereof; 6o if the criminal act involves the breaking of a promise or the breaking of an agreement entered into as such with the opposing party; 7o if the criminal act involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party.” 20. The International Crimes Act (Wet internationale misdrijven) entered into force on 1 October 2003, replacing the War Crimes Act and the Genocide Treaty (Implementation) Act (Uitvoeringswet Genocideverdrag). In relevant part, it provides as follows: “1. Anyone who commits one of the following acts, if committed as a part of a widespread or systematic attack directed against a civilian population, in the knowledge that it is part of such attack, shall be found guilty of a crime against humanity and be liable to life imprisonment or to a term not exceeding thirty years ...: a. wilful killing; b. extermination; c. enslavement; d. deportation or forcible transfer of population; e. imprisonment or other serious deprivation of physical liberty contrary to fundamental rules of international law; f. torture; g. rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable seriousness; h. persecution of an identifiable group or collectivity on political grounds, because they belong to a particular race or a particular nationality, on ethnic, cultural or religious grounds, on grounds of gender or on other grounds which are universally recognised as impermissible under international law, in connection with an act referred to in this paragraph or any other crime set out in the present Act; i. enforced disappearance of persons; j. apartheid; k. other inhumane acts of a comparable nature deliberately causing serious suffering or serious bodily injury or harm to mental or physical health. ...” “1. Anyone who, in an international armed conflict, commits one of the serious violations of the Geneva Conventions, namely the following acts if committed against persons protected by the said Conventions: a. wilful killing; b. torture or inhuman treatment, including biological experiments; c. wilfully causing great suffering or serious bodily injury or harm to health; d. large-scale deliberate and unlawful destruction and appropriation of property in the absence of military necessity; e. compelling a prisoner of war or other protected person to serve in the armed forces of a hostile power; f. deliberately denying a prisoner or war or other protected person the right to a fair trial in accordance with the law; g. unlawful deportation and transfer or unlawful confinement; or h. taking hostages shall be liable to life imprisonment or to a term not exceeding thirty years ... ... 5. Anyone who, in an international armed conflict, commits one of the following acts: a. deliberately directing attacks against civilian objects, that is to say objects which are not military objectives; b. deliberately initiating an attack knowing that such an attack will cause incidental death or injury to civilians or damage to civilian objects or widespread, long-term and serious damage to the natural environment, and that it will clearly be excessive in relation to the concrete and direct overall military advantage anticipated; c. attacks or bombing, by whatever means, of towns, villages, dwellings or buildings which are not being defended and are not military targets; d. the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; e. declaring rights and actions of nationals of a hostile party to be abolished, suspended, or inadmissible in a court of law; f. compelling of nationals of a hostile party to take part in hostile acts directed against their own country, even if before the beginning of the war they were in the service of the belligerent party; g. the use of poisoned weapons; h. the use of asphyxiating, poisonous or other gases and other similar liquids, materials or devices; i. the use of bullets which easily expand or flatten or widen in the human body, such as bullets with a hard jacket which leaves the core partially exposed or is incised; j. outrages (wandaden) upon personal dignity, in particular humiliating and degrading treatment; k. taking advantage of the location of a civilian or other protected person to secure particular points, areas or forces against military operations; l. deliberately making use of the starvation of civilians as a method of waging war by denying them objects which are indispensable to their survival, including deliberately impeding the supply of aid goods as provided for in the Geneva Conventions; m. deliberately directing attacks against the civilian population as such or individual civilians who are not directly participating in hostilities; n. deliberately directing attacks against buildings, materiel, medical units and transport as well as personnel making use in accordance with international law of the emblems of the Geneva Conventions; o. deliberately directing attacks against personnel, installations, materiel, units or vehicles involved in humanitarian aid or peace missions in accordance with the Charter of the United Nations, as long as they are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict; p. deliberately directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, such buildings not being military objectives; q. pillaging of a town or a place, even if taken in an attack; r. conscripting or enlisting into military service in the national armed forces or groups children under the age of fifteen or using them for active participation in hostilities; s. denying quarter; t. destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict, shall be liable to a term of imprisonment not exceeding fifteen years ... 6. If an act as set out in ... the fifth paragraph: a. results in a person’s death or causes them severe bodily injury or involves rape; b. involves violence by a plurality of persons acting in concert (geweldpleging in vereniging) against one or more persons or violence against a dead, sick or injured person; c. involves the destruction, damaging, putting beyond use or hiding, by a plurality of persons acting in concert, of any property belonging to a person in whole or in part; d. involves a plurality of persons acting in concert forcing someone else to do something, not to do something or suffer something to happen; e. involves a plurality of persons acting in concert pillaging a town or a place, even if taken in an attack; f. involves the breaking of a promise or the breaking of an agreement entered into as such with the adversary; or g. involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party the person found guilty shall be liable to life imprisonment or to a term not exceeding thirty years ...” 1. Anyone who, in a non-international armed conflict, commits a violation of the common Article 3 of the Geneva Conventions, that is to say the commission against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, of any one of the following acts: a. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b. taking of hostages; c. outrages upon personal dignity, in particular humiliating and degrading treatment; d. the passing of sentences and the carrying out of executions without prior judgment pronounced by a lawfully constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples; shall be liable to life imprisonment or to a term not exceeding thirty years ... 2. Anyone who, in a non-international armed conflict, commits one of the following acts: a. rape, sexual slavery, enforced prostitution, enforced sterilisation, or any other form of sexual violence that can be deemed equally serious as a serious violation of the Geneva Conventions; b. forced pregnancy; c. subjecting persons who are in the power of an adversary to physical mutilation or medical or scientific experiments, whatever their nature, not justified by medical or dental treatment of the person concerned or his treatment in hospital, nor carried out in his interest, and which result in death or can seriously endanger the health of that person or persons; or d. treacherously killing or wounding persons who belong to the hostile nation or army; shall be liable to life imprisonment or to a term not exceeding thirty years ... 3. Anyone who, in a non-international armed conflict, commits one of the following acts: a. deliberately directing attacks against the civilian population as such or against individual civilians who are not participating directly in hostilities; b. deliberately directing attacks against buildings, materiel, medical units and transport, as well as personnel making use in accordance with international law of the emblems of the Geneva Convention [i.e. the Red Cross, the Red Crescent and the Red Crystal]; c. deliberately directing attacks against personnel, installations, materiel, units or vehicles involved in humanitarian assistance or peace missions in accordance with the Charter of the United Nations, as long as these are entitled to the protection granted to civilians or civilian objects pursuant to the international law of armed conflict; d. deliberately directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, such buildings not being military objectives; e. pillaging of a town or a place, even if taken in an attack; f. conscripting or enlisting into military service in the national armed forces or groups children under the age of fifteen or using them for active participation in hostilities; g. denying quarter; h. destroying or seizing property of the adversary unless such destruction or seizure is urgently necessary as a consequence of cogent circumstances of a conflict; or i. giving orders for the displacement of a civilian population for reasons connected with the conflict, not including reasons connected with the security of the civilians involved or in cases of urgent necessity because of cogent circumstances of the conflict, shall be liable to a term of imprisonment not exceeding fifteen years ... 4. The sixth paragraph of section 5 shall apply by analogy to an act as referred to in the third paragraph.” 21. In a decision of 11 November 1997 reported in the Nederlandse Jurisprudentie (Netherlands Law Reports) 1998 (no. 463), the Supreme Court held as follows: “5.2. That it certainly was the Government's intention to comply in full with that treaty obligation [to criminalise all serious breaches of the four 1949 Geneva Conventions] is apparent from, among other things, the parliamentary history of that Act, in particular from the Explanatory Memorandum (Memorie van Toelichting) and the Memorandum in Reply (Memorie van Antwoord) pertaining to the Bill in question, which respectively include the following passages: 'When another power that is a party to the violated Convention does not request the transfer (overlevering) of a prisoner of war who is in the hands of the Netherlands, it should be possible for him to be tried by a Dutch court, even though the indictable offence may have been committed abroad, and even if the criminal act has not been committed against a Dutch national or harms no Dutch interest.' and 'The provision enacted in section 3(1) grants the Dutch courts jurisdiction to try war crimes, regardless of by whom and where they have been committed, that is to say also in those cases in which the indictable offence has been committed by a non-Dutch national outside the Netherlands in a war to which our country is not a party. It is rightly pointed out in the Provisional Report (Voorlopig Verslag) that this provision is to be seen as an application of the so-called principle of universality.' 5.3. In view of the finding contained in paragraph 5.2 above, a reasonable interpretation of the law, in accordance with the legislature's intention to comply in full with the treaty obligations entered into by the Netherlands, makes it necessary to understand section 1 of the War Crimes Act – despite its, to that extent, opaque wording – in such a way that the limitations comprised in subsections 1, 2 and 3 respectively of section 1 of the War Crimes Act have no bearing on sections 8 and 9, and to that extent, not on section 3 ... either.” 22. Similar rulings have appeared since this decision in other decisions and judgments of Dutch courts, including a judgment (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] BC7418) given by the Supreme Court on 8 July 2008, while the present case was pending before it. 23. The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (signed at Geneva on 17 June 1925), better known as the 1925 Geneva Gas Protocol, entered into force on 8 February 1928. It reads as follows: “THE UNDERSIGNED PLENIPOTENTIARIES, in the name of their respective Governments: Whereas the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilised world; and Whereas the prohibition of such use has been declared in Treaties to which the majority of Powers of the world are Parties; and To the end that this prohibition shall be universally accepted as a part of International Law, binding alike the conscience and the practice of nations; DECLARE: That the High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this declaration. The High Contracting Parties will exert every effort to induce other States to accede to the present Protocol. Such accession will be notified to the Government of the French Republic, and by the latter to all signatory and acceding Powers, and will take effect on the date of the notification by the Government of the French Republic. The present Protocol, of which the French and English texts are both authentic, shall be ratified as soon as possible. It shall bear today's date. The ratification of the present Protocol shall be addressed to the Government of the French Republic, which will at once notify the deposit of such ratification to each of the signatory and acceding Powers. The instruments of ratification of and accession to the present Protocol will remain deposited in the archives of the Government of the French Republic. The present Protocol will come into force for each signatory Power as from the date of deposit of its ratification, and, from that moment, each Power will be bound as regards other Powers which have already deposited their ratifications.” 24. Among the earliest States to agree to be bound by this Protocol were Iran, which acceded to it (as the Imperial State of Persia) on 5 November 1929; Iraq, which acceded to it (as the Kingdom of Iraq) on 8 September 1931; and the Kingdom of the Netherlands, which ratified it on 31 October 1930. All three are still parties. 25. Other States have followed suit throughout the second half of the twentieth century and more recently still. Among them are the United States of America (which ratified the Protocol in 1975), Vietnam (which acceded to it in 1980) and the Democratic People's Republic of Korea and the Republic of Korea (which acceded to it on the same day, 4 January 1989). The most recent are Ukraine (2003), Serbia and Croatia (both 2006), Slovenia (2008) and Costa Rica (2009). To date, more than one hundred and thirty States have ratified or acceded or declared succession to this Protocol. 26. The Kingdom of the Netherlands and Iraq were among those States which, in ratifying or acceding to the Protocol, entered a reservation making its binding force in war conditional on reciprocal application by the enemy. The Kingdom of the Netherlands withdrew its reservation on 17 July 1995. Other States which entered similar reservations to the Protocol but have since withdrawn them are Ireland (1972), Australia (1986), New Zealand (1989), Czechoslovakia (1990, binding its successor States), Mongolia (1990), Bulgaria (1991), Chile (1991), Romania (1991), Spain (1992), France (1996), South Africa (1996), Belgium (1997), Canada (1999), and Russia (2001). 27. The Charter of the International Military Tribunal (better known as the “Nuremberg Tribunal”) was annexed to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”) of 8 December 1945. In the relevant part, it reads as follows: “... The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: a. Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; b. War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; c. Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” 28. In its Resolution 177 (II), paragraph (a), the General Assembly of the United Nations directed the International Law Commission to “formulate the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal”. The International Law Commission adopted a text at its second session (Yearbook of the International Law Commission, 1950, Vol. II, pp. 374-378). 29. The Principles identified by the International Law Commission (“Nuremberg Principles”) are the following: Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. Any person charged with a crime under international law has the right to a fair trial on the facts and law. The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). (b) War crimes: Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. (c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.” 30. The Kingdom of the Netherlands ratified the 1949 Geneva Conventions (Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; and Convention (IV) relative to the Protection of Civilian Persons in Time of War) on 3 August 1954. Iraq did so (as the Kingdom of Iraq) on 14 February 1956. Neither State has entered any reservation. 31. Article 3 common to all four 1949 Geneva Conventions reads as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.” 32. In the relevant part, Convention (IV) relative to the Protection of Civilian Persons in Time of War additionally provides as follows: “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a 'prima facie' case. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.” “Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” 33. Over 140 States had ratified or acceded or declared succession to the 1949 Geneva Conventions by 1980. Iran and the Kingdom of the Netherlands, both among the original signatories, did so in 1957 and 1954 respectively; Iraq did so in 1956. The 1949 Geneva Conventions now bind every State in the world. 34. The Treaty on the Non-Proliferation of Nuclear Weapons was opened for signature on 1 July 1968 and it entered into force on 5 March 1970. Among other things, it binds States Parties not already in possession of nuclear weapons not to seek possession of, or control over, nuclear weapons or nuclear explosive devices and to submit to verification measures. 35. In the North Sea Continental Shelf cases (Judgment, I.C.J. Reports 1969, p. 3) the International Court of Justice held as follows: “71. In so far as this contention is based on the view that Article 6 of the Convention [the 1958 Geneva Convention on the continental shelf] has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained. 72. It would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. ... 77. The essential point in this connection – and it seems necessary to stress it – is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; – for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e.., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitua1 character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty. 78. In this respect the Court follows the view adopted by the Permanent Court of International Justice in the Lotus case, as stated in the following passage, the principle of which is, by analogy, applicable almost word for word, mutatis mutandis, to the present case (P.C.I.J., Series A, No. 10, 1927, at p. 28): 'Even if the rarity of the judicial decisions to be found ... were sufficient to prove ... the circumstance alleged ..., it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, there are other circumstances calculated to show that the contrary is true.'” 36. In the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case (Merits, Judgment, I.C.J. Reports 1986, p. 14) it held as follows: “186. It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's interna1 affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.” 37. The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (“Biological Weapons Convention”) was opened for signature simultaneously in Moscow, Washington DC and London on 10 April 1972. By the end of 1972 it had been signed by over 100 States. 38. The Biological Weapons Convention entered into force on 26 March 1975, after the deposit of the twenty-second instrument of ratification. It had been ratified by 91 recognised States and one non-recognised State by the end of 1980. A further 19 ratified or acceded to it, or declared succession to it upon gaining independence, from 1981 until the end of 1988 (among them the Kingdom of the Netherlands, which ratified it on 22 June 1981). It currently has 163 States Parties (including all member States of the Council of Europe) and 13 signatories. Iraq ratified it on 19 June 1991. 39. In the relevant part, it reads as follows: “The States Parties to this Convention, Determined to act with a view to achieving effective progress towards general and complete disarmament, including the prohibition and elimination of all types of weapons of mass destruction, and convinced that the prohibition of the development, production and stockpiling of chemical and bacteriological (biological) weapons and their elimination, through effective measures, will facilitate the achievement of general and complete disarmament under strict and effective international control, Recognizing the important significance of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925, and conscious also of the contribution which the said Protocol has already made, and continues to make, to mitigating the horrors of war, Reaffirming their adherence to the principles and objectives of that Protocol and calling upon all States to comply strictly with them, Recalling that the General Assembly of the United Nations has repeatedly condemned all actions contrary to the principles and objectives of the Geneva Protocol of June 17, 1925, Desiring to contribute to the strengthening of confidence between peoples and the general improvement of the international atmosphere, Desiring also to contribute to the realization of the purposes and principles of the United Nations, Convinced of the importance and urgency of eliminating from the arsenals of States, through effective measures, such dangerous weapons of mass destruction as those using chemical or bacteriological (biological) agents, Recognizing that an agreement on the prohibition of bacteriological (biological) and toxin weapons represents a first possible step towards the achievement of agreement on effective measures also for the prohibition of the development, production and stockpiling of chemical weapons, and determined to continue negotiations to that end, Determined for the sake of all mankind, to exclude completely the possibility of bacteriological (biological) agents and toxins being used as weapons, Convinced that such use would be repugnant to the conscience of mankind and that no effort should be spared to minimize this risk, Have agreed as follows: ... Article VIII Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on June 17, 1925. Article IX Each State Party to this Convention affirms the recognized objective of effective prohibition of chemical weapons and, to this end, undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development, production and stockpiling and for their destruction, and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes. ...” 40. By the time of the Iran-Iraq War, a number of States had officially instructed their armed forces to refrain from the use of chemical weapons. These included the United Kingdom, whose Military Manual (1958) provided that “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices [were] forbidden”, and Belgium, whose Law of War Manual (1983) proscribed the first use of asphyxiating, toxic or similar gases. The United States, in its Field Manual FM 27-10, Law of Land Warfare (1956, revised 1976), forbade its land forces the first use of “lethal and incapacitating chemical agents”, referring to the 1925 Geneva Gas Protocol and the American reservation of no first use. 41. The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects was opened for signature on 10 October 1980 and it entered into force on 2 December 1983. It comprises five Protocols. One of them (Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons) prohibits the use of incendiary weapons against civilian targets and of air-delivered incendiary weapons against military objectives located within a concentration of civilians in all circumstances, and of non-air-delivered incendiary weapons against military objectives located within a concentration of civilians unless the civilians are spared (Article 2). 42. Every year during the war between Iraq and Iran, that is, between 1980 and 1988, the General Assembly of the United Nations adopted resolutions on chemical and bacteriological weapons (nos. 35/144, 12 December 1980; 36/96, 9 December 1981; 37/98, 13 December 1982; 38/187, 20 December 1983; 39/188, 12 December 1984; 40/92, 12 December 1985; 41/58, 3 December 1986; 42/37, 30 November 1987; and 43/74, 7 December 1988). In each of them the General Assembly reaffirmed “the necessity of strict observance of the principles and objectives” by all States of the 1925 Geneva Gas Protocol and of adherence by all States to the Biological Weapons Convention. 43. In Resolution no. 35/144C of 1980 the General Assembly expressed the belief “... that the continued authority of the Protocol and relevant rules of customary international law [required] that full and proper attention be given to all reports regarding the alleged use of chemical weapons and to their harmful effects, both immediate and long-term, to humans and to the environment of the victim countries”. 44. In Resolution no. 37/98D on Provisional Procedures to Uphold the Authority of the 1925 Geneva Protocol of 1982 the General Assembly requested the Secretary-General of the United Nations “... to devise procedures for the timely and efficient investigation of information concerning activities that [might] constitute a violation of the Geneva Protocol or of the relevant rules of customary international law and to assemble and organize systematically documentation relating to the identification of signs and symptoms associated with the use of such agents as a means of facilitating such investigations and the medical treatment that [might] be required” with the assistance of qualified experts. Elsewhere (in Resolution no. 37/98E on Chemical and Bacteriological (Biological) Weapons) the General Assembly recalled “... that the use of chemical and biological weapons [had] been declared incompatible with the accepted norms of civilization”. 45. The Secretary General published his report on 2 October 1984 (UN Doc. A/39/488). To it was annexed a report of a Group of Consultant Experts, transmitted to the Secretary General on 24 August 1984, which set out procedures for investigating allegations of the use of chemical or biological weapons. Sub-annexed to the report of the Consultant Experts was a list (Annex IX) of potential chemical and biological warfare agents; “sulphur mustard” was one of those mentioned. The General Assembly took note of the Secretary General's report in its Resolution 39/65E of 1984. 46. In Resolution 42/37C of 1987, the General Assembly recalled “... the provisions of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and other relevant rules of customary international law”. The following year, in Resolution 43/74A, it expressed “... deep dismay at the use of chemical weapons in violation of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and other relevant rules of customary international law”. 47. On 30 March 1984 the President of the Security Council delivered the following statement: “On behalf of the members of the Security Council, I am authorized to make the following declaration: The Security Council, Having considered again the question entitled 'The situation between Iran and Iraq', Greatly concerned about the conflict between Iran and Iraq, which endangers international peace and security in the region; Taking note of the report of the specialists appointed by the Secretary General to investigate allegations by the Islamic Republic of Iran concerning the use of chemical weapons (S/16433), Taking note with particular concern of the unanimous conclusions of the specialists that chemical weapons have been used, Expressing its grave concern about all reported violations in the conflict of the rules of international law and of the principles and rules of international conduct accepted by the world community to prevent or alleviate the human suffering of warfare, Strongly affirming the conclusion of the Secretary-General that these humanitarian concerns can only be fully satisfied by putting an end to the tragic conflict that continues to deplete the precious human resources of Iran and Iraq, 1. Strongly condemns the use of chemical weapons reported by the finding of the mission of specialists; 2. Reaffirms the need to strictly abide by the Geneva Protocol of 1925 for the Prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare; 3. Calls on the States concerned immediately and unconditionally to reaffirm the obligations flowing from their accession to the Geneva Protocol of 1925; 4. Condemns all violations of international humanitarian law and urges both parties to observe carefully the generally recognized principles and rules of international humanitarian law which are applicable to armed conflicts and their obligations under international conventions designed to prevent or alleviate the human suffering of warfare; 5. Recalls its relevant resolutions, renews urgently its appeal for the strict observance of a cease-fire and for a peaceful solution of the conflict, and calls upon all governments concerned to cooperate fully with the Council in its efforts to bring about conditions leading to a peaceful settlement of the conflict in conformity with the principles of justice and international law; 6. Appreciates the mediation efforts of the Secretary-General and requests him to continue his efforts with the parties concerned with a view to achieving a comprehensive, just and honourable settlement acceptable for both sides; 7. Decides to keep the situation between Iran and Iraq under close review.” 48. On 24 February 1986, the Security Council unanimously adopted Resolution 582 (1986), of which the relevant part reads as follows: “The Security Council, Having considered the question entitled 'The situation between Iran and Iraq', Recalling that the Security Council has been seized with the question between Iran and Iraq for almost six years and that decisions have been taken thereon, ... Noting that both the Islamic Republic of Iran and Iraq are parties to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare signed at Geneva on 17 June 1925, ... 2. Also deplores the escalation of the conflict, especially territorial incursions, the bombing of purely civilian population centres, attacks on neutral shipping or civilian aircraft, the violation of international humanitarian law and other laws of armed conflict and, in particular, the use of chemical weapons contrary to obligations under the 1925 Geneva Protocol; ...” 49. On 9 May 1988, the Security Council unanimously adopted its Resolution 612 (1988), which reads as follows: “The Security Council, Having considered the report of 25 April 1988 of the mission dispatched by the Secretary-General to investigate allegations of the use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq, Dismayed by the mission's conclusions that chemical weapons continue to be used in the conflict and that their use has been on an even more intensive scale than before, 1. Affirms the urgent necessity of strict observance of the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, 2. Condemns vigorously the continued use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq contrary to the obligations under the Geneva Protocol; 3. Expects both sides to refrain from the future use of chemical weapons in accordance with their obligations under the Geneva Protocol; 4. Calls upon all States to continue to apply or to establish strict control of the export to the parties to the conflict of chemical products serving for the production of chemical weapons; 5. Decides to remain seized of the matter and expresses its determination to review the implementation of the present resolution.” 50. On 26 August 1988, the Security Council unanimously adopted its Resolution 620 (1988), of which the relevant part reads as follows: “The Security Council, Recalling its resolution 612 (1988) of 9 May 1988, Having considered the reports of 20 and 25 July and of 2 and 19 August 1988 of the missions dispatched by the Secretary-General to investigate allegations of the use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq, Deeply dismayed by the missions' conclusions that there had been continued use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq and that such use against Iranians had become more intense and frequent, Profoundly concerned by the danger of possible use of chemical weapons in the future, Bearing in mind the current negotiations in the Conference on Disarmament on the complete and effective prohibition of the development, production and stockpiling of chemical weapons and on their destruction, Determined to intensify its efforts to end all use of chemical weapons in violation of international obligations now and in the future, 1. Condemns resolutely the use of chemical weapons in the conflict between the Islamic Republic of Iran and Iraq in violation of obligations under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and in defiance of its resolution 612 (1988); 2. Encourages the Secretary-General to carry out promptly investigations in response to allegations brought to his attention by any Member State concerning the possible use of chemical and bacteriological (biological) weapons that may constitute a violation of the 1925 Protocol or other relevant rules of customary international law, in order to ascertain the facts of the matter, and to report the results; 3. Calls upon all States to continue to apply, to establish or to strengthen strict control of the export of chemical products serving for the production of chemical weapons, in particular to parties to a conflict, when it is established that they have used chemical weapons in violation of international obligations; 4. Decides to consider immediately, taking into account the investigations of the Secretary-General, appropriate and effective measures in accordance with the Charter of the United Nations, should there be any future use of chemical weapons in violation of international law, wherever and by whomever committed.” 51. Proposals for a treaty intended to supplement the 1925 Geneva Gas protocol by prohibiting the development, production or possession of chemical weapons in addition to their use were placed on the agenda of the Eighteen-Nation Disarmament Committee in 1968. In 1980, this Committee (re-named the Conference on Disarmament the year before) set up an ad hoc working group charged with identifying the issues to be dealt with in a multilateral treaty to be prepared for that purpose. Drafting began in earnest in 1984, after the Secretary-General of the United Nations announced that Chemical Weapons had been used by Iraq in its war against Iran. Beginning in 1986, the global chemical industry actively participated in the negotiations. The new Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (or Chemical Weapons Convention) was opened for signature in Paris on 13 January 1993. One hundred and thirty States signed it within the first two days. It entered into force on 29 April 1997, 180 days after the date of the deposit of the 65th instrument of ratification. It currently binds 188 States. 52. In Article I § 1 of the Chemical Weapons Convention, States Parties undertake “... never under any circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; (b) To use chemical weapons; (c) To engage in any military preparations to use chemical weapons; (d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.” 53. Article VII § 1 obliges States Parties to enact criminal legislation making activities prohibited to a State Party under this treaty punishable by law. This includes extending penal legislation to cover the commission of such acts by natural persons possessing that State's nationality. 54. Appended to the Chemical Weapons Convention is an “Annex on Chemicals” comprising three schedules: Schedule 1 includes toxic chemicals or precursors that are chemical weapons themselves, or may be used as chemical weapons or for the manufacture of such weapons, and have “little or no use for purposes not prohibited under this Convention”. Schedule 2 includes chemicals that possess lethal or incapacitating toxicity as well as other properties that could enable them to be used as chemical weapons or that may be used in the manufacture of such weapons, and are “not produced in large commercial quantities for purposes not prohibited under this Convention”. Schedule 3 includes chemicals that have been produced, stockpiled or used as chemical weapons, or might be used as chemical weapons, or are important for the production of Schedule 1 or Schedule 2 chemicals, and “may be produced in large commercial quantities for purposes not prohibited under this Convention”. Separate verification regimes apply to chemicals according to the Schedule in which they are listed, details of which are laid down in the Verification Annex appended to the Chemical Weapons Convention. Thiodiglycol, which has industrial uses (including as a solvent in the manufacture of some types of printing and ballpoint pen inks), is listed in Schedule 2. 55. Article VIII establishes the Organization for the Prohibition of Chemical Weapons (OPCW) to achieve the object and purpose of the Chemical Weapons Convention, to ensure the implementation of its provisions, including those concerning international verification of compliance with it, and to provide a forum for consultation and co-operation among States Parties. The OPCW is based in The Hague, Netherlands. 56. In its decision of 2 October 1995 on the defence motion for interlocutory appeal on jurisdiction in Prosecutor v. Duško Tadić (Case No. IT-94-1), the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia held as follows (original emphasis): “119. So far we have pointed to the formation of general rules or principles designed to protect civilians or civilian objects from the hostilities or, more generally, to protect those who do not (or no longer) take active part in hostilities. We shall now briefly show how the gradual extension to internal armed conflict of rules and principles concerning international wars has also occurred as regards means and methods of warfare. As the Appeals Chamber has pointed out above ..., a general principle has evolved limiting the right of the parties to conflicts 'to adopt means of injuring the enemy.' The same holds true for a more general principle, laid down in the so-called Turku Declaration of Minimum Humanitarian Standards of 1990, and revised in 1994, namely Article 5, paragraph 3, whereby '[w]eapons or other material or methods prohibited in international armed conflicts must not be employed in any circumstances.' (Declaration of Minimum Humanitarian Standards, reprinted in, Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session, Commission on Human Rights, 51st Sess., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116 (1995).) ... Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife. 120. This fundamental concept has brought about the gradual formation of general rules concerning specific weapons, rules which extend to civil strife the sweeping prohibitions relating to international armed conflicts. By way of illustration, we will mention chemical weapons. Recently a number of States have stated that the use of chemical weapons by the central authorities of a State against its own population is contrary to international law. On 7 September 1988 the [then] twelve Member States of the European Community made a declaration whereby: 'The Twelve are greatly concerned at reports of the alleged use of chemical weapons against the Kurds [by the Iraqi authorities]. They confirm their previous positions, condemning any use of these weapons. They call for respect of international humanitarian law, including the Geneva Protocol of 1925, and Resolutions 612 and 620 of the United Nations Security Council [concerning the use of chemical weapons in the Iraq-Iran war].' (4 European Political Cooperation Documentation Bulletin, (1988) at 92.) This statement was reiterated by the Greek representative, on behalf of the Twelve, on many occasions. (See U.N. GAOR, 1st Comm., 43rd Sess., 4th Mtg., at 47, U.N. Doc. A/C.1/43/PV.4 (1988)(statement of 18 October 1988 in the First Committee of the General Assembly); U.N. GAOR, 1st Comm., 43rd Sess., 31st Mtg., at 23, U.N. Doc. A/C.1/43/PV.31 (statement of 9 November 1988 in meeting of First Committee of the General Assembly to the effect inter alia that 'The Twelve [. . .] call for respect for the Geneva Protocol of 1925 and other relevant rules of customary international law'); U.N. GAOR, 1st Comm., 43rd Sess., 49th Mtg., at 16, U.N. Doc. A/C.3/43/SR.49 (summary of statement of 22 November 1988 in Third Committee of the General Assembly); see also Report on European Union [EPC Aspects], 4 European Political Cooperation Documentation Bulletin (1988), 325, at 330; Question No 362/88 by Mr. Arbeloa Muru (S-E) Concerning the Poisoning of Opposition Members in Iraq, 4 European Political Cooperation Documentation Bulletin (1988), 187 (statement of the Presidency in response to a question of a member of the European Parliament).) ... 123. It is interesting to note that, reportedly, the Iraqi Government 'flatly denied the poison gas charges.' (New York Times, 16 September 1988, at A 11.) Furthermore, it agreed to respect and abide by the relevant international norms on chemical weapons. ... It should also be stressed that a number of countries ... strongly disagreed with United States' assertions that Iraq had used chemical weapons against its Kurdish nationals. However, this disagreement did not turn on the legality of the use of chemical weapons; rather, those countries accused the United States of 'conducting a smear media campaign against Iraq.' (See New York Times, 15 September 1988, at A 13; Washington Post, 20 September 1988, at A 21.) 124. It is therefore clear that, whether or not Iraq really used chemical weapons against its own Kurdish nationals - a matter on which this Chamber obviously cannot and does not express any opinion - there undisputedly emerged a general consensus in the international community on the principle that the use of those weapons is also prohibited in internal armed conflicts.” 57. Article 10 of the Statute of the Special Iraqi Tribunal provides as follows: “The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 - 14, committed since July 17, 1968 and up and until May 1, 2003, in the territory of Iraq or elsewhere, namely: a) The crime of genocide; b) Crimes against humanity; c) War crimes; or d) Violations of certain Iraqi laws listed ... below.”

dev

001-67418

ENG

FRA

CHAMBER

CASE OF ACHOUR v. FRANCE

Violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - national proceedings;Costs and expenses partial award - Convention proceedings

Christos Rozakis

7. The applicant was born in 1963 and lives in Lyons. 8. On 16 October 1984 the Lyons Criminal Court found the applicant guilty of drug trafficking involving ten kilograms of hashish and sentenced him to three years' imprisonment. 9. In a judgment of 14 April 1997 the Lyons Criminal Court found the applicant guilty of a drug offence, following the discovery in his garage of two bags containing some fifty-seven kilograms of cannabis, and sentenced him to eight years' imprisonment, in addition ordering his exclusion from French territory for ten years. It gave the following reasons for its decision: “We have a young man returning from Guadeloupe in late 1993, with no job or verifiable income, who, having tried his hand in turn at property, trading in linen, crockery, air-conditioners, foie gras and, incidentally, counterfeit 200-franc notes (??), found himself, somehow or other – he repeatedly tried to explain this with a story about profitable 'air-conditioners' – in possession of a considerable pile of money, more than 61 million old francs, at his home (see D351), scattered about and hidden in the unlikeliest places (such as the maintenance hatch under the bath!!). Even better, the arrest on 7 December 1995 in the morning resulted in the seizure, without a warrant, of two bundles of drugs, consisting of more than 50 kilograms of prohibited substances, laid out, packed and wrapped in a manner bearing little resemblance to a craft industry. Nobody claimed them – which one of H. or Achour turned the other one in?? What is more, H. was in possession of 3 kilograms of the same kind of resin (see the expert report, D339) and 33,000 francs in cash, stored in the glovebox of his car. The circumstances outlined above amount to two pieces of evidence against Achour, which elicited nothing more than vague and inconsistent explanations in which he accused H. of being the delivery man, claimed ignorance as to the nature of the two bundles (!!!), and referred again and again, as a kind of 'judicial trump card', to the money-spinning air-conditioners (repeatedly) and the savings of his late brother (A.). A third piece of evidence results from shadowing, tracking and telephone-tapping. Treading stealthily like a Sioux Indian and behaving like a secret agent, before and after 30 October 1995, Achour moved about a good deal, showing a preference for mornings, twisting and turning constantly, keeping a sharp lookout where necessary, and receiving his 'contacts'' vehicles in his garage (albeit for very short amounts of time)... What was going on?? What was going on, his counsel argued, as, subsequently, did counsel for D. and R., was indeed 'trading', but in linen, foie gras (in 'blocks'), counterfeit banknotes, trousers, but never hashish. This cunning strategy was supported by the statements of G. (D322), and indeed those of V. or C. Furthermore, and above all, no air-conditioners, foie gras or trousers were seized on 7 December 1995; what was physically observed in this case was hashish, and a sizeable quantity of it. Accordingly, Couider Achour, who already has several convictions, having, in particular, been sentenced to three years' imprisonment in October 1984 for a drug offence, cannot lay claim to any indulgence, even in view of the particularly well-organised nature of his activities (the court has left aside the pagers, mobile phones, etc. used for 'contacts'). The public prosecutor, for his part, sought an eight-year term of imprisonment and the court endorses and imposes that sentence, which is still mild when it is borne in mind that the defendant is classified in law as a recidivist. A proportionate fine and continued detention, in addition, in order to ensure that the sentence is executed and that the offence is not repeated. Lastly, as an additional penalty, exclusion from national territory for ten years.” 10. The Criminal Court also sentenced the applicant's mother and his partner, S., to two years' imprisonment, suspended, for handling the proceeds of drug offences. 11. In a judgment of 25 November 1997 the Lyons Court of Appeal increased the applicant's sentence to twelve years' imprisonment and upheld the exclusion order. It observed, among other things: “By Article 132-9 of the Criminal Code, a person is deemed to be a recidivist where, having already been convicted with final effect of an offence punishable by ten years' imprisonment, he commits a further offence carrying a similar sentence within ten years of the expiry of the limitation period for enforcing the previous sentence. That was so in the case of Couider Achour-Aoul, who, having been sentenced by the Lyons Criminal Court on 16 October 1984, after adversarial proceedings, to three years' imprisonment for offences under the regulations on buying, possessing, using, trading in and transporting drugs, punishable under Article L. 627, paragraph 1, of the Public Health Code, as applicable at the time, by a term of between two and ten years' imprisonment, and having completed that sentence on 12 July 1986, committed the offences with which he was charged, which likewise carry a sentence of ten years' imprisonment pursuant to Article 222-37 of the Criminal Code, in the course of 1995 and up to 7 December of that year. In convicting him on the charges set out in the order committing him for trial, the court below made a correct analysis of the facts of the case and drew the necessary legal inferences. Its judgment must therefore be upheld as to the finding of guilt. Despite having been convicted on 16 October 1984 of drug offences relating to the possession of 10 kilograms of cannabis resin, Couider Achour-Aoul, with no declared income since 1993, had no hesitation in committing further drug offences, making a substantial profit which he shared with his family and amassing a sizeable fortune which he invested shrewdly. A total of 57 kilograms of cannabis resin – a substance extremely harmful to the health of young people, in particular those living in poverty, who are exposed to the illegal and dangerous activities of unscrupulous individuals – was found at his home. He had asked Mr H.M., who had sought his help in finding a decent job, to sell hashish for him. Accordingly, both the nature and the seriousness of the accused's conduct, reflecting a deep-seated inclination to crime for financial gain regardless of the risk to other people's lives and occurring at a time when he was liable to be classified as a recidivist, dictate that he should be sentenced to twelve years' imprisonment...” 12. The applicant appealed on points of law, arguing, among other things, that his classification in law as a recidivist contravened the rule governing the application of successive criminal laws, the Court of Appeal having retrospectively applied the harsher provisions of the new legislation. 13. In a judgment of 29 February 2000 the Court of Cassation dismissed his appeal. It held that the Court of Appeal had been justified in deeming him to be a recidivist, on the following grounds: “... where a law introduces new rules on recidivism, for them to apply immediately it is sufficient for the offence constituting the second component of recidivism – which the offender may choose to commit or not to commit – to have been committed after the law's entry into force.” 14. The applicant is due for release on 21 June 2006. 15. The relevant provisions of the Criminal Code, as in force before 1 March 1994, were as follows: “Anyone who, having been sentenced for a serious crime [crime] to a term of imprisonment exceeding one year, commits, within five years of the expiry of that sentence or of the time allowed for its enforcement, a further serious crime or other major offence [délit] punishable by imprisonment shall be sentenced to at least the statutory maximum penalty for that offence and, at most, twice that penalty.” “The same shall apply to persons who have been sentenced for a major offence [délit] to a term of imprisonment exceeding one year and, within the same period, are found guilty of the same offence or of a serious crime punishable by imprisonment. Anyone who, having previously been sentenced to a shorter term of imprisonment, commits the same offence within the same period shall be sentenced to a term of imprisonment of at least twice the previous sentence and, at most, twice the statutory maximum sentence. ...” 16. Article 132-9 of the new Criminal Code, which came into force on 1 March 1994, provides: “Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years' imprisonment commits, within ten years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a similar sentence, the maximum sentence and fine that may be imposed shall be doubled. Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years' imprisonment commits, within five years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a prison sentence of more than one year but less than ten years, the maximum sentence and fine that may be imposed shall be doubled.” 17. As early as 1893 the Criminal Division of the Court of Cassation held: “ ... the increase in the sentence in the event of recidivism amounts to an additional penalty not for the first offence but for the second, which the offender may choose to commit or not to commit. Accordingly, new legislation may, without having retrospective effect, lay down the penalties that may be imposed in future for offences committed while it is in force; the offender cannot request the application of the penalties under the previous legislation for an offence committed since the new legislation has been in force, his status as a recidivist being determined by the new legislation.” (Cass. crim., 31 August 1893, D. 1896.1.137) 18. That position has been reiterated in subsequent judgments of the Criminal Division of the Court of Cassation (Cass. crim. 14 June 1945, Bull. crim. no. 68; 29 January 1948, Bull. crim. no. 38; 23 March 1981, Bull. crim. no. 103; 29 February 2000, Bull. crim. no. 95). 19. During the passage through Parliament of a bill amending the general provisions of the Criminal Code, the rapporteur for the Senate stated, among other things (Senate Report no. 271, appended to the record of the sitting of 27 April 1989): “Article 132-9 Recidivism entailing a serious crime or other major offence punishable by seven years' imprisonment and a further offence carrying a sentence of seven years or between one and seven years ... The increased severity of the rules on recidivism applicable where the second offence is punishable by seven years' imprisonment lies in the extension of the 'probationary period' (ten years) within which a convicted person may be deemed to be a recidivist. If the second offence is punishable by a prison sentence of between one and seven years, the rules on recidivism apply only if the 'relapse' occurs within a period of five years. In both cases, the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism. The existing rules on the subject derive from a law of 26 March 1891 and are set out in Article 57 of the Criminal Code. They provide for a conception of recidivism that is general in scope but limited in time (the probationary period being five years) where a person who, having been sentenced for a serious crime to a penalty exceeding one year's imprisonment (i.e. between one year and life), is prosecuted for a further serious crime or other major offence punishable by imprisonment. In such cases the sentence is increased to at least the statutory maximum penalty for the second offence and, at most, twice that penalty ...” 20. Article 769 of the Code of Criminal Procedure, on criminal records, provides, inter alia: “... The following shall be removed from a person's criminal record: entries concerning convictions that have been expunged as a result of an amnesty or of automatic or judicial rehabilitation, or amended in accordance with a decision to rectify the criminal record. The same shall apply, save in the case of convictions for crimes not subject to limitation, to entries concerning convictions dating back more than forty years which have not been followed by a further conviction for a serious crime or other major offence. Entries concerning the following shall also be removed from the criminal record: (1) personal bankruptcy orders or disqualifications provided for in section 192 of the aforementioned Law no. 85-98 of 25 January 1985 where such measures are expunged by means of a judgment terminating the proceedings on account of the payment of outstanding debts, by means of rehabilitation, or upon the expiry of five years from the date on which the orders in question became final; and also orders for the liquidation of a natural person's assets, upon the expiry of five years from the date on which the orders in question became final, or after the delivery of a judgment rehabilitating the person concerned. However, if the personal bankruptcy order or disqualification is valid for more than five years, an entry concerning these measures shall remain in the criminal record for the same period; (2) disciplinary decisions expunged as a result of rehabilitation; (3) sentences which are wholly or partly suspended, with or without probation, upon the expiry of the periods laid down in Articles 728-4 and 728-7 of the Criminal Code, calculated from the date on which the sentences are to be deemed void; (4) discharges, upon the expiry of a three-year period starting on the date on which the conviction became final; (5) convictions for petty offences [contraventions], upon the expiry of a three-year period starting on the date on which the convictions became final; this period shall be increased to four years where repetition of the offence in question constitutes a more serious offence [délit]; (6) measures carried out under the agreed penalty scheme, upon the expiry of three years from the date on which it is certified that the measure has been carried out, if during that period the person has not been convicted of a serious crime or other major offence or carried out a further measure under the agreed penalty scheme; and (7) measures ordered in accordance with Articles 8, 15, 151, 16, 16 bis and 28 of the aforementioned Ordinance no. 45-174 of 2 February 1945, upon the expiry of three years from the date on which the measure was ordered, if during that period the person has not received a sentence for a serious crime or other major offence, or carried out a measure under the agreed penalty scheme, or been the subject of a further measure ordered in accordance with the aforementioned provisions of the Ordinance.”

dev

001-61855

ENG

UKR

CHAMBER

CASE OF VOYTENKO v. UKRAINE

Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

4. The applicant, Mr Anatoliy Pavlovych Voytenko, is a Ukrainian national who was born in 1961 and resides in the village of Nova Vodolaga, in the Kharkiv Region, Ukraine. 5. In September 1999, the applicant retired from the army. Upon retirement, the applicant was entitled to compensation for his uniform and to reimbursement of his travel expenses. As this compensation remained unpaid for three months, the applicant instituted proceedings in the Donetsk Garrison Military Court against the Donetsk Regional Military Registration Department (Донецкий Областной Военный Комиссариат), seeking recovery of the debt. 6. On 12 January 2000, the court found for the applicant (Решение Военного суда Донецкого гарнизона) and awarded him UAH 2,576.72 for the uniform and UAH 128.77 for travel expenses. The court decision was not appealed and therefore came into force on 22 January 2000. The execution writs were sent to the Voroshylovsky District Bailiffs’ Service of Donetsk (Отдел Государственной исполнительной службы Ворошиловского районного управления юстиции Донецкой области) and the enforcement proceedings started on 16 March 2000. 7. The debtor was given time to execute the judgment voluntarily, until 23 March 2000. After the debtor had failed to execute the judgment, the Bailiffs’ Service sent the execution writs and payment orders to the Donetsk Regional Treasury Department to withdraw the amount of the award from the debtor’s account, which revealed a lack of funds for such payments. 8. On 10 April 2000, the payment order and execution writ were returned to the Bailiffs’ Service without execution due to the debtor’s lack of funds. 9. On 17 May 2000, the enforcement proceedings in the applicant’s favour were joined to other enforcement proceedings against the debtor. 10. On 24 October 2000, the debtor transferred to the Bailiffs’ Service the amount of UAH 128.77 (the reimbursement of the travel expenses) to be paid to the applicant. However, this sum was only transferred to the applicant on 20 July 2001 (4 October 2001 according to the applicant). The delay, according to the Government, was caused by a lack of information about the applicant’s banking details. 11. On 7 November 2000 and 20 July 2001, the execution writ and the payment order for the remaining amount (the compensation for the uniform) were twice re-sent to the Treasury Department. They were returned without enforcement on the same grounds as before – a lack of funds on the designated account. 12. On 9 September 2001 the Bailiffs’ Service checked and attached the debtor’s accounts. The Bailiffs also checked and found that the debtor had no vehicles or real estate in its possession. 13. On 22 February and 6 August 2002 the execution writ for the remaining amount and the payment order were twice re-sent to the Treasury Department. They were returned without enforcement on the same grounds. The Treasury Department also noted that the payment order had expired on 6 September 2002. 14. In response to the applicant’s inquiry, he was informed by the Bailiffs’ Service in August 2002 that the debtor’s accounts had been frozen and that the execution of his judgment would take place as soon as State budgetary money could be transferred to it. 15. On 25 November 2002, joint enforcement proceedings against the debtor, including the applicant’s judgment, were initiated by the Bailiffs’ Service for a total amount of UAH 32,680.80. 16. On 16 December 2002, the Bailiffs’ Service attached the debtor’s account in the “Aval” Bank. 17. On 5 May 2003, the Bailiffs’ Service also ordered an attachment of the debtor’s funds which had accumulated in 26 accounts. 18. On 10 January 2004, the judgment given in the applicant’s favour was enforced in full. 19. On 12 January 2004, the amount awarded was transferred to the applicant’s bank account. 20. Article 124 of the Constitution provided as follows: “... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” 21. Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person, entrusted with the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation. 22. Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts. 23. According to Article 5 of the Law, accounts other than the one designated for a particular payment, as well as the property of the Armed Forces, cannot be used to enforce a court decision. 24. Under clause 3.6 of the regulations, the forced recovery of funds must be executed from the same account as that of ordinary payments. 25. The law suspended certain provisions of the Law of Ukraine “on the social welfare and legal protection of military personnel and their families”, in particular with regard to compensation for clothing and travel expenses.

dev

001-104427

ENG

UKR

COMMITTEE

CASE OF KALYUZHNA v. UKRAINE

Violation of Art. 6-1

Angelika Nußberger;Ganna Yudkivska

4. The applicant was born in 1949 and lives in Zaporizhzhya. 5. On an unspecified date the Zavodsky District Court of Zaporizhzhya (“the District Court”) gave an unspecified decision on the claim of the applicant’s former husband, Z., lodged against the applicant for division of their property. By a final ruling of 5 February 1985, the Zaporizhzhya Regional Court (“the Regional Court”, since June 2001, the Zaporizhzhya Regional Court of Appeal), ordered Z. to compensate the applicant for her share of their property. 6. In 1985 the Prosecutor’s Office of Zaporizhzhya and the Zavodsky District Police Department invited the applicant to discuss the residence registration of her daughter, O. 7. In 1988-1989 the applicant lodged claims with the Budenovsky District Court of Donetsk and Donetsk Regional Court seeking division of her common property with Z. There is no indication whether and, if so, how these claims were handled by the courts. 8. In 1991-2005 the applicant unsuccessfully tried to have her brothers, K.Vi. and K.Vo., prosecuted for hooliganism and theft. She was not found to be a civil party to these proceedings. 9. On 9 November 1992 K.Vi. and K.Vo. lodged a claim against the applicant challenging the validity of their mother’s will over a house and belongings. 10. On 25 September 1998 the District Court partly allowed the claim. 11. Following a “protest” of the Zaporizhzhya Regional Prosecutor of 25 September 1998, the Regional Court quashed this judgment on 25 December 1998 and remitted the case to the Distrcit Court which, on19 February 2004 partly allowed the applicant’s claim. 12. On 26 May 2004 the Regional Court upheld this judgment. On 22 June the applicant appealed in cassation. On 12 July 2006 she requested the Supreme Court to speed up examination of her case. By a final ruling of 4 October 2006, notified to the applicant on 19 October, the Supreme Court upheld the lower court’s decisions. 13. According to the Government, between 11 September 1997 and 4 October 2006, the applicant filed three procedural requests and two appeals which all met procedural requirements. Moreover, of the twenty nine hearings scheduled, eleven were adjourned at the claimants’ request, five were adjourned at the applicant’s request, four were adjourned due to the claimants’ or witness’s failure to attend, one was adjourned due to the applicant’s failure to attend, one was adjourned at the parties’ request, and three were adjourned for reasons beyond the parties’ control. Overall, due to the applicant’s requests or her failure to attend, the proceedings were delayed for about eleven moths.

dev

001-70228

ENG

HRV

ADMISSIBILITY

GREGURINCIC v. CROATIA

Inadmissible

Christos Rozakis

The applicant, Mr Ivica Gregurinčić, is a Croatian national who was born in 1967 and lives in Petrinja, Croatia. He is represented before the Court by Mr B. Spiz, a lawyer practising in Zagreb. The respondent Government were represented by successive Agents: Ms L. Lukina-Karajković and Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 August 1995 a member of the Croatian Army allegedly damaged the applicant’s car. On 3 October 1995 the applicant instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the State. The court held hearings on 15 April 1996, 2 April 1998 and on 8 December 1998. On 6 November 1999 the Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima) entered into force. It provided that proceedings for damage caused by members of the army and the police from 17 August 1990 to 30 June 1996 would be stayed. The court held hearings thereafter: on 18 March 2002, 11 March 2003, 2 March 2004 and on 10 December 2004. It would appear that the proceedings in issue are still pending. The Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999, hereinafter “the 1999 Act”) entered into force on 6 November 1999. It provided, inter alia, that proceedings instituted against the State for damage caused by members of the army and the police during the war were to be stayed until the matter has been regulated by special legislation. The Act also imposed an obligation on the Government to submit to the Parliament such special legislation no later than 6 May 2000. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides: “Proceedings shall be stayed: ... (6) where another statute so prescribes.” The “Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003” (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1999 Act will resume and defines circumstances in which the State is liable for damage caused by members of the army and the police during the war. The relevant part of section 63 of the Constitutional Court Act 1999 (Ustavni zakon o Ustavnom sudu Republike Hrvatske, its consolidated text was published in the Official Gazette no. 49/2002), as amended on 15 March 2002, reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”

dev

001-58085

ENG

NLD

CHAMBER

CASE OF DE HAAN v. THE NETHERLANDS

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

6. The applicant, Ms Klaziena Wilhelmina de Haan, is a Netherlands national born in 1966 and resident in Oude Pekela. She worked at a dry cleaner’s from 1987. In the spring of 1989 she started to develop physical complaints which caused her to take sick-leave for months at a time. It was alleged that these complaints were caused by chemical substances used in dry cleaning. While she was not at work the applicant enjoyed sick-pay from the Occupational Association for the Chemical Industry (Bedrijfsvereniging voor de Chemische Industrie) under the Health Insurance Act (ziektewet). 7. By a letter of 14 May 1990 the Occupational Association for the Chemical Industry informed the applicant that according to the information at their disposal she was no longer unfit for work, and that accordingly her entitlement to sick-pay would be terminated with retrospective effect from 10 May. 8. The applicant lodged an appeal with the Groningen Appeals Tribunal (Raad van Beroep) on 22 May 1990. On 20 June she filed an additional statement setting out her grounds of appeal. 9. The Appeals Tribunal followed the simplified procedure known as the permanent-medical-expert procedure (vaste deskundige procedure – see paragraphs 25–28 below). 10. On 17 August 1990 the applicant was examined by a permanent medical expert (vaste deskundige) attached to the Appeals Tribunal – a general practitioner. 11. On 11 September 1990 the acting president of the Appeals Tribunal, Judge S., dismissed the appeal. This decision, which was typed on a pre-printed form, contained the following reasoning: “In his opinion, which was received at the registry of the Appeals Tribunal on 6 September 1990, the expert reached the conclusion that on and after the date to which the decision appealed against relates the applicant was not unfit for work ... The Appeals Tribunal considers that it should accept this opinion. In view of this opinion, as well as the other documents contained in the case file, it must be held that in the decision appealed against the respondent authority acted correctly in deciding to discontinue the applicant’s sick-pay.” 12. On 26 September 1990 the applicant filed an objection (verzet). This caused the decision of the president to lapse provisionally (section 142 (3) of the Appeals Act – see paragraph 29 below). She filed a statement of the grounds on which her objection was based on 19 November 1990. The grounds of her objection went to the merits of the case. 13. The applicant received an invitation to take part in a hearing set for 8 August 1991. By a letter of 24 July addressed to Judge S., the applicant’s lawyer stated that he had learnt that Judge S. would officiate as president of the Chamber of the Appeals Tribunal constituted to hear the case and announced his intention of challenging him. 14. At the hearing the applicant’s lawyer submitted a written note dated the day before requesting that Judge S. withdraw and, in the alternative, challenging him. It was not alleged that Judge S. was subjectively biased, but doubts were expressed as to his objective impartiality in view of the fact that he had given a decision in the case earlier, based on evidence contained in the case file. 15. The Chamber of the Appeals Tribunal withdrew to consider the applicant’s challenge in camera. The discussion was presided over by a judge who was not a member of the Chamber (section 62 of the Appeals Act – see paragraph 33 below). Judge S. did not withdraw. It was decided to reject the challenge, pursuant to the internal policy of the Groningen Appeals Tribunal (see paragraph 34 below). The Chamber of the Appeals Tribunal thereafter resumed the hearing in the same composition. 16. On 21 August 1991 the Appeals Tribunal held the objection to be unfounded. 17. The applicant filed a further appeal (hoger beroep) to the Central Appeals Tribunal (Centrale Raad van Beroep) on 6 September 1991. Relying specifically on Article 6 of the Convention, she complained about the rejection by the Appeals Tribunal of her challenge of Judge S., stating that the latter had lacked objective impartiality. She asked that the case be referred back to the Appeals Tribunal for a rehearing (see paragraph 36 below) under the presidency of a different judge. As an alternative submission, she asked that her entitlement to sick-pay after 10 May 1990 be recognised. 18. The Central Appeals Tribunal rejected the applicant’s further appeal on 26 April 1993. In so far as its judgment concerned the applicant’s challenge of Judge S., it referred to another judgment delivered the same day in which the same problem of functional impartiality was addressed. That judgment contained the following reasoning: “The Central Appeals Tribunal construes the [relevant] case-law of the European Court of Human Rights ... in the sense that the possibility of a violation of the guarantee of judicial impartiality is accepted if the judge participating in the determination of the legal question in the principal proceedings [hoofdgeding] has been involved in preparatory decisions which were independent in nature and had a purport of their own, and which generally fall to be taken on the basis of a global or provisional view of the main issue in the principal proceedings and which in general cannot be reconsidered when the main issue is dealt with. The procedure according to the Appeals Act, as called into question by the applicant, concerns a judge who, within a single instance on appeal, within the framework of continuous judicial construction [rechtsvinding] in the stage before as well as after the objection, which, if filed in due time, causes the preceding decision to lapse in accordance with section 129 [of the Appeals Act], is involved in a decision with the same purport, given in relation to the same legal question and on the basis of the same standards. In view of these essential differences the Central Appeals Tribunal is of the opinion that no violation of judicial impartiality can be found on the basis of the criteria which may be deduced from the above-mentioned case-law of the European Court of Human Rights. The Central Appeals Tribunal will not address the question whether the Court’s case-law, which has been formed in the field of criminal law, may be transposed to other fields of law without further ado.” 19. The following is a rendering of the relevant domestic law and practice at the time of the events complained of. 20. The Health Insurance Act sets up an insurance scheme which is compulsory for all employees (section 20). Under this scheme, an employee has a right to sick-pay in the event of inability to perform his or her work due to illness, pregnancy or disability (section 19). In the event of illness or disability the employee may receive sick-pay for a period of up to fifty-two weeks (section 29 (2)). Provision for illness or disability continuing beyond this period was made under a different Act, the Occupational Disability Insurance Act (Wet op de arbeidsongeschiktheidsverzekering), which is not relevant to the present case. 21. Pursuant to section 2 of the Social Security (Organisation) Act (Organisatiewet sociale verzekeringen) it falls to the occupational associations to implement certain social-security legislation, including the Health Insurance Act. One occupational association exists for each of the various sectors of economic life. An occupational association is an association (vereniging) under private law set up by employers’ and employees’ organisations considered by the Minister of Social Affairs and Employment (Minister van Sociale Zaken en Werkgelegenheid) to be sufficiently representative of the sector concerned; its purpose is defined as being to implement the relevant social-security legislation, it must be a non-profit-making body and its statutes must satisfy certain requirements (section 4 (1) of the Social Security (Organisation) Act). An employer is automatically a member of the occupational association corresponding to the sector of the economy to which the work carried out by his employees belongs (section 7 (1) of the Social Security (Organisation) Act). 22. The Appeals Tribunals – which have in the meanwhile been abolished (see paragraph 38 below) – were the judicial bodies with jurisdiction to rule at first instance on disputes concerning most social- security legislation, including the Health Insurance Act (at the relevant time, section 75 of the Health Insurance Act). 23. A Chamber of an Appeals Tribunal comprised three members. Its president was always a judge appointed for life: the president of the Appeals Tribunal concerned or a vice-president or acting president (sections 5 and 116 (1) of the Appeals Act). The other two members were appointed for six years by the Minister of Justice, from lists of persons put forward by organisations of employers and employees (sections 9 and 10). 24. In addition, every Appeals Tribunal had a number of permanent medical experts at its disposal. These were physicians (section 131 of the Appeals Act). They were appointed for one year at a time by the Minister of Justice (section 132 (1)). Upon appointment, they swore that they would report according to their conscience (section 133). They were not allowed to be connected to any organisation concerned with social-security matters, or to act as permanent medical experts in cases in which they had previously been involved in another capacity (section 134). 25. In the event of a dispute between an occupational association and an employee with regard to the latter’s fitness for work, the permanent-medical-expert procedure provided for by the Appeals Act was followed (section 75 (2) of the Health Insurance Act). 26. When an appeal was lodged against a decision of an occupational association concerning an employee’s fitness for work, the president of the Appeals Tribunal appointed a permanent medical expert (section 135 of the Appeals Act). The registry of the Appeals Tribunal informed the occupational association in question of the lodging of the appeal; the occupational association was then required to submit the relevant documents in its possession, normally within three days (section 136). These were included in the case file, which was then forwarded to the permanent medical expert. 27. The permanent medical expert was required to consult the physician who had examined the appellant on behalf of the occupational association and the physician who had treated the appellant, unless it appeared from the case file that their opinions corresponded to his own; he also examined the appellant (section 137). He then drew up an opinion which he submitted to the president of the Appeals Tribunal (section 140). 28. The president of the Appeals Tribunal, or an acting president as the case might be, gave a reasoned decision which was pronounced in public (section 141). 29. Both the appellant and the occupational association could file an objection with the Appeals Tribunal against the decision of the president (section 142 (2) of the Appeals Act). As a consequence of the filing of such an objection, the decision objected against lapsed unless the objection was eventually held to be inadmissible or unfounded (section 142 (3)). 30. Before the Court’s judgment in the case of Feldbrugge v. the Netherlands (judgment of 29 May 1986, Series A no. 99), such an objection could only be based on certain formal grounds (ibid., p. 10, § 19). After that judgment the presidents of the Appeals Tribunals established a policy guideline pursuant to which appellants were informed that they could file an objection on any grounds desired (Nederlands Juristenblad – Netherlands Law Review – 1986, p. 869). 31. The objection proceedings involved a hearing in camera before a Chamber of the Appeals Tribunal (section 142 (2) and (6)). A decision dismissing the objection had to be reasoned (section 142 (7)). 32. Pursuant to section 61 (1) of the Appeals Act, a party to proceedings before an Appeals Tribunal was entitled to challenge a member of the Chamber called upon to hear the case “on the ground of facts or circumstances which might prevent [the member concerned from forming] an impartial opinion” (die een onpartijdig oordeel zouden kunnen belemmeren). A member of the Chamber was entitled to withdraw for the same reason (section 61 (2)). 33. After a hearing of the party concerned, the challenge was decided on in camera by the other members of the Chamber, chaired by the president of the Appeals Tribunal or his or her deputy. No appeal lay against the ensuing decision (section 62 (1) of the Appeals Act). 34. It appears from the decision in the present case (see paragraph 15 above) that the Groningen Appeals Tribunal had an internal policy under which objections against decisions which had lapsed as a result of the filing of the objection were normally dealt with under the presidency of the acting president who had given the original decision unless no further appeal was possible. 35. The Central Appeals Tribunal was, and is, composed entirely of judges appointed for life (section 32 of the Appeals Act). At the relevant time it always sat in Chambers of three (section 39). Its hearings are public (section 64). 36. A further appeal against the decision or judgment of an Appeals Tribunal lay to the Central Appeals Tribunal, unless the law provided otherwise (section 145 of the Appeals Act). The procedure normally involved a complete re-examination of the case, including a hearing (section 148). The Central Appeals Tribunal could confirm the decision of the Appeals Tribunal, with different reasoning if necessary, or do what the Appeals Tribunal ought to have done (section 149); it could also refer the case back to the Appeals Tribunal if it saw fit (section 150). 37. However, according to section 75 (2) of the Health Insurance Act, no appeal lay against a decision given by an Appeals Tribunal in objection proceedings such as those in issue. In its judgment of 24 July 1958 (Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports, RSV) 1958, no. 102) the Central Appeals Tribunal nevertheless opened the possibility of a further appeal in such cases if it appeared that rules of a formal nature had not been followed, if incorrect standards had been applied, or to the extent that the decision appealed against was unreasonable. 38. The General Administrative Law Act entered into force on 1 January 1994. It replaced the Appeals Tribunals by administrative-law divisions of the Regional Courts (arrondissementsrechtbanken). 39. An employee who does not wish to accept the decision of an occupational association concerning his or her fitness for work may file an objection (bezwaarschrift) to that body (section 7:1 of the Administrative Law Act). An appeal lies to the Regional Court (section 8:1). The Regional Court may appoint a medical expert to examine the appellant (section 8:47 (1)). It must hold a hearing, unless the parties to the case waive their right to be heard (sections 8:56 and 8:57). A further appeal lies to the Central Appeals Tribunal (section 18 of the Appeals Act, as amended). The restrictions set out in paragraph 37 above no longer apply.

