ITEMID: 001-95232
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ANDREWS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Joseph Adesola Andrews, is a Nigerian national who was born in 1967 and lives in Lagos. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office.
The applicant arrived in the United Kingdom in July 1991. He was granted leave to enter for a period of six months. In October 1991 he applied for leave to remain as a working holidaymaker. He was granted leave to remain until December 1993.
In 1991 he began living with his partner, who is a British citizen. On 17 August 1993 their daughter was born.
On 22 November 1993 the applicant claimed asylum. The application was refused by the Secretary of State for the Home Department on 13 May 1994 on the ground that there was no evidence to substantiate the claim. The applicant remained in the United Kingdom without leave.
On 27 May 1994 he was sentenced to twelve months’ imprisonment following his conviction of three counts of burglary and a breach of a probation order. On 13 June 1994 he was sentenced to fourteen days’ imprisonment for driving whilst disqualified and driving without insurance.
On 26 April 1995 the applicant and his partner married. On 27 April 1995 the applicant applied for leave to remain on the basis of his marriage to a British citizen. On 7 September 1995 he was granted twelve months’ leave to remain on the basis of the marriage.
On 6 September 1996 his leave to remain expired and he made no application for an extension.
On 7 September 1997 he was convicted by a Crown Court of two counts of conspiracy to defraud and was sentenced to four years’ imprisonment.
On 18 August 1998 the applicant was served with notice of a decision to deport him.
On 19 August 1998 his application for indefinite leave to remain as the spouse of a British citizen was refused and the Secretary of State for the Home Department made a deportation order against him.
On 14 October 1998 the applicant was released from custody on licence. On 22 July 1999 he was convicted by a Magistrates’ Court for possession of a false instrument. He was sentenced to a total of fifteen months’ imprisonment. He was released on 10 March 2000.
On 20 November 2000 he was sentenced to three years’ imprisonment for significant offences of dishonesty (including possession and use of a false instrument and attempting to obtain a money transfer by deception). His sentence came to an end in January 2002 but he remained in immigration detention until 25 November 2002, when he was granted bail by the Immigration Appeal Tribunal.
On 4 April 2003 the applicant’s appeal against the decision to deport him was dismissed by the Immigration Appeal Tribunal, which found that in view of his criminal conduct and the separation that had already taken place between himself and his family due to his imprisonment, his deportation would not be a disproportionate interference with his right to respect for his family life. The Tribunal accepted, however, that the applicant’s wife was a United Kingdom citizen of Jamaican origin; that she would not relocate to Nigeria with the applicant if he were deported; that her mother was in poor health, requiring her to visit her three to four times each week; that she was in part-time employment in the United Kingdom; and finally, that she had not known that the applicant had no leave to remain when she married him.
On 13 May 2003 the applicant made a fresh claim to remain in the United Kingdom on human rights grounds, namely Article 8. This was refused by the Secretary of State by letter dated 8 July 2003. He appealed to an Adjudicator. The Adjudicator dismissed the appeal on 17 December 2003, finding that the interference with the applicant’s family life was proportionate in view of his criminal conduct.
On 22 November 2004 the Immigration Appeal Tribunal allowed the applicant’s appeal against the Adjudicator’s decision on the ground that the Adjudicator had misdirected himself on the appropriate standard of proof for a human rights claim and accordingly his determination was “fatally flawed”. The appeal was remitted to another Adjudicator to be considered afresh.
On 11 February 2005 a second Adjudicator dismissed the applicant’s appeal against the refusal of his human rights claim.
On 28 June 2005 his application for reconsideration was refused by a Senior Immigration Judge on the ground that the Adjudicator’s decision disclosed no error of law. On 10 October 2005 the High Court also refused the applicant’s application for reconsideration of the decision.
In May 2006 the applicant’s daughter issued an application for judicial review challenging the decision to deport him. The application was based on a breach of domestic policy rather than Article 8 of the Convention. Permission was refused on the papers on 9 October 2006. An application to renew the application was made outside the seven day time-limit prescribed by the relevant rule of court. Permission was finally refused on 14 December 2007.
The applicant was deported to Nigeria on 30 March 2007.
