ITEMID: 001-66837
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MODER v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the second proceedings;Inadmissible under Art. 6-1 with regard to the first proceedings;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 4. The applicant was born in 1952 and lives in Budapest.
5. In the context of an inheritance dispute, two civil proceedings were brought against the applicant.
6. On 2 July 1990 Mr J.F.J. brought an action against the applicant before the Budapest XVIII/XIX District Court challenging her status as an heiress. On 10 November 1993 the District Court dismissed the action.
7. On 12 July 1990 Mrs T.K. brought another action against Mr J.F.J., Mr F.J. and the applicant before the Pest Central District Court.
8. On 4 September 1990 the District Court held a hearing and requested the parties to submit motions.
9. On 26 October and 12 December 1990 the District Court held hearings. At the hearings some of the parties did not appear since the District Court had failed to summon them in accordance with the procedural rules. A hearing scheduled for 8 February 1991 was re-scheduled.
10. On 10 April and 20 June 1991 the District Court held hearings. On the latter date it stayed the proceedings pending the outcome of the proceedings before the XVIII/XIX District Court. In the latter proceedings, on 24 November 1992 the court held a hearing. On 27 May 1993 the District Court appointed an expert. On 10 November 1993 the court dismissed the plaintiff's claim. The judgment became final on 15 April 1994.
11. At the plaintiff's request, on 13 October 1994 the Pest Central District Court resumed its proceedings. Subsequently, another judge was appointed to hear the case.
12. On 24 January 1995 the District Court held a hearing. At the hearing the plaintiff withdrew her action in respect of Mr J.F.J. and Mr F.J.
13. On 18 May 1995 the District Court discontinued the proceedings in respect of Mr J.F.J. and Mr F.J. and ordered the applicant to submit further documents.
14. On 26 October 1995 the District Court delivered a judgment and partly admitted the plaintiff's claims. The applicant appealed.
15. On 20 June 1996 the Budapest Regional Court held a hearing and delivered a judgment which was pronounced on 27 June 1996. It partly quashed the District Court's decision and remitted the case to the first-instance court.
16. In the resumed proceedings, on 30 January, 28 February, 24 June and 18 November 1997, the District Court held hearings.
Subsequently, another judge was appointed to hear the case. On 30 January 1998 the District Court heard three witnesses.
17. On 22 July 1998 the District Court appointed a real-estate expert.
Subsequently, yet another judge was appointed to hear the case. On 23 June 1999 the District Court held a hearing.
18. On 1 July 1999 the District Court delivered a judgment. The applicant appealed.
In the appeal proceedings, the hearings scheduled for 10 February and 6 July 2000 were re-scheduled due to the illness of one of the judges.
19. On 16 May and 26 October 2000 the Regional Court held hearings. On the latter date it delivered a judgment which was pronounced on 2 November 2000.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97121
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant company is based in Hoofddorp. Its business is publishing and marketing magazines, including the weekly Autoweek, which caters for readers who are interested in motoring.
6. The facts of the case, as submitted by the parties and shown by documents available to the public, may be summarised as follows.
7. On 12 January 2002, an illegal street race was held in an industrial area on the outskirts of the town of Hoorn. Journalists of Autoweek attended this race at the invitation of its organisers. The journalists were given the opportunity to take photographs of the street race and of the participating cars and persons. Before they were given permission to take photographs, the journalists were made to guarantee the participants that the latter’s identity would remain undisclosed. The street race was ended by the police, who were present and eventually intervened. The police did not make any arrests.
8. The applicant company intended to publish an article about illegal car races in Autoweek no. 7/2002 of 6 February 2002. This article would be accompanied by photographs of the car race held on 12 January 2002. These photographs would be edited in such a manner that the participating cars and persons were unidentifiable, thus guaranteeing the anonymity of the participants in the race. The original photographs were stored by the applicant company on a CD-ROM, which was kept in the editorial office of a different magazine published by the applicant company (not Autoweek).
9. In the morning of Friday 1 February 2002, a police officer contacted the Autoweek editorial office by telephone, summoning the editors to surrender to the police all photographic materials concerning the street race of 12 January 2002. This police officer was informed by the staff member whom she had called, i.e. the features chief editor (chef reportage), that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race. He further told this police officer that he thought that the press was reasonably protected against this kind of [police] action and advised her to contact the editorial office in writing.
10. In the afternoon of 1 February 2002, two police detectives visited the Autoweek editorial office and, after having unsuccessfully tried to obtain the surrender of the photographs, issued Autoweek’s editor-in-chief with a summons, within the meaning of Article 96a of the Code of Criminal Procedure (Wetboek van Strafvordering). This summons was issued by the Amsterdam public prosecutor and ordered the applicant company to surrender, in the context of a criminal investigation into offences defined in Articles 310-312 of the Criminal Code (Wetboek van Strafrecht) against an unspecified person, the photographs taken on 12 January 2002 during the illegal street race in Hoorn and all related materials. On behalf of the applicant company, Autoweek’s editor-in-chief Mr B. refused to surrender the photographs, considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity.
11. Later that day, a telephone conversation took place between, on the one side, two public prosecutors and, on the other, the lawyer of the applicant company. The lawyer was told by the public prosecutors that “it concerned a matter of life and death”. No further explanation was given and the lawyer’s request to amend the summons was not entertained.
12. The police detectives and the public prosecutors threatened to detain Mr B. during the weekend of 2 to 3 February for having acted in violation of Article 184 of the Criminal Code, i.e. the offence of failure to comply with an official order (ambtelijk bevel), and to close and search the applicant company’s premises, if need be, for the entire weekend period. The latter action would entail considerable financial damage for the applicant company as, during that weekend, articles were to be prepared for publication on the subject of the wedding of the Netherlands Crown Prince, due to take place on 2 February 2002.
13. At 6.01 p.m. on 1 February 2002, Mr B. was arrested on suspicion of having violated Article 184 of the Criminal Code. He was not taken to the police station but remained on the applicant company’s premises. After the Amsterdam public prosecutor had arrived on these premises and after Mr B. had been brought before the prosecutor, Mr B. was released at 10 p.m.
14. The applicant company then consulted its own lawyer and a second lawyer. The latter spoke with the public prosecutors involved, after which the duty investigating judge (rechter-commissaris) of the Amsterdam Regional Court (arrondissementsrechtbank) was contacted by telephone. After having spoken with one of the lawyers assisting the applicant company, and after having been briefed by one of the public prosecutors, the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege. On 2 February 2002 at 1.20 a.m., the applicant company, through its lawyer and under protest, surrendered the CD-ROM containing the photographs to the public prosecutor, who formally seized it.
15. On 15 April 2002 the applicant company filed a complaint under Article 552a of the Code of Criminal Procedure, seeking the lifting of the seizure and restitution of the CDROM, an order to the police and prosecution department to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD-ROM.
16. On 5 September 2002 a hearing was held before the Regional Court during which the public prosecutor explained why the surrender of the photographs had been necessary. The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of the wall with the aid of a shovel loader, and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s) of those robberies.
17. In its decision of 19 September 2002 the Regional Court granted the request to lift the seizure and to return the CD-ROM to the applicant company as the interests of the investigation did not oppose this. It rejected the remainder of the applicant company’s complaint. It found the seizure lawful and, on this point, considered that a publisher/journalist could not, as such, be regarded as enjoying the privilege of non-disclosure (verschoningsrecht) under Article 96a of the Code of Criminal Procedure. Statutorily, the persons referred to in Article 218 of the Code of Criminal Procedure and acknowledged as enjoying the privilege of non-disclosure were, amongst others, public notaries, lawyers and doctors. It considered that the right to freedom of expression, as guaranteed by Article 10 of the Convention, included the right freely to gather news (recht van vrije nieuwsgaring) which, consequently, deserved protection unless outweighed by another interest warranting priority. It found that, in the instant case, the criminal investigation interest outweighed the right to free gathering of news in that, as explained by the public prosecutor during the hearing, the investigation at issue did not concern the illegal street race, in which context the undertaking of protection of sources had been given, but an investigation into other serious offences. The Regional Court was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests, the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race. It found established that the data stored on the CD-ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing. It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified. The Regional Court did not find that the seizure had been rash, although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter.
