ITEMID: 001-59222
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF LUCÀ v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 8. The applicant, who was born in 1955, is currently detained in Cosenza Prison.
9. On 25 October 1992 N. and C. were arrested by carabinieri from Roccella Jonica (Reggio di Calabria) and found to be in possession of cocaine.
10. On 25 and 26 October 1992 N. was questioned, initially by the carabinieri, and subsequently by the Locri public prosecutor (Reggio di Calabria). He said that he had obtained part of the drugs from C. for his own use; the remainder belonged solely to C. He added that on the day of their arrest, C. had accompanied him to certain people’s homes to try to buy drugs. After the evening meal they had gone to the applicant’s home. The applicant had said that he was prepared to supply them with five hundred grams of cocaine to be delivered a few days later, as he was not willing to accept deferred payment and could not go out after 8 p.m. to get the drugs.
11. N. was questioned by the carabinieri as someone who was helping them with their inquiries (“persona che puó riferire circostanze utili ai fini delle indagini”), not as an accused. For that reason, he was not assisted by a lawyer. However, the Locri public prosecutor subsequently decided that N. should be regarded as a “suspect” (“indagato”), and therefore questioned him in that capacity.
12. By an order of 12 February 1993 the Locri investigating judge committed the applicant, C. and two other suspects, Mr A. and Mr T., for trial before Locri Criminal Court for drug trafficking. A. was also accused of unlawful possession of an offensive weapon. Separate proceedings were instituted against N. for possession of drugs.
13. At the hearing on 17 July 1993, N. was called to give evidence as a person accused in connected proceedings (“imputato in procedimento connesso”). However, he chose to remain silent as he was entitled to do by virtue of Article 210 of the Code of Criminal Procedure (hereafter, “the CCP”).
14. The lawyers acting for the accused argued that Article 513 of the CCP was unconstitutional since it was incompatible with Articles 3 and 24 of the Italian Constitution – which guaranteed the equality of citizens before the law
and the right to defend oneself at all stages of the proceedings – and Article 6 of the Convention. They observed in particular that, as construed by the Constitutional Court, Article 513 of the CCP laid down that if a person accused in connected proceedings exercised his right to remain silent, the court could read and use any statements made by him to the public prosecutor or to the investigating judge during the investigation. As a result, the accused was deprived of any opportunity of examining that person or of having him examined.
15. On the same day the Criminal Court dismissed as manifestly unfounded the objection that the provision was unconstitutional and ordered that the record of the statements made by N. to the public prosecutor should be read out. It noted that the statutory right to remain silent was intended to protect an accused, who could not be required to make statements that could be used in evidence against him. Further, the rule that statements made during preliminary investigations could be read and used had been established by the Constitutional Court itself in its judgment no. 254 of 3 June 1992.
16. In a judgment of 7 March 1994, which was lodged with the registry on 1 June 1994, Locri Criminal Court sentenced the applicant to eight years and four months’ imprisonment and a fine of 54,000,000 Italian lire (approximately 183,000 French francs). C., A. and T. were also given prison sentences ranging between six and nine years.
17. The Criminal Court noted at the outset that the main evidence against the accused was the statements which N. had made to the public prosecutor, since the statements made to the carabinieri were inadmissible under Article 513 of the CCP. It also observed that having regard to N.’s personality and the spontaneity and precision with which his statements had been made, his depositions should be regarded as credible. The Criminal Court noted that N. had recognised a photograph of the applicant and had given an accurate description of his home and the route followed to get there. In addition, the applicant already had previous convictions under the drug-trafficking legislation and was under judicial supervision (sorveglianza speciale). He was prohibited from leaving his home after dusk, and that was a possible explanation for his unwillingness to go out after 8 p.m. Furthermore, the amount of cocaine found in C.’s possession showed that C. had contacts with drug dealers and meant that N’s account of his visit to the applicant’s home was probably true. It also confirmed that the negotiations that had started were genuine.
18. On 13 July 1994 the applicant appealed to Reggio di Calabria Court of Appeal. He contested, inter alia, the reliability of N.’s statements and complained that they had been made in breach of the adversarial principle and in the absence of a judge or of the defendants’ lawyers.
19. In a judgment of 7 November 1994, Reggio di Calabria Court of Appeal followed in substance the arguments set out in the order of 17 July 1993. It upheld the decision of the court below concerning the applicant, while reducing A.’s sentence.
20. On 18 February 1995 the applicant and his co-accused appealed to the Court of Cassation. T. relied, inter alia, on Article 6 § 3 (d) of the Convention contending that N’s statements should have been declared inadmissible in evidence.
21. In a judgment of 19 October 1995, which was lodged with the registry on 3 November 1995, the Court of Cassation dismissed the appeals of the applicant and his co-accused, holding that the grounds given by the Court of Appeal for its decision on all the disputed issues relating to the drug-trafficking count had been reasonable and correct. It overruled the impugned decision with regard to A.’s conviction for being unlawfully in possession of an offensive weapon and remitted the case to Catanzaro Court of Appeal.
22. The Court of Cassation observed among other things that Article 6 § 3 (d) of the Convention concerned “ the examination of witnesses, who ... are required to tell the truth, not the examination of the accused, who are entitled to defend themselves by remaining silent or even by lying”. Further, since all States that were party to the Convention had an obligation by relevant domestic legislation to regulate the examination of witnesses, it was “obvious that ... when a witness refused to give evidence, statements made to the public prosecutor ... had to be produced for the court’s file”.
23. The circumstances in which statements made by an accused or co-accused before trial may be admitted in evidence are set out in Article 513 of the CCP.
24. As initially worded, the first paragraph Article 513 of the CCP provided that statements made by an accused before trial could by admitted in evidence by the trial court if the accused failed to appear or refused to repeat the statement.
25. On the other hand, the second paragraph of Article 513 concerned statements made before trial by persons accused in connected proceedings. Unlike the position under the first paragraph, the second paragraph did not permit the trial court to admit such statements in evidence if the accused exercised his right to remain silent.
26. In its judgment no. 254 of 1992, the Constitutional Court declared the second paragraph of Article 513 unconstitutional on the ground that, as the statements referred to therein could not be admitted in evidence at trial if the accused in connected proceedings remained silent, there was an unjustified difference in treatment between those statements and statements of the type referred to in the first paragraph. The Constitutional Court thereby enabled trial courts to admit statements made by a co-accused in connected proceedings, irrespective of whether the person against whom they were being used had been given the opportunity of examining the maker of the statement or of having him examined at any stage in the proceedings. Furthermore, the Constitutional Court made no reference to the procedural safeguards embodied in Article 6 of the Convention or to the criteria established by the Court’s case-law.
27. By Law no. 267 of 7 August 1997 Parliament amended Article 513 with a view to making it consistent with the adversarial principle. In substance, statements made by a co-accused or by an accused in connected proceedings could no longer be used against another person without his consent if the maker of the statement exercised his right to remain silent.
28. However, in its judgment no. 361 of 2 November 1998 the Constitutional Court again declared Article 513 unconstitutional, this time in its entirety. It held that precluding the trial court from admitting such statements in evidence if the maker remained silent entailed a risk that the court would be deprived of evidence that could assist it in reaching its decision, a risk that was dependent solely on the decision of the maker of the statements.
29. Following that decision Parliament adopted the Constitutional Amendment Act no. 2 of 23 November 1999 whereby the principle of a fair trial was embodied in the Constitution itself. Article 111 of the Constitution, as now worded, reads:
“1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with rules of procedure.
2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law.
3. In criminal proceedings, the law shall guarantee that the person accused of an offence shall be informed promptly and in confidence of the nature and grounds of the charge against him; that he shall have adequate time and facilities for the preparation of his defence; that he shall be given an opportunity before the court to examine or to have examined anyone giving evidence against him, to obtain the attendance and examination of any defence witnesses on the same conditions as witnesses called by the prosecution and to obtain the production of any other evidence in his favour; and that he will have the assistance of an interpreter if he cannot understand or speak the language used at the trial.
4. The principle of adversarial process shall be observed during criminal proceedings with regard to the examination of evidence. An accused’s guilt cannot be established on the basis of statements made by a person who has freely and wilfully eluded examination by the accused or his lawyer.
5. Rules shall be made governing the circumstances in which adversarial examination of the evidence shall be dispensed with either because the accused has consented, or because there is due evidence that such examination is objectively impossible or that there has been unlawful conduct.”
30. In Law no. 35 of 25 February 2000, the Italian parliament clarified how the amended Article 111 of the Constitution would apply to trials under way. In particular, the former rules continue to apply in certain circumstances.