Section 3(5) of the Immigration Act 1971 provides, insofar as material, as follows:
“A person who is not a British citizen in liable to deportation from the United Kingdom if: -
the Secretary of State deems his deportation to be conducive to the public good;
...”
At the time of the applicant’s deportation, paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) provided that after a minimum of three years following his deportation, the applicant would be entitled to apply to have his deportation order revoked. Revocation of the deportation order did not entitle the applicant to re-enter the United Kingdom; rather, it would entitle him to apply for admission under the Immigration Rules.
Following the applicant’s deportation, paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) were amended. They now provide as follows:
“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion
(i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or
(ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees.
will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.
392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.”


ITEMID: 001-73018
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KOBTSEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1950 and lives in Kyiv.
5. On 30 October 1998 two police officers, in the course of a murder investigation, searched the applicant’s home. They found nine hunting-gun cartridges and arrested the applicant for the unlawful possession of ammunition. On the same day the police opened a criminal investigation against the applicant.
6. On 31 October 1998 the applicant was questioned as a suspect.
7. On 3 November 1998 the case was referred to the Investigative Division of the Zaliznychnyy District Police Department of Kyiv. The responsible investigator charged the applicant with the unlawful possession of ammunition and authorised his detention on remand.
8. On 10 November 1998 the investigator ordered an expert ballistic examination of the cartridges found in the applicant’s home to determine whether they fell into the category of ammunition. The expert’s opinion was submitted on 20 November 1998.
9. On 4 December 1998 the investigator questioned witnesses and, on 10 December 1998, the police officers who had conducted the search in the applicant’s home.
10. On 11 December 1998 the case file was transferred to the Leningradskyy District Police Department of Kyiv. On 24 December 1998 an investigator attached to this Department took over the case.
11. The investigation was completed on 30 December 1998 and the applicant and his lawyer were given access to the case file. On 11 January 1999 they finished studying it. On 12 January 1999 the applicant’s lawyer unsuccessfully requested the investigator to terminate the proceedings for a lack of corpus delicti.
12. On 18 January 1999 the indictment was approved by the district prosecutor and sent to the Leningradskyy District Court of Kyiv (hereafter “the District Court”).
13. On 1 February 1999 the judge of the District Court committed the applicant to trial. In his decision the judge also decided that the applicant’s “remand shall remain unchanged”.
14. The court held hearings on 16 March 1999, 16 April 1999, 17 and 24 May 1999. Two scheduled hearings were cancelled: on 4 March 1999 witnesses were absent (the court issued compulsory summonses in their respect for the following sittings) and on 4 May 1999 a judge was unavailable. On 16 April and 17 May 1999 the court heard evidence, but had to adjourn the case due to the failure of the witnesses to appear.
15. On 25 May 1999 the applicant’s lawyer requested that the case be referred for further investigation. On 27 May 1999 the District Court granted this request, citing the lack of reliable evidence collected by the authorities. By the same decision, the applicant was released on bail (a sum of UAH 5,100 was deposited with the Prosecutor’s Office).
16. On 24 June 1999 the Kyiv City Court (hereafter “the City Court”), allowing the appeal of the prosecution, quashed the decision to remit the case for reinvestigation. The court held that any flaws or shortcomings in the evidence could be assessed and, if need be, rectified during the trial.
17. Between July and December 1999 the proceedings were stayed pending the outcome of the applicant’s request for supervisory review of the City Court’s decision. On 2 December 1999 the Supreme Court rejected this request.
18. On 23 February 2000 the District Court resumed the trial and, on 28 February 2000, found the applicant guilty of the unlawful possession of ammunition and sentenced him to three years’ imprisonment, suspended on probation. The court relied primarily on the police search record and the expert evidence that the cartridges found in the applicant’s apartment were indeed ammunition within the meaning of Article 222 of the Criminal Code. The applicant and the prosecution appealed. On 6 April 2000 City Court quashed the decision of 28 February 2000 and remitted the case for a fresh consideration.
19. In June 2000 the District Court recommenced the trial. Between June and September 2000 the court held five hearings (on 12 and 23 June, 12 July, 30 August and 13 September 2000), during which five witnesses and an expert were heard. As on each occasion an unnamed witness failed to attend, the sittings were adjourned.