18. The applicant company’s subsequent appeal in cassation was declared inadmissible by the Supreme Court (Hoge Raad) on 3 June 2003. The Supreme Court held that, as the Regional Court had accepted the applicant company’s complaint in so far as it related to the request to lift the seizure and to return the CD-ROM, the applicant company no longer had an interest in its appeal against the ruling of 19 September 2002. Referring to its case-law (Supreme Court, 4 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1989, no. 429, and Supreme Court, 9 January 1990, NJ 1990, no. 369), it held that this finding was not altered by the circumstance that the complaint – apart from a request to return the CD-ROM – also contained a request to order that any print-outs or copies of the CD-ROM were to be destroyed and that data collected with the aid of the CD-ROM could not be used, as neither Article 55a nor any other provision of the Code of Criminal Procedure provided for the possibility of obtaining, once a seized item had been returned, in a procedure like the present one, a declaratory ruling that the seizure or the use of the seized item was unlawful.
19. In their observations on the admissibility and merits of the application, the Government stated the following:
“6. To supplement the summary of the facts appended to the Court’s letter of 28 March 2006 [giving notice of the application to the respondent Contracting Party under Rule 54 § 2 (b) of the Rules of Court], the Government would make the following observations
7. The order in question, issued under Article 96a of the Dutch Code of Criminal Procedure (..., ‘CCP’), requiring the surrender for seizure of a CD-ROM containing photographs was closely related to a criminal investigation initiated following a series of ram raids in which cash machines were pulled from the wall with a shovel loader. These ram raids took place on 20 September 2001, 6 November 2001 and 30 November 2001. A group of men was suspected of perpetrating the ram raids and two members of the group (‘A’ and ‘M’) were the main suspects. A telephone conversation involving M, tapped in the context of the investigation on 12 January 2002, revealed that M and A had participated in an illegal street race in Hoorn with an Audi RS4 that day. The investigation team knew that journalists from the weekly magazine Autoweek had taken photographs of the illegal street race.
8. On 1 February 2002 another ram raid took place. During the incident, a bystander was threatened with a firearm. After ramming a cash machine, the perpetrators hauled it off in a lorry, which was followed closely by an Audi. The police, who had already been informed of the incident, saw the lorry stop and the driver get into an Audi, which then drove away with three people inside. The police followed, but the Audi accelerated to over 200 kilometres per hour and disappeared from view.
9. The police suspected that the Audi used in the illegal street race in Hoorn on 12 January 2002 was the same Audi observed at the ram raid on 1 February 2002. With that in mind, the public prosecutor decided that day (1 February 2002) to issue an order under Article 96a of the CCP in order to obtain the photographs taken at the street race.
10. The course of events is summarised below:
24 July, 26 July and 30 November 2001:
ram raids perpetrated;
12 January 2002:
illegal street race in Hoorn, in which A and M participated with an Audi RS4;
later that day: the public prosecutor learns from a tapped conversation that A and M took part in the street race with an Audi RS4;
1 February 2002:
new ram raid, involving an Audi;
later that day, at approximately 14.30: order issued under Article 96a of the CCP.”
20. Under Article 96a of the Code of Criminal Procedure, every civil servant invested with investigative powers (opsporingsambtenaar) may – in case of suspicion of an offence attracting a prison sentence of four years or more – such as for instance the offences defined in Articles 310-312 of the Criminal Code (theft; theft under aggravating circumstances; robbery) – or of a number of other specified criminal acts not relevant to the present case (Article 67 § 1 of the Code of Criminal Procedure) – order any person who is reasonably believed to hold an item eligible for seizure to surrender it for that purpose. Article 96a of the Code of Criminal Procedure entered into force on 1 February 2000. Prior to this date, only the investigating judge was competent to issue an order to surrender items for the purpose of seizure (former Article 105 of the Code of Criminal Procedure).
21. A failure to comply with such an order constitutes an offence as defined in Article 184 (failure to comply with an official order) or Article 193 (failure to make available documents) of the Criminal Code. Pursuant to Article 96a §§ 1 and 2 of the Code of Criminal Procedure, no such order may be given to the suspect or to a person who, by virtue of Articles 217-219 of the Code of Criminal Procedure, enjoys the privilege of nondisclosure. Such persons are an accused’s relatives, (former) spouse and (former) registered partner (Article 217); persons who, by virtue of their position, profession or office, are bound to secrecy albeit that their privilege of non-disclosure only covers matters the knowledge of which has been entrusted to them in that capacity (Article 218; for further details about this category, see Mulders v. the Netherlands, no. 23231/94, Commission decision of 6 April 1995, and Aalmoes and Others v. the Netherlands (dec.), no 16269/02, 25 November 2004), and persons who, by giving evidence, expose themselves, their relatives “to the second or third degree”, their (former) spouse or their (former) registered partner to the risk of a criminal conviction (Article 219).
22. Any interested person can lodge an objection against the seizure of an object, the refusal to return a seized object, or the examination (kennisneming) or use of electronic data. Such an objection is heard in public by the Regional Court, which has the power to give whatever orders the situation may require (Article 552a of the Code of Criminal Procedure).
23. Until 11 November 1977, the Netherlands Supreme Court did not recognise a journalistic privilege of non-disclosure. On that date, it handed down a judgment in which it found that a journalist, when asked as a witness to disclose his source, was obliged to do so unless it could be regarded as justified in the parti that the interest of non-disclosure of a source outweighed the interest served by such disclosure. This principle was reversed by the Supreme Court in a landmark judgment of 10 May 1996 on the basis of the principles set out in the Court’s judgment of 27 March 1996 in the case of Goodwin v. the United Kingdom (Reports of Judgments and Decisions 1996II). In this ruling, the Supreme Court accepted that, pursuant to Article 10 of the Convention, a journalist was in principle entitled to non-disclosure of an information source unless, on the basis of arguments to be presented by the party seeking disclosure of a source, the judge was satisfied that such disclosure was necessary in a democratic society for one or more of the legitimate aims set out in Article 10 § 2 of the Convention (NJ 1996, no. 578). In a judgment given on 2 September 2005 concerning the search of premises of a publishing company on 3 May 1996 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] LJN AS6926), the Supreme Court held inter alia:
“The right of freedom of expression, as set out in Article 10 of the Convention, encompasses also the right freely to gather news (see, amongst others, Goodwin v. the United Kingdom, judgment of 27 March 1996, NJ 1996, no. 577; and Roemen and Schmit v. Luxembourg, judgment of 25 February 2003 [ECHR 2003IV]). An interference with the right freely to gather news – including the interest of protection of a journalistic source – can be justified under Article 10 § 2 in so far as the conditions set out in that provision have been complied with. That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision. Secondly, the interference must serve one of the aims mentioned in Article 10 § 2. Thirdly, the interference must be necessary in a democratic society for attaining such an aim. In this, the principles of subsidiarity and proportionality play a role. In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other, less far-reaching ways (minder bezwarende wegen) can be followed along which this interest can be served to a sufficient degree. Where it concerns a criminal investigation, it must be considered whether the interference with the right freely to gather news is proportionate to the interest served in arriving at the truth. In that last consideration, the gravity of the offences under investigation will play a role.”