Further, a consolidating bill implementing that constitutional amendment was adopted by Parliament on 14 February 2001. Among other things, this implementing legislation amends Article 513 CCP by providing that if the maker of statements made before the trial exercises his right not to answer questions, his statements will, as a general rule, be admissible in evidence if the parties agree. However, the former rules will continue to apply in at least some circumstances to trials that are under way.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-83537
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HAMER v. BELGIUM [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 6 - Right to a fair trial;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Baka;Antonella Mularoni;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1955 and lives in Amsterdam.
7. In 1967 her parents built a holiday home without planning permission on land situated in Zutendaal (Belgium). According to the applicant, however, the house was built in 1962.
8. Following her mother’s death, a deed of partition was drawn up on 6 January 1986 between the applicant (who, inheriting from her mother, became the remainderman of half of the property) and her father. That deed, which specifically mentions the existence of the building, was registered with the Mortgage Registrar at the Ministry of Finance and a registration fee was paid.
9. The applicant’s father died on 21 August 1993 and she became the full and sole owner of the entire property. On inheriting the property, the applicant specifically declared in the notarised deed of distribution that the plot was a holiday home. The deeds were registered with the local authorities and the applicant paid the inheritance tax. From then on, the applicant paid an annual property tax (précompte immobilier) and secondresidence tax on the holiday home. According to the applicant, it went without saying that her father had also paid the relevant taxes on the house.
10. The applicant carried out renovations on the house costing 50,000 euros (EUR) and had the trees on the adjoining land felled.
11. In 1994 the partly government-controlled Flemish water-supply company carried out works to connect the house to the drainage and water-supply systems. There was no reaction from the local authorities at that time.
12. On 27 January 1994 a report was drawn up by a police officer who noted that trees had been felled on the property in breach of Article 81, paragraph 3, of the Flemish forestry decree of 13 June 1990.
13. On 22 February 1994 a report was drawn up by a police officer who noted that the holiday home had been erected in 1967 without planning permission and that it was located in a forested area in which no such permission could be issued. The report also noted that the exterior and roof of the house had been renovated.
14. On 8 August 1994 the applicant voluntarily reported to the police to make a statement, which was placed on record.
15. By a decision of 11 October 1994, the municipal council (collège des bourgmestre et échevins) asked the planning inspector to issue an opinion on any remedial action to be taken. By a letter of 19 June 1995, the planning inspector applied to the public prosecutor for the site to be restored to its original condition.
16. Two reports dated 26 March 1996 and 8 January 1997 mention that the police had sought to question the applicant again but had found it difficult to contact her and that she was temporarily unable to travel for health reasons.
17. At the request of the Tongeren public prosecutor, the applicant was questioned in Amsterdam on 25 March 1997 by a Dutch police officer. A report was drawn up on that occasion.
18. On 18 May 1998 the public prosecutor asked the local police to confirm whether or not the building in issue still existed.
19. A report of 16 June 1998 established that the situation had not changed.
20. The Tongeren public prosecutor issued the applicant with a summons to appear in court on 12 May 1999, firstly, for having maintained a holiday home, erected without planning permission, between 27 January 1994 and 28 April 1999 and, secondly, for having felled approximately fifty pine trees in breach of the above-mentioned Flemish forestry decree. According to the applicant, there were at least four other houses built without permission in the same forested areas, which had neither been the subject of reports establishing that an offence had been committed nor of prosecution.
21. On 25 June 1999 the Tongeren Criminal Court issued an interlocutory judgment in absentia, since the applicant had not been duly summoned.
22. On 6 January 2000 she was once again summoned to appear before the Tongeren Criminal Court.
23. On 26 May 2000 that court acquitted the applicant of the above-mentioned charges. It held in particular that after twenty-seven years the applicant could legitimately assume, as could any reasonably prudent citizen, that maintaining the building in issue would no longer constitute an offence. The court further held that it did not have jurisdiction to deal with the planning inspector’s application to have the land restored to its original condition. The prosecutor appealed.
24. By a judgment of 6 February 2002, the Antwerp Court of Appeal upheld the judgment in so far as the applicant was acquitted of the charge of felling the trees. However, it found her guilty of maintaining a building erected without planning permission, pursuant to Article 146 of the town and country planning decree of 18 May 1999, and changed the impugned period to between 22 August 1993 and 28 April 1999, having regard to the date on which the applicant’s father had died.
25. In her submissions the applicant had alleged a violation of the reasonable-time requirement under Article 6 § 1 of the Convention, considering that the criminal proceedings had been conducted beyond that time-limit and that after such a long period there had been an interference with her rights of defence, in particular since it had been impossible for her to prove that the house had been built before 1962. She had also criticised the failure of the authorities to act, pointing out that her parents had paid the second-residence tax, that a notarised deed mentioning the building had been registered by the authorities, that she had paid inheritance tax on property that included the building, that extensive infrastructure works had been carried out by a partly government-controlled company with no reaction on the part of the local authorities and that for many years no legal action had been taken. She had also alleged a violation of the principle of protection of the legitimate expectations of citizens and complained of discrimination in comparison with neighbouring property owners.
26. The Court of Appeal found that a deed of partition drawn up in 1986 and signed by the applicant established that the holiday home had been built in 1967 and concurred furthermore with the findings contained in the report drawn up on 22 February 1994. The Court of Appeal considered that the applicant knew or should have known that the building had been erected without planning permission. As a reasonable and prudent citizen, and even taking account of the attitude of the authorities as she had described it, the applicant could not have inferred that the situation was totally legal and that no proceedings would be brought against her. The Court of Appeal found that the applicant had acted most imprudently by proceeding to renovate the premises after the death of her father. It also found that the fact that four other dwellings had also been erected in the same forested area without planning permission and without their owners being prosecuted did not amount to discrimination.
27. With regard, more particularly, to compliance with the reasonable-time requirement, the Court of Appeal found that the length of the criminal proceedings had been unreasonable but that this did not alter the fact that the offence had been established and that the applicant had, since 1994, been liable to prosecution. Considering, firstly, that overrunning the reasonable time did not cause the proceedings to become time-barred and, secondly, that , and in particular of the fact that the applicant had no criminal record, the Court of Appeal merely pronounced a finding of guilt against the applicant.
28. Referring to the planning inspector’s application lodged pursuant to Articles 149 et seq. of the above-mentioned decree of 18 May 1999, which it deemed to be reasonable, the Court of Appeal ordered the applicant to restore the site to its former condition and to demolish the building within one year of the judgment becoming final, with a fine of EUR 125 per day’s delay. It also authorised the municipal council or the planning inspector to enforce the order at the expense of the applicant in the event of non-compliance with the demolition order. The applicant was also ordered to pay the costs and expenses of the proceedings.
29. The applicant appealed on points of law.
30. By a judgment of 7 January 2003, the Court of Cassation dismissed the appeal.
31. On grounds based on a violation of Article 6 § 1 of the Convention, the applicant claimed that the length of the criminal proceedings had been unreasonable and it could therefore be concluded that they were time-barred.
32. The Court of Cassation held that exceeding a reasonable time did not cause criminal proceedings to become time-barred and that, consequently, the Court of Appeal had not been bound to base its decision on that point.
33. The applicant also submitted that, bearing in mind that the Court of Appeal had merely pronounced a finding of guilt against her, she could not be bound to restore the site to its original condition or to pay the costs of the proceedings.
34. The Court of Cassation responded that restoration of the site to its original condition did not constitute a penalty but a civil measure, in the same way as the payment of the full costs of the proceedings at the fixed rate, and that consequently these measures were not inconsistent with a simple finding of guilt.
35. The court also dismissed the ground based on Article 8 of the Convention and Article 1 of Protocol No. 1 whereby the applicant alleged that after a thirty-year period during which they had tolerated the situation, thus creating an apparently lawful situation, the authorities could no longer rely on the public interest to justify interference with the peaceful enjoyment of her property rights and respect for her private life.
36. The Court of Cassation found that the Court of Appeal had held, in its unfettered discretion, that the applicant had been most imprudent in maintaining the house without planning permission, that the measure sought by the planning inspector was reasonable and that, consequently, that ground of appeal was inadmissible.
37. The house was demolished in July 2004 pursuant to an enforcement order. According to an expert, the value of the house at the material time was EUR 62,635. The demolition costs amounted to EUR 3,025.
38. The Flemish town and country planning decree of 18 May 1999 (which came into force on 1 October 1999) provides as follows.
The Flemish Government shall determine the conditions that must be met by an application in order to be considered complete. Where the application concerns works, operations or modifications as referred to in Article 158, the contractor shall mention specifically which works, operations or modifications have been carried out, made or continued without permission and for which of these works, operations or modifications planning permission is being sought.