20. On 13 September 2000 the District Court, on the applicant’s request, remitted the case for further investigation. The court established that neither the applicant nor witnesses had been present when the police officers found the cartridges in his apartment. Moreover, the warrant was issued in breach of procedural rules and the search report submitted to the court was not the one drawn up on 30 October 1998 and signed by the applicant and the witnesses. The court also indicated that the expert ballistic report could not be used in evidence as it had been produced in breach of procedural requirements.
21. On 25 October 2000 an investigator attached to the Leningradsky District Prosecutor’s Office terminated the proceedings due to the lack of any corpus delicti. The investigator referred essentially to the circumstances relied on by the court when remitting the case for further investigation.
22. The applicant alleged that he was not informed about this decision. Thus, in April 2001 his lawyer lodged an administrative complaint under Article 248 § 8 of the Code of Civil Procedure, challenging the lack of progress in the investigation.
23. The Government stated that the applicant had been informed in a timely manner about the termination of his case and, through his administrative complaint, he had contested the investigator’s ruling of 25 October 2000. However, the decision of the District Court of 20 April 2001, on this complaint, indicates that the applicant challenged the “suspension” (зупинення) not the “termination” (закриття) of his case. Moreover, in his complaint he requested that his case be terminated due to the absence of any corpus delicti.
24. In the above-mentioned decision of 20 April 2001, the District Court held that it had no administrative jurisdiction to determine the applicant’s complaints since the investigative authorities’ acts and omissions could only be reviewed within the framework of the criminal trial. On 20 June 2001 the Kyiv City Court upheld this decision.
25. The applicant alleged that it was not until he applied to the Ombudsman, seeking information about the developments in his case, that the Kyiv City Prosecutor’s Office informed him, by a letter of 12 October 2001, that the proceedings had been terminated. On 26 October 2001 the investigator of the Leningradsky District Prosecutor’s Office ordered the return of the applicant’s bail money.
26. In the meantime, on 13 October 2001 the applicant lodged with the Kyiv City Prosecutor’s Office a request for compensation for unlawful criminal prosecution. Its outcome is unclear, although, in view of the subsequent developments (see paragraph 27 below), it was probably disregarded.
27. On 30 November 2001 the Kyiv City Prosecutor’s Office quashed the decision of 25 October 2000 to terminate the proceedings against the applicant as being premature, and ordered a further investigation into the purported offence.
28. On 25 December 2001 the investigator attached to the Sviatoshynsky District Prosecutor’s Office terminated the proceedings due to the lack of any corpus delicti.
29. Article 222 of the Code provides:
“Unlawful ...possession ... of firearms (except for smooth-bore hunting guns), ammunition or explosives without the relevant permission ... shall be punished by imprisonment from two to seven years.”
30. Article 6 of the Code enumerates the reasons for the termination of criminal proceedings, including the absence of any corpus delicti.
31. Articles 70, 71, 135 and 136 of the Code oblige the witness, summoned by the court or the investigative authorities, to attend and give evidence. In case of his/her failure to comply with the summons, the authority concerned may issue a compulsory summons, enforceable by the police. The witness’ repeated failure to appear in court without valid justification is punishable under the Code of Administrative Offences.
32. Chapter 19 (Articles 206-211) of the Code governs the suspension of criminal proceedings.
33. Articles 148-150 (the general principles on the application of preventive measures) and 155 (the conditions for a remand in custody) may be found in the judgment of 5 April 2005 in the case of Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005... (extracts)).
Article 154-1 of the Code (the application of bail) and the relevant provisions of Resolution No. 6 of 26 March 1999 of the Plenary Supreme Court of Ukraine on the practice when applying bail as a preventive measure, are set out in the decision of 10 December 2002 in the case of Koval v. Ukraine (no. 65550/01).
34. Article 212 provides that, on completion of the investigation, the investigator either draws up an indictment or terminates the case.
According to Article 213 the case can be closed by the investigator on both exonerating and non-exonerating grounds.
Article 227 § 2 empowers the prosecutor to quash any investigator’s decision.
At the material time, Chapter 22 (Articles 234-236-6), which regulates the appeal against the investigator’s decision, did not contain the defendant’s right to challenge the decision to institute or re-institute criminal proceedings.