24. On 1 April 2002, in the light of the case-law developments in this area and Recommendation No. R(2000) 7 adopted on 8 March 2000 by the Committee of Ministers of the Council of Europe on 8 March 2000 (see below under “Relevant international materials”), the Board of Procurators General (College van procureurs-generaal) adopted an Instruction within the meaning of Article 130 § 4 of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) on the application by the Public Prosecution Department of coercive measures in respect of journalists (Aanwijzing toepassing dwangmiddelen bij journalisten; published in the Official Gazette (Staatscourant) 2002, no. 46), which entered into force on 1 April 2002 for a period of four years. This Instruction defines who is to be considered as a “journalist” and sets out the pertinent principles and guidelines as regards the application of coercive measures, such as inter alia an order under Article 96a of the Code of Criminal Procedure, in respect of a journalist.
25. On 4 December 2000, the boards of the Netherlands Society of Editors-in-Chief (Nederlands Genootschap van Hoofdredacteuren) and the Netherlands Union of Journalists (Nederlandse Vereniging van Journalisten) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials. This commission – which was composed of a professor of criminal law, the secretary of the Netherlands Union of Journalists, a Regional Court judge and an editor of a national daily newspaper – concluded in its report of 30 October 2001, inter alia, that specific legislation was not necessary and that by way of making certain procedural changes – such as a preliminary assessment procedure, where it concerned the application of coercive measures in cases where the protection of sources was in issue – a number of problem areas could be resolved.
26. Already in 1993, Mr E. Jurgens – at the time a member of the Netherlands Lower House of Parliament (Tweede Kamer) – had submitted a private member’s bill (initiatiefwetsvoorstel) to amend the Code of Criminal Procedure and the Code of Civil Procedure in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them. On 2 March 2005, after remaining dormant, this bill was eventually withdrawn without having been taken up in parliament.
27. The Court’s judgment in the Voskuil case (Voskuil v. the Netherlands, no. 64752/01, 22 November 2007) has prompted the Government to introduce new legislation. A bill now pending before Parliament proposes to add a new Article to the Code of Criminal Procedure (Article 218a) that would vouchsafe a right to refuse to give evidence or identify sources of information to “witnesses to whom information has been entrusted within the framework of the professional dissemination of news (beroepsmatige berichtgeving) or the gathering of information for that purpose, or the dissemination of news within the framework of participation in the public debate, as the case may be”. Such a right would be more limited than that enjoyed by the categories enumerated in Articles 217, 218 and 219 of the Code of Criminal Procedure; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest (zwaarderwegend maatschappelijk belang) would result from such refusal. However, persons covered by the proposed new Article 218a would not be among those entitled to refuse to surrender items eligible for seizure: the bill does not propose to include them in the enumeration contained in Article 96 § 2 (paragraph 21 above).
28. Several international instruments concern the protection of journalistic sources; among others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and the Resolution on the Confidentiality of Journalists’ Sources adopted by the European Parliament (18 January 1994, Official Journal of the European Communities No. C 44/34).
29. Moreover, Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 and states, in so far as relevant:
“[The Committee of Ministers] Recommends to the governments of member States:
1. to implement in their domestic law and practice the principles appended to this recommendation,
2. to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and
3. to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations.
Appendix to Recommendation No. R (2000) 7
Principles concerning the right of journalists not to disclose their sources of information
Definitions
For the purposes of this Recommendation:
a. the term ‘journalist’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;
b. the term ‘information’ means any statement of fact, opinion or idea in the form of text, sound and/or picture;
c. the term ‘source’ means any person who provides information to a journalist;
d. the term ‘information identifying a source’ means, as far as this is likely to lead to the identification of a source:
i. the name and personal data as well as voice and image of a source,
ii. the factual circumstances of acquiring information from a source by a journalist,
iii. the unpublished content of the information provided by a source to a journalist, and
iv. personal data of journalists and their employers related to their professional work.
Principle 1 (Right of non-disclosure of journalists)
Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.
Principle 2 (Right of non-disclosure of other persons)
Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein.
Principle 3 (Limits to the right of non-disclosure)
a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.
b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:
i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and
ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:
- an overriding requirement of the need for disclosure is proved,
- the circumstances are of a sufficiently vital and serious nature,
- the necessity of the disclosure is identified as responding to a pressing social need, and
- member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.
c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.
Principle 4 (Alternative evidence to journalists’ sources)
In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.
Principle 5 (Conditions concerning disclosures)
a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure.
b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested.
c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention.
d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority.
e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure.
Principle 6 (Interception of communication, surveillance and judicial search and seizure)
a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source:
i. interception orders or actions concerning communication or correspondence of journalists or their employers,
ii. surveillance orders or actions concerning journalists, their contacts or their employers, or
iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.
b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.
Principle 7 (Protection against self-incrimination)
The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.”
For the precise application of the Recommendation, the explanatory notes specified the meaning of certain terms. As regards the term “sources” the following was set out:
“c. Source
17. Any person who provides information to a journalist shall be considered as his or her ‘source’. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the ‘potentially chilling effect’ an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being ‘provided’ when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-66564
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MARSZAL  v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the civil proceedings;Violation of Art. 6-1 with regard to the criminal proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1954 and lives in Bytom, Poland.
5. The applicant worked as the head of the sales department in a coal mine “Rozbark” in Bytom. On 24 August 1994 she was dismissed from her job.
6. On 2 September 1994 she lodged a claim for compensation and reinstatement with the Bytom District Court of Labour (Sąd Rejonowy Wydział Pracy). Before 26 January 1995 the trial court held four hearings and heard evidence from one witness.
7. On 2 March 1995 the parties reached a friendly settlement and the District Court discontinued the proceedings. On 16 March 1995 the applicant’s lawyer asked the court to resume the proceedings, as the defendant company had failed to comply with the terms of the settlement. On 27 June 1995 the Katowice Regional Court (Sąd Wojewódzki) quashed the decision of 2 March and resumed the proceedings.
8. On 21 September 1995 the District Court held a hearing. On 23 October 1995 it stayed the proceedings until the conclusion of criminal proceedings against the applicant (referred to below). The applicant’s further appeal against that decision was dismissed by the Katowice Regional Court of Labour on 28 December 1995.
9. On 28 January 1999 the applicant asked the court to resume the proceedings. On 25 March 1999 the court held a hearing. On 29 October 1999 it dismissed her application. On 29 December 1999, on the applicant’s appeal, the Katowice Regional Court resumed the proceedings.
10. Between 9 March and 5 December 2000 the court held five hearings and heard evidence from five witnesses. On 5 December 2000 the Bytom District Court gave judgment. The court granted the applicant compensation and dismissed her claim for reinstatement. Both parties appealed.
11. On 8 May and 5 June 2001 the Regional Court held hearings. On 15 October 2001 the applicant sent a letter to the President of the Katowice Regional Court asking for a hearing date to be set.
12. On 21 November 2001 the Regional Court dismissed the defendant’s appeal. 20 December 2001 the Regional Court gave judgment and dismissed the applicant’s appeal. The judgment is final.
13. On 30 December 1995 the Bytom District Prosecutor (Prokurator Rejonowy) submitted to the Bytom District Court (Sąd Rejonowy) a bill of indictment against the applicant and three other employees of the “Rozbark” coal mine. The applicant was charged with carrying out fraudulent financial operations. On 14 March 1996 the Bytom District Court returned the case-file to the District Prosecutor instructing him to complete the investigation. The District Prosecutor appealed. On 3 April 1996 the Katowice Regional Court (Sąd Wojewódzki) ordered the District Court to proceed with the case.
14. During the proceedings the District Court held fifteen hearings and heard evidence from several witnesses.
15. On 23 September 1998 the Bytom District Court delivered a judgment and acquitted the applicant. The District Prosecutor appealed.
16. On 8 February 1999 the Katowice Regional Court quashed the first-instance judgment and remitted the case to the prosecution authorities for a further investigation.
17. On 10 July 1999 the District Prosecutor ordered an expert opinion to be obtained. The expert submitted his opinion on 22 October 1999. On 2 August 1999 the Bytom District Prosecutor decided to stay the investigation until an expert on management prepared an opinion.