The Flemish Government may allow joint applications for permission to be made to the local authority under this decree and under the decree of 28 June 1985 concerning environmental permits. The Flemish Government may determine the conditions and procedures for compiling the application file.
...
Anyone who
1. carries out, continues or maintains the operations, works or modifications defined in Articles 99 and 101, either without advance permission or in contravention of that permission, or after the expiry, cancellation or lapse of the term of that permission, or where that permission has been suspended
...
shall be liable, on conviction, to a prison sentence of between eight days and five years and a fine of between (EUR 26) and (EUR 400,000) or either of these penalties.
All the provisions of Book 1 of the Criminal Code, including Chapter VII and Article 85, shall apply to the offences referred to in Article 146.
Without prejudice to the powers of senior police officers and their assistants [agents et officiers de police judiciaire], the planning inspectors, the other civil servants appointed by the Flemish Government, and the civil servants of the province and the municipalities of the province appointed by the governor thereof shall be authorised to detect the offences defined in this part and to place them on record. The reports establishing the offences described in this part shall remain valid until any evidence to the contrary is produced.
The senior police officers, their assistants and the civil servants referred to in the first paragraph shall have access to the work site and to the buildings in order to carry out any inspections and draw up any observations as may be necessary.
...
§ 1. In addition to the penalty, and upon the request of the planning inspector or the municipal council of the municipality on whose territory the works, operations or modifications referred to in Article 146 have been carried out, the court shall order that the site be restored to its original condition or that the illegal use cease and/or the execution of any construction or adaptation works and/or payment of a fine equal to the capital gain accrued on the property subsequent to the offence.
The capital gain can no longer be claimed in the following cases:
1. in the event of repetition of an offence that has been made punishable by this decree;
2. in the event of failure to comply with a cessation order;
3. where the offence causes unacceptable planning-related nuisance for neighbours;
4. where the offence constitutes a serious breach of the essential planning requirements for intended use under a spatial development or land-use plan.
The Flemish Government may determine other conditions and procedures in cases in which the capital gain cannot be claimed.
Where the action brought by the planning inspector and that brought by the municipal council do not coincide, the action brought by the first-mentioned shall take priority.
For execution of the remedial measures, the court shall set a time-limit of a maximum of one year and, upon expiry thereof, at the request of the planning inspector or the municipal council, a fine per day’s delay in implementing the remedial measure.
§ 2. An action for remedial measures shall be lodged with the prosecutor’s office by ordinary letter, on behalf of the Flemish region or the municipal council, by the planning inspectors and officials of the municipal council.
§ 3. Where the action involves an application for construction or adaptation works and/or payment of an amount equal to the capital gain, explicit reasons must be given for that action in terms of town and country planning, compatibility with the immediate environment and the seriousness of the offence.
§ 4. The application shall mention at least the relevant requirements and give a description of the situation prior to the offence. A recent extract from the planning register shall accompany the application.
The Flemish Government may establish additional conditions which must be met by the letter referred to in § 2, first sub-paragraph, and the file accompanying that letter.
§ 5. The court shall determine the amount of the capital gain.
Where the offender is ordered to pay an amount equal to the capital gain, he or she may validly discharge his or her obligations by restoring the site to its original condition or by ceasing the adverse use in the year following the judgment.
The Flemish Government shall determine the method for calculating the amount to be claimed and payment of the capital gain.
Where an action for remedial measures brought by the civil party on the one hand and the planning inspector or the municipal council on the other do not coincide, the court shall determine the necessary remedial measure that it deems appropriate.
The planning inspector and the municipal council may also, before the court of first instance, sitting as a civil court, in the jurisdiction in which the works, operations or modifications referred to in Article 146 are wholly or partially carried out, apply for remedial measures as defined in Article 149 § 1. The provisions of Article 149 § 1, second sub-paragraph, §§ 3, 4 and 5 and Article 150 shall also apply.
The offender shall immediately inform the planning inspector and the municipal council, by registered mail or by delivery against receipt, when the reparation measure imposed has been voluntarily carried out. Following a site inspection, the planning inspector shall immediately draw up a report of his findings.
The planning inspector shall send a copy of the report of his findings to the municipal authority and to the offender.
Unless there is any evidence to the contrary, the report of findings alone shall constitute evidence that the remedial measure has been performed and of the date thereof.
Where the site is not restored to its original condition, adverse use is not ceased or construction or adaptation works are not carried out within the time-limit set by the court, the decision of the court referred to in Articles 149 and 151 shall order that the planning inspector, the municipal council and, as the case may be, the civil party may proceed to enforce the judgment themselves.
The authority or individual enforcing the judgment or order shall be authorised to sell, transport and remove the materials and objects generated by the restoration of the site to its original condition or the cessation of adverse use.
Any offender still in default shall be bound to indemnify all enforcement costs, less the proceeds from the sale of the materials and items, upon presentation of a statement, issued by the authority referred to in sub-paragraph two, or budgeted and declared enforceable by the civil court judge dealing with attachment of property.
...
Article 158
Where the offence referred to in Article 146 does not consist of the carrying out of works or the conduct or continuation of operations or modifications that are in contravention of spatial development or land-use plans or execution of the rules laid down by virtue of this decree or the requirements of a permit to divide into plots, and where either planning permission is subsequently obtained with a view to such works, operations and modifications, or the site is restored to its original condition and the adverse use is terminated, the planning inspector may reach a settlement with the offender provided that he has paid the amount agreed in settlement within the time-limit set by the planning inspector.
The planning inspector shall not propose a settlement until he has received the prior written agreement of the public prosecutor.
Payment of the amount agreed in settlement brings an end to the criminal proceedings and the right of the authorities to claim compensation.”
39. By a judgment of 3 June 2005, the Court of Cassation reiterated in the following terms the scope of the powers of control of the courts and tribunals where an application is brought before them based on Article 149 of the decree of 18 May 1999:
“Article 149 § 1, first sub-paragraph, as amended, of the decree must be read in the context of Article 159 of the Constitution, according to which the courts and tribunals do not apply administrative measures which are not in conformity with the law; ... According to that last provision, it is a matter for the court to assess the formal and substantive legality of the application referred to in Article 149 as amended and to ascertain whether it is in conformity with the law or whether it is founded on an abuse or misuse of powers; ... More particularly, the court must ascertain whether the authority’s decision to seek a particular remedial measure has been taken for the sole purpose of proper town and country planning; ... If it appears that the application is founded on grounds that are unrelated to town and country planning or a clearly unreasonable view of proper town and country planning, the court shall not allow the application; ... It is not a matter for the court, however, to assess the appropriateness of the measure sought; the court must allow the remedial measure sought if it is in conformity with the law.”
40. On 13 September 2005 the Court of Cassation held in another judgment that “the court must order the site to be restored to its original condition whenever that proves necessary for the purposes of eradicating the consequences of the offence”.
41. Article 12 of the royal decree of 28 December 1972 concerning the design and implementation of draft regional plans and regional plans defines forested areas as follows:
“Forested areas are areas that are wooded or that are to be planted for the purposes of commercial exploitation. They may incorporate buildings that are necessary for such exploitation and for monitoring the timber, as well as hunting and fishing shelters, provided that the latter cannot be used as a residence, even on a temporary basis. Reconversion into an agricultural zone shall be allowed in accordance with the provisions of Article 35 of the Rural Code relating to the demarcation of agricultural and forested zones.”
42. Section 65 of the Town and Country Planning Act of 29 March 1962 provides:
“1. In addition to the penalty, the court shall order, at the request of the delegated civil servant or the municipal council, but with their mutual agreement in the cases referred to in (b) and (c),
(a) either restoration of the site to its original condition
(b) or landscaping or development works
(c) or payment of an amount representing the capital gain accrued on the property subsequent to the offence;
...”
43. By a judgment of 26 November 2003 (no. 154/2003), the Administrative Jurisdiction and Procedure Court (Cour d’arbitrage) considered that, although of a civil nature, a remedial measure is a matter of public policy and is, in certain respects, an ancillary penalty which cannot be dissociated from the criminal penalty; in fact, this measure is an extension of the criminal penalty because it is intended – beyond the criminal conviction – to prevent the continuation of a situation perpetuating the offence. The case-law of the Court of Cassation conflicts with that (judgments of 8 September 1998 and 16 January 2003).
44. The Law of 17 April 1878 contains the preliminary part of the Code of Criminal Procedure. A new section 21 ter, which came into force on 12 December 2000, is worded as follows:
“If the length of the criminal proceedings should exceed a reasonable time, the judge may make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law.