35. According to Article 1 of the Law, citizens are entitled to compensation for damage caused by:
1) an unlawful conviction, unlawful indictment, unlawful arrest and detention on remand, unlawful search, unlawful attachment of property, unlawful suspension from work and other procedural actions that affect their rights;
2) an unlawful administrative arrest or correctional labour, unlawful forfeiture of property, and the unlawful imposition of fines;
3) the unlawful conduct of operational investigative activities.
Article 2 of the Law (the ratione personae scope of this Law) may be found in the judgment of 5 April 2005 in the case of Afanasyev v. Ukraine (no. 38722/02, § 52).
36. Article 12 provides that the amount of the compensation is determined by the authority which conducted the investigation or the court which tried the case. If the applicant considers the awarded amount insufficient, he/she may challenge this decision before a court or a court of appeal respectively.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60634
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SOVTRANSAVTO HOLDING v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (ratione temporis);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine art. 14;Just satisfaction reserved
JUDGES: Georg Ress
TEXT: 9. The applicant company, Sovtransavto Holding, an international transport undertaking, is a Russian limited company that was set up in 1993 and has its registered office in Moscow.
10. Between 1993 and 1997 the applicant company held 49% of the shares in Sovtransavto-Lugansk, a Ukrainian public limited company.
11. On 3 January 1996 a general meeting of Sovtransavto-Lugansk's shareholders adopted a resolution altering the company's memorandum and articles of association, converting it into a private limited company. On 23 January 1996 the Lugansk Executive Council (виконавчий комітет), a municipal body legally vested with the requisite power, ratified the decision of 3 January.
12. By decisions of 26 December 1996, 11 August 1997 and 20 October 1997, Sovtransavto-Lugansk's managing director increased the company's share capital, each time by one-third, and altered its memorandum and articles of association accordingly. These decisions were ratified by the Lugansk Executive Council on 30 December 1996, 12 August 1997 and 18 November 1997 respectively.
13. These increases in Sovtransavto-Lugansk's share capital enabled its directors to assume sole control of the company's management and assets. The applicant company's shareholding fell from 49% to 20.7%.
14. According to the applicant company, between 1997 and 1999 some of Sovtransavto-Lugansk's assets were sold to various undertakings that had been set up by its managing director.
15. On 25 June 1997 the applicant company lodged a complaint (Case no. 70/10-98) with the Lugansk Region Arbitration Tribunal (the court of first instance in the present case) against Sovtransavto-Lugansk and the Lugansk Executive Council. It sought a declaration that the decisions altering Sovtransavto-Lugansk's memorandum and articles of association and the Executive Council's decision of 23 January 1996 ratifying the changes were unlawful. It submitted that, contrary to the requirements of the legislation in force and Sovtransavto-Lugansk's memorandum and articles of association, the general meeting on 3 January 1996 had been organised without the participation or agreement of the representatives of Sovtransavto Holding. Moreover, the minutes had not been signed by all the shareholders. On 4 August 1997 the Arbitration Tribunal rejected the applicant company's claim.
16. On 9 September 1997 the applicant company lodged with the President of the Lugansk Region Arbitration Tribunal an application for revision under the “supervisory review” procedure (заява про перевірку рішення у порядку нагляду) [Note by the Registry. Under the arbitration rules in force prior to 21 June 2001, an application for revision was a remedy that allowed the parties to seek “supervisory review” of a final judgment or order of an arbitration tribunal] of the judgment of 4 August 1997. In a judgment of 14 October 1997, the tribunal's Vice-President refused the application.
17. On 21 November 1997 the applicant company applied to a bench of the Ukrainian Supreme Arbitration Tribunal seeking revision under the “supervisory review” procedure of the two judgments mentioned above. In a judgment of 6 March 1998 the bench set aside the judgments of 4 August and 14 October 1997 on the ground that the tribunals concerned had not taken sufficient account of the facts of the case and the applicant company's arguments. It remitted the case for reconsideration to the Kiev Region Arbitration Tribunal (which thus became the court of first instance in the case) and asked it to pay special attention to the need for a detailed examination of the facts of the case and the documents produced by the parties.