18. On 15 December 1999 the applicant sent a letter to the Regional Prosecutor complaining about the slow progress of the proceedings. On 20 March 2000 she sent another letter to the Minister of Justice (Minister Sprawiedliwości) asking about the progress of the investigation proceedings. In a letter of 14 March 2000 the Bytom District Prosecutor informed the applicant that there were difficulties in finding an expert competent to prepare an opinion.
19. On 30 April 2001 the expert on management submitted his opinion to the Prosecutor. The investigation was resumed on 2 July 2001.
20. On 28 December 2001 the District Prosecutor submitted to the Bytom District Court a bill of indictment against the applicant and three other persons.
21. On 28 August 2003 the Bytom District Court discontinued the criminal proceedings against the applicant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99996
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF CIORAP v. MOLDOVA (No. 2)
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Reminder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1965 and lives in Chişinău. He works for “Social Amnesty”, an organisation which provides legal help to persons in detention.
6. On 11 October 2000 the applicant underwent an operation to drain fluid from his liver. He was released from hospital on 21 October 2000.
7. On 23 October 2000 he was arrested by the Department for Fighting Organised Crime and Corruption on suspicion of fraud and was placed in detention at the Hînceşti police station. He alleged that he was suspended from an iron bar and beaten with machine guns and rubber truncheons and that the beating re-opened his surgical wound. He was placed in a small cell in the police station, without a bed, mattress or blankets and without access to a toilet or washing facilities, where he had to sleep on the concrete floor. He was seen by a doctor on 29 October 2000, who observed that the applicant's surgical wound had reopened and recommended that he be admitted to hospital immediately. However, police officer Ş. refused a transfer to the hospital.
8. On 6 November 2000 the applicant was transferred to prison no. 13, where he was placed into the medical treatment unit with the diagnosis “post-surgery state” (see further Ciorap v. Moldova, no. 12066/02, 19 June 2007). According to medical reports, on 7 November 2000 the applicant swallowed a nail and was hospitalised in order to extract it. According to medical evidence, during 2000-2001 the applicant underwent 10 operations made necessary by acts of self-harm, such as swallowing sharp objects and cutting himself (see Ciorap v. Moldova (dec.), no. 12066/02, 11 October 2005).
9. The applicant made a number of complaints in respect of his alleged ill-treatment by the police, the failure to give him medical treatment and the inhuman conditions of detention. The prosecutor opened a criminal investigation and interviewed the applicant, the police officers involved and their colleagues, as well as the medical personnel who had examined the applicant during his arrest. The doctors confirmed that they had been called twice to attend the applicant on the night of his arrest but that this had been in connection with a post-surgery problem. The prosecutor found that the applicant had made no complaint of ill-treatment when examined by the doctors or by the superior police officers (see Ciorap v. Moldova (dec.), no. 12066/02, 11 October 2005). All the applicant's complaints were dismissed as unfounded. This decision was confirmed by the investigating judge on 21 June 2006 and 30 October 2006.
10. In a final judgment of 7 November 2006 the Supreme Court of Justice found that on 7 October 2002 and 29 April 2003 the applicant had been informed of the prosecutor's decision to reject his request for the initiation of a criminal investigation into his alleged torture in October 2000. He was also informed of his right to challenge that decision in court within ten days of the date on which he was informed of it. However, the applicant did not challenge that decision until three years later, without having asked for an extension of the time-limit. The court therefore rejected his complaint for failure to challenge the prosecutor's decision within the time-limit provided for by law.
11. On an unspecified date, the applicant initiated new court proceedings against the Hînceşti police station, the Prosecutor's Office and the Ministry of Finance, claiming compensation for the damage caused to him through his ill-treatment upon his arrest on 23 October 2000, the failure to give him medical treatment while in detention and the inhuman conditions of detention.
12. On 15 March 2007 the Hînceşti District Court rejected his claims as unfounded. On 7 June 2007 the Chişinău Court of Appeal quashed that judgment and partly accepted the applicant's claims. The court found that the documents in the file established that police officer Ş. had refused to allow the applicant to be treated in hospital even though an urgent examination by a surgeon had been recommended by the doctor who saw the applicant on 29 October 2000. The court also found that the applicant had been detained at Hînceşti police station in conditions that breached the requirements of domestic law. In particular, the Law on preventive arrest (no. 1226-XIII, 27 June 1997) required that individuals detained pre-trial had a minimum of two square metres of cell space, access to daylight and fresh air, access to a toilet in sanitary conditions not degrading human dignity, access to a shower once every ten days and access to a bed with bed linen. The court referred to a letter from the Ministry of Interior which acknowledged that at the time of the applicant's detention Hînceşti police station had been insufficiently equipped to offer appropriate conditions of detention, including proper ventilation. The court awarded the applicant 100 Moldovan lei (MDL) (6 euros (EUR) at the time) for non-pecuniary damage caused. The applicant appealed.
13. On 21 November 2007 the Supreme Court of Justice accepted the applicant's appeal in cassation and partly quashed the lower court's judgment. The court confirmed the findings of the Chişinău Court of Appeal concerning the failure to give the applicant required medical treatment and to provide the applicant with adequate conditions of detention. In reaching this conclusion, the court referred to Article 3 of the Convention and the Court's judgments such as Kudła v. Poland [GC] (no. 30210/96, ECHR 2000XI), Sarban v. Moldova (no. 3456/05, 4 October 2005) and Ostrovar v. Moldova (no. 35207/03, 13 September 2005). The court added that while there was no domestic legislation giving the applicant a right to compensation, the Convention should be applied directly as it was part of the domestic legal system and had precedence over domestic legislation by virtue of the express provisions of Article 4 of the Constitution. The same conclusion had been reached by the Constitutional Court in a judgment of 14 October 1999. The court also relied on the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment made during its visits in 1998, 2001 and 2004 concerning the substandard conditions of detention in the Hînceşti police station. The court held that the denial of medical treatment combined with the conditions of detention, which had aggravated the applicant's medical condition, had amounted to inhuman treatment in breach of Article 3 of the Convention. The court increased the award made to the applicant in compensation for non-pecuniary damage to MDL 10,000 (EUR 600 at the time) and awarded him MDL 210 (EUR 12.6) in compensation for pecuniary damage.
14. The applicant again requested the Hînceşti Prosecutor's Office to open a criminal investigation into his alleged ill-treatment by the police, but the prosecutor rejected the request. The applicant challenged this decision before the Hînceşti investigating judge and subsequently the Supreme Court, which dismissed his appeal on 1 October 2008.
VIOLATED_ARTICLES: 3


ITEMID: 001-111429
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BAJSULTANOV v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life) (Conditional)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: 7. The applicant, a Russian national of Chechen origin, was born in 1980 and lives in Graz.
8. The applicant arrived in Austria with his family on 25 July 2003 and lodged an asylum request on the same day.
9. The applicant was raised in Urus-Martan and in the Naur District in Chechnya and went to school there for seven years. He did not have any vocational training, but worked subsequently in different jobs.
10. The applicant’s wife was born in Grozny and spent all her life in Chechnya, where she married the applicant in 2002 in a religious ceremony.
11. With regard to his reasons to apply for asylum, the applicant claimed that he had supported the Chechen fighters during the first war from 1994 until 1996. Because he did not feel that his support had been sufficiently acknowledged, he did not take part in the second war in Chechnya. In summer 2003, mercenary soldiers came looking for him during a “cleaning operation” based on a file about the applicant that had been created after the first war. When they did not find him at home, the soldiers beat up the applicant’s father. Later on, the family’s house was burned down. Thereupon, the applicant’s father advised the applicant and his wife to leave Chechnya and the Russian Federation.
12. On 24 November 2004, the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request and declared the applicant’s expulsion to the Russian Federation permissible.