If the judge makes a simple finding of guilt, the guilty party shall be ordered to pay costs and, as appropriate, to perform restitution. A special confiscation order shall be made.”
45. In relation to the prosecution of town and country planning offences, the Government have produced statistics covering the years 1998-2003. For the Flemish region alone, these statistics establish that, on average, 2,580 reports are drawn up every year and that 251 judgments ordering restoration were issued in 1998 (out of 453 decisions), 141 in 1999 (out of 329), 183 in 2000 (out of 328), 105 in 2001 (out of 193), 76 in 2002 (out of 129) and 131 in 2003 (out of 264).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1


ITEMID: 001-107452
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LONGA YONKEU v. LATVIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1-f;No violation of Art. 5-1-f;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 5. The applicant was born in 1984 and lives in Cameroon.
6. The applicant left Douala in March 2008 and, travelling via Russia, entered the European Union through Latvia. He did not apply for asylum at that point.
7. On 22 March 2008 he attempted to cross the border with Lithuania, where he was arrested on suspicion of having used false documents. He was subsequently convicted. The applicant made an application for asylum on the grounds that he feared persecution by the Cameroonian authorities.
8. On 27 October 2008 the Lithuanian authorities submitted a request to Latvia to take charge of the asylum application under Article 10 § 1 of Council Regulation (EC) no. 343/2003 (see paragraphs 65 to 68 below). On 11 December 2008 the Latvian authorities acceded to the request.
9. On 23 December 2008 the applicant was transferred to Latvia.
10. During his stay in Latvia, from 23 December 2008 to 9 January 2010, he was detained in an accommodation centre for foreign detainees (Aizturēto ārzemnieku izmitināšanas centrs) in Olaine (“Olaine accommodation centre”). The centre was a closed facility located within the territory of a prison and held illegal immigrants and certain categories of asylum seekers. According to the Government, there were dining and recreation areas equipped with television, newspapers and reading matter, a gym and a specially designated worship room. The detainees were granted one hour of outdoor exercise per day. They were provided with food and basic hygiene supplies; access to the toilets and showers was not restricted. The Government contended that the centre was equipped with information stands which provided information in several languages on detainees’ rights and obligations, and that additional information was available concerning non-governmental organisations providing legal assistance. According to the applicant, the access to legal assistance in Olaine accommodation centre was very limited, especially for persons who did not speak the local language. Effective protection of his rights had therefore been impossible.
11. Olaine accommodation centre was closed on 1 June 2011 pending renovation work. The illegal immigrants and asylum seekers held in that centre were transferred to a new facility in Daugavpils.
12. On 23 December 2008, on his transfer to Latvia, the applicant handed the State Border Guard Service an application for asylum in French. On the same date an officer of the State Border Guard Service filled in the asylum application form; a note was made to the effect that the applicant knew and could communicate in French, English and Russian.
13. On 4 February 2009 a personal interview with the applicant was conducted by an officer of the State Border Guard Service. The applicant explained that he had a very good command of French, only colloquial English and some Russian. The interview was conducted in French with the assistance of an interpreter. It lasted for five hours, during which the applicant explained the reasons why he feared persecution in Cameroon, which related to his participation in demonstrations on 23 and 25 February 2008 in Douala organised by the main opposition party, the Social Democratic Front. He was not a member of that party.
14. On 23 March 2009 the Asylum Division of the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvalde) decided to refuse the applicant’s asylum application. It was expressly noted that the application had been examined under the ordinary procedure (section 16, paragraph 2 of the old Asylum Law). Having examined the case materials, the division did not accept that the applicant faced a real and personal risk of persecution in Cameroon.
15. On 1 April 2009 the applicant lodged an appeal against that decision and, at the same time, applied for legal aid provided by the State.
16. On 9 April 2009 the competent authority appointed a lawyer as the applicant’s representative, informed him of this fact and scheduled a one-hour meeting for 22 April 2009 in Olaine accommodation centre. The applicant consulted his lawyer at another twohour meeting on 27 April 2009.
17. In the meantime, before having consulted a lawyer at the scheduled meeting of 22 April 2009, the applicant, by letter dated 17 April 2009, withdrew his appeal against the decision of 23 March 2009.
18. On 20 May 2009 the Administrative District Court terminated the administrative proceedings concerning his application for asylum, on the ground that the applicant had withdrawn his appeal. The ruling of the Administrative District Court was final (see paragraph 72 below), despite a note in the decision itself stating that a complaint could be lodged against the ruling with a higher court.
19. On 26 August 2009, in response to a complaint on the merits lodged by the applicant against the ruling of 20 May 2009, the Administrative Regional Court stated that, pursuant to domestic law, that ruling had been final.
20. The applicant was not assisted by a lawyer throughout these proceedings, apart from the three hours of consultation after he had withdrawn his appeal (see paragraph 16 above). The rulings of 20 May and 26 August 2009 were adopted by written procedure; thus, no hearings were held.
21. On 23 December 2008 the State Border Guard Service issued detention order no. 44 and detained the applicant on the basis of section 14, paragraph 1, part 1 of the old Asylum Law, since his identity had not been determined (see paragraph 77 below). The applicant did not have a valid travel document or passport; he had only his birth certificate, which he handed over to the authorities.
22. On 30 December 2008, following a hearing in the applicant’s presence, a judge authorised his detention until 28 February 2009. The judge examined the material brought before her and, with the assistance of a French-speaking interpreter, heard evidence from the applicant. The applicant was not assisted by a lawyer. The judge concluded that there were grounds to detain the applicant as his identity had not been determined and he had no means of subsistence (see paragraphs 77 and 80 below).
23. On 26 February 2009 another judge examined the material brought before him and heard evidence from the applicant. The applicant was not assisted by a lawyer, but an interpreter was present. The judge confirmed that the applicant’s identity had not been determined and that he had no means of subsistence. The judge authorised the applicant’s detention for a further two months.
24. On 24 April 2009 the same judge held another hearing. In this hearing the applicant revealed that his asylum application had been refused, that he had appealed against it and that he had withdrawn the appeal on 17 April 2009 (see paragraph 17 above). The judge concluded, once again, that the applicant’s identity had not been determined and that he had no means of subsistence. He therefore authorised a further two months’ detention.
25. On 9 June 2009, at 4 p.m., the applicant was released on the basis of order no. 4 “Release of an alien who has been detained in accordance with the Asylum Law”. The order did not refer to any legal provisions. Instead, the grounds given for release were the following facts: the decision of 23 March 2009, the applicant’s appeal against that decision, its withdrawal and the ruling of 20 May 2009 terminating the asylum proceedings.
26. On 9 June 2009 the deportation procedure was commenced and the Office of Citizenship and Migration Affairs issued a deportation order, no. 2957. The factual background to the order included the decisions and rulings taken within the asylum proceedings. The deportation order referred to cabinet regulations no. 29 (2003) (see paragraph 91 below).
27. After having found a lawyer, the applicant tried to initiate proceedings for judicial review of the deportation order. He did so through two avenues. Firstly, on 28 August 2009, he applied directly to the Office of Citizenship and Migration Affairs and, secondly, on 28 October 2009, he applied to a court seeking to dispute the validity of the order and to have the deportation order suspended.
28. In his application of 28 August 2009 to the Office of Citizenship and Migration Affairs the applicant asked for the deportation order to be suspended by means of the lifting of order no. 2957. On 1 October 2009 his request was refused for lack of reasons. The applicant also applied to the Ministry of the Interior, which, in turn, refused his request on 30 November 2009. On 15 December 2009 the Administrative District Court refused to admit the applicant’s appeal against that refusal because in substance it was an attempt to obtain judicial review of order no. 2957, which was already the subject of judicial scrutiny in another set of administrative proceedings (see paragraph 29 below). An ancillary complaint by the applicant against the decision of 15 December 2009 appears not to have been accepted for examination as it had not been properly signed.
29. In his application of 28 October 2009 to the Administrative District Court the applicant complained that he had never received a translation of the deportation order in French and that the content of the order, including the appeals procedure, had not been explained in a language he could understand. For that reason he asked for his belated appeal against order no. 2957 to be accepted for examination. On 5 November 2009 a judge refused that request. On the basis of the report of his personal interview, the judge considered that the applicant was able to communicate not only in French but also in English and was therefore aware of the deportation procedure. Moreover, he had been aware of the content of order no. 2957 at least since 28 August 2009, as evidenced by his complaint against it (see paragraph 28 above), and thus there was no reason to accept his appeal to the court, which had been submitted out of time. The decision of 5 November 2009 was upheld by the appellate court on 18 March 2010. That court also considered that the applicant understood English sufficiently well to grasp the meaning of order no. 2957, that is to say, that he was to be deported from Latvia.