dev

001-89412

ENG

RUS

CHAMBER

CASE OF ISMAYILOV v. RUSSIA

Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award

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

5. The applicant was born in 1937 and lives in Moscow. 6. On 17 November 2002 the applicant arrived in Moscow from Baku. He was carrying with him 21,348 US dollars (USD), representing the proceeds from the sale of his ancestral dwelling in Baku. However, he only reported USD 48 on the customs declaration, whereas Russian law required that any amount exceeding USD 10,000 be declared to the customs. A customs inspection uncovered the remaining amount in his luggage. The applicant was charged with smuggling, a criminal offence under Article 188 § 1 of the Criminal Code, and the money was appended to the criminal case as physical evidence (вещественные доказательства). 7. On 8 May 2003 the Golovinskiy District Court of Moscow found the applicant guilty as charged and imposed a suspended sentence of six months’ imprisonment conditional on six months’ probation. As regards the money, it held: “Physical evidence – 21,348 US dollars stored in the Central cash desk of the Sheremetyevo Customs Office – shall revert to the State.” 8. In his statement of appeal the applicant claimed his innocence and submitted that the confiscation order had no basis in the domestic law because Article 188 of the Criminal Code did not provide for confiscation as punishment. 9. On 29 May 2003 the Moscow City Court upheld the conviction on appeal. As regards the money, it noted that the trial court had not ordered confiscation of the money as a penal sanction, but had rather decided on the destiny of the physical evidence. 10. The applicant sent complaints to various Russian authorities. He pointed out that he had been living below the poverty line and that for this reason he had decided to sell the flat in Baku which he had inherited from his mother. He enclosed copies of the will and the flat sale contract. He asked for return of the lawfully acquired money on humanitarian grounds. 11. On 8 September 2003 the Ombudsman of the Russian Federation wrote a letter on the applicant’s behalf to the acting Moscow City prosecutor, asking him to submit a request for institution of supervisory-review proceedings in the part concerning the confiscation order. On 18 September 2003 the deputy Moscow City prosecutor replied to the Ombudsman that there were no reasons to seek institution of supervisory-review proceedings because the confiscation order had been lawful on the basis of paragraph 7 of the USSR Supreme Court’s Resolution of 3 February 1978. 12. On 22 October 2003 the Ombudsman asked the Prosecutor General to apply for institution of supervisory-review proceedings. He wrote, firstly, that, contrary to the requirements of the Code of Criminal Procedure, no procedural document indicated what category of physical evidence the applicant’s money belonged to. That omission entailed an incorrect decision on the destiny of the physical evidence. The applicant’s money had neither been an instrument of the crime – in smuggling cases only a hiding place could be such an instrument – nor had it been criminally acquired. Accordingly, neither paragraph 3 (1) nor paragraph 3 (4) of Article 81 of the Code of Criminal Procedure were applicable in the applicant’s situation and the money should have been returned to the lawful owner pursuant to paragraph 3 (6) of that Article. Otherwise, the confiscation order amounted to a de facto second punishment for the same offence. Finally, the Ombudsman contested the applicability of the USSR Supreme Court’s resolution of 3 February 1978. He pointed out that paragraph 7 expressly provided for application of the “current legislation”. As the new Criminal Code did not provide for confiscation in cases of smuggling, paragraph 7 could not be applied. 13. On 9 December 2003 the deputy Prosecutor General replied to the Ombudsman that the Presidium of the Supreme Court had already opined that the object of smuggling should be treated as the instrument of the offence and be liable to confiscation as such (he referred to the judgment in the Petrenko case, cited in paragraph 23 below). 14. The Ombudsman lodged a constitutional complaint on behalf of the applicant and another person. 15. On 8 July 2004 the Constitutional Court declared the complaint inadmissible (decision no. 251-O). It held that the legal possibility of confiscating the objects recognised as physical evidence in a criminal case, including instruments and proceeds of offences, was compatible with the international obligations of the Russian Federation undertaken under the United Nations Convention against Transnational Organised Crime and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. Hence, Article 81 of the Code of Criminal Procedure did not permit an arbitrary interference with property rights and did not violate, in itself, the complainants’ constitutional rights. The Constitutional Court concluded as follows: “Determination of the status of the objects illegally transported across the customs border of the Russian Federation in the criminal proceedings and decision on whether they fit the description of physical evidence liable to criminal confiscation... are to be made by the court of general jurisdiction trying the criminal case... Lawfulness of, and justification for, the judicial decision on confiscation of physical evidence shall be reviewed by higher courts in criminal proceedings. The Constitutional Court of the Russian Federation is not competent to carry out such a review...” 16. On 24 March 2005 the Constitutional Court refused the Ombudsman’s further request for a clarification of its decision of 8 July 2004. 17. The United Nations Convention against Transnational Organized Crime which concerns the transnational offences and also offences of participation in an organised criminal group, laundering of the proceeds of crime, corruption, and obstruction of justice, ratified by Russia on 26 May 2004, provides as follows: “2. States Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-border transfer of substantial quantities of cash and appropriate negotiable instruments.” “1. States Parties shall adopt, to the greatest extent possible within their domestic legal systems, such measures as may be necessary to enable confiscation of: (a) Proceeds of crime derived from offences covered by this Convention or property the value of which corresponds to that of such proceeds; (b) Property, equipment or other instrumentalities used in or destined for use in offences covered by this Convention.” 18. The Criminal Code of the Russian Federation provides that smuggling, that is movement of large amounts of goods or other objects across the customs border of the Russian Federation, committed by concealing such goods from the customs or combined with non-declaration or inaccurate declaration of such goods, carries a penal sanction of up to five years’ imprisonment (Article 188 § 1). 19. The Foreign Currency Act (Federal Law no. 3615-I of 9 October 1992, in force at the material time) provided that Russian residents and non-residents alike had the right to transfer, bring in, and send foreign currency to Russia without any restrictions provided that they have complied with the customs rules (sections 6 § 3 and 8 § 1). 20. The Code of Criminal Procedure of the Russian Federation (“CCrP”) provides as follows: “1. Any object may be recognised as physical evidence - (1) that served as the instrument of the offence or retained traces of the offence; (2) that was the target of the criminal acts; (3) any other object or document which may be instrumental for detecting a crime or establishing the circumstances of the criminal case. ... 3. On delivery of a conviction... the destiny of physical evidence must be decided upon. In such a case – (1) instruments of the crime belonging to the accused are liable to confiscation, transfer to competent authorities or destruction; (2) objects banned from circulation must be transferred to competent authorities or destroyed; (3) non-reclaimed objects of no value must be destroyed...; (4) criminally acquired money and other valuables must revert to the State by a judicial decision; (5) documents must be kept with the case file...; (6) any other objects must be returned to their lawful owners or, if the identity of the owner cannot be established, transferred to the State...” Similar provisions were previously contained in Article 86 of the RSFSR Code of Criminal Procedure (cited in Baklanov v. Russia, no. 68443/01, § 20, 9 June 2005). 21. The Resolution of the Plenary Supreme Court of the USSR “On judicial practice regarding the offence of smuggling” (no. 2 of 3 February 1978) provided as follows: “7. In accordance with the current legislation, the objects of smuggling are liable to confiscation to the State as physical evidence. Vehicles and other means of transport are also liable to confiscation as instruments of the offence provided that they were equipped with special hiding places for concealing goods or other valuables...” 22. The Resolution of the Plenary Supreme Court of the USSR “On confiscation of the instruments of the offence that were recognised as physical evidence in the case” (no. 19 of 16 August 1984) provided as follows: “Having regard to the questions relating to the possibility of applying Article 86 § 1 of the RSFSR Code of Criminal Procedure... in cases of negligent criminal offences, the Plenary USSR Supreme Court resolves - - to clarify that the objects belonging to the convict and declared to be physical evidence may be confiscated on the basis of Article 86 § 1 of the RSFSR Code of Criminal Procedure... only if the convict or his accomplices deliberately used them as the instruments of the crime with a view to achieving a criminal result.” 23. The Presidium of the Supreme Court of the Russian Federation in the case of Prosecutor General v. Petrenko (decision no. 446p98pr of 10 June 1998) granted the prosecution’s appeal against the judgment, by which Mr Petrenko had been found guilty of smuggling of foreign currency but the money had been returned to him on the ground that Article 188 of the Criminal Code did not provide for confiscation as a penal sanction. The Presidium held as follows: “Confiscation of property as a penal sanction must be distinguished from confiscation of smuggled objects which were recognised as physical evidence. These issues must be addressed separately in the judgment... In the meaning of [Article 86 § 1 of the RSFSR Code of Criminal Procedure] and also Article 83 of the CCrP, an instrument of the offence is any object which has been used for accomplishing publicly dangerous actions, irrespective of the main purpose of the object. Accordingly, the notion of an instrument of the offence comprises the object of the offence. A mandatory element of a criminal offence under Article 188 of the Criminal Code is an object of smuggling that is being illegally transported across the customs border... The court found Mr Petrenko guilty of [attempted smuggling], noting that the US dollars were the object of the offence. Accordingly, it was required to decide on the destiny of physical evidence in accordance with Article 86 § 1 of the CCrP – that is, according to the rules on the instruments of the offence – but failed to do so.”

dev

001-108465

ENG

RUS

CHAMBER

CASE OF ANANYEV AND OTHERS v. RUSSIA

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-1 - Continuing situation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures)

Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

7. All three applicants were remanded in custody pending trial and were held in various Russian remand prisons. Their individual circumstances are detailed below. 8. On 27 December 2006 the Presidium of the Smolensk Regional Court quashed the appellate judgment in Mr Ananyev’s criminal case and remitted the matter for a new hearing. On 20 January 2007 he was taken from the correctional colony to remand prison IZ-67/1 of Smolensk, where he stayed until 23 March 2007. 9. Mr Ananyev was held in cell 170 until 21 March 2007 and then in cell 153. Cell 170 measured 15 square metres and cell 153 – 10 square metres. They were equipped with 13 and 4 sleeping places, respectively. 10. Cell 170 accommodated 12 detainees for two weeks in January and February 2007; in the remaining period of Mr Ananyev’s detention the cell population varied from 15 to 21 persons. Cell 153 housed Mr Ananyev and one other inmate. 11. The Government submitted certificates issued on 25 June 2009 by the governor of the remand prison that listed floor surface areas and cell population, and twelve pages from the prison population register of prison IZ-67/1 relating to various dates between 20 January and 23 March 2007, as well as photographs of cells 153 and 170. 12. Mr Ananyev produced written statements from his former co-detainees, Mr S. and Mr B., both dated 27 June 2009, from which it appears that between January and April 2007 cell 170 had accommodated up to 24 persons. 13. On 19 March 2007 Mr Ananyev sent complaints about unbearable conditions of his detention to the Prosecutor General, the Smolensk town prosecutor and to the Director of the Smolensk penitentiary facilities. On 4 May 2007 the Smolensk town prosecutor informed Mr Ananyev that he had checked his complaints and that the acting governor of prison IZ-67/1 had been instructed to remedy the violations of the Suspects and Defendants Detention Act. 14. Mr and Ms Bashirov were taken into custody on 29 April 2005. Ms Bashirova was released on bail on 17 May 2005 and Mr Bashirov was transferred to remand prison IZ-30/1 of Astrakhan. On 11 March 2008 they were both found guilty of drug-related offences and sentenced to eight and a half years’ and six years’ imprisonment, respectively. Ms Bashirova was re-detained on the same day. On 15 May 2008 the Astrakhan Regional Court upheld the conviction at last instance. 15. In prison IZ-30/1, Mr Bashirov stayed in cell 83 (from 3 May to 1 July 2005 and from 27 December 2007 to 22 April 2008), cell 69 (from 1 July 2005 to 11 January 2006 and from 9 August to 30 October 2006), cell 35 (from 11 January to 9 August 2006), cell 79 (from 30 October to 18 December 2007), and cell 15 (from 22 April to 21 May 2008). From 18 to 27 December 2007 Mr Bashirov underwent treatment in a prison hospital. 16. In the same prison Ms Bashirova stayed in cell 52 (from 3 to 17 May 2005), cell 40 (from 11 to 15 March 2008) and cell 45 (from 15 March to 7 June 2008). 17. Mr Bashirov’s cells presented the following characteristics: cell 15: 23 square metres and 10 sleeping places; cell 35: 25 square metres and 10 sleeping places; cells 69 and 83: 24 square metres and 12 sleeping places; cell 79: 25 square metres and 12 sleeping places. 18. Ms Bashirova’s cells had the following measurements: cell 52: 24 square metres and 10 sleeping places; cell 50: 22 square metres and 10 sleeping places; cell 45: 19 square metres and 6 sleeping places. 19. The parties disagreed on the number of detainees. The Government submitted that the number of detainees “had not exceeded the number of sleeping places”. They relied on a certificate issued by the prison governor on 29 June 2009. The applicants gave the following cell population figures: cell 15 – 15 persons, cell 69 – 22 persons, cells 35, 50 and 83 – 14 persons, cell 79 – 20 persons, cell 52 – 30 persons on average but up to 40 persons on certain days, cell 45 – 9 persons. 20. The applicants submitted extracts from annual reports by the Ombudsman of the Astrakhan Region. The 2005 Report criticised the conditions of detention in the Astrakhan prisons: “According to the data of the Federal Penitentiary Service in the Astrakhan Region, the situation in the regional remand prisons deteriorated in 2005 and elementary rights of detainees were not respected. The number of suspects and defendants significantly increased in both remand prisons; at the end of the year their number was twice the norm. Thus, prison no. [IZ-30/]1 in the city of Astrakhan has the maximum capacity of 642 detainees; during the year it accommodated on average 1,031 persons (in 2004 – 750 persons) and at the end of the year 1,300 persons. The situation in prison no. [IZ-30/]2 in the town of Narimanov is similar... For that reason, cells in the remand prisons have constantly been overcrowded; whereas the sanitary norm is four square metres per person, the actual space was approximately two square metres. Detainees suffered from a shortage of sleeping places and were forced to take turns to sleep.” 21. The 2006 Report showed that the situation had hardly improved: “Unfortunately, it must be stated that there have been no noticeable changes for the better in 2006. Thus, a warning sent on 25 September 2006 by the Astrakhan Regional prosecutor’s office to the director of the Federal Penitentiary Service in the Astrakhan Region indicated that the conditions of detention in prisons no. 1 (Astrakhan) and no. 2 (Narimanov) ‘did not meet the hygienic, sanitary or fire-safety requirements’... The situation has further been aggravated by an extreme decrepitude of the buildings (especially in the case of prison no. 1 built in 1822) and a significant exceeding of the design capacity. The three-year trend of overcrowding is a reflection of a worsening situation and the figures clearly show this: 22. The 2007 Report acknowledged that the problem of overcrowding had remained “grave” and that prison IZ-30/1 actually accommodated 879 inmates. 23. The 2008 Report criticised the officially accepted limits: “The officially recognised maximum capacity of remand prisons which is considered acceptable raises questions. It is considered that the capacity of prison IZ-30/1 is 651 persons. Yet the global living surface of all cells is 2,232.4 square metres. A simple division of this number by 4 sq. m (the legal sanitary norm of cell space per detainee) gives us the maximum prison capacity of 558 persons. However, on 31 January 2008 the actual number of detainees in prison no. 1 was 689.” 24. The applicant Mr Bashirov also produced a copy of a letter which the Astrakhan Regional prosecutor’s office had sent to his counsel on 28 February 2008 in response to a complaint about the conditions of detention raised by another detainee. The letter stated as follows: “On 29 February [sic] 2008 a deputy district prosecutor and deputy heads of prison no. 1 in charge of logistics, the detention regime and the medical unit carried out a comprehensive technical examination of cell 79. At the time of the examination, cell 79 had twelve sleeping places but housed fifteen persons. The above-mentioned examination of cell 79 also established that similar violations had occurred in a majority of cells of the prison. In connection with the overcrowding, dilapidated state of the building and other violations of the Pre-trial Detention Act, the district prosecutor’s office sent two warnings to the director of the Federal Penitentiary Service in the Astrakhan Region already in the first quarter of 2008...” 25. Personal dignity is protected by the State and may not be undermined for any reason (Article 21 § 1). No one may be subject to torture, violence or any other cruel or degrading treatment or punishment (Article 21 § 2). 26. Detention on remand must be based on the principles of lawfulness, fairness, presumption of innocence, equality before the law, humanism, respect for human dignity and must be carried out in accordance with the Russian Constitution, international legal principles and norms and international treaties, to which Russia is a party, and must not involve torture or other actions that purport to cause physical or moral suffering to the suspect or defendant (section 4). 27. Detention on remand may be effected in (a) remand prisons of the penitentiary system (следственные изоляторы), (b) temporary detention wards of the police (изоляторы временного содержания), and (c) temporary detention wards of the border service (section 7). 28. Detainees have, in particular, the right: to ask the prison governor for an appointment and to ask the same of the prison supervisors during their visit to the prison (section 17 § 3); to send suggestions, applications and complaints to authorities, including courts, concerning the lawfulness of their detention and violations of their lawful rights and interests (section 17 § 7); to receive free food, daily necessities and medical assistance, including during the time when they take part in investigative acts or court hearings (section 17 § 9); to have an eight-hour uninterrupted sleep at night time and a one-hour period of daily exercise (section 17 §§ 10 and 11). 29. Detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. All inmates should have at their disposal in their cell no less than four square metres of personal space (section 23). 30. The Prosecutor General and subordinate prosecutors must supervise the application of legal norms in remand prisons. Prison authorities must comply with the instructions of the supervising prosecutor in so far as they concern the detention rules as established in this Act (section 51). 31. The Ombudsman may receive complaints concerning the actions by federal and municipal State bodies or employees, provided that the complainant has previously lodged a judicial or administrative appeal in this connection (section 16 § 1). 32. Having examined the complaint, the Ombudsman may apply to a court or prosecutor for the protection of the rights and freedoms which have been breached by an unlawful action or inaction of a State official or petition the competent authorities for institution of disciplinary, administrative or criminal proceedings against the State official who has committed such a breach (section 29 § 1). 33. The Ombudsman prepares a summary of individual complaints and he or she may submit to State and municipal authorities recommendations of a general nature on the ways to improve the protection of individual rights and freedoms or suggest legislative amendments to the lawmakers (section 31). 37. Chapter 25 sets out the procedure for a judicial examination of complaints about decisions, acts or omissions of the State and municipal authorities and officials. Pursuant to Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation, complaints by suspects, defendants and convicts about inappropriate conditions of detention must be examined in accordance with the provisions of Chapter 25 (point 7). 38. A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the directly higher official or authority (Article 254). The complaint may concern any decision, act or omission which has violated rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on the citizen (Article 255). 39. The complaint must be lodged within three months of the date when the citizen learnt of the breach of his rights. The time-period may be extended for valid reasons (Article 256). The complaint must be examined within ten days; if necessary, in the absence of the respondent authority or official (Article 257). 40. The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. If necessary, the court may obtain evidence of its own initiative (point 20 of Ruling no. 2). 41. If the court finds the complaint justified, it issues a decision requiring the authority or official to fully remedy the breach of the citizen’s rights (Article 258 § 1). The court determines the time-limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full (point 28 of Ruling no. 2). 42. The decision is dispatched to the head of the authority concerned, to the official concerned or to their superiors, within three days of its entry into force. The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt (Article 258 §§ 2 and 3). 43. Civil rights may be protected in many forms, including in particular, recognition of the right, re-establishment of the status quo ante and the discontinuance of violations of the right or the prevention of such violations, and compensation in respect of non-pecuniary damage (Article 12). 44. An individual’s life and health, personal dignity and integrity, honour and goodwill are considered to be the person’s “non-property rights” or “intangible assets”, which are protected under the Civil Code and other laws in the cases and to the extent that the forms of the protection of civil rights listed in Article 12 correspond to the essence of the violated intangible right and to the consequences of such violation (Article 150). 45. If certain actions impairing an individual’s personal non-property rights or encroaching on other intangible assets have caused him or her non-pecuniary damage (physical or mental suffering), the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage. The amount of compensation is determined by reference to the gravity of the perpetrator’s fault and other significant circumstances. The court also takes into account the extent of physical or mental suffering in relation to the victim’s individual characteristics (Article 151). 46. Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article 1064 §§ 1, 2). 47. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069). Irrespective of any fault by State officials, the State or regional treasury are liable for damage sustained by a citizen on account of (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure, and (iii) unlawful administrative punishment (Article 1070). 48. Compensation for non-pecuniary damage is effected in accordance with Article 151 of the Civil Code and is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated for if the damage was caused (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment, and (iii) through dissemination of information which was damaging to honour, dignity or reputation (Article 1100). 49. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail, house arrest and detention on remand (Article 98). 50. Placement in custody may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108). A court may order detention on remand if there are sufficient reasons to believe that the suspect might abscond, re-offend or threaten a witness, destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case (Article 97). The circumstances to be taken into account when imposing a preventive measure include, apart from those specified in Article 97, the seriousness of the charges and the suspect’s personality, age, health, family status, occupation and other circumstances (Article 98). 51. After arrest, the suspect is placed in custody “pending investigation”. The maximum permitted period of detention “pending investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). 52. On 29 October 2009 the Plenary Supreme Court of the Russian Federation adopted Ruling no. 22 governing the application of preventive measures, including placement of custody, bail and house arrest. It provided in particular that detention on remand may be ordered only if it is impossible to impose a more lenient preventive measure (point 2). When examining an application for a detention order, the courts were required to assess the existence of a reasonable suspicion that the person concerned had been involved in the commission of the offence (point 19). When issuing further extension orders, courts were to specify concrete facts justifying the continued detention and the supporting evidence (point 21). In addition, the courts had to explain why it was not possible to apply a more lenient measure (point 26). 53. The information submitted by the Government and the statistical data available on the website of the Judicial Department of the Supreme Court (www.cdep.ru) show the number of cases in which first-instance courts granted prosecutors’ applications for an initial detention order or for its extension, and the total number of individuals convicted or acquitted at first instance (excluding the cases that were discontinued and did not end in either a conviction or an acquittal) during the reference year: 54. By Resolution no. 540 of 5 September 2006, the Russian Government approved a federal expenditure programme under the title “Development of the Criminal Justice and Penitentiary System in 2007-2016”. As amended by subsequent Government Resolutions, the programme description reads as follows: “The contemporary criminal justice and penitentiary system is a complex of institutions and organs that enforces various types of penalties. It comprises 1,060 institutions, including 844 correctional facilities, 7 prisons and 209 remand prisons. At present more than 812,000 individuals are being held in those institutions. The number of suspects and defendants who were remanded in custody and are held in remand prisons (hereinafter – “untried prisoners”) and the number of convicted defendants in correctional facilities (hereinafter – “convicted prisoners”) do not depend on the functioning of the Federal Penitentiary Service and are chiefly determined by the level of crime in the country and the judicial practice. ... Pursuant to the requirements of the Russian Federation’s laws, untried and convicted prisoners must be allocated to cells, taking into account their character and psychological compatibility, as well as their gender and age... The sanitary norm is four square metres of floor space per untried prisoner. As a consequence of construction and renovation work carried out in remand prisons in the framework of the federal expenditure programme ‘Reform of the penitentiary system in 2002-2006’, the number of places in remand prisons in which the conditions of detention are compatible with the requirements of Russian laws will reach 94.4% by the end of 2006. The federal expenditure programme ‘Development of the Criminal Justice and Penitentiary System in 2007-2016’ (hereinafter – “the Programme”) will be a logical continuation of this work. At present only the facilities in forty Russian regions are actually capable of providing accommodation that is compatible with the sanitary norm of floor space per inmate. It follows that the remand prison population exceeds the established prison capacity, and in certain regions it does so to a significant extent. In twenty Russian regions the sanitary norm of cell surface per detainee is less than four square metres, in eighteen regions (Altay, Tyva, Sakha (Yakutiya), Chuvash and Udmurt Republics, Krasnodar, Perm, Khabarovsk, Astrakhan, Kaluga, Kostroma, Kurgan, Moscow, Novosibirsk, Sverdlovsk, Smolensk, Tomsk and Tula Regions) it is less than three square metres, which is a violation of the rights of untried prisoners. Three Russian regions (Khakassiya Republic, Yevreyskiy and Yamalo-Nenetskiy Regions) have no remand prisons, which leads to various excesses in enforcing custodial measures and carrying out investigative acts. A majority of remand prisons are located in old buildings. In recent years, constructions have collapsed in remand prisons of the Astrakhan, Magadan, Moscow, Tambov, Chita and other regions owing to their unsatisfactory condition. It is now being debated whether twelve remand prisons (Dagestan, Karelia and Chuvash Republics, Astrakhan, Belgorod, Vologda, Voronezh, Kamchatka, Kostroma, Sverdlovsk, Tambov and Tula Regions) should be put out of operation... Since Russia acceded to the Council of Europe in 1996 and ratified the European Convention on Human Rights in 1998, it has become an urgent objective to bring the penitentiary system into compliance with the Council of Europe’s legal standards, which have significantly evolved in recent years with respect to prison management and treatment of detainees... Taking into account the fact that the minimum sanitary norm per detainee is set by the [Committee for the Prevention of Torture, “CPT”] at seven square metres, the European Court refers in its judgments to this approximate standard for prisoners’ accommodation. The Council of Europe’s commentary on the European Prison Rules gives reasons to believe that the [CPT] will set the sanitary norm per inmate in the range of nine or ten square metres. At present the sanitary norm per inmate meets the international standard only in three remand prisons (Dagestan and Kalmykiya Republics, Kamchatka Region); however, two of them (Dagestan and Kamchatka) are under threat of collapse and will have to be closed... The Programme’s objective is to bring the conditions of detention of untried and convicted prisoners in line with Russian laws with a view to attaining international standards for the detention of defendants in remand prisons. The Programme’s goals are: reconstruction and construction of remand prisons in which the conditions of detention of untried prisoners are compatible with Russian laws... construction of twenty-six remand prisons, in which the conditions of detention are compatible with international standards. The most important targets of the Programme are [Annex 1]: In 2007-2009, the construction of seven new remand prisons will be completed; they will offer conditions of detention compatible with Russian standards. In addition, the construction of thirty-two remand prisons that has begun in the framework of the 2002-2006 federal expenditure programme, is about to be completed. Starting from 2010, the conditions of detention in ninety-seven old-style remand prisons will be brought into compliance with Russian laws. New-style remand prisons are being built in twenty-four Russian regions (Dagestan, Karelia, Tyva, Khakassiya and Chuvash Republics, Krasnodar, Perm, Stavropol, Astrakhan, Vladimir, Voronezh, Kamchatka, Kemerovo, Kostroma, Moscow, Novosibirsk, Samara, Leningrad, Sverdlovsk, Tomsk, Tula, Chita, Yamalo-Nenetskiy and Yevreyskiy Regions, St Petersburg). The conditions of detention in those facilities will meet the international standards (sanitary norm of seven square metres per detainee). By 2017 the total number of remand prisons – taking into account the fact that twelve prisons will probably be closed – will grow to 230. The conditions of detention will be compatible with Russian laws, and in 26 prisons also with international standards... Resources will be allocated to the Programme at the expense of the federal budget. The total amount of the financing represents 54,588,200,000 roubles [approximately 1,350,000,000 euros]...” 55. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation... 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time. 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness... 19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. 20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. (2) Drinking water shall be available to every prisoner whenever he needs it. 21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. 45... (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited...” 56. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...” “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...” “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis...” 57. On 30 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation, which provides in particular as follows: “Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions; Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation, priorities in crime control, the range of penalties available on the law books, the severity of the sentences imposed, the frequency of use of community sanctions and measures, the use of pre-trial detention, the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment... Recommends that governments of member states: - take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the appendix to this recommendation... I. Basic principles 1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only, where the seriousness of the offence would make any other sanction or measure clearly inadequate. 2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity... II. Coping with a shortage of prison places 6. In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set. 7. Where conditions of overcrowding occur, special emphasis should be placed on the precepts of human dignity, the commitment of prison administrations to apply humane and positive treatment, the full recognition of staff roles and effective modem management approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hygiene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners’ health care and to the opportunity for outdoor exercise. 8. In order to counteract some of the negative consequences of prison overcrowding, contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made... III. Measures relating to the pre-trial stage Avoiding criminal proceedings - Reducing recourse to pre-trial detention 10. Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R (87) 18 concerning the simplification of criminal justice, this would involve in particular that member states, while taking into account their own constitutional principles or legal tradition, resort to the principle of discretionary prosecution (or measures having the same purpose) and make use of simplified procedures and out-of court settlements as alternatives to prosecution in suitable cases, in order to avoid full criminal proceedings. 11. The application of pre-trial detention and its length should be reduced to the minimum compatible with the interests of justice. To this effect, member states should ensure that their law and practice are in conformity with the relevant provisions of the European Convention on Human Rights and the case-law of its control organs, and be guided by the principles set out in Recommendation No R (80) 11 concerning custody pending trial, in particular as regards the grounds on which pre trial detention can be ordered. 12. The widest possible use should be made of alternatives to pre-trial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorisation, the provision of bail or supervision and assistance by an agency specified by the judicial authority. In this connection attention should be paid to the possibilities tor supervising a requirement to remain in a specified place through electronic surveillance devices. 13. In order to assist the efficient and humane use of pre-trial detention, adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed, as necessary.” 58. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules lay down the following guidelines: “1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ... 10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.” “18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2. In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons. 18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation. 19.3. Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy. 19.4. Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene. 22.1. Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work. 22.4. There shall be three meals a day with reasonable intervals between them. 22.5. Clean drinking water shall be available to prisoners at all times. 27.1. Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. 27.2. When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.” 59. On 4 June 2003 the Committee of Ministers of the Council of Europe adopted Interim Resolution CM/ResDH(2003)123 concerning the Court’s judgment in the Kalashnikov v. Russia case of 15 July 2002, final on 15 October 2002. It read in particular as follows: “Noting that the general measures required by the present judgment are closely connected to the ongoing reform of the Russian Federation’s criminal policy and the penitentiary system and welcoming progress achieved so far in this respect; Noting in particular with satisfaction the significant decrease of the overcrowding in pre-trial detention facilities (SIZOs) and the ensuing improvement of sanitary conditions, as demonstrated by the recent statistics submitted to the Committee by the Russian authorities []; Considering however that further measures are required in this field to remedy the structural problems highlighted by the present judgment; Stressing in particular the importance of prompt action by the authorities to remedy the overcrowding in those SIZOs where this problem still remains (57 out of the 89 Russian regions) and to align the sanitary conditions of detention on the requirements of the Convention, CALLS UPON the Russian authorities to continue and enhance the ongoing reforms with a view to aligning the conditions of all pre-trial detention on the requirements of the Convention, particularly as set out in the Kalashnikov judgment, so as effectively to prevent new, similar violations...” 60. On 4 March 2010 the Committee of Ministers adopted Interim Resolution CM/ResDH(2010)35 on the execution of the thirty-one judgments against Russia mainly concerning conditions of detention in remand prisons. It provided in particular as follows: “Having regard to the judgments in which the Court has found violations of Article 3 of the Convention in respect of the conditions under which the applicants were detained in remand prisons (SIZOs) which amounted to degrading treatment due, in particular, to the severe lack of personal space or to the combination of the space factor with other deficiencies of the physical detention conditions such as the impossibility of using the toilet in private, lack of ventilation, lack of access to natural light and fresh air, inadequate heating arrangements, and non-compliance with basic sanitary requirements; Recalling further that in a number of judgments the Court found violations of Article 5 due to the unlawful detention of the applicants, its excessive length in the absence of relevant and sufficient grounds for prolonged detention and the lack of effective judicial review of the lawfulness of detention; Recalling finally that the Court also found violations of Article 13 of the Convention due to the lack of an effective domestic remedy in respect of conditions of detention on remand; Recalling that the existence of structural problems and the pressing need for comprehensive general measures were stressed by the Committee and acknowledged by the Russian authorities since the adoption by the Court of the judgment in the case of Kalashnikov against Russia in 2002... As regards material conditions of detention: ... Recalling that... the creation of new places of detention cannot in itself provide a lasting solution to the problem of prison overcrowding, and that this measure should be closely supported by others aimed at reducing the overall number of remand prisoners; Noting with satisfaction in this respect the Russian authorities’ position that there should be an integrated approach to finding solutions to the problem of overcrowding in remand prisons, including in particular changes to the legal framework, practices and attitudes; As regards the number of remand prisoners: Recalling the constant position of the Committee of Ministers that, in view both of presumption of innocence and the presumption in favour of liberty, remand in custody shall be the exception rather than the norm and only a measure of last resort, and that to avoid inappropriate use of remand in custody the widest possible range of alternative, less restrictive measures shall be made available; Noting the repeated statements by the President of the Russian Federation and high-ranked officials, including the Prosecutor General and the Minister of Justice, that thousands of persons detained on remand – up to 30 % of those currently detained – should not have been deprived of their liberty, being suspected or accused of offences of low or medium gravity; Welcoming the unambiguous commitment, renewed at the highest political level, to change this unacceptable situation and to adopt urgent legislative and other measures to that effect... Noting that the statistical data provided demonstrates a slight but constant decrease in the overall number of remand prisoners; Further noting that the statistics nonetheless demonstrate wider yet still limited recourse to alternative preventive measures by the Russian courts, prosecutors and investigators... As regards remedies in respect of conditions of detention on remand: Recalling the Court’s consistent position that available remedies are considered effective if they could have prevented violations from occurring or continuing, or could have afforded the applicant appropriate redress; Noting that the statistics and several cases presented to the Committee demonstrate a developing practice before domestic courts on compensation for non-pecuniary damage sustained in relation to poor conditions of detention in remand prisons; Noting further that in view of the problems at issue, any compensatory remedy should as far as possible be supplemented by other remedies capable of preventing violations of Article 3 of the Convention; Noting in this respect information on the avenues provided by Russian legislation to address the violations of Article 3 at issue; Noting in particular the provisions of Chapter 25 of the Code of Civil Procedure and the Ruling of the Supreme Court of Russia of 10 February 2009 providing the possibility to challenge before courts acts or inaction of remand prison administrations concerning improper detention conditions; Considering however that the effectiveness of this remedy in particular with regard to overcrowding, has not yet been demonstrated; ENCOURAGES the Russian authorities to pursue the ongoing reforms with a view to aligning the conditions of detention in remand prisons with the requirements of the Convention, taking also into account the relevant standards and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, EXPRESSES CONCERN that notwithstanding the measures adopted, a number of remand prisons in Russia still do not afford the personal space guaranteed by domestic legislation, and remain overpopulated; STRONGLY ENCOURAGES the Russian authorities to give priority to reforms aiming at reducing the number of persons detained on remand and to other measures combating the overcrowding of remand facilities by • ensuring that judges, prosecutors and investigators consider and use detention on remand as a solution of last resort and make wider use of alternative preventive measures; • ensuring the availability at the national level of effective preventive and compensatory remedies allowing adequate and sufficient redress for any violation of Article 3 resulting from poor conditions of detention on remand...” 61. On 22 October 2009 the Court adopted pilot judgments in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05), in which it found under Article 46 of the Convention that, for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish remand centres had revealed a structural problem consisting of a “practice that [was] incompatible with the Convention” (see § 151 and §§ 155-156, respectively). 62. On 9 October 2009 the Polish Parliament enacted a law amending the Code of Execution of Criminal Sentences which entered into force on 6 December 2009. It introduced a number of new rules governing temporary placement of detainees in cells below the statutory norm of three square metres per inmate. 63. A new provision lists the emergency situations in which the prison governor may place a detainee for a specified period not longer than ninety days in a cell in which the area per inmate will be less than three square metres but not less than two square metres. The situations include the introduction of martial law, natural disasters, epidemics, and a threat to prison security (Article 110 § 2b). It also defines the categories of prisoners who may be held in such conditions for a period not exceeding fourteen days: recidivists, sexual offenders, escapees, temporary transfers from other prisons, etc. (§ 2c). An appeal against the governor’s decision lies with a penitentiary judge (§ 2d). Detainees who have been placed in a cell with restricted personal space shall be assured an additional half-hour of daily walks and a wider range of out-of-cell cultural, educational and sports activities (§ 2h). 64. On 17 March 2010 the Polish Supreme Court allowed a cassation appeal by a prisoner against the dismissal of his claim for compensation in respect of an infringement of his personal rights on account of severe prison overcrowding (sixteen inmates in a cell designed for eleven persons). The Supreme Court reiterated that the right to be detained in conditions respecting one’s dignity belonged to the catalogue of personal rights and that the State treasury should be liable for an infringement of such rights. It determined that the prison authorities had failed to show the existence of a “particularly justified case” for placement of detainees in an already overcrowded facility and in that way had acted unlawfully. 65. On 12 October 2010 the Court issued admissibility decisions in the cases of Łatak v. Poland (no. 52070/08) and Łomiński v. Poland (no. 33502/09) in the framework of the pilot-judgment procedure. It re-examined the applicants’ situation in the light of the above-mentioned developments at domestic level and found that the Supreme Court’s judgment of 17 March 2010 constituted a material element which was indispensable for the consolidation of the previous practice of civil courts in cases concerning claims for compensation on account of prison overcrowding (Łatak, § 80). Accordingly, the applicants were required to seek redress at domestic level and bring a civil action for compensation before Polish courts (ibid., § 81) and their applications to the Court were inadmissible for non-exhaustion of domestic remedies (§ 82). The Court also noted that the amended Article 110 § 2 of the Code of Execution of Criminal Sentences provided detainees with a new legal means for contesting the governor’s decision to reduce the available cell space. It could not therefore be excluded that applicants would be required to make use of the new complaints system before applying to the Court (§ 87).

dev

001-106159

ENG

MDA

ADMISSIBILITY

CASE OF GALUSCHIN v. MOLDOVA

Inadmissible

Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

1. The applicant was born in 1975 and lives in Brăneşti. He was represented before the Court by Mr S. Burduja, a lawyer practicing in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 2. The applicant was charged with indecent acts committed on a fiveyear old girl, following a report made by her mother on 7 April 2003. On 30 October 2003 the Criuleni District Court acquitted him of all charges, finding that there had been no evidence that he had committed an offence. The court noted that the girl’s mother had testified before it that she had had a dispute with the applicant on the morning in question and had filed the complaint against him in revenge, and not because he had in fact committed any offence. She had also coached her daughter on how to testify in order to incriminate the applicant. However, the court noted that both mother and daughter had later withdrawn their statements. 3. The judgment was upheld by the Chişinău Court of Appeal on 26 February 2004. The court noted the discrepancies between the statements made on 7 April 2003 by the child and her mother and the subsequent change to their statements. It also noted that a psychiatric report on the girl had shown that she was prone to adult influence, while the testimony given by the girl to the investigating authority had ended after a teacher assisting the girl had noted her difficulty in formulating phrases and logically explaining her thoughts, which had made the continuation of the interview pointless. Statements made by two witnesses during the investigation had confirmed the girl’s tendency to be influenced by adults, but the prosecutor had not asked for their presence at the court hearing and they had therefore not been able to be questioned about their statements. 4. On 1 June 2004 the Supreme Court of Justice quashed the judgment of 26 February 2004 and ordered a rehearing of the case by the Chişinău Court of Appeal. The reason for the rehearing was that the lower court had failed to directly examine all the relevant evidence, such as hearing from the victim, her representative and other witnesses, but rather had simply relied on the documents in the case file. 5. The victim and her mother were summoned to the hearing at the Chişinău Court of Appeal on 22 September 2004, but they did not appear. In the meantime, on 9 September 2004, the mother sent a letter to the court stating that she fully supported her statements and those made by her child during the investigation. She did not ask for the case to be tried in her absence. 6. On 22 September 2004 the Chişinău Court of Appeal found the applicant guilty of the crime with which he had been charged. The applicant was absent from the hearing, even though he had been summoned to attend it. He claims that he never received the summons. A court-appointed defence lawyer was present. 7. The court did not hear any witnesses, including the girl and her mother. After the applicant’s conviction, the mother wrote to the Supreme Court of Justice stating that she had never received a summons for the hearing of 22 September 2004 and that she withdrew her declaration of 9 September 2004. The applicant claimed that the letter of 9 September 2004 had been written by someone else, because the mother could not write in Latin script, yet the letter had been written in Latin script. No expert report to verify whether she had written the letter was ordered. 8. On 6 December 2004 the lawyer appointed by the applicant lodged an appeal on points of law. In his appeal, the lawyer drew the court’s attention to the reason for which the Supreme Court of Justice had sent the case for a rehearing on 1 June 2004, namely the failure of the Court of Appeal to directly examine all the evidence. However, that court had allowed the same irregularity to occur in convicting the applicant. He also submitted that the absence of the victim, the mother and other witnesses, as well as the applicant, from the court hearing of 22 September 2004 had prevented the defence from properly challenging the prosecutor’s evidence. The prosecutor had simply read out the statements made by various individuals during the investigation, and the court had ignored the statements made by the mother and daughter before the first-instance court rejecting their previously made statements. The lawyer questioned the authorship of the letter of 9 September 2004. He finally relied on Article 6 of the Convention. 9. On 1 February 2006 the Supreme Court of Justice upheld the judgment adopted by the lower court, finding that it had fully examined the case. The court referred to the same evidence as that examined by the Court of Appeal on 22 September 2004. The parties had been summoned but had failed to appear. However, their absence from the hearing had not prevented the court from continuing to examine the case. Moreover, the mother had signed a declaration in Latin script on 16 April 2003, which proved that she could write in that script and thus could have been the author of the letter of 9 September 2004. 10. On 12 June 2008 the applicant was conditionally released from prison, 17 months and 17 days before the expiry of his prison term. 11. After communication of the present application to the respondent Government, on 10 April 2009 the Prosecutor General’s Office asked the Supreme Court of Justice to reopen the proceedings in the applicant’s case. 12. On 11 May 2009 the Supreme Court of Justice accepted that request. It found that the Chişinău Court of Appeal and the Supreme Court of Justice in their judgments of 22 September 2004 and 1 February 2006 respectively had breached the applicant’s rights guaranteed under Article 6 of the Convention, as well as under domestic law, by failing to directly examine witnesses and evidence before overturning the first-instance court’s judgment. Moreover, they had examined the case in the applicant’s absence despite the absence of evidence that he had been properly summoned and all reasonable measures had been taken to ensure his presence in court, and had done so in the absence of a clear waiver of the applicant’s right to be heard by the courts. Moreover, the Court of Appeal had failed to follow the indications made by the Supreme Court of Justice in its decision of 1 June 2004, which had been aimed precisely at ensuring the observance of procedural rules and at preserving the rights of the accused to a fair trial. The court therefore annulled the judgments of 22 September 2004 and 1 February 2006 and ordered a rehearing of the case. 13. On 10 November 2009 the Chişinău Court of Appeal found the applicant guilty as charged. In reaching this conclusion, the court heard the applicant and his lawyer, the victim and her mother, as well as a teacher and has examined the psychiatric report made on the victim’s intellectual development. In view of the expiry of the limitation period for the offence he had committed, the court did not impose any sanction on the applicant. 14. By the final judgment of the Supreme Court of Justice adopted on 18 January 2011, the applicant’s appeal was declared inadmissible due to his failure to lodge it within the statutory time-limit of two months from the date of adoption of the lower court’s judgment. 15. The relevant domestic law has been set out in Popovici v. Moldova (nos. 289/04 and 41194/04, §§ 34 and 35, 27 November 2007). 16. In a series of its judgments, the Supreme Court of Justice awarded compensation to persons whose cases had been communicated to the respondent Government and in which the latter acknowledged a violation of Convention rights (see Ungureanu v. Moldova (dec.), no. 78077/01, 3 October 2006; Diviza and Others v. Moldova (dec.), no. 24316/02, 21 November 2006; Grosu and Others v. Moldova (dec.), no. 21118/03, 13 March 2007; Cumatrenco v. Moldova (dec.), no. 28209/03, 20 March 2007; and Guranda v. Moldova (dec.), no. 28412/03, 20 March 2007). In adopting these judgments, the Supreme Court of Justice expressly relied on the Convention as the legal basis for awarding compensation. The Court accepted that that the amounts awarded had been consistent with those it had made in similar cases in respect of Moldova and thus struck those cases out of its list of cases.

dev

001-81211

ENG

RUS

CHAMBER

CASE OF BITIYEVA AND X v. RUSSIA

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 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2-1 - Life;Article 2 - Right to life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

Christos Rozakis

7. The first applicant was born in 1948 and lived in the village of Kalinovskaya, Naurskiy District, Chechnya. She was killed on 21 May 2003 in her house, along with three other members of her family. The second applicant is the first applicant's daughter. She was born in 1976 and currently resides in Germany, where she sought asylum. 8. The facts of the case are partly disputed by the parties. In view of that, the Court requested the Government to submit copies of certain documents in relation to the applicants' complaints. The submissions of the parties are summarised below in Part A. A summary of the documents submitted by the Government is set out in Part B and a summary of other relevant documents in Part C below. 9. The first applicant lived in the village of Kalinovskaya in the Naurskiy District in Chechnya, together with her husband, Ramzan Iduyev, and her children, Idris Iduyev, I. and X (the second applicant). 10. The first applicant was an active political figure in the Republic and participated in anti-war protests. From 1994 to 1996 she worked with the Russian NGO Committee of Soldiers' Mothers. 11. The applicants submitted that on 24 January 2000 Russian soldiers had entered the first applicant's house to conduct a passport check. The first applicant and her son Idris Iduyev explained that their passports had been submitted to the local authority for renewal. This explanation had apparently been accepted and the soldiers had left. 12. On 25 January 2000 at about 6 a.m. about 20 men in military uniforms, some wearing balaclava masks, entered the house. Four men, apparently the same ones who had been in the house the previous day, said that they were carrying out a passport check and ordered the first applicant, whom they had addressed by name, to go with them to the local police department to find out about her passport. The first applicant's son Idris Iduyev was also ordered to go. 13. The first applicant and her son were taken to the Naurskiy District Temporary Department of the Interior (VOVD). After about two hours they were transferred to the Chernokozovo detention facility, where the first applicant and her son were separated. 14. The first applicant submitted that upon arrival in Chernokozovo she had been forced to watch other detainees being ill-treated. About 60 men were made to run naked, with their clothes folded in their arms, along a corridor about 50 metres long while the soldiers beat them. 15. The first applicant was forced to stand with her face to the wall, with her hands raised against the wall until the evening. The hall was unheated, with broken windows, and it was very cold. She was not allowed to sit or lie down. In the evening she was taken to a cell. 16. Cell no. 2, where the first applicant was detained, was very small. It contained four metal beds and a toilet. Three to ten women were kept there at different times, and sometimes the detainees had to sleep in turns. The cell was very dirty and the stench from the toilet was unbearable. Once a day the detainees were given four litres of water per cell and one bowl of food for three persons in dirty crockery. 17. During her detention the first applicant was humiliated constantly as a woman and as a person of Chechen origin. The guards told her that she would not leave the place alive, that she would go insane or kill herself. The applicant was pushed and hit with rifle butts on many occasions. On one occasion, around 3 February 2000, the guards sprayed gas into each cell, causing the detainees to cough. 18. Other inmates in the cell, according to her submissions, included sick persons and children. The applicant witnessed other detainees being beaten and humiliated by the guards. Sometimes she could hear her son's screams while he was being beaten in the corridor in front of her cell. 19. The first applicant was called for questioning about four times during her stay. The person questioning her did not state his name or rank and asked questions of a general character. The applicant was asked about her name and where she was from, to which clan she belonged, if she was a Muslim and if she prayed. She was also asked questions about the “peace march” to Moscow in which she had participated and who had financed it. 20. The first applicant, who suffered from cholecystitis and heart failure, was denied professional medical help while in detention. Her medical condition deteriorated rapidly. On one occasion she fainted in the corridor and the guards only allowed other women inmates to carry her into the cell after half an hour. 21. The second applicant submitted that she had brought food and medicines to her mother and brother in detention in Chernokozovo, but that little had reached them, as the soldiers had taken most of it. 22. In support of the first applicant's submissions as to the conditions of detention in Chernokozovo the applicants submitted a statement by Sh., who had been detained in the same cell as the first applicant in January and February 2000. She confirmed the first applicant's submissions concerning the conditions of detention, the beatings of other detainees and the applicant's health problems. 23. In addition, the applicants submitted press and NGO reports about the situation in the Chernokozovo detention facility at the end of 1999 and the beginning of 2000, which described the intolerable conditions of detention and the widespread torture and ill-treatment of detainees, together with relevant Council of Europe documents (see Part C below). 24. In their observations the Government submitted that the first applicant and her son Idris Iduyev had been detained on 25 January 2000 on the basis of the Presidential Decree of 2 November 1993 (no. 1815) on measures aimed at prevention of vagrancy, and placed in the reception and identification centre (приемник-распределитель) in Chernokozovo, which had operated from November 1999 to February 2000. The first applicant had remained there until 17 February 2000, when her identity had been established and she had been transferred to a hospital in view of the deterioration of her health. The Government submitted some documents relevant to the first applicant's detention (see Part B below). 25. As to the status of the Chernokozovo detention facility, in December 2005 the Government submitted that there were no documents available about the legal status of the institution prior to 8 February 2000, but that the premises of the former high-security wing of correctional facility IS-36/2 (помещение бывшего штрафного изолятора исправительной колонии ИС-36/2) had been used as a reception and identification centre. According to the Government, on 8 February 2000 the Minister of Justice had issued orders for a pre-trial detention centre (“SIZO”) to be set up and for responsibility for the institution to be transferred to the Ministry of Justice of Chechnya. 26. At the same time the Government submitted a copy of the order issued by the Minister of Justice on 8 August 2000 (no. 229), by which responsibility for pre-trial detention centre IZ-4/2 in Chernokozovo had been transferred from the Ministry of Justice of Kabardino-Balkaria to the Ministry of Justice of Chechnya. The institution was designated as “IZ-14/2”. Its capacity was established at 150 persons. (Documents issued by the pre-trial detention centre in 2004 and 2005 referred to it as “IZ-20/2”.) 27. The first applicant was transferred to the district hospital in Naurskaya on 17 February 2000. According to the second applicant's statement, her mother was unconscious and the doctors insisted that she should be taken to the hospital for intensive care. The first applicant submitted that in the hospital she had been guarded by the military for another few weeks. 28. The first applicant submitted that in mid-March 2000 she had been visited in the hospital by the Naurskiy District Prosecutor, who had told her that she had been cleared of charges. 29. The first applicant was issued with a certificate by the head of the Naurskiy VOVD, dated 2 March 2000, which stated that “from 25 January to 26 February 2000 the criminal police of the Naurskiy VOVD investigated on the basis of incriminating materials [the first applicant's] participation and involvement in illegal armed groups in Chechnya. No incriminating material was found.” 30. The first applicant was discharged from the hospital on 15 March 2000. The second applicant submitted that she had remained very weak and spent another month in bed. She had lost a significant amount of weight, and her arms and head had trembled. 31. The first applicant's son, Idris Iduyev, was released from Chernokozovo on 26 February 2000. The second applicant submitted that he had likewise suffered beatings and ill-treatment while in detention. No medical documents were submitted to substantiate this. 32. Neither the first applicant nor her son Idris Iduyev was charged with any crime in relation to their detention. 33. The Government submitted that the first applicant had been admitted to Naurskiy District Hospital on 17 February 2000 and diagnosed with “bronchopneumonia on both sides and cardiac-type neurocirculatory dystonia with asthmatic syndrome”. She had undergone a number of complex examinations, but no injuries or traces of beatings had been recorded. After release neither the first applicant nor her son had filed complaints with the prosecutor's office about alleged ill-treatment while in detention. 34. The Government further stated that it was impossible to identify the persons who had worked at the reception and identification centre at the relevant time or to obtain copies of documents, in view of the absence of any archives. A check carried out by the Naurskiy District Prosecutor's Office resulted on 27 January 2005 in a decision not to open a criminal investigation. Later this decision was reversed (see Part B below). 35. The applicants submitted a number of NGO and media reports relating to the situation in Chernokozovo at the material time. In particular, they referred to a Human Rights Watch report of October 2000 entitled “Welcome to Hell: Arbitrary Detention, Torture and Extortion in Chechnya”. The report contained a special section on the Chernokozovo detention centre in January and early February 2000 based on interviews with former inmates. The report presented a picture of systematic abuse and ill-treatment of detainees, compounded with sordid conditions of detention. It called upon the Russian authorities to investigate fully the events in Chernokozovo in January and February 2000 to ensure prosecution of those responsible for the abuses and to grant compensation to the victims. 36. On 24 March 2000 the NGO Memorial contacted the Prosecutor General following a publication in Itogi magazine about “filtration points” for persons whom the federal authorities had suspected of being linked to illegal armed groups. The article and accompanying pictures described the harsh conditions of detention at a filtration point in Tolstoy-Yurt, near Grozny. It also spoke of abuse and ill-treatment in Chernokozovo. On 24 March 2000 the prosecutor of the Grozny District responded to Memorial, confirming that from 2 to 12 February 2000 a “filtration point” had indeed been set up in the village of Tolstoy-Yurt. He stated that in the period in question 356 persons had been detained there. Of these, 141 persons had been charged with the offence of participating in illegal armed groups, detained on the basis of a prosecutor's order and transferred to the Chernokozovo pre-trial detention centre (SIZO). All others had been released. The legality of their detention had been supervised by the relevant prosecutors and the detainees had been provided with sleeping facilities, food and medical assistance. 37. The second applicant submitted three statements by witnesses to the events: her brother I. and two neighbours, M. and G. According to these statements, on 21 May 2003 the first applicant, her husband Ramzan Iduyev (the second applicant's father), their son Idris Iduyev (the second applicant's brother) and the first applicant's brother Abubakar Bitiyev (the second applicant's uncle) spent the night at the first applicant's house at 7 Filatova Street in Kalinovskaya. The first applicant's other son, I., was sleeping in a separate house in the same courtyard, and his one-year old son was in the house with the first applicant, his grandmother. 38. At around 3 a.m. two UAZ-45 cars without registration plates, equipped with large aerials, arrived at the house next door to the first applicant's house. Several men entered the house very quietly, so the owner of the house, D., did not hear them enter. They woke D. up and gagged her with adhesive tape. Then they demanded her passport. One of them looked at the photograph and told the others in Russian “This is not her”. They then left, having warned the inhabitants to be quiet for ten minutes. They took the passport along with them. D. later found her passport in the first applicant's house. 39. The group arrived at the first applicant's house at about 3.30 a.m. Eleven persons entered the first applicant's house; a few others, armed with grenade-launchers and machine guns, gathered in the street around the house. They were all tall and well-built and were wearing camouflage which the witnesses identified as the uniform of the special forces. Four of them were masked; others were wearing black helmets covering their necks and ears. The men who entered the house were armed with AK-7.62 guns. After a few minutes a neighbour heard six or seven sounds of muffled blows, which he at first mistook for knocking at the gates. He then realised it had been the sound of shooting. 40. I., the first applicant's son, testified that he had heard noise and a scream at the neighbours' at about 3.30 a.m. He thought that it was probably a special operation, something that happened regularly in the village. He dressed very quickly and looked outside. He noticed several men in camouflage and “special forces helmets” jumping into the courtyard across the fence. The witness guessed that they would not immediately break into the house and noted that they had first taken up combat positions around the door. He rushed into the room and covered his bed with a blanket, then hid behind an armchair. As soon as he did so, several men ran into the house and spread into the rooms. One of them said “There is no one here”, and another one said “Take the video”. They spoke Russian and did not mention any names or ranks when addressing each other. In two or three minutes they left, having taken the video player. The second applicant's brother heard the dog barking and some noise outside. Then he heard about 10 shots being fired very rapidly. About five minutes later he heard them shouting “Come on, let's leave, quick”, and then the sound of the cars leaving. 41. The neighbours saw two UAZ cars leave towards the main road to Grozny. 42. I. waited a few more minutes and went outside. He saw three women in the street and was very surprised that his mother had not come out, because usually she was very active and intervened when someone had been detained in the village. He noticed that the door of his parents' house was ajar and thought that his whole family had been taken away. When he entered the house he noticed his mother lying on the floor. A female neighbour entered and he gave her his one-year-old son, who was crying in his bed, and asked her to take him out. 43. He then returned to the room and turned on the light. He found the first applicant on the floor, lying on her back. Her mouth was covered with adhesive tape and her hands were bound together with the same tape. She had been shot in the face and in the hands. I. later counted three bullet holes in the floor, from an AK-7.62 machine gun. 44. Then he went into the corridor and found the body of his uncle, Abubakar Bitiyev. The neighbour M. submitted that there was a black hood with strings on his head, used by the military when they detained people. His hands and feet were taped together. He had been shot three times in the back of his head. I. testified that his uncle had been sleeping that night in a separate house in the same courtyard and that the killers must have brought him to the first applicant's house by force because the furniture in that house had been smashed. 45. In the living room they found the body of the first applicant's husband, Ramzan Iduyev. He was lying on the floor near the sofa, and his hands and legs were taped together. He had been shot in the back of his head. A roll of adhesive tape was lying near his body. In the bedroom on the floor they found the body of the first applicant's son, Idris Iduyev, with his hands taped behind his back and his legs taped together. He had also been shot three times in the back of his head. 46. In the morning the villagers learnt that on the same night two other men had been killed, apparently by the same group. A.G.'s house at Oktyabrskaya Street had been raided at about 2 a.m.; his wife, who had opened the door, had been gagged and her hands and feet bound with tape. Once she had managed to free herself, she had found her husband's body with bullet wounds to the head. At about 3 a.m. the group had raided the house of T.I. in Kooperativnaya Street. His wife and mother had been bound up with adhesive tape and the owner of the house had been taken out by men identified by the witnesses as “military”. T.I.'s body, with his hands bound in front of the body with adhesive tape, was found by his relatives later that night in the vegetable patch at the house with four or five bullet holes in the head and shoulder. 47. Once I. discovered the bodies he ran into the courtyard screaming for help. In response to his cries neighbours came and one of them went to call the local police. The police came in the morning, at least two hours later. At about 11 a.m. scene of crime experts arrived from the district's administrative centre in Naurskaya, photographed the bodies and collected the cartridges. 48. On 21 May 2003 the relatives washed and buried the bodies. The second applicant submitted that the experts had not asked them to postpone the burials or to allow an autopsy. 49. The witnesses submitted that some villagers had asked the military at the roadblocks surrounding the village who had come that night and why they had been allowed to pass through to Kalinovskaya and back. They were apparently told that this had been a military group with a “special mission” permit. They also alleged that similar information had been given to the local police and that was why they had not interfered. 50. On 21 May 2003 the Naurskiy District Prosecutor's Office opened criminal investigation no. 48023 under Article 105, part 2 (a) and (g), of the Criminal Code (killing of two or more persons with aggravating circumstances). 51. On 26 May 2003 the NGO Memorial issued a press release entitled “Political Crime in Kalinovskaya”. It reported the killing of the first applicant and her family and linked it to the first applicant's complaint to the European Court of Human Rights. It also referred to the pending criminal proceedings against the first applicant's brother and son, Abubakar Bitiyev and Idris Iduyev, for possession of illegal drugs for non-commercial purposes. The document reported that the first applicant had insisted that the proceedings had been contrived in retribution for her active position in relation to the crimes committed by the military, including a request to investigate a mass burial discovered in the Naurskiy District in February 2003. 52. On 31 July 2003 the Court, acting under Rule 40 of the Rules of Court, informed the Russian Government about the application lodged by the first applicant and about her killing and that of her family members, on the basis of information received from the applicants' representatives. 53. On 12 August 2003 Memorial contacted the Prosecutor General with an inquiry about the killings in Kalinovskaya. In October 2003 the Prosecutor General's Office replied that their letter had been forwarded to the Chechnya Prosecutor's Office. 54. In November 2003 the second applicant contacted the Naurskiy District Prosecutor's Office with a request to grant her victim status in criminal case no. 48023. She received no answer to this letter. 55. The Government in their observations submitted additional information about the investigation into the killings. According to them, on 21 May 2003 the investigators examined the site of the crime and collected evidence. The relatives of the deceased refused to submit the bodies for forensic examination. In view of that, the forensic experts' reports had been carried out on the basis of medical documents. They confirmed the presence of gunshot wounds, which had caused the deaths. A ballistic expert report was also carried out. 56. According to the Government, on 21 May 2003 the investigation questioned eight relatives and neighbours of the persons who had been killed. They also questioned 20 servicemen of the law-enforcement bodies. In June 2003 the investigation questioned I. and the first applicant's brother B., who were both granted victim status. Additional questioning of the witnesses and victims took place in May and July 2005. In July 2003 and April 2005 the investigation questioned and granted victim status to the relatives of A.G. and T.I. The second applicant had never applied to the prosecutors in relation to the killings of her family members. Thus, a decision to grant her victim status was only taken on 15 December 2005, but it was not announced to her, in view of her absence from her place of residence. 57. According to the Government, the investigation established that on 21 May 2003 between 3.30 and 4 a.m. a group of unidentified men wearing camouflage and masks and armed with automatic weapons had entered three houses in the village of Kalinovskaya and killed six persons, including the first applicant and three members of her family. The identities of the perpetrators were not established. The involvement of the special forces was not confirmed by the investigation. According to the information supplied by the United Group Alliance (UGA), no servicemen of the UGA had been involved on 20 and 21 May 2003 in any operations in the Naurskiy District. The investigation reviewed the log records of the vehicles belonging to the military units stationed in the district, which indicated that no vehicles had left their location on that night. The Federal Security Service also denied that they had carried out any operations in the district. 58. The investigation of criminal case no. 48023 was adjourned and reopened on several occasions. It failed to identify the perpetrators of the crimes. Following a request from the Court, the Government submitted a number of documents from the criminal investigation file in case no. 48023 (see below). 59. The second applicant submitted that she and her brother I. had been threatened and harassed by the military and law-enforcement bodies after the killing of the first applicant and her family. She submitted that about two months after the killings her brother had been detained by the military for some time, and that while in detention he had been beaten and ill-treated. Soon afterwards he had left without any notice and she had no information as to his whereabouts. 60. She also submitted that on an unspecified date in April 2004 her aunt (the first applicant's sister) had been visited in Grozny by officers of the Naurskiy District Prosecutor's Office, who had told her that they were looking for the second applicant. The woman told them that she did not know where the second applicant lived, because the latter had no permanent address. The prosecutors asked the second applicant's aunt questions about the complaint to the Court, who had applied and why the prosecutor's office had not been informed of this complaint. The second applicant submitted that her aunt had not been aware of the complaint and had replied that they had never applied to the Court. The prosecutors had asked her to sign some papers without disclosing their contents, or blank papers, but she had refused. 61. The second applicant also submitted that on 17 May 2004, while in the village of Kalinovskaya, she had been approached by a local policeman, an officer of the District Prosecutor's Office and their three guards. They had demanded that the applicant produce her internal passport and had taken it away. They had then asked her if she was aware of Article 222 of the Criminal Code (illegal possession of arms), where she kept her weapons, what she was doing in Grozny and in Kalinovskaya and what the price of arms was. The second applicant replied that she had nothing to do with weapons and that she did not have any. The second applicant submitted that when they had noticed her relative, a member of the security service, they had returned the passport to her, had said that they “just wanted to talk” and had left. 62. The second applicant submitted that her husband had divorced her because he and his relatives were afraid that they could have problems being associated with her. She felt intimidated and feared for her safety, security and life. 63. On 24 June 2004 the Court, acting under Rule 39 of the Rules of Court, requested the Russian Government to take all measures to ensure that there was no hindrance in any way of the effective exercise of the second applicant's right of individual petition as provided by Article 34 of the Convention. This measure was lifted on 20 October 2005. 64. The Government submitted that in response to the second applicant's complaint about intimidation, the Naurskiy District Prosecutor's Office had carried out an inquiry. The office had refused to open criminal proceedings, but later this decision had been reversed by the Chechnya Prosecutor's Office. Following a request from the Court, the Government submitted a number of documents relevant to these proceedings (see Part B below). 65. The second applicant submitted that on 14 July and on 2 September 2004 investigators from the District Prosecutor's Office had questioned her and obtained written explanations about the alleged intimidation. In July 2004 questioning had taken place at the Naurskiy District Prosecutor's Office and in September the investigator had visited her while she was working in a hospital in Grozny. 66. The second applicant submitted to the Court her own statement and a copy of the “explanation” obtained on 14 July 2004. She submitted that the investigator had assured her that she would be protected from further threats and that no one would bother her in the future. The applicant stated, however, that the questioning had concerned not only the incidents of harassment, but also some details about her complaint to the Court and about her lawyer. The investigator had warned her that she should submit correct information, otherwise she could be prosecuted for giving false statements. The second applicant submitted that the questioning had been an intimidating experience, because of the nature of the questions, because she had been pregnant at the time and had to take care of her two-year-old child and because her elderly relatives, who were present, had not been happy to learn that she had applied to Strasbourg, fearing for their lives and safety. The applicant also referred to the poor security situation overall, when any contact with representatives of the law-enforcement bodies was perceived by her and her family as a threat. 67. Following the decision on admissibility, the Court requested the Government to submit copies of a number of documents. In particular, the Government were requested to submit documents concerning the investigation into the first applicant's complaints of ill-treatment, documents specifying the legal status of the detention centre in Chernokozovo during the relevant period and documents relating to the first applicant's medical complaints and condition. The Court also requested the Government to submit a copy of the file on the criminal investigation opened into the murder of the first applicant and documents relating to the inquiry into the second applicant's allegations of harassment. In response, the Government submitted about 100 pages of relevant material. The Government stated that the submission of other related documents was impossible because they contained information about the location and actions of the military and special units and personal information about the participants in the proceedings. They referred to Article 161 of the Code of Criminal Procedure (CCP). 68. The relevant documents are summarised below. 69. In 2003 the temporary isolation facility of the Naurskiy District Department of the Interior (ROVD) informed the investigator from the District Prosecutor's Office that the first applicant had not been detained there between 1 and 31 January 2000. 70. On an unspecified date the head of the Chernokozovo SIZO (IZ-20/2) informed the Chechnya Prosecutor that the first applicant had been detained there between 25 January 2000 and 16 February 2000. On the latter date she had been transferred to the district hospital in Naurskaya. The letter further informed the prosecutor that no copies of the criminal investigation file or of the personal file on the first applicant had been preserved, with the exception of the entry cards. Another document issued by the same officer in 2003 stated that it was impossible to find out any details about the first applicant's detention because no proper records had been kept at the relevant time. It further stated that between November 1999 and February 2000 the facility had been guarded by military servicemen on assignment from other regions and that it was impossible to identify them. From 8 February 2000 the institution had come under the authority of the Ministry of Justice of Kabardino-Balkaria and had been manned by its staff. After August 2000 the detention facility had operated under the authority of the Ministry of Justice of Chechnya. 71. In December 2005 the Ministry of Justice of Chechnya issued a note to the effect that it had no information as to the operation of a reception and identification centre in Chernokozovo or whether it had ever been under the authority of the Ministry of Justice of Kabardino-Balkaria. 72. The Government also submitted copies of log entries for the first applicant and for her son Idris Iduyev. The first applicant's card contained information about her name, date and place of birth and place of residence. It stated that she had entered Chernokozovo on 25 January and that on 16 February 2000 she had been transferred to hospital. The entry for Idris Iduyev also contained personal information, and stated that on 26 February 2000 he had been “checked and released”. 73. The Government submitted a number of documents relating to the first applicant's treatment at the District Hospital. In so far as they are legible, the documents confirm that on 17 February 2000 the first applicant was delivered by ambulance from the “detention facility” in a grave condition and diagnosed with acute bronchopneumonia on both sides, heart failure, stenocardia, exacerbations of chronic cholecystitis and pyelonephritis on both sides. The records state that the first applicant had fallen ill about two weeks previously as a result of hypothermia. She was treated at the hospital until 15 March 2000. 74. From the documents submitted by the Government it also appears that in January 2005 the Naurskiy District Prosecutor's Office carried out an inquiry into the first applicant's ill-treatment while in detention. The inquiry was prompted by an Amnesty International report about the persecution of human-rights activists in Chechnya. The documents referred to the records kept in Chernokozovo, according to which on 6 February 2000 the first applicant had been diagnosed with and treated for tracheobronchitis and cholecystitis. She had again sought medical assistance on 15 February 2000, when her pulse and blood pressure had been taken. On 27 January 2005 the investigator stated that no other records were available and ruled that no criminal investigation should be opened on account of the absence of corpus delicti. In December 2005 a supervising prosecutor quashed that ruling and ordered a further inquiry. 75. On 21 May 2003 a prosecutor of the Naurskiy District Prosecutor's Office opened a criminal investigation into the murders of A.G., T.I., the first applicant and her three family members in the village of Kalinovskaya “by unidentified persons wearing camouflage uniforms and masks and armed with automatic weapons”. The order referred to the types of weapons used: a PM pistol and Kalashnikov sub-machine guns of 7.62 mm and 5.45 mm calibre. The case file was registered as no. 48023. On the same day the Deputy Prosecutor of Chechnya set up an investigative group of 14 officers from the prosecutor's offices of the Naurskiy District and Grozny, and from the military prosecutor's offices and the Ministry of the Interior. 76. On 4 June 2003 I., the first applicant's son, was granted victim status in the proceedings. On 7 June 2003 M.B., the first applicant's brother, was also granted victim status. In July 2003 the relatives of T.I. were granted victim status in the proceedings. In April and July 2005 relatives of A.G. were recognised as victims. 77. On 15 and 28 December 2005 the investigating body issued orders to grant victim status to the second applicant. They were forwarded to her place of residence in Kalinovskaya by mail, and were not countersigned by her. 78. The documents submitted by the Government include a number of prosecutors' orders to extend the term of the investigation, and to adjourn and reopen the proceedings. These orders mention some investigative steps, such as information requests, forensic and fingerprint experts' reports, and the records of the questioning of witnesses and victims. They also refer to a certain “directive of the Regional Operative Headquarters” (“директива РОШ”). The Government did not submit copies of these documents and no further details of these measures have been made available to the Court. 79. Between 21 May 2003 and 9 December 2005 the investigation was adjourned four times owing to the failure to identify the culprits. Each time it was reopened by a supervising prosecutor on the ground that the investigation had not been carried out in full. The last order to reopen the proceedings is dated 9 December 2005. 80. The persons who had been granted victim status were informed of the decisions to adjourn and reopen the investigation. 81. In July 2004 an investigator from the Chechnya Prosecutor's Office ordered an inquiry into these allegations further to information provided by the Representative of the Russian Federation at the Court. 82. The investigators questioned the second applicant, the local policeman, an officer of the District Prosecutor's Office, guards and the second applicant's relatives. They confirmed that in May 2004 there had been a passport check in Kalinovskaya, during which the second applicant had been asked questions about the presence of illegal items, including weapons, in her house. The witnesses stated that the second applicant had not been subjected to any threats or pressure. The documents also confirm that after the prosecutor's office had been instructed to investigate the complaint of harassment, a number of questions put to the second applicant and her relatives concerned her application to the Court. The second applicant stated that she had not received any threats after applying to the Court. 83. Between July 2004 and 15 December 2005 four orders not to open a criminal investigation into the second applicant's complaints of harassment were issued, each time being quashed by the supervising prosecutor. The last document issued on 15 December 2005 by the Deputy Prosecutor of Chechnya ordered the investigators from that office to carry out an additional inquiry and to question the second applicant' 84. The detention centre in Chernokozovo, where the first applicant was detained, received extensive attention from various human-rights institutions, including the European Committee for the Prevention of Torture (CPT), following 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 visit to the North Caucasian region of the Russian Federation. The statement said, inter alia, in relation to the visit to Chernokozovo: “... 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.” 85. 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 the detention facility at Chernokozovo during the period from December 1999 to early February 2000; and (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 said, in particular: “I. The information gathered by the CPT during its visits to the North Caucasian region in late February/early March and in April 2000 strongly indicated that many persons were physically ill-treated in a detention facility at Chernokozovo during the period December 1999 to early February 2000. Ever since the beginning of March 2000, the CPT has been urging the Russian authorities to carry out a thorough and independent inquiry into events at this detention facility during that period. To date, an inquiry of the kind requested by the CPT has not been carried out and the Russian authorities have now made it clear that they have no intention of organising such an inquiry. A particularly disturbing aspect of the Russian authorities' current position is their contention that no facilities intended for accommodating detainees were established by public authorities in the area of Chernokozovo during the period referred to by the CPT. It is an indisputable fact that a detention facility operated at Chernokozovo during the period December 1999 to early February 2000, prior to the formal setting up in that village of a pre-trial establishment (SIZO no. 2) by a Ministry of Justice Order dated 8 February 2000. The CPT's delegation interviewed many persons who stated that they had been held in a detention facility at Chernokozovo during that period. Numerous Russian officials (prosecutors, investigators, custodial staff) met by the delegation confirmed that the establishment designated as from 8 February 2000 as SIZO no. 2 had prior to that date been used as a detention facility. The CPT is in possession of a copy of the medical journal of the establishment covering the period 8 November 1999 to 12 February 2000, in which the day by day arrival of detainees (and any injuries they bore) was recorded; the staff who completed that journal referred to the establishment first as an 'IVS' (temporary detention facility) and at a later stage as a 'temporary reception and distribution centre'. The Russian authorities have themselves, in earlier correspondence, provided to the CPT written statements signed by officers attesting to the fact that they worked in the detention facility during the period December 1999 to early February 2000 as well as written statements signed by persons who certified that they were held at Chernokozovo during that period. The Russian authorities' contention that no detention facilities were established by public authorities at Chernokozovo during the period in question (and that, as a result, an inquiry of the kind requested can serve no purpose) is clearly untenable and constitutes a failure to cooperate with the CPT.” 86. 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 described the action taken to bring to justice those responsible for ill-treatment as slow and ultimately ineffective. 87. Presidential Decree no. 1815 of 2 November 1993 on measures aimed at prevention of vagrancy and begging provided for the reorganisation of the system of “reception and distribution centres” for persons detained by the bodies of the Ministry of the Interior for vagrancy and begging into centres of social rehabilitation for such persons. Under the Decree, persons could be placed in such centres on the order of a prosecutor for a period of up to ten days. 88. Article 161 of the Code of Criminal Procedure (CCP) prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings or prejudice the investigation. Divulging information about the private lives of participants in criminal proceedings without their permission is prohibited.