18. On 16 January 1998 Sovtransavto-Lugansk's board sent the Ukrainian President a letter asking him to “place the case under his personal control” in order to ensure that “Ukrainian interests [were] safeguarded”. In a letter of 3 February 1998 the President of Ukraine urged the President of the Supreme Arbitration Tribunal to “defend the interests of Ukrainian nationals”.
19. On 1 February 1998 a general meeting of Sovtransavto-Lugansk's shareholders adopted a revised version of the company's memorandum and articles of association. On 17 February 1998 the Lugansk Executive Council ratified that decision.
20. In a coded telegram of 6 March 1998 the Chief Executive of the Lugansk Region informed the Ukrainian President that, notwithstanding his resolution of 28 January 1998 calling for the defence of national interests, the Supreme Arbitration Tribunal had set aside the judgments of 4 August and 14 October 1997 and remitted the case for reconsideration, a decision which, in his opinion, constituted a threat to Sovtransavto-Lugansk's ability to carry on its business and adversely affected Ukraine's interests in Russia's favour. He asked the President to intervene in the case immediately in order to defend the interests of the Ukrainian company and of Ukrainian nationals.
21. Between 10 and 31 March 1998 the Ukrainian Securities Exchange Commission (Державна Комісія з цінних паперів та фондового ринку), a public body responsible for supervising limited companies, investigated the activities of Sovtransavto-Lugansk. On 29 April 1998 it found that the general meeting of shareholders of 3 January 1996 and the decisions subsequently adopted by the company's management had not complied with the legislation in force.
22. On 19 May 1998 Mr T. (a member of the Ukrainian parliament) urged the President of Ukraine to “defend the interests of Ukrainian nationals”. In a resolution adopted on the same day the President once again drew the President of the Supreme Arbitration Tribunal's attention to the need to protect the State's interests.
23. On 20 May 1998, during the trial, Mr Kravchuk (the arbitrator appointed by the Kiev Region Arbitration Tribunal) publicly refused to conduct the proceedings on account of the heavy pressure brought to bear by the defendants (Sovtransavto-Lugansk and the Lugansk Executive Council). On 21 May 1998 another arbitrator was appointed.
24. On 28 May 1998 the President of the Supreme Arbitration Tribunal sent the President of the Kiev Region Arbitration Tribunal a copy of the Ukrainian President's resolution of 19 May 1998 so that it could be taken into account when the applicant company's case was considered.
25. On 3 June 1998 the applicant company made a further application against Sovtransavto-Lugansk and the Lugansk Executive Council (Case no. 13/10-98) to the Kiev Region Arbitration Tribunal, seeking a declaration that the following decisions were unlawful: firstly, the decisions to increase the share capital and alter the memorandum and articles of association taken by Sovtransavto-Lugansk's managing director on 26 December 1996, 11 August and 20 October 1997; secondly, the ratification of those decisions by the Executive Council on 30 December 1996, 12 August and 18 November 1997; and thirdly, the ratification by the Executive Council on 17 February 1998 of the resolution to alter the memorandum and articles of association adopted by the general meeting of Sovtransavto-Lugansk shareholders on 1 February 1998.
26. On 9 June 1998 the Kiev Region Arbitration Tribunal adjourned Case no. 13/10-98 until after judgment had been given in Case no. 70/10-98.
27. By a letter of 17 June 1998 the Vice-President of the Supreme Arbitration Tribunal asked the President of the Kiev Region Arbitration Tribunal to “take the case under his personal control”.
28. On 23 June 1998 the Kiev Region Arbitration Tribunal tried Case no. 70/10-98 and, after stating in a set formula that neither the decision of 3 January 1996 to alter Sovtransavto-Lugansk's memorandum and articles of association nor the ratification of that decision on 23 January 1996 had been unlawful, refused the applicant company's application.
29. It then tried, on the same day, Case no. 13/10-98 and, after stating in a set formula that the decisions challenged by the applicant company were lawful, refused its application.
30. On 2 July 1998 the applicant company lodged with the President of the Kiev Region Arbitration Tribunal two applications for revision under the “supervisory review” procedure of the judgments of 23 June 1998 in Cases nos. 13/10-98 and 70/10-98. It submitted in particular that the defendants had breached Law no. 1576-XII of 19 September 1991, Law no. 533-XII of 7 December 1990 and Government Ordinance no. 276 of 29 April 1994, governing the activities of limited companies and the procedure for ratifying their decisions. It further complained that the proceedings before the first-instance court had not been public.