13. The applicant appealed. On 22 July 2005, the Independent Federal Asylum Panel (Unabhängiger Bundesasylsenat) allowed the applicant’s appeal and awarded him asylum status. Referring to relevant country reports it found that the security situation in Chechnya had deteriorated from May 2004 onwards and that numerous killings and unexplained disappearances occurred on a regular basis, many within the context of “cleaning operations”. It further found the humanitarian situation in Chechnya to be critical. Finally, it stated that there were no domestic alternatives, due to systematic hindrances encountered by Chechens with Russian authorities throughout the country and also due to difficulties in obtaining registration and settling in other parts of Russia. It found the applicant’s statements to be credible and sufficiently substantiated and concluded that the applicant was at a real risk of being subjected to ill-treatment if he returned to the Russian Federation.
14. On 27 April 2007, the Independent Federal Asylum Panel also granted asylum to the applicant’s wife. It reasoned that since the applicant was wanted in Russia because of his alleged hostility towards the Russian authorities, his wife was also at real risk of ill-treatment if she returned to Russia. It also noted that the applicant had been awarded the status of a recognised refugee and that the family would not be able to establish their life together in another country. Ruling out a domestic alternative (moving to live elsewhere in Russia), it concluded that the applicant’s wife therefore should be awarded asylum status in application of the principle in dubio pro fugitivo.
15. The applicant’s daughter, who was born in 2004, was granted asylum on 15 May 2007; and his son, born in 2007, was granted asylum on 21 June 2007.
16. On 28 April 2005, the Graz District Court (Bezirksgericht Graz) convicted the applicant of attempted theft and sentenced him to two weeks’ imprisonment, suspended, and placed him on probation.
17. On 17 August 2006, the Leoben Regional Court (Landesgericht Leoben) convicted the applicant of attempted resistance to public authority, aggravated damage to property and aggravated bodily harm, and sentenced him to eight months’ imprisonment, six of which were suspended, and placed him on probation for three years.
18. On 10 March 2008, the Graz Regional Court (Landesgericht Graz) convicted the applicant of partly attempted and partly actual aggravated bodily harm, and sentenced him to twelve months’ imprisonment, while quashing the probation order in the previous sentence. The applicant was found to have hit a prostitute on the head with an empty bottle because she had not told him that she was suffering from a sexually transmitted disease.
19. The applicant served his sentences and was released again in August 2009. Since then, the applicant has been living with his wife and two children in an apartment in Graz.
20. The Federal Asylum Office initiated proceedings to lift the applicant’s asylum status. In the interview conducted in the course of the proceedings, the applicant stated that he could not return to Chechnya because of his past and that he was convinced that he would be killed if he returned. He claimed that many people had returned to Chechnya after being informed that they would no longer be in danger of persecution in Chechnya, but had then disappeared or been killed by the security service of the Chechen president. He could not prove this, since the people concerned were dead. Furthermore, the applicant’s father had told him that he should not return to Chechnya and that he was still at risk of persecution.
21. On 2 October 2008 the Federal Asylum Office lifted the applicant’s asylum status and ordered his expulsion to the Russian Federation. Referring to section 7 of the 2005 Asylum Act, it noted that asylum status could be lifted after conviction by a domestic court of a particularly serious offence. It further referred to the four criteria developed by the Administrative Court (Verwaltungsgerichtshof) that were as follows: firstly, the conviction must be for a particularly serious crime, such as murder, rape, child abuse, arson, armed robbery, drug trafficking, or similar crimes. Secondly, it must be a final conviction. Furthermore, the offence committed must be especially dangerous (gemeingefährlich); and finally, the public interest in lifting the asylum status must outweigh the applicant’s interest in the protection provided by the asylum status. The Federal Asylum Office continued by finding that in practice, offences against physical integrity and life would be qualified as “particularly serious crimes”. It also made reference to the United Nations Convention 1951 relating to the Status of Refugees that requested a balancing of the interests involved. In conclusion, it stated that the applicant had been convicted more than once of offences against physical integrity, and that he had reoffended after his first conviction.
22. It further found that the security situation in Chechnya had improved since the applicant had been awarded asylum status, and came to the conclusion that the applicant would not be subject to a real risk of ill-treatment contrary to Article 3 of the Convention upon a return to the Russian Federation. As regards the applicant’s rights under Article 8 of the Convention, the Federal Asylum Office stated that the applicant had not taken any serious steps towards integration into Austrian society since the award of asylum status. He had for example only started learning German in 2007, when he had already been in the country for four years. With regard to the applicant’s family, it questioned its entitlement to protection, in the context of the violent offences the applicant had committed in the past. It referred also to the applicant’s family still living in Chechnya, namely his parents and six siblings, with whom the applicant maintained regular telephone contact and who constituted a clear link between the applicant and Chechnya, and concluded that the public interest, in view of the applicant’s criminal record, outweighed his interests in respect of his family life.
23. The applicant appealed against that decision. On 2 June 2009 the Asylum Court (Asylgerichtshof) held an oral hearing, at which the applicant repeated that he could not return to Chechnya. In general, his family had no problems with the security services there. His father had been visited by a member of the FSB two weeks after the applicant had left the country and had been told that his family should not expect any problems with the authorities, as they were only looking for the applicant. The applicant’s wife was also interviewed. Asked about her relationship with the applicant, she confirmed that she visited the applicant regularly in detention and that they would naturally continue to live together as a family as soon as the applicant was released from prison.
24. On 24 August 2009 the Asylum Court dismissed the applicant’s appeal as unfounded.
25. As regards the general security and political situation in Chechnya, and referring to relevant country reports, it found that military activities had decreased significantly in recent years and that the second war had ended officially on 16 April 2009. However, a country report by the German Federal Foreign Office dated 22 November 2008 showed that there were still massive human rights violations occurring in Chechnya under Ramsan Kadyrov’s dictatorship. Furthermore, the reports generally conceded that the civilian population was still the victim of “cleaning” operations, but also that unexplained disappearances had decreased since 2007. The Asylum Court considered torture still to be a problem in the region. Referring to reports of the Office of the United Nations High Commissioner for Refugees, it found people particularly targeted for persecution to be (former) rebels, their relatives, political adversaries of Ramsan Kadyrov, human rights activists, and people who had lodged complaints with international organisations. It further stated that the Office of the United Nations High Commissioner for Refugees still dismissed any domestic opportunity for Chechens in the Russian Federation. However, it also referred to a Swiss practice that declared a domestic alternative elsewhere in the Russian Federation acceptable for Chechens.
26. In its legal reasoning the Asylum Court stated that asylum status could be lifted if the person was convicted by a domestic court of a particularly serious offence, if he therefore presented a danger to the community, and if the public interest outweighed the person’s private interests. It referred to the Administrative Court’s illustration of German practice, which is to qualify a particularly serious offence as one with a sentence of at least three years’ imprisonment, but called it a “flexible system”. With regard to the applicant, the Asylum Court found that his repeated offences were of a very serious and violent nature. Finally, it emphasised the applicant’s lack of integration in Austria and the poor prospects for his future development.
27. The Asylum Court continued by examining the possibility of subsidiary protection pursuant to section 8 of the 2005 Asylum Act. In that context it found that the civil war in Chechnya had ended and that there was no general risk of treatment contrary to Article 3 of the Convention in the event of expulsion to the Russian Federation. Further referring to the applicant’s “minor” role in the first war, the stable life situation of his family in Chechnya and his good prospects of work in Chechnya, the Asylum Court dismissed a real and individual risk of persecution within the meaning of Article 3 of the Convention in relation to the applicant. Finally, examining the applicant’s rights under Article 8 of the Convention with regard to his expulsion, as foreseen in section 10 § 2(2) of the 2005 Asylum Act, it found that the applicant still had strong ties with Chechnya, and that his children were of a young and adaptable age.
28. On 1 December 2009, the Constitutional Court (Verfassungsgerichtshof) dismissed the applicant’s application for legal aid to lodge a complaint against the appeal decision of the Asylum Court, due to lack of prospects of success. The applicant nevertheless lodged a complaint and on 11 March 2010, the Constitutional Court refused to deal with the complaint.