dev

001-77819

ENG

HRV

CHAMBER

CASE OF KOZLICA v. CROATIA

Preliminary objection joined to merits (non-exhaustion of domestic remedies) and dismissed;Violation of Art. 6-1 in respect of length of proceedings;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Christos Rozakis

4. The applicant was born in 1938 and lives in Orašje, Bosnia and Herzegovina. 5. On 25 November 1994 the applicant brought a civil action against the company V. (“the employer”) and the insurance company C.O. in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages for a work-related injury in the amount of 96,700 Croatian kunas (HRK). 6. The court held hearings on 2 June and 30 November 1999 and 21 February 2001. 7. In the period between May 1998 and October 2000 the applicant filed four rush notes urging the court to schedule a hearing and speed up the proceedings. 8. On 21 February 2001 the Municipal Court gave judgment dismissing the applicant’s claim. The applicant appealed on 6 March 2001 to the Zagreb County Court (Županijski sud u Zagrebu). 9. On 26 March 2001 the applicant applied to be exempted from the court fee for the appeal. Since it was the Municipal Court that was competent to decide on the applicant’s request for exemption, the County Court returned the case-file to it with a view to reaching a decision thereon. A hearing before the Municipal Court scheduled for 14 January 2003 was adjourned since the applicant had not received the summons due to his change of address. The next hearing scheduled for 3 June 2003 was adjourned owing to the illness of the judge assigned to hear the case. Lastly, a hearing at which the applicant gave a declaration of his income and assets was held on 13 May 2004. On 24 May 2004 the applicant was served with the decision in his favour exempting him from the court fee for the appeal. The case-file was then sent back to the County Court with a view to deciding on the applicant’s appeal. 10. On 5 April 2005 the County Court dismissed the appeal. The judgment was served on the applicant on 25 April 2005. No appeal on points of law (revizija) lay to the Supreme Court against this judgment (see paragraph 14 below). 11. Meanwhile, on 23 July 2002 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the civil proceedings. 12. On 17 April 2003 the Constitutional Court dismissed the applicant’s complaint. It held that the delay was attributable to the complexity of the case and the applicant’s conduct. It found that the applicant had contributed to the length of the proceedings in that he had applied for exemption from the court fee only after he had appealed against the first-instance judgment. 13. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” 14. On 6 November 1999 the Amendments to the Civil Procedure Act (Zakon o izmjenama i dopunama Zakona o parničnom postupku, Official Gazette no. 112/1999 of 29 October 1999) entered into force. They raised the statutory threshold for lodging an appeal on points of law (revizija) to the Supreme Court from HRK 3,000 to 100,000. That is to say that, from then on, for such an appeal to be admissible ratione valoris in non-commercial matters, the value of the subject matter in dispute had to exceed the last-mentioned amount. The Amendments also provided for their immediate application to pending proceedings except to those cases in which an appeal on points of law had already been lodged.

dev

001-90244

ENG

CYP

CHAMBER

CASE OF PANOVITS v. CYPRUS

Reminder inadmissible;Violation of Art. 6-1 and 6-3-c;Violations of Art. 6-1;No violation of Art. 6-1

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

6. The applicant was born on 14 August 1982 and is currently serving concurrent sentences of imprisonment at the Nicosia Central Prison. 7. In the context of a police investigation concerning a murder and robbery which took place on 19 April 2000, the police contacted the applicant’s father and invited him and the applicant to visit the Limassol police station. At the time the applicant was just over 17 years old. The applicant went to the police station accompanied by his father. The Limassol District Police Director (hereinafter “the Police Director”) informed the applicant’s father, in the presence of the applicant, about the crime that had been committed, the seriousness of the case, and the fact that there was evidence involving the applicant and that an arrest warrant had been issued against him. 8. According to the applicant, he immediately stated that he was innocent. Another police officer told him that his friend had already confessed to murdering the victim together with the applicant. The police officer added that the applicant’s friend was crying and hitting his head against a wall while he (the applicant) was merely lying to them. Then, another police officer came into the Police Director’s room holding an arrest warrant and informed the applicant that he was under arrest for murder. The applicant replied that he had nothing to add to his statement that he was innocent. The police officer then told the applicant to follow him into a different office. There there were 5 or 6 officers who started asking him questions and inducing him to confess, promising that if he did so they would assist him. They questioned him for approximately 30-40 minutes but he kept saying that he could not remember anything as he had been very drunk the night before. At some stage during the interrogation a police officer put his gun on the desk and told the applicant that he should hurry up as they had other things to do. The police officers told him that if he wanted to go he should confess. Subsequently a police officer suggested that they take a written statement from the applicant and that the police officers would remind him of anything he could not remember. The applicant then agreed to make a written statement. He denied having made any prior oral admission. 9. According to the Government, relying on the testimonies of the police officers participating in the interrogation, the applicant was shown the arrest warrant and informed of the reasons for his arrest, and had his attention drawn to the law. The applicant replied that he had nothing to say other than that he was innocent. He was then taken to a different room for questioning. Before the applicant was questioned the arresting officer explained again the reasons for his arrest, repeated that there was evidence involving the applicant in the circumstances under investigation and cautioned him that anything he said could be used against him in subsequent proceedings. There were four police officers present in the room. The applicant replied that he had not intended to kill anyone and started to give an explanation of the events. According to the arresting officer, the applicant was interrupted and his attention was drawn to the law. During the questioning the applicant confessed his guilt. 10. The parties agreed that when the applicant was taken away for questioning, his father remained in the Police Director’s office. He was shocked and after a couple of minutes told the Police Director that they should not use violence against his son. The Police Director replied that the police did not use such practices and added that the case was serious, that there was evidence linking the applicant with the crime and that it was important to seek the advice of a lawyer. He asked the applicant’s father whether he wanted to be present while his son was questioned. The father declined the offer. A few minutes afterwards, a police officer entered the room and informed the Police Director and the applicant’s father that the applicant had confessed. The Police Director invited the applicant’s father to join his son in the interview room so that he could hear what his son had admitted. The applicant’s father preferred to wait outside. 11. The applicant was charged with manslaughter and robbery under the Criminal Code (Cap. 154). On 9 May 2000 the applicant noted in an additional written statement: “I did not hit him (the victim) with the stone but only kicked him a couple of times.” 12. The applicant and his co-accused were brought for trial before the Limassol Assize Court. 13. During the trial the applicant maintained that his confession to the police had not been voluntary but the product of deception, psychological pressure, promises, threats and other tactics aimed at creating fear. He also argued that at the time he had made his statement to the police he had been drunk and, therefore, he had not been in a position to remember accurately the facts described in that statement. Furthermore, the applicant argued that he had not had legal advice immediately after his arrest and before being questioned and induced to sign the written statement. 14. On 11 and 12 January 2001 the court heard the evidence of the Police Director concerning the applicant’s arrest and questioning. The Director confirmed that he had invited the applicant and his father to his office, where he had told the father, without addressing the applicant, that an arrest warrant had been issued against the applicant in connection with a murder and that there was evidence linking the applicant to the crime. The applicant had then been cautioned, arrested and taken into a separate room for questioning. Shortly after the applicant left the room the Director had explained to the applicant’s father the seriousness of the case and suggested that they find a lawyer. 15. On 7 February 2001 the Assize Court, having considered all the evidence put before it, found that the applicant’s confession had been voluntary and that he had not been subjected to any undue or improper pressure by the police to secure it. The evidence of the prosecution gave a clear picture of the events that had taken place and the court dismissed the applicant’s allegations that, at the time of his confession, he had suffered loss of memory due to drunkenness. The confession was, therefore, admissible as evidence. 16. As regards the applicant’s claims concerning the lack of legal representation before his questioning, the court noted that the defence had not relied on any provision or authority recognising a right to have legal advice as a condition for receipt of an accused’s statement. Nor had the applicant or his father requested a lawyer and been refused one by the police. Moreover, the Director of Police had advised the applicant’s father that he and his son should seek legal representation. Overall, there had been no inappropriate action on the part of the police in this respect. 17. Subsequently, on 14 February 2001, during the main trial, the following exchange took place between the applicant’s lawyer, Mr Kyprianou, and the bench (translation of verbatim record of the proceedings): “Mr Kyprianou: I will ask the prosecution to give me all the statements of suspects who made a statement about this case so that I can continue my cross-examination of this witness. The prosecution is obliged to supply me with all the statements taken from other suspects and it is not permissible in our view for the prosecution to hide behind this. Court: First we want you to lower the tone of your voice. You do not let slip an opportunity to attack the prosecution who we believe is trying to present its case in a fair way, at least as the facts so far show. If you asked at some stage for the statements to be given to you and the prosecution refused, that is another matter. Mr Kyprianou: I believed that I would get this from the case file, now I am deprived of this right. I want the complete case file. I cannot continue my cross-examination of this witness if I do not have the complete case file. Ms Kyriakidou (prosecutor): The position of the prosecution on the basis of Article 7 of the Law on Criminal Procedure (is that) to make any complaint the Defence must apply in writing to the prosecution to ask for any statement in the file and if the Prosecution refuses, then the defence is entitled to complain. Here, the defence did not apply in writing; certain particulars, photographs, plans were asked for verbally and whatever was asked for was given and the prosecution never refused to give anything to the defence. This process did not happen and it is my position that this attitude of the defence is not justified. Court: We have considered the request of the learned counsel of accused no. 2 for the Court to interrupt the proceedings so that he can get statements of persons who gave statements during the investigation of the case from his opponents. As stated earlier today, the defence had a right, on the basis of Article 7 of the Law on Criminal Procedure, Cap.155, to request to be supplied with the said copies from the day when the accused pleaded not guilty, but failed to do so. We do not consider it expedient to break after so much delay and to create a fresh delay for this purpose. In any case, the Court in the present case is occupied with whether the prosecution will succeed in proving the guilt of the accused, who we note are presumed innocent until the prosecution, with their evidence, prove their guilt beyond all reasonable doubt. Whether the examination was unsatisfactory or not is a matter which will be decided at the end of the case. The request is therefore refused. Mr Kyprianou: I would ask for a break of five minutes in view of your ruling to gather my thoughts and see how I shall proceed because I believed that there would be disclosure of all the documents, for this reason I want five minutes to think about what I shall do in view of your ruling, that is to say how I shall proceed with the cross-examination. The cross-examination will take another sitting of the court. So the five minutes I am asking for are not unjustifiable. Court: We will approve a break of ten minutes but we will remind (the defence) that it is the second time that an interruption of the proceedings has been requested for inspecting the case file. We had a break in a previous session and gave a sufficient interval for them to see the file.” 18. Following the break, the proceedings were resumed. At one point a confrontation occurred between the applicant’s lawyer, Mr Kyprianou, and the court. Mr Kyprianou was at the time cross-examining a police officer who had taken the applicant’s written statement and was asking him about the manner in which an indication by another police-officer to insert the time of taking the statement was made. The court interrupted Mr Kyprianou and noted that they found his questions unnecessary. Mr Kyprianou then sought leave to withdraw from the case which was refused. The verbatim record of the proceedings reports the following exchange (translation): “Court: We consider that your cross-examination goes beyond the detailed cross-examination that can take place at the present stage of the main trial in issues... Mr Kyprianou: I will stop my cross-examination... Court: Mr Kyprianou... Mr Kyprianou: Since the Court considers that I am not doing my job properly in defending this man, I ask for your leave to withdraw from this case. Court: Whether an advocate is to be granted leave to withdraw or not, is a matter within the discretionary power of the court and, in the light of what we have heard, no such leave is granted. We rely on the case of Kafkaros and Others v. the Republic and do not grant leave. Mr Kyprianou: Since you are preventing me from continuing my cross-examination on significant points of the case, then my role here does not serve any purpose.” Court: We consider your persistence... Mr Kyprianou: And I am sorry that when I was cross-examining, the members of the court were talking to each other, passing ‘ravasakia’ among themselves, which is not compatible with allowing me to continue the cross-examination with the required vigour, if it is under the secret scrutiny of the court. Court: We consider that what has just been said by Mr Kyprianou, and in particular the manner in which he addresses the court, constitutes a contempt of court and Mr Kyprianou has two choices: either to maintain what he said and to give reasons why no sentence should be imposed on him, or to decide whether he should retract. We give him this opportunity exceptionally. Section 44 (1) (a) of the Courts of Justice Law applies to its full extent. Mr Kyprianou: You can try me. Court: Would you like to say anything? Mr Kyprianou: I saw with my own eyes the small pieces of paper going from one judge to another when I was cross-examining, in a way not very flattering to the defence. How can I find the stamina to defend a man who is accused of murder? Court (Mr Photiou): It so happens that the piece of paper to which Mr Kyprianou refers is still in the hands of brother Judge Mr Economou and Mr Kyprianou may inspect it. Court (Ms Michaelidou): The exchange of written views between the members of the bench as to the manner in which Mr Kyprianou is conducting the case does not give him any rights, and I consider Mr Kyprianou’s behaviour utterly unacceptable. Court (Mr Photiou): We shall have a break in order to consider the matter. The defendant (in the main trial) should in the meantime remain in custody. ... Court: We considered the matter during the adjournment and continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of court as provided for in section 44 (1) (a) of the Courts of Justice Law 14/60 ... that is, showing disrespect to the court by way of words and conduct. We already asked Mr Kyprianou before the break if he had anything to add before we pass sentence on him. If he has something to add, let us hear him. Otherwise, the court should proceed. Mr Kyprianou: Mr President, certainly during the break, I wondered what the offence was which I had committed. The events took place in a very tense atmosphere. I am defending a very serious case; I felt that I was interrupted in my cross-examination and said what I said. I have been a lawyer for forty years, my record is unblemished and it is the first time that I face such an accusation. That is all I have to say. Court: We shall adjourn for ten minutes and shall then proceed with sentencing.” 19. After a short break the Assize Court, by a majority, sentenced Mr Kyprianou to five days’ imprisonment. The court referred to the above exchange between Mr Kyprianou and its members and held as follows: “...It is not easy, through words, to convey the atmosphere which Mr Kyprianou created since, quite apart from the unacceptable content of his statements, the tone of his voice as well as his demeanour and gestures to the court not only gave an unacceptable impression of any civilised place, and a courtroom in particular, but were apparently aimed at creating a climate of intimidation and terror within the court. We are not exaggerating at all in saying that Mr Kyprianou was shouting and gesticulating at the court. It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak. And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise, Mr Kyprianou, in the same tone and with the same intensity already referred to, shouted, ‘You can try me’. Later, after a long break, Mr Kyprianou was given a second chance to address the court, in the hope that he would apologise and mitigate the damage caused by his behaviour. Unfortunately, at this stage Mr Kyprianou still showed no signs of regret or, at least, of apprehension for the unacceptable situation he had created. On the contrary, he stated that during the break he wondered what his crime had been, merely attributing his behaviour to the ‘very tense atmosphere’. However, he was solely responsible for the creation of that atmosphere and, therefore, he cannot use it as an excuse. Mr Kyprianou did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of ‘ravasakia’, that is, ‘love letters’ (See: ‘Dictionary of Modern Greek - Spoudi ravasaki (Slavic ravas), love letter, written love note’). And he accused the Court, which was trying to regulate the course of the proceedings, as it had the right and the duty to do, of restricting him and of doing justice in secret. We cannot conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate. The judges as persons, whom Mr Kyprianou has deeply insulted, are the least of our concern. What really concerns us is the authority and integrity of justice. If the court’s reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow. An inadequate reaction on the part of the lawful and civilised order, as expressed by the courts, would mean accepting that the authority of the courts be demeaned. It is with great sadness that we conclude that the only adequate response, in the circumstances, is the imposition of a sentence of a deterrent nature, which can only be imprisonment. We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing, but it is Mr Kyprianou himself who, through his conduct, brought matters to this end. In the light of the above we impose a sentence of imprisonment of five days”. 20. Mr Kyprianou served his prison sentence immediately. He was in fact released before completing the full term in accordance with section 9 of the Prison Law (Law no. 62(I)/1996). 21. The applicant continued to be represented by Mr Kyprianou for the rest of his trial. 22. On 21 February 2001 the defence requested the judges to withdraw from the case in view of the events that had occurred so that the case could be tried by another bench. Mr Kyprianou requested that the court be addressed by another lawyer in this respect, given the fact that he had been directly concerned by the court’s decision on contempt. The defence was concerned that the court would not be impartial. This request was granted. 23. On 2 March 2001, by an interim decision, the Assize Court dismissed the request for its withdrawal. Having examined the relevant case-law on the issue it found that no ground had been established for its withdrawal. In this connection it noted that: – as opposed to plain rumours or the manner in which the matter had been presented in the media – would justifiably form the impression that there was a real likelihood of prejudice by the court against the defendant simply because of its conclusion that his lawyer’s behaviour, at some stage of the proceedings, had been in contempt of court”. 24. Given that its decision on contempt had been a decision reached within the context of its exercise of its judicial functions and, as such, there was no issue of personal feelings of the judges or any prejudice on the part of the court, there was no reason why the court should abandon the examination of the case before the completion of the trial. 25. The proceedings therefore continued before the same bench. 26. On 10 May 2001 the Assize Court found the applicant guilty of manslaughter and robbery. The court dismissed the applicant’s allegations that his confession had been fabricated by the police and taken under suspicious circumstances. It found that there had been clear, independent and persuasive evidence demonstrating the genuine nature of his confession to the police. Furthermore, it noted that apart from the free and voluntary confession, the conclusion about the applicant’s guilt was supported by other strong and independent evidence and facts. In particular, the court relied on the applicant’s further statement of 9 May 2000 (see paragraph 11 above), placing the applicant at the time and place of the crime and confirming that he used force against the victim, a statement of a friend of the applicant to whom the applicant had stated that he had been involved in a serious fight with the victim, and various testimonies confirming that the applicant had been seen in a pub drinking and talking to the victim, leaving the pub right after the victim and heading in the same direction as the victim. Moreover, further testimonies confirmed that the applicant was seen in the early hours of the following morning drinking in another pub dressed in clothes covered in mud. The medical evidence concerning the victim’s death had confirmed that the cause of death had been multiple and violent blows, a finding which was consistent with the applicant’s two statements as well as that of his co-accused. The confession of his co-accused could not be treated as evidence against the applicant. 27. On 24 May 2001 the Assize Court sentenced the applicant to two concurrent sentences of imprisonment for fourteen and six years for manslaughter and robbery respectively. 28. On 29 May 2001 the applicant lodged an appeal with the Supreme Court against his conviction and sentence. 29. In challenging his conviction he repeated his arguments concerning the involuntary nature of his confession, the circumstances in which it had been taken and the violation of his right to the assistance of a lawyer. In particular, it was emphasised that the Director of Police had not advised the applicant himself that he should consult a lawyer and had not warned the applicant that he was under no obligation to state anything about the case. Moreover, the applicant maintained that his conviction had been the direct consequence of the hostility which had been openly expressed by the Assize Court towards his lawyer, who had also been tried, convicted by the same court for contempt and imprisoned. As a result, the applicant’s confidence in the impartiality of the court and his lawyer had been shaken. 30. The prosecution also lodged an appeal challenging the sentence imposed as “manifestly insufficient” in the circumstances. 31. On 3 July 2003 the Supreme Court dismissed both appeals. 32. As to what had occurred at the pre-trial stages of the proceedings the Supreme Court noted that the applicant had gone to the police station accompanied by his father and both had been informed about the crime, the suspicion that the applicant had been involved in it and that they could be assisted by a lawyer if they so wished. The applicant had stated that he was innocent; he had then been arrested and taken for questioning in a different room. When his son had been taken for questioning the applicant’s father had been warned about the seriousness of the case, that they could consult a lawyer and that he could be present during the questioning. However, he had preferred to wait outside. A few minutes later the applicant’s father and the Police Director had been informed that the applicant had confessed his guilt. The court observed that the fact that the applicant had confessed did not necessarily lead to the conclusion that something improper had occurred. 33. As to the applicant’s confession, the court noted that it had constituted the subject of a separate hearing within the trial and that the Assize Court had concluded that it had been the product of the free will of the applicant and found it admissible as evidence. The court observed that the Assize Court, following settled principles of Cypriot jurisprudence, had re-examined the content of the statement in the light of the entirety of the evidence in the main trial. Its judgment was elaborate and the evidential material was discussed with meticulousness together with the arguments of the parties. A simple reading of the minutes confirmed the correctness of the Assize Court’s judgment. As for the applicant’s credibility, the Supreme Court noted that: “as a general comment, ... the appellant appeared, as it is shown by the evidence, to have had a selective memory. He remembered all the details which did not incriminate him while he had complete lack of memory in respect of all the elements which linked him to the crime. This attitude is evident from his evidence both in the main trial and in the trial within a trial concerning the voluntariness of the contested statement. And in both proceedings he tried to negate the statements he had made in his earlier written confession.” 34. Moreover, there was sufficient, powerful and independent evidence putting the applicant at the time and place of the crime. Such evidence taken together with the applicant’s admission contained in a second statement, the admissibility of which was not contested as having been submitted on an involuntary basis, rendered the applicant’s guilt proven beyond any reasonable doubt. 35. The Supreme Court also dismissed the applicant’s argument concerning the Assize Court’s alleged lack of impartiality in view of his lawyer’s conviction for contempt of court. In particular it stated the following: “Following his conviction by the Assize Court (for contempt of court) Mr Kyprianou requested to withdraw from the proceedings and to stop acting as counsel for the appellant....The appellant’s argument that, in view of what had happened before the Assize Court, this ceased to be an impartial court and the trial was rendered unfair, is incorrect. A simple reading of the voluminous transcript of the proceedings demonstrates the smooth conduct of the trial, in which all the evidence was presented before the court, which had to evaluate it and decide the extent to which the prosecution had managed to prove the charges against the appellant beyond all reasonable doubt. We have indicated above that the evidence against the appellant was conclusive. His advocate had put to the Assize Court everything that could be submitted in his defence in a trial; a task which was, admittedly, rather difficult. The Assize Court’s decision not to allow the advocate to withdraw in the middle of the trial or to withdraw itself from the case, which would have led to a retrial, did not render the trial unfair, while the court itself had, in our opinion, preserved its impartiality throughout the proceedings.” 36. Finally, as regards the sentence imposed by the Assize Court, the Supreme Court found that there had been evident leniency in sentencing, making the length of the prison sentence imposed almost manifestly insufficient. Nevertheless, it decided not to interfere with the Assize Court’s decision in this respect. 37. Concerning the Mr Kyprianou’s request to stop acting as counsel for the applicant (see paragraphs 18 and 35 above), the Government clarified that it was made before the contempt proceedings. This was supported by the applicant and the relevant transcript of the proceedings. 38. Article 11 (4) of the Constitution of the Republic of Cyprus provides as follows: “Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing.” 39. Article 12 (4) and (5) of the Constitution provides, in so far as relevant, as follows: (4) “Every person charged with an offence shall be presumed innocent until proved guilty according to law. (5) Every person charged with an offence has the following minimum rights: (a) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him; (b) to have adequate time and facilities for the preparation of his defence; ...” 40. Article 30 (2) and (3) provides, in so far as relevant, as follows: (2) “In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. ... (3) Every person has the right: (a) to be informed of the reasons why he is required to appear before the court; (b) to present his case before the court and to have sufficient time necessary for its preparation....”. 41. The ICCPR provides in Article 14(4), which broadly corresponds to Article 6 of the European Convention, that: “In the case of juvenile persons, the procedure shall be such as will take account of their age, and the desirability of promoting their rehabilitation.” 42. Section 8 of the Criminal Procedure Law, Cap. 155 provides as follows: “Without prejudice to the generality of section 3 of this Law and without prejudice to the operation of section 5 of this Law the rules for the time being approved by Her Majesty’s Judges of the Queen’s Bench Division in England relating to the taking of statements by police officers (known as ‘The Judges’ Rules’) shall apply to the taking of statements in the Colony as they apply to the taking of statements in England”. 43. Section 13 of the Criminal Procedure Law, Cap. 155 provides, in so far as relevant, as follows: “...Any [arrested] person while in custody shall be given reasonable facilities for obtaining legal advice, for taking steps to obtain bail and otherwise for making arrangements for his defence or release.” 44. Rule II of the Judges’ Rules provides as follows: “As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence. The caution shall be in the following terms: ‘You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.’ ” 45. The CPT standards on police detention were set out in its 2nd General Report [CPT/Inf (92) 3] as follows: 36. The CPT attaches particular importance to three rights for persons detained by the police: the right of the person concerned to have the fact of his detention notified to a third party of his choice (family member, friend, consulate), the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice (in addition to any medical examination carried out by a doctor called by the police authorities). They are, in the CPT’s opinion, three fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc). 37. Persons taken into police custody should be expressly informed without delay of all their rights, including those referred to in paragraph 36. Further, any possibilities offered to the authorities to delay the exercise of one or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time. As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police, systems whereby, exceptionally, lawyers and doctors can be chosen from pre-established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights. 38. Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) as well as, in principle, the right for the person concerned to have the lawyer present during interrogation. 46. The CPT standards on juveniles deprived of their liberty were set out in the CPT’s 9th General Report [CPT/Inf (99) 12] as follows: “In this context, the CPT has stressed that it is during the period immediately following deprivation of liberty that the risk of torture and ill-treatment is at its greatest. It follows that it is essential that all persons deprived of their liberty (including juveniles) enjoy, as from the moment when they are first obliged to remain with the police, the right to notify a relative or another third party of the fact of their detention, the right of access to a lawyer and the right of access to a doctor.” 47. In Vouniotis v. The Republic (1975) 2 C.L.R. 34 the Supreme Court held that the court should verify the truthfulness of a confession by independent evidence. In this case the following extracts from R v Sykes 8 Cr. App. Rev. were cited with approval: “A man may be convicted on his own confession alone; there is no law against it... the first question [to be asked] when ... examining the confession of a man, is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? ... Is it [the confession] consistent with other facts which have been ascertained and which have been, as in this case, proved before us? ...” 48. In the case of Kafkaris v. The Republic (1990) 2 CLR 203, the following was stated: “A confession of a crime – so long as it is accepted as voluntary – can on its own constitute sufficient ground for an accused’s conviction. No matter how voluntary a confession is, it is prudent, in accordance with the case-law... to have, where possible, corroborating evidence in support of the accuracy of its content. That would exclude the possibility of error and discourage the interrogating authorities to seek a confession as an easy alternative to having a crime properly investigated. The content of a confession must be judged not only on the basis of the authenticity of the allegations it contains, but also in conjunction with any other testimony that tends to support or disprove the accuracy of its content.”

dev

001-111245

ENG

DEU

ADMISSIBILITY

GARCIA CANCIO v. GERMANY

Inadmissible

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

1. The applicant, Mr Luis Angel Garcia Cancio, is a Spanish national who was born in 1952 and lives in Madrid. He is represented before the Court by Ms A. Haucke-D’Aiello, a lawyer practising in Munich. The respondent Government were represented by their agent Mr H. J. Behrens, Ministerialrat, of the Federal Ministry of Justice. 3. On 5 August 1994 investigations in relation to contraband trade of cigarettes were instituted by the Lindau Custom Investigation Office (Zollfahndungsamt). On 15 April 2002 the prosecution registered the applicant as an accused in these proceedings; on 27 March 2003 he was questioned as an accused. 4. On 30 August 2004 the applicant and several co-accused were charged with a violation of the Foreign Trade Act (Außenwirtschaftsgesetz) in conjunction with UN Resolution No. 757 (1992) concerning the embargo against Serbia and Montenegro (see relevant domestic and international law below), with regard to a total of 559 shipments of cigarettes in 1994 and 1995. 5. On 1 October 2004 the Augsburg Regional Court asked the prosecution for clarification regarding its territorial jurisdiction. On 10 November 2004 the prosecution returned the file to the Regional Court with additional submissions. 6. On 6 July 2005 the prosecution withdrew the first indictment. 7. On 25 July 2005 the prosecution submitted a new indictment. On 24 August 2005 this indictment was served on the applicant’s counsel. In September 2005 the Regional Court ordered a translation of the indictment to be served on the applicant. 8. Between September 2005 and November 2006 the applicant’s counsel requested nine extensions of time-limits to submit further observations, which were all granted. 9. On 26 June 2007 the Regional Court decided to open the main proceedings against the applicant and one other co-accused regarding one part of the indictment. 10. On 11 July 2007 the prosecution and the applicant appealed this decision. 11. On 7 August 2007 the Regional Court dismissed the applicant’s appeal arguing that his right to be heard before the opening of criminal proceedings was not interfered with. 12. On 30 November 2007 the Munich Court of Appeal rejected the appeal of the prosecution for the most part. 13. On 6 May 2008 the Regional Court dismissed the applicant’s motion for reconsideration. 14. On 27 August 2008 the Court of Appeal dismissed the applicant’s appeal against the decision of the Regional Court of 7 August 2007. 15. On 29 September 2008 the dates of the trial were fixed for 3 and 10 December 2008. On the first day of trial the proceedings against the applicant, who at that time was imprisoned in Italy, were disjointed. 16. On 25 March 2009 the Regional Court provisionally stayed the proceedings on request of the prosecution in view of pending criminal proceedings against the applicant in Switzerland pursuant to Article 154 paragraph 2 of the Code of Criminal Procedure. 17. On 14 June 2008 the applicant lodged a constitutional complaint against the decision of the Regional Court of 26 June 2007 to open the main proceedings against him. He raised the issue of the length of the proceedings, an alleged lack of fairness of the proceedings and the infringement on the principle of double-jeopardy. 18. On 8 October 2008 the Federal Constitutional Court declared the complaint inadmissible, finding that the impugned decision was a mere intermediate decision and thus did not constitute a suitable object of a constitutional complaint. 19. On 7 December 2011 the Government informed the Court that in response to the pilot judgment Rumpf v. Germany (no. 46344/06, 2 September 2010) a federal Act against Protracted Court Proceedings and Criminal Investigations had entered into force on 3 December 2011. 20. In December 2011 the Court informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy. The Court referred to the case Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001IX) and invited him to inform the Court whether he intended to make use of the new remedy within the time-limit set by the transitional provision of that Act (see for details § 36 et seq below). 21. By letter of 29 February 2012 the applicant informed the Court that the domestic remedy might not apply in his particular case, as the criminal proceedings were stayed. He suggested that the Court should invite the German Government to give further explanations on the new remedy in comparison to the situation in Brusco v. Italy (dec.), cited above. He nevertheless requested that his application before this Court be maintained while the proceedings according to the new remedy were pending. Lastly, he doubted that the costs for the proceedings before this Court would be reimbursable as damages in the domestic proceedings. “(4) A prison sentence of no less than two years shall be imposed on anyone who violates a statutory order ... which serves the implementation of an economic sanction imposed by the Security Council of the United Nations in accordance with Chapter VII of the United Nations Charter. ...” 22. In 2006 the statutory range of punishment (Strafrahmen) provided for in section 34 (4) was reduced to an imprisonment from six months up to five years. 23. United Nations Security Council Resolution 757 (1992) of 30 May 1992 demanded that all Member States should prevent the sale of all products and commodities to the Federal Republic of Yugoslavia (Serbia and Montenegro), except for humanitarian causes. 24. With United Nations Security Council Resolution 1022 (1995) of 22 November 1995 the measures imposed by, inter alia, resolution 757 were suspended with immediate effect. 25. Section 154 of the Code of Criminal Procedure provides for the provisional stay of criminal proceedings in the following terms: “... (2) Once proceedings have been instituted, the court may provisionally stay them at any stage at the request of the Public Prosecutor’s Office. ... (4) If the proceedings have been provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force. (5) If the court has provisionally terminated the proceedings, a court order is required for their resumption.” 26. The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) was published in the Federal Law Gazette - Part I, 2011, page 2302 et seq. - on 2 December 2011 and entered into force the next day. 27. The Remedy Act introduces general provisions for civil and criminal cases in sections 198 to 201 of the Courts Constitution Act (Gerichtsverfassungsgesetz, henceforth: CCA). 28. The new remedy combines an instrument to expedite the proceedings, an objection to delay (Verzögerungsrüge), which has to be raised before the court whose proceedings are allegedly unduly delayed (henceforth: trial court), with a subsequent compensation claim to be lodged at the Court of Appeal (henceforth: compensation court), see section 198 paragraph 1 and 3 CCA. 29. According to section 198 paragraph 1 CCA a party to proceedings (Verfahrensbeteiligter) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation. The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons. A compensation award is not dependent on the determination of fault. 30. The compensation is awarded in monetary form, if other forms of compensation for lengthy proceedings are not appropiate, see section 198 paragraph 4 and section 199 CCA. The compensation for one year of protraction amounts to 1,200 euros 31. A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim. The action for compensation may not be lodged with a compensation court until six months after the objection had been raised, see section 198 paragraph 5 CCA. The compensation claim must at the latest be lodged within six months of the final judicial decision of the trial court. 32. For protracted criminal proceedings or investigations the Remedy Act stipulates in section 199 CCA special provisions, as criminal courts and the prosecution have already established a standard practice compensating for unreasonable length which this Court considered to be in line with the requirements of Articles 6 § 1 and 13 of the Convention (see Kaemena and Thöneböhn v. Germany, nos. 45749/06 and 51115/06, § 87, 22 January 2009). In criminal cases the courts may either afford compensation by declaring that a specified part of the sentence had to be considered as having already been served or they may terminate proceedings with the consent of the prosecution. 33. In circumstances where the criminal trial court cannot compensate for the excessive length of proceedings, e.g. in cases of acquittal or discontinuance of proceedings for other reasons than length (see Ommer v. Germany (no. 1), no. 10597/03, § 67 et seq., 13 November 2008), the provisions of section 198 CCA apply (see official motivation of the draft law: record of Bundestag 17/3802 page 24) and redress will be granted by monetary compensation. 34. Proceedings for compensation are subject to court fees. However, the plaintiff will be reimbursed according to the quota of his success in court. 35. The judgment of the compensation court is subject to appeal on points of law (Revision) only. 36. According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court. 37. In pending proceedings the objection to delay (Verzögerungsrüge) should be raised without delay when the Remedy Act entered into force. In these cases the objection preserves a subsequent compensation claim even for the past. 38. For terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court it is not necessary to raise the objection prior to filing a compensation claim. The claim based on Article 23 of the Act has to be lodged with the competent court on 3 June 2012 at the latest.

dev

001-91006

ENG

RUS

CHAMBER

CASE OF MALTABAR AND MALTABAR v. RUSSIA

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

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

6. The applicants were born in 1969 and live in the town of Tver. 7. On an unspecified date the authorities brought proceedings against the applicants on suspicion of fraud. 8. On 17 April 2001 the Moskovskiy District Court of the town of Tver tried and convicted both applicants on a charge of attempted large-scale fraud. Both applicants were also tried on a charge of forgery. On the latter charge, the court acquitted the first applicant and found the second applicant guilty. They were sentenced to three years and six months and four years and six months’ imprisonment respectively. 9. The applicants appealed against the judgment. Their appeal was examined and dismissed by the Tver Regional Court on 3 July 2001. 10. On 18 December 2002 the Deputy President of the Supreme Court of Russia applied for supervisory review of the judgment of 17 April 2001, requesting a milder sentence. 11. By decision of 20 January 2003 the Supreme Court examined and allowed the arguments set out in the special appeal. It reduced the applicants’ sentences to two years and two years and six months’ imprisonment respectively and ordered that the first applicant be released accordingly. 12. By decision of 11 March 2003 the Torzhokskiy Town Court released the second applicant on parole before the expiry of his prison sentence. 13. On 15 December 2000 the applicants were arrested and placed in detention. 14. The applicants specified that between 11 a.m. on 15 December and 3 a.m. on 16 December 2000 they had first been held in a local police station before being transferred to IZ-69/1. According to both applicants, they were refused food and an opportunity to sleep. They did not make any allegations concerning the overcrowding of cells in that facility. 15. Both parties agreed that the applicants had been transferred to pre-trial detention centre IZ-69/1 on 16 December 2000 and that they had first been held in the local police station. 16. The applicants arrived at the pre-trial detention centre IZ69/1 in the town of Tver on 16 December 2000. The first applicant remained there until 24 July 2001 and the second applicant until 31 July 2001. 17. According to the first applicant, between 16 and 19 December 2000 he had been detained in cell no. 42. 18. On 20 December 2000 he was transferred to cell no. 60. Between 30 December 2000 and 23 January 2001 he was held in cell no. 42. From 23 January to 11 March 2001 he was detained in cell no. 54. For eleven days between 11 and 22 March 2001 he was detained in a punishment cell. On 22 March 2001 he was transferred back to cell no. 54 and remained there until 17 April 2001. Between 17 April and 24 July 2001 he was detained in cell no. 23. On 24 July 2001 the first applicant left facility no. IZ-69/1 for another penitentiary establishment to serve his prison sentence. 19. The Government submitted that the dates of detention in the various cells in facility no. IZ-69/1 given by the first applicant were erroneous. The first applicant had been placed in cell no. 42 on 15 December and had remained there for only one day. He was then transferred to cell no. 60, where he stayed until 19 December 2000. Between 20 and 24 December 2000 the first applicant was detained in cell no. 42. He was transferred to cell no. 54 on 25 December 2000 and remained there until 22 January 2001. Between 23 January and 10 March 2001 the first applicant was held in cell no. 120. From 11 to 18 March 2001 he was held in cell no. 54. On 19 March 2001 the first applicant was transferred to cell no. 23, where he remained until he left facility no. IZ-69/1 on 24 July 2001. 20. From the above, it follows that the parties agreed that the first applicant has been detained in cells no. 23, 42, 54 and 60. In addition, the first applicant maintained that he had spent 11 days in a punishment cell and the Government maintained that he had spent some 45 days in cell no. 120. 21. The applicant submitted that cell no. 23 measured 30 square metres. It had twenty-five sleeping places and accommodated between eighty and ninety detainees. 22. The Government submitted that the cell measured 45.3 square metres and had eleven sleeping places. It had a system of artificial and natural ventilation and was lit by four 40-watt daylight lamps. The prison administration submitted a letter in which it certified that there had been eleven inmates in the cell on 17 April 2001. 23. According to the first applicant, the cell measured 24 square metres, had nineteen bunk beds and was occupied by between 45 and 50 detainees at all times during his stay there. 24. According to the Government, the cell measured 31.9 square metres, had eight bunk beds and was lit by four 80-watt day lamps. The prison administration submitted a letter in which it certified that there had been seven inmates in the cell on 16 December 2000. The cell had both natural and artificial ventilation systems. 25. According to the prison administration, on 25 December 2000, the date of the first applicant’s departure from cell no. 42, there had been eight inmates in the cell. 26. According to the first applicant, cell no. 54 measured 16 square metres, had nine beds and accommodated between ten and twelve detainees. 27. The Government submitted that the cell in question measured 27.6 square metres and had seven sleeping places. It had a system of natural and artificial ventilation and was lit by four 40-watt day lamps. The prison administration submitted a letter in which it certified that there had been seven inmates in the cell on 23 January 2001 and that on 19 March 2001, the date of the first applicant’s departure from cell no. 54, there had been six inmates in the cell. 28. According to the first applicant, cell no. 60 measured 16 square meters, with six beds, and had held between twelve and fourteen infected detainees at the time of the applicant’s detention. It had a constantly high level of humidity as it was situated right above the prison baths. Also, every other night the only toilet in the cell was decontaminated with half a bucket of chlorine-based reagent. Since the toilet flush was inactive during the night, the chlorine-based reagent combined with the humidity and urine caused corrosive damage to detainees’ lungs and eyes. 29. According to the Government, the cell in question measured 22.4 square metres, had both artificial and natural ventilation systems and five sleeping places and was lit by four 80-watt day lamps. The prison administration submitted a letter in which it certified that there had been three inmates in the cell on 20 December 2000. 30. The first applicant submitted that the punishment cell measured 4 square metres, with only one sleeping place and eleven inmates. The applicant submitted that there had no toilet in the cell and that detainees had used a bucket, which had been emptied once a day but had never been washed or decontaminated. 31. The Government submitted that this cell measured 8.8 square metres, had two sleeping places, both natural and artificial ventilation, and was lit by one 150-watt bulb. The prison administration submitted a letter in which it certified that on 11 March 2001 there had been two inmates in the cell. 32. Between 16 December 2000 and 17 April 2001 the second applicant was detained first in cell no. 102 and then in no. 84. During the period between 17 April and 30 July 2001 he was held in cell no. 21. For fourteen days in May 2001 the second applicant was detained in the punishment cell. 33. The Government submitted that on 16 December 2000 the second applicant had been detained in cell no. 102. As of 28 December 2000 he was placed in cell no. 84. On 17 April 2000 he was transferred to cell no. 21. As of 17 May 2001 he was transferred to cell no. 117. From 24 May to 31 July 2001 he was detained in cell no. 21. 34. From the above it follows that the parties agree that the second applicant spent some time in cells nos. 21, 84 and 102. In addition, the second applicant maintains that he had spent 14 days in a punishment cell and the Government maintained that he had spent some seven days in cell no. 117. 35. The second applicant submitted that cell no. 21 measured 17 square metres, had twelve sleeping places and was occupied by more than 43 inmates. 36. The Government submitted that the same cell measured 20.7 square metres, had five sleeping places, artificial and natural ventilation systems, and was lit by two 150-watt bulbs. On 17 April 2001 it had accommodated four inmates. The prison administration submitted a letter in which it certified that on 24 May 2001 there had been four inmates in the cell. 37. The second applicant submitted that cells no. 102 and no. 84 measured 7.5 square metres, had four bunk beds and accommodated more than six detainees. 38. The Government submitted that cell no. 102 measured 9 square metres and had two sleeping places. Cell no. 84 measured 9.8 square metres and had two bunk beds. Both cells had natural and artificial ventilation and were lit by two 40-watt day lamps. On 16 December 2000 there had been two inmates in cell no. 102. The prison administration submitted a letter in which it certified that on 28 December 2000 there had been two inmates in cell no. 84. 39. According to the second applicant, he had been detained for fourteen days in May 2001 in a punishment cell measuring approximately 4 square metres, with one bed and twelve detainees. 40. According to the Government, the cell no. 117 measured 8.2 square metres, had two sleeping places and, according to the prison administration, on 17 May 2001 had contained two inmates. 41. The applicants submitted that they had taken walks in the detention centre courtyard every day. The walks had lasted between ten minutes and one hour depending on the guards’ mood. The courtyard was exposed to the elements and had no roof, and in bad weather the walks usually lasted at least an hour. 42. The Government did not comment on these allegations. 43. According to the applicants, detainees could not take a shower more than twice or three times a month and the water in the shower was barely warm. 44. The Government submitted that the applicants had been allowed to take a shower once a week for at least fifteen minutes. 45. The applicants also submitted that all the cells they had described lacked proper ventilation systems and were very hot in summer and cold in winter. 46. According to the Government, all the cells referred to above had both artificial and natural ventilation systems. The windows in all of the applicants’ cells were double glazed and had a window leaf for ventilation. Furthermore, the heating system in the prison was fully operational and the temperature in the cells was within the permissible range (+20o C in winter and +24o C in summer). 47. According to the applicants, all the cells were infected with lice, fleas and bugs, none of the toilets in the cells offered detainees any privacy and the authorities had failed to provide them with fresh linen, blankets or crockery. They submitted three photographs of a cell in the detention centre in question. None of the beds in the photographs had any bed linen on them. 48. The Government submitted that both applicants had been provided with an individual sleeping place and had a mattress, a pillow with two pillowcases, two blankets, two sheets and three towels. In addition, they were given a mug, a spoon and a bowl. The bed linen was changed once a week after the inmates had taken a shower. There was a brick wall 1.20 metres high separating the toilet area from the living area in all the cells. The authorities submitted plans of the interior of all the cells and their dimensions. They further submitted that during the relevant period they had carried out disinfection works, including fumigating and disinfesting each cell twice a month. 49. The applicants alleged that the catering had been extremely poor. 50. The Government submitted that inmates were given food three times a day, in accordance with the relevant norms. 51. The applicants further submitted that all the cells had been heavily overcrowded and that during the preliminary stage of the proceedings visits to the prison by an investigator had coincided with their turn to sleep and their lunchtime, so that they were effectively deprived of sleep and food. The detainees had to sleep in turns and had no way of washing themselves or shaving. 52. The Government submitted that the cells in question had not been overcrowded. They referred to statements of the prison authority in this regard (see, for more details, the sections below on specific cells). 53. The Government submitted in respect of the period between 15 December 2000 and 31 July 2001 that the number of bunk beds in the establishment had remained constant, that there had been 536 sleeping places in total, that 127 cells (nos. 1-14, 15-25, 25a, 26-34, 34a, 35-57, 63110, 112-20, 124-34, with a capacity ranging from 2 to 14 sleeping places) had been used in that prison, and that the daily total number of detainees during that period had been on average around 2,300 (ranging from 1,423 on 28 December 2000 to 2,589 on 27 April 2001). 54. The Government submitted detailed plans and dimensions in respect of each of the cells mentioned by the applicants. 55. The applicants submitted that for attendance at court hearings they had usually been taken out of the detention centre early in the morning, at around 5 a.m., and were not brought back until 8.30 or 9 p.m. While they were being moved, the applicants were kept either in a small space measuring 0.5 m x 0.65 m along with another detainee, or in a bigger space measuring 2 m x 0.65 m containing between seven and twelve detainees. No warm food or toilet facilities were provided during transport or in the detention cells of the court. While waiting for a hearing, between court sessions or while waiting for other detainees after the hearing, each of the applicants had been kept for hours in a small unventilated cell in the courthouse measuring approximately 1.5 m x 1.5 m, together with up to two other prisoners. 56. According to the applicants, they were transported to the courts on eleven occasions each: 29 December 2000, 16 and 24, January, 8 February, 9, 10, 11, 12, 13 and 17 April, and 3 July 2001. They also submitted that the prison vans had been unsuitable for transportation of prisoners because of the lack of artificial and natural ventilation or toilet facilities and overcrowding. They also pointed out that the actual distance travelled had been longer because the prison van had had both to deliver detainees to and collect them from five different regional courts around the city. They submitted that it had taken six hours: three for delivery and three for collection and the return journey. 57. The Government submitted that the inmates had breakfast before going to court, were returned to the detention centre for lunch and had dinner after the court sessions. The Government submitted a statement by Mr I. B., an official in charge of transportation of detainees, dated 9 August 2007, in which he certified that his convoy teams had never exceeded the limits of transport capacity of the prison vehicles. The Government also submitted drawings of the interior of such vehicles. They could not provide more detailed information on the exact number of transported detainees as the relevant archived documents had been destroyed on 11 August 2005 on the expiry of the storage time-limit. 58. The Government submitted that the first applicant had made ten return journeys on the following dates: 29 December 2000 (the District Court), 24 January 2001 (the District Court), 8 February 2001 (the District Court), 9, 10, 11, 12 and 13 April 2001 (the District Court), 17 April 2001 (the District Court), and 3 July 2001 (the Regional Court). The second applicant made nine return journeys on the following dates: 29 December 2000 (the District Court), 24 January 2001 (the District Court), 9, 10, 11, 12 and 13 April 2001 (the District Court), 17 April 2001 (the District Court), and 3 July 2001 (the Regional Court). 59. The distance between facility no. IZ-69/1 and the District and Regional Courts was three and four kilometres respectively. 60. As regards the detention cells in the District Court, the Government submitted that there were six of them, each designed for two persons, containing benches, artificial lighting, natural ventilation and measuring 5.26, 3.56, 3.86, 3.73, 3.71, 3.8 square metres respectively. The detainees were allowed to go to the WC room upon request. 61. The applicants referred to reports on human rights in Russia by the Moscow Helsinki Group NGO of 1999, 2000 and 2001. A 2000 report on the events of 1999 stated that the situation in pre-trial detention centres in Russia was very bad overall, as the detention centres contained four times more detainees than the number of places available (2,765 detainees and 680 places). The 2001 report on the events of 2000 mentioned the Tver Region as being affected by the issue of overcrowded pre-trial detention centres and complaints about deficient catering. The 2002 report on the events of 2001 referred to dozens of former inmates who spoke of arbitrariness and “lawlessness” in the detention centre in question. 62. According to the applicant, the newspaper Nezavisimaya gazeta published an interview given by a number of officials, including Minister of Justice Yu. Chayka, his deputy Yu. Kalinin and the head of the Department of Execution of Penalties of the Ministry of Justice, during a press conference in the Butyrskaya pre-trial detention centre. The applicant claimed that they had admitted that the numbers of inmates in Russian SIZOs and prisons exceeded capacity by 52.2%, the most difficult situation being in the cities of Moscow and St Petersburg, the towns of Tver and Tula and the republic of Chuvashiya. 63. Rule 42 provided that all inmates, whether suspects or defendants, had to be given, among other things: a sleeping place; bedding consisting of one mattress, one pillow and one blanket; bed linen consisting of two sheets and a pillowcase; a towel; crockery and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own). 64. Rule 44 stated that cells in pre-trial detention centres must be equipped, among other things, with a table and benches with enough seating for the number of inmates, sanitation facilities, tap water, day lamps and nighttime lighting. 65. Rule 46 provided that prisoners were to receive food three times a day, with warm meals provided in accordance with the norms laid down by the Government of Russia. 66. Under Rule 47, inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh bed linen after they had taken a shower. 67. Rule 143 provided that an inmate could receive visits from his lawyer, family members or other persons, subject to written permission from an investigator or an investigative body, the number of visits being limited to two per month. 68. Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme. 69. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. 70. The programme mentions pre-trial detention centre IZ-69/1 amongst the ones affected. In particular, the programme states that, on 1 July 2004, the detention centre had a capacity of 1,160 inmates and in reality accommodated 1,587 detainees, in other words, 36.8% more than the permitted number. 71. The relevant extracts from the General Reports of the European Committee for the prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...” “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...”