30. On 9 June 2009, at 4.10 p.m., the State Border Guard Service, on the basis of section 51, paragraph 1, part 3 of the Immigration Law (see paragraph 97 below), issued detention order no. 25, with a view to the execution of the deportation order issued on the same date (see paragraph 26 above).
31. On 15 June 2009 the State Border Guard Service asked the Ministry of Foreign Affairs to contact the embassy of Cameroon in Russia with a view to requesting a document for the applicant’s return to Cameroon.
32. At about 8.45 a.m. on 17 June 2009 the State Border Guard Service arrived at Olaine accommodation centre to take the applicant to the Rīga District Court where a decision was to be made concerning his further detention. The applicant alleges that excessive force was used to take him to the hearing. The Government denied these allegations and submitted that the applicant had been handcuffed for one hour because he had resisted.
33. On 17 June 2009 a judge examined the material brought before her and heard evidence from the applicant with the assistance of a French-speaking interpreter. The applicant was not assisted by a lawyer. During the hearing the applicant admitted that he understood that action was being taken with a view to his deportation. On the grounds of section 51, paragraph 1, parts 1 and 3 of the Immigration Law (see paragraphs 97 and 98 below), the judge authorised the applicant’s detention for a further two months.
34. On his return from the court hearing on 17 June 2009 the applicant was placed in an isolation cell in Olaine accommodation centre, where he was kept for ten days.
35. On 18 June 2009 a non-governmental organisation for which the applicant’s lawyer was working requested that the State Border Guard Service allow their representatives to meet the applicant. On 25 June 2009 the State Border Guard Service replied that they could meet the applicant in the period from 26 June to 3 July 2009 only, owing to “the high workload of personnel”.
36. On 19 June 2009 the State Border Guard Service approached the embassy of Cameroon in Russia with a view to requesting a valid passport or a certificate for the applicant’s return to Cameroon.
37. On 10 July 2009 the State Border Guard Service received a letter from the Asylum Division informing them that the applicant was still an asylum seeker, since “[h]is complaint has been forwarded to the Administrative Regional Court. Thus, no final decision in [the applicant’s] case has been adopted”.
38. On 10 July 2009, at 4 p.m., the applicant was released on the basis of order no. 90 “Release of an alien who has been detained in accordance with the Immigration Law”. The order did not refer to any legal provisions. Instead, the grounds for release were noted as follows: according to the information provided by the Asylum Division, the applicant was an asylum seeker; thus, the order for his deportation was suspended and his detention in accordance with the Immigration Law was not permissible.
39. On 10 July 2009 the State Border Guard Service issued detention order no. 52 and detained the applicant on the basis of section 14, paragraph 1, parts 1 to 3 of the old Asylum Law (see paragraph 77 below), without giving any individual reasons save for the fact that the asylum proceedings in his case had been reopened.
40. On 14 July 2009 a new Asylum Law entered into force.
41. On 17 July 2009, following a hearing in the applicant’s presence, a judge authorised his detention until 17 September 2009. The judge examined the material brought before her and, with the assistance of a French-speaking interpreter, heard evidence from the applicant. The judge considered that the applicant was still an asylum seeker, since he had submitted a complaint against the ruling of 20 May 2009 (see paragraph 18 above). She referred to the provisions of the newly adopted Asylum Law and concluded that there were grounds to detain the applicant since his identity had not been determined and there were reasons to believe that he had misused the asylum procedure and that he posed a threat to national security or public order and safety (see paragraph 81 below). However, the ruling did not indicate any facts which led the judge to consider that the applicant had misused the asylum procedure or posed any threat. She merely referred to the following facts: that the applicant could not legally stay in Latvia, that he did not have any means of subsistence and could not acquire them legally, that action was being taken with a view to his deportation and that the deportation order could not be executed for reasons beyond the control of the State Border Guard Service.
42. On the same date the applicant appealed in French against the ruling of 17 July 2009. The appeal was received at the Rīga District Court on 20 July 2000 and the next day was sent to the competent domestic authority for translation as soon as possible. Ten days later, on 31 July 2009, that authority dispatched the translation to the Rīga District Court, where it was received on 3 August 2009. The following day it was sent together with the case materials to the Rīga Regional Court for examination.
43. On 5 August 2009 the case materials were received at the Rīga Regional Court and a hearing was scheduled for 13 August 2009. At the hearing, the applicant’s lawyer and a French-speaking interpreter were present. The judge considered that the applicant was still an asylum seeker as he had submitted a complaint against the ruling of 20 May 2009. She found the applicant’s detention to be justified under section 9, paragraph 1, part 1 of the Asylum Law because his identity had not been determined. However, the court agreed with the applicant that he had not in fact misused the asylum procedure.
44. On 16 September 2009 the applicant’s continued detention was authorised for a further two months; that decision was upheld on appeal on 1 October 2009. Both decisions contained a reference to the applicant’s second application for asylum (see paragraph 45 below). In those proceedings the applicant was represented by his lawyer.
45. In the meantime, on 3 September 2009, the applicant lodged another application for asylum. On 10 September 2009 the Asylum Division of the Office of Citizenship and Migration Affairs reviewed the applicant’s request in detail and concluded that it should not be examined (see paragraph 75 below) because the relevant circumstances in Cameroon had not changed to an extent that would merit granting the applicant refugee or alternative status.
46. On 11 September 2009 the State Border Guard Service informed the applicant to the opposite effect – that examination of his application for asylum had been resumed and that the order for his deportation had been suspended. On 5 October 2009 the Office of Citizenship and Migration Affairs, in response to a request from the applicant to be released (which was outside its sphere of competence), informed the applicant of the decision of 10 September 2009 not to examine his second application for asylum. Reference was also made to section 32, paragraph 2 of the Asylum Law which provides that the lodging of an appeal against such a decision does not entitle the person concerned to the status of asylum seeker (see paragraph 75 below).
47. On 16 October 2009 the Administrative District Court accepted the applicant’s appeal against the decision of 10 September 2009 for examination. On 23 October 2009 a judge examined the case in detail and dismissed the appeal. She found that the applicant’s asylum application did not contain any information concerning a change in circumstances which would allow it to consider the application.
48. On 2 November 2009, at 1.30 p.m., the State Border Guard Service issued detention order no. 7. on the basis of section 51, paragraph 1, parts 1 and 3 of the Immigration Law (see paragraphs 97 and 98 below). According to the order, the applicant had infringed the rules on residence in the country as he did not have a valid travel document and a visa or residence permit. The reasons for the applicant’s detention were noted as follows: the decision of 23 March 2009; deportation order no. 2957; the second application for asylum; the decision of 10 September 2009 and, implicitly, the final ruling of 23 October 2009, following which the applicant’s legal status in Latvia had changed.
49. On the same date, about one hour later, the applicant called his lawyer to inform her that he had refused to sign several documents and that the officers had told him in English that his status had expired and had detained him. The lawyer then called the State Border Guard Service with a view to finding out the reasons for his detention. She was told that he had probably been detained under section 51 of the Immigration Law, a fact which they confirmed on 6 November 2009. She received a copy of order no. 7 on the next working day, 9 November, a fact which the representative of the State Border Guard Service confirmed during a subsequent hearing before the Rīga District Court.
50. The domestic courts reviewed and rejected the applicant’s complaints against order no. 7 at two instances, on 13 November and 8 December 2009. At first instance, before the Rīga District Court, the applicant complained that his procedural rights had been breached in that he had not been informed of the reasons and grounds for his detention, that neither the appeals procedure nor his rights had been explained, that his lawyer had not been informed of his detention and that there had been no French-speaking interpreter. The judge ruled that order no. 7 was lawful and that the applicant’s detention had been justified as he had been residing in Latvia illegally and deportation order no. 2957 had been in force. With regard to his procedural rights, she referred to the applicant’s submissions to the effect that he had known that he was no longer an asylum seeker and to the fact that, in a telephone conversation with his lawyer, he had confirmed his detention.
51. At second instance, before the Rīga Regional Court, the applicant maintained his complaint against order no. 7. In a ruling of 8 December 2009 the judge rejected the complaint.
52. On 11 November 2009 a judge of the Rīga District Court extended the applicant’s detention for a further two months. On 26 November 2009 the Rīga Regional Court upheld that ruling. The applicant, his lawyer and a French-speaking interpreter were present at those hearings.
53. On 25 November 2009 the State Border Guard Service approached the embassy of Cameroon in Russia with a view to requesting a valid passport or a certificate for the applicant’s return to Cameroon. On the next day the return certificate was issued.