29. That decision was served on the applicant’s counsel on 16 March 2010.
30. On 16 September 2010 the applicant lodged a complaint with the European Court of Human Rights and requested the application of an interim measure pursuant to Rule 39 of the Rules of Court.
31. On 23 September 2010, the Court applied the interim measure under Rule 39 and requested the Austrian Government to stay the applicant’s expulsion to the Russian Federation until further notice.
32. On 7 September 2010 the Graz Federal Police Authority (Bundespolizeidirektion Graz) issued an exclusion order against the applicant for a period of ten years. Complaint proceedings are pending with the Administrative Court (Verwaltungsgerichtshof).
33. In 1999, the Administrative Court examined Article 33(2) of the United Nations Convention 1951 relating to the Status of Refugees (“the 1951 Convention”) and stated that four conditions needed to be fulfilled cumulatively to allow for the expulsion of a refugee, despite a real risk of persecution: the refugee must have committed a particularly serious offence; his or her conviction must be final; the refugee must be especially dangerous; lastly the public interest in the refugee’s expulsion must outweigh the refugee’s interests for protection in the state granting asylum status (see judgment of the Austrian Administrative Court of 6 October 1999, no. 99/01/0288).
34. In a subsequent judgment, the Administrative Court analysed the condition of a “particularly serious offence” in view of international law and academic writing and stated as therein used definitions that it needed to be a “capital crime or particularly grave offence” that was “objectively and subjectively particularly serious”. It further referred to academic sources that claimed that Article 33(2) of the 1951 Convention was only “meant to be applied on extremely rare occasions” and as an “ultima ratio” that needed to be interpreted restrictively. Finally, the Administrative Court added for illustration that Germany used as a landmark for the application of Article 33(2) of the 1951 Convention the condition of a sentence of at least three years’ imprisonment (see judgment of the Austrian Administrative Court of 3 December 2002, no. 99/01/0449).
35. The Austrian 2005 Asylum Act provides that a foreigner is excluded from the award of asylum status if he or she has been convicted of a particularly serious offence, if that conviction was final, and if the foreigner presented a danger to society due to his or her criminal conduct. For the same reasons, it is lawful to lift an asylum status (see sections 6 § 1(4) and 7 § 1(1) of the 2005 Asylum Act).
36. If an asylum request is either dismissed or lifted, an asylum seeker can still be awarded subsidiary protection under section 8 of the 2005 Asylum Act if his or her expulsion, deportation or extradition constitutes a real risk of a violation of Articles 2 and 3 of the Convention.
37. In the event that an asylum request is dismissed or an asylum status lifted, the authority is obliged to declare at the same time that expulsion is permissible. However, it is not allowed to expel a person even pursuant to a negative asylum decision, if an expulsion would constitute a violation of Article 8 of the Convention (see sections 10 § 1 and 10 § 2(2) of the Asylum Act).
38. The main aim of that visit of the Council of Europe Commissioner for Human Rights was to review the human rights situation in the North Caucasus in the context of the regular field visits that the Commissioner Hammarberg, like his predecessor, conducted. The report noted that since the Commissioner’s previous visit in 2009, there had been an increased emphasis on the socio-economic development of the North Caucasus Federal District, and the implementation of a strategy aiming to improve the investment climate, fight corruption and address unemployment was ongoing. Despite these positive steps to improve the quality of life of the people living in the region, the situation in the North Caucasus continued to present major challenges for the protection of human rights. The Commissioner defined as some of the most serious problems in terms of the protection of human rights in the republics visited the issues of counter-terrorism measures, of abductions, disappearances and ill-treatment, of combating impunity and of the situation of human rights defenders. The report included the Commissioner’s observations and recommendations in relation to those topics.
39. With regard to counter-terrorism measures, the report concluded that the continuing challenges to security in the North Caucasus amounted to a major ongoing crisis, with consequences which extend beyond the region. While state authorities had a clear duty to protect the public from terrorism and the actions of illegal armed groups, counter-terrorism measures should be carried out in full compliance with human rights norms (see paragraph 33 of the report).
40. The Commissioner was further deeply concerned by the persistence of allegations and other information relating to abductions, disappearances and ill-treatment of people deprived of their liberty in the North Caucasus. While the number of abductions and disappearances in Chechnya might have decreased in the more recent period compared to 2009, the situation remained far from normal. Referring to the far-reaching effects of disappearances on a society as a whole, he supported the proposal of the Presidential Council for Civil Society Institutions and Human Rights for creating an interdepartmental federal commission to determine the fate of persons who have gone missing during the entire period of counter-terrorism operations in the North Caucasus. The Commissioner further emphasised the importance of the systematic application in practice of rules against the wearing of masks or non-standard uniforms without badges as well as against the use of unmarked vehicles in the course of investigative activities. He also encouraged a wide spread dissemination of all reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment among all stakeholders and reiterated the principle that evidence obtained through ill-treatment or other unlawful means should be treated as inadmissible in criminal proceedings (see paragraphs 48 et seq. of the report).
41. The Commissioner went on by stating that the persistent patterns of impunity for serious human rights violations were among the most intractable problems of the North Caucasus and remained a source of major concern to him. There have certainly been a number of positive steps, such as the establishment of the Investigating Committee structures, the increased support for victim participation in criminal proceedings, and the promulgation of various directives such as the Guidelines of the Supreme Court on victim participation and the instructions of the Prosecutor General and the Investigative Committee regarding the conduct of investigations. Despite these measures of a systemic, legislative and regulatory nature, the information gathered during the visit had led the Commissioner to conclude that the situation remained essentially unchanged in practice since his previous visit in September 2009. He emphasised the importance of effective investigations of possible violations by State actors of the right to life and the prohibition against torture and ill-treatment and called on the Russian leadership to deliver the unequivocal message that impunity would no longer be tolerated to help in creating the requisite determination on the part of the investigators concerned (see paragraphs 65 et seq. of the report).
42. As a conclusion for his fourth and last topic, the Commissioner stated that human rights activists continued to face serious obstacles in their work and could be exposed to significant risks. In settings which present considerable challenges to the protection of human rights, it was all the more important to ensure that those persons and organisations which engage in human rights monitoring activities were able to go about their work freely and without undue impediments (see paragraph 80 of the report).
43. Under the heading “Use of excessive force and other abuses in internal conflicts”, the Human Rights Report on Russia of the United States Department of State of 8 April 2011 stated that violence continued to spread in the North Caucasus republics, driven by separatism, inter-ethnic conflicts, jihadist movements, vendettas, criminality, and excesses by security forces. However, Chechnya saw a decrease in violence from the previous year. Government personnel, rebels and criminal elements continued also to engage in abductions in the North Caucasus. Officials and observers disagreed on the number of victims. Human rights groups believed the number of abductions was under-reported due to the reluctance of victims’ relatives to complain to the authorities for fear of reprisals. According to a report on the website Caucasian Knot, during the year approximately fifty people were kidnapped or unlawfully detained by armed parties in the North Caucasus, and only sixteen were freed. Allegedly, there was no accountability for government forces involved in abductions. There were continued reports that abductions were followed by beatings or torture to extract confessions and that abductions were conducted for political reasons. Security forces under the command of Chechen President Kadyrov allegedly played a significant role in abductions, either on their own initiative or in joint operations with federal forces. Human rights groups reported these forces were frequently suspected of being responsible for disappearances and abductions, including those of family members of rebel commanders and fighters.
44. Armed forces and police units reportedly frequently abused and tortured people in holding facilities where federal authorities dealt with rebels and people suspected of aiding them. In Chechnya and Ingushetia there continued to be reports of torture by government forces. There was also a report of a continued arson campaign. The Chechen arson campaign began in 2008, following explicit threats by Chechen President Kadyrov and Grozny Mayor Muslim Khuchiyev to burn down houses belonging to families whose sons were suspected of joining the insurgency. Human rights activist Natalya Estemirova was working on a documentary on the arson campaign when she was killed in 2009.