dev

001-57976

ENG

GBR

CHAMBER

CASE OF HUSSAIN v. THE UNITED KINGDOM

Violation of Art. 5-4;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

John Freeland;N. Valticos

6. Mr Abed Hussain was born in 1962 and is currently detained in Lindholme prison. 7. On 12 December 1978, the applicant - then aged 16 - was convicted at Leeds Crown Court of the murder of his younger brother, aged 2. The applicant had inflicted severe injuries on the infant while looking after him. He received a mandatory sentence of detention "during Her Majesty’s pleasure" pursuant to section 53 (1) of the Children and Young Persons Act 1933 (as amended) (see paragraph 23 below). Its effect was to render the applicant "liable to be detained in such a place and under such conditions as the Secretary of State [for the Home Department] may direct". 8. In passing sentence on the applicant, the judge stated: "I regard you as someone who has demonstrated himself tobe a cruel and unfeeling young man. I think you are -certainly for the time being - a dangerous person." The applicant appealed against both his conviction and sentence. The Court of Appeal dismissed his appeal on 5 March 1980. 9. Mr Hussain was first detained in the youth wing of Liverpool prison and then in a young offenders’ institution before being transferred to an adult prison. 10. Under the administrative procedures governing such sentences as that received by the applicant, a "tariff" period is set to fix the number of years’ detention necessary to satisfy the requirements of retribution and deterrence (see paragraph 27 below). In this regard, in 1978 the trial judge wrote to the Secretary of State: "Over the two or three days immediately preceding thebaby’s death, [the applicant] had undoubtedly treated himwith very considerable violence by slapping, kicking andshaking. The baby was covered with over 60 bruises andhis brain and spine were injured. Since [the applicant]denied ever having laid hands on him, it was not possibleto discover why he had acted with such violence. [The applicant] is unquestionably an unscrupulous youngliar, but the most unusual feature of him was hisimpassivity. He demonstrated no feeling whatsoever forhis brother’s injuries and death. This gave me the impression that he is very probably avery dangerous young man who is quite unmoved bybrutality. I am anxious that this aspect of hischaracter should be borne fully in mind whenever thequestion of release arises. He still has three youngsiblings and their safety must be a predominantconsideration. I am deeply concerned at the appearanceof normality this young man gives; it is probably verymisleading. I cannot recommend any period for his detention. It willhave to continue until one can say with reasonablecertainty that maturation has rendered him safe. Thedifficulty is that he is already `old for his years’, asone police officer described him. Maturation hereinvolves much more than simply a young boy growing up.I can do no more than sound this sombre note of warning." 11. It was not until 1986 that the applicant’s tariff was set, at fifteen years, by the Secretary of State after a confidential process of consultation involving the trial judge and the Lord Chief Justice. In the course of this process, in which the applicant had no sight of any of the documents, the trial judge recommended a period of ten years "in view of the young age of [the] prisoner at the time of the offence"; the Lord Chief Justice agreed but stated that this should be "the absolute minimum". However, the Secretary of State commented: "I cannot accept the judicial tariff as matching the gravity of one of the most appalling offences I have encountered." He accordingly increased the proposed tariff by five years. The applicant first learnt about these details through a letter from the Home Office of 6 October 1994, sent in accordance with the House of Lords’ judgment of 24 June 1993 (see paragraph 30 below). 12. In the course of the applicant’s detention the Parole Board (see paragraph 37 below) has so far considered whether or not to recommend the applicant’s release on four occasions. 13. The first Parole Board review took place in December 1986. The reports of progress were positive and, as later disclosed to the applicant: "the Local Review Committee [see paragraph 38 below], whofelt that the risk was acceptable, considered Mr Hussain suitable to be given a provisional release date." The Parole Board did not however recommend the applicant’s release but it did recommend that he be transferred to a less restrictive category C prison with a further review to commence in August 1990. At the time, the applicant did not see any of the reports before the Parole Board and had no opportunity to appear before it. 14. The second Parole Board review took place in 1990. A Home Office summary of the review, disclosed later to the applicant, stated: "The Local Review Committee recommended that Mr Hussainshould be given a provisional release date ... The Board did not recommend Mr Hussain’s release, butrecommended his transfer to open conditions with afurther review to commence eighteen months thereafter.However, the Secretary of State rejected the Board’srecommendation and directed that he should move toanother category C prison with a further review tocommence in October 1992." Again the applicant did not see any of the reports on him and was afforded no hearing before the Parole Board. He was given no reasons for the decisions taken. 15. In the third review in December 1992, the Parole Board recommended that the applicant be transferred to open conditions with a further review in six months’ time. However, the Secretary of State, in exercise of his statutory powers (see paragraph 29 below), rejected this recommendation, directing that the applicant remain in close conditions with a further review to commence in March 1995. The applicant was only informed in March 1993 that his release had not been recommended and about the date of his next review. 16. In June 1993, Mr Hussain applied for judicial review (see paragraph 39 below) in respect of the decision communicated in March 1993 on the basis that he had not been shown the reports on him placed before the Board. He relied on the case of Prem Singh (see paragraph 24 below) as establishing that persons detained during Her Majesty’s pleasure had a right at common law to disclosure of reports. 17. On 13 October 1993, the Parole Board gave the High Court an undertaking to reconsider the applicant’s case immediately and to disclose their case file to him so that he could make informed representations. The applicant withdrew his application for judicial review. 18. At his most recent review in January 1994, the applicant was shown the reports on him that were before the Parole Board but he was not given an opportunity to appear in person before the Board. Following this review, the Secretary of State accepted the Parole Board’s recommendation to transfer the applicant to open-prison conditions, which transfer took place in February 1994. The Parole Board will again consider the applicant’s case in February 1996. 19. The applicant has been detained for over seventeen years. 20. A person who unlawfully kills another with intent to kill or cause grievous bodily harm is guilty of murder. English law imposes a mandatory sentence for the offence of murder: "detention during Her Majesty’s pleasure" if the offender is under the age of 18 (section 53 (1) of the Children and Young Persons Act 1933 (as amended) - see paragraph 23 below); "custody for life" if the offender is between 18 and 20 years old (section 8 (1) of the Criminal Justice Act 1982); and "life imprisonment" for an offender aged 21 or over (section 1 (1) of the Murder (Abolition of Death Penalty) Act 1965). 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 (for example manslaughter, rape, robbery). The principles underlying the passing of a discretionary life sentence are: (i) that the offence is grave and (ii) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside. Discretionary life sentences are indeterminate so that "the prisoner’s progress may be monitored ... so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large" (R. v. Wilkinson [1983] 5 Criminal Appeal Reports 105, 108). 21. The notion of detention during Her Majesty’s pleasure has its origins in statutory form in an Act of 1800 for "the safe custody of insane persons charged with offences" (Criminal Lunatics Act), which provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty’s pleasure shall be known" and described their custody as being "during His [Majesty’s] pleasure". 22. In 1908, detention during His Majesty’s pleasure was introduced in respect of offenders aged between 10 and 16. It was extended to cover those under the age of 18 at the time of conviction (1933) and further extended to cover persons under the age of 18 at the time when the offence was committed (1948). 23. The provision in force at present is section 53 (1) of the Children and Young Persons Act 1933 (as amended) ("the 1933 Act") which provides: "A person convicted of an offence who appears to thecourt to have been under the age of eighteen years at thetime the offence was committed shall not, if he isconvicted of murder, be sentenced to imprisonment forlife, nor shall sentence of death be pronounced on orrecorded against any such person; but in lieu thereof thecourt shall ... sentence him to be detained during HerMajesty’s pleasure and, if so sentenced he shall beliable to be detained in such a place and under suchconditions as the Secretary of State may direct." 24. In the case of R. v. Secretary of State for the Home Department, ex parte Prem Singh (20 April 1993, unreported) Lord Justice Evans in the Divisional Court held as follows in respect of detention "during Her Majesty’s pleasure": "At the time of sentencing, the detention orders undersection 53 were mandatory. It is indeed the statutoryequivalent for young persons of the mandatory lifesentence for murder. But the sentence itself is closerin substance to the discretionary sentence of which partis punitive (retribution and deterrence) and the balancejustified only by the interests of public safety when thetest of dangerousness is satisfied. The fact that themandatory life prisoner may be given similar rights asregards release on licence does not alter the fact thatthe mandatory life sentence is justifiable as punishmentfor the whole of its period: see R. v. Secretary of StateEx. p. Doody & Others [1993] Q.B. 157 and Wynne v. UK(E.C.H.R. 1st December 1992). The order for detentionunder section 53 is by its terms both discretionary andindeterminate: it provides for detention `during HerMajesty’s pleasure’... I would decide the present case onthe narrow ground that, notwithstanding Home Office andParole Board practice, the applicant should be regardedas equivalent to a discretionary life prisoner for thepurpose of deciding whether Wilson rather than Paynegoverns his case." (transcript, pp. 24C-25B) The court accordingly held that the applicant in the case, detained during Her Majesty’s pleasure, should be afforded the same opportunity as would be given to a discretionary life prisoner to see the material before the Parole Board when it decided whether he should be released after his recall to prison on revocation of his licence. The Parole Board has changed its policy accordingly. 25. However, in a statement in Parliament made on 27 July 1993 (see paragraph 32 below), the Secretary of State, Mr Michael Howard, explained that he included in the category of "mandatory life sentence prisoners" those "persons who are, or will be, detained during HerMajesty’s pleasure under section 53 (1) of the Childrenand Young Persons Act 1933 ..." 26. In R. v. Secretary of State for the Home Department, ex parte T. and Others [1994] Queen’s Bench 378, 390D, Lord Justice Kennedy in the Divisional Court (with whom Mr Justice Pill agreed) said: "I see no reason to regard him as having any specialstatus because he was sentenced to detention [during HerMajesty’s pleasure] rather than to life imprisonment,despite what was said by Evans LJ when giving judgment inReg. v. Parole Board, ex parte Singh (Prem)(20 April 1993, unreported). The issues in that casewere very different from those with which we areconcerned. If Hickey had not been sent to hospital hecould hope to benefit from the provisions ofsection 35 (2) of the 1991 Act [on mandatory lifeprisoners] ... It will be recalled that in Hickey’s casethe offence was murder, so the sentence was mandatory notdiscretionary." On appeal the Court of Appeal stated that in respect of a person sentenced to detention during Her Majesty’s pleasure under section 53 (1) of the 1933 Act for the offence of murder, the relevant provisions on release were those in section 35 (2) of the Criminal Justice Act 1991 (see paragraph 29 below), and not those relating to a discretionary life prisoner (R. v. Secretary of State for the Home Department, ex parte Hickey [1995] 1 All England Law Reports 479, 488). 27. 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 that period of imprisonment they should serve 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 in recent years, in particular following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 ("the 1991 Act"). 28. Section 61 (1) of the Criminal Justice Act 1967 ("the 1967 Act") provided, inter alia, that the Secretary of State, on the recommendation of the Parole Board and after consultation with the Lord Chief Justice and the trial judge, may "release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section 53 of the Children and Young Persons Act 1933". In this respect no difference was made between discretionary and mandatory life prisoners. 29. By virtue of section 35 (2) of the 1991 Act, persons detained during Her Majesty’s pleasure and those life prisoners who are not discretionary life prisoners (see paragraph 20 above), may be released on licence by the Secretary of State, if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge. The decision on whether to release still lies, therefore, with the Secretary of State. 30. The Secretary of State also decides the length of a prisoner’s tariff. Subsequently to a House of Lords judgment of 24 June 1993 (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531, 567G), the view of the trial judge is made known to the prisoner after his trial as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff. Where the Secretary of State decides to depart from the judicial recommendation he is obliged to give reasons. As a matter of practice the prisoner is informed of the Secretary of State’s final decision. In the second, post-punitive phase of detention the prisoner knows that "the penal consequence of his crime has been exhausted" (ibid., 557A). 31. A statement of policy issued by Sir Leon Brittan, then Secretary of State for the Home Department, on 13 November 1983 indicated that release on licence following expiry of the tariff depended on whether the person was considered no longer to pose a risk to the public. 32. On 27 July 1993 the Secretary of State, Mr Michael Howard, made a statement of policy in relation to mandatory life prisoners, stating, inter alia, that before any such prisoner is released on licence he "will consider not only, (a) whether the period served bythe prisoner is adequate to satisfy the requirements ofretribution and deterrence and, (b) whether it is safe torelease the prisoner, but also (c) the publicacceptability of early release. This means that I willonly exercise my discretion to release if I am satisfiedthat to do so will not threaten the maintenance of publicconfidence in the system of criminal justice". 33. In a number of recent court cases involving persons detained during Her Majesty’s pleasure, it has been stated that the correct test for post-tariff detention was to be whether the offender continued to constitute a danger to the public (R. v. Secretary of State for the Home Department, ex parte Cox, 3 September 1991; R. v. Secretary of State for the Home Department, ex parte Prem Singh, 20 April 1993 - cited above at paragraph 24; R. v. Secretary of State for the Home Department, ex parte Prem Singh (no. 2), 16 March 1995). 34. The 1991 Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell v. the United Kingdom (judgment of 25 October 1990, Series A no. 190-A). 35. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is now fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner is entitled to an oral hearing, to disclosure of all evidence before the panel (see paragraph 37 below) and to legal representation. There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross-examine those who have written reports about him. 36. For the purposes of the 1991 Act, persons detained during Her Majesty’s pleasure are not regarded as discretionary life prisoners (section 43 (2)). 37. Section 59 of the 1967 Act set out the constitution and functions of the Parole Board: "(1) For the purposes of exercising the functionconferred on it by this Part of this Act as respectsEngland and Wales there shall be a body known as theParole Board ... consisting of a chairman and not lessthan four other members appointed by the Secretary ofState. ... (4) The following provisions shall have effect withrespect to the proceedings of the Board on any casereferred to it, that is to say (a) the Board shall deal with the case onconsideration of any documents given to it by theSecretary of State and of any reports it has calledfor and any information whether oral or in writingthat it has obtained; and (b) if in any particular case the Board thinks it isnecessary to interview the persons to whom the caserelates before reaching a decision, the Board mayrequest one of its members to interview him andshall take into account the report of that interviewby that member ... (5) The documents to be given by the Secretary of Stateto the Board under the last foregoing subsection shallinclude (a) where the case referred to the Board is one ofrelease under section 60 or 61 of this Act, anywritten representations made by the person to whomthe case relates in connection with or since hislast interview in accordance with rules under thenext following subsection; (b) where the case so referred relates to a person recalled under section 62 of this Act, any written representations made under that section." As to the constitution of the Parole Board, Schedule 2 to the 1967 Act further provides: "1. The Parole Board shall include among its members (a) a person who holds or has held judicial office; (b) a registered medical practitioner who is apsychiatrist; (c) a person appearing to the Secretary of State tohave knowledge and experience of the supervision orafter care of discharged prisoners; (d) a person appearing to the Secretary of State tohave made a study of the causes of delinquency orthe treatment of offenders." The Parole Board always counts among its members three High Court judges, three circuit judges and a recorder. Cases referred to the Board may be dealt with by three or more members of the Board (Parole Board Rules 1967). In practice, the Board sits in small panels, including, in the case of life prisoners, a High Court judge and a psychiatrist. The judges on the Board are appointed by the Home Secretary (section 59 (1) of the 1967 Act) after consultation with the Lord Chief Justice. With the exception of the new rules concerning discretionary life prisoners, similar provisions apply under the 1991 Act. 38. Under section 59 (6) of the 1967 Act the Secretary of State established for every prison a Local Review Committee with the function of advising him on the suitability for release on licence of prisoners. It was the practice to obtain this assessment before referring a case to the Parole Board. Before the Local Review Committee reviewed a case, a member of the committee would interview the prisoner if he was willing to be interviewed. The first review by the Local Review Committee was normally fixed to take place three years before the expiry of the tariff. Local Review Committees were abolished by the Parole Board Rules 1992. The prisoner is now interviewed by a member of the Parole Board. 39. Persons serving a sentence of detention during Her Majesty’s pleasure may institute proceedings in the High Court to obtain judicial review of any decision of the Parole Board or of the Secretary of State if those decisions are taken in breach of the relevant statutory requirements or if they are otherwise tainted by illegality, irrationality or procedural impropriety (Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All England Law Reports 935, 950-51).

dev

001-102932

ENG

UKR

COMMITTEE

CASE OF ANDRENKO v. UKRAINE

Violation of Art. 6-1

Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

4. The applicant was born in 1957 and lives in Kharkiv. 5. On 20 April 1999 the applicant lodged a claim with the Kominternivskyy District Court of Kharkiv (“the Kominternivskyy Court”) against her brother. She sought the annulment of her father’s will. 6. On 26 November 2001 the Kominternivskyy Court left the claim without examination because the parties had failed to attend. 7. On 14 January 2002 the applicant lodged the same claim with the Kominternisvkyy Court. On the same date the court allowed the applicant’s request for securing the claim and seized the respondent’s property. 8. On 24 November 2008 the Kominternivskyy Court rejected the applicant’s claims as unsubstantiated. 9. On 12 December 2008 the applicant appealed against the judgment. On 12 January 2009 the Khrakiv Regional Court of Appeal left the appeal without examination as lodged out of time. 10. On 12 August 2009 the Supreme Court allowed the applicant’s appeal in cassation, which she had to resubmit on one occasion in order to comply with procedural requirements, quashed the decision of 12 January 2009 and sent the case for examination to the Court of Appeal. 11. On 14 October 2009 the Kharkiv Regional Court of Appeal examined the applicant’s appeal on the merits, after she had rectified certain shortcomings in her appeal. The court of appeal quashed the judgment of 24 November 2008, finding that the case had not been duly examined by the first-instance court and remitted the case for fresh examination. 12. The case is currently pending before the first-instance court. 13. In the course of the proceedings before the first-instance court, on 1 June 2004 and 15 March 2006 the applicant supplemented her claims. There were three expert examinations ordered on the applicant’s request and the proceedings were accordingly suspended for a total period of approximately eight months. The hearings were adjourned twenty-two times because of the applicant’s failure to appear or on her requests. On thirty-two occasions the hearings were adjourned because of the other participants’ failure to appear and of the judge’s absence or for technical reasons.

dev

001-98036

ENG

FRA

GRANDCHAMBER

CASE OF BROSSET-TRIBOULET AND OTHERS v. FRANCE

No violation of P1-1

Anatoly Kovler;Antonella Mularoni;David Thór Björgvinsson;Elisabet Fura;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych;Zdravka Kalaydjieva

8. The applicants were born in 1935 and 1938 respectively and live in Sainte-Croix-Grand-Tonne and Caen respectively. 9. On 26 May 1909 A. purchased the Isle of Irus in the Morbihan Bay from R., by contract signed before a notary. 10. By a decision of 25 September 1909, the Prefect of Morbihan authorised A. to build a dyke on a parcel of maritime public property situated on land belonging to the municipality of Arradon for the purposes of installing a four-metre by four-metre approach ramp on it from which he could reach the Isle of Irus, in particular, by boat. 11. By a decision of 25 August 1911, the Prefect of Morbihan authorised A. to enlarge the dyke. The relevant parts of the decision read as follows: “... From the point of view of conformity with the requirements of the Highways Authority, the dyke – once enlarged as requested – cannot interfere with navigation in any way, on condition that it is levelled above the high and spring tide water marks, or with maritime coastal traffic on condition that it is accessible to the public at all times. Regarding the fee to be charged ... the permittee shall pay an annual fee of 30 francs 40 centimes. ... ... In the event that this authorisation is revoked, the permittee must, if requested, restore the site to its original state. Should he fail to fulfil this obligation, the authorities shall do so of their own motion and at his expense. Any advance payments shall be reimbursed by the permittee on the basis of instruments enforceable at the Prefect's request ...” 12. On 2 May 1921 a deed of sale concluded before Mr Maigre, a notary, was published in the Vannes Mortgage Registry. By that deed, A. transferred ownership of the Isle of Irus to Mr S. The registration of this deed by the Mortgage Registry, in so far as it relates to the dyke in particular, reads as follows: “... Entry into possession – The purchaser shall acquire ownership of the Isle of Irus hereby conveyed to him from the date hereof and by virtue of this deed and shall take possession thereof from 1 March nineteen hundred and twenty-one. ... Mr [A.] declares that by a decision of the Prefect of Morbihan dated twenty-fifth September nineteen hundred and nine and by another decision dated twenty-fifth August nineteen hundred and eleven, he acquired at the place known as Pen-er-men a stretch of land measuring three hundred and thirty-three square metres ninety-eight square decimetres, registered in the land register of the municipality of Arradon under section number 137 for the purpose of building a dyke with a steel ramp measuring four metres by four metres. This concession was granted to him on the express condition that the dyke be accessible to the public and in consideration of an annual fee of thirty francs and forty centimes subject to review every five years. Accordingly, Mr [A.] hereby assigns all his rights relating to this stretch of land to the purchaser together with all structures erected by the vendor thereon and declares that there is no other positive or negative easement ...” 13. By a decision of 3 February 1938 the Prefect granted S.'s widow, the applicants' mother's aunt, authorisation to occupy the dyke for five years, specifying that the “dyke shall have a total surface area of 333.98 sq. m, but that the condition of accessibility to the public shall reduce the taxable surface area to 303.98 sq. m ... a strip of land running the entire length of the dyke shall be reserved ... as a public right of way”. 14. The applicants' mother acquired from her aunt, by inter vivos gift drawn up before a notary and published in the Vannes Mortgage Registry on 12 November 1945, a dwelling house built on the above-mentioned dyke: “There appeared before me Mrs Mangin, widow of Mr S, who has ... made an inter vivos gift to ... Mrs Mangin, widow of General Brosset, her niece of the property belonging to her in the municipality of Arradon called the Isle of Irus. Description: the Isle of Irus hereby conveyed comprises the entire island and all the immovable property of which it is composed, registered in the land registry as an area of twelve hectares ... Conditions: The gift is made on the following conditions ... The donee shall take the property in its current state without any right of action against the donor on any ground whatsoever and shall enjoy the property from the date hereof, which is the date of entry into possession. ... She shall pay taxes and insurance premiums against fire from the date hereof. Civil status – authorisation ... The said gift was authorised by the Prefect of Morbihan on the twenty-first September 1945. ...” 15. By a series of decisions, issued, inter alia, on 6 June 1951, 29 March 1967, 21 December 1977, 27 August 1984 and 10 July 1986, the Prefect of Morbihan authorised occupation of the dyke in question in consideration of payment of a fee. The decision of 1967 refers to renewal of the decision of 1951 authorising occupation of a dyke; those of 1984 and 1986 refer to the dyke and house. The prefect's decision of 10 July 1986 did not authorise occupation of the public property beyond 31 December 1990. The decisions stated that “the dyke cannot interfere with navigation in any way, on condition that it is levelled above the high and spring tide water marks, or with maritime coastal traffic on condition that it is accessible to the public at all times”. The authorisation forms specified that, in accordance with Article 26 and 27 of the State Property Code, “the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary, on any ground whatsoever, without the permittee thereby acquiring a right to claim any compensation or damages in that regard. The permittee must, if required, restore the site to its original state by demolishing the constructions built on the public property, including those existing on the date on which the decision was signed. Should he fail to comply with that obligation, the authorities shall do so of their own motion and at his expense”. 16. In the meantime, in 1966, the Department of Revenue from State Lands had written to the director of the State Lands Department in Vannes in the following terms: “You have submitted to me for observations and opinion a request for renewal of temporary occupation of maritime public property made by [the applicants' mother]. This request concerns a dyke of a surface area of 333.98 sq. m, reduced to a taxable surface area of 304 sq. m, on which a dwelling house has been built. The annual fee proposed by the Highways Authority is 100 francs. The case gives rise to the following observations: Article R 56 of the Code of State Property provides that any fee payable to the Treasury Department must take into account the advantages of any kind procured to the concessionaire. In the aforementioned case, there is no doubt that the concession of the dyke in question procures a not inconsiderable advantage to the applicant: in particular, it allows her to save on the capital that would otherwise be invested in the purchase of a building plot in the area in question... In these circumstances I find it fully acceptable to retain a sum corresponding to the amount of interest calculated at the very reduced rate of 5% of the value of the land conceded. ...” 17. On 15 March 1993 the applicants' mother applied to the Prefect of Morbihan for renewal of the occupancy agreement. 18. In a letter of 6 September 1993, the Prefect reminded her that the authorisation to occupy the house granted in 1986 had expired on 31 December 1990. He informed her that the entry into force of Law no. 862 of 3 January 1986 on the Development, Protection and Enhancement of Coastal Areas (hereafter “the Coastal Areas Act”), and particularly section 25, prevented him from renewing the said authorisation on the former terms because the use of public property had to take account of the designated purpose of the areas concerned, which ruled out any private use, including dwelling houses. However, having regard to the long period of occupation and the applicants' and their mother's sentimental attachment to the house in question, the Prefect said that he was willing to consider, exceptionally, granting limited authorisation restricting use of the property to strictly personal use and prohibiting any sale or transfer of the land and house, any work thereon other than maintenance, and reserving an option to the State, on expiry of the authorisation, to have the property restored to its original state or to reuse the buildings. He concluded by asking her to let him know quickly whether these conditions met with her approval so that “an illegal situation that had lasted two and a half years could be regularised”. 19. The applicants' mother refused the offer. By way of counterproposal, she sought a permit to build a dyke that would be valid as a transfer of ownership under Article L. 64 of the Code of State Property (see paragraph 44 below). 20. On 9 March 1994 the Prefect of Morbihan rejected the applicants' mother's request but maintained his initial offer of an occupancy agreement subject to conditions: “You have asked me to consider the possibility of having the dyke built on maritime public property that you occupy at Pen-Er-Men reclassified as private property, apparently with a view to acquiring the dyke and the property built on it ... I regret to inform you that the classic method of conceding property whereby the concessionnee of the property acquired full title, under Article L. 64 of the Code of State Property, to land that had been drained was abandoned by ministerial circular some years ago, on grounds of lack of proven general interest. Your request goes against this policy and I repeat the conditions stipulated in my letter of 6 September with a view to regularising your situation. Regularisation in this way could be done on the terms set out in the draft agreement attached. I should point out that the property fee will be adjusted upwards in order to take account of the particular nature of the occupancy of the property.” 21. On 5 May 1994 the applicants' mother applied to the Rennes Administrative Court for the Prefect's decision of 9 March 1994 rejecting her request for a permit to build a dyke to be set aside. 22. On 4 July 1995 the Prefect of Morbihan informed the applicants' mother that he was considering drawing up an official report recording the administrative offence of unlawful interference with the highway with a view to formally establishing the unlawful occupancy of public property. That official report was drawn up on 6 September 1995 and served on the applicants' mother on 16 November 1995. On 20 December 1995, on the basis of the finding of illegal occupancy of public property and in accordance with Article L. 28 of the Code of State Property (see paragraph 41 below), the Prefect lodged an application with the Rennes Administrative Court for an order against the applicants' mother to pay a fine and restore the property to its original state, that is, prior to construction of the house. 23. In two separate judgments delivered on 20 March 1997, the Rennes Administrative Court ruled on the application lodged by the applicants' mother on 5 May 1994 (case no. 941509) and the application lodged by the Prefect of Morbihan on 20 December 1995 (case no. 953516). 24. The court ruled as follows in respect of the applicants' mother's application for the Prefect's decision rejecting her request for a permit to build a dyke to be set aside: “In accordance with Article L. 64 of the Code of State Property, “the State may concede, on conditions it shall determine ... the right to build a dyke”. Whilst section 27 of the aforementioned Act of 3 January 1986 has reduced the scope of application of that Article, it does nonetheless specify that “land draining carried out prior to the present Act shall continue to be governed by the previous legislation”. Accordingly, the only provisions applicable to the present case are Article L. 64 of the aforementioned Code and the Maritime Public Property Act of 28 November 1963, which provides that ... “subject to any contrary provisions of deeds of concession, land artificially removed from the action of the tide shall be incorporated into the category of maritime public property”. In rejecting the request on the basis of the principles and guidelines laid down in the inter-ministerial circular of 3 January 1973 setting out the policy to be followed for the use of maritime public property, the Prefect – when examining the applicant's particular situation involving an application for a concession – did not err as to the scope of the circular in question, which neither repeals nor amends the above-mentioned legislative provisions but is limited to applying them. The aforementioned circular, which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use, to the exclusion of private dwellings, was issued in respect of an area in which the relevant authorities have discretionary power. In referring to the principles laid down in the circular, the Prefect does not appear to have interpreted the legislative provisions inaccurately; nor did he fail to consider the specificity of the applicant's proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above.” 25. In case no. 953516 the Rennes Administrative Court granted the Prefect's application of 20 December 1995, on the following grounds: “... The rules governing public property “... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property. As can be seen from the judgment delivered by the court today in case no. 941506, the land on which Mrs Brosset's dwelling house was built is indeed public property. The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty. In the present case the dyke and the house are not publicly owned property, given the exclusively private use made of them and the fact that they do not belong to a public authority. Accordingly, as it is not seriously disputed that the property in question has been appropriated for private use, it is not necessary to adjourn the application. ... Whether there has been unlawful interference with the highway ... Whilst Mrs Brosset has full title to the dwelling house occupied by her and maintains that she is therefore not the unlawful occupant of public property, the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession. The investigation into the facts and, in particular, the absence of any documents evidencing that a concession was granted show that the dwelling house in question was illegally built on maritime public property. Accordingly, the Prefect is justified in requesting an order against Mrs Brosset to pay a fine and restore the seashore to its original state prior to the construction of the house ... This must be done within three months of service of this judgment... . On the expiry of that period, Mrs Brosset shall pay a fine of 100 francs per day's delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender.” 26. On 11 July 1997 the two applicants, acting in their capacity as their mother's heirs after her death, lodged an appeal against the judgment delivered in case no. 953516. On 18 July 1997 they appealed against the judgment delivered in case no. 941509. 27. By a judgment of 8 December 1999, the Nantes Administrative Court of Appeal decided to join the two sets of proceedings on the ground that they were connected and to dismiss the applicants' appeals. With regard to the application relating to the offence of unlawful interference with the highway, the court noted first of all that Mrs Brosset had died during the proceedings and decided that the prosecution was therefore now extinguished. In respect of the State property proceedings, the Administrative Court of Appeal gave the following reasons for its decision: “ ... Firstly, it is not disputed that the parcel of land on which the dyke on which the house was built ... was entirely covered by water, independently of any exceptional meteorological circumstances, prior to the draining works undertaken in order to build the dyke. It has not been established, or even alleged by the applicants moreover, that the undrained portion of this land had ever been removed from the action of the tide. The investigation shows, moreover, that the dyke is the result of land draining carried out prior to the entry into force of the aforementioned Act of 28 November 1963 and that, notwithstanding the various authorisations of temporary occupancy granted by the authorities, as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property. In accordance with the principles of inalienability and imprescriptibility of public property, the submissions by Ms Triboulet and Ms Brosset-Pospisil to the effect that the house was built legally and its occupancy accepted by the authorities for a very long time and tolerated even after the expiry of the last authorisation to occupy it do not alter the fact that the land falls within the category of maritime public property. Secondly, as has been said, the last decision authorising temporary occupancy of the maritime public property ... expired on 31 December 1990. In the absence, since that date, of a lawful title of occupancy, the Prefect of Morbihan is justified in requesting an order against the occupants to restore the site – if they have not already done so – to its original state prior to construction of the house on maritime public property. In disputing that obligation, the applicants cannot properly rely on the number of years of occupancy of the premises or on the fact that the authorities have tolerated the continuation of that occupancy since 31 December 1990 and proposed draft occupancy agreements to Ms Brosset in order to regularise the situation, which, moreover, she has not taken up. ... Fifthly, [the obligation to restore the site to its original state] does not constitute a measure prohibited by the requirement of Article 1 of Protocol No. 1 that no one shall be deprived of his possessions except in the public interest.” Regarding the refusal to grant a concession to build a dyke, the Administrative Court of Appeal held as follows: “... Secondly, as section 27 of the above-mentioned Act of 3 January 1986 provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation, the provisions codified under Article L. 64 of the Code of State Property according to which “the State may concede, on conditions it shall determine ... the right to build a dyke ...” are applicable. The Prefect of Morbihan based his decision not to grant Mrs Brosset the requested concession to build a dyke on the guidelines set out in the circular of 3 January 1973 issued by the Minister for Economic Affairs and the Minister for Regional Development on the use of public property other than commercial or fishing ports. He did not discern any general-interest ground in favour of granting the applicant's request. By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto, the ministers signatory to the circular of 3 January 1973 did not adopt any legal rules amending or supplementing the above-mentioned provisions of Article L. 64 of the Code of State Property but confined themselves to applying them. Accordingly, as stated above, the plot of land in question is State-owned public property. There is no evidence in the case that the Prefect, before reaching his decision, either failed to examine the particular circumstances of Mrs Brosset's request or made a manifest error of assessment in concluding that there was no special feature or general-interest consideration in the case justifying an exemption from the above-mentioned rules”. 28. On 21 February 2000 the applicants lodged an appeal on points of law against the judgment of 8 December 1999. They submitted that in the absence of proof, which logically they could not have as they had acquired by gift a house already built on a previously constructed embankment, they had shown that the only legal means of building a dwelling house on a parcel of land supposedly falling within the category of public property was to obtain authorisation of temporary occupancy for private use of that land that did not expressly exclude the possibility of such an edifice being built on it. They concluded from this that the construction of a house, of which the authorities were aware and which they had accepted, had resulted in full title to the house passing to the occupants of the land. If this were not the case, it was for the Prefect to provide proof that the draining works undertaken at the beginning of the century had been illegal. The applicants also submitted that the penalty was disproportionate and that, in the absence of justification on grounds of the general interest, compensation should be paid for the damage wrongly caused. 29. The Government Commissioner pointed out, in the same submissions as those made in a similar case, that the value in today's terms of the purchase price of the house was 655,530 euros (EUR). He continued as follows: “ ... The appellants have not acquired any property right over their houses; nor have they acquired rights in rem over public property as a result of the successive transfers. Given the precarious situation of the buildings, the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up... . Lastly, and despite the fact that we are not especially enthusiastic about the outcome of this case, we have no alternative but to dismiss the appellants' pleadings. ... They probably committed a tactical error in refusing the Prefect's reiterated offer. Even if they were not exactly delighted by the prospect, it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense. All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution. There may be a case for suing the State in tort for allowing occupants of public property to nurture for almost a century the hope that they would not be ruthlessly compelled to demolish their property. It should be pointed out that the prospects of success of such an action are fairly slim, however, given the legitimate protection enjoyed by public property. In any event, it is clear that if the public authority were to be found liable, the offenders would bear a considerable portion of liability too.” 30. By a judgment delivered on 6 March 2002 the Conseil d'Etat dismissed an appeal lodged by the applicants. It held that they could not rely on any right in rem over the land in question or over the buildings that had been erected on it and that the obligation to restore the land to its original state without any prior compensation was therefore not a measure prohibited by Article 1 of Protocol No. 1. 31. On 6 August 2002 the director of the Department of Culture and Legal and Political Affairs for the Morbihan département wrote to the applicants in the following terms: “I have received some information from the Brittany Regional Cultural Affairs Department. It appears first of all that your house was not specifically listed by the Regional Inventory Service when they drew up an inventory for the Vannes-Ouest district in the early 1990s. However, Pen er Men Bay is well documented, as can be seen from a photograph available at the Inventory Service, in which your house appears very clearly. Furthermore, the Inventory Service has told me orally that if an inventory of the Vannes-Ouest district were to be carried out today, your house, and others in the same situation, would definitely be listed. In any event, the Inventory Service could usefully make submissions on your behalf to the Public Works Department for the département, among others, with a view to protecting the region's cultural heritage if a further threat of demolition were to be made. As regards, lastly, the possible classification or registration of your house in the supplementary list of historical monuments, you should not count on this, firstly because the State does not consider you as owner and secondly because it is inundated with requests, especially in the Morbihan. For the time being, given that the Public Works Department appears kindly disposed to your problem, I am not particularly worried.” 32. In 2008 the housing tax on the house came to EUR 584 and the land tax to EUR 708. The applicants produced a valuation of their house prepared by an estate agent in November 2008: “a dwelling house made of stone built in 1905 ... Having regard to the geographical situation of the property, the condition of the building, the surface area, its location on maritime public property and the local property market, and subject to the owners' ability to produce a concession agreement in respect of maritime public property, this property is worth between 800,000 and 1,000,000 euros”. 33. The idea that the foreshore is “common property”, that is, cannot be appropriated for private use and is managed by the public authorities, dates back to Roman times, when even then a permit was necessary in order to build on the seashore. Colbert's Ordinance of the Marine of August 1681 codified the principle and up until recently was still the legal basis for the State's management of maritime public property. In addition to defining what constituted the “seashore and foreshore”, it laid down the applicable rules: “No one shall build on the foreshore, set stakes in the ground or erect any construction that may interfere with navigation, on pain of demolition of the constructions, confiscation of the materials and discretionary fines”. At the time of the Revolution, the idea developed that maritime public property was governed by the Government in the interest of the nation, and not merely as part of the heritage that used to belong to the Crown and now belongs to the State. The management of maritime public property is still largely guided by this principle today. Over and above the idea of State ownership of such property, the conservation and management of it are more a matter of implementation of a policy regarding its use than the exercise of the owner's “civil” rights. The prefect has a major role in the protection of maritime public property. He is the authority who, generally, governs the use of the property at local level, decides whether or not to allow private occupancy and protects the integrity of the property by prosecuting offenders (source: www.mer.gouv.fr, consulted on 3 February 2010). Colbert's Ordinance of the Marine was definitively repealed in 2006. Since 1 July 2006 the General Code of Property owned by Public Bodies (Code general de la propriété des personnes publiques – “the CGPPP”) has replaced the Code of State Property (dating from 1957). It restructures the law governing State-owned land and public bodies and combines the rules governing maritime public property into a whole, including provisions relating to the environment in particular. 34. Maritime public property, determined on the basis of natural phenomena, lies between the highest point of the shore, that is, up to the high tide mark under normal meteorological conditions (CE Ass, Kreitmann, 12 October 1973) and the boundary of the territorial waters, seaward. Under Article L. 2111-4 of the CGPPP, “State natural maritime public property shall comprise: 1. The seabed and marine substrata between the external boundary of the territorial waters and, on land, the foreshore. The foreshore comprises the whole area covered (and uncovered) by the sea, up to the high tide mark under normal meteorological conditions; 2. The beds and sub-strata of salt pans communicating directly, naturally and permanently with the sea; 3. Land naturally reclaimed from the sea: a) which was part of the State's private property at 1 December 1963, subject to third-party rights; b) which has been constituted since 1 December 1963. ... 5. Land reserved for public-interest maritime, seaside or tourist needs which has been purchased by the State. 'Land artificially removed from the action of the tide shall remain in the category of natural maritime public property unless otherwise stipulated in legally concluded and lawfully executed deeds of concession transferring ownership'.” 35. The principle of inalienability of public land, which was established in the case-law and then incorporated into the Code of State Property (Article L. 52) and the CGPPP (Article L. 3111-1), is inextricably linked to the notion of public land. The basis of this principle is the designation of land for public use. As long as it remains thus designated, and no express decision has been taken reclassifying particular public land as private property, no transfer of land can be authorised. It is a means of preventing public land from being acquired by prescription or adverse possession under private law, hence the principle of imprescriptibility that is very often associated with the principle of inalienability. Accordingly, in its Cazeaux judgment, on the subject of plots of land situated close to the seashore in the Arcachon Basin the Conseil d'Etat found that “whilst the public authorities have authorised various building works on this land and on several occasions waived their right to apply the rules governing public land ..., neither the founders of the société du domaine des prés salés nor the company itself have been able to acquire any property right over the land, which, being part of public land, was inalienable and imprescriptible”. 36. The Constitutional Council has stated that inalienability is limited to precluding the transfer of public property that has not first been reclassified as private property (CC, no. 86-217 DC of 18 September 1986, Freedom of communication). It has not, however, recognised that the principle of inalienability has any constitutional status (CC, dec. no. 94-346 of 21 July 1994, Rights in rem over public property). The Conseil d'Etat has recently reiterated that “where property belonging to a public authority has been incorporated into the category of public land by virtue of a decision classifying it thus, it shall remain public land unless a decision is given expressly reclassifying it as private property”. Accordingly, it has held that the question whether or not short-stay factories fell into the category of public property was not affected by the fact “that these short-stay factories were intended to be rented or assigned to the occupants or that the occupancy leases granted were private-law contracts” (CE 26 March 2008, Société Lucofer). 37. The effect of the principle of inalienability is that any transfer of public land that has not been “reclassified” is null and void, so third-party purchasers have a duty to return the land even if they have purchased it in good faith. Moreover, the fact that public land is inalienable means – in theory – that no rights in rem can be established over it. However, the legislature has departed from this principle by passing two Acts, one of 5 January 1988 which creates long administrative leases, and the other of 25 July 1994 on the constitution of rights in rem over public land, thus making it possible to grant private rights in rem to occupants of maritime public property. The Act of 5 January 1988 concerns only public land belonging to local and regional authorities or groups thereof. The Act of 25 July 1994 relates to artificial maritime property and immovable constructions and installations built for the purposes of an authorised activity (Article L. 34-1 of the Code of State Property and Article L. 2122-6 of the CGPPP). In its above-mentioned decision of 21 July 1994, the Constitutional Council held that granting rights in rem in this way was compatible with the Constitution as public services were maintained and public property protected under the 1994 Act. However, it declared the provision allowing the renewal of authorisation beyond seventy years unconstitutional on the ground that it could potentially render ineffective the public authority's right to the automatic return, free of charge, of any constructions and therefore undermine the “protection due to public property”. 38. The last consequence of the principle of inalienability is that property belonging to public authorities cannot be seized (Article L. 2311-1 of the CGPPP). This consequence has been attenuated by a decision of the Conseil d'Etat in a case which subsequently came before the Court (Société de Gestion Du Port de Campoloro et Société fermière de Campoloro v. France, no. 57516/00, 26 September 2006). 39. Apart from public easements intended to protect public property from the encroachment of private properties, such as a three-metre wide right of way along the coast over properties adjoining maritime public property, created by an Act of 31 December 1976 reforming town and country planning, the land conservation policy guarantees the protection of the physical integrity of maritime public property and compliance with its designated use. Offenders are prosecuted for unlawful interference with the highway on grounds of infringement of the land conservation policy. An interference of this kind is liable to a criminal fine imposed by the administrative courts and the offender is required to restore the site to its original state. The relevant provisions on unlawful interference with maritime public property no longer refer essentially to navigation but take account of the protection of coastal areas for their own sake (Articles L. 2132-2 and L. 2132-3 of the CGPPP). 40. According to the Conseil d'Etat, conservation agencies have a duty to prosecute offenders (CE Ministre de l'équipement v. Association “des amis des chemins de ronde”, 23 February 1979). Regarding a plot of land incorporated into maritime public property at Verghia beach (southern Corsica), the Conseil d'Etat decided that “the fact that M.A. produced title deeds to the property in question and had been authorised to build on the land under the regional planning legislation, as distinct from the legislation governing maritime public property, does not mean that the offence of unlawful interference with the highway has not been made out and, in any event, cannot preclude prosecution by the Prefect ...” (CE, no. 292956, 4 February 2008). With regard to repairing damage caused to public property, the actual attitude adopted by the authorities prior to bringing proceedings for unlawful interference with the highway has been deemed to give rise to rights in favour of the offender, including the right not to assume personal responsibility for restoring the site to its original state (CE, Koeberlin, 21 November 1969). 41. The use of maritime public property may be collective or private. Collective use which allows all citizens to benefit from public property (navigation on watercourses, beaches) is freely exercisable, equally available to all and free of charge. However, the principle that use is free of charge has not been expressly incorporated into the CGPPP because it is subject to numerous exceptions. Private occupancy must be compatible or in conformity with the designated use of the public property. Unlike collective use, it is subject to authorisation, issued personally, and a charge and is of a precarious nature. Article L. 28 of the Code of State Property (Article L. 2122-1 of the CGPPP) provided that “Subject to authorisation being issued by the competent authority, no one may occupy any national public property or make use thereof over and above the right of use vested in everyone. The Property Department shall record any infringement of the provisions of the preceding paragraph with a view to instituting proceedings against illegal occupants, recovering compensation for charges in respect of which the Treasury Department has been defrauded, without prejudice to the institution of proceedings for unlawful interference with the highway.” [Article A 26 specified that authorisation was revocable without compensation]. 42. According to the Conseil d'Etat, “whilst the authorities may, as part of their management powers, authorise – provisionally and on the conditions provided for by the rules in force – private occupancy of the said land, that authorisation cannot legally be granted unless, having regard to the requirements of the general interest, it is compatible with the designated use of the land that the public are normally entitled to exercise, and with the obligation incumbent on the authorities to conserve public land” (CE, Commune de SaintBrévinlesPins, 3 May 1963). 43. The precariousness of these authorisations derives from the principle of inalienability, according to which the protection – and accordingly the disposal – of public land is vested in the authorities. According to the case-law, “any authorisation to occupy public land is precarious and revocable. Consequently, the fact – assuming it is made out – that, prior to adoption of the decision being challenged, I. had been granted authorisation to occupy the part of common public property ... does not affect the lawfulness of the mayor's decision requesting him to demolish the buildings he had erected and restore the public land to its original state ...” (CE, Isas, 29 March 2000). It also states very clearly that those to whom authorisation has been granted have not thereby “acquired rights” to renewal of the authorisation (CE, Helie, 14 October 1991). 44. The conditions of occupation of public property are determined either in unilateral concessions granted by the authorities (of the type referred to above in Article L. 28 of the Code of State Property) or in contracts signed with the occupant. The latter are called concessions to occupy public land, which – on maritime public property – may be a beach concession or a concession to build a dyke. By means of this concession, the State authorises the concessionaire to carry out works on the foreshore by which land is removed from the action of the tide. In respect of natural maritime public property an arrangement was established in 1807, traditionally called a concession to build a dyke and by which ownership was transferred (former Article L. 64 of the Code of State Property): the concessionaire was authorised to drain land, which, once removed from the action of the tide, no longer fell within the definition of natural maritime public property and could therefore be reclassified as private property and transferred by the State. That arrangement, which was originally used to build agricultural polders, has more recently been used for property developments in the form of marinas, reclaimed from the sea. Following a reaction to what was perceived as a privatisation of the shore, a circular was issued in 1973 prohibiting such arrangements – a prohibition later confirmed by the Coastal Areas Act, which imposes a broader prohibition on any interference with the natural state of the shore. It is now no longer possible to build marinas or polders by means of concessions to build dykes by which ownership is transferred. This arrangement can now apply only to past draining works and is the sole means of legalising these (source: www.mer.gouv.fr). 45. Up until 1986 maritime public property was protected by the rules governing the highways. The Coastal Areas Act introduced new rules for the protection of natural public land (source: www.mer.gouv.fr). 46. As early as the 1960s enthusiasm for seaside holidays brought about an increase in the number of tourists and thus in the number of buildings on the seashore ... . Awareness of the economic importance of the seashore and of the degree to which it is coveted made it necessary to introduce a rule of overriding legal force that would arbitrate between the many uses of coastal areas. It is in this spirit that the Coastal Areas Act of 3 January 1986 (consolidated on 7 August 2007) was unanimously passed by Parliament. Section 1 of the Act provides that coastal areas are “geographical entities which call for a specific policy of development, protection and enhancement”. The general principles of that Act consist in preserving rare and fragile areas, managing spatial planning and tourist development economically and, lastly, making the shore – like the beach – more widely accessible to the public and giving priority in coastal areas to marine-related activities. 47. It is in the planning sphere that the principles established are the best known and have given rise to the most litigation. Planning permission for further development must be granted with regard to continuation of existing constructions or new hamlets. It is forbidden to build roads on the shore and through roads cannot be built closer than 2,000 metres from the shore. In order to preserve natural sites the Act imposes a “no building” rule within a 100-metre band – outside urban centres – from the shore, and restricts development in areas near the shore. Lastly, sites of outstanding interest or characteristic of the shore must be preserved and only small-scale development can be allowed. 48. The Act has laid down rules for managing maritime public property which include a mandatory public inquiry prior to any substantive change of use, clarifying the procedures for delimiting the foreshore, prohibiting – other than in exceptional circumstances – interference with the natural state of the seashore and establishing specific rules for collective mooring. Lastly, it has established the principles of unobstructed and free public use of the beaches and facilitated public access to the sea (see Article 321-9 of the Environment Code and Article L. 2124-4 of the CGPPP: “Pedestrians shall have free access to beaches ... . Beaches are fundamentally reserved for the unobstructed and free use of the public.” 49. Section 25 of the Act, now Article L. 2124-1 of the CGPPP, has given rise to a reform of the rules governing the occupation of maritime public property. It provides: “Decisions regarding the use of maritime public property shall take account of the vocation of the zones in question and those of the neighbouring terrestrial areas, as well as of the requirements of conservation of coastal sites and landscapes and biological resources. Accordingly, they shall be coordinated with, inter alia, decisions concerning neighbouring public land. Subject to specific provisions regarding national defence and the requirements of maritime safety, any substantive change of use of zones of maritime public property shall first be the subject of a public inquiry ...” 50. Section 27 of the Act, now Article L. 2124-2 of the CGPPP, lays down the principle that there shall be no interference with the natural state of the seashore: “Subject to sea defence operations being carried out and the construction of structures and installations required for maritime safety, national defence, sea fishing, salt works and marine cultures, the natural state of the seashore, outside port and industrial port areas, may not be damaged, especially by dyke construction, drainage, rock filling or embankment forming, except for structures or installations related to providing a public service or carrying out construction work for which the seaside location is essential for topographical or technical reasons that have been declared of public interest. However, land draining carried out prior to the present Act shall continue to be governed by the previous legislation.” 51. The following is an extract from the section entitled “Matching facts with the theory” of a report on the conditions of application of the Coastal Areas Act, drawn up by the Highways Authority and sent to the Minister for Infrastructure, Housing and Transport in July 2000: “... there is an acute sense of unfairness when an application for planning permission is turned down in respect of a site where the presence of buildings would appear to suggest that at other times the authorities have been less particular. ... The right to enjoy “for life” but not to transfer a dwelling house built on maritime public property, as recognised in an agreement signed with the Prefect, the right granted to a married couple until their death to camp or park their caravan in a zone in which camping was now illegal, together with an agreement expressly stipulating that the right could not be inherited, illustrate the creativity shown by the authorities in this regard in Charente-Maritime and the Morbihan. ... All sorts of liberties are increasingly being taken in various degrees of good faith. ... Should we simply ignore the development of a black market in permits to occupy public property ... Should we not be attempting to establish liability on the part of public officials who in the course of their administrative duties have knowingly contributed to creating or exacerbating an illegal situation? ...” 52. A report entitled “Assessment of the Coastal Areas Act and measures in favour of coastal areas”, prepared by the Government for Parliament (September 2007), contains a part devoted to opening coastal areas to pedestrians which is worded as follows: “The purpose of the Coastal Areas Act is to maintain or develop tourism in coastal areas. Sections 3 to 8 of the Act, in particular, lay down the conditions in which the public may visit natural sites, the seashore and the corresponding facilities. The provision of coastal paths goes some way towards giving effect to these legislative provisions. ... The public can continue to walk along the coast by virtue of an easement over private properties and a right of way over public land that may belong to the State (maritime public property), the Coastal Protection Agency or local and regional authorities ... . Making a pathway often requires an on-site study of the terrain in order to determine whether the coastal area in question can be opened to pedestrians without harming the fauna, the flora or the stability of the soil. If the land is considered to be accessible without any risk to the environment, regard will have to be had to where the path is routed, particularly across private property, it being observed that the statutory route (three metres in width running along the boundary of maritime public property) is not always the most appropriate solution. If the statutory route across private properties has been modified, a public inquiry must be carried out. ...” 53. The Court examined the situation in sixteen coastal member States. Only four States (Albania, Bosnia-Herzegovina, the United Kingdom and Sweden) do not recognise the existence of maritime public property exclusive of any private ownership rights. In the other twelve States (Germany, Croatia, Spain, Greece, Ireland, Italy, Malta, Monaco, Montenegro, the Netherlands, Slovenia and Turkey), maritime public property belongs either to the State or to other public bodies and is inalienable on that basis. In all these States maritime public property can nevertheless be designated for private use on the basis of fixed-term concessions. And in all these States illegal use exposes the offender to administrative or even criminal penalties. In particular, the illegal construction of immovable property can result in the offender being ordered to demolish the building concerned at his or her own expense and without compensation. This type of measure also exists in Sweden, where the private right of ownership of land on the seashore is recognised by law but the land is subject to relatively strict easements which prohibit the construction of new buildings and guarantee public access to the sea. 54. In Croatia, as in Spain, the owners of buildings legally built and acquired before the entry into force of the “Maritime Property Act” (2006) in the case of the former and the Coastal Areas Act in the case of the latter (1988), and designed for use as a dwelling, could obtain a concession of these buildings, without any obligation to pay a charge on the sole condition that they apply for the concession within one year of the entry into force of the Act. In Spain properties built before the Act came into force without a permit or concession as required by the previous legislation will be demolished if they cannot be legalised on public-interest grounds. Any building that was authorised before the Act came into force but is now illegal will be demolished on the expiry of the concession if it is located on land falling within the category of maritime public property. In Turkey, according to the case-law of the Court of Cassation (judgment of 10 October 2007), which refers to the judgment in Doğrusöz and Aslan v Turkey (no. 1262/02, 30 May 2006), if the annulment of a property deed in respect of property located inside the delineation of the seashore is compatible with the domestic legislation, the interested party can apply to the courts for compensation for his or her pecuniary loss. 55. The following relevant texts can be cited: Recommendation No. R (97) 9 of the Committee of Ministers on a policy for the development of sustainable environment-friendly tourism in coastal areas adopted on 2 June 1997, and the appendix thereto; and the decision of the Committee of Ministers taken at its 678th meeting (8-9 September 1999) at which the Ministers' Deputies take note of the Model Law on sustainable management of coastal zones (see Article 40 on Public maritime domain and Article 45 on Pedestrian access to beaches and coasts); and the European Code of Conduct for Coastal Zones and agree to transmit them to their respective Governments.

dev

001-94642

ENG

MDA

CHAMBER

CASE OF DESERVIRE S.R.L. v. MOLDOVA

Violation of Article 6 - Right to a fair trial;Violation of Article 13+6 - Right to an effective remedy (Article 6 - Right to a fair trial)

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

5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 13 October 1992 the local authorities of Briceni decided to split the State-owned Regional Association for Production and Services (“the Association”) into two companies, one of which was the applicant company. On 28 December 1992 the applicant company was officially registered with the authorities as a private company and was subsequently assigned certain assets belonging to the Association. 7. The applicant company operated until 3 December 1993, when the local authorities sealed its premises in order to recover State property allegedly held by it. On 16 December 1993 the local authorities decided to create a State-owned company (“the State company”) with a similar name to that of the applicant company and to transfer to it the Association's assets which had been assigned to the applicant company in 1992. 8. The applicant company claimed that its own property had been seized on 3 December 1993 together with the property that had formerly belonged to the Association and had been assigned to it in 1992. It also claimed that it had paid for the property assigned to it in 1992 and that therefore the seizure of 3 December 1993 had been unlawful. When the State company refused to return the seized assets, the applicant company initiated court proceedings. 9. On 12 May 1994 the Briceni District Court allowed the applicant company's claims. On 1 June 1994 the Supreme Court of Justice quashed that judgment and ordered a full rehearing of the case. 10. On 15 February 1995 the Briceni District Court discontinued the proceedings on the ground that the arbitration courts were competent to examine such cases. On 22 March 1995 the Supreme Court of Justice upheld that decision. 11. On an unknown date in 1995 the applicant company initiated proceedings before the Arbitration Court. On 27 November 1995 the Arbitration Court partly allowed the applicant company's claims. On the same day the court issued an enforcement order, which was amended on 19 December 1995. 12. On 5 February 1996 the enforcement of the decision of 27 November 1995 was suspended pending an appeal before the Supreme Court of Justice. 13. On 2 July 1996 the decision of 27 November 1995 was amended by the Arbitration Court, reducing the amount awarded to the applicant company. 14. On 1 July 1997 the Arbitration Court of the Republic of Moldova annulled all the previous judgments and ordered a full rehearing of the case. 15. On 26 September 1997 the Chişinău Arbitration Court partly allowed the applicant company's claims. 16. On 14 November 1997 the applicant company complained to various authorities, including the Supreme Council of the Judiciary, of unnecessary delays in the proceedings. The complaints were forwarded to the court examining the case. 17. On 16 January 1998 the Appeals Chamber of the Arbitration Court of Moldova quashed the judgment of 26 September 1997 and ordered a full rehearing of the case. 18. On 23 March 1998 the Chişinău Arbitration Court partly allowed the applicant company's claims. On the same day the court issued an enforcement order. No appeal was lodged and the judgment became final fifteen days later. 19. On 4 May 1998 the Prosecutor General's Office lodged an application for annulment of the final judgment and asked the Supreme Court of Justice to reopen the proceedings. On 3 June 1998 the Supreme Court of Justice allowed the request and quashed the final judgment of 23 March 1998, ordering a full rehearing of the case. 20. The Chişinău Arbitration Court scheduled some thirty-one court hearings in the months that followed, almost all of which resulted in decisions to adjourn the proceedings and summon the parties for another date, because more evidence was necessary, or one of the parties was absent, or because a connected set of proceedings to determine who should represent the State company was in progress. This period lasted from 23 September 1998 until 25 March 1999. 21. During one of the hearings, on 8 October 1999, the court noted that there was a disagreement between the parties as to the correct valuation of the disputed property and concluded that an expert valuation was necessary. It therefore suspended the proceedings and ordered an expert report on the companies' accounts, to be paid for by the applicant company. The report, dated 18 May 2000, confirmed that the State company owed the applicant company 778,877 Moldovan lei (MDL). According to the Government, the report was submitted to the court on 21 July 2000. 22. On 15 December 2000 the applicant company sought leave to pay the court fees by instalments, referring to its poor financial state. The Court accepted the request, noting, inter alia, that the proceedings had started in 1995, that the case had been sent for a fresh examination and that the examination of the case had already lasted for a long time. 23. On 19 November 2002 the Chişinău Arbitration Court partly allowed the applicant company's claims. 24. On 12 February 2003 the Supreme Court of Justice decided to assign the case to the Chişinău Court of Appeal in view of the fact that all the judges of the Appeals Chamber of the Economic Court had already examined the case earlier. 25. On 3 June 2003 the Chişinău Court of Appeal upheld the judgment of 19 November 2002. 26. On 23 October 2003 the Supreme Court of Justice quashed the lower courts' judgments and adopted a new one, rejecting all the applicant company's claims as unfounded. It found, in particular, that it had not been proved with sufficient certainty that the applicant company had acquired any property of its own in addition to the property which had been assigned to it in 1992 and which it had had to return to the State company. Several items which the applicant company had proved to be its own property had been returned by the State company or compensation had been paid. The creation of the applicant company, with State property but in private ownership, had been contrary to the law, and a number of its claims concerning its financial dealings with the State company could not be verified because the original documents had been destroyed after the expiry of the relevant time-limits for keeping them. The judgment of the Supreme Court of Justice was final. 27. On 28 March 2008 the Appeals Chamber of the Economic Court of Moldova decided to put the applicant company into liquidation for non-payment of debts.

dev

001-58223

ENG

FRA

CHAMBER

CASE OF GUILLEMIN v. FRANCE (ARTICLE 50)

Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Franz Matscher;R. Pekkanen

14. In a judgment of 26 May 1997 the Evry tribunal de grande instance ruled as follows: The application against Saint-Michel-sur-Orge Town Council The town council was certainly the instigator of the expropriation – subsequently declared unlawful – that gave rise to the damage sustained by the plaintiffs, and it has already been held to be liable in the judgment of 23 October 1995. The amount of this damage must therefore now be assessed and the town council ordered to pay the resulting sums. As regards the value of the building and the damage resulting from loss of enjoyment, it should be remembered that as all damage is to be assessed as at the date on which the assessment is made, the value of the building must be assessed as at the date of this judgment. But the interference with enjoyment must be assessed in relation to the income that the property would have brought in from the date of dispossession to the present day, and that presupposes that the land in question should also be valued at the date of dispossession, that is to say in July 1983. … The total value of the property, including the repurchase allowance, is therefore FRF 1,038,043; this figure was arrived at by the expert in September 1996 but, in the absence of any significant [change] since then, it will be adopted as being still valid at the date of this judgment. The plaintiffs should therefore be awarded the sum of FRF 1,038,043 in respect of the value of the property of which they have been dispossessed. The damage resulting from the loss of this property will be assessed on the basis of 6.5% – the average rate of return – of the value of the property in 1983, with annual indexation, as the expert recommended, that method of calculation and rate corresponding to the reality of the situation as it has developed since 1983. … And the damage resulting from interference with enjoyment will thus be assessed at FRF 415,883 in all. Apart from the foregoing damage, the plaintiffs have indisputably sustained damage distinct from the pecuniary or material damage through being deprived of a property that they were entitled to wish to keep and on account of the endless difficulties they encountered [over] many years in seeking compensation whose principle could not be in doubt. This non-pecuniary damage will be compensated by the award of a sum of FRF 150,000, an assessment which cannot be in any way affected by the judgment of the European Court of Human Rights. Interest shall be payable on the totality of the foregoing sums from the date of this judgment, having regard to their compensatory nature. Furthermore, regard being had to the length of time the case has lasted and the plaintiffs’ indisputable right to be compensated, this judgment shall be immediately enforceable notwithstanding any appeal, as is moreover appropriate to the nature of the case. …” In so deciding, the court adopted the assessment made in the court-appointed expert’s report that was filed on 29 July 1996. 15. On 4 November 1997 the President of the Paris Court of Appeal, ruling on the application for an interim order by Saint-Michel-sur-Orge Town Council and the Evry New Town Development Corporation, refused the council’s and corporation’s requests for a stay of execution of the judgment of the Evry tribunal de grande instance. His order read as follows: “… The general principle of law that property belonging to public bodies is exempt from execution, thus making it impossible to have recourse to the execution procedures of private law, has no bearing on the present case, as the execution of judgments by public bodies is governed by the special rules laid down in Law no. 80-539 of 16 July 1980. Nor is the considerable sum of damages awarded a sufficient ground in itself for staying immediate execution, and in any event the defendants did not claim that immediate payment of the sums in question would have manifestly unconscionable consequences for them within the meaning of Article 524 of the New Code of Civil Procedure. Furthermore, they did not in any way establish that Mrs Guillemin and Mrs Grandjean had not provided sufficient security to satisfy any order for restitution in the event of the decision’s being set aside by the Court of Appeal. It follows that the applications by St-Michel-sur-Orge Town Council and EPEVRY must be dismissed in their entirety. …” 16. On 13 March 1998 the Paris Court of Appeal delivered its judgment on the appeal by Saint-Michel-sur-Orge Town Council against the judgment of the Evry tribunal de grande instance. It reduced the amounts awarded by that court on the following grounds: “… The value of the real property … The land cannot be valued on the day of compensation by indexing the price per sq. m in 1982 in line with the building cost index, which is inappropriate in the instant case. In order to arrive at the present-day value of the property, regard will be had to the fluctuations in property prices in the sector concerned for comparable properties, which gives a round figure of 500,000 francs, whence a repurchase allowance of … 105,000 francs and a total sum of 500,000 francs + 105,000 francs = 605,000 francs. The expert has made an expert assessment of the value of the improvements (buildings, gardens and swing), valuing them at 38,200 francs (1983 value). The present-day value may be assessed, as it was by the court below, at 55,518 francs. In consequence, Mrs Guillemin and Mrs Grandjean will receive in respect of the loss of the value of the property total compensation of 660,518 francs. Loss of enjoyment The damage resulting from the loss of this property since 1 July 1983 will be assessed at 300,000 francs, regard being had to the average return to be expected from such a property. Non-pecuniary damage The sum of 50,000 francs will be awarded to Mrs Guillemin and Mrs Grandjean in respect of the non-pecuniary damage resulting from the unjustified dispossession of their property and the trouble caused by the reluctance of Saint-Michel-sur-Orge Town Council to compensate them for the damage arising from their unlawful eviction from their property in 1983. …” 17. On 2 April 1998 Saint-Michel-sur-Orge Town Council transferred to the CARPA account of Mr Horta, Mrs Guillemin’s counsel in the proceedings before the national courts, the sum awarded her by the Evry tribunal de grande instance. According to the applicant, the town council was going to seek restitution of the difference between the sum it had paid and the one awarded by the Paris Court of Appeal. 18. On 5 June 1998 Mrs Guillemin appealed on points of law against the Court of Appeal’s judgment. 19. In her submissions on the application of Article 50 the applicant requested the Court: “To order France to pay the applicant, pursuant to Article 50 of the Convention, the sum of FRF 3,735,000 in respect of the violation of Article 1 of Protocol No. 1, together with statutory interest from the date of the judgment. In the alternative: To reserve the question of the application of Article 50 pending the judgment of the Court of Cassation. In any event: To order France to pay Mrs Guillemin the sum of FRF 30,000 in respect of costs of representation, together with statutory interest from the date of the judgment.” 20. The Government considered that the “payment by [the] town council of the sums awarded to Mrs Guillemin as compensation for her pecuniary damage [made] it possible to envisage closing the case…”

dev

001-85085

ENG

BGR

CHAMBER

CASE OF RUMYANA IVANOVA v. BULGARIA

No violation of Art. 6-1+6-3-d;No violation of Art. 10

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

5. The applicant is a journalist by profession. At the relevant time she was employed as a reporter at 24 Hours, one of the leading national daily newspapers. She continues to work there at present. 6. Following a serious banking crisis in 199697, during which a number of banks were sunk into insolvency by, inter alia, non-performing and unsecured loans extended to corporate and individual clients, the Bulgarian legislature enacted a comprehensive package of bank reform legislation (see Capital Bank AD v. Bulgaria, no. 49429/99, § 45, 24 November 2005). Part of that package was the Information on NonPerforming Credits Act of 1997 (“Закон за информация за необслужвани кредити”), which stipulated that the Bulgarian National Bank should compile a list of all bank borrowers with loans that had been due for more than six months, send this list to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities, and the National Assembly, and publish it in a special bulletin. The persons on this list were colloquially referred to as “credit millionaires”. 7. On 21 January 1998 the head of the banking supervision department of the Bulgarian National Bank presented the list to the chairman of the National Assembly. 8. Between 1994 and 1997 Mr M. D. was a Member of Parliament elected on the ticket of the political party Movement for Rights and Freedoms. He was deputy chairman of the Economy Committee and a member of the Budget and Finance Committee of the National Assembly. In the spring of 2001 he became involved with the newly formed coalition National Movement Simeon II, which won the parliamentary elections on 17 June 2001. During the 1990s Mr M. D. was a member of and shareholder in a number of commercial companies. Between 1995 and 2001 his name was mentioned in at least twentyfour reports in national newspapers. 9. On 22 January 1998 Trud, a leading national daily newspaper, published an article under the headline ‘Credit millionaires disclosed’ and the caption ‘Several incumbent and former members of Parliament appear on the list’. In the article the newspaper reported on the handover of the list of “credit millionaires” to the chairman of the National Assembly the previous day and mentioned, inter alia, that several companies connected with the name of Mr M. D. were on the list. According to the article, the company Maxcom Holding owed 3.2 billion old Bulgarian levs (BGL) to one bank, the company FBK Maxcom owed BGL 9.4 billion to another bank, and the company Maxcom OOD was indebted in an amount of BGL 7.8 billion. 10. On 30 January 1998 Mr M. D. issued civil libel proceedings against the publisher of Trud, Media Holding AD. He said that the allegation made in the article that he was a “credit millionaire” was not true. He further averred that this allegation seriously tarnished his reputation as a public figure and a Member of Parliament. He sought BGL 10,000,000 in nonpecuniary damages. 11. In a judgment of 9 January 1999 the Sofia City Court dismissed the action. It held that Mr M. D.’s allegations had not been supported by any evidence and were therefore unsubstantiated. Neither party had attended either of the hearings in the case. Mr M. D. had not sought leave to adduce any evidence. He had therefore not proven his claim that he had suffered any damage on account of the impugned article. Apparently Mr M. D. did not appeal and the judgment entered into force on 9 March 1999. 12. On 3 August 2001 the parliamentary group of the National Movement Simeon II held a closeddoors meeting in the National Assembly in order to discuss, inter alia, the candidates for the position of deputy Minister of Finance in charge of customs. For this reason the applicant, who at that time worked as a parliamentary reporter, went, together with other journalists, to the National Assembly lobby. There they met Members of Parliament, who told them that Mr M. D. was being considered for the abovementioned position. One of the MPs apparently said that his candidacy would probably not be approved because the Prime Minister was wary of the fact that Mr M. D.’s name featured on the list of “credit millionaires”. At that point the applicant called the editor of 24 Hours and said that she would prepare an article on the topic. She also telephoned Mr N., the press officer of the customs administration, asking him whether Mr M. D.’s name was on the list of “credit millionaires”. Mr N. replied that as far as he knew that was so, and referred the applicant to the Full list of credit millionaires, published by the Trud publishing house in 1998. It was stated in the preface of that publication that two companies linked with Mr M. D. – FBK Maxcom and Maxcom OOD – were on that list. The applicant checked in an electronic law database and found that Mr M. D. had been a member (first directly, and after 1993 through another company) of the company Vitaplant OOD, which was also among the debtor companies on the list. After unsuccessfully trying to contact Mr M. D. by telephone, she wrote an article about the story. 13. According to the applicant, in the meantime other journalists from 24 Hours had contacted various institutions which could have had information on the matter (the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the National Assembly, the Ministry of Finance, the Bulgarian National Bank) and all of them had confirmed that Mr M. D. featured on the list of “credit millionaires”. 14. The article, which appeared on page eight of the 4 August 2001 issue of 24 Hours under the headline “Foreign Company to Run Customs under Concession?” and the applicant’s byline, was worded as follows: “The King’s men were intensely discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister. Simeon SaxeCoburggotski was concerned about the fact that [Mr M. D.]’s name is on the list of credit millionaires, confided sources close to him. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor. Three of his companies – Maxcom Holding, FBK Maxcom and Maxcom OOD –, had debts totalling 20,400,000 levs. The uncertainties about [Mr M. D.] have brought the name of [Mr E. D.] on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.” 15. The article was accompanied by photographs of Mr M. D. and Mr E. D. with their names in the captions. 16. Later that day the applicant got in touch with Mr M. D. and was told that the statements in her article were not true. 17. After the first printed copies of the newspaper were circulated, Mr M. D. called 24 Hours’ editor and said that he was not a shareholder in Maxcom Holding, FBK Maxcom, or Maxcom OOD. The editor then decided to amend the article in the subsequent printed copies of the newspaper. The new version, which featured solely the picture of Mr M. D., but not that of Mr E. D., read as follows: “The King’s men were discussing whether to hire a Western company to run the customs administration, Members of Parliament say. The idea became topical because of difficulties with the selection of a strong candidate for the position of deputy Minister of Finance in charge of supervising the customs administration. The proposal that Mr M. D. is tapped for the position has not yet been approved by the Prime Minister. According to insiders, Simeon SaxeCoburggotski received reports that [Mr M. D.] is on the list of credit millionaires. In the official document dated 21 January 1998 and signed by the head of the Bank Supervision [department of the Bulgarian National Bank], [Ms E. M.], [Mr M. D.] appears as a debtor. Mr M. D. categorically denied this. He said ‘I am not a debtor, but a creditor’. According to former Members of Parliament, the allegations that he was a credit millionaire were being spread by people who wanted to smear his name. Illwishers used the similarity between the names of [Mr M. D.]’s companies and the names of those companies featuring on the list of credit millionaires. This was done to foil his candidacy for the position of deputy Minister of Finance. In recent days the name of [Mr E. D.] has been brought on to the agenda. However, the idea was for him to have operational control over customs, while the concession is awarded to the Western company.” 18. The first version of the article was featured in 5,205 copies of the newspaper, 5,079 of which were sold. The second version was featured in 230,817 copies, 202,568 of which were sold. 19. Two days later, on 6 August 2001, 24 Hours ran an additional article including the response from Mr M. D. The article, which appeared on page ten, was under the caption ‘You are wrong’ and its headline was ‘[M. D.]: I am not a credit millionaire!’. It read as follows: “In an article on page eight of issue 208 of this year, under the headline ‘Foreign Company To Run Customs under Concession?’, [the applicant] links my name to companies which feature on the list of credit millionaires. This statement does not correspond to the truth. I reiterate that I have never been a shareholder, member or manager in the companies Maxcom Holding, FBK Maxcom, or Maxcom OOD, nor can I be in any other way linked with debtor companies. Recently some of the newspapers in the country have been trying to participate in an orchestrated campaign to smear my reputation. To my displeasure I notice that 24 Hours, a newspaper which I respect, has joined in the foul attack. In my opinion, the publication of unauthentic, unverified and incorrect information does no honour to your newspaper and offends its readers.” 20. Alongside the article there was a photograph of Mr M. D. with his name in the caption. 21. Shortly after these events Mr M. D. announced that he had withdrawn his candidacy for the post of deputy Minister of Finance. 22. On 8 October 2001 Mr M.D. lodged a criminal complaint against the applicant with the Sofia District Court. He alleged that the statements made in the article were not true. In particular, he had never been a shareholder, member, or manager of the companies mentioned in the article – Maxcom Holding, FBK Maxcom or Maxcom OOD –, nor did he appear as an individual on the list of “credit millionaires”. In his view, by writing the article containing the untrue statements the applicant had committed libel, contrary to Articles 147 § 1 and 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). He further alleged that he had suffered substantial nonpecuniary damage as a result of the applicant’s act, and sought compensation in the amount of 10,000 new Bulgarian levs (BGN). He declared that he would donate any award made by the court to a church. 23. On 28 November 2001 the judgerapporteur at the Sofia District Court sent a copy of the criminal complaint to the applicant, invited her to file a reply, and set the case down for trial. 24. In her reply the applicant said that the allegations made in the criminal complaint were untrue and unproven. The article did not consist of her own statements; she had simply relayed information coming from Members of Parliament. This information had been verified through all available sources. The applicant had been certain that Mr M. D. had indeed been a “credit millionaire”, which was the actual vilifying circumstance, not the mere fact that he was involved in certain companies. 25. The trial took place on 25 March, 10 April, 15 May, 19 June and 16 September 2002. The Sofia District Court admitted in evidence a number of documents produced by the applicant and Mr M. D., and questioned several witnesses, one of whom was Ms N., a journalist who had been in the National Assembly on 3 August 2001 (see paragraph 12 above). While initially giving leave to the applicant to adduce evidence relating to Mr M. D.’s links with companies which had failed to repay bank loans, the court later revoked its order and refused to admit such evidence, holding that these matters could be elucidated through the evidence already gathered. The court also gave leave to the applicant to call one of the Members of Parliament whom she had talked to on 3 August 2001. She tried to secure his presence, but failed to do so. She accordingly left it to the discretion of the court to subpoena him, but refused to name him. Her counsel said that even though the MPs who had spoken to the applicant had been named in Ms N.’s testimony, that did not allow the unequivocal identification of this witness and hence precluded a request to summon him. The court held that, failing clear identification of the witness, it was impossible to subpoena him. It added that the defence had had ample opportunity to secure his presence, but had failed to do so. 26. In a judgment of 16 September 2002 the Sofia District Court found the applicant guilty of having divulged a vilifying fact about another person in a publication, contrary to Article 147 § 1 and Article 148 §§ 1 (2) and 2 of the Criminal Code of 1968 (see paragraphs 32 and 33 below). The court applied Article 78a of the Code (see paragraph 34 below) and replaced the applicant’s criminal liability with an administrative fine of BGN 500. The court further ordered the applicant to pay Mr M.D. BGN 2,000 plus interest from 4 August 2001 until settlement, as compensation for his injured reputation, and awarded him BGN 550 in costs. The court described the facts set out in paragraphs 1219 above, except the part concerning Mr M. D.’s indirect membership of Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and held as follows: “...The actus reus of the offence of defamation is characterised by the divulging of vilifying – and untrue – circumstances relating to a specific individual. The expression used by [the applicant] – ‘credit millionaire’ – is derived from the Information About NonPerforming Credits Act [of 1997], on the basis of whose section 3 the administration of the [Bulgarian National Bank] has published a list of all debtors, persons who have outstanding credits. Therefore the expression ‘credit millionaire’ has a negative connotation and presupposes intolerance and extremely negative public attitudes. These are people who have prospered financially due to credits from financial institutions which they have failed to repay. In this sense, from a moral point of view these persons do not enjoy a good reputation and are perceived as dishonest. The law bans these persons from holding certain official posts. The above characterises the expression used by [the applicant] – ‘credit millionaire’ – as vilifying and damaging to the public reputation of the person [in respect of whom it is used] and the esteem of his personality. The vilifying circumstance has been divulged through the press to a large number of readers. The fact that the first version of the article had a smaller circulation than the second, which also contained [Mr M. D.’s] rebuttal, is of no consequence, because the circulation of the printed material has no impact on the criminality of the act. The act has been committed wilfully, the form of mens rea being recklessness. [The applicant] realised the criminality of her act and its injurious consequences, and accepted that they would occur. [She] pursued another aim, which is not unlawful –informing the newspaper’s readers of the latest news about the candidates for the post of deputy Minister of Finance in the SaxeCoburggotski cabinet –, but was aware that the information published was untrue and did not correspond to the actual facts. The court’s findings in this respect are based on the fact that [the applicant] did not carry out a proper journalistic enquiry before publishing her story. No regulations for conducting a journalistic enquiry were in existence at the time when the article was published. Accordingly, in his or her work each journalist had to abide by and comply with the settled customary rules in the branch, which are in line with Articles 39 to 41 of the [Constitution of 1991 – see paragraph 31 below], which contain requirements and restrictions in the exercise of the rights proclaimed thereby. In the instant case, it was established that [the applicant] had not carried out the required comprehensive and thorough journalistic enquiry, as required by the rules of investigative journalism, that is, to receive confirmation from two independent sources. The first of [the applicant]’s sources was a Member of the majority in Parliament, who conveyed the information relating to [Mr M. D.] off the record, citing no sources, that is, it was unclear whether he had obtained it through his participation in a parliamentary committee or also through unofficial channels. He should have therefore, according to best journalistic practice, been considered an unreliable source. This fact obliged [the applicant] to duly check the information she had received through other, public and reliable, sources and not trust completely what she had heard in Parliament. The information received from [Mr N.] did not in fact constitute another dependable source of information. The latter relied on the publication of the Trud publishing house The Full List of Credit Millionaires, in whose preface [Mr M. D.] had been identified as a debtor through three of his companies – FBK Maxcom, Maxcom Holding and Maxcom OOD. [The applicant] was therefore under the obligation to check whether [Mr M. D.] indeed owned shares in these companies, because the mere linking of his name to the companies in a publication was not enough to perceive the information as authentic. This conclusion is reinforced by the fact that the publication in issue gave the names of the companies, not of their shareholders, for which reason the statement in its preface was not confirmed by its contents. However, [the applicant] did not take the requisite steps to verify the facts alleged by [Mr N.] and the publication’s preface. She merely established, after a check in the APIS information system, that [Mr M. D.] was a shareholder in the company Vitaplant [OOD], which also featured on the list of persons with outstanding credits. The company Vitaplant [OOD] was not, however, among the companies connected to [Mr M. D.]’s name in the publication’s preface, and that should have prompted [the applicant] to doublecheck her assumptions. However, [the applicant] assumed that the link uncovered by her was sufficient to corroborate the statement that [Mr M. D.] was a credit millionaire. She thus failed to comply with her duty of thoroughly verifying the information through reliable, independent sources. [The applicant] did not check whether the statement in the [publication’s] preface that [Mr M. D.] was connected to three debtor companies corresponded to the truth, which was mandatory. The fact that she works at a daily newspaper does not absolve her of the obligation to carry out thorough journalistic enquiries. She had access to information in the register of companies, which is public, in order to check the veracity of the information she had gathered. Not only did [the applicant] not do that, but in her article she relied on a document with which she had not been duly acquainted – the official list of borrowers compiled by the [Bulgarian National Bank]. The statement in her article that the three companies – Maxcom Holding, Maxcom OOD and FBK Maxcom – were companies of [Mr M. D.] was not supported by due journalistic enquiry. Her source, [Mr N.], relied on the publication of Trud, which in fact means that [the applicant]’s information was solely based on the preface of the list, which was not enough, considering that this information had not been verified either. The readers’ right to be informed of socalled ‘hot news’ does not absolve the article’s author from checking carefully the accuracy of her publication. The fact that [the applicant] did not take the necessary steps in this direction confirms the court’s conclusion that her act was wilful. There must be a balance between the reader’s right to information and the rights of the persons affected by journalistic materials. The one responsible for this balance is the author, who must abide by the rules of investigative journalism. It is beyond doubt that the time and means available to a journalist on a daily newspaper for a proper enquiry concerning a current issue are greatly limited, but [the applicant] was bound to do what was possible to verify the information she had gathered. In the case at hand [the applicant] had enough time to consult the register of companies, so as to report on the rumours heard in the lobby of the Parliament building and at the same time to present the actual facts. It is precisely [the applicant]’s passivity in respect of this second element which makes her act criminal. The lack of a full enquiry into the facts, performed with due journalistic care, and the applicant’s own statement that she did not carry out a full enquiry into Mr M. D.’s involvement in the companies mentioned in the article, allow [the court to conclude] that she was not confident that her allegations were true. On the contrary, the fact that [the applicant] is an experienced journalist, maintains contacts with colleagues of hers from other media, with whom she exchanges information concerning such news, allows [the court to conclude] that she knew that information about outstanding credits of [Mr M. D.] had been published before. She was therefore aware that the two newspapers which had published similar articles had also published refutations, and had apologised to [Mr M. D.] for the untruthfulness of their allegations. [The applicant] did not do all she was professionally bound to do in respect of the specific enquiry, which points to intent. She allowed herself to rely on sources which she had not checked, but which made her article look persuasive and objective. CONCERNING THE PENALTY: In determining the type and quantum of punishment the court had regard to the following: The court is of the view that all necessary prerequisites for replacing [the applicant]’s criminal liability and imposing an administrative punishment on her are in place. The offence committed by her is punishable by a fine. [The applicant] has not been previously convicted of a publicly prosecutable offence and exonerated of criminal liability... For this reason, the court is of the view that [the applicant] should be exonerated of criminal liability and punished administratively by a fine. In determining the amount of the fine the court had regard to [the applicant]’s means, earned as a journalist, as well as to certain mitigating circumstances, such as a critical attitude to her act, cooperation in establishing the facts, [and] good character. All of these favour a lower fine, that is [BGN] 500. The court contemplated the possibility ... of imposing an additional punishment, but accepted that this is not necessary as the fine is sufficient to reform and deter [the applicant] and the general public. CONCERNING THE CIVIL CLAIM: The existence of damage resulting from the offence under Article 147 § 1 of the [Criminal Code of 1968] is an unrebuttable presumption and, in view of the court’s finding that the applicant acted with mens rea, the only outstanding issue is the quantum of damage. It is beyond doubt that the publication authored by [the applicant] damaged [Mr M.D.]’s reputation and public esteem. He should therefore be compensated for that damage. At the same time it has not been proved beyond doubt that the article has affected [Mr M. D.]’s business relations with his partners, [or] has hindered his prospective career in the executive, that is, has prevented him from being appointed to a highranking position. [His] allegations in this respect remained a mere conjecture, lacking clear distinction between reality and possibility. All averments in a criminal complaint are subject to proof at trial, including the quantum of the damage. For this reason, the lack of evidence leads to the conclusion that [Mr M. D.]’s claim for BGN 10,000 is unproven. [The claimant] is not relieved of the burden of proving the exact quantum of the sustained damage, irrespective of his statement in the criminal complaint that the amount will be donated for charitable purposes. The court ruled in equity, as required by [the law] and the established caselaw, accepting that [the applicant] should be ordered to pay [Mr M. D.] the amount of BGN 2,000 as compensation for the nonpecuniary damage suffered as a result of the offence. [The applicant] is to pay interest on this amount at the legal rate from 4 August 2001 until settlement. ...” 27. On 15 October 2002 the applicant appealed to the Sofia City Court. She argued, inter alia, that the lower court had erred in varying its order giving her leave to present evidence on the ground that that evidence had already been adduced by the private prosecuting party. It had thus restricted her capacity to prove the veracity of her allegations against Mr M. D. The lower court had also erred in accepting that she had acted with mens rea, which was excluded on account of, in particular, the fact that there had been prior publications stating that Mr M. D. was a “credit millionaire”. The applicant finally stated that her conviction and sentence were contrary to, inter alia, Article 10 of the Convention. A journalist had the right to impart information received from others acting in their official capacity, which is how it was received in this case. She was under no obligation to verify publicly disclosed information. She had received the information from a Member of Parliament, immediately after a discussion within his parliamentary group on the matter, and had simply passed it on. 28. In a supplementary memorial of 24 March 2003 the applicant further said that she had not committed the actus reus of defamation, as Mr M. D. was indeed a “credit millionaire”, which was the actual vilifying circumstance, not the fact that he had been involved in certain companies. This fact was further evidenced by the judgment dismissing his tort action against Media Holding AD. The evidence presented merely proved that he was not on the list of “credit millionaires” as a physical person. It was therefore still possible that he could have been one through participation in certain companies, as she had tried to prove. The lower court’s findings in respect of, inter alia, Mr M. D.’s direct and indirect participation in the companies mentioned were likewise erroneous. The court had also incorrectly held that the applicant had acted recklessly. She personally, and also her colleagues, had made numerous checks through various sources, which had led them to believe, in good faith and in line with the rules of investigative journalism, that Mr M. D. was a “credit millionaire”. The alleged insufficiency of the verification could only indicate negligence, not intent. Finally, the fact that the impugned information had previously been made public excluded defamation. 29. The Sofia City Court held a hearing on 31 March 2003. It admitted in evidence a number of documents produced by the applicant with a view to establishing Mr M. D.’s participation in Vitaplant OOD, refused certain other evidentiary requests by the applicant, and heard the parties’ arguments. 30. In a final judgment of 19 May 2003 the Sofia City Court noted the facts set out in paragraphs 1216 above, including the part relating to Mr M. D.’s participation in Vitaplant OOD at the time when it had taken out bank loans which it had failed to repay, and upheld the applicant’s conviction and sentence in the following terms: “... The parties are not in dispute about the facts [established by the court]. There is also no dispute about the [lower court]’s finding that the statement that a given person is a ‘credit millionaire’ because companies owned by him appear on the [Bulgarian National Bank]’s list of debtors with ‘bad credits’ is objectively vilifying for him or her. [The applicant’s] defence raises legal arguments, which outline two disputed questions. The first is whether there is defamation where the facts set out in the publication are untrue, but the conclusion made on their basis is true on other grounds. The defence argues that [Mr M. D.] is in fact a ‘credit millionaire’, not on account of the companies cited in the publication, but because of [his involvement in] another company – Vitaplant OOD. The second is whether an individual who owns a share in a company with outstanding credits can be deemed a ‘credit millionaire’. The view of [the court] on these questions is as follows: The expression ‘credit millionaire’ is not legally defined. It has entered the journalistic vernacular and is used in everyday speech to describe individuals who have acquired large amounts of money as a result of the use, by them personally or by physical or legal persons connected with them, of unsecured bank credits, which have remained unpaid and have been listed by the [Bulgarian National Bank] as unrecoverable. The expression is pejorative, because it implies that the people in question are supposedly responsible for the crisis in the banking system and the socalled ‘draining’ of the banks – generally persons who have become rich in a criminal way. A list of ‘credit millionaires’ as an official document emanating from the [Bulgarian National Bank] has never existed. There exists a list of the persons with outstanding credits as of 1997, which has been compiled pursuant to the Information on NonPerforming Credits Act [of 1997]. This Act requires the [reportable] credits to exceed 5,000 German marks – it does not concern only credits with seven or more figures. According to [the Act], the list is published in a special bulletin, which is not covered by bank secrecy and is sent to the Chief Prosecutor’s Office, the Ministry of Internal Affairs, the tax and customs authorities and the National Assembly. After its receipt at the National Assembly on 21 January 1998 the list was made available to journalists and was published in full or in part as a list of the “credit millionaires”. In fact, the vilifying circumstance is not to own specific companies, but to be a ‘credit millionaire’. In the view of the [court], however, such a dissection of the statement in [the applicant]’s publication and the application of paragraph 2 of Article 147 of the [Criminal Code of 1968] to one of the resulting parts cannot be made, for the following reasons. Readers are not bound to accept journalistic statements uncritically. An abundance of specifically alleged facts in support of those statements is key to persuading readers that they are truthful. Such facts in the case at hand are the citing of an official document featuring [Mr M. D.]’s name (untrue) and the citing of specific companies owned by [Mr M. D.] with specific debts (also untrue). There is no doubt that without these untrue allegations the statement that [Mr M. D.] is a credit millionaire would have been uncorroborated and unconvincing and its refutation would have presented no problem for him. It would be wrong to divide an averment containing a vilifying circumstance into two parts for a second reason: the damage to the reputation and the public esteem of a defamed person is not a constant value. The degree of that damage may vary significantly. In the instant case, where there is a statement that an individual is a ‘credit millionaire’ because of his involvement in companies which have received credits, the [court] considers that the greater the amount of the outstanding credits, the more numerous the companies having received them, the more direct the connection of the individual with these debtor companies, and, last but not least, the noisier the public scandal, the more vilifying is the statement. [Mr M. D.] would suffer a lesser degree of defamation if the amount of the outstanding credits was one and not twenty million levs, if the article had cited one unknown company instead of three companies which had become notorious because of their link with criminal investigations, and if [Mr M. D.] had not been indicated as [their] sole owner instead of merely a shareholder [in them]. Because of the meaning implied in the expression ‘credit millionaire’ the [court] considers that in the event of a credit taken by a company, an individual could be deemed as having profited therefrom, in the range of millions of levs, only if [his or her] connection with that company is direct, and not through the intermediary of participation in companies which in turn participate in other companies, and if the shareholding is big enough to allow a substantial amount of the credit to pass on to him. The link may likewise exist through participation in the management [of these companies]. At the time when the credit was received [Mr M. D.] did not participate directly in Vitaplant [OOD]. He was neither a manager of that company, nor a substantial shareholder. The credit itself was not in an amount which would make him a ‘millionaire’. The arguments relating to the existence of a civil judgment dismissing a tort action by Mr M. D. against Media Holding AD are irrelevant, as from the reasons of this judgment it is apparent that the action had not been supported by evidence of the nonpecuniary damage sustained, whereas the civil courts are under no obligation to gather such evidence. This judgment is not binding on the criminal court. The arguments relating to the lack of mens rea are unfounded. The court considers that the [lower court] has correctly accepted as true [the applicant]’s statements that she had verified the information from two independent sources – the Members of Parliament and [Mr N.], after which she had assured herself of its veracity from the existence of numerous prior publications in different newspapers. In spite of that, the defamation was committed recklessly. [The applicant] has disregarded her duty to check the information she imparts with the only reliable source – the public register of companies – to which she had access. The opinion of the MPs was unofficial, as established by the testimony of [the applicant]’s colleagues, whereas [Mr N.], not having his own information, referred [the applicant] to the publication of Trud. This leads to the conclusion that [the applicant] was aware of the possibility that the vilifying information might not be accurate, but disregarded this concern in order to get her story to print as soon as possible.” 31. The relevant provisions of the Constitution of 1991 read as follows: “1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way. 2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.” “The press and the other mass media shall be free and not subject to censorship.” “1. Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals. 2. Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them, unless the information is a state secret or a secret protected by law, or it affects the rights of others.” 32. Article 147 of the Criminal Code of 1968, as in force since March 2000, provides as follows: “1. Whoever divulges a vilifying fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by a public reprimand. 2. The perpetrator shall not be punished if he or she proves the truth of the divulged facts or the imputed offence.” 33. If the defamation is committed through a publication, it is punishable by a fine ranging from five to fifteen hundred levs, as well as by a public reprimand (Article 148 §§ 1 (2) and 2 of the Code, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161 of the Code, as in force since March 2000). In 2005 an unofficial collection of the caselaw of the Sofia District Court and the Sofia City Court in defamation cases was published (Обида и клевета в практиката на Софийския районен съд, Сиби, 2005 г.); it reported the case against the applicant at p. 400. 34. Article 78a of the Code, as in force at the relevant time, allowed the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from BGN 500 to BGN 1,000 – if (i) the offence of which they had been convicted was punishable by up to two years’ imprisonment or a lesser penalty, in respect of an intentional offence, (ii) they had not been previously convicted of a publicly prosecutable offence and their criminal liability had not been previously replaced by an administrative punishment, and (iii) the damage caused by the criminal act had been made good. Along with the fine the court could impose occupational disqualification of up to three years.

dev

001-22894

ENG

POL

ADMISSIBILITY

PASLAWSKI v. POLAND

Inadmissible

Nicolas Bratza

The applicant, Zbigniew Pasławski, is a Polish national, who was born in 1955 and lives in Ustrzyki Dolne, Poland. He was represented before the Court by Mr Z. Cichoń, a lawyer practising in Cracow, Poland. The respondent Government were represented by their Agent, Mr K. Drzewicki. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 February 1996 the applicant bought 3.71 hectares of land situated near the Bieszczadzki National Park in the Ustrzyki Dolne County. After consulting specialists in forestry, he decided that the nature of the land made it suitable for a commercial nursery. The applicant submitted that he had fenced the property with posts and planted 15,000 spruce trees on it. He intended to sell them as Christmas trees. The applicant used tree shelters made of woollen fabric and a chemical repellent to prevent damage caused by game. The Government submitted that the applicant had failed to “properly secure” his property from game and hunters. During winter 1996/97 about 80% of the trees were damaged by game. The applicant estimated his loss at PLN 47,800. He replaced destroyed trees but in spring 1997 game again damaged trees. The Government contested the applicant's estimate. Furthermore, the applicant submitted that on numerous occasions he met on his plantation Polish and foreign hunters accompanied by a forest warden (leśniczy). When the applicant asked the forest warden why they hunted on his private property he was told that his land had been leased to the local hunting club (Koło łowieckie). It followed that the hunters could take game on the applicant's land whether he objected to it or not, whereas the applicant himself had no right to hunt on his property. In addition, the forest warden stated that although he could see damage to the applicant's property caused by game, according to law nobody was responsible for it. Subsequently, the applicant complained to the Krosno Regional Office (Urząd Wojewódzki w Krośnie), the Krosno Regional Directorate of Sate Forests (Regionalna Dyrekcja Lasów Państwowych w Krośnie), the Ombudsman and the local hunting club which leased his property. In a letter of 1 April 1996 the Krosno Regional Office observed that the applicant's claim concerned damage caused to a nursery and informed him that according to Article 46 (1) of the Law of 13 October 1995 compensation could be obtained only for damage to harvested crops or crops under cultivation. Moreover, the applicant was advised to approach the local hunting club in order to start co-operation in protecting his property from damage. Finally, he was informed that under Article 14 of the Law of 28 September 1991 he could apply for a subsidy to reimburse the cost of planting new trees if his property was covered by the official zoning map. On 30 July 1997 the applicant received a letter from the Ombudsman which stated: “In reply to your letter (...) concerning damage to your nurseries caused over many years by game – for which you cannot obtain compensation – unfortunately I do not have good news for you. I should explain the following: 1) The question whether compensation should be paid is regulated by law (...). However, the currently binding law – as before – is very unfavourable to you and many other individuals. The presently binding regulations, i.e. the Nature Preservation Law of 16 October 1991 (...) and the Hunting Law of 13 October 1995 (...) allow only very limited liability for damage caused by game. According to those regulations, such a liability, i.e. an obligation to pay compensation, exists only in the following cases: (a) damage caused by bison, bears and beavers, or (b) if damage is caused to harvested crops and crops under cultivation – also by (...) boars, elks, deer, fallow deer and roe deer (...). However, damage caused by other species does not result in such liability. It follows that those who suffered damage [caused by such species] do not have legal grounds and possibilities to obtain compensation, as neither the State Treasury, i.e. organs of public administration, nor any other institution is obliged to pay compensation. 2) The Ombudsman has considered that such a legal situation (...) should be changed since it is unfair and detrimental to citizens. The Sejm and Senate are competent to introduce changes to legislation which would create liability for damage caused by game. (...) In 1995, when the Hunting Bill was being considered by the Sejm, the Ombudsman pointed out to the Speaker of the Sejm – not for the first time – that the legal regulation of that subject-matter should be changed (...). Unfortunately, the Sejm adopted the Hunting Bill without taking into account the Ombudsman's submissions and did not extend liability for damage to all kinds of damage caused by game but instead practically repeated old regulations. Therefore, the legal regulation of that subject-matter has not been changed. Even if in the future the Sejm changes (...) the regulations (...), it will not be possible to receive compensation for damage suffered before the change [of legislation] because new regulations will not apply retroactively to damage caused before the date on which new regulations enter into force. The legislation presently in force does not provide for the liability of either the State Treasury or any other institution for damage caused, inter alia, in crops other than agricultural and therefore there is no legal i.e. judicial avenue to claim effectively compensation precisely because there are no legal grounds for such a claim. (...)” Article 14, in so far as relevant, provides: (...) 3. The official zoning map (...) designs grounds to be afforested. (...) 5. The owners (...) of grounds can obtain subsidies from the State budget for full or partial reimbursement of the costs of afforesting grounds referred to in paragraph 3. The decision concerning the grant of subsidy to cover those costs is made by the mayor after receiving an application from an owner (...) and the opinion of the county council. “Game, for the nation weal, is the property of the State Treasury.” “Game taken on hunting grounds (obwód łowiecki) in compliance with the legal regulations belongs to the lessee or manager of the hunting grounds, and on the land not pooled into hunting grounds – to the State Treasury” “Hunting grounds consist of an area not smaller than three thousand hectares on which there exist conditions for hunting.” “The Governor [establishes the borders of] hunting grounds and changes the borders of hunting grounds within his province by way of an ordinance which is issued after receiving an opinion of the Regional Director of the State Forests Administration and the Polish Hunting Federation.” “Hunting grounds are leased to the local hunting clubs of the Polish Hunting Federation.” “1. The lessee shall settle the rent received between the forest administration and the counties. 2. The forest administration shall receive a part of the rent proportionate to the area of State-owned land [pooled in hunting grounds], whereas counties shall receive [a part of the rent proportionate to] the remaining area of the hunting grounds. (...)” “The Polish Hunting Federation is a union of physical and legal persons who actively participate in the preservation and development of game and act to preserve nature.” “1. Local hunting clubs are unions of physical persons and are units of the Polish Hunting Federation for the purposes of hunting. 2. Hunting clubs are legal persons liable for their obligations.” “The tasks of the Polish Hunting Federation include: 1. hunting management; 2. taking care of the development of hunting and co-operating with the State administration, local government, units of the State Forest Administration, national parks and other organisations in the preservation of nature, in the preservation and development of game and other wild animals, 3. taking care of the hunting heritage, (...)” “1. Hunting is allowed after the consent of the lessee or manager of the hunting grounds has been obtained. 2. Proof of membership of the Polish Hunting Federation certifying appropriate qualifications and a hunter's firearms licence (...) are required to hunt. 3. Hunter's qualifications shall be certified after an examination before a commission set up by the Polish Hunting Federation. (...)” “The lessee or manager of the hunting grounds shall compensate damage caused: 1. to harvested crops and crops under cultivation by boars, elks, deer, fallow deer and roe deer, 2. during the hunt.” “1. The owners (...) of agricultural and afforested grounds shall, as needed, co-operate with the lessees and managers of the hunting grounds in securing them against damage referred to in Article 46. 2. If there is a disagreement between the owner (...) of a ground and the lessees and managers of the hunting grounds, as to the amount of compensation for damage referred to in Article 46, the parties may request the (...) local council to mediate a settlement. ” “ The Minister of Environment, Natural Resources and Forestry in agreement with the Minister of Agriculture shall issue a resolution concerning detailed rules and procedures of damage assessment and payment of compensation for damage caused to crops under cultivation and harvested crops.” “The State Treasury shall be responsible for damage caused by game under permanent protection” According to the materials submitted by the applicant, in 1997 the Krosno Regional Directorate of State Forests charged foreign hunters DEM 3,300 for each taken medium-seized deer. The Directorate invested those funds in the preservation of forests. Article 79 (1) of the Constitution of 2 April 1997 provides, in so far as relevant, as follows: “Everybody whose constitutional freedoms and rights have been violated, shall have a right to (...) lodge a complaint with the Constitutional Court concerning the conformity with the Constitution of a law or any other regulation, which was a basis on which a court or an organ of public administration decided about his freedoms, rights or obligations provided by the Constitution.” Article 188 of the Constitution reads, in so far as relevant, as follows: “ The Constitutional Court shall adjudicate cases concerning: 1. the conformity of laws and international agreements with the Constitution, 2. the conformity of ratified international agreements (...), 3. the conformity of laws issued by the central organs of the state, with the Constitution, ratified international agreements and laws, 4. the conformity of the aims and activities of political parties with the Constitution, 5. the Constitutional complaint, referred to in Article 79 (1).” Article 190 of the Constitution provides, in so far as relevant, as follows: “1. Decisions of the Constitutional Court are binding and final. 2. Decisions of the Constitutional Court in cases referred to in Article 188 shall be published (...). 3. A decision of the Constitutional Court shall enter into force on a day on which it is published; however, the Constitutional Court may set a different time-limit for the overturning of [unconstitutional] legislation to take effect. Such a time-limit shall not exceed eighteen months in cases concerning a law, and twelve months in cases concerning other types of legislation. In respect of decisions resulting in financial outlays not provided by the budget law, a time-limit shall be set after the Constitutional Court acquaints itself with the opinion of the Council of Ministers. 4. A decision of the Constitutional Court declaring unconstitutional (...) a piece of legislation, according to which a case was decided (...) is a basis for re-opening the case. (...)” Article 21 of the Constitution provides: “1. Republic of Poland shall protect property and a right to inherit. 2. Expropriation is allowed only in the public interest and with just compensation.” Article 401¹ of the Code of Civil Procedure provides, in so far as relevant: “§1. A case may be reopened also when the Constitutional Court declared unconstitutional a legal act (..) on which a judgment was based. §2. In the circumstances described in § 1 an application for reopening shall be lodged within one month after the entry into force of the Constitutional Court's decision.”

dev

001-107325

ENG

AUT

GRANDCHAMBER

CASE OF S.H. AND OTHERS v. AUSTRIA

Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 8

Anatoly Kovler;Christos Rozakis;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

9. The applicants were born in 1966, 1962, 1971 and 1971 respectively and live in L. and R. 10. The first applicant is married to the second applicant and the third applicant to the fourth applicant. 11. The first applicant suffers from fallopian-tube-related infertility (eileiterbedingter Sterilität). She produces ova, but, due to her blocked fallopian tubes, these cannot pass to the uterus, so natural fertilisation is impossible. The second applicant, her husband, is infertile. 12. The third applicant suffers from agonadism (Gonadendysgenesie), which means that she does not produce ova at all. Thus, she is completely infertile but has a fully developed uterus. The fourth applicant, her husband, in contrast to the second applicant, can produce sperm fit for procreation. 13. On 4 May 1998 the first and third applicants lodged an application (Individualantrag) with the Constitutional Court (Verfassungsgerichtshof) for a review of the constitutionality of sections 3(1) and 3(2) of the Artificial Procreation Act (Fortpflanzungsmedizingesetz – see paragraphs 27-34 below). 14. The applicants argued before the Constitutional Court that they were directly affected by the above provisions. The first applicant submitted that she could not conceive a child by natural means; thus, the only way open to her and her husband would be in vitro fertilisation using sperm from a donor. That medical technique was, however, ruled out by sections 3(1) and 3(2) of the Artificial Procreation Act. The third applicant submitted that she was infertile. As she suffered from agonadism, she did not produce ova at all. Thus, the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryo transfer, which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant. However, that method was not allowed under the Artificial Procreation Act. 15. The first and third applicants argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception amounted to a breach of their rights under Article 8 of the Convention. They also relied on Article 12 of the Convention and on Article 7 of the Austrian Federal Constitution, which guarantees equal treatment. 16. On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated. 17. On 14 October 1999 the Constitutional Court decided on the first and third applicants’ request. It found that their request was partly admissible in so far as the wording concerned their specific case. In this respect, it found that the provisions of section 3 of the Artificial Procreation Act, which prohibited the use of certain procreation techniques, was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken. 18. As regards the merits of their complaints, the Constitutional Court considered that Article 8 of the Convention was applicable in the applicants’ case. Although no case-law of the European Court of Human Rights existed on the matter, it was evident, in the Constitutional Court’s view, that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under Article 8. 19. The impugned provisions of the Artificial Procreation Act interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation. As for the justification for such an interference, the Constitutional Court observed that the legislature, when enacting the Artificial Procreation Act, had tried to find a solution by balancing the conflicting interests of human dignity, the right to procreation and the well-being of children. Thus, it had enacted as leading features of the legislation that, in principle, only homologous methods – such as using ova and sperm from the spouses or from the cohabiting couple itself – and methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception would be allowed. The aim of the legislature was to avoid the forming of unusual family relationships, such as a child having more than one biological mother (a genetic mother and one carrying the child), and to avoid the risk of the exploitation of women. 20. The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well-being of children thus conceived, their health and their rights, and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction (Zuchtauswahl). 21. However, applying the principle of proportionality under Article 8 § 2 of the Convention, such concerns could not lead to a total ban on all possible medically assisted procreation techniques, as the extent to which public interests were concerned depended essentially on whether a homologous technique (having recourse to the gametes of the couple) or heterologous technique (having recourse to gametes external to the couple) was used. 22. In the Constitutional Court’s view, the legislature had not overstepped the margin of appreciation afforded to member States when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception. The choices the legislature had made reflected the then current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislature would have to take into account in the future. 23. The legislature had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques. Besides strictly homologous techniques it had accepted insemination using donor sperm. Such a technique had been known and used for a long time and would not bring about unusual family relationships. Further, the use of these techniques was not restricted to married couples but also included cohabiting couples. However, the interests of the individuals concerned had to give way to the above-mentioned public interest when a child could not be conceived by having recourse to homologous techniques. 24. The Constitutional Court also found that for the legislature to prohibit heterologous techniques, while accepting as lawful only homologous techniques, was not in breach of the constitutional principle of equality which prohibits discrimination. The difference in treatment between the two techniques was justified because, as pointed out above, the same objections could not be raised against the homologous method as against the heterologous one. As a consequence, the legislature was not bound to apply strictly identical regulations to both. Also, the fact that insemination in vivo with donor sperm was allowed while ovum donation was not, did not amount to discrimination since sperm donation was not considered to give rise to a risk of creating unusual family relationships which might adversely affect the well-being of a future child. 25. Since the impugned provisions of the Artificial Procreation Act were in line with Article 8 of the Convention and the principle of equality under the Federal Constitution, there had also been no breach of Article 12 of the Convention. 26. This decision was served on the first and third applicants’ lawyer on 8 November 1999. 27. The Artificial Procreation Act (Fortpflanzungsmedizingesetz, Federal Law Gazette no. 275/1992) regulates the use of medical techniques for inducing conception of a child by means other than copulation (section 1(1)). 28. These methods comprise: (i) introduction of sperm into the reproductive organs of a woman; (ii) unification of ovum and sperm outside the body of a woman; (iii) introduction of viable cells into the uterus or fallopian tube of a woman; and (iv) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman (section 1(2)). 29. Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage, and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success (section 2). 30. Under section 3(1), only ova and sperm from spouses or from persons living in a relationship similar to marriage (Lebensgefährten) may be used for the purpose of medically assisted procreation. In exceptional circumstances, namely if the spouse or male partner is infertile, sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman (section 3(2)). This is called in vivo fertilisation. In all other circumstances, and in particular for the purpose of in vitro fertilisation, the use of donor sperm is prohibited. 31. Under section 3(3), ova or viable cells may only be used for the woman from whom they originate. Thus, ovum donation is always prohibited. 32. The further provisions of the Artificial Procreation Act stipulate, inter alia, that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries (section 4) and with the express and written consent of the spouses or cohabiting persons (section 8). 33. In 1999 the Artificial Procreation Act was supplemented by a Federal Act establishing a fund for financing in vitro fertilisation treatment (Bundesgesetz, mit dem ein Fonds zur Finanzierung der In-vitro-Fertilisation eingerichtet wird – Federal Law Gazette, Part I, no. 180/1999) in order to subsidise in vitro fertilisation treatment allowed under the Artificial Procreation Act. 34. The issue of maternity and paternity is regulated in the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch). Under Article 137b, introduced at the same time as the entry into force of the Artificial Procreation Act, the mother of a child is the woman who has given birth to that child. As regards paternity, Article 163 provides that the father of a child is the male person who has had sexual intercourse with the mother within a certain period of time (180 to 300 days) before the birth. If the mother has undergone medically assisted procreation treatment using sperm from a donor, the father is the person who has given his consent to that treatment, that is, the spouse or male partner. A sperm donor can in no circumstances be recognised as the father of the child. 35. The following overview of the law and practice concerning artificial procreation in Europe is based essentially on the following documents: “Medically Assisted Procreation and the Protection of the Human Embryo: Comparative Study on the Situation in 39 States” (Council of Europe, 1998); the replies by the member States of the Council of Europe to the Steering Committee on Bioethics’ “Questionnaire on access to medically assisted procreation (MAP) and on right to know about their origin for children born after MAP” (Council of Europe, 2005); and a survey carried out in 2007 by the International Federation of Fertility Societies. 36. From this material it would appear that in vitro fertilisation treatment was (as at 2007) regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In Belgium, the Czech Republic, Ireland, Lithuania, Malta, Poland, Serbia and Slovakia such treatment was governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles. 37. The Council of Europe study sets out, in particular, the position of domestic law as regards seven different artificial procreation techniques: artificial insemination within a couple, in vitro fertilisation within a couple, artificial insemination by a sperm donor, ovum donation, ovum and sperm donation, embryo donation and intracytoplasmic sperm injection (an in vitro fertilisation procedure in which a single sperm is injected directly into an ovum). 38. It seems that among the countries which have regulated the issue of artificial procreation, sperm donation is currently prohibited in Italy, Lithuania and Turkey. All three countries do not permit heterologous assisted fertilisation. Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation. As regards ovum donation, this is prohibited in Croatia, Germany, Norway and Switzerland, in addition to the three countries mentioned above. 39. It further appears that in a number of countries, such as Cyprus, Luxembourg, Poland, Portugal and Romania, where the matter was not regulated (as at 2007), the donation of both sperm and ova is used in practice. 40. A comparison between the Council of Europe study of 1998 and the survey conducted by the International Federation of Fertility Societies in 2007 shows that in the field of medically assisted procreation legal provisions are developing quickly. In Denmark, France and Sweden, sperm and ovum donation, which was previously prohibited, is now allowed since the entry into force of new legal provisions in 2006, 2004 and 2006 respectively. In Norway, sperm donation for in vitro fertilisation has been allowed since 2003, but not ovum donation. Since 2007, medically assisted procreation is also regulated by law in Finland allowing sperm and ovum donation. 41. Principle 11 of the principles adopted in 1989 by the Ad Hoc Committee of Experts on Progress in the Biomedical Sciences (CAHBI), the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics, states: “1. In principle, in vitro fertilisation shall be effected using gametes of the members of the couple. The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro. However, in exceptional cases defined by the member States, the use of gametes of donors may be permitted.” 42. The Council of Europe Convention on Human Rights and Biomedicine of 1997 does not deal with the question of donation of gametes, but forbids the use of medically assisted reproduction techniques to choose the sex of a child. Article 14 reads as follows: “The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided.” 43. The Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin of 2002, which promotes the donation of organs, expressly excludes from its scope reproductive organs and tissues. 44. Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on the setting of standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, which seeks to ensure the quality and safety aspects of human tissues and cells intended for human applications, provides in its Preamble as follows: “12. This directive should not interfere with decisions made by member States concerning the use or non-use of any specific type of human cells, including germ cells and embryonic stem cells. If, however, any particular use of such cells is authorised in a member State, this directive will require the application of all provisions necessary to protect public health, given the specific risks of these cells based on the scientific knowledge and their particular nature, and guarantee respect for fundamental rights. Moreover, this directive should not interfere with provisions of member States defining the legal term ‘person’ or ‘individual’.”

dev

001-77522

ENG

TUR

CHAMBER

CASE OF OKKALI v. TURKEY [Extracts]

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

András Baka;Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze

9. The applicant, Mr Halil İbrahim Okkalı (“Halil”), was born in 1983 and lives in İzmir. At the material time he was 12 years old and worked as an apprentice in a garage. 10. On 27 November 1995, at around 5.30 p.m., the applicant was taken to the Çınarlı police station in İzmir by his employer, İ.G., who accused him of stealing 15 million Turkish liras (TRL) –approximately 275 United States dollars (USD) – he had asked him to take to the bank. On returning to the garage he claimed that he had been robbed. According to the police report signed at 6 p.m., the employer filed a complaint against Halil. 11. At the police station the applicant was questioned by Superintendent İ.D. and Officer M.Y. At 6.30 p.m. the police told the applicant’s father, Mr Mehmet Okkalı (“Mehmet”), what had happened and he went straight to the police station. 12. At 7 p.m. Halil’s father and employer reached an agreement. İ.G. withdrew his complaint, and Mehmet signed the following statement: “... İ.G. has recovered his money and withdrawn his complaint. I am therefore taking my son from the police station. I have no demand or complaint to make concerning my son. I do not want him to have a medical check-up; my son was well treated at the police station and not ill-treated or tortured ... he was handed over to me in good shape and in good health ...” 13. However, once outside the police station, Mehmet saw his son stagger, totter and vomit twice. Back at home, when Halil was undressed, his parents and the neighbours present saw numerous injuries and bruises on his body. Halil then told his father that he had been beaten by his interrogators. Mehmet took Halil to Tepecik Hospital. 14. Officer İ.A., from the hospital’s police desk, sent him to the casualty department. In a provisional medical report the doctor who examined Halil made the following observations: “The subject is conscious ... He has 10 x 10 cm bruises on his arms and legs and large bruises (30 x 17 cm) on both buttocks ...” Halil was admitted to the paediatric ward. 15. On 28 November 1995 Mehmet returned to the police station to complain about the ill-treatment inflicted on his son and find out who had questioned him. He was given the name of Superintendent İ.D. 16. On the same day Mehmet lodged a complaint against İ.D. and his subordinate officers with the public prosecutor of İzmir (“the prosecutor”). He asked for Halil to be examined by a specialist in forensic medicine. 17. On 30 November 1995 the prosecutor interviewed the applicant, who had been discharged from hospital the previous evening. He stated: “... at the police station I was beaten by two policemen in the toilets; one was wearing glasses and the other had green eyes. One of them was a superintendent, at least that’s what they told me – I wouldn’t know the difference. I would recognise the officers who beat me ... Later on ... my father and my uncle sorted things out with my boss and came to fetch me from the police station. On the way home I was sick. Then, when we got home and they undressed me, they saw the truncheon marks and took me to Tepecik Hospital ...” As his hand had been injured, Halil had to ‘sign’ the record of his interview with his fingerprint. 18. That same day, at the prosecutor’s request, Halil was examined by a doctor from the Forensic Medicine Institute. In his preliminary report the doctor wrote: “Halil İbrahim Okkalı has been examined. At this time his ... right forearm is immobilised in a plaster cast. He has bruising on the outside of his left arm which is a light violet colour in the middle and pale green round the edges, a pale green bruise on the left elbow, large bruises on both buttocks which are violet in the middle and pale green round the edges, and a pale green bruise on the lower back of the left thigh. It is noted that the subject was admitted to the paediatric ward at Tepecik Hospital, where he received emergency treatment ... for a fractured elbow. The final report will be drawn up on receipt of the hospital diagnosis and treatment report, the X-rays and the radiologist’s report ...” 19. On 1 December 1995 the applicant was re-examined by another doctor from the Forensic Medicine Institute, who reviewed the findings in the previous reports and stated: “Having noted the existence of yellowish bruises measuring 20 x 12 cm on the left buttock, 35 x 25 cm on the right buttock, 12 x 6 cm on the lower back of the left thigh and 8 x 7 cm on the left arm, and [also] a muscle tissue trauma on the left forearm (which has been bandaged with a splint), we conclude that as a result of these injuries, which are not life-threatening, the subject should take ten days off work ...” 20. On 6 December 1995 the prosecutor questioned Superintendent İ.D. Denying the accusations, the superintendent said: “... I did not beat the complainant. Besides, hardly an hour went by between the time when his employer brought him in and the time when he was released ... I did not inflict any torture on the complainant. [Yes,] I always wear glasses and it was me who talked to the boy ...” 21. Chief Superintendent A.K. was subsequently appointed reporting officer to assist the prosecutor in investigating the case. On 11 December 1995 İ.D. was brought before Halil, who recognised him. The reporting officer then interviewed Halil, who repeated what he had already said and added that İ.D. and M.Y. had hit him on the hands, “backside” and legs; when he collapsed under the blows, they apparently took him to a cell and threatened to “come back” unless he told them where he had hidden the money. The reporting officer then questioned İ.D., who gave the following explanation: “... at 7 p.m. the boy was handed over to his father. According to [the complainant], the boy felt unwell at 9 p.m. and was taken to hospital, where a report was drawn up. This event was broadcast on the television channel Kanal 6. Following that broadcast, I was suspended as of 8 December 1995. Contrary to what the boy and his father say, neither Officer M.Y. nor myself hit [the applicant] with truncheons on the hands, backside or legs. ... He arrived at the police station at 6 p.m. and I stayed with him until he left at 7 p.m. When the boy was brought to the police station his face was dirty ...; Officer M.Y. only took him to the toilets so he could wash his face ... The allegations are false ... we are wrongfully accused ...” 22. On the same day, 11 December 1995, the reporting officer also interviewed Halil’s employer, İ.G., and three officers from Çınarlı police station. İ.G. testified in favour of the accused, stating that on the day of the incident, from 6 to 7 p.m., he had sat with İ.D. and neither İ.D. nor M.Y. had touched Halil during that time. Two of the other police officers questioned said that there had been nothing wrong with the boy when he was handed over to his father, and the third said that he had seen no one ill-treat the boy. 23. On 28 December 1995 the prosecutor showed Halil photographs of the police officers on duty at Çınarlı police station. He identified İ.D. and M.Y. 24. On 4 January 1996 the prosecutor interviewed M.Y., who simply denied the accusations against him. The next day the reporting officer brought M.Y. before Halil, who recognised him. The reporting officer then questioned M.Y., who stated: “... I was with Superintendent İ.D. at the time; the boy was contradicting himself, he had dust and mud on his face; his [employer] was with him. At the superintendent’s request I took the boy to the toilets to wash his face, then took him back to the main office. Around 7 o’clock we telephoned his father, who came to fetch him. ... Nobody hit the boy; if you ask me, his father ... or someone else angry about losing the 15 million liras probably gave him a good hiding ...” 25. On 8 January 1996 the reporting officer forwarded copies of the reports drawn up in the course of his investigations to the prosecutor; they were included in the prosecution’s case file no. 1995/50365. 26. On 30 January 1996, on receipt of the medical file that had been requested from Tepecik Hospital, the preliminary medical report of 30 November 1995 was finalised. The final report confirmed all the earlier medical findings. It also mentioned other visible marks on Halil’s body: bruising on the upper and lower belly, a 4 x 6 cm bruise on the side of the left tibia, a bruise behind the left knee, wide bruises on the knees and the right tibia, and bruising on the left wrist, the right elbow, the back of the right hand, and in the groin area. The report indicated that Halil would probably take twenty-five days to recover. 27. On 5 February 1996 the prosecutor indicted Superintendent İ.D. and Officer M.Y. before the second section of the İzmir Assize Court (“the Assize Court”) for violation of Article 243 of the Criminal Code (the obtaining of a confession by a public official by means of torture). 28. Proceedings before the Assize Court commenced on 12 February 1996. All the parties attended the hearing on 20 March 1996. Their statements may be summarised as follows. Superintendent İ.D.: “... I never left my office at any time; I did not strike the victim at all or order a police officer to hit or maltreat him to make him tell the truth ...; I only asked Officer M.Y. to take him to the washbasin and help him wash his face ... My mistake was not to have had the boy examined by a doctor before handing him over to his father; if I had done that, there would be no case against me ...; the complainant [Halil] said that the money had been taken from him by force, so he might have sustained the injuries at that time ... [Halil] was handed over to his father at 7 p.m., but the medical report was obtained at 9 p.m.; I even thought that the parents might be those [really] responsible for [Halil’s] condition, as, if ... he had shown any signs of the injuries described in the report, we would never have let him leave the police station [in such a state] ...” Officer M.Y.: “I maintain what I said before [to the reporting officer and the prosecutor] ...; I do not know why the complainant and the victim have made these accusations against us.” Mehmet, the complainant: “... When I arrived at the police station they had already questioned İ.G. ... and my son. ... Then they brought my son ... who said to İ.G., ‘There you are, did you get what you wanted?’; at the time I didn’t realise what he meant ...; it didn’t register until I got him home and saw the injuries ...; then they took my son to a cell; when I went to the toilet I saw him lying down in the cell and told him to sit up properly, but he said he couldn’t ... My son spent three days in intensive care at Tepecik Hospital ...; they told me they had given him nine bottles of serum ...” Halil, the victim: “... at the police station that man (pointing at Superintendent İ.D.) said, ‘Think carefully, you are going to tell me where the money is’, then he ... took me into the toilets and hit me on the hands with a truncheon. At one point I tripped and fell and the dustbin above me fell on my head. While I was down [İ.D. started hitting me]; he put his boot over my mouth to stop me screaming; then he went away saying, ‘Think carefully; I’ll be back’; but he didn’t come back ... Then my father and uncle arrived; ... [my father] saw me in the cell and told me to sit up straight, but I couldn’t, because I was sore all over ... The superintendent beat me to find out where the money was ...; M.Y. held me so I couldn’t move, but he didn’t hit me. ... Neither my employer nor my father or my family beat me for losing the money ...” 29. The applicant’s lawyer applied, under Article 365 of the Code of Criminal Procedure, to join the criminal proceedings as a civil party and reserved his rights to compensation. He also filed a list of prosecution witnesses he wished to call. These included the neighbours who had been present when Halil returned from the police station and taken him to the hospital with his family. The court accepted these requests. 30. The trial court also heard evidence from İ.G., who confirmed Superintendent İ.D.’s version of the facts. In addition to what he had told the investigating authorities, the superintendent said that on the day of the incident his colleagues at the police station had called him at around 11 p.m. to tell him that Halil had been admitted to hospital. He had gone to the hospital with another superintendent and other police officers, where he had been insulted by Halil’s friends and family, who allegedly even tried to attack him. He said he had not seen the applicant leave the police station with his father and had no idea what had possessed them to accuse the police when the matter had been settled between himself and Mehmet. Mehmet gave evidence as follows: “Just before or after the new year someone by the name of Baki, the minister’s bodyguard ..., called me to fix an appointment; he turned up at the appointed place, together with Superintendent İ.D. ...; he explained that İ.D.’s wife was pregnant and that if we ‘said the right things’ in court, his sentence might not be executed for a year, until after the baby had been born. I refused, saying that if he [İ.D.] was so concerned about his unborn baby, how could I be expected not to worry about my own son?” 31. At the hearing on 27 May 1996, the trial court heard three police officers from Çınarlı police station and seven prosecution witnesses. The police officers said that when Mehmet had gone to the police station to pick Halil up he had been asked if he wanted to have the boy examined by a doctor, but he had not deemed it necessary, as his written statement confirmed. Mehmet replied that there had been no such offer and that he had signed the statement without thinking, as he had been worried about his son’s well-being. 32. Most of the prosecution witnesses confirmed the complainant’s version of events and the applicant’s uncle added: “... I went to the police station with [Mehmet] ... Halil showed no visible traces of violence but he looked as if he had been [shaken up]; no one suggested that we might have him examined by a doctor before we left the police station ... We left the station at around 8 p.m. ...; as my nephew was getting into the car, he started to vomit; I went back [to the police station] and spoke to the policeman at the door; he said we could take [Halil] to a doctor ... Even at the police station I had noticed small marks on [Halil’s] hands, but I thought nothing of it; I knew ‘mishaps’ sometimes occurred at police stations, but I certainly didn’t expect to see what we [found] when we got home ... The same evening Chief Superintendent O.K. called my brother-in-law to the police station and I went with him. Chief Superintendent O.K. called in İ.D. and said to him, ‘Aren’t you ashamed of yourself? Brutalising a little boy?’; İ.D. said, ‘I have been in the police for ... years and I did my duty; what of it if I did hit him once or twice?’; then the chief superintendent said, ‘Let’s go to the hospital and see this little boy you say you hit once or twice’. So we went to the hospital together and they saw the victim; he was bleeding “top and bottom”, he had a tube in him ...” 33. The defendants İ.D. and M.Y. denied all charges. At the hearing on 1 July 1996, their superior officer, O.K., told the court: “... I heard about the incident at around 9 p.m., when the boy’s family contacted me ...; I brought the parties face to face ..., but when the accused started to deny the accusations in front of [the family] ... I had to send them out of my office before something unpleasant happened; ... to investigate the matter, and at the family’s request, I went to the hospital, but without the doctors’ authorisation it was not possible for me to see the child, as he was in intensive care ... Back at the police station I questioned all the police officers on duty, who all maintained that they had seen nothing and knew nothing ... I went to see the victim once at his home. ... [Apart from that], the defendant İ.D. never went with me to the hospital. When I brought the parties together face to face, the only thing İ.D. said was that he had done his duty ...” 34. After the next hearing, on 30 October 1996, the Assize Court pronounced judgment. It began by announcing its conviction that “... having regard to all the evidence, including the reports in the case file, the statements made by the victim and the reports concerning the complaint, the accused did beat the victim in the course of their duty in the manner described in the [medical] report, to make him say where he had hidden the money ...” 35. However, the Assize Court decided, by a majority, to reclassify the offence as “assault and ill-treatment”, as defined in Article 245 of the Criminal Code, rather than the verdict requested by the prosecution. The court based its decision on the fact that Halil’s employer had withdrawn his complaint; he was therefore not accused of any crime and so it could not have been the defendants’ intention “to obtain a confession” within the meaning of Article 243, but rather simply “to find out what had happened to the money placed in his care”. 36. The Assize Court decided to apply the minimum penalty and sentenced İ.D. and M.Y. to three months’ imprisonment and a three-month suspension from duty. Taking into account the defendants’ good behaviour during the trial and considering that they had confessed, albeit reluctantly, the Assize Court reduced the sentences to two months and two weeks, in conformity with Article 59 § 2 of the Criminal Code. Then, by virtue of sections 4(1) and 6(1) of Law no. 647, it commuted the prison sentences to fines of TRL 750,000 (about USD 8), then ordered a stay of execution as the defendants had no criminal record and the judges were convinced that they would not reoffend. 37. The applicant’s counsel appealed against the judgment on various points of law, including violation of Article 3 of the Convention. 38. By a decision of 5 November 1997, the Court of Cassation admitted the appeal and set aside the impugned judgment for misclassification of the offence, which the higher court considered amounted to extortion of a confession as defined in Article 243 of the Criminal Code. The case was accordingly referred back to the Assize Court. In his written pleadings dated 25 February 1998, İ.D. submitted: “I maintain my previous submissions to the Assize Court and declare that I did not commit the offence of which I am accused; I did not subject the complainant to any violence or ill-treatment. I accordingly ask the Court to acquit me. In the alternative, and without admitting to any guilt, I beg the Court to uphold its initial classification if it decides to convict me, as the facts that constitute the offence defined in Article 243 of the Criminal Code have not been established in the present case ...” 39. On 26 February 1998, after re-examining the case, the Assize Court complied with the decision of the higher court and convicted İ.D. and M.Y. of contravening Article 243 of the Criminal Code and, once again, sentenced them to the minimum penalties: one year’s imprisonment, enforceable immediately, and three months’ suspension from duty. These sentences were subsequently reduced to ten months’ imprisonment and two and a half months’ suspension from duty, under Article 59 § 2 of the Criminal Code. Then, for the reasons stated in the judgment of 30 October 1996, the sentences were suspended under section 6 of Law no. 647. 40. The applicant’s lawyer again appealed to the Court of Cassation to set aside this judgment. Deploring that the defendants had been given the benefit of Article 59 § 2 of the Criminal Code and section 6 of Law no. 647, he submitted, in particular: “As to the application of the minimum penalty: ... on 27 November 1995, under suspicion of theft and misappropriation, the victim ... was taken to the police station, where he was beaten with a truncheon and kicked ... by police officers in an attempt to extort a confession ... The victim was 12 years old when he was subjected to this torture. When a child that age is tortured he suffers not only physical pain but also irreversible psychological damage that can affect his whole future ... Defendant İ.D., who was a superintendent at the material time and is [now] a chief superintendent, was a public official acting as the officer in charge. It was his duty not only to abide by the law but also to make sure the men under his orders did so ... The sentences handed down ... against the defendants are manifestly contrary to the public interest which underlies Article 243 of the Criminal Code. They are likely to undermine society’s confidence in the forces of law and order ... As to the application of Article 59 § 2 of the Criminal Code: ... as mentioned above, the offence in issue here is generally considered to be one of the most serious. The [Court’s] view that the defendants felt remorse is unsubstantiated. Throughout the trial they constantly denied the charges; they even went as far as to suggest that the victim might have been beaten by [his parents]. It is inadmissible that someone who denies the charges should be considered to regret their misconduct ... As to the suspension of the sentences: ... the enclosed newspaper article reveals that defendant İ.D. had previously been tried for assault on two people and abuse of office ... Even though he was acquitted for lack of evidence, it shows the defendant’s propensity to commit such offences ...” 41. In a judgment of 24 March 1999, the Court of Cassation upheld the judgment of 26 February 1998, without replying to the above points of law. As the applicant’s counsel was not notified of this judgment, he did not become aware of it until 6 September 1999. 42. On 10 September 1999 the applicant’s lawyer claimed TRL 3 billion from the Ministry of the Interior in respect of non-pecuniary damage. When the Ministry refused to entertain the claim, the family lodged a claim for damages against the Ministry with the İzmir Administrative Court (“the court”) on 22 November 1999. 43. In a judgment of 11 April 2000, the court dismissed the claim as being time-barred under section 13 of Law no. 2577 (see paragraph 51 below). As the starting-point of the one-year limitation period provided for in that law, the court took the date on which the applicant had obtained the medical certificate, that is, 30 January 1996, explaining that the subsequent criminal conviction of the police officers responsible had no bearing on the calculation of the time-limit. 44. The applicant’s lawyer appealed to the Supreme Administrative Court. In a judgment of 12 December 2001, the Supreme Administrative Court dismissed the appeal and upheld the judgment of 11 April 2000. 45. The lawyer then applied for rectification of the judgment, arguing, inter alia, that the way in which the limitation rule for actions against administrative acts had been interpreted and applied in this case was at variance both with administrative law and with international legislation on the prevention of ill-treatment, in so far as the treatment to which the applicant had been subjected amounted not to any ordinary administrative act but to torture. He submitted that the period during which his client was entitled to sue for damages had not started until the day he had been informed of the final conviction decision, namely, 6 September 1999, the date on which the criminal nature of the impugned act had been finally established. 46. In a final judgment of 7 March 2005, the Supreme Administrative Court confirmed the judgment of 12 December 2001 by a majority of three judges to two. 47. The relevant provisions of the Criminal Code are as follows. “Any public servant ... who inflicts torture or cruel, inhuman or degrading treatment on accused parties to make them confess their crimes shall be sentenced to up to five years’ imprisonment and temporarily or permanently barred from public service.” “Prison sentences: Life imprisonment shall mean imprisonment until death. Unless explicitly provided otherwise [herein], other immediately enforceable prison sentences shall range from one to twenty-four years.” “Any law-enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ..., ill-treats, injures or strikes a person or does them bodily harm shall be sentenced to between three months’ and three years’ imprisonment and temporarily barred from public service. ...” “The judge has full discretion to determine the principal sentence, which can vary between a minimum and a maximum, taking account of factors such as the circumstances in which the offence was committed, the means used to commit it, the importance and seriousness of the offence, the time and place at which it was committed, the various special features of the offence, the seriousness of the damage caused and the risk [incurred], the degree of [criminal] intent ..., the reasons and motives for the offence, the aim, the criminal record, the personal and social status of the perpetrator and his conduct following the act [committed]. Even if the minimum sentence is imposed, the reasons for that choice must be stated in the judgment.” “If the court considers that there are mitigating circumstances other than those prescribed by law ..., the death penalty shall be commuted to life imprisonment, and life imprisonment to thirty years. Other penalties shall be reduced by a maximum of one-sixth.” 48. Sections 19 and 41 of Law no. 2253, establishing youth courts and regulating their jurisdiction and the procedure before them, cover the preliminary investigation of juvenile delinquency. “The term minor, for the purposes of this law, shall mean persons under 15 years of age at the time when the offence was committed.” “The preliminary investigation of offences committed by minors shall be carried out by the public prosecutor in person or by a deputy appointed by him.” Article 138 of the Code of Criminal Procedure as it stood at the material time stipulated that, from the time of their arrest, minors should have the assistance of an officially assigned counsel without having to ask for it. 49. Sections 4(1) and 6(1) of Law no. 647 on the execution of sentences read as follows: “Short custodial sentences which do not have to be served immediately may, depending on the personality and situation of the defendant and the circumstances in which the offence was committed, be commuted by the court: (1) to a heavy fine ... of 5,000 to 10,000 Turkish liras per day;” “The court may decide to suspend the execution of a fine and/or a prison sentence of up to one year ... if it is convinced, taking into account the offender’s criminal record and potential to commit crime, that there is little risk of any further offence being committed, and provided that the offender has never been sentenced to anything other than a fine. The reasons for suspending the sentence must be stated in the decision.” 50. Regulation 8, paragraph 39, of the disciplinary regulations of the security forces stipulates: “The following acts, actions and conduct shall be punished by expulsion from the public service: ... 39. Inflicting torture on any person ... on police premises;” 51. Section 13 of Law no. 2577 states: “Before initiating administrative proceedings, people whose rights have been violated as a result of administrative acts shall submit a claim for damages to the administrative authority concerned within one year of the date on which they received notification of the impugned act, in writing or otherwise, and, in any event, within five years of the impugned act. An administrative action may be brought if that claim is rejected, in whole or in part, by the administration. The time-limit for such administrative action shall be calculated from the day after notification of the claim’s rejection was received or, if the claimant has received no reply, from the expiry of the sixty-day period the administration has in which to reply.” 52. 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 41-46) 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). 53. In Turkish criminal-law practice a confession is said to be “tevilli” (“qualified”, a confession of a complex type) when the person confessing to the offence simultaneously invokes circumstances that may be considered to exonerate them or mitigate their guilt: examples are self-defence in a murder case, or something that cancels liability in a criminal case, such as having paid the price for the object one is accused of stealing. Such confessions are considered to be divisible, so the courts may distinguish between the part of the confession acknowledging the offence and the part explaining why it was committed, and choose to admit only the confession, not the reasons given. At the Court’s request, the Government supplied the following information concerning the practical interpretation in criminal law of the legal definition of the tevilli confession, which they translate as “tacit” confession: “... The court must decide in what circumstances the offence may be attributed to a person who clearly denies all the charges. In criminal law the trial court may base its judgment on the incriminating evidence and convict a defendant who denies everything if there is a body of consistent evidence pointing ‘beyond reasonable doubt’ to his guilt. When the court evaluates the evidence, if the defendant cannot prove that he was not at the place where the offence was committed on the material date and at the material time and, according to the evidence in the case file, the offence could not have been committed by anyone else, the court may [find] the defendant guilty.” As to judicial practice in respect of the application of minimum sentences, the Government were unable to present examples, as requested by the Court, of judgments explaining why the criminal-court judge had imposed a sentence heavier than the minimum prescribed by law. They simply explained that the courts had a certain discretion when it came to passing sentence between the upper and lower limits, the aim being to prevent repeat offences.