54. On 4 December 2009 the State Border Guard Service received the necessary travel documents for the applicant’s deportation. Initially, the deportation was scheduled for 12 December 2009 but it could not take place owing to security considerations within the airline company. Another attempt at deportation, scheduled for 19 December 2009, could not take place because of security considerations.
55. On 9 January 2010 at about 4 a.m. the State Border Guard Service carried out the applicant’s deportation from Latvia.
56. In the meantime, on 5 January 2010, the applicant submitted an application for asylum on humanitarian grounds to the Office of Citizenship and Migration Affairs. In his application he referred in general terms to the humanitarian situation, human rights issues and social problems in his country; with reference to his specific case he considered that he faced an increased risk of persecution in Cameroon in view of the contacts between the State Border Guard Service and the embassy of Cameroon in Russia in June 2009.
57. At the same time, on 5 January 2010, his lawyer submitted a request addressed to the Asylum Division and the Head of the Office of Citizenship and Migration Affairs, the Minister of the Interior and the Head of the State Border Guard Service for the applicant to be granted a temporary residence permit in Latvia on the basis of section 23, paragraph 3 of the Immigration Law (see paragraph 100 below) and for the deportation procedure to be suspended. She also forwarded a copy of the applicant’s application for asylum on humanitarian grounds to those institutions.
58. On 8 January 2010 two divisions of the Office of Citizenship and Migration Affairs dispatched letters to the State Border Guard Service. The Asylum Division informed the State Border Guard Service that they had received the applicant’s application for asylum. The Individuals’ Status Monitoring Division stated that “the execution of deportation order no. 2957 is to be suspended”. The parties are in disagreement as to when these letters were received by the State Border Guard Service. The Government contended that they had been received by post on 11 January 2010. The applicant submitted that the letters had been sent by fax and that the State Border Guard Service had received them on 8 January 2010.
59. On 12 January 2010 the State Border Guard Service informed the Office of Citizenship and Migration Affairs that on 9 January 2010 the applicant had been deported to Cameroon.
60. On 15 January and 5 February 2010 the Asylum Division and the Office of Citizenship and Migration Affairs dismissed the application for asylum and the request to grant a temporary residence permit since there were no grounds for examining them in view of the applicant’s deportation.
61. On 28 January 2010 the State Border Guard Service replied to the applicant’s lawyer that disclosure of the information about the applicant to the embassy of Cameroon in Russia had been justified since he was an illegal immigrant at the time of the disclosure in June 2009.
62. On 4 February 2010 the State Border Guard Service replied to the applicant’s lawyer that they had not been officially informed until 11 January 2010 that the application for asylum had been received and that the deportation procedure was to be suspended.
63. On 9 February 2010 the Ministry of the Interior replied that it was not competent to answer questions in relation to the asylum procedure. The State Border Guard Service was responsible for reviewing the decisions taken by its officials concerning the applicant’s deportation.
64. Having considered the second periodic report of Latvia (CAT/C/38/Add.4) at its 788th and 790th meetings (CAT/C/SR.788 and 790), held on 8 and 9 November 2007, the United Nations Committee against Torture (CAT), at its 805th and 806th meetings (CAT/C/SR.805 and 806), adopted the following conclusions and recommendations.
“The Committee recommends that the State party:
a) Take measures to ensure that detention of asylum seekers is used only in exceptional circumstances or as a last resort, and then only for the shortest possible time;
b) Ensure that anyone detained under immigration law has effective legal means of challenging the legality of administrative decisions to detain, deport or return (refouler) him/her and extend, in practice, the right to be assisted by assigned counsel to foreigners being detained with a view to their deportation or return (refoulement).”
65. Council Regulation (EC) no. 343/2003 of 18 February 2003 establishes the criteria and mechanisms for determining the Member State of the European Union responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”).
66. Under the regulation, the Member States must determine, based on a hierarchy of objective criteria (Articles 5 to 14), which Member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum seeker’s case is dealt with by a single Member State.
67. Where it is established that an asylum seeker has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered is responsible for examining the application for asylum (Article 10 § 1).
68. Where the criteria in the regulation indicate that another Member State is responsible, that State is requested to take charge of the asylum seeker and examine the application for asylum (Article 17).
69. The applicant’s first application for asylum was examined in accordance with the old Asylum Law as in force from 1 September 2002 until 14 July 2009, under the ordinary procedure. Under this procedure, the application had to be examined by the administrative authority within a period of three months (section 16, paragraph 2) and by the Administrative District Court within a further three months (section 19.2 paragraph 1).
70. Under the old Asylum Law asylum seekers had the right to remain in Latvia and retained the status of asylum seeker until the final decision on their application for asylum had been adopted (section 10, paragraph 1 and section 19.2, paragraph 6).
71. The Asylum Division of the Office of Citizenship and Migration Affairs was responsible for examining applications for asylum (section 16, paragraph 2). An asylum seeker had to be made aware of any decision taken on his or her application for asylum and had to receive an explanation of its content and the appeals procedure in a language he or she knew or could be expected to understand (section 18, paragraph 3). An appeal could be lodged with the Administrative District Court against that decision within seven days (section 18, paragraph 5 and section 19.1, paragraph 1).
72. The ruling of the Administrative District Court under the asylum procedure was final, pursuant to section 19.2, paragraph 4 of the old Asylum Law, which was a lex specialis in relation to the more general provisions on administrative procedure contained in the Law of Administrative Procedure. The ruling took effect on its delivery; it was to be served on the asylum seeker immediately and its content had to be explained in a language he or she knew or could be expected to understand.
73. The procedure for deportation of a failed asylum seeker under the ordinary procedure was not specified in the old Asylum Law, which referred in this connection to “provisions established by law” (section 22, paragraph 1 of the old Asylum Law). Thus, the general provisions of the Immigration Law applied (see paragraphs 92 to 95 below). However, the procedure for deportation of a failed asylum seeker under the accelerated procedure was set forth in cabinet regulations no. 29 (2003) (section 22, paragraph 2 of the old Asylum Law) (see paragraph 91 below).
74. The applicant’s second application for asylum was examined in accordance with the Asylum Law, which took effect on 14 July 2009.
75. Under section 34 of the Asylum Law, if the relevant circumstances have changed, an asylum seeker may submit another application for asylum if a negative decision on his or her first application for asylum has taken effect. The Office of Citizenship and Migration Affairs may either accept such an application for examination or decline to examine it (section 32, paragraph 1). The decision not to examine the application may be appealed against to the Administrative District Court within ten working days; however, the person does not have asylum-seeker status during the examination of his or her appeal (section 32, paragraph 2).
76. Finally, the procedure to be followed for deportation of an asylum seeker under either the ordinary or the accelerated procedure is set forth in the Immigration Law, to which the Asylum Law now explicitly refers (section 33).
77. In accordance with section 14, paragraph 1 of the old Asylum Law, the State Border Guard Service could detain an asylum seeker for an initial period of up to ten days if his or her identity had not been determined (part 1), if there were reasons to believe that he or she was attempting to misuse the asylum procedure (part 2), or if there were reasons to believe that he or she could not legally stay in Latvia (part 3). An appeal could be lodged with a court against such a detention order (section 54, paragraph 1 of the Immigration Law).
78. As regards the procedure for detention, the old Asylum Law referred to the provisions of the Immigration Law which were applicable to illegal immigrants.
79. Detention for more than ten days could be authorised only by a court, on an application submitted by the State Border Guard Service, for no longer than two months at a time. The overall period of detention could not exceed twenty months (section 54, paragraphs 2 and 4 of the Immigration Law) and it could not, in any event, exceed the time taken to determine the application for asylum (iesnieguma izskatīšanas termiņu) (section 14, paragraph 3 of the old Asylum Law).
80. When authorising further detention the judge had to examine, among other things, whether the alien concerned had concealed his or her identity or refused to cooperate and whether he or she had any means of subsistence (section 54.1, paragraph 1, parts 1 and 2 of the Immigration Law). The alien had the right to appeal against the detention order issued by the court within forty-eight hours of its reception (section 55, paragraph 6 of the Immigration Law).
81. According to section 9, paragraph 1 of the Asylum Law, the State Border Guard Service has the authority to detain an asylum seeker for a shorter initial period – up to seven days – if his or her identity has not been determined (part 1), if there is reason to believe that he or she is attempting to misuse the asylum procedure (part 2) or if the competent State authorities, including the State Border Guard Service, have reason to believe that he or she poses a threat to national security or public order and safety (part 3).