45. With regard to the overall security situation, the Swiss Refugee Council report of 12 September 2011 stated that general violence increased in 2010 in Chechnya, Dagestan and Ingushetia. Even though the number of people killed decreased, the number of injured civilians increased, which showed that civilians were affected more and more by the armed conflict between the security services and the rebels. The Russian President Medvedev was quoted as saying on 19 November 2010 that the situation in the North Caucasus had not in practice improved. The widespread impunity further encouraged the arbitrariness exercised by the security services (see page 5 of the report).
46. The main human rights violations happened by way of arbitrary detention to obtain confessions and information about rebels, torture and ill-treatment in secret detention centres, kidnappings and disappearances executed by members of federal and local security services and criminal groups for ransom, executions, the arson campaign targeting family members of alleged rebels, and lack of financial compensation, for example for burned houses and property. Those most at risk belonged to the following groups: NGO and human rights activists; victims, their lawyers, witnesses and their families; journalists; government opponents and returnees from abroad and their relatives. The report noted that returnees from abroad were generally immediately detained, questioned about their stay abroad and sometimes tortured. The questioning did not necessarily stop after their release from detention. Returnees and their relatives had to expect arbitrary detention at any time. In individual cases, criminal suspicions were invented so that returners could be ill-treated as a form of punishment for leaving Chechnya in the first place (see pages 10 to 17 of the report).
47. Relying on statistical data provided by the Memorial NGO, the report from the Danish Immigration Service of October 2011 showed that the year 2008 saw a return to the old tactics of abductions and disappearances, and the number of abducted people again increased in 2009 to ninety-three recorded cases. Furthermore, the number of punitive house burnings increased dramatically. Newer data were not available, since Memorial’s work was severely hampered due to Natalya Estemirova’s abduction and killing in 2009 and the subsequent suspension of the organisation’s work for six months. However, Human Rights Watch reported fewer human rights violations in Chechnya in 2010 and early 2011. Both NGOs stated that after Estemirova’s death it had become increasingly difficult to obtain reliable information about the security situation in Chechnya and that victims of beatings, threats and detention had become increasingly afraid to report those incidents to NGOs or official investigation authorities (see pages 52 to 54 of the report).
48. As particular groups at risk of being exposed to torture, disappearances, kidnappings and extrajudicial killings the report enumerated members of rebel groups and any person suspected of supporting or sympathising with these groups; relatives and friends of supporters or sympathisers of rebel groups; young, healthy men; young women; persons who lodge complaints with the Prosecutor’s Office, NGOs or the European Court of Human Rights and returnees from abroad. With regard to the last-mentioned group, there were reports that people returning from abroad were stopped by law-enforcement officials who requested money or kidnappings for ransom of returnees. They further risked being suspected of holding information about anti-Kadyrov elements of the Chechen diaspora in Western European countries and were often interrogated on their return to Chechnya. A returnee would need to explicitly unite with the government and Kadyrov’s policies (see pages 56 et seq. of the report). On the other hand, the International Organization for Migration (“the IOM”) in Russia reported on voluntary returns to Chechnya which were considered a success. In 2010 the IOM assisted approximately 2,000 returns to the North Caucasus. The IOM conducted regular visits to Chechnya and met returnees there. The organisation conceded however that it was difficult to assess the situation in Chechnya on such short visits. It was also emphasised that the number of returnees in a particular IOM project might be too low to fully reflect the situation of returnees in general (see pages 62 et seq. of the report).
49. With regard to the risk to former members of the illegal armed groups, the report quoted an anonymous Western embassy source stating that active participants in the fighting against the Russian federal army in 1994-96 who have not since been militarily active or in opposition to Kadyrov’s regime were not at risk of being persecuted by the present Chechen authorities (see page 62 of the report).
50. With regard to Chechens returning from other countries, the ECRE Guidelines of March 2011 stated that upon their return they were often suspected of either being involved in illegal armed groups, or at the very least of having significant resources. They encountered suspicion, became victims of extortion and had criminal cases fabricated against them. Returnees were reportedly called to meetings with the Federal Security Services and the Ministry of the Interior, where they were questioned, often with threats and ill-treatment and demands for payment. Young men especially were made to collaborate with the security services. Those who spoke out about the regime were most at risk, for example applicants to the European Court of Human Rights, as well as those who appealed to national courts, federal authorities or NGOs (see pages 54 et seq. of the report).
NON_VIOLATED_ARTICLES: 3
8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-98684
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ASPROFTAS v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 8;No violation of Art. 14;No violation of Art. 3;No violation of Art. 5;No violation of Art. 6;No violation of Art. 7;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14+5;No violation of Art. 14+6;No violation of Art. 14+7
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 7. The applicant was born in 1963 and lives in Nicosia.
8. The applicant claimed that his home had been in Trypimeni, a village in the District of Farmagusta (northern Cyprus). He had lived there with his parents, who ran a grocery store, and six siblings in a house with a yard (covering an area of 532 square metres), registered under plot no. 81, sheet/plan 13/40 and owned by his father. On 7 September 1999, the applicant's father transferred ownership of this house to Mr Georgios Asproftas (the applicant's brother) by way of gift.
9. Since the 1974 Turkish intervention, the applicant has been deprived of his home, which was located in the area under the occupation and control of the Turkish military authorities. The latter had prevented him from having access to and from using the house at issue.
10. On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below) also took part.
11. According to an affidavit sworn by the applicant before the Nicosia District Court on 4 January 2000, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus, in support of the missing persons and to protest against human rights violations. The applicant joined the demonstration as a reporter for the newspaper Exormisis.
12. During the demonstration dozens of armed Turkish policemen and soldiers moved towards the demonstrators. The UN peacekeeping cordon broke up and vanished. The Turkish forces started to beat some women with batons, to kick them and drag them by the arms, legs and hair. While he was trying to help some of these women, the applicant was grabbed and beaten by Turkish policemen. He was hit in the face and other parts of the body and taken at gunpoint with others who had also been arrested during the demonstration. His photographic equipment was seized despite him showing his press card. He was then led to a bus through an angry crowd of 200-300 civilians who shouted abuse and threats. As the applicant was walking without police protection, the crowd had an opportunity to rush at him. He was dragged and beaten until two policemen came and accompanied him onto the bus. He was transported to the so-called “Pavlides Garage”, where a body search was carried out and all his personal effects were taken. The crowd outside the garage was shouting and throwing stones, some of which came through the roof.
13. While at the garage the applicant saw a policeman in civilian clothes who told him “Turkey will kill you”. Sometime around midnight he was interrogated by an officer who spoke perfect Greek. The applicant did not give wholly accurate answers to some of the questions, preferring to lie about some of the detail. The interrogator then started a political discussion and tried to convey his own ideas to the applicant in a very friendly and diplomatic manner. The applicant refused to sign a statement written in Turkish, as he considered it would have been tantamount to recognising the “Turkish Republic of Northern Cyprus” (the “TRNC”). When one of the women detainees (Mrs Vrahimi – see application no. 16078/90) was beaten, all the other prisoners remained silent, fearing for their fate. At around 2.30 a.m. on 20 July 1989 the applicant and some other men were ordered onto a police bus. He was taken to the Seray Police Station, where, after a body search, he was held in a cell that was filthy, dirty and dark. During his stay in the cell the applicant heard the screams of other demonstrators.
14. At around 2.00 p.m. the same day, he was given back his personal effects and taken to court together with seven other prisoners. No proper translation was provided at the hearing. A policeman acted as translator but translated only part of what the judge and the witnesses said. The accused explained why they were taking part in the demonstration and in what capacity. The applicant was remanded in custody for two days and then taken to Ortakeuy Prison, where all his personal effects were removed again. He was put with other men in a dormitory block. An hour later, he was blindfolded and led to another area of the prison where he was interrogated by four or five army officers who could not speak any Greek. A translator was present. After the interrogation, which touched on political and military subjects, he was taken to another room to talk to a television anchorman.