31. In two judgments of 12 October 1998 the Vice-President of the Arbitration Tribunal refused the applications, after upholding the findings of the first-instance court.
32. On 24 November 1998 the applicant company applied to a bench of the Ukrainian Supreme Arbitration Tribunal seeking revision under the “supervisory review” procedure of the judgments concerning it. In two judgments of 12 January 1999 the bench dismissed the appeals relating to Cases nos. 13/10-98 and 70/10-98, reproducing the set formulas used by the first-instance court.
33. In February 1999 the applicant company asked the Ukrainian Attorney-General's Office to intervene in the arbitration proceedings concerning Cases nos. 13/10-98 and 70/10-98 to verify their lawfulness. It also asked the Supreme Arbitration Tribunal to issue an objection under the “supervisory review” procedure (протест у порядку нагляду) [Note by the Registry. Under the arbitration rules in force prior to 21 June 2001, an objection was a remedy that allowed the Attorney-General's Office or, as the case may be, the President of the Ukrainian Supreme Court or their deputies to seek the annulment of a final judgment or order of an arbitration tribunal] seeking revision of all the judgments in the cases in which it was involved.
34. In a letter of 26 February 1999 the head of the arbitration proceedings department of the Attorney-General's Office refused the applicant company's application on the ground that in the cases in question the participation of a representative of the State was not necessary.
35. On 8 June 1999 a general meeting of Sovtransavto-Lugansk's shareholders, organised, according to the applicant company, without its participation, decided to wind the company up.
36. In April 2000 the President of the Supreme Arbitration Tribunal lodged an objection under the “supervisory review” procedure to the Presidium of that court seeking annulment of all the judgments relating to Cases nos. 13/10-98 and 70/10-98. In a judgment of 21 April 2000 the Presidium of the Supreme Arbitration Tribunal set aside the judgments of 23 June 1998, 12 October 1998 and 12 January 1999 and remitted Cases nos. 13/10-98 and 70/10-98 to the Kiev Region Arbitration Tribunal for reconsideration. In its judgment it held that the arbitration tribunals' judgments had been given without a proper, detailed examination of the facts and the parties' arguments, and that their rulings had been contradictory and premature in that they had not taken into account either the findings of the Ukrainian Securities Exchange Commission, which had revealed that a number of decisions taken by Sovtransavto-Lugansk's board had contravened the provisions of the legislation in force, or the requirements of the legislation governing the ratification of the memorandum and articles of limited companies; moreover, there had been no verification whether Sovtransavto-Lugansk's memorandum and articles of association complied with the legislation in force.
37. In a letter of 12 May 2000 the President of the Kiev Region Arbitration Tribunal drew the attention of the President of the Supreme Arbitration Tribunal to the fact that “in a judgment of 21 April 2000 the Supreme Arbitration Tribunal [had] set aside the judgments given by the arbitration tribunals two years [before] in Cases nos. 13/10-98 and 70/1098” and that “the Kiev Region Arbitration Tribunal [had] already ruled on the matter”. He observed that “certain events concerning the case cast doubt on the guarantee that the Tribunal's judges [would] try the case impartially, a circumstance which [might] entail negative consequences”. He asked the President of the Supreme Arbitration Tribunal to remit Cases nos. 13/10-98 and 70/10-98 to another tribunal with a view to “guaranteeing the objectivity and impartiality of the proceedings”.
38. In a letter of 25 May 2000 the President of the Supreme Arbitration Tribunal refused the President of the Kiev Region Arbitration Tribunal's request for Cases nos. 13/10-98 and 70/10-98 to be remitted to another court, having noted that the judgment of 21 April 2000 complied with the legislation in force.
39. On 7 August 2000 the Kiev Region Arbitration Tribunal tried Cases nos. 13/10-98 and 70/10-98. After examining the documents submitted by the applicant company and noting that Sovtransavto-Lugansk had been wound up, it ordered the Lugansk Executive Council to produce the documents concerning the winding-up and the originals of the documents concerning the registration of a limited company, Trans King, that had been set up with Sovtransavto-Lugansk's assets. It adjourned the case until 7 September 2000.