dev

001-57556

ENG

BEL

CHAMBER

CASE OF PIERSACK v. BELGIUM (ARTICLE 50)

Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

1. The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 14 October 1981. The case originated in an application (no. 8692/79) against the Kingdom of Belgium lodged with the Commission on 15 March 1979 by a Belgian national, Mr. Christian Piersack. 2. By judgment of 1 October 1982, the Court held that there had been a violation of Article 6 § 1 (art. 6-1) of the Convention, in that the impartiality of the "tribunal" which, on 10 November 1978, had determined the "merits" (in the French text: "bien-fondé") of a "criminal charge" against Mr. Piersack - namely, the Brabant Assize Court - "was capable of appearing open to doubt" (Series A no. 53, paragraphs 28-32 of the reasons and point 1 of the operative provisions, pp. 13-17). The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 7 to 17 of the above-mentioned judgment (ibid., pp. 6-10). 3. At the hearing of 25 March 1982, Mr. Piersack’s lawyer had stated that his client was seeking under Article 50 (art. 50) his immediate release, in accordance with "arrangements to be discussed", and also financial compensation to be used to meet the fees of his lawyers before the Belgian Court of Cassation (50,000 BF) and in Strasbourg (150,000 BF), subject to deduction of certain amounts paid by the Council of Europe by way of legal aid (3,500 FF). Counsel for the Government had replied that, were the Court to find a violation, publication of the judgment would itself constitute adequate just satisfaction. In its judgment of 1 October 1982, the Court reserved the question and invited the Commission to submit, within the coming two months, its written observations and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant might have arrived (paragraphs 34-35 of the reasons and point 2 of the operative provisions, ibid., p. 17). 4. After an extension of the above-mentioned time-limit by the President of the Court, and in accordance with his Orders and directions, the Registrar received: - on 1 February 1983, from the Secretary to the Commission, brief observations by its Delegate and copies of the correspondence it had exchanged with the Government and the applicant between October 1982 and January 1983; - on 14 February and 4 May, from the Agent of the Government, certain supplementary remarks; - on 7 and 24 March, two letters from Mr. Piersack’s lawyer. These documents revealed that no friendly settlement had been arrived at. 5. Acting on the President’s instructions, the Registrar wrote to the Agent of the Government on 23 March. The letter, which made reference to the wording of and the case-law on Article 50 (art. 50), enquired - "without prejudice to the decision which the Court might take on the point in question" - whether the Belgian authorities considered that Belgian law provided "any means whereby full reparation can be made for the consequences of the breach found ... by the judgment of 1 October 1982". In his reply dated 29 April and received at the registry on 4 May, the Agent indicated that two days previously the Belgian Minister of Justice had requested the procureur général (State prosecutor) attached to the Court of Cassation to challenge before the latter Court the judgment of 10 November 1978 whereby the Brabant Assize Court had sentenced the applicant to eighteen years’ hard labour for murder (see paragraph 2 above). The Minister had taken this step pursuant to Article 441 of the Code of Criminal Procedure, which provides as follows: "Where, on production of formal instructions which he has received from the Minister of Justice, the procureur général attached to the Court of Cassation impugns, before the Chamber hearing appeals on points of law in criminal cases involving serious, lesser and petty offences (en matière criminelle, correctionnelle et de police), judicial acts or judgments as being contrary to the law, such acts or judgments may be annulled. ..." 6. The subsequent developments in the case appear from letters which the Registrar received from the Agent of the Government on 3 June, 10 October and 7 November 1983 and 16 January 1984. (a) The procureur général referred the matter to the Court of Cassation on 29 April. In his submissions, he urged that the Court of Cassation had "to recognise that the European Court’s judgment had the force of res judicata" and "consequently to conclude that ... the procedural acts before the [Brabant] Assize Court and the latter’s judgment" had violated Article 6 § 1 (art. 6-1) of the Convention and "were therefore contrary to the law, within the meaning of Article 441 of the Code of Criminal Procedure". He also expressed the view that the fact that Mr. Piersack’s appeal on points of law against the judgment in question had been dismissed on 21 February 1979 (Series A no. 53, p. 10, § 17) did not prevent the Court of Cassation from applying Article 441, notably because at the relevant time it had been unaware of "two facts" on which "the European Court had based ... its decision": "firstly, Mr. Van de Walle, the President of the Assize Court, had until 1 November 1977 been the head of the section in the Brussels public prosecutor’s department that was responsible for Piersack’s prosecution"; "secondly, in that capacity, [he] had in fact played a certain part in the proceedings" (ibid., pp. 15-16, § 31). On 18 May 1983, the Court of Cassation, adopting these submissions, annulled the procedural acts subsequent to the committal for trial before the Assize Court (16 June 1978; ibid., p. 7, § 13) and the judgment of 10 November 1978 to the extent that it had convicted the applicant of, and sentenced him for, the manslaughter (meurtre sans préméditation) of one Michel Dulon (ibid., pp. 6-7, §§ 8 and 14); with these limitations, the case was referred back to the Hainaut Assize Court. (b) On 7 and 8 June, Mr. Piersack instituted, before the President of the Mons Court of First Instance, sitting as judge hearing urgent applications (siégeant en référé), proceedings against the Belgian State, the procureur général attached to the Mons Court of Appeal, the procureur du Roi (public prosecutor) attached to the Mons Court of First Instance and the Governor of Mons Prison. He claimed that he had been "arbitrarily detained since 18 May 1983"; accordingly, he requested the President to "order [his] immediate release" and to direct the Belgian State to pay to him 3,000 BF "per day since 18 May 1983, by way of damages for unlawful imprisonment". The President of the Mons Court of First Instance held on 7 September 1983 that he had no jurisdiction in the matter, since "the defendants ha[d] not committed any manifest illegality (voie de fait)": he found that following the judgment of 18 May 1983 the plaintiff had re-acquired "the status of a detainee on remand"; the legal basis for that detention lay in the judgment of 16 June 1978 by the chambre des mises en accusation (Indictments Chamber) (see Series A no. 53, p. 7, § 13), which judgment had not been annulled by the Court of Cassation. (c) The Hainaut Assize Court, by seven votes to five, convicted Mr. Piersack on 17 October 1983 and sentenced him to eighteen years’ hard labour, a sentence identical to that which had been imposed on 10 November 1978. The applicant did not appeal on points of law against this judgment since he considered that "this time" he had received a "fair trial". 7. On 7 February, 16 March, 22 June and 25 September 1984, the applicant, the Commission’s Delegate and the Government lodged with the registry, in accordance with the Orders and directions of the President of the Court, further observations on the application of Article 50 (art. 50) in the present case in the light of the events described above. On 17 September, the Registrar also received from the Secretary to the Commission the reply to a request for information which the Registrar had made on 28 June on the instructions of the Court. 8. After consulting, through the Registrar, the Agent of the Government and the Delegate of the Commission, the Court decided on 26 September 1984 that there was no call to hold hearings. 9. Mr. Thór Vilhjálmsson and Mr. F. Matscher, substitute judges, replaced Mr. L. Liesch and Mr. J. Pinheiro Farinha, who were prevented from taking further part in the consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court).

dev

001-77874

ENG

DNK

ADMISSIBILITY

BIGUM AND OTHERS v. DENMARK

Inadmissible

Snejana Botoucharova

The applicants are a married couple, born in 1975 and 1972, respectively, and their daughter, C, born on 1 November 2003. They live in Gram. They are represented before the Court by Mr Ladegaard Jensen, a lawyer practising in Holsted. The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant parents suffer from arrested development. Intellectually they have been placed in the category of severely mentally retarded pesons and their disorders have been assessed to be congenital. Since their childhood they have been in close contact with the social and health authorities. The applicant parents have cohabited since 1995. On 22 September 1996 the applicant parents’ first child, M, was born. On the social authorities’ initiative, seven days after the birth the applicant parents and M moved into a family observation institution (Institutionen Bethesda), with staff consisting of social workers, psychologists and social education workers, which was to support the applicant parents and assess the extent to which they possessed potential in the parenting role. The institution submitted its report on 27 November 1996. As to the applicant mother, the report stated, inter alia, that her attention could only be maintained for short intervals and with massive support. She was generally preoccupied with talking about her physical ailments to the extent that it took most of her energy. When faced with demands, for example if M started to cry or became restless, the mother became anxious and could seem panicstricken. She was not able to recognise her own problems and need for support and she had great difficulty in establishing contact with M. As regards the applicant father, notably during the beginning of his stay at the institution, he often made verbal threats against the staff and the other families at the institution. He had violent nightmares during which he would cry out loudly and pull out his tongue. Moreover, his night sleep was broken by long hot showers for up to two hours, during which he would talk or shout to himself. Consequently, he would often be exhausted during the day and sleep most of the time. He had no structure to his day and showed no signs of being able to handle daily routines. He had no understanding or recognition of his need for help and support in the parental role. He had trouble realising the consequences of his actions, and was not capable of protecting their baby M from physical harm (for example, he left M alone on the changing table although the danger of doing so had been explained to him frequently). With regard to the parents’ care skills, the report stated that both parents had extreme difficulty in establishing contact with M, and they often asked the staff to take over when they became impatient with her. None of the parents handled M particularly gently and their movements sometimes seemed uncoordinated. Mostly, they forgot to hold the baby’s head. They would not let M sleep and were in general not capable of recognising and understanding her needs. The report also stated that due to the parents’ inability to concentrate, M’s attempts to make contact with the parents were usually rejected or not answered. Thus, M eventually gave up contact and looked away from the parents when being with them. The conclusion read as follows: “The parents appear as a very emotional damaged couple who, because of their own disadvantaged upbringing, find it extremely difficult to master the task of parenting. The staff have no doubt that both parents have done their best in a spirit of love for their child, but their personality structure and their non-existing inner picture of the parent role prevent them from developing sufficient parenting functions. Moreover, their lack of mental resources is a further hindrance to the task of their developing parenting potential. Despite intervention at various levels, the basic symbiotic mother-child dyad has not developed. For the mother’s parental skills, this lack of bonding means that she is unable to see and understand the child’s signals, nor is she able to adapt to the child’s needs, which is crucial for the child’s attachment ability and emotional development. We have examined whether the father has the resources to take over this process, but the examination showed that he does not master this either. Their lack of timing and the resulting unintended abuse create unpredictability and chaos in the child’s world and will be a risk factor in her development, Moreover, both parents lack the fundamental ability to structure their everyday lives, for the child as well as for themselves. In particular, their serious problems managing their finances permeate their entire everyday lives. Their - as we see it - very resource-poor network means that the father, mother and child cannot expect adequate support. Mother and father tell us themselves that they have no friends who can give them special support. Our observations have also shown that their ability to create relations is virtually non-existent.” On 9 December 1996 M was taken into public care without the parents’ consent. Since May 1997 she has lived with a foster family. A relief foster family was also provided for her, to take over during holidays etc. The applicant parents were granted regular access, which was to take place under surveillance. Since February 2004 access has taken place in the presence of the foster family. The applicant parents’ second child, C, was born on 1 November 2003. Beforehand, at a meeting held on 8 September 2003, the applicant parents were informed by a social worker at the Municipality (Nørre-Rangstrup Kommune) that the latter would not recommend that the family be placed in a family institution when the child was born. The decision was based on the report of 27 November 1996 and reports on the applicant parents’ access to M. In addition, the decision was based on two statements of 19 January 2001 by a neuropsychologist, who in December 2000 had examined each of the applicant parents at the request of the social and health authorities in connection with the granting of social benefits (førtidspension). With regard to the applicant father the statement concluded: “The findings of the neuropsychological examination show a 27-year-old man, whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level, thus presently placing him in the severely mentally retarded category. On review of the individual neuropsychological functions as well as the intellectual and memory functions, a number of heavy disorders appear, manifested in a more diffuse affection of cortical brain areas, most pronounced in the frontoparietal brain areas of the left hemisphere. The disorders are assessed to be congenital. As regards an assessment of future job possibilities, I believe the chances of his being placed in the labour market under normal conditions to be non-existent, and that he has no real capacity for working in any kind of occupation, not even in sheltered surroundings.” With regard to the applicant mother the statement concluded: “The findings of the neuropsychological examination show a 25-year-old woman whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level, thus presently placing her in the severely mentally retarded category. On review of the individual neuropsychological functions as well as the intellectual and memory functions, a number of disorders appear, manifested in a more diffuse affection of cortical brain areas, most pronounced in the frontoparietal brain areas of the right hemisphere. The disorders are assessed to be congenital.” On 21 October 2003 the Municipality received written information from an acquaintance of the applicant parents that the latter planned to run away from the hospital with the baby when it had been born. On 23 October 2003, a family care consultant also informed the Municipality that the applicant father had told her that with the help of others he had planned to run away with the baby within 24 hours after its birth. By decision of 29 October 2003 the Municipality refused the applicant parents’ request that they and their newborn pursuant to Section 40 (2) of the Act on Social Services (Lov om Social Service) be placed at a family institution observation home or that mother and child be placed together with a foster family. At the same time the applicant parents were also informed that the Municipality intended to take the newborn into public care. The applicant appealed against the decision to the Social Appeal Board (Den Sociale Ankestyrelse). On 1 November 2003 C was born and the same day the Chairman of the Children and Young Persons Committee (Børne- og Ungeudvalget) under the Municipality decided provisionally, pursuant to section 45 (1) of the Act on Social Services, to take C into public care without the consent of the applicant parents. The decision gave the police the authority to prevent the applicant parents from leaving the hospital with C, but the parents had unlimited access to their baby during the stay at the hospital. According to section 45 (3) of the Act on Social Services, the preliminary decision was approved by the entire Children and Young Persons Committee at a meeting on 6 November 2003, during which the applicant parents’ lawyer was present. The decision was based on the report of 27 November 1996, the two statements of 19 January 2001 and the information submitted about the applicants’ intention to run away with the newborn baby. The decision was implemented sixteen days later in connection with the applicant mother’s discharge from the hospital. At the wish of the applicant parents, C was placed with M’s relief foster family, which allowed the children to see each other on a regular basis. During a meeting on 1 December 2003, at which the applicant parents, represented by their lawyer, were heard together with their two advisers (bisiddere), the Children- and Young Persons Committee made its final care order pursuant to section 42 (2) of the Act on Social Services. The applicant parents had access to C one hour twice a week in the foster parents’ home. On appeal, by decision of 6 January 2004, the Social Appeal Board upheld the Children and Young Persons Committee’s decisions of 6 November 2003 and 1 December 2003. Before the Board, the applicant parents, represented by their lawyer, and an adviser were heard. In addition, various documents were submitted, including the report of 27 November 1996, the two statements of 19 January 2001 concerning the neuropsychological examinations of the applicants and the Municipality’s case file. The Social Appeal Board found that due to the applicant parents’ diminished intellectual functioning and limited personal resources, there was an evident risk that C’s health and development would suffer serious damage if she was to remain with them. For the same reasons, it considered that the problems could not be solved in the applicant parents’ home, even if they were granted measures of support. The care order was to be reconsidered by the Children and Young Persons Committee no later than one year from the Board’s decision or, if the decision was brought before the High Court, no later than one year from the High Court’s judgment. On 23 January 2004 the applicants appealed against the decision to the High Court of Western Denmark (Vestre Landsret), claiming the Municipality’s care order to be revoked as regards C. They also appealed against a decision of 20 November 2003 in which the Social Appeal Board had continued the taking into public care of M. The applicant parents were heard by the High Court. In addition to the written material already submitted before the Social Appeal Board, the court also obtained two statements of February 2004 in which the foster families described the positive health and development of M and C respectively. They stated that the applicant parents’ access to the children was well implemented. By judgment of 18 March 2004, the High Court found against the applicants. It stated that for the reasons set out by the Social Appeal Board the conditions under section 42 of the Act on Social Services were fulfilled for taking the applicant parents’ children, M and C, into public care. The applicants’ request to be granted leave to appeal to the Supreme Court (Højesteret) was refused on 19 August 2004. In 2004, in connection with the review of the public care order, the Municipality decided to make an assessment of the applicants’ parenting skills by a psychologist. The assessment was submitted on 1 February 2005 and contained a recommendation to maintain C in public care since the applicants parental skills were found too limited. In a statement of 27 January 2005 the foster family described their view on C’s development and on how access with the parents was working out. The parents had been good at keeping the appointments, and although the father had only little contact with C, the mother was very preoccupied with proving that she could perform the role as a mother. Both applicant parents, however, were unable to interpret the child’s signals and impervious to advise. Consequently, the contact confused the child. On 9 March 2005 having heard the applicant parents and one of their advisers, the Children and Young Persons Committee decided to continue the public care for another two years. On appeal, on 24 May 2005, the Social Appeal Board confirmed the decision. The applicant did not bring this decision before the courts. On the contrary, on 1 December 2005 the applicant parents gave their consent to the taking of C into public care. In the meantime, in March 2005, the applicant parent’s access to C was increased and now took place once a week for four hours in the presence of the support person appointed to the parents. In May 2005, however, on the applicant parents’ request, access was reduced to take place once a week for two hours. B. Relevant domestic law and practice The relevant provisions of the Act on Social Services (Lov om Social Service) at the time read as follows: Section 40 1. The Municipality takes a decision as to measures to be taken under subsection 2, when this is deemed to be of significant importance with regard to a child’s or young person’s special need for support. From the measures listed in subsection 2, one or more of the least restrictive measures among those suitable shall be chosen. Any such decision shall be subject to the consent of the custodial parent, or other person having custody ... Any decision taken under subsection 2 (xi) shall be subject also to the consent of the young person, who has reached the age of 15 years. 2. The Municipality may decide: (i) to offer consultation assistance relating to the child or young person’s conditions, including the admission of the child or young person to a daytime facility, a youth club, training or education establishment, etc.; (ii) to offer practical, pedagogical or other support in the home; (iii) to offer family therapy or similar support; (iv) to offer the custodial parent, or other person having custody, the child or young person and other family members the possibility of staying on a full-time basis ..., in an institution, with a foster family, at another approved facility, in a municipal full-time facility or in an accommodation facility approved by the county authority subject to the rules provided under section 94a below; (v) to offer a relief arrangement ... at a full-time institution, with a foster family, in a municipal full-time facility or at an approved facility; (vi) to appoint a welfare officer for the child or young person; (vii) to appoint a permanent contact person for the child or young person or for the whole family; (viii) to grant financial support in respect of expenses incidental to the measures listed under (i)-(v) where the custodial parent or other person having custody cannot afford such expenses; (ix) to grant financial support in respect of expenses incurred for the purpose of preventing a child or young person being taken into care, for the purpose of expediting the return of a child or young person to his/her home or of contributing towards creating and maintaining stable contact between parents and children while one or more children are in care; (x) to grant financial support for attendance at a boarding school or continuation school where the custodial parent, or other person having custody, cannot afford such costs; (xi) to take the child or young person into care at a full-time institution, with a foster family, in a municipal full-time facility or at an approved facility deemed suitable for the special needs of the child or young person .... Section 40a In connection with a child or a young person being taken into public care ..., the Municipality proposes that a support person be appointed to the custodial parent or other person having custody of the child. Section 42 1. If there is an obvious risk that the health or development of the child or young person will suffer major damage due to (i) inadequate care or treatment of the child or young person; (ii) violence or other serious ill-treatment; (iii) substance abuse or criminal conduct or other serious social difficulties on the part of the child or young person; or (iv) any other behavioural or adjustment problems in the child or young person, the Children and Young Persons Committee may decide that the child or the young person be taken into care according to section 40 (2) (xi) without the consent of the custodial parent or other person having custody, or of the young person having reached the age of 15 years. [Such a decision] may be made only when there is a reasonable assumption that the problems cannot be resolved during the child’s or young person’s continued stay in the home. 2. If it is in the child’s or young person’s best interest, the Children and Young Persons Committee may decide that the child or young person be taken into care pursuant to subsection 1, notwithstanding that the custodial parent, or other person having custody, and the young person consent to an arrangement under section 40 (2) (xi). 3. ... 4. Any decision taken under subsections 1-3 may be made on a provisional basis subject to the rules provided under section 45 below provided the requirements are met. Section 45 1. Decisions under sections ... 42, ... 57(3), ... which, because of the immediate needs of the child or young person, cannot be deferred pending consideration by the Children and Young Persons Committee, may be made on a provisional basis by the Chairman of the Committee or in his absence by the Deputy Chairman. 2. The custodial parent or other person having custody, ... shall within 24 hours of the implementation of a provisional decision be given written notice of the decision and the reasons for the decision. Such notice shall also give particulars of the right of access to case records provided for by the Act on Public Administration, the right to be heard and to receive free legal assistance. 3. A provisional decision made under subsection 1 shall be submitted to the Children and Young Persons Committee for their approval as soon as possible and within a maximum period of seven days from the implementation of the decision, whether or not the measure has been discontinued. ... Section 46 1. Measures under sections 40, ... 42, ... shall be discontinued when their object has been achieved, when they no longer serve their purpose taking into account the special needs of the child or young person, or when the young person attains the age of 18 ... Section 62 1. The Children and Young Persons Committee ... shall in a meeting decide on the following ... (ii) to take a child or young person into care under section 42; ... (vi) approval of a provisional decision under section 45(3); 2. Before a decision is made, the custodial parent, or other person having custody, the child or young person, the legal adviser and any other adviser to the custodial parent or other person having custody shall be given an opportunity to be heard by the Children and Young Persons Committee. An opportunity provided under the first sentence to the child or young person may be dispensed with if the child has not attained the age of 12 or where it is deemed to be harmful to the child or young person. ... Section 123 1. Decisions by the Children and Young Persons Committee accordingly to section 62, may be brought before the Social Appeals Board ... ... Section 124 1. Decisions by the Social Appeal Board under sections 47 (3) and 123 may be brought before the High Court, within four weeks of the date on which the party appealing has been given notice of the decision. ... Section 126 Decisions by the High Court cannot be appealed against to the Supreme Court. However, the Leave-to-Appeal Board may grant leave to appeal to the Supreme Court against decisions or judgments by the High Court when they are found of general principle. Such a request must be made within respectively three or six months from the decision or the judgment. The relevant provisions of the Act on Legal Protection and Administration in Social Matters (Lov om retsikkerhed og administration på det sociale område) at the time read as follows: Section 19 1. The Children and Young Persons Committee consists of: (i) three members elected by the municipal council from among its members; (ii) the City Court Judge in the district. If there are several judges in the judicial district the Court Administration shall appoint one of them; and (iii) an educational/psychology expert to be appointed by the county council for the municipal term of office. ... Section 20 1. The Children and Young Persons Committee shall elect its own chairman and deputy chairman from among the members elected by the municipal council. 2. The judge shall chair the meetings of the committee and shall ensure that the necessary investigations have been undertaken, decide whether to obtain more information and may require a judicial examination to be conducted under section 1018 of the Administration of Justice Act. Also, the judge shall provide guidance as to the interpretation and application of the rules and consider and evaluate the information available.

dev

001-84450

ENG

RUS

CHAMBER

CASE OF KHATSIYEVA AND OTHERS v. RUSSIA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Karel Jungwiert;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

7. The first three applicants were born in 1934, 1943 and 1952 respectively, and the fifth, sixth and seventh applicants were born in 1962, 1974 and 1976 respectively. The date of birth of the fourth applicant is unknown. The applicants live in the village of Arshty in the Sunzhenskiy District of the Republic of Ingushetia. This district borders on the Chechen Republic. 8. The facts of the case as submitted by the parties are summarised in section A below (paragraphs 9-60). A description of the documents submitted by the Government is contained in section B below (paragraphs 61-104). 9. The first applicant is the mother of Khalid Khatsiyev, born in 1969, and of the third and fourth applicants. The second applicant is the mother of Kazbek Akiyev, born in 1970, and of the fifth and sixth applicants. The seventh applicant was married to Kazbek Akiyev. 10. Khalid Khatsiyev and Kazbek Akiyev were married and had two and four children respectively. At the material time both men lived in Moscow and went to Arshty in August 2000 to help their families with seasonal agricultural work. 11. The facts surrounding the death of the applicants’ two relatives are disputed by the parties. 12. The applicants did not witness the events described below and the following account is based on eyewitness statements submitted by them. 13. In August 2000 the residents of Arshty were cutting grass. The work was done collectively by all villagers in small groups of five to six people. 14. On 6 August 2000 about a hundred people divided into small groups were working in the surrounding hills. One of the groups was formed by Khalid Khatsiyev, Kazbek Akiyev, their cousin Ilyas Akiyev, and three men who had come to Arshty as internally displaced persons from Chechnya – Baymurza Aldiyev, Aslambek Imagamayev, and Aslambek Dishniyev. 15. Aslambek Imagamayev stated that while working they had seen several helicopters bombing a forest area near the village of Bamut in Chechnya, about ten kilometres away from them. 16. Around 1.00 or 1.30 p.m. the group in which the applicants’ relatives were working had decided to go home for lunch, when two military helicopters appeared from the direction of Bamut and started circling low above the field. Aslambek Imagamayev identified them as MI-24s. One of the helicopters fired a burst from an aircraft machine-gun at a spot situated 40-50 metres from the men. They were scared and, throwing down their scythes, ran to a white Niva car and drove down the hill in the direction of Arshty. Baymurza Aldiyev and Aslambek Imagamayev claimed that the helicopters had flown away but then reappeared and the men saw them right above the car, hovering at low altitude. They stopped the vehicle and ran for cover in different directions. 17. The helicopters launched non-guided missiles and strafed the Niva car with aircraft machine-guns with the result that its back tyres were flattened. They then chased the men. One of the helicopters fired a missile at the place where Khalid Khatsiyev and Kazbek Akiyev were hiding. They were both killed and Ilias Akiyev, who was nearby, was wounded by shrapnel in his leg. 18. Aslambek Imagamayev stated that he had run through the forest to tell the villagers what had happened. He stated that he had heard the helicopters shooting for some time. Baymurza Aldiyev testified that he had run towards the river and had hidden there in a bush. He estimated that the attack on the Niva car had continued for about an hour and a half. After the helicopters had left, he returned to the vehicle and found the bodies of Khalid Khatsiyev and Kazbek Akiyev about fifty metres away from the car. 19. The bodies were taken to the village in the damaged Niva. 20. The attack and the deaths were reported by human rights NGOs and the Russian mass-media in August 2000. 21. According to the Government, since the beginning of the counter-terrorist operation within the territory of the Chechen Republic, the civil and military authorities had taken all necessary steps to secure the safety of civilians residing in the North Caucasus. The residents of the Republic of Ingushetia had been notified, through the television and press, of the risk of being at the administrative border with Chechnya as well as of the actions they should perform when in the area of a counter-terrorist operation so as to indicate that they did not belong to illegal armed groups. In particular, once they had established “visual contact” with representatives of the federal forces, residents were supposed to stop moving, mark themselves with a piece of white cloth and wait for the arrival of a group of servicemen for an identity check. 22. On 6 August 2000 the authorities carried out a special operation aimed at searching for the base camp, eight kilometres to the south of the village of Arshty, of a group of around 250 illegal fighters, who were to be detained. The operation was planned and commanded by senior officers of the Western Group of the United Group Alignment (Западная группировка войск Объединенной группировки войск). The Government refused to indicate the names of those officers or provide details of the operation, stating that disclosure of the information might be harmful to the State’s national security interests. According to them, “in the materials of the preliminary investigation file there was no information” as to whether the residents of Arshty had been warned in advance about the operation in question, or whether the military personnel involved had been instructed to avoid civilian casualties. 23. During the operation, a federal transport MI-8 helicopter was hit by fire from members of illegal armed groups in the vicinity of the village of Arshty and crashed to the ground. Orders were given to evacuate the crew and servicemen on board the helicopter from the site of the crash. The Government alleged, with reference to the findings of the Chief Military Prosecutor’s Office, that servicemen who had arrived to evacuate those injured also came under fire from illegal fighters. The airspace above the area of the rescue operation was patrolled in shifts by a pair of military MI-24 helicopters. 24. At about 1 p.m., while patrolling over the area situated four kilometres to the west of Arshty and four kilometres from the site of the crash of the MI-8 helicopter, the pilots of the MI-24 helicopters saw a Niva car and a group of at least five men with light machine-guns. In the Government’s submission, the pilots observed the men through a target control system of tenfold magnification, from a distance of two kilometres and at an altitude of 100-150 metres. 25. According to the Government, the pilots reported this to the command centre and having received the respective order fired warning shots at a spot situated fifty metres away from the car and the people. The men immediately got into the car and started driving away, instead of staying where they were and waiting for the arrival of ground troops for an identity check. The pilots again reported to their superiors, received the respective order and fired warning shots for the second time, but the car continued moving. In order to prevent the Niva car with unidentified armed men inside from driving further without authorisation in the close vicinity of the zone of the rescue operation, the pilots, pursuant to their superiors’ order, fired at the car with the result that Khalid Khatsiyev and Kazbek Akiyev were killed and Ilias Akiyev was wounded. 26. The Government also submitted that “there was no information in the materials of the preliminary investigation file” as to whether the attacked men had used the firearms against the pilots, and that “according to its technical description, a light machine-gun [was] ineffective for hitting a target at a distance of over one kilometre”. 27. According to the Government, after the rescue operation in respect of the crashed MI-8 helicopter had been completed, the servicemen had inspected the area near the crash site and found a Niva car as well as hand grenades, spent cartridges from light machine-guns and a bloodstained ammunition belt near the car. 28. In the evening of 6 August 2000 several officials from the prosecutor’s office of the Sunzhenskiy District (прокуратура Сунженского района – “the Sunzhenskiy Prosecutor’s Office”) and the prosecutor’s office of the Republic of Ingushetia (прокуратура Республики Ингушетия – “the Republican Prosecutor’s Office”) arrived at the scene of the incident. They also brought a forensic expert from the city of Nalchik, in the Republic of Kabardino-Balkaria. The officials questioned the witnesses to the attack, inspected the scene of the incident and collected pieces of shrapnel and damaged scythes. No firearms or ammunition were found at the scene of the incident. The officials also examined the bodies and noted the wounds caused by shrapnel and by large-calibre guns. 29. According to the applicants, at the same time the head of the village administration contacted the military authorities. Two armoured personnel carriers with servicemen arrived in the village, and together with some local officials they proceeded to the site, but soon afterwards the local officials returned because the military allegedly refused to proceed further. 30. The Government submitted that on 6 August 2000, on the basis of the information received from the Arshty administration, the Republican Prosecutor’s Office had instituted criminal proceedings under Article 105 § 2 (a) and (f) of the Russian Criminal Code (murder of two or more persons committed by a generally dangerous method). The case file was assigned the number 20600055. After the initial investigative measures had been taken, the case was transferred to military prosecutors and given the number 34/32/0189-01. 31. According to the applicants, in the absence of any news of the investigation for several weeks after the incident, they applied to the Sunzhenskiy Prosecutor’s Office and then to the Republican Prosecutor’s Office. They were informed that a criminal investigation had been opened on 6 August 2000 and that the case file had been given the number 20600055. In reply to their subsequent requests to the prosecutors at various levels the applicants received hardly any substantive information about the investigation into the attack. On several occasions they received copies of letters by which their requests had been forwarded to different prosecutors’ offices. 32. On 29 August 2000 the Chief Military Prosecutor’s Office (Главная военная прокуратура), in reply to a request made by a deputy of the State Duma from Ingushetia on the applicants’ behalf, stated that the criminal investigation into the killing of two persons near the village of Arshty had been supervised by the military prosecutor’s office of the North Caucasus Military Circuit (военная прокуратура Северо-Кавказского военного округа) and that he would be informed of any results of the investigation. 33. On 30 October 2000 the preliminary investigation into the attack of 6 August 2000 was stayed for failure to identify those responsible. It was then resumed on 13 November 2000 (see paragraphs 69-70 below). It does not appear that the applicants were informed of any of those decisions. 34. On 14 November 2000 the applicants were informed by the Republican Prosecutor’s Office that on 9 August 2000 the file in case no. 20600055 had been transferred for investigation to garrison prosecutor’s office no. 59 (59 военная прокуратура гарнизона) in Mozdok, North Ossetia. 35. On 14 November 2000 a person acting as the applicants’ representative went to Mozdok to find out about the investigation. There he submitted an application stating the facts of the attack and asking for an update on the investigation. An officer of the prosecutor’s office showed him a register of cases, according to which the case had been transferred to a military prosecutor in Vladikavkaz, North Ossetia, for further investigation. 36. On 15 November 2000 the representative went to Vladikavkaz and talked to the military prosecutor, who informed him that the case had been sent to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) based in Khankala, the main Russian military base in Chechnya. On the same day the representative filed a request for an update on the investigation, on the second applicant’s behalf. 37. On 24 November 2000 the second applicant wrote to the military prosecutor of military unit no. 20102. She stated the facts of the case, referred to the number of the criminal investigation file communicated to her by the Sunzhenskiy Prosecutor’s Office and asked for an update on the investigation. She also requested that she be granted the status of victim in the proceedings. According to the second applicant, she received no reply to that letter. 38. On 30 December 2000 the investigating authorities again suspended the investigation on account of failure to identify the alleged perpetrators. It appears that this decision was then quashed by superior prosecutors twice, on 11 March and 24 October 2001 (see paragraphs 72, 73 and 75 below). It does not appear that the applicants were notified of any of those decisions. 39. On 29 January 2001 the fourth applicant was informed by the military prosecutor of military unit no. 20102 that his complaint had been added to the criminal investigation file opened in relation to his brother’s death. The date of the fourth applicant’s complaint was not specified. 40. On 30 May 2001 the second applicant wrote to the military prosecutor of military unit no. 20102 and to the military prosecutor of the North Caucasus Military Circuit. She enquired about developments in the investigation and requested that she and the first applicant be declared victims, in accordance with the Russian Code of Criminal Procedure. She received no reply to those queries, apart from a letter of 21 June 2001 by which the military prosecutor of the North Caucasus Military Circuit informed her that her letter had been forwarded to garrison prosecutor’s office no. 59 in Mozdok. 41. On 29 August 2001 the civil registration office for the Sunzhenskiy District issued death certificates numbered 376 and 405 for Khalid Khatsiyev and Kazbek Akiyev respectively. The date and place of death for both was recorded as 6 August 2000, village of Arshty, Sunzhenskiy District. 42. On 15 December 2001 the investigating authorities took a decision by which the criminal proceedings in connection with the events of 6 August 2000 were discontinued in part, as regards the superior officers’ order to attack the Niva car, as there was no evidence of a crime in their actions, and another decision ordering that the criminal proceedings be closed as a whole in the absence of evidence of a crime (see paragraphs 76-77 below). The applicants were informed of these decisions in undated letters (see paragraph 78 below). 43. On 25 January 2002 the latter decision of 15 December 2001 was set aside by superior prosecutors and the proceedings resumed (see paragraph 79 below). They were again discontinued owing to the absence of evidence of a crime on 21 March 2002 and then re-opened on 16 August 2002 (see paragraphs 81-82 below). 44. On 24 March 2003 the military prosecutor’s office of military unit 20102 informed the applicants that the investigation into the death of Khalid Khatsiyev and Kazbek Akiyev had been resumed. 45. By a letter of 17 April 2003 the SRJI, acting on the applicants’ behalf, requested the military prosecutor of military unit no. 20102 to inform them of the latest development in the case and to grant the status of victim to the first two applicants. 46. In a letter of 24 April 2003 the military prosecutor’s office of military unit no. 20102 informed the applicants that on the same date, with the consent of garrison prosecutor’s office no. 59, the criminal proceedings instituted in connection with the death of Khalid Khatsiyev and Kazbek Akiyev had been discontinued owing to the absence of evidence of a crime in the attack of 6 August 2000. 47. According to the Government, that decision had been taken in view of the investigating authorities’ finding that the pilots of the MI-24 helicopters had fired at the Niva car, with the result that the applicants’ two relatives had been killed, pursuant to an order that had been given by the command centre and that had thus been binding on them. Accordingly, the pilots’ action did not constitute a criminal offence. The actions of superior officers who had given the order to destroy the Niva vehicle did not constitute a criminal offence either, given that after the warning shots the car had continued moving in the close vicinity of the counter-terrorist operation in a situation of active armed resistance, with the members of illegal armed groups threatening the lives of federal servicemen and other persons. The Government did not mention the names of the pilots who had participated in the attack of 6 August 2000 or those of their superiors who had given the order in question. 48. On 21 May 2003 the military prosecutor of military unit no. 20102 informed the SRJI that the file in the criminal case relating to the death of Khalid Khatsiyev and Kazbek Akiyev had been transferred to the prosecutor’s office of the North Caucasus Military Circuit on 9 February 2001 in order to determine which body was competent to carry out the investigation. The prosecutor’s letter referred to case no. 14/33/0429-00. 49. On 7 July 2003 the military prosecutor of military unit no. 20102 again replied to a request from the SRJI, stating that case no. 14/33/0429-00 instituted in relation to the death of Khalid Khatsiyev and Kazbek Akiyev had been forwarded to the prosecutor’s office of the North Caucasus Military Circuit on 9 February 2001. 50. In a letter of 8 July 2003 the SRJI requested garrison prosecutor’s office no. 59 to declare the first two applicants to be victims in criminal case no. 14/33/0429-00 and to grant them access to the case file. 51. On 10 July 2003 garrison prosecutor’s office no. 59 notified the first two applicants in reply to their query that the file of the case concerning the killing of their sons had been sent to the prosecutor’s office of the United Group Alignment (военная прокуратура Объединенной группы войск) in order to verify whether the decision to discontinue the proceedings had been lawful and well-founded. 52. In letters of 10 and 11 August 2003 garrison prosecutor’s office no. 59 stated that the first and second applicants respectively could consult the case file in the garrison prosecutor’s office on any working day from 9 a.m. until 6 p.m. The letter referred to case file no. 34/32/0189-01D. 53. In a letter of 11 August 2003 garrison prosecutor’s office no. 59 also informed the SRJI, in reply to their query, that the criminal proceedings in case no. 34/32/0189-01D had been discontinued on 24 April 2003 in the absence of evidence of a crime in the attack of 6 August 2000, and that therefore there were no grounds in domestic law for declaring the first two applicants to be victims of a crime. The letter added that the first two applicants could have access to the case file on any working day between 9 a.m. and 6 p.m. 54. On 9 March 2004 the SRJI applied on the applicants’ behalf to garrison prosecutor’s office no. 59. They stated that on 29 August 2003 the applicants’ legal counsel had attempted to gain access to the documents in case no. 34/32/0189-01D but this had been refused on the ground that the case file had been transmitted to the military prosecutor’s office of the Republic of Ingushetia (военная прокуратура Республики Ингушетия). In this connection the SRJI requested garrison prosecutor’s office no. 59 to notify them of the reasons for the transfer of the case to the military prosecutor’s office of the Republic of Ingushetia and of any new developments in the investigation, together with the date on which, and the place where, the first two applicants and their lawyers could study the case file. 55. On the same date the SRJI sent a similar letter to the military prosecutor’s office of the Republic of Ingushetia. 56. On 18 March 2004 the Chief Military Prosecutor’s Office forwarded the request of the SRJI to the military prosecutor’s office of the United Group Alignment for examination. 57. In a letter of 23 March 2004 garrison prosecutor’s office no. 59 informed the SRJI that the file in criminal case no. 34/32/0189-01D had been referred to the military prosecutor’s office of the United Group Alignment for examination and then, after 1 September 2003, to a newly organised military prosecutor’s office of military unit no. 04062 (военная прокуратура – войсковая часть 04062) in the Republic of Ingushetia. The letter thus invited the applicants and their representatives to apply to the last mentioned prosecutor’s office. 58. On 2 June 2004 garrison prosecutor’s office no. 59 stated that they had replied to all the queries from the SRJI in a letter of 23 March 2004. 59. On 2 July 2004 the military prosecutor’s office of the United Group Alignment informed the first two applicants and the SRJI that the criminal proceedings in case no. 34/32/0189-01D had been discontinued on 24 April 2003 and that no subsequent investigative measures had been taken. The military prosecutor’s office of the United Group Alignment had studied the case materials and found the aforementioned decision of 24 April 2003 to have been substantiated. The case file had then been forwarded to the military prosecutor’s office of military unit no. 04062 and the applicants could consult the file there. 60. According to the applicants, all their efforts to gain access to the case file have so far proved unsuccessful. On the latest occasion they attempted to consult the case file in December 2006, but in vain. 61. In October 2004, at the communication stage, the Government were invited to produce a copy of the investigation file in the criminal case instituted in connection with the attack of 6 August 2000 and the killing of Khalid Khatsiyev and Kazbek Akiyev. Relying on the information obtained from the Prosecutor General’s Office, the Government refused to submit any documents from the criminal investigation file, stating that, even though the investigation had been discontinued, the disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses. 62. On 23 October 2006 the application was declared admissible. At that stage the Court again invited the Government to submit the investigation file. In February 2007 the Government agreed to reveal the case-file materials, apart from documents “the disclosure of which [might] be harmful to the interests of the security of the Russian Federation and of the participants in the criminal proceedings” and those “which were irrelevant to the investigation”. According to the Government, the submission of the case file at an earlier stage had been inappropriate in view of the need to secure the safety of the participants in the criminal proceedings and to ensure that the information from the preliminary investigation was not disclosed, in accordance with Article 161 of the Russian Code of Criminal Procedure as well as on account of the applicants’ failure to exhaust available domestic remedies. 63. Eventually, the Government produced a number of documents running to a total of 223 pages. They can be summarised as follows. 64. By a decision of 6 August 2000 the prosecutor of the Sunzhenskiy District ordered that criminal proceedings under Article 105 § 2 (a) and (f) of the Russian Criminal Code (murder of two or more persons committed by a generally dangerous method) be instituted in connection with an attack by two military helicopters earlier that day which had resulted in the death of Khalid Khatsiyev and Kazbek Akiyev. 65. By a decision of 6 August 2000 the investigator in charge took up the case. In another decision taken on the same date the investigator in charge granted the status of victim of a crime to Ilyas Akiyev, who had sustained injuries as a result of the attack (see paragraphs 17 and 25 above). 66. In a decision of 8 August 2000 the investigator in charge ordered that the case file be transferred to a military prosecutor’s office, which had jurisdiction to investigate criminal offences committed by military personnel. 67. By a decision of 18 September 2000 an investigator of the military prosecutor’s office of military unit no. 20102 took up the case, which was given the number 14/33/0429-2000. 68. A decision of 2 October 2000 taken by the investigator in charge and approved by the military prosecutor of military unit no. 20102 ordered that the term of the preliminary investigation should be extended until 6 November 2000. The decision stated, in particular, that it had been established that on 6 August 2000 at about 9 a.m. the applicants’ two relatives, together with Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev, had arrived in a Niva car at an area three kilometres to the west of Arshty for grass-cutting. The decision then continued: “At about 11 a.m. two military MI-24 helicopters appeared over the territory of the Chechen Republic to the south of the village of Arshty and started strafing the territory of the Chechen Republic. At about 1.30 p.m. [the applicants’ two relatives and the four other persons mentioned above] got into the [Niva] car and attempted to drive off in the direction of the village of Arshty. At the same time the helicopters ... moved in their direction and opened fire on the car from aircraft machine-guns. [The applicants’ two relatives and the four others mentioned above] left the car and went into hiding in grass nearby. The helicopters went on strafing the vehicle and [the six persons’] hiding-place from missile launchers and aircraft machine-guns. As a result of the attack Khalid Khatsiyev and Kazbek Akiyev died.” The report then listed the investigative actions that had been carried out. It stated, in particular, that the scene of the incident had been inspected and craters and metallic pieces of shrapnel with markings had been found, that the corpses of Khalid Khatsiyev and Kazbek Akiyev had been examined and then sent to the Forensic Examinations Office of the Republic of Ingushetia for a forensic examination, and that Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev, Aslambek Dishniyev and F., who had been present at the scene of the incident on the date of the attack, had been questioned as witnesses. The decision also prescribed that further investigative measures be taken. It ordered that the identity of the pilots of the two MI-24 helicopters be established and that they be questioned, that the identity of the persons who had ordered the pilots to open fire be established and that those persons be charged with a criminal offence, and that other investigative measures necessary to complete the investigation be carried out. 69. By a decision of 30 October 2000 the investigator in charge of the military prosecutor’s office of military unit no. 20102 suspended the proceedings in case no. 14/33/0429-2000. The decision restated the facts of the incident and listed the investigative actions that had been conducted, in the same manner as this had been stated in the decision of 2 October 2000. It went on to say the following: “A witness questioned in the course of the investigation, Lieutenant Colonel K., the head of the headquarters of the aircraft division of a [deleted] military unit, confirmed the fact of the attack on the Niva vehicle by helicopters of a [deleted] separate helicopter squadron in the vicinity of the village of Arshty. It follows from Lieutenant Colonel K.’s statement that at present the [deleted] separate helicopter squadron had been transferred from the territory of the Chechen Republic to the place of its permanent station in the city of [deleted]. Taking into account that the alleged perpetrator has not been identified, despite all the measures taken, that all the investigative measures which could have been carried out within the territory of the Chechen Republic have been taken and that the personnel of the [deleted] separate helicopter squadron have left for the place of their permanent station in the town of [deleted] ... the investigation should be carried out [at that place] in the town of [deleted]. The decision thus ordered that the criminal proceedings be suspended, as it was impossible to establish the identity of those responsible, and that the case file be transmitted to the military prosecutor’s office of the Kursk garrison. 70. In a decision of 13 November 2000 the military prosecutor’s office of the North Caucasus Military Circuit quashed the decision of 30 October 2000, stating that the investigation had been incomplete and ordering that the case be sent to the military prosecutor’s office of military unit no. 20102 for additional investigation. 71. By a decision of 30 November 2000 an investigator of the military prosecutor’s office of military unit no. 20102 took up the case. 72. A decision of 30 December 2000 ordered that the criminal proceedings in case no. 14/33/0429-2000 be stayed. It was, in essence, similar to the decision of 30 October 2000, but stated in addition the following: “A witness questioned in the course of the investigation, [deleted] L., stated that on 6 August 2000 illegal fighters had attacked a [federal air] group in the vicinity of the village of Arshty. A MI-8 helicopter [was hit as a result of the attack] and fell to the west from Arshty...A search group, together with MI-24 helicopters for fire support, was sent to the site of the crash. Thereafter the pilots of the helicopters reported that they had destroyed a Niva vehicle from which illegal fighters had been firing at the helicopters. [Witness L.] was not asked for permission to open fire on the Niva vehicle. As a result of inspection [by federal servicemen] of an area in the vicinity of Arshty, a damaged Niva vehicle, hand grenades, spent cartridges from machine-guns cases and a bloodstained ammunition belt were found”. The decision then concluded that the identity of those responsible could not be established and ordered that the proceedings be suspended. 73. In a decision of 11 March 2001 the military prosecutor’s office of the North Caucasus Military Circuit set aside the decision of 30 December 2000, stating as follows: “An examination of the materials of the criminal case has established that the investigation was becoming procrastinated, that no practical measures aimed at establishing the identity of those responsible were being taken, that special requests were being met, with the result that it is now difficult to assess the actions or omissions of public officials and pilots of the helicopters’ crew, who have not been questioned to date. Until the present time no forensic examination of the dead bodies has been carried out, and therefore the cause of death has not been established and the question of the damage sustained by [those who were declared victims in the proceedings] has not been resolved.” The military prosecutor’s office thus ordered that the decision of 30 December 2000 be quashed, that the proceedings in case no. 14/03/0396-00 instituted in connection with the murder of Khalid Khatsiyev and Kazbek Akiyev be resumed and that the case file be forwarded to garrison prosecutor’s office no. 59 for additional investigation. 74. By a decision of 24 August 2001 an investigator of the garrison prosecutor’s office no. 59 took up the case, referring to file number 14/32/0189-01D. 75. A decision of the military prosecutor’s office of the North Caucasus Military Circuit dated 24 October 2001 again quashed the decision of 30 December 2001 and ordered the re-opening of the investigation in case no. 14/21/0396-00 concerning the murder of the applicants’ relatives. It set out the same reasons as the decision of 11 March 2001. 76. In a decision of 15 December 2001 the investigator in charge of garrison prosecutor’s office no. 59 ordered that the criminal proceedings in case no. 14/32/0189-01D concerning the murder of Khalid Khatsiyev and Kazbek Akiyev be closed in part. The decision stated as follows: “On 6 August 2000 at about 9 a.m. a MI-8 helicopter of a [deleted] separate helicopter squadron fell down in the vicinity of the village of Arshty of the Sunzhenskiy District of the Republic of Ingushetia. A helicopter which arrived at the site of the crash for the evacuation of the injured servicemen was also attacked by fire. On the same day at 12 noon, pursuant to an order of Colonel D., the commander of military unit no. 06652, two MI-24 helicopters under the command of Major [the real name is replaced with the nickname “Ivanov”] and Major [the real name is replaced with the nickname “Petrov”] were sent to cover the rescue operation. At about 1 p.m., while patrolling over the area to the west of Arshty, they saw a white [Niva] vehicle and five [rather than six] persons armed with automatic firearms standing nearby, and immediately reported this to the command centre of the United Group Alignment in the village of Khankala of the Chechen Republic. The helicopter[s] [were] at an altitude of 100-150 metres and at a distance of two kilometres from the car. [The pilots] observed the car through a target control system of tenfold magnification. The command centre reported that the identity of those persons would be established. About 15 minutes later the command centre gave an order to destroy the vehicle. Then [the pilots] fired a warning shot from a gun at a spot situated fifty metres away from the car with the purpose of warning everybody to stay where they were until the arrival of ground troops. After the warning shot, the people got into the car and started driving in the direction of the village of Arshty. [The pilots] reported to the command centre and received a repeated order to destroy the vehicle. Following the order, [the pilots] again fired a warning burst from an aircraft machine-gun. The car continued to advance. Thereafter, the third burst for effect was fired from the helicopter under the command of Major [“Ivanov”] after which the car stopped. This was reported to the command centre and to the ground troops... As a result of the attack Khalid Khatsiyev and Kazbek Akiyev died. Accordingly, there is nominal evidence of a criminal offence punishable under Article 286 (3) of the Russian Criminal Code [aggravated abuse of power] in the actions of an official who ordered the destruction of the [Niva] vehicle. However, [this] order was justified in the aforementioned circumstances, and therefore the criminal proceedings in the part concerning the criminal offence under Article 286 (3) of the Russian Criminal Code should be terminated [owing to the absence of evidence of a criminal in that official’s actions ...]” 77. Another decision taken by the same investigator on 15 December 2001 ordered that the criminal proceedings instituted concerning the murder of the applicants’ two relatives be discontinued in full. The decision described the circumstances of the attack of 6 August 2000 as they were stated in the aforementioned decision of 15 December 2001 and referred to a report on the inspection of the scene of the incident of 6 August 2000, the reports on the forensic examination of the dead bodies of Khalid Khatsiyev and Kazbek Akiyev dated 3 September 2001 and witness statements of Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev, those of the pilots of the MI-24 helicopters, those of Colonel D., the commander of military unit no. 06652, and those of Lieutenant Colonel A., the head of the headquarters of military unit [the number of the unit is deleted] as well as to the other decision of 15 December 2001. It then concluded: “Accordingly, on the basis of the evidence obtained during the investigation, it has been established that on 6 August 2000 at about 1 p.m. in the vicinity of the village of Arshty ... the members of the crew of the MI-24 helicopters destroyed the [Niva] vehicle pursuant to an order which was justified in the circumstances and was binding on them, and therefore their actions did not constitute a criminal offence and they are not liable to criminal responsibility for the damage inflicted by their actions. The criminal case instituted on 6 August 2000 under 105 § 2 (a) and (f) of the Russian Criminal Code shall be terminated ... in the absence of evidence of a crime.” 78. In undated letters the investigating authorities informed the applicants, Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev that the criminal proceedings instituted in connection with the attack of 6 August 2000 and the murder of Khalid Khatsiyev and Kazbek Akiyev had been suspended on 15 December 2001 owing to the absence of evidence of a crime. The applicants were informed that the decision could be appealed against to the prosecutor of garrison no. 59 or before a court. 79. By a decision of 25 January 2002 the military prosecutor’s office of the North Caucasus Military Circuit set aside the second decision of 15 December 2001 (see paragraph 77 above), stating that the preliminary investigation had been incomplete, that the special instructions had not been complied with, and that all the measures envisaged in the law had not been taken, with the result that it was difficult to assess the actions or omissions of the public officials and the members of the crew of the MI-24 helicopters. The decision thus ordered that the investigation be resumed. 80. On 21 February 2002 an investigator of garrison prosecutor’s office no. 59 took up the case. 81. In letters of 22 March 2002 the investigator in charge informed the second applicant’s family, as well as Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev, that on 21 March 2002 the proceedings in connection with the death of the applicants’ two relatives had been discontinued in the absence of evidence of a crime, and that this decision could be appealed against to the prosecutor of garrison no. 59 or in court. It is unclear whether the first applicant’s family was informed of the decision of 21 March 2002, as there is no letter to that effect among the documents submitted by the Government. A copy of the decision of 21 March 2002 was not submitted to the Court either. 82. By a decision of 16 August 2002 the military prosecutor’s office of the North Caucasus Military Circuit quashed the decision of 21 March 2002, stating that the investigation had been incomplete, that a superior prosecutor’ 83. By a decision of 24 March 2003 an investigator of the military prosecutor’s office of military unit no. 20102 took up the case. 84. On the same date the investigator in charge informed the second applicant’s family and the aforementioned four men who had been attacked together with Khalid Khatsiyev and Kazbek Akiyev of the decision of 24 March 2003. It is unclear whether the first applicant’s family was informed of the said decision, as there is no letter to that effect among the documents submitted by the Government. 85. A decision of 24 April 2003 taken by the investigator in charge of the military prosecutor’s office of military unit no. 20102 ordered that the criminal proceedings in case no. 34/32/0189-01 be terminated. The decision described the circumstances of the attack of 6 August 2000 as they had been stated in the decision of 15 December 2001 on complete termination of the criminal proceedings (see paragraph 77) and referred to the same documents as those relied on in that decision. It also referred to the witness statement of Mr F., the head of the administration of Arshty at the relevant period, that of Mr M., the head of the flight safety service, and the report of a military expert of 20 March 2002 (see paragraph 102 below) and that it had been established that at the relevant period a counter-terrorist operation had been underway within the territory of the North Caucasus region, which comprised several republics, including the Chechen Republic and the Republic of Ingushetia. The residents of the region had been notified that once approached by military vehicles or federal servicemen they were to mark themselves with a piece of white cloth so as to indicate that they were civilians and wait for the arrival of servicemen for an identity check. The decision went on to say that on 6 August 2000 the applicants’ two relatives and the four other men, who had been discovered in the vicinity of Arshty by two MI-24 helicopters under the command of Major “Ivanov” and Major “Petrov”, had failed to comply with the aforementioned requirements and, after a warning shot, had attempted to escape in the Niva car with the result that the MI-24 helicopters had opened fire for effect, entailing the death of Khalid Khatsiyev and Kazbek Akiyev. The decision then concluded that the pilots had acted pursuant to an order which had been justified in the circumstances and had been binding on them, and therefore their actions did not constitute a criminal offence and they were not responsible for the damage caused. It thus ordered that the criminal proceedings against officers “Ivanov” and “Petrov” be discontinued in the absence of evidence of a crime in their actions. 86. There are a number of transcripts of witness interviews among the documents submitted by the Government. In particular, Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev described the attack of 6 August 2000 as stated in the applicant’s version of events (see paragraphs 12-20) and insisted that they had had no firearms and that it had been obvious that they had been civilians cutting grass and had posed no danger. Aslambek Dishiyev and Aslambek Imagamayev also stated that they had never received any information concerning the rules of conduct of civilians in the zone of a counter-terrorist operation, that it had never been explained how a civilian should mark himself, as no special operations had been carried out in Ingushetia. Baymurza Aldiyev submitted that the head of the administration of Arshty and officers of the Department of the Interior of the Sunzhenskiy District had explained to the local residents that they should avoid the military personnel, not approach and not provoke them. He had heard from his relatives that when federal servicemen opened fire it was necessary to mark oneself as a civilian with a piece of white cloth and wait for the arrival of servicemen for an identity check, but during the attack of 6 August 2000 he had not performed those actions, as they had all been scared and attempted to escape, fearing for their lives. 87. Mr F., the head of the administration of Arshty at the material time, stated that Khalid Khatsiyev and Khalid Akiyev had never been involved in illegal activities, and no criminal proceedings had ever been brought against them. He also submitted that on 6 August 2000 he had visited the scene of the incident with the Niva car, together with local law-enforcement officers. According to Mr F., during the inspection of the scene of the incident pieces of shrapnel and craters from shells and bullets had been found. Mr F. claimed that there had been no firearms or grenades at the scene of the incident, that it had not been attended by servicemen or any persons before the arrival of the law-enforcement officers and that there had been no traces of anyone’s prior presence at the scene. Mr F. also stated as follows: “Since the summer of 2000 a counter-terrorist operation has been underway within the territory of the Chechen Republic. From that time onwards the federal forces have repeatedly conducted special operations in the village of Arshty, during which representatives of official bodies or commanding officers have never explained the rules of conduct in a situation when representatives of the federal forces approach. I, myself, have on several occasions told the residents of the village that if military vehicles, aircraft or armed soldiers appear they should move away to a safe distance. During the year 2000 it was never explained to me that on the approach of aircraft or helicopters it was necessary for people to mark themselves as civilians – with a white cloth or in any other way – to make the servicemen understand that they are civilians. Accordingly, I never gave such explanations to the residents of the village. The officials of the Department of the Interior of the Sunzhenskiy District did not give [any such explanations] either, since there were no military actions on the territory of the Republic of Ingushetia...” 88. According to a statement of a superior officer of the air force obtained on 30 November 2000, in case of necessity the pilot in command of a helicopter might be authorised by the command centre to take, of his own motion, a decision to open fire. 89. Officer L., whose military rank and position are unknown as his personal details have been deleted from the transcript, stated during the questioning of 29 December 2000 that: “...the pilots reported that they had destroyed a Niva vehicle with illegal fighters, who had been firing at the helicopters. The pilots did not request me to give them authorisation to open fire. I suppose that the pilot in command, of his own motion, took a decision to destroy the Niva car, having assessed the battle conditions. After the rescue operation had been completed, the area in the vicinity of the crash was inspected. As a result, a destroyed Niva vehicle was found and several hand-grenades, spent cartridges from light machine-guns and a bloodstained ammunition belt were found nearby.” 90. Lieutenant Colonel A., whose position is unknown as his personal details have been deleted from the transcript, stated during questioning on 6 May 2001 that it was he who, on 6 August 2000, had assigned a mission to a group consisting of the MI-8 helicopter, which had then been hit by the rebel fighters, and two MI-24 helicopters, which had been entrusted with the task of “covering” the MI-8 helicopter. He stated that this group had not been involved in an attack on the Niva car and that he had no information regarding the attack. 91. According to a statement of 23 April 2001 by Mr I., an investigator from the Sunzhenskiy Prosecutor’s Office, he had been summoned to the scene of the incident with the Niva car on 6 August 2000. When he arrived, the destroyed vehicle and the dead bodies had already been removed from the site. Mr I. had inspected the site and found fragments of shrapnel, pieces of broken car headlights and bloodstains. According to him, he had found no grenades, spent cartridges from light machine-guns or an ammunition belt. 92. Mr B., who at the material time had been a driver for the Ministry of the Interior of the Republic of Ingushetia and had attended the scene of the incident as an attesting witness on 6 August 2000, stated during questioning on 23 April 2001 that he had seen a severely damaged Niva car, two dead bodies lying 12-15 metres away and a lot of craters and pieces of shrapnel. Mr B. submitted that he had seen an F-1 hand grenade lying between the vehicle and one of the corpses. According to him, he had not seen any firearms, spent cartridges from light machine-guns or ammunition belts at the scene of the incident; near the corpses Mr B. had only seen scythes. 93. The pilots of the two Mi-24 helicopters who had attacked the Niva car on 6 August 2000 were questioned on 22 and 23 January 2001 respectively. The real names, surnames and personal details of the pilots have been deleted from the transcripts of their interviews. The pilots in command of the helicopters are indicated with the nicknames “Ivanov” and “Petrov” and an operating pilot who was working in tandem with “Ivanov” is indicated as “Sidorov”. 94. Witness “Ivanov” submitted that he had participated in a rescue operation of 6 August 2000 as pilot in command of the lead helicopter of a pair of MI-24 helicopters. The mission was assigned to them by the commander of military unit no. 06652, who received orders from the command centre of the main federal military base in the village of Khankala, the Chechen Republic. According to “Ivanov”, at about 1 p.m. he noticed a white Niva car and five [rather than six] men standing nearby, all of whom had automatic firearms. He observed the people without using any optical devices from the distance of two kilometres and altitude of 100-150 metres, but insisted that he clearly saw the people had firearms, and that his operating pilot, “Sidorov”, had seen them through a target control system of tenfold magnification. He reported this to the command centre in Khankala and was told that the identity of those five persons would be established. The pilots continued observing, the Niva vehicle remained still and the five men were moving around it. About 15 minutes later “Ivanov” received an order from the command centre in Khankala to destroy the car. According to him, he did not know the name of the official who had given the order. “Ivanov” then sought and obtained confirmation of that order. He fired a warning shot at a spot situated fifty metres away from the car, so as to make the people stand still and wait for the arrival of federal servicemen for an identity check. After the shot, the people got into the car and drove off in the direction of Arshty. “Ivanov” reported this to the command centre in Khankala and received an order to destroy the vehicle. He then fired a warning burst from an aircraft machine-gun, but the car carried on moving. “Ivanov” fired another burst and hit the Niva vehicle, which stopped but nobody got out of it. “Ivanov” then reported the incident to his superiors and left for the place of his station, as he was running out of fuel. “Ivanov” insisted that he did not know the names or military ranks of officials who had given him orders and had had no doubt that the five men belonged to illegal armed groups, as they had been armed. He submitted that “the people in the [Niva] car were supposed to stop after a warning shot; this was known to all the civilian population in the area of the military actions”. 95. Witness “Petrov” stated that he had participated in a rescue operation on 6 August 2000 as wingman of the pair of MI-24 helicopters. He confirmed that he had seen from a distance of two kilometres a white Niva car and five [rather than six] armed men, who after “Ivanov’s” warning shot had got into the car and started driving away, although “everybody knew that a car must stop at a shot or even a helicopter’s flight”. “Petrov” submitted that he had not been authorised to communicate with the command centre but had heard “Ivanov’s” communications and confirmed that “Ivanov” had reported about the car and the people to the command centre and twice received an order to destroy the vehicle. After the second order from the command centre “Ivanov” had given “Petrov” a command to fire at the vehicle, and the latter had strafed the vehicle with a machine-gun of 12.7 mm calibre, whilst “Ivanov” had fired at it with an automatic cannon of 30 mm calibre. The car had stopped but nobody had got out. He then left for the place of his location, as he was running out of fuel. “Petrov” stated that he did not know the names or military ranks of the officials who had communicated with “Ivanov” on 6 August 2000. 96. Witness “Sidorov” stated that on 6 August 2000 he had been an operating pilot on the MI-24 helicopter under the command of “Ivanov”, and that he had observed a Niva car and five [rather than six] men with automatic firearms standing nearby through a target control system of tenfold magnification, as he had reported to “Ivanov”. He then submitted the following: “I clearly heard Major [“Ivanov”] report about the car to [deleted] and to [deleted]. About 10 minutes later an order followed from [deleted] (Khankala) to fire a warning shot. “Ivanov” fired a warning shot from an automatic cannon in front of the car. The people got into the vehicle and drove off in the direction of the village of Arshty and did not stop. All local inhabitants know that it is necessary to stop. [“Ivanov”] reported to [deleted] that the car had not stopped. An order to fire another warning shot followed. [“Ivanov”] made another circle and fired in front of the car with the automatic cannon, but the car did not stop. [“Ivanov”] reported to [deleted] about the situation with the car. An order followed to open fire for effect. [“Ivanov”] opened fire for effect, and the car stopped and I saw two persons get out and run into the forest. [“Ivanov”] reported to [the command centre] that the car had stopped and thereafter he transmitted to [deleted] the information on the car’s location to enable an identity check of the people in the car.” 97. During questioning on 23 January 2001 Colonel D. submitted that at the material time he had been the commander of the [deleted] separate helicopter squadron and that on 6 August 2000 he had heard communications between the MI-24 helicopters and the command centre. He confirmed that the pilots had reported about the Niva vehicle and armed men nearby, that they had been ordered to fire a warning shot, that the pilots had reported that the men had got into the car and attempted to escape and that the pilots had been ordered to destroy the vehicle. 98. Officer M., a military expert, stated during an interview of 20 April 2003 that the actions of the pilots of the MI-24 helicopters, who had attacked the group of people on 6 August 2000, had fully complied with relevant military regulations and the provisions of international law and had been justified in the circumstances. The expert admitted that the pilots could have mistaken agricultural equipment, in particular scythes, for firearms, but noted that the pilots had been absolutely positive that the men whom they had noticed had been armed and that those men had not marked themselves as civilians and had attempted to escape. 99. A report on the inspection of the scene of the incident of 6 August 2000 attested the presence of a large number of craters and metallic fragments of irregular shape as well as pieces of broken glass from backlights and a splash shield of a car and a large brown stain resembling blood. A piece of a broken scythe was also found at the scene of the incident. 100. Reports on the examination of the corpses of Khalid Khatsiyev and Kazbek Akiyev on 6 August 2000 attested the presence of a number of bleeding wounds of irregular shape, going from top downwards. 101. Reports on the medical forensic examination of the corpses of Khalid Khatsiyev and Kazbek Akiyev on 3 September 2001, based on the aforementioned two reports of 6 August 2000, confirmed that the corpses had borne bullet wounds, that the death of the two men had been caused by those wounds and that the location of the wounds indicated that they could have been inflicted in the circumstances described in the materials of the criminal case file. 102. An expert commission made up of two military experts, Mr M. (see paragraph 98 above) and Mr K., stated as follows in a report of 20 March 2002: “According to the rules in force in the territory of the Chechen Republic and neighbouring regions, a driver of any transport vehicle is obliged, at the sight of a military helicopter, to stop the vehicle, get out and mark himself. Therefore the crew had the right to destroy the vehicle, which was moving away from the area of an attack without marking itself with a prearranged signal (a white flag, a green signal flare).” The report thus concluded that the pilots had been justified in their actions. 103. The materials submitted by the Government reveal that the investigating authorities also sent a number of queries and requests to various State bodies in the context of the investigation. In particular, on 1 December 2000 the military prosecutor’s office of military unit no. 20102 sent a request to the military prosecutor of the Kursk garrison to establish whether the pilots who had attacked the Niva car had coordinated their actions with their superiors, to establish the identity of those superiors, and to establish who had taken the decision to attack the Niva car. It is unclear whether this request has ever been complied with, as there are no corresponding documents among the materials submitted by the Government. 104. The Government also adduced copies of domestic court decisions taken in unrelated sets of civil proceedings. These included a first-instance judgment and appeal decision awarding compensation for property damage inflicted by servicemen in Ingushetia; a first-instance judgment and appeal decision awarding damages to the first applicant in Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, judgment of 24 February 2005) in connection with the death of his relatives in Chechnya; and a first-instance judgment and appeal decision refusing compensation for property damage inflicted by servicemen in Ingushetia. 105. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP). 106. Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions. 107. Article 161 of the CCP enshrines the rule that information from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private lives of participants in criminal proceedings without their permission.