82. Like the old Law, the new Law refers to the Immigration Law as regards the procedure governing detention, which thus remains unchanged in so far as the applicant is concerned. Hence, an appeal may be lodged with a court against the detention order issued by the State Border Guard Service; only a court is authorised to extend the detention beyond the initial period, for no more than two months at a time; the court has to examine whether the alien concerned is concealing his identity or refusing to cooperate and whether he or she has any means of subsistence. Similarly, the overall period of detention may not exceed twenty months nor, most importantly, may it exceed the length of time taken to complete the asylum proceedings (patvēruma procedūras termiņu).
83. The old Asylum Law as in force until 14 July 2009 provided that asylum seekers had the right to invite another person to provide them with legal assistance (section 10, paragraph 4).
84. The Asylum Law as in force since 14 July 2009 stipulates that asylum seekers may invite another person to provide them with legal assistance, using their own funds. If they do not have sufficient funds, they have the right to receive legal assistance provided by the State (section 10, part 3) in the manner prescribed by a special law (see paragraph 85 below).
85. Both before and after 14 July 2009 the Law on State Legal Assistance explicitly provided for only one situation in which an asylum seeker must receive free legal assistance, namely for lodging an appeal against a decision on the merits within the asylum proceedings (section 5, paragraph 1 prior to the amendments which took effect on 1 July 2009; section 5, paragraph 2 thereafter).
86. Meanwhile, the Immigration Law, which is applicable to all detained aliens including asylum seekers, provides for a right to receive legal assistance; the alien concerned must be informed of this right upon his or her arrest (section 56, paragraph 1).
87. In accordance with the old Asylum Law as in force until 14 July 2009, asylum seekers had the right to receive all information about the asylum procedure and their rights and obligations in a language which they knew or could be expected to understand (section 10, paragraph 2).
88. In addition, asylum seekers without a knowledge of Latvian had the right to communicate via an interpreter as well as the right to submit applications, to consult the case file and to submit explanations in a language which they knew or could be expected to understand (section 9).
89. In accordance with the Asylum Law as in force since 14 July 2009, asylum seekers have the right to receive information from the State Border Guard Service and the Office of Citizenship and Migration Affairs about the asylum procedure, their rights and obligations and the powers of the domestic authorities in that respect, in a language which they can be expected to know and in which they are able to communicate (section 10, part 2). Furthermore, they have the right to have the decision [concerning the merits of their asylum application] and the appeals procedure explained in a language which they can be expected to know and in which they are able to communicate, unless they have a representative or have received free legal assistance (section 10, part 5).
90. Meanwhile, the Immigration Law, which is also applicable to all detained aliens including asylum seekers, provides for the right to communicate in a language which the asylum seeker knows, if necessary with the assistance of an interpreter (section 56, paragraph 3).
91. Cabinet regulations no. 29 (2003), in force until 14 July 2009, set forth the deportation procedure for failed asylum seekers under the accelerated procedure. The Office of Citizenship and Migration Affairs had to issue an order to leave the State on the day following expiry of the time-limit for an appeal against the first-instance decision on the asylum application or, if an appeal had been lodged, on the day after the alien had received the court’s (final) ruling. When the alien received the order, he or she had five days to leave the country. If he or she did not comply, the Office of Citizenship and Migration Affairs had to issue a deportation order.
92. If an alien had infringed the rules prescribed by law for entry into and residence in the country, the Office of Citizenship and Migration Affairs had to issue an order to leave in the next seven days (section 41, paragraph 1 of the Immigration Law). If the alien did not comply voluntarily with the order to leave, the Office of Citizenship and Migration Affairs had to issue a deportation order (piespiedu izraidīšanas rīkojums) within ten days (section 47, paragraph 1, part 1).
93. Another legal ground for the Office of Citizenship and Migration Affairs to issue a deportation order within the ten-day time-limit was where the State Border Guard Service had detained an alien who had crossed the border illegally or who had otherwise infringed the rules prescribed by law for entry into and residence in the country (section 47, paragraph 1, part 2).
94. Furthermore, aliens were made subject to a deportation order if they had been convicted in Latvia and the domestic courts had ordered their expulsion as an additional penalty (section 47.1). Aliens were also made subject to a deportation order if they had served a sentence for a crime committed in Latvia and did not have any legal grounds for continuing to reside in Latvia (section 48, paragraph 1). Lastly, aliens who had been included in the list of persons to whom entry in Latvia was prohibited were made subject to a deportation order (section 48.1).
95. Orders to leave and deportation orders issued under either of the paragraphs of section 47 of the Immigration Law could be revoked or suspended on humanitarian grounds by the Head of the Office of Citizenship and Migration Affairs (section 41, paragraph 2 and section 47, paragraph 4).
96. On 16 June 2011 wide-reaching amendments to the Immigration Law took effect. As a result, the procedures concerning orders to leave the State and deportation orders were clarified.
97. In accordance with the Immigration Law, the State Border Guard Service is authorised to detain an alien for a period of up to ten days with a view to executing a deportation order (section 51, paragraph 1, part 3). An appeal lies against the corresponding detention order (section 54, paragraph 1).
98. Similarly, the State Border Guard Service may detain an alien who has crossed the border illegally or who has otherwise infringed the rules prescribed by law for entry into and residence in the country (section 51, paragraph 1, part 1).
99. In addition to the rights mentioned before (see paragraphs 86 and 90), the Immigration Law also confers on detained aliens the right to consult the case file concerning their detention, in person or through a representative (section 56, paragraph 2).
100. Section 23, paragraph 3 of the Immigration Law provides for the granting of temporary residence permits to aliens at the discretion of the Minister of the Interior in the interests of the State (part 1) and at the discretion of the Head of the Office of Citizenship and Migration Affairs in accordance with international law or in pursuance of humanitarian considerations (part 2).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-f
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-4560
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: WARREN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen born in 1942. He is not represented in the proceedings before the Court. This is his second application under the Convention. His first (no. 30312/96) was declared inadmissible by the European Commission of Human Rights on 27 February 1997.
1.
In the course of divorce proceedings brought against him by his wife, the applicant tried to kill his two children with a machete. Following his trial for attempted murder, on 11 February 1986, the Winchester Crown Court made a combined hospital and restriction order under sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”: see below). The applicant was committed to Broadmoor Hospital where he has been detained ever since.
Under the terms of the 1983 Act, a Mental Health Review Tribunal (“MHRT”) reviews the applicant’s case annually. The MHRT is under a duty to order his discharge if satisfied that he is not mentally ill or that his detention is no longer necessary for his own safety or that of others. To date, successive MHRTs have ordered his continued detention. On 21 March 1997 the Court of Appeal dismissed the applicant’s application for judicial review of the MHRT’s decision of August 1994.
In the most recent report, on 11 September 1998, the MHRT gave the following reasons for its decision:
“The patient has maintained, and still maintains, that his detention in Broadmoor is unlawful. He is a technical author and displays an inflexible approach as to his interpretation of the Mental Health Acts and nobody it seems can dissuade him as to his view. He claims that subsection (4) of section 37 of the 1983 Act is not to be construed as a condition precedent to a court making an order under section 37(1). We do not agree with this interpretation nor as to the arguments put forward by him and/or on his behalf under section 37(8). He also referred to other sections which we have considered. It is quite clear to us that the judge’s order under sections 37 and 41 was a valid one and that the procedure laid down under sections 2 and 3 (which do not follow a conviction) is entirely different from that where the detention is ordered by a court. Were this not the case the Act would not make provision in respect of “powers of Tribunals” as set out in particular in sections 72 and 73. (Section 73 expressly refers to the discharge of restricted patients.)
We were invited to use the power invested in us under section 78(8) of the Act to refer the patient’s submissions to us to the High Court on a question of law. We consider his arguments on law to have no substance and accordingly we are not prepared to state a special case for determination by the High Court.
Despite the patient’s protestations that he was suffering from a transient disorder at the time of the index offence which he believes was triggered by stress, we are quite satisfied that the patient is now suffering from a mental illness in the form of a paranoid psychosis which has persisted with some small improvement since his admission to Broadmoor. This paranoid psychosis takes the form of fixed beliefs in both the interpretation of the law relating to his detention and the beliefs about the activities of his family and lawyers on both sides surrounding his divorce and further ancillary proceedings. He is unable to address realistically the issues surrounding the index offence. The aforesaid mental illness is of a nature and degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment. He is not receiving any medication at the present time but he is receiving medical treatment in the form of nursing care and rehabilitation together with counselling from a primary nurse. He has shown some improvement and consideration is being given to cognitive behavioural therapy. It is necessary for the health of the patient and for the protection of other persons that he should receive such medical treatment in hospital. We accept the evidence of the RMO [responsible medical officer] that were the patient to be released he would be likely to continue legal pursuits and might become a danger to those involved in them.”