40. On 7 September 2000 the Kiev Region Arbitration Tribunal, after noting that it was necessary for State Counsel's Office to take part in the proceedings, adjourned the case until 18 October 2000.
41. On 25 October 2000 the Kiev Region Arbitration Tribunal, noting that it was necessary for the documents relating to Cases nos. 13/10-98 and 70/10-98 to undergo further examination by the Attorney-General's Office, adjourned the case.
42. In a judgment of 23 April 2001 the Kiev Region Arbitration Tribunal allowed the applicant company's claims in part, in so far as it ordered Trans King, the successor of Sovtransavto-Lugansk, to return to the applicant company part of the assets it had owned at the material time, but refused the applicant company's claim against the Lugansk Executive Council. In particular, the Tribunal held that Sovtransavto-Lugansk's managing director's decisions of 26 December 1996, 11 August 1997 and 20 October 1997 to increase the company's share capital and alter its memorandum and articles of association had been unlawful, as under applicable law such decisions could only be taken by the board. It further held that as a result of those decisions the applicant company's rights in respect of the management of Sovtransavto-Lugansk and control of its assets had been infringed and that the compensation the applicant company had received following the winding-up of Sovtransavto-Lugansk had not been in proportion to the applicant company's shareholding when Sovtransavto-Lugansk's memorandum and articles of association were ratified in January 1996.
43. By an order of 7 May 2001 the Lugansk court bailiffs' service stayed execution of the judgment of 23 April 2001 because the defendant company had lodged an application with the President of the Kiev Region Arbitration Tribunal seeking revision thereof under the “supervisory review” procedure.
44. In a judgment of 24 January 2002, following an objection by the Ukrainian Attorney-General's Office and an application under the “supervisory review” procedure by Trans King, the bench of the Kiev Economic Court of Appeal (the appellate court in the instant case following the reform of the judicial system), set aside the order in the Kiev Region Arbitration Tribunal's judgment of 23 April 2001 for the restitution of the applicant company's assets and dismissed all the applicant company's claims.
45. On 25 February 2002 the applicant company lodged an appeal on points of law with the bench of the Ukraine Supreme Economic Court (as the former Supreme Arbitration Tribunal was now known, following the reform of the judicial system) against the judgment of 24 January 2002.
46. In an order of 2 April 2002, the bench of the Ukraine Supreme Economic Court dismissed the applicant company's appeal on points of law without examining it on the merits. It found, in particular, that the applicant company had not furnished any evidence that it had paid the court fee due to the Supreme Economic Court for the examination of the appeal on points of law. The Supreme Economic Court reimbursed the applicant company the sum it had paid in respect of the court fee and advised it that it could resubmit its appeal once it had completed that formality.
47. The applicant company lodged its appeal on points of law afresh. By an order of 26 April 2002, the bench of the Ukraine Supreme Economic Court dismissed the appeal without examining it on the merits, finding, inter alia, that it had been lodged out of time and there had been no application for an extension of time.
48. Section 1 of the Act provides:
“In accordance with the Constitution of Ukraine, the arbitration tribunals shall have jurisdiction in economic cases.
The arbitration tribunal is an independent entity with jurisdiction in all economic cases between corporations, public or other bodies and litigation arising out of insolvency.”
49. The relevant provisions of the Code of Civil Procedure provide:
“Judgments and court orders or decisions which have become final may be reconsidered under the supervisory review procedure on an objection [протест] lodged by one of the officials specified in Article 328 of this Code.”
“The following officials are empowered to lodge objections under the supervisory review procedure with a view to securing the revision of judgments and court orders or decisions which have become final:
(1) the President of the Ukrainian Supreme Court, the Attorney-General and their deputies ...;
(2) the presidents of the Supreme Court of Crimea, the regional courts, the Kiev District Court and the Sebastopol District Court and their deputies, and State counsel at the Supreme Court of Crimea, the regional courts, the Kiev District Court and the Sebastopol District Court and their deputies ...;
(3) the presidents of the regional military tribunals and military or admiralty courts, military prosecutors ... and their deputies ...”