dev

001-110444

ENG

RUS

CHAMBER

CASE OF CHUMAKOV v. RUSSIA

Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Non-pecuniary damage - award

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

5. The applicant was born in 1979 and lives in Pyatigorsk, the Stavropol Region. 6. On 29 September 2002 a certain Ms Sh. was murdered. On the next day the police initiated criminal proceedings in that connection. 7. On the same day a certain Mr M., who had been arrested for the administrative offence of public drunkenness, complained to the police that the day before the applicant had allegedly sworn at him and attempted to start a fight. 8. On 2 October 2002 an administrative offence record was drawn up in respect of the applicant by police officers K. and B. The applicant denied Mr M.’s allegations. 9. On 3 October 2002 he was found guilty of disorderly conduct and sentenced to five days’ administrative detention by the Justice of the Peace of the 1st Circuit of the Kirovskiy District of the Stavropol Region. 10. On 3 October 2002, pursuant to the aforementioned judgment of the same date, the applicant was placed in the temporary holding facility of the Kirovskiy District Police Department of the Stavropol Region (“the district police department”). 11. According to the applicant, between 3 and 6 October 2002 police officers forced him to confess to the murder of Ms Sh. by beating him up and threatening him with rape with a rubber truncheon. 12. On 6 October 2002 the applicant signed a confession to the murder of Ms Sh. He stated, in particular, that he had strangled her with a TV power cable. 13. On 7 October 2002 the investigator in charge recorded the applicant’s arrest on suspicion of murder. 14. The investigator also ordered a forensic medical examination of the applicant, which was carried out on 7 October 2002 by a medical expert with ten years’ experience, who certified that he had no injures (certificate no. 181). 15. On 8 October 2002 the Kirovskiy District Court of the Stavropol Region (“the District Court”) ordered the applicant’s placement in custody as a preventive measure, stating that he was suspected of having committed a particularly serious criminal offence, might abscond from justice and had been given negative character references at the place of his residence. The applicant was then transferred to the remand centre “SIZO-26/2” of Pyatigorsk. 16. On 9 October 2002 the applicant was formally charged with murder. 17. On 6 December 2002 the District Court extended the term of the applicant’s pre-trial detention until 7 January 2003. The applicant’s counsel argued that there were no grounds to believe that the applicant might abscond, that he had a permanent place of residence and permanent work and had confessed to the crime. The fact that he was accused of a serious criminal offence could not, as such, be the basis for his continued pre-trial detention. The court decision read as follows: “Bearing in mind that it is impossible to complete the pre-trial investigation within two months ... there are no grounds to change or quash the preventive measure [with regard to the applicant], considering that [the applicant] is charged with a particularly serious crime associated with a high risk to society, which does not exclude the possibility of him absconding from the investigating bodies and the court, the judge finds it necessary to grant the investigator’s request for the extension of the term of detention ...” The applicant did not appeal against that decision. 18. On 27 December 2002 the applicant requested the investigator to exclude his self-incriminating statements of 6 October 2002 from the body of evidence, alleging that he had confessed to the murder under physical and psychological pressure by the police officers during his administrative detention. The applicant alleged that every night they had taken him out of his cell to their office and had psychologically pressurised him to confess. 19. On 30 December 2002 the District Court examined the investigator’s application for the extension of the applicant’s detention. The applicant stated that he had no intention of absconding or influencing witnesses and asked to be released. The court extended the term of his pre-trial detention until 7 February 2003 for the following reasons: “Bearing in mind that it is impossible to complete the pre-trial investigation within two months ... there are no grounds to change or quash the measure of restraint [with regard to the applicant], considering that [the applicant] is charged with a particularly serious crime, and might impede a thorough, comprehensive and objective investigation or abscond from the investigating bodies, the judge finds it necessary to grant the investigator’s request for the extension of the term of detention ...” It does not appear that the applicant appealed against this decision. 20. On 31 January 2003 the applicant was served with a copy of the bill of indictment for the murder. 21. On 6 February 2003 the case was sent to the District Court for trial. 22. Upon receipt of the case file, on 6 February 2003 the District Court scheduled a preliminary hearing for 17 February 2003. It also ordered that the preventive measure of detention should remain unchanged. It does not appear that the applicant appealed against this decision. 23. On 19 May 2003 the District Court found the applicant guilty of murder and sentenced him to nine years’ imprisonment. It relied, in particular, on his self-incriminating statements. It took into account statements by the police officers, who denied ill-treating the applicant, and the medical expert report, according to which the applicant’s examination on 7 October 2002 had not revealed any injuries on him, and dismissed the applicant’s allegations of ill-treatment as unsubstantiated. 24. On 20 July 2003 the applicant’s counsel obtained written statements from a certain Mr I. Sh. who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department from 3 to 5 October 2002. He stated that the applicant had been taken out of his cell in the night. After his return the applicant had told him that the police officers had beaten him up and that they had threatened him with rape with a rubber truncheon. 25. On 31 July 2003 the Regional Court examined the applicant’s appeal against his conviction. It found that the evidence on which the judgment was based contained a number of discrepancies which had not been resolved by the trial court and that the failure to summon witnesses for the applicant properly had undermined the adversarial nature of the trial. It also held that the applicant’s allegations that his self-incriminating statements had been obtained under duress had not been thoroughly examined; that the police officers’ statements did not constitute sufficient evidence of their proper conduct; and that the applicant’s counsel’s complaint to the prosecutor’s office of the Kirovskiy District (“the district prosecutor’s office”) about the unlawful acts of the police had been left unanswered and no inquiry in that connection had been conducted. The Regional Court thus quashed the judgment and remitted the case for a fresh examination by the first-instance court. It also ordered that the applicant remain in custody. 26. On 11 August 2003 the case file arrived at the District Court. 27. On 12 August 2003 the District Court extended the term of the applicant’s detention until 6 November 2003, stating that the applicant was charged with a particularly serious criminal offence and that, if released, he might impede the criminal proceedings or evade trial. It also noted that the case had been before the courts for more than six months; that the initial term of the applicant’s detention established in Article 255 § 2 of the Russian Code of Criminal Procedure had expired and that it should be extended for the next three months. The applicant, who was neither present nor represented at the hearing, did not appeal against this decision. 28. On 12 September 2003 the applicant’s lawyer obtained further written statements from Mr I. Sh., who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department in October 2002. The applicant had been taken out of his cell in the night. After his return the applicant had told him that the police officers had beaten him in the area of the kidneys and liver. Mr I. Sh. further stated that he had seen fresh scratches on the applicant’s left shoulder and elbow and that the applicant’s lower lip had been hurt. 29. On 6 November 2003 the District Court rejected the applicant’s request for release under an undertaking not to leave a specified place and, with reference to Article 255 § 3 of the Russian Code of Criminal Procedure, extended his detention for three months until 6 February 2004 on the same grounds as those given in its decision of 12 August 2003. The applicant’s lawyers referred to the length of detention, the applicant’s innocence and the deterioration of his health. The applicant appealed against the decision, arguing, in particular, that it was insufficiently reasoned. 30. On 10 December 2003 the Regional Court quashed the decision of 6 November 2003, referring to the absence of a transcript of that hearing in the materials of the case, and remitted the matter to the same court for a fresh examination. 31. On 8 January 2004 the District Court ordered, under Article 255 § 3 of the Russian Code of Criminal Procedure, that the term of the applicant’s detention be extended until 6 February 2004. It relied on the same reasons as those which were set out in the decision of 12 August 2003. The applicant’s lawyers referred to the absence of reasons for the applicant’s continued detention, in particular the lack of grounds for the risk of him absconding, his permanent place of residence and work, positive references and the length of his detention. The court stated that at that stage it could not take into account the argument concerning the applicant’s innocence. It did not address any other arguments put forward by the applicant’s lawyers. The applicant did not appeal against that decision. 32. On 5 February 2004 the District Court again examined the question of the preventive measure applied to the applicant. The applicant asked to be released, referring to the deterioration of his health and stomach complaints. His lawyers referred to the excessive length of his detention, the absence of reasons to believe that he might abscond or otherwise impede the proceedings and the fact that he had received positive character references. The court dismissed their request for release and extended, on the basis of Article 255 § 3 of the Russian Code of Criminal Procedure, the applicant’s detention for a further three months, until 6 May 2004, for reasons identical to those cited in its previous decisions. It did not address the applicant’s lawyers’ arguments. It does not appear that the applicant appealed against that decision. 33. On 22 March 2004 the applicant’s father’s flat was searched. The applicant’s father’s complaints about the unlawfulness of the search were dismissed by the district prosecutor’s office on 13 April 2004 and by the District Court on 14 May 2004. 34. On 26 April 2004 the District Court convicted the applicant as charged and sentenced him to nine years’ imprisonment. It examined, in particular, witness I. Sh. (see paragraphs 24 and 28 above) who stated before the court that the applicant had not complained about any ill-treatment by the police officers and that he had not seen any injures on the applicant. According to Mr I. Sh., his previous statements to the contrary had been false and had been given at the request of the applicant’s parents and defence counsel in order to help the applicant. Two other witnesses, Mr R. and Mr S., who had also been held in the applicant’s cell at some point in October 2002, also stated that they had neither heard from the applicant about any pressure by the police nor seen any injures on him. 35. On appeal, on 3 August 2004 the Regional Court found that the trial court had failed to assess the arguments put forward by the defence properly and that the applicant’s right to defend himself had been violated. It quashed the judgment of 26 April 2004 and remitted the case to the District Court for a fresh examination. The Regional Court also ordered that the applicant’s detention on remand as a preventive measure remain unchanged. 36. On 18 August 2004 the case file arrived at the District Court. 37. On 23 August 2004 the District Court scheduled a preliminary hearing in the case for 1 September 2004. It also ordered that the preventive measure applied to the applicant in the form of detention on remand remain unchanged. It does not appear that the applicant appealed against that decision. 38. On 1 September 2004 the District Court extended, with reference to Article 255 § 3 of the Russian Code of Criminal Procedure, the term of the applicant’s detention for three months, to be calculated from 13 August 2004 until 13 November 2004. The court noted that the term of the applicant’s detention, as previously extended on 5 February 2004 (see paragraph 32 above), had expired on 13 August 2004, and that it had received the case file from the Regional Court only on 18 August 2004. The applicant requested the court to release him, referring to the deterioration of his state of health and his stomach ulcer. The court held as follows: “... the accused ...... established in detail ... in the course of the trial, the evidence which could have determined [his] guilt [or innocence] was not examined ... The positive character references of the accused ... do not constitute sufficient grounds to release him ... because, if released, he might abscond ... and hinder the establishment of the truth in the case. The court cannot take into account ... the claim that the accused is ill and needs medical treatment as he has not submitted any relevant documents. The court has not established any procedural violations in respect of his detention on remand.” 39. The applicant and his counsel appealed against the decision of 1 September 2004, arguing that the previously authorised term of the applicant’s detention had expired on 13 August 2004 and had not been extended by the court. According to them, the applicant had therefore been detained unlawfully for 18 days from 13 August to 1 September 2004. 40. On 17 September 2004 the Regional Court upheld the decision of 1 September 2004 on appeal. It stated that the fact that the applicant was accused of a particularly serious criminal offence had rightly been taken into account by the first-instance court; that the applicant’s state of health did not preclude his being kept in custody and that there had, therefore, been sufficient reasons for extending his detention. 41. On 1 November 2004 and 26 January 2005 the District Court further extended the term of the applicant’s detention on remand until 13 February and 13 May 2005 respectively. In its similar decisions the court relied on the same reasons to justify the applicant’s continued detention as those set out in the decision of 1 September 2004. The applicant did not appeal against either of those two decisions. 42. On 25 April 2005 the District Court convicted the applicant of murder and sentenced him to nine years’ imprisonment. During the hearing witness I. Sh. (see paragraphs 24, 28 and 34 above) stated that the applicant had sometimes been taken out of his cell for interrogation after 10 p.m., that he had seen a scratch on the applicant’s lip and that the applicant had told him that he had been beaten up. According to Mr I. Sh., he did not remember whether there had been other injuries on the applicant. Mr I. Sh. also stated that he had lived at the applicant’s parents’ home for several days and had done some work for them and that the applicant’s family had supported him when he had been detained in the context of another criminal case. 43. On 22 September 2005 the Regional Court quashed the judgment and remitted the case to the District Court for a fresh examination. It found, in particular, that the first-instance judgment was based on conflicting evidence. It also held that the preventive measure should remain in place as there were no grounds to release the applicant. 44. On 11 October 2005 the case file arrived at the District Court. 45. On 26 October 2005 the District Court held a preliminary hearing in the case for the purpose of taking a decision on the preventive measure to be applied in respect of the applicant. The applicant requested the court to replace his detention with any preventive measure other than deprivation of liberty. His counsel requested that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour, since the applicant had been held in custody for more than three years, had positive character references and did not intend to evade the trial. The prosecutor asked for the preventive measure to remain the same. 46. The District Court noted that the applicant’s criminal case had been pending before the court since 6 February 2003, and that from that date onwards his detention had been regulated by Article 255 § 3 of the Russian Code of Criminal Procedure, which allowed it to be extended beyond the initial six-month period for further periods of three months. It further noted that the term of the applicant’s detention had been extended on numerous occasions, and that the last time, on 26 January 2005, the District Court had authorised his detention until 13 May 2005. It also noted that before the expiry of that period, on 25 April 2005, the applicant had been convicted by the trial court. The court then noted that the term of the applicant’s detention, as extended on 26 January 2005, should be considered as having run out on 9 October 2005, provided that the period between 25 April 2005, the date of the conviction, and 22 September 2005, the date of its quashing on appeal, was excluded from the term of detention on remand, in accordance with paragraph 26 of resolution no. 1 of the Supreme Court of Russia dated 5 March 2004. The court thus held that the term of the applicant’s detention had not been extended in accordance with a procedure prescribed by law and that therefore, despite the seriousness of the charge against him, there were no legal grounds for his further detention on remand. It ordered that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour and that the applicant be released immediately. 47. On 3 November 2005 the prosecutor appealed against that decision, arguing that the District Court had erred in its interpretation of paragraph 26 of resolution no. 1 of the Supreme Court of Russia dated 5 March 2004, since it followed from the meaning of Article 255 of the Russian Code of Criminal Procedure that the term of detention should run from the day of a criminal case’s arrival at a first-instance court and not from the day of delivery of an appellate court’s decision. Therefore, in the prosecutor’s opinion, the term of the applicant’s detention should have run out on 29 October 2005. The applicant disagreed, pointing out the fact that he was employed, that he did not intend to evade justice and that he simply wanted the trial to be concluded as soon as possible and his good name restored. 48. On 30 November 2005 the Regional Court found that the District Court had violated Article 255 § 3 of the Russian Code of Criminal Procedure, as the term of detention of a person who had committed a serious or particularly serious criminal offence had to be extended by a court decision each time, and such extension could not be authorised for a period longer than three months at any one time. It went on to agree with the prosecutor’s submissions and stated that the term of the applicant’s detention should have started running on 11 October 2005, the date when the case file had been received by the District Court, and that therefore it should be regarded as having expired on 29 October 2005. The court then held that this procedural breach was grounds for the annulment of the decision of 26 October 2005, and ordered that the case be sent to the District Court for a new examination. According to the applicant, he attended the hearing of 30 November 2005 and was placed in detention immediately after that hearing. 49. On 21 December 2005 the District Court ordered the applicant’s release on an undertaking not to leave his place of residence. It stated that the applicant had been held in detention on remand for more than three years, that after his release on 26 October 2005 he had immediately started working and that he had been given positive character references from his employers. The court held that there were no reasons to believe that he would evade the trial or put pressure on witnesses and thus obstruct the establishment of the truth, and therefore there were no grounds to keep him in detention. The applicant was released immediately. 50. On 2 May 2006 the District Court examined the criminal case against the applicant for the fourth time. At the hearing, the applicant insisted that he was innocent and reiterated that he had made his confession at the pre-trial stage because he had been beaten and threatened by the police. 51. The District Court observed that the charge against the applicant had mainly been based on his self-incriminating statements and written confession made during the preliminary investigation, which he had later repudiated as having been made under duress. It further noted, as regards the applicant’s medical examination on 7 October 2002, which had not revealed any injuries on him, that the applicant had not been apprised of the investigator’s order to carry out that examination until it had been over. Therefore, in the District Court’s opinion, a note on the resulting expert report to the effect that the applicant had had no comments or questions for the expert, and had not wished to call into question the expert’s authority, was devoid of any legal meaning. 52. The court further stated that on 6 February 2006 the decision of 27 January 2003, by which the district prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment during his administrative detention in October 2002, had been quashed, and that on 15 February 2006 the district prosecutor’s office had again refused to institute criminal proceedings owing to the absence of the constituent elements of a criminal offence in the police officers’ actions. In the District Court’s opinion, however, the applicant’s allegation that he had made self-incriminating statements and had signed his confession as a result of coercion by the police was corroborated by the evidence in the case. 53. In particular, the court examined the register of detainees of the temporary holding facility where the applicant had been held and noted that the applicant had been taken out of his cell on 3 October 2002, from 7.30 p.m. to 8.30 p.m., and on 4 October 2002 from 6.25 p.m. to 6.50 p.m. and from 9.40 p.m. to 9.55 p.m. The court further observed that, according to the applicant’s written confession, it had been given on 6 October 2002 in office no. 36 of the temporary holding facility and not in his cell. However, the register did not contain any records confirming that he had been taken out of his cell on that day. Therefore, the District Court doubted the reliability of the official records. It found that the applicant’s confession could not be regarded as having been given voluntarily and was therefore inadmissible as evidence. 54. The District Court also noted that, when the applicant had been interviewed as a suspect on 7 and 9 October 2002, he had not been warned that his statements could be used as evidence, in breach of the domestic law. Having examined the body of evidence in the case, the District Court further stated that it had been contradictory in a number of aspects. In particular, a report on the medical forensic examination of Ms Sh.’s body had attested to the presence of numerous internal injuries. The investigating authorities, however, had never attempted to establish the circumstances in which the victim had sustained those injuries, and the applicant had never admitted inflicting any such injuries on the victim, simply having confessed to having strangled her (see paragraph 12 above). In this respect the District Court noted that, as was clear from the materials of the case, at the time when the applicant had made his self-incriminating statements and signed his confession, the aforementioned expert examination had not yet been carried out and the investigating authorities had not known of the existence of those injuries. 55. The court further listed a number of other shortcomings in the preliminary investigation and discrepancies in the adduced evidence. It found it unproven that the applicant had committed the imputed offence. The court thus acquitted the applicant and acknowledged his right to rehabilitation. 56. On 4 July 2006 the Regional Court upheld the judgment on appeal. It agreed with the trial court’s finding that the confession had been signed as a result of coercion by the police officers. The court noted in this respect that the very fact that the applicant had been taken out of his cell in breach of relevant regulations had been the proof of coercion, and therefore the arguments of the prosecuting party in the appeal submissions to the effect that the trial court had failed in its judgment to specify the methods of that coercion and to identify those responsible were unfounded. It also agreed with the trial court that the applicant’s self-incriminating statements, which he had later repudiated, had contradicted the other evidence in the case. 57. On 24 January 2003 the applicant’s counsel lodged a complaint with the district prosecutor’s office about the applicant’s ill-treatment by the police officers from the district police department. An inquiry was carried out in connection with that complaint. Several police officers were questioned. They all denied the applicant’s allegations of ill-treatment. 58. On 27 January 2003 the district prosecutor’s office decided, relying on their statements and medical expert certificate no. 181 of 7 October 2002, to dispense with criminal proceedings in respect of the applicant’s allegations of ill-treatment owing to the absence of evidence that any crime had been committed. The applicant did not appeal against the decision in court. 59. On 4 December 2003 the district prosecutor’s office received a complaint from the applicant’s mother about alleged ill-treatment of the applicant by the officers of the district police department. 60. On 5 December 2003 a decision not to prosecute the police officers was taken. The Court has not been furnished with a copy of that decision. It does not appear that the applicant attempted to challenge the decision in question before a court. 61. On 11 August 2005 the district prosecutor’s office quashed the decision of 5 December 2003 and ordered an additional inquiry. 62. During that inquiry Mr A., the head of the investigation department, responsible for the investigation of Ms Sh.’s murder at the time of the events in question, and Mr Z., deputy head of the temporary holding facility of the district police department at the material time, were interviewed. They stated that no physical or psychological pressure had ever been exercised on the applicant and that the applicant had voluntarily confessed to the murder and later confirmed his self-incriminating statements during an interview in the presence of his lawyer. 63. On 18 August 2005 the district prosecutor’s office, with reference to the aforementioned statements of Mr A. and Mr Z., decided not to institute criminal proceedings in connection with the applicant’s allegations owing to the absence of the constituent elements of a criminal offence in the police officers’ actions. The applicant did not appeal against that decision in court. 64. On 6 February 2006 the prosecutor’s office of the Stavropol Region quashed the decisions of 27 January 2003 and 18 August 2005 as unlawful and unfounded in view of the investigating authorities’ failure to establish all the relevant facts. In particular, it pointed out that the applicant had not been questioned; that the materials of the inquiry lacked an extract from the official records of requests for medical aid in the period from 3 to 6 October 2002; that the register of detainees of the temporary holding facility, where the applicant had been held during the relevant period, had not been examined with a view to establishing when and by whom the applicant had been taken out of his cell(s) for interrogation and to identifying who had been in the cell(s) with him so that they could be questioned in respect of his allegations; that a police officer who had been present when the applicant had signed his confession had not been questioned in that connection; that another police officer who had drawn up the administrative offence record in respect of the applicant had not been questioned in that connection; and that Mr R. and Mr S., who had allegedly shared a cell with the applicant, had not been interviewed either. The district prosecutor’s office was thus ordered to eliminate those defects in the course of an additional inquiry. 65. In a decision of 15 February 2006 the district prosecutor’s office again refused to institute criminal proceedings against the police officers owing to the absence of the constituent elements of a crime in their actions. 66. According to the decision, when interviewed during an additional inquiry, the applicant had stated that on 2 October 2002 he had been taken from his home to a police station where he had met police officers G. and B. The latter had drawn up, on Mr G.’s instructions, an administrative offence record which stated that that the applicant had used obscene language in public. The applicant had been held at the police station from 4 p.m. to 10 p.m. and then transported to the district police department. On 3 October 2002 he had been placed under administrative arrest for five days and placed in the temporary holding facility of the district police department. Each night the officers of the Kirovskiy district police department, Mr A. and Mr G., had taken him to an office on the third floor in which they had subjected him to psychological pressure. On 6 October 2002, because of that pressure, he had been compelled to make a written confession to the murder of Ms Sh., which had been dictated to him by Mr G. 67. The decision went on to quote police officer A., who had stated that he had been present when his subordinates, Mr P. and Mr G., had interviewed the applicant. No physical or other form of coercion had been used on the applicant, who had voluntarily confessed to the murder and then confirmed his statements in the presence of his counsel. 68. Mr Z., deputy head of the temporary holding facility of the district police department at the material time, had stated that no force had ever been applied to the applicant, who had made no complaints during his detention in that facility. Mr Z. also stated that the applicant, Mr R. and Mr S. had never been held in the same cell at the same time. 69. Mr G. had stated that on 6 October 2002 he had been told that the applicant wished to see him. He had met the applicant at the temporary holding facility. The applicant had told him that he had killed Ms Sh. and had voluntarily written out his confession. 70. Mr B. had stated that on 2 October 2002 Mr M. had complained to him that the applicant had sworn at him. He had drawn up an administrative offence record and sent it to the court. 71. Mr R., who had been detained in the temporary holding facility from 1 to 6 October 2002 for committing an administrative offence, had confirmed that he had shared a cell with the applicant and stated that the applicant had not made any complaints concerning the police officers who had questioned him. Mr S., another detainee during the relevant period, had also been interviewed but had not given any relevant information regarding the applicant’s allegations. 72. The decision then indicated that, according to the temporary holding facility records concerning medical aid, the applicant had never applied for medical assistance. Nor had he made any complaints concerning his health. 73. The decision further stated that, according to the temporary holding facility register of detainees, the applicant had been taken out of his cell on 4 October 2002 at 6.45 p.m. by Mr G. and brought back at 6.50 p.m.; on the same day he had been taken away at 9.40 p.m. by Mr P. and brought back at 9.55 p.m. On 7 October 2002 the applicant had been taken out of his cell from 9 a.m. until 6.15 p.m. for the examination of his statements on the scene of the crime. For the rest of the time the applicant had stayed in his cell. 74. The decision thus concluded that during the inquiry the applicant’s allegations of ill-treatment had proved unfounded. The applicant did not appeal against that decision in court. 75. Since 1 July 2002, criminal-law matters have been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001, “the Code”). 76. “Preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). In exceptional circumstances, and when there exist grounds provided for by Article 97, a preventive measure may be applied to a suspect, taking into account the circumstances listed in Article 99 (Article 100). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (Article 112). 77. The Code makes a distinction between two types of custody: the first being “pending investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “pending trial”), at the judicial stage. 78. A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108). The maximum length of detention pending investigation is two months (Article 109). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 79. From the time the prosecutor sends the case to the trial court, the defendant’s detention falls under the category “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which the first-instance judgment is given. It may not normally exceed six months from the moment the case file arrives at the court, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 80. In its resolution no. 1 of 5 March 2004 “On the Application by Courts of the Russian Code of Criminal Procedure”, as in force at the relevant time, the Supreme Court of Russia noted with regard to the provisions of Article 255 § 3 of the Code, that, when deciding whether to extend a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and its maximum duration (paragraph 16). 81. It also stated that, within the meaning of Article 255 § 2 of the Code, the period after conviction by the first-instance court until such conviction became final, being upheld on appeal, could not be taken into account for the purpose of calculating the six-month period of an individual’s detention pending trial (paragraph 26).

dev

001-93658

ENG

SVN

CHAMBER

CASE OF GASPARI v. SLOVENIA

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

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

5. The applicant was born in 1947 and lives in Ljubljana. 6. On 6 January 1992 the applicant and her then husband F.B., who had decided to get divorced, entered into an agreement on the partition of their joint property. The agreement stipulated, inter alia, that F.B. would transfer to her, within one year, the ownership of premises on Zaloška Street, unless they agreed on a different location. The agreement further stipulated that if the stated obligations were not fulfilled, the applicant could terminate the agreement and claim a share of the joint property in accordance with the relevant domestic law. On 24 April 1992 the applicant and F.B. divorced. 7. Subsequently, F.B. did not transfer the ownership of premises on Zaloška Street to the applicant. However, on 24 September 1992 the applicant accepted the keys of certain premises on Trubarjeva Street. After F.B. had bought the latter premises, on 6 November 1992, he offered the applicant the possibility of signing a supplement to the agreement. According to the supplement, the applicant would receive forty per cent of the premises on Trubarjeva Street as a form of alternative performance of the relevant part of the agreement. The applicant refused to sign the supplement to the agreement. 8. On 3 May 1993 she instituted proceedings in the Ljubljana Basic Court (Temeljno sodišče v Ljublani) seeking termination of the agreement and partition of the joint property. 9. On 16 November 1993 F.B. died and his heirs, J.B.J, B.E.B. and M.B., took over his capacity in the proceedings. 10. On 9 November 1995 the court issued a partial judgment terminating the relevant agreement and rejecting the counter-claim lodged by J.B.J, B.E.B. and M.B (“the heirs”). 11. On 11 April 1996 the Ljubljana Higher Court (Višje sodišče v Ljubljani) quashed the first-instance court’s judgment and remitted the case for re-examination. The applicant then challenged that decision in an appeal on points of law, but that was rejected by the Supreme Court on 22 May 1997. 12. In the re-examination proceedings, on 14 September 1998, the (renamed) Ljubljana District Court (Okrožno sodišče v Ljubljani) issued a new judgment rejecting the applicant’s claim. The court considered that the relevant agreement was not a “fixed contract” (fiksna pogodba) which could be terminated without allowing additional time for its performance. Moreover, from F.B.’s conduct it had not been apparent that he was not going to honour his obligation. The applicant should therefore have offered an additional time-limit to F.B. In addition, the court found that F.B. had in large part fulfilled his obligations and that the applicant, by accepting the keys to the premises on Trubarjeva Street, had agreed to an alternative performance of the agreement. 13. On 31 March 1999 the Ljubljana Higher Court upheld the first-instance court’s judgment. It, however, amended certain parts concerning the payment of costs and expenses. 14. On 13 May 1999 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). She supplemented the appeal on 25 May 1999. 15. On 19 April 2000 the Supreme Court upheld the applicant’s appeal to the extent that it concerned the application of law by the lower courts, but dismissed the remainder. The Supreme Court considered that the interpretation of the relevant agreement concerned the application of the law. It then concluded that F.B. had not fulfilled his obligations by offering the applicant only a share of the premises on Trubarjeva Street. In addition, the applicant had not consented to the alternative performance nor had F.B. showed an intention to fulfil his obligations. The Supreme Court consequently varied the lower courts’ judgments and terminated the relevant agreement. As far as the partition of the joint property was concerned, the Supreme Court remitted the case to the first-instance court. 16. Two of the heirs (J.B.J. and B.E.B.) lodged a constitutional appeal complaining, inter alia, of the arbitrariness of the Supreme Court’s judgment and of a breach of the provision guaranteeing equal protection of rights (Article 22 of the Constitution). On 30 January 2001 the Constitutional Court (Ustavno sodišče) accepted the appeal for consideration, which is equivalent to declaring it admissible. On 10 May 2001 it upheld the appeal by five votes to three, quashed the Supreme Court’s judgment and remitted the case to the Supreme Court for re-examination (decision no. Up-232/00). It would appear that the applicant was informed of that decision (see paragraph 22 below), but there is no document in the case file certifying as to when. 17. The Constitutional Court found that the Supreme Court’s decision was based on the interpretation of the parties’ motivation and of the content of the agreement. In its view, such interpretation constituted an interference with the facts established by the lower courts. However, according to the domestic legislation, the Supreme Court, when deciding on an appeal on points of law, had jurisdiction only for the determination of legal issues. The Constitutional Court found that the Supreme Court’s decision was obviously erroneous and therefore arbitrary. This, and the fact that the Supreme Court had exceeded its jurisdiction, represented an interference with the appellants’ right to equal protection of rights. 18. In the re-examination proceedings, the Supreme Court, on 17 December 2001, again varied the lower courts’ judgments by terminating the relevant agreement and remitting the case to the first-instance court to determine the partition of the joint property. 19. After accepting for consideration the relevant part of the heirs’ further constitutional appeal on 17 June 2002, the Constitutional Court, on 12 December 2002, quashed the Supreme Court’s judgment, dismissed the applicant’s appeal on points of law and upheld the Ljubljana Higher Court’s judgment of 31 March 1999. The decision was adopted by six votes to two (decision no. Up-140/02). 20. The Constitutional Court found that the Supreme Court had again dealt with questions of fact – a matter over which it had no jurisdiction; that it had failed to provide reasons for its decision, which was different from previous decisions adopted in other cases concerning the same issue; and that it had disregarded the instructions given by the Constitutional Court. The latter therefore again found a violation of the right to equal protection of rights. Using the special power afforded in section 60 of the Constitutional Court Act and because of the already lengthy duration of the proceedings, the Constitutional Court, in order to secure effective judicial protection, decided on the merits of the case itself and upheld the Higher Court’s judgment of 31 March 1999. 21. The Constitutional Court’s decisions of 10 May 2001 and 12 December 2002 noted, under paragraph 3, as follows: “in accordance with the provisions of sections 6 and 56 of the Constitutional Court Act, the Constitutional Court served the constitutional appeal on the Supreme Court, on the opposite party (plaintiff) to the proceedings [the applicant] and on the third defendant in the proceedings. None of them replied to the constitutional appeal.” 22. According to the applicant, she had not received a copy of the first constitutional appeal. On 4 July 2001, a note was prepared by an official in this connection on the Constitutional Court’s premises. The note, which appeared to be part of the file no. Up 232/00, mentioned that the constitutional appeal and admissibility decision of 30 January 2001 had been handed over to the applicant. 23. In addition, the applicant submitted to the Court copies of receipts relating to the attempt to serve the process by the Constitutional Court, concerning the file no. Up 140/02. It would appear that this process included a copy of the second constitutional appeal, the admissibility decision and a letter informing the applicant that the constitutional appeal had been accepted for consideration and that that the applicant should submit her comments within eight days. It transpires from the receipts that the process was sent by the Constitutional Court on 21 June 2002 but had not been served on the applicant. The address referred to in the receipts and the letter is different from the applicant’s address as mentioned in her claim and in the decisions issued in the domestic proceedings, including in the last Supreme Court judgment. According to the applicant, the address used to serve the process was actually the address of one of the other parties to the proceedings. 24. The Constitutional Court Act (Zakon o Ustavnem sodišču, Official Gazette no. 15/94) provides, in so far as relevant, as follows: “For procedural questions which are not governed by this Act, the Constitutional Court shall apply the relevant provisions of legislation concerning [ordinary] court proceedings, taking into consideration the nature of the matter.” “After being accepted, a constitutional appeal shall be referred to the body which issued the decision against which the constitutional appeal is lodged, in order for that body to reply to the constitutional appeal within a given time-limit.” “1. If the Constitutional Court quashes a decision, it may also decide on a relevant right or freedom if such procedure is necessary in order to bring to an end consequences that have already occurred on the basis of the quashed decision, or if so required by the nature of the constitutional right or freedom, and provided that a decision can be given on the basis of information in the file. ....” 25. On 30 May 2007 the Slovenian Parliament adopted amendments to the Constitutional Court Act (Official Gazette no. 51/2007). Section 56 was amended to read: “1. If the Constitutional Court accepts a constitutional appeal for consideration, it shall inform the body which issued the decision against which the constitutional appeal is lodged accordingly. A Constitutional Court judge .... can request the body ... to submit information or an explanation necessary for the decision on the constitutional appeal. 2. In the above circumstances, the constitutional appeal should be sent to the persons who participated in the proceedings leading to the decision challenged in the appeal if that decision concerned one of their rights, obligations or legal interests, so that they can reply to it within a certain time-limit.” 26. Paragraph 3 of section 370 of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999) provides that an appeal on points of law is not allowed in respect of an alleged erroneous or insufficient establishment of the facts. 27. Under section 394 of the Civil Procedure Act, proceedings which have been finally concluded by a court decision (pravnomočno končan) can be reopened at the request of a party to the proceedings, if, inter alia, that party did not have an opportunity to give testimony in court, due to some illegality, in particular lack of service. The final conclusion of the proceedings in principle refers to the final decision against which no ordinary appeal lies; that would normally be a decision of a first-instance court, or if an appeal has been lodged, that of a second-instance court. 28. Section 142 of the same act provides that certain documents (such as statements of claim, notices of extraordinary remedies or judgments which can be appealed against) should be served on parties in person. If the party is not found at his or her address, the server should leave a note informing him or her of a new date on which he or she is to be served with the process. If the party is not found at his or her address on that date, the server will serve the process on, inter alia, an adult family member, who will be required to accept the process. If that is not possible, the server will return the process to the court or leave it at a local post office. The server will leave a note at the party’s address informing him or her of the process and the fifteen-day deadline for its collection. The note shall also state the reasons why the process was left at the post office or the court and the date of that event. Under the above conditions and, as the case may be, after the expiry of the deadline, the process will be considered to have been effectively served on the addressee (sections 140-142). 29. The Government submitted six decisions by which the Constitutional Court had decided on requests for reopening of the proceedings before it. Two of them (decision no. U-I-18/99 of 4 October 2001 and decision no. U-I-217/02 of 17 March 2005) concern proceedings by which the constitutionality and legality of a statutory act were being challenged (postopek za oceno ustavnosti in zakonitosti). In both of them, the Constitutional Court found that neither the Constitutional Court Act nor any other legislation provided for the possibility of reopening such proceedings. 30. In the oldest of the remaining four decisions concerning proceedings in which a constitutional appeal had been dismissed (decision no. Up-95/95 of 26 February 1998), the panel of three members of the Constitutional Court (that is a formation in which a decision on admissibility is normally taken) dismissed the request for reopening. It explained that the appellant had not invoked any of the grounds which would justify reopening under the relevant provision of the Civil Procedure Act and section 6 of the Constitutional Court Act. Likewise, in all the remaining decisions (decision no. Up-189/01 of 21 November 2001, decision no. Up-524/01 of 13 January 2003 and decision no. Up-550/02 of 7 March 2006) the Constitutional Court found that the appellants had not demonstrated any grounds which could justify reopening under section 6 of the Constitutional Court Act and the relevant provisions of the legislation concerning court proceedings. It therefore rejected the requests, but added that this decision was taken “without considering the issue whether the reopening of the proceedings before the Constitutional Court was actually possible”.

dev

001-61923

ENG

TUR

CHAMBER

CASE OF MEHMET EMİN YÜKSEL v. TURKEY

Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award

9. The applicant was born in 1972 and lives in Diyarbakır. He was a student at the Medical Faculty of the Diyarbakır Dicle University at the time of the events described below. 10. On 4 April 1997 the applicant was arrested and placed in custody by police officers from the Diyarbakır Security Directorate. He was accused of membership of an illegal organisation, the YEKBUN (Kurdistan United People’s Party). 11. The police officers interrogated the applicant in relation to his alleged involvement in the YEKBUN. The applicant alleged that he had been subjected to ill-treatment by the officers during the interrogation which caused an oedema, a bruised nose and a broken tooth. According to the Government, the applicant’s injuries occurred when, due to lack of sleep, he inadvertently fell and hit his nose on a sink. 12. On 6 April 1997 the applicant signed a statement according to which he hit his nose on a sink while washing his face. The applicant claims that he was forced to sign the statement. He was then taken to the Diyarbakır State Hospital and examined by Dr. R.C. who noted the following: “An oedema and an ecchymosed lesion as a result of trauma have been identified on the nose. ...” 13. On the same day, the applicant was brought before the Diyarbakır State Security Court. Before the court, he denied being a member of an illegal organisation. He stated that he had been subjected to various forms of illtreatment during his detention in police custody and that the statement which he had signed did not reflect the truth of what had happened to him. The court ordered his release pending trial. 14. On 8 April 1997 the applicant filed a criminal complaint with the chief public prosecutor’s office in Diyarbakır against the police officers who had allegedly ill-treated him. The chief public prosecutor ordered that the applicant be examined by a medical expert from the Forensic Medicine Institute. On the same day, he was examined by a forensic medical expert. The expert’s report stated the following: “... There is an abrasion of 1 x 0,5 cm on the left side of the tip of the nose. Furthermore, there is a minimal fracture on the front of the 8th of the lower teeth. There is no danger to the individual’s life. However, the injuries render him unfit for work for two days.” 15. On 15 April 1997 the Diyarbakır public prosecutor issued a decision of non-jurisdiction in respect of the applicant’s allegations of ill-treatment and referred the investigation file to the Diyarbakır District Administrative Council in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu). 16. On 13 June 1997 the Diyarbakır State Security Court acquitted the applicant of the charges against him. The court took note in its judgment of the applicant’s statement that he had been interrogated by police officers under duress. 17. On 26 June 1997 the Diyarbakır Administrative Council decided that, due to lack of evidence, the police officers who had allegedly illtreated the applicant should not be prosecuted. 18. On 6 August 1997 the applicant filed an objection with the Supreme Administrative Court against the decision of the Diyarbakır Administrative Council. He also lodged a petition with the Diyarbakır Administrative Council and requested a copy of the investigation file. He received no response to his petition. 19. On 14 May 1999 the Supreme Administrative Court confirmed the Administrative Council’s decision of non-prosecution. 20. On 26 July 1999 the Supreme Administrative Court’s decision was served on the applicant. 21. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 96100, 3 June 2004, and Tahsin Acar v. Turkey [GC], no. 26307/95, § 186-197, 8 April 2004).

dev

001-87830

ENG

RUS

CHAMBER

CASE OF VIKTOR PETROV v. RUSSIA

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

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

4. The applicant was born in 1952 and lives in Pskov, a town in the Pskov Region. 5. As a victim of Chernobyl, the applicant is entitled to social benefits. Considering himself underpaid, he brought six successful actions against local authorities responsible for welfare. 6. On 13 August 2002 the Pskov Town Court fixed a new amount of periodic benefits. This judgment became binding on 24 September 2002. According to the Government, this judgment was fully enforced by 31 December 2006. According to the applicant, this judgment has still not been enforced, because from 1 January 2007 the periodic benefits were reduced again. 7. On 11 June 2003 the Town Court awarded 15,000 Russian roubles (“RUB”) as interest for delayed payment. This judgment became binding on 15 July 2003. On the welfare authority’s request, on 20 February 2004 the Presidium of the Pskov Regional Court quashed the judgment on supervisory review, on the ground of misapplication of material law. 8. On 21 July 2003 the Justice of the Peace of Court District 31 of Pskov awarded RUB 3,000 as interest for delayed payment. This judgment became binding on 9 October 2003. On the welfare authority’s request, on 14 May 2004 the Presidium of the Pskov Regional Court quashed the judgment on supervisory review, on the ground of misapplication of material law. 9. On 28 October 2003 the Town Court awarded arrears and fixed a new amount of periodic payments. This judgment became binding on 10 November 2003. According to the Government, this judgment was fully enforced by 31 December 2005. According to the applicant, this judgment has still not been enforced, because the periodic payments continue to be miscalculated. 10. On 29 December 2003 the Town Court awarded compensation of inflationary loss caused by the delayed enforcement of an earlier judgment. This judgment became binding on 9 January 2004 and was enforced on 8 July 2005. 11. On 1 June 2005 the Town Court ordered the applicant to be provided in 2005 with a decent flat of at least 65 m². This judgment became final on 15 June 2005 and was enforced on 29 December 2006. 12. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.

dev

001-22081

ENG

ITA

ADMISSIBILITY

GOLFETTO v. ITALY

Inadmissible

Christos Rozakis

The applicant, Mr Massimo Golfetto, is an Italian national, who was born in 1926 and lives in Padua. He is represented before the Court by Mr U. Giuliani Balestrino, a lawyer practising in Milan. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 December 1989, 24 November 1990 and 9 April 1991 respectively, the Padua Court declared three companies, allegedly directly or indirectly administered by the applicant, insolvent. In connection with these facts, the applicant was charged on an unspecified date with fraudulent trading and was committed for trial in the Padua Court. At a hearing on 10 February 1995, the presiding judge of the Court of Padua questioned a witness, A.R., who had been the official receiver in the insolvencies of the above-mentioned companies. The presiding judge asked him whether he had been previously involved, as a victim, in criminal proceedings. A.R. answered that he recently had, because someone had fired shots at the door of his house, probably as an act of intimidation. The witness added that the outcome of those proceedings was that the applicant's son had been found guilty and had been sentenced to two years' imprisonment. In fact, the presiding judge of the Court of Padua had also presided over the criminal proceedings against the applicant's son, which had ended on 18 January 1994. On 30 March 1995 the applicant filed a request with the Court of Appeal of Venice for the presiding judge of the Court of Padua to be removed from hearing his case (ricusazione). The grounds for the request were that the presiding judge had stated his opinion on the facts of the case when not exercising his judicial functions (Article 36 para. 1 (c) of the Italian Code of Criminal Procedure) or, in the alternative, that he had stated his opinion on the facts of the case before the end of the proceedings (Article 37 para. 1 (b) of the same Code). On 5 April 1995 the Venice Court of Appeal rejected the applicant's request as manifestly ill-founded. The applicant appealed against that decision to the Court of Cassation. On 9 November 1995 the latter court rejected the applicant's appeal. On 28 December 1995 the Court of Padua found the applicant guilty of fraudulent insolvency and sentenced him to six years' imprisonment and five years' disqualification from civic office. On 9 April 1996 the applicant lodged an appeal against the above decision with the Venice Court of Appeal. When lodging the appeal with the Venice Court of Appeal, the applicant did not explicitly refer to the alleged lack of impartiality of the first-instance judge. Before the Court, he maintains that he did not explicitly raise such a complaint because his request for the judge to be removed had ended with a final decision of the Court of Cassation rejecting it and that, in any event, in Italian law the issue of the alleged partiality of a first-instance judge was not a ground on which the Court of Appeal could set aside a first-instance judgment. According to the latest information provided by the Government, on 4 July 2001 the proceedings in the Court of Appeal were still pending because priority had been accorded to other proceedings. According to the Government, the first hearing should take place at the beginning of 2002.

dev

001-97837

ENG

DEU

ADMISSIBILITY

MIELKE v. GERMANY

Inadmissible

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

The applicant, Ms Gesine Mielke, is a German national who was born in 1958 and lives in Hamburg. In 1940 the applicant’s predecessor (“the predecessor”) acquired a plot of land with a five-storey building situated in the centre of Berlin (“the property”), later in East Berlin, on the territory of the German Democratic Republic (GDR). From 1963 onwards, the property was subjected to public administration by the GDR authorities but was not formally transferred into public property. The predecessor died in 1973 in West Berlin, in the Federal Republic of Germany (FRG); the land register was not rectified. In 1994 and 1996 his heir (“the heir”) relinquished her rights as regards restitution of the property to the applicant before a notary public. On 8 August 1989 the East Berlin City Council (Magistrat von Ostberlin) allowed the refurbishment of the building subject to expropriation of the property from its owner. On 14 September 1989 the State Planning Commission of the GDR cabinet (Ministerrat der DDR) approved the refurbishment plans. On 20 September 1989 the Central Office responsible for the International Trade in Licences requested that the property be expropriated; the compensation was set at 111,800 marks. On 25 January 1990 the Inner Berlin Borough Council (Rat des Stadtbezirks Mitte) expropriated the property from its owner with effect from 1 March 1990 and transferred the property to the Ministry of Foreign Trade. The undated decision to expropriate the property was signed and sealed. The applicant contested that the expropriation had taken place on that date. On 9 March 1990 the Ministry of Foreign Trade sold the building built on the property to a public holding (“the holding”) for 245,443.60 marks. On 13 March 1990 the ownership of the property was transferred to the holding. The holding had been founded on 26 January 1990 and had been registered in the register of public enterprises (Register der volkseigenen Wirtschaft) on 9 February 1990. On 28 June 1990 the holding requested to be registered as a limited company in the course of incorporation; the company was dissolved with effect from 31 December 1992. The Court has summarised the political background to the dissolution of the GDR in the case of Streletz, Kessler and Krenz v. Germany ([GC], nos. 34044/96, 35532/97 and 44801/98, § 17, ECHR 2001II) as follows: “In autumn 1989 the flight of thousands of citizens of the GDR to the FRG’s embassies in Prague and Warsaw, and to Hungary, which had opened its border with Austria on 11 September 1989, demonstrations by tens of thousands of people in the streets of Dresden, Leipzig, East Berlin and other cities, and the restructuring and openness campaign conducted in the Soviet Union by Mikhail Gorbachev (perestroika and glasnost) precipitated the fall of the Berlin Wall on 9 November 1989, the collapse of the system in the GDR and the process that was to lead to the reunification of Germany on 3 October 1990.” On 18 October 1989 the Secretary-General of the Socialist Unity Party’s Central Committee, Mr E. Honecker, stepped down and was replaced by Mr E. Krenz. Especially after the fall of the Berlin Wall on 9 November 1989 the GDR was in an ever-increasing state of dissolution. On 26 January 1990 the Under-Secretary of State in the GDR’s Ministry of Finance and Prices wrote to the First Deputies to the Borough Councils and admonished them to comply with the rules of regulations governing expropriations from owners living outside the GDR, namely, that the latter should be kept correctly informed of and allowed to participate in proceedings concerning their property. On 3 October 1990, the date of the German reunification, the Convention entered into force on the territory of the new Länder. On 20 September 1990 the heir applied for rights under the Act on the Regulation of Outstanding Property Issues/ Property Act (Gesetz zur Regelung offener Vermögensfragen/ Vermögensgesetz – hereinafter the “Property Act”, see “Relevant domestic law and practice” below). On 4 September 1992 the Office for the Resolution of Outstanding Property Issues ordered that the public administration of the property be lifted. On 22 December 1992 the property rights were administratively allocated to the holding pursuant to the Act on the Allocation of Former Public Property (see “Relevant domestic law and practice” below); this decision became final on 16 December 1994 after the Berlin Administrative Court had dismissed the heir’s claim. On 21 January 1993 the heir was listed as owner in the land register on the basis of the heir’s certificate. The registration had no effect on the ongoing proceedings. On 11 January 1994 the order that the public administration be lifted was revoked following an administrative appeal by the holding in dissolution; on 5 September 1996 the Federal Administrative Court upheld the decision. On 4 December 1995 the property was administratively allocated to the Fiduciary Office’s property holding (Treuhandliegenschaftsgesellschaft) as successor to the holding. On 14 February 1996 the holding in dissolution was registered as its owner in the land register. On 29 December 1992 the Berlin Mitte District Court granted the holding’s request for an interim objection to the predecessor’s listing as owner of the property in the land register. On 5 November 1993 the Berlin Court of Appeal, 15th Civil Senate, quashed the decision of the District Court and refused the request on the ground that the holding had not established that it had become the owner of the property. The Court of Appeal noted that the expropriation by the GDR authorities had clearly been carried out in complete administrative disarray, likely caused by the then imminent German reunification. The decision to expropriate the property from the predecessor had been undated, the form had not been properly filled out and the note that the decision had become final had not been in conformity with standard practice. The expropriation procedure had furthermore violated theprovisions for the basic legal protection of property owners under GDR law, for the GDR authorities had not contacted the heir, as the owner, and had not ascertained whether the predecessor had died, although this would have been possible after the fall of the Berlin Wall. The Court of Appeal concluded that the GDR authorities had deliberately excluded the heir from the proceedings in order to finalise the expropriation before the German reunification on 3 October 1990. On 30 November 1994 the holding handed the property over to the heir without prejudice to the ownership of the property. The heir then requested in the main proceedings that she be declared theowner of the property. The holding brought a counter-claim for it to be declared the owner. The Berlin Regional Court dismissed the heir’s request and granted the counter-claim on the grounds that the holding had become the owner by virtue of the decision that had administratively assigned the property to it and which had become final on 16 December 1994 (see above). On 21 February 1997 the Berlin Court of Appeal, 21st civil senate, dismissed the heir’s appeal and ordered her to return the property in exchange for the return of a bond of 1.3 million German marks she had deposited with the respondent. The Court of Appeal held that the expropriation by the GDR authorities had been lawful. In particular, the public administrator had been informed of the expropriation. On 29 January 1998 the Federal Court of Justice dismissed the heir’s appeal on points of law. On 11 June 1998 the Office for the Resolution of Outstanding Property Issues ordered that the property be returned to the applicant against the payment of compensation on the grounds that the applicant’s predecessor had suffered a property loss within the meaning of section 1(1) (b) of the Property Act (see “Relevant domestic law and practice” below). On 10 April 2000 the Office for the Resolution of Outstanding Property Issues dismissed the Fiduciary Office’s administrative appeal. On 15 December 2005 the Berlin Administrative Court set aside the restitution order on the grounds that the heir had not been entitled to restitution of the property. The property had not been expropriated without compensation (section 1(1) (a) of the Property Act (see “Relevant domestic law and practice” below)) because in principle the owner could have been compensated under the laws and the state practice of the GDR. Furthermore, the property had not been expropriated for less compensation than citizens of the GDR would have been entitled to (section 1(1) (b) of the Property Act (see “Relevant domestic law and practice” below)). According to the caselaw of the Federal Administrative Court this provision was only applicable to expropriations for which the former owner had deliberately been granted less than a citizen of the GDR would have had; following the entering into force of the decree on prices no. 3/87 in 1987, which had been applicable in the present case, owners living in West Germany were no longer systematically discriminated against in calculating the compensation due. Lastly, the property had not been taken by unfair means (section (1)(3) of the Property Act (see “Relevant domestic law and practice” below)); in particular, expressly relying on the case-law of the Federal Administrative Court, the Berlin Administrative Court held that the property had not been taken for a purpose other than the one stated, that its transfer into public property before transferring it to the holding had not been unfair, that the fact that the owner that was listed in the land register had already died had no bearing on the fairness of the expropriation proceedings, and that the property had been expropriated before 26 January 1990. As regards the Berlin Administrative Court observed that the GDR authorities had been of the opinion that the owner of the property did not have to be informed about the expropriation according to the GDR law as practised by its authorities, since the property had been subjected to public administration. On 21 September 2006 the Federal Administrative Court refused leave to appeal on points of law and noted, inter alia, that it was not decisive that the Federal Court of Justice had previously held that the deliberate exclusion of the owner living in the FRG from the expropriation proceedings by the GDR authorities after 18 November 1989 had resulted in the expropriation being void. The Federal Administrative Court noted that any difference in opinion between the two federal courts had no bearing on the applicant’s case because the Berlin Administrative Court had conclusively established that the GDR authorities had been of the opinion that they had not needed to inform the owner of the expropriation proceedings; the GDR authorities had accordingly not deliberately excluded the owner from them. On 14 February 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication (no. 1 BvR 2899/06). Pursuant to Article 19 of the Treaty between the Federal Republic of Germany and the German Democratic Republic concerning the German Reunification - Reunification Treaty (Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands – Einigungsvertrag), administrative acts by the authorities of the GDR prior to reunification remain in force. Such acts may be repealed if they are incompatible with the principles of the rule of law or the Reunification Treaty. A former owner may request restitution of property (section 3 of the Property Act) that was expropriated in the GDR if the property was expropriated without compensation (section 1(1) (a) of the Property Act), with less compensation than a GDR citizen would have been entitled to (section 1(1) (b) of the Property Act), if the state administrator sold the property or if the nationalised property was sold to third persons (section 1(1) (c) of the Property Act), or if the property was taken by unfair means, such as the misuse of power, corruption, coercion or deceit (section (1)(3) of the Property Act). According to this provision, the validity of expropriations that lead to the transfer of property into public property shall be determined in view of the law in force at the time of the expropriation. Expropriations are invalid if the property could not have been transferred into public property or if the transfer was plainly irreconcilable with the rule of law (mit rechtsstaatlichen Grundsätzen schlechthin unvereinbar) because of serious violations of the rule of law or of the principle of proportionality or because the expropriation had been arbitrary. The relevant authority may decide to allocate former public property following a procedure in which all interested parties have had the right to participate. Property rights of third persons such as ownership and specifically named rights of interested parties are not affected by this decision (section 2(1) of the Act on the Allocation of Former Public Property – Gesetz über die Feststellung der Zuordnung von ehemals volkseigenem Vermögen). In a judgment of 28 April 1999 (no. 8 C 5/98, published in BVerwGE, vol. 109, p. 81 et seq.), the Federal Administrative Court held that expropriations by the GDR authorities in flagrant violation of the pertinent provisions of the GDR law amounted to a taking by unfair means (section (1)(3) of the Property Act) if the expropriation took place after 26 January 1990, the date of the letter of the Under-Secretary of State in the GDR’s Ministry of Finance and Prices to the First Deputies to the Borough Councils. In a judgment of 12 December 2001 (no. 8 C 10/01), the Federal Administrative Court held that the assessment whether the GDR authorities expropriated using unfair means within the meaning of section 1(3) of the Property Act was to be conducted on a case by case basis if the expropriation took place between 18 October 1989 – the date Mr Honecker stepped down – and 26 January 1990, the date of the aforementioned letter of the Under-Secretary of State in the GDR’s Ministry of Finance and Prices. Only after 26 January 1990 the GDR administrative practice could be assumed to comply with the relevant procedural requirements of GDR law, and thus flagrant procedural shortcomings could result in a taking using unfair means. In a judgment of 12 May 2000 (no. V ZR 47/99) the Federal Court of Justice held that as a general rule, expropriations by the GDR authorities after 18 October 1989 had used unfair means within the meaning of section 1(3) of the Property Act if the owner living in the FRG had been deliberately excluded from the expropriation proceedings; in such a case the owner had not lost the property and was entitled to be registered as owner in the land register. In a judgment of 25 July 2003 (no. V ZR 362/02) the Federal Court of Justice held that an owner could pursue a claim to be reinstated as owner in the land register if the GDR authorities’ expropriation order had not become effective, regardless of whether the taking had been accomplished by using unfair means within the meaning of section 1(3) of the Property Act. The Federal Court of Justice noted that it did not depart from the jurisprudence of the Federal Administrative Court in a decisive manner and therefore did not need to refer the question as to the date on which expropriations by the GDR authorities became plainly irreconcilable with the rule of law. Pursuant to Article 95(3) of the Basic Law a Common Senate (Gemeinsamer Senat der obersten Gerichtshöfe) of the Federal Court of Justice, the Federal Administrative Court, the Federal Social Court, the Federal Labour Court and the Federal Tax Court shall be established to preserve the uniformity of decisions. The Common Senate decides the legal question that is disputed between senates of different federal courts if they cannot agree on a common interpretation following a procedure laid down in the Act on the Preservation of the Unity of the Federal Courts’ Jurisprudence (Gesetz zur Wahrung der Einheitlichkeit der Rechtsprechung der oberten Gerichtshöfe des Bundes). Proceedings before the Common Senate with regard to an individual appeal on points of law pending before a federal court are interlocutory.