2. Relevant domestic law and practice
Section 1(2) of the Mental Health Act 1983 (“the 1983 Act”) defines “mental disorder” as mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind.
Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”). The court can make a hospital order only if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from a mental disorder “of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37(2)(a)(i)). In addition, the court must be of the opinion “having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37(2)(b)(ii)).
Section 41 of the 1983 Act empowers a court to make a restriction order (with or without limit of time) at the same time as it makes a hospital order. A restriction order gives the Secretary of State, inter alia, increased powers over the movement of the patient, confers a power to recall or conditionally discharge a patient at any time and restricts the powers of the Mental Health Review Tribunal (“MHRT”) to order release. A restriction order may be made if it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if still at large, that it is necessary to make the order for the protection of the public from serious harm.
Under section 70 of the 1983 Act, a person who is subject to a hospital order and restriction order (“a restricted patient”), and who is detained in hospital, may apply to the MHRT after six months’ detention for a review of his detention. After twelve months’ detention such applications may be made annually. The Secretary of State may at any time refer the case of a restricted patient to the MHRT (section 71 of the 1983 Act). MHRTs are made up of a legally qualified member who sits as the chairperson, a medically qualified member who interviews the patient and a lay member.
Under section 73(1) and (2) of the 1983 Act, read in conjunction with section 72 (1), where an application is made to the MHRT by a restricted patient or where his case is referred to the MHRT by the Secretary of State, the MHRT is required to direct the absolute discharge of the patient if it is satisfied
(a) (i) that the patient is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or
(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment (section 73 (1) of the 1983 Act); and
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73 (2) of the 1983 Act).


ITEMID: 001-113411
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF JEHOVAS ZEUGEN IN ÖSTERREICH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 14+9 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion);Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 2 of Protocol No. 1 - Secure the payment of taxes);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant community was at the time of the events complained of a registered religious community established in Austria under the Religious Communities Act 1998. Since 7 May 2009 it has had the status of a religious society, a status conferred by statute.
6. In 2002 the applicant community wished to employ a couple, G.V. and V.T., who were both ministers belonging to the Religious Order of Jehovah’s Witnesses (Orden der Sondervollzeitdiener der Zeugen Jehovas) and who were Tagalog speaking citizens of the Philippines, for the benefit of its Tagalog speaking members in Austria.
7. In order to obtain a residence permit (Aufenthaltsgenehmigung) or a settlement permit (Niederlassungsbewilligung), the couple had to have a work permit or be able to show that they were not subject to the provisions of the Employment of Aliens Act (“the EA Act”). On 16 April 2002 the applicant community therefore applied to the Währinger Gürtel Labour Market Service (Arbeitsmarktservice) in Vienna for a declaratory decision that the pastoral work the couple would exercise was exempt from the provisions of the EA Act. It submitted that, since the entry into force of the Religious Communities Act 1998, section 1(2) of the EA Act had to be understood as referring to all persons doing pastoral work for religious communities and not only as referring to ministers of recognised churches and religious societies. In any event, it submitted that the tasks which would be assigned to G.V. and V.T. would not constitute employment within the terms of the EA Act.
8. On 1 July 2002 the Labour Market Service dismissed the application and, on 21 October 2002, an appeal panel of the Labour Market Service confirmed the decision. Both authorities found that only ministers performing pastoral duties belonging to a recognised religious society were exempt from the provisions of the EA Act, but not members of a registered religious community, which was the status of the applicant community. In addition, the boards held that pastoral work had the typical features of employment within the meaning of the EA Act, as it was exercised within a hierarchical structure, subject to the instructions of a superior and involved economic dependence.
9. On 3 December 2002 the applicant community filed a complaint with the Constitutional Court, in which it argued that the decisions of the administrative authorities had violated its rights under Article 9 read alone and in conjunction with Article 14 of the Convention.
10. On 10 October 2003 the Constitutional Court dismissed the complaint. It found that any employment contracts the applicant community concluded with aliens concerning pastoral work as ministers would be subject to the provisions of the EA Act, because the exemption in section 1(2) of the EA Act only applied to churches or religious societies recognised by law.
11. The Constitutional Court held that even though the pastoral work of ministers clearly fell within the scope of protection of Article 9, which also comprised the conclusion of employment contracts by a religious group with persons engaging in such activities, and even though labour-market regulations, in particular the employment of aliens, might constitute an interference with the rights protected by Article 9, such interference was justified under paragraph 2 of Article 9. The difference between the employment of foreigners as ministers performing pastoral work by a religious society and employment by a registered religious community made by the EA Act was in conformity with the Federal Constitution. Through recognition as a religious society, that religious group acquired a legal status, more closely defined in the relevant Act, which would allow it to participate in the shaping of public life in the State (an der Gestaltung des staatlichen öffentlichen Lebens teilzunehmen). As this status could, and indeed had to, be granted to all churches and religious societies provided the conditions established by law were met, the distinction between recognised religious societies and other communities did not give rise to doubts as to its constitutionality.
12. On 15 December 2004 the Administrative Court dismissed the complaint, which had been transferred to it. The applicant community argued that section 1(1) of the EA Act was discriminatory. However, the Administrative Court found that this matter had been exhaustively examined by the Constitutional Court in its above decision. This decision was served on the applicant community’s lawyer on 20 January 2005.
13. In October 1999 the applicant community received a donation.
On 2 May 2001 the Vienna Tax Office for Fees and Transaction Taxes (Finanzamt für Gebühren und Verkehrssteuern) ordered the applicant community to pay inheritance and gift tax in the amount of 14% on the sum received. It found that the applicant community could not rely on section 15(1)(14) of the Inheritance and Gift Tax Act 1955 (“the 1955 Act”), which provided an exemption from tax liability for certain donations to religious institutions, because this tax privilege was reserved to churches and religious societies recognised by law.
14. On 7 May 2001 the applicant community appealed. It argued that, as a result of the entry into force of the Religious Communities Act on 10 January 1998, the exemption from tax liability under section 15(1)(14) of the 1955 Act also extended to registered religious communities such as itself.
15. On 25 January 2005 the Independent Finance Panel (Unabhängiger Finanzsenat) dismissed the appeal. It noted that section 15(1)(14) of the 1955 Act clearly referred to religious societies and there was no doubt that this did not mean a registered religious community. Referring to the caselaw of the Constitutional Court, in particular its decision of 10 October 2003 (see above), it found that the difference in treatment between religious societies and religious communities was in accordance with the Federal Constitution. Further, none of the other exemption clauses under this provision applied to the applicant community.
16. On 3 March 2005 the applicant community filed a complaint with the Constitutional Court, arguing that the impugned decision had violated its right to equal treatment, right to the peaceful enjoyment of its property and right not to be discriminated against on the basis of religion.
17. On 26 September 2005 the Constitutional Court declined to deal with the complaint for a lack of prospects of success, considering that insofar as the applicant community’s complaints concerned matters of constitutional law they had been sufficiently dealt with in its previous caselaw.
18. On 5 December 2005, following a request by the applicant community, it remitted the case to the Administrative Court. On 13 January 2006 the applicant community supplemented its complaint before the Administrative Court.
19. On 27 April 2006 the Administrative Court dismissed the complaint as unfounded. It found that the applicant community was not a religious society and could not, therefore, rely on a privilege reserved to such an institution. Moreover, it was also not a charitable institution (gemeinnützige Körperschaft) within the meaning of the 1955 Act, as charitable goals were only those which consisted of promoting the interests of the general public (nur solche Zwecke sind durch deren Erfüllung die Allgemeinheit gefördert wird). As the applicant community, according to its constitutional documents, essentially addressed its activities to its members alone, it addressed itself to a more restricted group than the general public.
20. Section 1(2) of the Employment of Aliens Act provides, insofar as relevant, as follows:
“The provisions of this federal act do not apply to:
...
(d) aliens in respect of pastoral work they exercise as part of a church or religious society recognised by law; ...”
21. Section 15(1) of the Inheritance and Gift Tax Act 1955, which was still in force at the relevant time, reads, insofar as relevant, as follows:
“[The following] are also exempt from taxation:
...
(14) donations between living persons of movable objects or sums of money to
- domestic legal persons which pursue exclusively charitable, benevolent or ecclesiastical purposes;
- domestic churches or religious societies recognised by law;
- political parties.”
22. For a detailed description of the legal situation concerning religious societies and religious communities in Austria, see the case of Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, §§ 37-55, 31 July 2008.
VIOLATED_ARTICLES: 14
9
P1
VIOLATED_PARAGRAPHS: 9-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-2