15. On 21 July 1989 the applicant was again taken to court together with nine other people. He had no legal representation and no proper interpretation was provided. The interpreter had difficulties in translating some of the words and was occasionally helped by the television anchorman. One of the accused (the Bishop of Kitium) spoke on behalf of the others and said they would only accept as defence counsel a Greek-Cypriot or a UN lawyer. The trial judge replied that she could only appoint a lawyer registered with the “TRNC” bar association. The accused pleaded “not guilty” and stated that they did not recognise the legitimacy of the “TRNC” and of its tribunals. Four witnesses were called by the prosecution. The Bishop of Kitium put some questions to the first witness. Those considered of a political character were ruled inadmissible by the trial judge. The Bishop then made the following statement: “since cross-examining the pseudo-witnesses of your pseudo-court may be regarded as indicating that we recognise the procedure, we say that we have nothing else to say and we shall not cross-examine any other pseudo-witness”. From then on the accused did not participate in the procedure. After the trial hearing, the applicant and his co-accused were taken back to prison. Their pictures were taken.
16. On 22 July 1989 the applicant was taken to court again. A baying crowd gathered outside the courtroom. He was sentenced to three days' imprisonment and a fine of 50 Cypriot pounds (CYP) – approximately 85 euros (EUR) – with five additional days in prison in default of payment within 24 hours. There was an angry crowd in the court area shouting, swearing and making obscene gestures at him and the other detainees.
17. The applicant was detained in Ortakeuy Prison from 24 until 28 July 1989. During this period he refused to eat anything in order to protest against the prison director's refusal to give to the Bishop of Kitium the church vestments and holy vessels, which had been sent in order to allow the Bishop to celebrate mass. On 26 July 1989 the applicant was locked in an isolation cell as punishment for refusing food. That cell was extremely small and unbearably hot (40-60oC).
18. On 28 July 1989 the applicant was released in front of journalists and television cameras. He was handed over to the UN soldiers at the last Turkish sentry box and transported back to the southern part of Cyprus.
19. In support of his claim of ill-treatment, the applicant produced five medical certificates, which read as follows:
(a) Certificate issued on 16 December 2002 by Dr. Andreas G. Constantinides, consultant surgeon at the Evangelistria Medical Centre in Nicosia:
“[Mr Tasos Asproftas] is suffering from osteoarthritis of the cervical cord. I have recommended that he should stay at home and undergo physiotherapy from 17/12 until 28/12/02.”
(b) Certificate issued on an unspecified date by Dr. S.C. Sergiou, orthopaedic surgeon in Larnaka:
“Mr Tasos Asproftas is suffering from cervical disc disease and is unable to work from 3/1/03 until 12/1/03.”
(c) Certificate issued on 9 January 2003 by the medical and public health services – X-rays department – of the Republic of Cyprus:
“Rear central hernia of the disc. Rear lateral right osteophyte in the area of chronic hernia of the disc A4-A5.
Rear lateral left osteophyte in the area of chronic hernia in discs A5-A6 and A6-A7.
Straight cervical spine due to muscles' spasm.
Stenosis of the middle sections of the spinal cord A4-A5, A5-A6.”
(d) Certificate issued on an unspecified date by Dr. Nicos Chr. Spanos, neurosurgeon in Nicosia:
“It is recommended that Mr Asproftas be granted sick leave from 13.1.03 until 31.1.03 for investigation and treatment of the cervical middle spinal disc.”
(e) Certificate issued on 7 February 2003 by Dr. Nicolas C. Christodoulou, specialist in physical medicine and rehabilitation sport medicine in Limassol:
“Diagnosis: Severe left cervicobranchial syndrome (rapiculitis C7)
Instructions for physiotherapy: approximately 12 sessions.
1. Interferential current
2. Short wave diathermy
3. Mild cervical massage.”
20. The applicant alleged that the above health problems were the result of the savage blows he had received from the Turkish policemen, soldiers and civilians in July 1989.
21. The Government alleged that the applicant had participated in a violent demonstration with the aim of inflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences.
22. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council.
23. The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. He pleaded not guilty, but did not give evidence and declined to use the available judicial remedies. He was asked if he required assistance from a lawyer registered in the “TRNC”, but refused and did not ask for legal representation. Interpretation services were provided at the trial by qualified interpreters. All the proceedings were translated into Greek.
24. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia:
“A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows:
(a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women;
(b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May;
(c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees;
(d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council's deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.”
25. The applicant produced 21 photographs taken at different times during the demonstration on 19 July 1989. Photographs 1 to 7 were intended to show that, notwithstanding the deployment of the Turkish-Cypriot police, the demonstration was peaceful. In photographs 8 to 10 members of the Turkish-Cypriot police are seen breaking up the UNFICYP cordon. The final set of photographs show members of the Turkish-Cypriot police using force to arrest some of the women demonstrators.
26. The English translation of the “TRNC” Nicosia District Court's judgment of 22 July 1989 indicates that the applicant, together with 9 other men, was charged with two offences: entering “TRNC” territory without permission (contrary to sections 2, 8 and 9 of Law no. 5/72 – see paragraph 33 below) and entering “TRNC” territory other than through an approved port (contrary to subsections 12(1) and (5) of the Aliens and Immigration Law – see paragraph 34 below).
27. The judgment was given in the presence of the accused and of an interpreter. The trial judge noted the following:
(i) the accused did not accept the charges against them and stated that they did not wish to use the services of a lawyer registered in the “TRNC”;
(ii) the public prosecutor called five witnesses, whose statements were translated into Greek for the accused's benefit;
(iii) the witnesses (mainly police officers on duty at the time of the demonstration) declared that the accused had illegally entered the “TRNC” territory, shouted abuse at the Turkish-Cypriot forces and resisted arrest by pulling and pushing; knives and other cutting objects had been found in the bags of some of the demonstrators who had been arrested;
(iv) the applicant stated that he was a journalist, that he had been arrested while he was following the demonstration even though the peace keeping forces had given him permission to do so;
(v) the accused had been told that they could cross-examine witnesses in turn and, if they so wished, choose one of their number to cross-examine the witnesses on behalf of all the accused; however, they had not done so; one of the accused had put a few questions to one of the prosecution witnesses;
(vi) before the “TRNC” District Court passed sentence, the Bishop of Kitium, speaking on behalf of all the accused, made a statement, saying that their struggle was peaceful, that their aim was to encourage Greek and Turkish-Cypriots to live together in peace, that they carried no weapons and that they had asked for UN protection;
(vii) relying on statements by the prosecution witnesses, which had not been undermined by the statements made by some of the accused, the “TRNC” District Court came to the conclusion that the accused had crossed the borders of the “TRNC” at an unapproved entry point and without permission and had resisted by various means the UN and Turkish forces which had tried to stop them;
(viii) the prosecution had proved its case beyond reasonable doubt, so that the accused were guilty on both counts;
(ix) in deciding on the sentence, the “TRNC” District Court had taken into account the seriousness of the offence, and the fact that the accused had shown no remorse and continued to deny the validity of the “TRNC”.
28. Section 70 of the Cypriot Criminal Code reads as follows:
“Where five or more persons assembled with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly.
It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.”
29. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year.
30. Section 80 of the Criminal Code provides:
“Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arm or weapons shall be forfeited.”
31. According to Section 82 of the Criminal Code, it is an offence to carry a knife outside the home.
32. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states:
"(1) Any officer may, without warrant, arrest any person -
...
(b) who commits in his presence any offence punishable with imprisonment;
(c) who obstructs a police officer, while in the execution of his duty ..."
33. Section 9 of Law No. 5/72 states:
"... Any person who enters a prohibited military area without authorization, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished."
34. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows:
“1. No person shall enter or leave the Colony except through an approved port.
...
5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.”
NON_VIOLATED_ARTICLES: 11
13
14
3
5
6
7
8