dev

001-101319

ENG

TUR

ADMISSIBILITY

FIEROS AND OTHERS v. TURKEY

Inadmissible

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

The details of the applicants are contained in the annex. The Turkish Government (“the Government”) were represented by their Agent; and in those cases in which they were intervening party, the Republic of Cyprus were represented by their Agent. The facts of the cases, as submitted by the applicants, may be summarised as follows. The applicants submitted that since the 1974 Turkish intervention in northern Cyprus they have been deprived of their property rights, as their property was located in the area that was under the occupation and control of the Turkish military authorities. Since that date, they had been prevented from having access to and from using their respective homes and properties. In particular: The first applicant, mother of the second and third applicants (born in 1951 and 1949 respectively) was married to Michael Fieros, who by 1974 was a leading property developer in the Kyrenia area, owning over 200 sites on many of which he had built villas and luxury flats as well as the family home. On his death in 1983, his property passed to the applicants. In or about 1995, the second applicant donated her share in the property to the second and third applicants. The second applicant is the father of the third, fourth, fifth and sixth applicants, born in 1925, 1959, 1960, 1961 and 1967 respectively. The third to sixth applicants are shareholders in the first applicant, a company set up in 1968, which dealt in real estate. The fifth and sixth applicants are director and secretary, and director, respectively of the first applicant. The first applicant owned various houses, shops, warehouses and plots of land. This property included the house built on plot 150 which was where the other applicants were living in 1974 and had been living since 1968. The applicant owned a half share in immovable property in Dherynia, near to Famagusta, consisting of some 11 acres of orange groves. He had married in April 1968 and from July 1971 had been living with his wife and two children in a house which belonged to his wife. The applicants are a family, consisting of a father, mother and three children (born in 1958, 1960 and 1969 respectively). The first applicant owned, or part owned, some 20 plots of land in and around Famagusta, including buildings, shops, apartments, a restaurant and various land on or near the seafront as well as the family home. The third, fourth and fifth applicants each owned varying shares in thirteen plots of land. The second applicant owned half of two plots, one co-owned with the first applicant; while the third applicant wholly owned another plot of land. The applicants are a family (grandmother, uncle, father, mother, son and daughter) born in 1916, 1938, 1941, 1947, 1968 and 1970 respectively. They owned, or part-owned, 17 plots of land and four houses and various other buildings in or around Famagusta. Of the houses, two were claimed as having been family homes: a house built on plot 504 which had been the home where the second and third applicants had grown up and where the first and second applicants had been living in 1974 and which was now owned by the fifth and sixth applicants; and a house built on plot 1189 where the third, fourth, fifth and sixth applicants had been living in 1974 and which was jointly owned by the second and third applicants. The applicants are mother and daughter, born in 1928 and 1951 respectively. In 1973, the first applicant's husband died and the family home owned by him was inherited by the first applicant and her two children. In January 1974, on the second applicant's marriage, the first applicant rented an apartment pending the availability of another property under lease. In 1995, due to health reasons, the first applicant transferred her share in the family home and other properties, including houses, shops and fields to the second applicant. The applicants are a family; the third and fourth applicants born in 1933 and 1931 are the parents of the first and second applicants born in 1960 and 1959. Prior to the invasion in 1974, the third applicant had run a shop on land which had been owned by the fourth applicant. She had also owned two plots of land, on one of which was situated the family home. The applicants are a family; the first applicant is the mother of the second, third, fourth and fifth applicants, born in 1950, 1952, 1955 and 1958 respectively. Prior to events in 1974, they had lived together in the family home owned by the first applicant's husband. His property, some forty plots of land, including business premises, building plots, fields and orchards, was inherited by the applicants on his death in 1981. The first applicant however donated her share to the other applicants. The first and second applicants, husband and wife, are the parents of the third, fourth and fifth applicants who were born in 1961, 1963 and 1975. The first applicant owned 29 plots of land, 2 flats and a storehouse; the second applicant owned 3 building plots, 3 buildings and 2 flats; both appear to have jointly owned the family apartment. The third, fourth and fifth applicants also owned property, including a flat and various plots of building land. The applicant family, now living in Australia, consist of the first and second applicants, husband and wife, and their two children, the third and fourth applicants, born in 1967 and 1968. The first applicant was part owner of the family house, as well sharing ownership of a plot of land with the second applicant.

dev

001-58148

ENG

NLD

CHAMBER

CASE OF K.D.B. v. THE NETHERLANDS

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

7. The applicant was born in 1959 and lives in Snelrewaard. He has a farm where he keeps cattle for slaughter. 8. On 15 November 1991 cattle on the applicant's farm was inspected by the General Inspection Service (Algemene inspectiedienst) of the Ministry of Agriculture, Nature Conservancy and Fisheries (Ministerie van Landbouw, Natuurbeheer en Visserij). Twelve cows were singled out to which the applicant was suspected of having administered the illegal substance clenbuterol. The same day the public prosecutor (officier van justitie) ordered an interim measure pursuant to section 28 of the Economic Offences Act (see paragraph 21 below) under which the applicant was restrained from removing the twelve cows from his premises without permission and from obstructing the identification of the cows. 9. After tests had borne out that clenbuterol had been administered to nine of the twelve cows, the General Inspection Service seized these nine cows on 3 December 1991 pursuant to section 18 of the Economic Offences Act (see paragraph 23 below). The applicant was given a receipt for these cows, which stated that an objection against the seizure could be lodged with the Utrecht Regional Court pursuant to Article 552a of the Code of Criminal Procedure (Wetboek van Strafvordering – see paragraph 24 below). It appears that the restrictions affecting the other three cows were lifted. 10. On 5 December 1991 the public prosecutor applied under Article 117 of the Code of Criminal Procedure (see paragraph 26 below) to the Utrecht Regional Court for permission to have the nine cows destroyed. The reasons given were that since they had been contaminated by an illegal substance, they would never again be marketable for human or animal consumption, and that moreover it was impracticable and costly to keep them for any length of time. 11. On 9 December 1991 the applicant applied for the interim measure ordered on 15 November (see paragraph 8 above) to be lifted. 12. The Regional Court held a hearing in camera on 10 December 1991. At that hearing the public prosecutor announced that the interim measure of 15 November would be withdrawn. It does not, however, appear that this had happened by the time the Regional Court gave its decision. 13. On 21 January 1992 the applicant again applied to the Regional Court for an order to have the interim measure lifted, or in the alternative to have the cows tested anew and to order the lifting of the interim measure if it was shown that the concentrations of clenbuterol did not exceed legal limits. A hearing was held in camera the same day. In his oral submissions the applicant's lawyer referred to EEC Council Directive 86/469 of 16 September 1986, which contained rules for testing cattle which had in his submission been disregarded in the present case. 14. On 4 February 1992 the Regional Court rejected the applicant's applications of 9 December 1991 and 21 January 1992. It held that the applicant had no legal interest in applying for the interim measure complained of to be lifted since the public prosecutor had already announced that this would be done. In the same decision it authorised the public prosecutor to have the cows destroyed, since it appeared from the case file that it was in any event unlikely that the cows would not eventually be declared forfeit (onttrokken aan het verkeer). 15. The cows were slaughtered shortly after the Regional Court's decision. 16. On 13 February 1992 the applicant, through his lawyer, lodged an appeal on points of law to the Supreme Court (Hoge Raad). The lawyer did not submit any grounds of appeal in writing. 17. On 24 December 1992 the Procurator-General of the Supreme Court submitted an advisory opinion to the effect that no grounds of appeal had been submitted and that there were no reasons for the Supreme Court to quash the decision appealed against ex officio. He appended to his opinion a copy of a preliminary ruling of the Court of Justice of the European Communities concerning the interpretation of EEC Council Directive 86/469. It appears that neither the applicant nor his lawyer received any notice of this until after the Supreme Court had given judgment. 18. On 1 March 1993 the applicant was notified by the Procurator-General that the Supreme Court had dismissed his appeal on 19 January. 19. The 1991 Ordinance on substances with a sympathomimetic effect (Verordening stoffen met sympathico mimetische werking) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle older than fourteen weeks. Section 3(1) of that Ordinance makes it illegal to have in stock, sell or purchase beef cattle to which such substances have been administered, and section 4(1) makes it illegal to have in stock, sell or purchase their meat. Clenbuterol is, moreover, an unregistered animal medicine the use or possession of which is prohibited by section 2 of the Animal Medicines Act (Diergeneesmiddelenwet). The offences here described are economic offences for the purposes of the Economic Offences Act (section 1 of that Act). 20. The Economic Offences Act lays down particular rules for the prosecution and punishment of economic offences. In so far as procedure is concerned, it is a lex specialis in relation to the Code of Criminal Procedure, the provisions of the latter remaining applicable in so far as the Economic Offences Act does not provide otherwise (section 25 of that Act). 21. Section 28(1) of the Economic Offences Act empowers the public prosecutor, until the beginning of the court hearing in the case, to order a person against whom a serious suspicion has arisen, by way of interim measure, to desist from particular actions or to keep or store particular goods in a particular place. 22. It is open to the person to whom such an order has been issued to apply to the trial court which is to deal with the case for the order to be lifted (section 28(3) of the Economic Offences Act). An appeal against a refusal lies to the Court of Appeal (section 30). A further appeal on points of law lies to the Supreme Court (section 30a). The accused is required to have a written statement of grounds of appeal submitted by a lawyer within one month of lodging the appeal, failing which his appeal will be declared inadmissible. The Supreme Court shall decide as soon as possible. It would appear that this procedure was not followed in the present case, since the appeal was not lodged with the Court of Appeal but directly with the Supreme Court. 23. Goods or objects which may help to establish the truth or the existence of illegal gains, or which may be declared forfeit, may be seized by officers invested with investigative competence (opsporingsambtenaren) (section 18(1) of the Economic Offences Act taken together with Article 94 of the Code of Criminal Procedure). 24. Interested parties may lodge a written complaint (schriftelijk zich beklagen) against such seizure with the trial court before which the case is pending (Article 552a § 1 of the Code of Criminal Procedure). The parties concerned have the right to be heard (Article 552a § 4). An appeal lies on points of law to the Supreme Court (Article 552d). It would appear that this was the procedure followed in the present case. 25. The accused has the right to submit written grounds of appeal within one month of lodging his appeal on points of law (Article 447 § 3 of the Code of Criminal Procedure), but his appeal is not automatically declared inadmissible if he does not. 26. If the said goods or objects cannot be stored, the trial court may authorise the public prosecutor to have them sold, destroyed, abandoned (prijsgegeven) or used for some purpose other than the criminal investigation (Article 117 of the Code of Criminal Procedure). No appeal lies against the trial court's decision (Article 445). If it emerges that it is appropriate to return seized goods to the owner but that this is impossible because the goods have been lawfully sold, destroyed or abandoned, then the interested party shall be paid compensation to an amount equivalent to the price for which the goods might reasonably have been sold (Article 119 § 2). 27. All matters which may arise in the course of criminal proceedings which are not required to be decided in open court are dealt with in camera (Article 21 § 1 of the Code of Criminal Procedure); matters so dealt with include interim measures under the Economic Offences Act and seizures. 28. In the case of appeals on points of law against a judgment delivered in open court (uitspraak) the accused is entitled to submit at the hearing grounds of appeal not filed at an earlier stage (Article 433 of the Code of Criminal Procedure). There is no equivalent provision for appeals on points of law against orders given in camera (beschikkingen). 29. The duties and position of the Procurator-General's department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). 30. The Procurator-General's department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutors of the regional and district courts (section 3(1) of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (sections 3(2), 5a and 6(1)). 31. The Procurator-General's department must be heard by the courts in so far as the law so prescribes (section 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.

dev

001-98097

ENG

POL

ADMISSIBILITY

LISS v. POLAND

Inadmissible

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

The applicant, Mr Lucjan Roman Liss, is a Polish national (formerly a German national) who was born in 1950 and lives in Bergkamen. He was represented before the Court by Mr Joachim J. Lassonczyk, a lawyer practising in Hamm. 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. In the 1972 Olympic Games in Munich the applicant won a silver medal in cycling, representing Poland. In 1977 the applicant developed kidney trouble and went to West Germany to undergo dialysis and a kidney transplant. According to the applicant’s submissions, such treatment was not available in Poland at that time. In 1980 he had his first transplant. Also in 1980 the applicant’s mother died and the applicant was granted a single-entry visa to Poland on an exceptional basis. In 1986 the applicant waived his Polish citizenship and became a German national. B. Events after 10 October 1994 In 1995 the applicant underwent another kidney transplant in Germany. On 4 February 2000 the applicant requested the Polish President of the Office for Physical Education and Sport (Prezes Urzędu Kultury Fizycznej i Sportu) to grant him a special payment provided for Olympians. On 16 March 2000 the President of the Office for Physical Education and Sport refused his request on the ground that he was not a Polish national and did not have his permanent place of residence in Poland as required by the relevant law. On 8 April 2000 the applicant lodged a request for reconsideration of that decision. On 12 May 2000 the President of the Office for Physical Education and Sport confirmed his decision of 16 March 2000. The applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 6 December 2000 the Supreme Administrative Court dismissed the applicant’s complaint. The court found that the applicant had not satisfied two of the five conditions listed in section 28a of the Act of 18 January 1996 on Physical Education (ustawa o kulturze fizycznej) (“the 1996 Act”), namely he was not a Polish national and did not have his place of residence in Poland. Accordingly, the court found that the challenged decision had been given in accordance with the law and that the applicant’s complaint therefore had to be dismissed. In 2003 the applicant requested the relevant Polish authorities to grant him Polish citizenship. On 11 February 2004 the President of the Republic of Poland granted the applicant Polish citizenship. On 1 September 2005 the Professional Sports Act (Ustawa o sporcie kwalifikowanym) of 29 July 2005 entered into force. The new law replaced the condition of a permanent place of residence in Poland by a requirement of having a permanent place of residence on the territory of Poland or another member State of the European Union. On 17 January 2006 the Minister of Sport (Minister Sportu) gave a decision and granted the applicant the special payment provided for Olympians in the amount of 2,477.23 Polish zlotys (PLN) monthly, finding that the applicant had fulfilled all the requirements listed in the new law. 1. Special payment for Olympians At the relevant time the issue of special payment for Olympians was regulated by the Law on Physical Education of 18 January 1996 (“the 1996 Act”) (”Ustawa o kulturze fizycznej”). Section 28 a as introduced into “the 1996 Act” by the Law of 4 November 1999 on amendment to the Law on Physical Education (“Ustawa o zmianie ustawy o kulturze fizycznej”) with effect from 1 January 2000, provided, in so far as relevant: “Representatives of Poland in the Summer or Winter Olympic Games, who: 1) have won at least one Olympic medal, 2) are at least thirty-five years of age and do not take part in competitive sports, 3) have Polish citizenship, 4) have their permanent place of residence on the territory of Poland, 5) have not been convicted of an intentional offence - are entitled to payments from the State Treasury.” On 1 September 2005 the 1996 Act was amended and the provisions on special payments for Olympians were incorporated in the new Professional Sports Act of 29 July 2005 (ustawa o sporcie kwalifikowanym). The relevant amendment, which entered into force on 1 September 2005, broadened the range of persons entitled to the special payment by including those who had their permanent place of residence either in Poland or in another EU member State. The criterion of Polish nationality remained. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” At the relevant time Article 58 of the Act of 11 May 1995 on the Supreme Administrative Court (Ustawa o Naczelnym Sądzie Administracyjnym) provided that in cases terminated by a final judgment of the court the proceedings might be reopened at the request of a party to the proceedings or ex officio... According to Article 59 of that Act provisions of the Code of Civil Procedure applied respectively to the proceedings before the Supreme Administrative Court. Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution.

dev

001-76092

ENG

UKR

CHAMBER

CASE OF VOLOSYUK v. UKRAINE

Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

Peer Lorenzen

5. The applicant was born in 1942 and resides in the city of Khmelnitskiy, Ukraine. 6. At the material time the applicant worked as a lawyer in a private company “Naddnistryanka”. 7. On 29 November 1994 the General Prosecutor’s Office (hereinafter – the GPO) instituted criminal proceedings against the applicant for bribing. On 14 December 1994 the Deputy Prosecutor General sanctioned the applicant’s arrest and detention. On 16 December 1994 the applicant was arrested and detained until 24 June 1996. 8. While in detention, the applicant was allegedly subjected to psychological pressure by the investigation officers. Prior to interrogation the applicant allegedly was placed in a tiny (2m2) cold room without windows, where he had to stay for several hours. The applicant states that he lost consciousness during interrogations and was interrogated while being seriously ill. In detention and afterwards the applicant suffered from chronic bronchitis and chronic neuritis. The applicant was beaten by one of the cellmates. The applicant maintained that the offender was a former Security Service officer. The applicant further alleges that drugs were added to his meals. According to the applicant, his family members were not allowed to see him in detention. On his numerous complaints about such treatment the applicant received answers that no violations had been revealed during pre-trial investigation in his case. 9. After his release the applicant was on a written undertaking not to abscond until 12 April 1999. In 1995-1999 criminal charges in the applicant’s case were several times changed. By 12 April 1999 the criminal case against the applicant was closed. By a prosecutor’s decision of 13 June 1999 the applicant was awarded UAH 6,502.37 (at the material time – EUR 1,568.28) in compensation for material damage. 10. In June 1998 the applicant instituted proceedings in the Khmelnitskiy City Court against the Security Service of Ukraine claiming UAH 500,000 in compensation for moral damage. The applicant later raised his claims to UAH 7,000,000. In April 1999 he claimed UAH 15,000,000 in compensation for moral damage from the GPO. These claims were joined and examined together. On 15 December 1999 the Khmelnitskiy City Court found in part for the applicant and ordered the State to pay him UAH 7,635 in compensation for material and moral damage caused by the unlawful criminal action against the applicant and his unlawful detention. On 3 February 2000 the Khmelnitskiy Regional Court upheld this decision and it became final. On an unidentified date the applicant requested the Deputy Chairman of the Khmelnitskiy Regional Court to lodge a supervisory review request (protest) against these decisions. His request was satisfied, the judgment of 15 December 1999 was quashed and the case was remitted for a fresh consideration. On 11 September 2000 the Khmelnitskiy City Court found in part for the applicant and ordered the State to pay him UAH 10,180 (approximately EUR 2,000) in compensation for moral damage for the unlawful criminal action against the applicant, for his unlawful detention and for being on a written undertaking not to abscond. This compensation had to be paid from the funds allocated for maintenance of the GPO. On 19 October 2000 the Khmelnitskiy Regional Court upheld this decision and it became final. 11. On 20 February 2001 the GPO suspended the enforcement of the judgment of 11 September 2000. On 15 May 2001 the Deputy Prosecutor General lodged a protest with the Supreme Court of Ukraine asking to quash the decision of 11 September 2000 in the part concerning the source of the payment on the ground that the awarded amount should not be paid from the funds allocated for the maintenance of the GPO. 12. On 3 October 2001 the Constitutional Court of Ukraine found unconstitutional the provisions of Article 32 of the Law on State Budget for the Year of 2000 according to which the compensation for damage inflicted by unlawful actions of the prosecutors had to be paid from the funds allocated for the maintenance of the GPO. 13. On 2 July 2002 the Pecherskiy District Bailiffs’ Service opened the enforcement proceedings in the applicant’s case. On 22 July 2002 the Bailiffs’ Service requested the National Bank of Ukraine to transfer the amount awarded to the applicant to the deposit account of the Bailiffs’ Service. On 6 December 2002 the applicant received the amount awarded and the enforcement proceedings were closed. 14. On 8 May 2003 the Supreme Court of Ukraine satisfied the protest and decided that the compensation in the applicant’s case had to be paid directly from the State Budget. 15. In June 1999 the applicant instituted proceedings in the Khmelnitskiy Town Court against the Khmelnitskiy State Centre for Standardisation, Metrology and Certification, which had been his employer at that time, for his allegedly unlawful dismissal. On 11 October 1999 the court found against the applicant. On 9 December 1999 the Khmelnitskiy Regional Court upheld this decision. 16. The applicant instituted two sets of proceedings in the Khmelnitskiy City Court against the GPO claiming UAH 61,161.06 and 5,862,364.79 in compensation for material damage. The applicant stated that according to the labour contracts of 12 November 1993 and 14 April 1994 his employer, the private company “Naddnistryanka”, had to pay him the above mentioned amounts of remuneration for the work performed. The applicant alleged that because of his detention and the investigation in the criminal case against him he had not been able to receive this money as the company went bankrupt in 1998. On 19 March and 3 April 2002 the court found against the applicant on the ground that the GPO was not an appropriate defendant to this claim and that the applicant should institute proceedings against his ex-employer. On 18 June and 2 July 2002 the Khmelnitskiy Appellate Court upheld these decisions. On 19 December 2002 and 29 September 2003 the Supreme Court of Ukraine rejected the applicant’s appeals in cassation. 17. In 1998-2000 a number of articles about the applicant were published in different newspapers. 18. In 2001-2004 the applicant complained to police and to other bodies that unknown people, who were allegedly policemen and the Security Service agents, threatened to destroy him in particular because he had raised complaints about the Security Service and the GPO before the European Court of Human Rights. By letter of 17 April 2001 the police informed the applicant that checks were carried out following his complaints. It was revealed that in February-March 2001 the former investigation officer, Mr M., who had investigated the applicant’s case, threatened the applicant. Mr M. was wanted for committing several crimes. By another letter of 22 March 2003 the police informed the applicant that an unknown person, who called him and threatened to eliminate him, was identified and warned about possible responsibility for such actions. By letters of 7 April and 30 December 2004 the police informed the applicant about the refusal to institute criminal proceedings following his complaints for the absence of the corpus delicti. 19. The applicant requested the investigation officer to allow him to represent Mr K. in a criminal case against the latter. By a decision of 19 November 2003 the investigation officer rejected the applicant’s request on the ground that in spite of having a law degree the applicant did not possess an advocate’s certificate. On 2 July 2004 the Khmelnitskiy Miskrayonnyi Court upheld this decision. 20. The relevant provisions read as follows: “Everyone has the right to compensation, at the expense of the State or bodies of local self-government, for material and moral damages inflicted by unlawful decisions, actions or omission of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority.” ... “... In the event that a court verdict is revoked as unjust, the State compensates the material and moral damages inflicted by the groundless conviction.” “... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.” 21. At the material time, Chapter 42 of the Civil Code of Procedure allowed a final and binding judgment to be reviewed under the supervisory review procedure. The supervisory review procedure was repealed in June 2001. 22. Paragraph 6 of Article 34 provides that the enforcement proceedings may be suspended upon decision of the State official entitled to such actions by law. 23. At the material time, part 2 of Article 41 provided that the prosecutors who brought an appeal for supervisory review in the civil cases were entitled also to suspend the enforcement proceedings in such cases. In June 2001 this Article was repealed. 24. The relevant parts of the decision of 3 October 2001 read as follows: “ 5... Therefore, Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... de facto introduces civil and not public responsibility of ..., the prosecutor’s offices, ... for the material and moral damage caused to the citizens by unlawful actions of these bodies. Concurrently, the Constitution of Ukraine guaranties the right of the citizens for the compensation by the State and not from the funds allocated for the maintenance of these bodies (Article 56, 62). ... the Constitutional Court has decided: 1. To consider as contrary to the Constitution of Ukraine (unconstitutional) provisions of Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... according to which the compensation for damage inflicted to the citizens by unlawful actions of ..., the prosecutor’s offices, ... is to be provided from the funds allocated for the maintenance of the courts, the General Prosecutor’s Office, the Security Service of Ukraine, and the Ministry of Interior. 2. Provisions of Article 32 of Law of Ukraine “On the State Budget of Ukraine for the Year 2000” ... are considered unconstitutional, and void from the day this decision is made by the Constitutional Court of Ukraine.”

dev

001-103216

ENG

PRT

CHAMBER

CASE OF KAROUSSIOTIS v. PORTUGAL [Extracts]

Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, same application submitted to other procedure);Violation of Art. 8

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

7. The applicant was born in 1980 and lives in Krefeld (Germany). 8. On 25 August 2001 she gave birth to a child in Germany whose father, A., is a Portuguese national. 9. In October 2001 the child’s father was sentenced by the court of Krefeld to five years’ imprisonment for drug trafficking. His exclusion from Germany having been ordered, he was deported to Portugal in November 2004. 10. The applicant and the child’s father separated while he was in prison. 11. In January 2005, accompanied by a paternal uncle, the child went to Portugal to visit his father. 12. On 14 January 2005 the applicant travelled to Portugal to collect her child. She returned alone to Germany on 22 February 2005. 13. In March 2005 the applicant lodged, with the Federal Attorney-General, a request for the child’s return to Germany in accordance with the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”). 14. On 27 October 2005 the German public prosecution service sent a request to the Portuguese authorities to obtain the child’s return, alleging that the child had been wrongfully removed from Portugal in breach of Article 3 of the Hague Convention. 15. The request was served on the child’s father, who opposed the return. A. denied, in particular, that the child’s removal had been wrongful and stated that the decision for the child’s trip had been taken by both parents. He explained that the child’s movement had been decided by both parents because the child’s mother had envisaged settling in Portugal. 16. On 24 January 2006 the Braga Family Court gave a judgment to the effect that the child should not be returned to Germany, finding that the child’s retention in Portugal was not wrongful within the meaning of Article 3 of the Hague Convention or of Article 11 of Council Regulation (EC) no. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Council Regulation no. 2201/2003”). 17. On 2 February 2006 the applicant appealed against the judgment before the Guimarães Court of Appeal arguing, among other things, that she had not been heard by the Braga Family Court. 18. In a judgment of 21 June 2006, the Guimarães Court of Appeal granted the applicant’s request. Annulling the judgment of the Braga Family Court, the Court of Appeal referred the case back to it, directing in particular that it should hear the child’s mother. 19. The child’s father appealed against the judgment of the Guimarães Court of Appeal before the Supreme Court, which dismissed his appeal on 7 November 2006. 20. On 15 August 2007, pursuant to an international letter of request from the Braga Family Court dated 14 February 2007, the mother was heard by the Krefeld court. 21. On 13 September 2007 the Krefeld court reported back to the Braga Family Court, sending the record of the hearing. 22. In a judgment of 21 May 2008, the Braga Family Court again rejected the request for the child’s return, finding that the child’s removal had not been wrongful as it had been agreed between the two parents. 23. On 12 June 2008 the applicant lodged an appeal before the Guimarães Court of Appeal. Her appeal was dismissed by a judgment of 9 January 2009. 24. In its judgment, the Court of Appeal stated: “... it must be concluded that from the time when the mother of L. returned to Germany without her son, he began to be wrongfully retained in Portugal. Her return request showed, categorically, that she did not wish her son to remain in Portugal.” 25. Even though the Court of Appeal recognised that the case concerned a situation of wrongful retention of a child, under the terms of Council Regulation no. 2201/2003, it found it preferable for the child to remain in Portugal for the following reasons: “The facts of the case show that the child, who has been looked after by his great-grandmother since March 2008, has a particular emotional attachment to her, seeing in her a mother figure, to the point of almost forgetting the image of his mother. His great-grandmother is the person who takes care of him day-to-day, with tenderness ... The mother very rarely calls her child, and when she does so, the child does not consider it very important. The child sees his great-grandmother, at the current stage of his development, as a figure of authority who brings him security and tranquillity, as shown in his behaviour at school and in his relationships with others. He is content in the environment in which he lives and has been very successful at school. Accordingly, to change his environment and take him away from the person to whom he relates would risk causing him psychological harm ... All the conditions are thus met for the respondent State to prevent the child’s return, in the light of the child’s best interests, which must take precedence over the free movement of children – even if this is done safely – in accordance with Article 13 (b) of the Hague Convention [on the Civil Aspects of International Child Abduction] of 1980. Taking the view that a return to Germany would be harmful for the child, the respondent State has acted in accordance with Article 13 of the Hague Convention.” 26. On 2 March 2005 the public prosecutor at the Braga court opened proceedings in respect of parental responsibilities (regulação do poder paternal) vis-à-vis the child. Custody was provisionally awarded to the father. 27. On 3 October 2005 the Braga Family Court held its first conciliation hearing. As they failed to reach an agreement, the parents were requested to submit pleadings. 28. On 19 October 2005 the applicant filed her pleadings. Submitting that the child’s retention in Portugal was wrongful, the applicant argued that the Braga Family Court lacked territorial jurisdiction, as in her view the German courts had jurisdiction in accordance with Council Regulation no. 2201/2003. 29. The child’s father, in his pleadings of 21 October 2005, requested the court to award him custody. 30. On 27 October 2005 the public prosecutor at the Braga Family Court submitted that the decision should be deferred until the completion of the proceedings before the German courts concerning the child’s return. 31. In a decision of 31 July 2006, the Braga Family Court amended the provisional allocation of parental authority in respect of the child, transferring it to the child’s great-grandmother. 32. On 4 January 2008 the applicant (represented by her lawyer) and the child’s father jointly requested the Braga Family Court to award custody of the child to the applicant. 33. On 30 January 2008 the applicant requested the court to speed up the proceedings. 34. On 27 February 2008 the child’s father was remanded in custody in connection with an investigation into false imprisonment, extortion, drug trafficking, unlawful carrying of a weapon and theft. 35. On 10 March 2008 the applicant reiterated her request to the Braga Family Court to obtain parental authority of the child. In a decision of 4 April 2008, the court dismissed the applicant’s request, indicating that the proceedings had been stayed. 36. On 15 May 2008 the child’s great-grandmother requested the court to grant her permanent custody of the child. 37. Following the judgment of the Guimarães Court of Appeal of 9 January 2009, the Braga Family Court decided on 3 May 2009 that the proceedings in respect of parental responsibilities should be resumed. 38. On 26 January and 15 May 2009 the applicant requested the Braga Family Court to award her custody of the child, invoking her agreement with the child’s father. 39. By an international letter of request, the court sought information from the German social services about the applicant’s social and financial circumstances. 40. On 12 October 2009 the Braga Family Court received the reports that had been requested from the German authorities. On 20 October 2009 it received a report from the Portuguese social services showing the child’s general situation of well-being in Portugal. 41. To date, the proceedings are still pending before the Braga Family Court. 42. On 2 April 2008 the applicant filed a complaint with the European Commission alleging an infringement of Council Regulation no. 2201/2003. She complained about the excessive length of the proceedings before the Braga Family Court, relying on Article 11 of the Regulation. 43. On 15 September 2008 the applicant sent various documents in support of her application to the European Commission. 44. On 7 May 2009 the Commission’s Directorate-General for Justice, Freedom and Security asked the applicant for additional information concerning the proceedings for the return of the child on grounds of wrongful removal and retention. On 15 June 2009 the applicant sent that information to the Directorate-General, submitting a copy of the Guimarães Court of Appeal’s judgment of 9 January 2009. 45. According to the most recent information from the applicant, dating from 2 July 2010, the proceedings thus initiated before the European Commission were still pending. ... ... 48. The relevant part of Article 17 of the Treaty on European Union provides as follows: “1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.” 49. Article 258 of the Treaty on the Functioning of the European Union (formerly Article 226 of the Treaty establishing the European Community) provides as follows: “If the Commission considers that a member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.” 50. In addition, the relevant part of Article 260 of the Treaty on the Functioning of the European Union (formerly Article 228 of the Treaty establishing the European Community) provides as follows: “3. ... If the Court [of Justice of the European Union] finds that there is an infringement it may impose a lump sum or penalty payment on the member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.” 51. The explanatory note accompanying the complaint form to be addressed to the European Commission for non-compliance with European Union law explains as follows: “Anyone may lodge a complaint with the Commission against a member State about any measure (law, regulation or administrative action) or practice which they consider incompatible with a provision or a principle of Community law. Complainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are principally and directly concerned by the infringement complained of. To be admissible, a complaint has to relate to an infringement of Community law by a member State. ...”

dev

001-60599

ENG

ITA

CHAMBER

CASE OF OSU v. ITALY

Violation of Art. 6-1;No separate issue under Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Christos Rozakis

8. Between 1982 and 1989 the applicant used to live in a rented apartment located in the area of Terontola, in the province of Perugia. He was housing a Nigerian national whom the authorities maintain is the applicant's cousin, whereas the applicant alleges he is only a friend. 9. On 23 February 1988 a criminal complaint was filed against the applicant and against the person who was sharing the apartment with him for membership of a drug-trafficking ring. 10. On an unspecified date a search warrant was issued against the applicant's friend/cousin. On 13 November 1988 the applicant's apartment was searched. The police found a certain amount of drugs, partly in the house and partly in a nearby barn. On the same date the applicant was arrested and charged with illegal possession of drugs. 11. During his police interrogation the applicant chose the family home of a couple of close friends, Mr and Mrs C., as the address for service of communications relating to the case, as provided for by Section 171 of the former Italian Code of Criminal Procedure. The applicant was subsequently committed for trial before the Arezzo District Court on the charge of illegal possession of drugs. 12. On 7 December 1988 the Arezzo District Court acquitted the applicant on the ground of lack of evidence (insufficienza di prove). The court however found the applicant's friend/cousin guilty of possessing drugs and sentenced him to seven years' imprisonment. 13. Following his acquittal the applicant again elected Mr and Mrs C.'s family home as his address for service. However, shortly after his acquittal the applicant moved to Germany where he obtained employment. The applicant did not inform the Italian authorities of this change of address as required by Italian law. 14. On an unspecified date the Public Prosecutor attached to the Arezzo District Court appealed against the judgment acquitting the applicant. On 10 July 1989 the President of the Florence Court of Appeal issued a summons for the applicant to attend the appeal hearing set for 6 October 1989. On 2 August 1989 the bailiff (ufficiale giudiziario) completed a form stating that he could not serve the summons on account of the fact that the applicant was no longer living there and that it appeared that he had left the country (“non potuto notificare perchè il notificando non è piu' domiciliato presso la famiglia in questione ma pare sia ritornato all'estero”). On 16 August 1989 the bailiff completed a report stating that he had served the summons on the applicant by depositing it at the registry of the Florence Court of Appeal. 15. On 6 September 1989 the registry of the Florence Court of Appeal issued a notice to Mr D., the applicant's officially-appointed lawyer (avvocato d'ufficio), which stated that, as it had not been possible to serve the summons on the applicant, it had been filed with the court registry. On 25 September 1989 the bailiff served this notice on Mr D. 16. On 6 October 1989 the Florence Court of Appeal reversed the first-instance judgment concerning the applicant and sentenced him to seven years' imprisonment for illegal possession of drugs. The applicant, who had had no notice of the appeal proceedings, was not present at the hearing. 17. On 3 January 1990 the bailiff wrote a report stating that the attempt to serve notice of the judgment on the applicant at the old address had failed, the applicant no longer being domiciled there, as declared by Mr C. On 29 January 1990 the bailiff completed a report (relata di notifica) stating that he had served notice of the judgment on the applicant by filing it with the registry of the Florence Court of Appeal. The applicant did not receive any notice of the appeal judgment or of the prison sentence passed on him. 18. On 19 August 1995 the applicant was arrested when entering Italy on his return from a holiday. He was immediately imprisoned in compliance with the Florence Court of Appeal judgment of 6 October 1989. 19. On 22 September 1995 the applicant made an application to the Court of Cassation seeking leave to make a “late appeal” (restituzione nel termine). 20. By a decision (ordinanza) of 30 January 1996, which was deposited in the court's registry on 13 March 1996, the Court of Cassation rejected the applicant's request. It noted that the applicant had had knowledge of his conviction in absentia upon his arrest on 19 August 1995, whereas he had lodged the request for the late appeal on 22 September 1995, thus failing to comply with the ten-day time-limit set out in Article 175 of the Code of Criminal Procedure. 21. In a letter dated 20 July 1996 Mr and Mrs C. stated that they had never been served with notification that an appeal had been lodged in respect of the applicant. On or about 31 May 1997 the applicant was released from prison and was expelled to the United Kingdom. 22. Section 175 paragraphs 2 and 3 of the Code of Criminal Procedure provides as follows: “When a judgment is delivered in absentia, an accused who proves that he had no knowledge of the judgment can apply for an extension of the time-limit to lodge an appeal against it provided that the judgment has not already been appealed by his lawyer and that the fact that he did not have knowledge of the judgment is not attributable to him .... The request for an extension of the time-limit shall be lodged by the accused within ten days of his actual knowledge of the judgment”. 23. Section 1 of Law no. 742 of 7 October 1969 provides as follows: “The running of procedural time-limits in the ordinary and administrative courts shall be automatically suspended from 1 August to 15 September each year and shall recommence at the end of the suspension period. Should a time-limit start running during this period, the starting-date shall be automatically postponed to the end of such period.” In a judgment (no. 6336) of 25 November 1998, the Court of Cassation stated that the ten-days time-limit set out in Article 175 of the Code of Criminal Procedure is also suspended from 1 August to 15 September pursuant to Section 1 of Law 742/69.

dev

001-83993

ENG

RUS

CHAMBER

CASE OF SINITSYNA v. RUSSIA

Violation of Art. 6;Violation of P1-1

Christos Rozakis

4. The applicant was born in 1945 and lives in the town of Saransk in the Mordoviya Republic. 5. In 1990 the applicant obtained a State special-purpose commodity bond (облигация государственного целевого беспроцентного займа). By its terms the Government undertook to give her a Russian-made VAZ passenger car. 6. It appears that in 1993 the applicant requested the State to comply with its obligation, but it could not be fulfilled for want of cars. 7. After the change in legislation in 1995 and 1996, the applicant became entitled to compensation in the amount equal to the car value, as described in the bond and determined in co-ordination with car manufacturers at the moment of redemption. 8. It appears that in August 1998 the applicant received partial compensation. 9. In November 1999 she sued the Government for the full market value of the car. 10. By judgment of 25 April 2002, the Oktyabrskiy District Court of Saransk awarded her 50,400 Russian roubles (RUB) against the Ministry of Finance. On 4 June 2002 the Supreme Court of the Mordoviya Republic upheld the judgment. 11. On 19 June 2002 the bailiff instituted enforcement proceedings. On 1 July 2002 the bailiff returned the writ of execution to the applicant. On the same date, the applicant re-submitted it to the Ministry of Justice. Upon the Ministry's instructions, on 17 July 2002 the applicant forwarded her writ to the Treasury Department in Moscow. 12. By letter of 26 August 2002 the Treasury returned the writ to the applicant, indicating that it should be submitted to the Ministry of Finance. The applicant sent the writ to the Ministry on 10 October 2002 13. On 6 December 2002 the Ministry informed the applicant that it would not enforce the judgment because supervisory-review proceedings had been pending. 14. The applicant received the monies due to her on 28 April 2006.

dev

001-98621

ENG

RUS

CHAMBER

CASE OF KHODZHAYEV v. RUSSIA

Violation of Art. 3 (in case of extradition to Tajikistan);Violation of Art. 5-4;Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award

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

5. The applicant was born in 1977 and lives in Khunzhand, Tajikistan. He is currently residing in Moscow. 6. The applicant is a practising Muslim. He states that he has not been a member of any political organisations, including Hizb ut-Tahrir (“HT”), an Islamic organisation banned in Russia, Germany and some Central Asian republics, but has nonetheless been persecuted by the Tajikistani authorities on account of presumed membership of that organisation. 7. By a decision of 22 June 2000 the Ministry of Security of Tajikistan instituted criminal proceedings against the applicant on account of his membership of “the illegal extremist-religious party 'Hizb ut-Tahrir'”. The decision stated that the applicant had committed a number of serious and particularly serious crimes, namely, incitement to overthrow the political regime in Tajikistan and dissemination of material containing incitement to religious hatred. On the same date the Ministry of Security of Tajikistan placed the applicant on a search list, drew up an arrest warrant in his name and suspended the investigation because the applicant's whereabouts were unknown. 8. The applicant fled to Moscow in 2001. 9. Between 27 October and 7 December 2001 the applicant was kept in detention in Russia with a view to his extradition. He was subsequently released because no formal request for his extradition was received. 10. The applicant registered his place of residence in Russia with the relevant authorities. 11. On 28 November 2007 the applicant was arrested by servicemen of the Moscow Department of the Federal Security Service and police of the Odintsovo District. 12. In the morning of 30 November 2007 the applicant was questioned in the absence of a lawyer. The servicemen who carried out the interview threatened to use violence against the applicant and his family unless he voluntarily agreed to leave Russia for Tajikistan. According to the applicant, he was not informed of the reasons for his arrest in the course of the interview. Neither did he have access to a lawyer during the two following weeks in detention. 13. On 30 November 2007 the Odintsovo Town Court of the Moscow Region (“the Town Court”) ordered the applicant's placement in custody pending his extradition. The term of detention was not specified. 14. Between 30 November 2007 and 30 January 2008 the applicant was kept in a temporary detention facility of the Odintsovo District Department of the Interior. In the meantime his wife was expelled to Tajikistan. 15. On 21 December 2007 the Prosecutor General of Tajikistan sent a request for the applicant's extradition to the Prosecutor General of Russia and enclosed a copy of the decision of 22 June 2000 to charge the applicant with membership of a proscribed organisation and copies of the search and arrest warrants. 16. On 4 June 2008 the Deputy Prosecutor General of Russia ordered the applicant's extradition to Tajikistan to face criminal prosecution. The order stated that the applicant had been charged with membership of a proscribed religious-extremist organisation and dissemination of material containing incitement to religious hatred. 17. The applicant challenged the extradition order of 4 June 2008 in court. 18. On 22 August 2008 the Moscow City Court upheld the order of 4 June 2008. It reasoned that there were no legal grounds impeding the applicant's extradition to Tajikistan because the applicant was a Tajik national and his request for political asylum had been rejected. The applicant's claims that he was not guilty of the crimes of which he had been charged had been examined and dismissed “on the ground that issues of falsification of charges in his respect by law-enforcement agencies of Tajikistan [were] not subject to examination in the course of [that] court hearing”. It further stated that allegations of persecution on religious grounds had not been confirmed by reliable evidence, and concluded as follows: “[Mr] Khodzhayev does not have refugee status in the Russian Federation, has not been and is not being persecuted on grounds of his race, religion, citizenship, nationality or association with a particular group [and] has not applied for Russian citizenship or political asylum.” 19. On 28 October 2008 the Supreme Court of Russia examined an appeal by the applicant against the judgment of 22 August 2008 and dismissed it, reproducing the reasoning of the Moscow City Court verbatim. 20. On 11 January 2008 the applicant lodged a request for political asylum with the Moscow Department of the Federal Migration Service (“the Moscow FMS”). 21. On 11 January 2008 the applicant requested protection from the Russian Office of the United Nations High Commissioner for Refugees (“the UNHCR Office”). It appears that UNHCR Office staff were not allowed to visit the applicant over the following months. 22. On 16 May 2008 the Moscow FMS refused to grant the applicant political asylum. On an unspecified date the applicant was notified of that decision. 23. The applicant challenged the Moscow FMS's decision of 16 May 2008 in court. On an unspecified date the Zamoskvoretskiy District Court of Moscow refused to admit the applicant's statement of claim because he had failed to pay the court fee. The applicant appealed. 24. On 18 November 2008 the Moscow City Court quashed the decision of the Zamoskvoretskiy District Court of Moscow and ordered it to admit the applicant's statement of claim with no court fee. It appears that the proceedings challenging the Moscow FSM's decision are now pending before the Zamoskvoretskiy District Court of Moscow. 25. On 26 November 2008 UNHCR Office staff interviewed the applicant. 26. On 22 June 2000 an investigator from the Tajik Ministry of Security, having obtained a prosecutor's approval, issued an arrest warrant in respect of the applicant. 27. In July 2001 the applicant arrived in Russia illegally looking for well-paid employment. During the following six years the applicant filed no request to register himself as a temporary resident with Russian migration offices. Neither did he lodge a request for asylum. The applicant did not have a migration card. 28. On 27 October 2001 the applicant was arrested in Moscow pursuant to Article 61 of the Minsk Convention as a person put on an international wanted list. 29. On 7 December 2001 the applicant was released from custody because no request for his extradition had been received. 30. On 19 February 2002 the Tajik Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant. 31. On 27 February 2002 the Russian police were instructed to search for the applicant. 32. On 28 November 2007 the applicant was arrested by servicemen of the Federal Security Service and the police. 33. On the same date the applicant was questioned by an official of the Odintsovo prosecutor's office. The written statement signed by the applicant certified that he was fluent in Russian and did not need an interpreter. The statement reads, in so far as relevant, as follows: “... I am aware of the fact that my name has been put on a wanted list in Tajikistan. I cannot give any details concerning the criminal case against me in Tajikistan. The investigative documents from Tajikistan that I have been provided with contain my personal data but I did not commit the crimes mentioned in them. I cannot submit more information on the substance of the criminal case against me. ... I am not being persecuted in Tajikistan for political reasons. I am a Tajik national and I have not applied for political asylum or refugee status to any agencies, consulates, embassies or representative offices.” 34. On 30 November 2007 the Town Court held the hearing and examined the Odintsovo prosecutor's office's request to authorise the applicant's placement in custody pending extradition. The request that mentioned the fact that the applicant had been suspected of serious and particularly serious crimes in Tajikistan was read out in the courtroom. In the document entitled “Decision concerning the choice of custodial detention as a preventive measure” the Town Court observed that the applicant was suspected of creating a criminal organisation, inciting to racial and religious hatred and calling for the overthrow of the Tajik constitutional regime and ordered the applicant's placement in custody pursuant to the Minsk Convention and Article 108 of the CCP. The Town Court reasoned that the applicant was a foreign national, had no permanent employment or place of residence and, unless detained, might abscond, continue his illegal activities or interfere with the course of criminal proceedings. The applicant was advised of his right to appeal against the decision before the Moscow Regional Court within three days. 35. On 24 December 2007 the Tajik Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant as a person charged with terrorism-related crimes. 36. On 28 December 2007 the Town Court ordered the applicant's placement in custody pending extradition pursuant to Articles 108 and 466 of the CCP. The document was entitled “Decision concerning the choice of custodial detention as a preventive measure”. The applicant was advised of his right to appeal against the decision before the Moscow Regional Court within three days. 37. The applicant did not appeal against the Town Court's decisions of 30 November and 28 December 2007. 38. On 11 January 2008 the applicant argued for the first time that in Tajikistan he had been persecuted on political grounds in his letters to the UNHCR Office and the Moscow FMS. 39. On 4 June 2008 the Russian Deputy Prosecutor General granted the Tajik Prosecutor General's Office's request and ordered the applicant's extradition. The applicant was advised of his right to appeal against the order within ten days. 40. On 28 July 2008 the applicant appealed against the extradition order. 41. On 5 August 2008 the Moscow FMS received the applicant's request for temporary asylum. 42. On 22 August 2008 the Moscow City Court dismissed the applicant's appeal against the extradition order. 43. On 27 August 2008 the applicant appealed against the judgment of 22 August 2008. 44. On 28 October 2008 the Russian Supreme Court dismissed the applicant's appeal and upheld the judgment of 22 August 2008. On 13 November 2008 the applicant was served with the appeal court's decision. 45. On 24 January 2008 the Russian Prosecutor General's Office received the applicant's counsel's request to allow UNHCR Office staff to visit the applicant. A request made by the UNHCR Office reached the Russian Prosecutor General's Office only on 23 July 2008. The request did not contain the personal details of the staff in question. As soon as those details had been communicated by the UNHCR Office, the Russian Prosecutor General's Office issued a permit to visit the applicant. 46. On an unspecified date the UNHCR Office informed the prosecutor's office of the Moscow Region that the applicant was eligible for international protection. 47. On 26 February 2008 the applicant requested the Moscow FMS to grant him refugee status. 48. On 20 March 2008 officials of the Moscow FMS visited the applicant in the remand prison and interviewed him. 49. The applicant was provided with ample opportunities to substantiate his fears of persecution in Tajikistan. He was interviewed by State officials in this respect on several occasions. 50. On 16 May 2008 the Moscow FMS, having thoroughly studied the applicant's request, dismissed it and refused to declare the applicant a refugee. The applicant appealed against that decision. 51. On 3 July 2008 the Zamoskvoretskiy District Court of Moscow refused to admit the applicant's appeal against the Moscow FMS's decision of 16 May 2008 and invited the applicant to eliminate the discrepancies in his appeal by 18 July 2008. 52. On 25 August 2008 the Zamoskvoretskiy District Court of Moscow ruled that the applicant's appeal against the Moscow FMS's decision should not be examined because the applicant had failed to eliminate the discrepancies referred to in the ruling of 3 July 2008. 53. On 26 November 2008 the applicant's request for temporary asylum was dismissed. 54. On 18 November 2008 the Moscow City Court quashed the ruling of 25 August 2008 and remitted the matter for fresh examination at first instance. 55. On 12 March 2009 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's appeal against the Moscow FMS's decision of 16 May 2008. 56. Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 108 § 3). The request should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions up to twelve months may be granted on an investigator's request approved by a prosecutor of the Russian Federation only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 57. Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125). 58. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to decide on the measure of restraint in respect of the person whose extradition is sought. The measure of restraint is to be applied in accordance with the established procedure (Article 466 § 1). 59. The Constitutional Court examined the compatibility of Article 466 § 1 of the CCP with the Russian Constitution and reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 60. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCP, or in excess of the time-limits fixed therein. 61. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 62. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction. 63. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. 64. By a decision (решение) of 14 February 2003 the Supreme Court of the Russian Federation granted the Prosecutor General's request and classified a number of international and regional organisations as terrorist organisations, including HT (also known as the Party of Islamist Liberation), and prohibited their activity in the territory of Russia. It held in relation to HT that it aimed to overthrow non-Islamist governments and to establish “Islamist governance on an international scale by reviving a Worldwide Islamist Caliphate”, in the first place in the regions with predominantly Muslim populations, including Russia and other members of the Commonwealth of Independent States. 65. Recommendation No. R (98) 13 of the Council of Europe Committee of Ministers to Member States on the rights of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights reads as follows: “Without prejudice to the exercise of any right of rejected asylum seekers to appeal against a negative decision on their asylum request, as recommended, among others, in Council of Europe Recommendation No. R (81) 16 of the Committee of Ministers..., 1. An effective remedy before a national authority should be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment. 2. In applying paragraph 1 of this recommendation, a remedy before a national authority is considered effective when:... 2.2. that authority has competence both to decide on the existence of the conditions provided for by Article 3 of the Convention and to grant appropriate relief;... 2.4. the execution of the expulsion order is suspended until a decision under 2.2 is taken.” 66. The Council of Europe Commissioner for Human Rights issued a Recommendation (CommDH(2001)19) on 19 September 2001 concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, part of which reads as follows: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.” 67. For other relevant documents, see the Court's judgment in the case of Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 36-38, ECHR 2007... 68. When performing actions requested under the Minsk Convention, to which Russia and Tajikistan are parties, a requested official body applies its country's domestic laws (Article 8 § 1). 69. Upon receipt of a request for extradition the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 70. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 71. The person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days from the date of placement in custody (Article 62 § 1). 72. Conclusions and Recommendations: Tajikistan, issued by the UN Committee Against Torture on 7 December 2006 (CAT/C/TJK/CO/1), refer to the following areas of concern regarding the human-rights situation in the country: “The definition of torture provided in domestic law ... is not fully in conformity with the definition in article 1 of the Convention, particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity. ... There are numerous allegations concerning the widespread routine use of torture and ill-treatment by law enforcement and investigative personnel, particularly to extract confessions to be used in criminal proceedings. Further, there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill treatment. ... The Committee is also concerned at: (a) The lack of a legal obligation to register detainees immediately upon loss of liberty, including before their formal arrest and arraignment on charges, the absence of adequate records regarding the arrest and detention of persons, and the lack of regular independent medical examinations; (b) Numerous and continuing reports of hampered access to legal counsel, independent medical expertise and contacts with relatives in the period immediately following arrest, due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials; (c) Reports that unlawful restrictions of access to lawyers, doctors and family by State agents are not investigated or perpetrators duly punished; (d) The lack of fundamental guarantees to ensure judicial supervision of detentions, as the Procuracy is also empowered to exercise such oversight; (e) The extensive resort to pretrial detention that may last up to 15 months; and (f) The high number of deaths in custody. ... There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the Convention by both law enforcement officials and investigative bodies. ... There are reports that there is no systematic review of all places of detention, by national or international monitors, and that regular and unannounced access to such places is not permitted.” 73. Amnesty International in its document “Central Asia: Summary of Human Rights Concerns: March 2007 – March 2008” describes the situation regarding freedom of religion in Tajikistan as follows: “Members of religious minorities and human rights defenders were concerned that decisions taken by the authorities restricted freedom of religion and belief. During the second half of 2007 unregistered mosques were closed down or demolished in the capital, Dushanbe. ... A proposed new law on religion raised fears that unregistered religious activity would be banned. The draft law proposed stringent registration requirements which would make it very difficult for religious minorities to apply or re-apply for legal status. It also proposed to limit the number of registered places of worship and to ban missionary activity. Pending the adoption of the new law the government was not accepting new applications for legal status from religious groups. ... In November [2007] the UN Special Rapporteur on freedom of religion or belief, Asma Jahangir, published a report on her visit to Tajikistan earlier in the year. The report's conclusions emphasized the “need to devise educational policies aimed at strengthening the promotion and protection of human rights and eradicating prejudices, which are incompatible with the freedom of religion or belief”. The conclusions also stressed that registration procedures for religious groups should be straightforward and that “[r]egistration should not be a precondition for practising one's religion”. The Special Rapporteur recommended that the Tajikistani authorities ensure that “any measure taken to combat acts of terrorism complies with their obligations under international law, in particular international human rights law, refugee law and humanitarian law.” She stressed that “an independent, neutral and impartial judiciary and prompt access to a lawyer [were] vital to safeguarding also the freedom of religion or belief of all individuals and religious communities”. 74. The World Report Chapter: Tajikistan by Human Rights Watch, released in January 2009, describes the human-rights situation in the country as follows: “Religious Freedom At this writing, the government had not yet sent to parliament a controversial draft law on religion that had been sharply criticized in 2007. Under the draft law, all religious groups must reregister and meet such onerous conditions as providing the address of any person who, at any point during the past 10 years, has been a member. The draft also prohibits foreigners from chairing religious organizations. ... Actions in the Name of Countering Terrorism and Extremism Following a recommendation by the prosecutor general, the Supreme Court of Tajikistan designated Hizb ut-Tahrir, a group that supports the reestablishment of the Caliphate, or Islamic state, by peaceful means, an "extremist" organization. The government continued to arrest alleged Hizb ut-Tahrir members and convict them either of sedition or incitement to racial, ethnic, or religious hatred, often simply for possessing the organization's leaflets. ... Torture and Deaths in Custody Tajikistan's definition of torture does not comply fully with the UN Committee Against Torture's recommendations to the country in December 2006. In a positive move, in March 2008 the Criminal Procedure Code was amended to make evidence obtained under torture inadmissible in court proceedings. Experts agree that in most cases there is impunity for rampant torture in Tajikistan. In one of the few cases that reached the courts, two policemen in Khatlon province were convicted in August 2008 for ill-treating minors; one of the two received a four-year prison sentence, and the other a suspended sentence. NGOs and local media reported at least three deaths in custody in 2008, including the death from cancer of the ex-deputy chair of the Party of Islamic Revival Shamsiddin Shamsiddinov. The party alleged his arrest in 2003 was politically motivated and claimed that his life could have been saved had he been allowed to undergo surgery. In an April 1, 2008 decision (Rakhmatov et al. v. Tajikistan) the UN Human Rights Committee found that Tajikistan violated the rights, including freedom from torture, of five applicants, two of them minors when they were arrested. Tajikistan failed to cooperate with the committee's consideration of the complaint. Similar violations were established in an October 30, 2008 decision (Khuseynov and Butaev v. Tajikistan)”. 75. The 2008 US Department of State Country Report on Human Rights Practices, released on 25 February 2009, provides the following information in relation to Tajikistan: “Tajikistan ... is an authoritarian state, and political life is dominated by President Emomali Rahmon and his supporters... The government's human rights record remained poor, and corruption continued to hamper democratic and social reform. The following human rights problems were reported: ... torture and abuse of detainees and other persons by security forces; threats and abuse by security forces; impunity of security forces; lengthy pretrial detention; denial of right to fair trial; harsh and life-threatening prison conditions; prohibited international monitor access to prisons; ... restrictions on freedom of religion, including freedom to worship; ... The law prohibits ... practices [of torture and other cruel, inhuman, or degrading treatment or punishment]; however, security officials reportedly employed them. Officials did not grant sufficient access to information to allow human rights organizations to investigate claims of torture. Security officials, particularly from the Ministry of Interior (MOI), continued to use beatings or other forms of coercion to extract confessions during interrogations. Beatings and other mistreatment were common also in detention facilities. A 2008 study by the Bureau for Human Rights and Rule of Law, a local NGO, credibly found a bias in the criminal justice system toward law enforcement officials exacting confessions from those who are arrested. Articles in the criminal code do not specifically define torture, and the country's law enforcement agencies have not developed effective methods to investigate possible violators. ... The Ministry of Justice (MOJ) continued to refuse access to prisons or detention facilities to representatives of the international community and civil society seeking to investigate claims of harsh treatment or conditions. Some foreign diplomatic missions and NGOs were given access to implement assistance programs or carry out consular functions, but their representatives were limited to administrative or medical sections, and they were accompanied by ministry of justice personnel. The government has not signed an agreement with the International Committee for the Red Cross (ICRC) to allow free and unhindered access to prisons and detention centers, and ICRC's international monitoring staff has not returned to the country since departing in 2007. During the year detainees and inmates complained of harsh and life-threatening conditions, including overcrowding and lack of sanitary conditions. Disease and hunger were serious problems, but outside observers were unable to assess accurately the extent of the problems because of lack of access. Organizations that work on prison issues reported that infection rates of tuberculosis and HIV was significant, and that the quality of medical treatment was low. ... The government has not substantially altered the Criminal Procedure Code (CPC) since the Soviet period, and the criminal justice system failed to protect individuals from arbitrary arrest or detention. There were few checks on the power of prosecutors and police to make arrests. ... Victims of police abuse may submit a formal complaint in writing to the officer's superior. However, most victims chose to remain silent rather than risk retaliation by the authorities. ... Prosecutors are empowered to issue arrest warrants, and there is no requirement for judicial approval of an order for pretrial detention. The law allows police to detain a suspect without a warrant in certain circumstances, but a prosecutor must be notified within 24 hours of arrest. Pretrial detention may last up to 15 months in exceptional circumstances. Local prosecutors may order pretrial detention for up to two months; subsequent detentions must be ordered by progressively higher level prosecutors. A defendant may petition for judicial review of a detention order. However, judges rarely questioned detention decisions, and observers regarded this review as a formality. Individuals have the right to an attorney upon arrest, and the government must appoint lawyers for those who cannot otherwise afford one. In practice the government did not always provide attorneys, and those it did provide generally served the government's interest, not the client's. There is no bail system, although criminal case detainees may be released conditionally and restricted to their place of residence pending trial. According to the law, family members are allowed access to prisoners only after indictment; officials occasionally denied attorneys and family members access to detainees. The authorities held many detainees incommunicado for long periods without formally charging them. ... Although the law provides for an independent judiciary, in practice the executive branch and criminal networks exerted pressure on prosecutors and judges. Corruption and inefficiency were significant problems. The C[ode of Criminal Procedure] gives the prosecutor a disproportionate degree of power in relation to judges and defense advocates. This power includes control of the formal investigation and oversight of the entire case proceedings. "Supervisory powers" provided by law allow prosecutors to protest a court decision outside of normal appeal procedures. Prosecutors effectively can cause court decisions to be annulled and reexamined by higher courts indefinitely after appeal periods have expired. These powers are an impediment to establishing an independent judiciary. The president is empowered to appoint and dismiss judges and prosecutors with the consent of parliament. Judges at all levels often were poorly trained and had extremely limited access to legal reference materials. Low wages for judges and prosecutors left them vulnerable to bribery, which remained a common practice. Judges were subject to political influence. Trials are public, except in cases involving national security. The authorities have denied access to monitoring organizations to trials without cause. A panel consisting of a presiding judge and two "people's assessors" determines guilt or innocence. Qualifications of the assessors and how they are determined is unclear, but their role is passive, and the presiding judge dominates the proceedings. According to the law, cases should be brought before a judge within 28 days after indictment; however, most cases were delayed for months. Under the law, courts appoint attorneys at public expense; however, in practice authorities often denied arrested persons access to an attorney. Those who were indicted were invariably found guilty. Judges often gave deference to uncorroborated testimony of law enforcement officers, especially members of the [Ministry of Security], and often discounted the absence of physical evidence. According to the law both defendants and attorneys have the right to review all government evidence, confront and question witnesses, and present evidence and testimony. No groups are barred from testifying, and, in principle, all testimony receives equal consideration. The law provides for the right to appeal. The law extends the rights of defendants in trial procedures to all citizens. ... The constitution provides for freedom of religion; however, in practice the government continued to impose restrictions and respect for religious freedom continued to deteriorate. The Council of Ulamo, a committee of Islamic clergy, provides interpretations of religious practice that imams throughout the country are required to follow. While the council is officially an independent religious body, in practice it is heavily influenced by the government. The Department of Religious Affairs (DRA) at the Ministry of Culture is responsible for general regulation of all religious organizations. The DRA, in consultation with local authorities, registers and approves all religious places of worship. For Muslims, the DRA controls all aspects of participation in the hajj, including choosing participants. President Rahmon established a Center for Islamic Studies during the year to guide religious policy. The government continued to impose limitations on personal conduct and to restrict activities of religious groups that it considered "threats to national security." ... Government officials visited mosques on a regular basis to monitor activities, observe those who attended the mosques, and examined audio and video materials for evidence of extremist and antigovernment material. The DRA continued to test imams on their religious knowledge and to ensure they followed official positions on religious issues. ... Government concerns about foreign influence resulted in restrictive measures against minority religious groups. The government continued its ban on HT [Hizb utTahrir], which it classified as an extremist Islamic political movement, and authorities introduced restrictive measures against another Islamic group, the Salafis. ...”