“The officials mentioned in Article 328 of this Code ... are empowered to require the relevant court to submit the file on a civil case to them so that they can decide whether there are grounds for an objection under the supervisory review procedure.
...
Where there are no grounds for an objection, the official concerned shall notify his or her decision to the person who requested revision, with a short statement of the reasons for it, the case being remitted to the relevant court.”
50. The relevant provisions of the Code of Arbitration Procedure provide:
“The lawfulness and merits of a judgment, order or decision of an arbitration tribunal ... may be reconsidered under the supervisory review procedure on an application by a party or an objection by State Counsel or his deputy, in accordance with the said Code and other Ukrainian laws.
An application by a party for revision of a judgment, order or decision under the supervisory review procedure shall be examined by the President of the Supreme Arbitration Tribunal of Crimea or his deputy, by the presidents of the regional arbitration tribunals, the Kiev City Arbitration Tribunal or the Sebastopol City Arbitration Tribunal or their deputies, or by a bench of the Ukrainian Supreme Arbitration Tribunal.
The following persons are empowered to lodge an objection:
The Attorney-General and his deputies ...;
State counsel at the courts of Crimea, the regions, Kiev City and Sebastopol City and their deputies ...”
“The President of the Supreme Arbitration Tribunal of Ukraine, the Attorney-General or his deputies shall be entitled to lodge an objection with the Presidium of the Supreme Arbitration Tribunal seeking revision of a judgment of a bench of the Supreme Arbitration Tribunal in an economic case.
...”
“...
An objection by the Attorney-General or his deputy for revision of a judgment, order or decision under the supervisory review procedure shall not stay execution of the decision concerned ...”
“An application by a party for revision of a judgment, order or decision under the supervisory review procedure must be lodged within two months of the date of the judgment, order or decision in question.”
“The parties may participate in proceedings for the revision of a judgment, order or decision under the supervisory review procedure. ...
Revision of a judgment, order or decision under the supervisory review procedure must be completed within two months of the lodging of an application or objection. ...
...
The judgment, order or decision of the arbitration tribunal may be revised under the supervisory review procedure no later than one year after its delivery or issue.”
“Following revision of a judgment, order or decision under the supervisory review procedure, an arbitration tribunal may:
(i) leave the judgment, order or decision as it stands;
(ii) vary the judgment, order or decision;
(iii) quash the judgment, order or decision and adopt a new decision, adjourn the case for further consideration, close the case or decline to entertain the application.
The judgment, order or decision of the arbitration tribunal shall be examined as a whole, irrespective of the grounds for the application or objection.
An arbitration tribunal examining an application for revision of a judgment, order or decision under the supervisory review procedure shall be vested with all the powers of an arbitration tribunal considering an economic dispute.
Where a judgment, order or decision has been revised under the supervisory review procedure by the Supreme Arbitration Tribunal, its judgment shall be final ...”
“Following revision under the supervisory review procedure of a judgment of the Supreme Arbitration Tribunal of Crimea, a regional arbitration tribunal, the Kiev City Arbitration Tribunal or the Sebastopol City Arbitration Tribunal, the arbitration tribunal concerned shall issue, in the name of Ukraine, a reasoned decision.
The decision shall be signed by the President of the Supreme Arbitration Tribunal of Crimea or his deputy, the President of the regional arbitration tribunal or his deputy, the President of the Kiev City Arbitration Tribunal or his deputy or the President of the Sebastopol City Arbitration Tribunal or his deputy.
Following revision under the supervisory review procedure of a judgment, order or decision of a bench of the Ukrainian Supreme Arbitration Tribunal, the bench concerned shall issue, in the name of Ukraine, a reasoned judgment signed by all its judges.”
“Directions set out in a judgment delivered following the revision of a judgment, order or decision under the supervisory review procedure shall be binding on the arbitration tribunal to which the case is remitted for retrial.
...”
“Judgment, orders and decisions of arbitration tribunals shall be effective on the day they are delivered or issued and all undertakings, organisations and public authorities shall be bound to comply with them.”
51. The relevant provisions of the Constitution read as follows:
“Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.”
“Municipal bodies shall exercise their powers in accordance with the statutory rules of competence; decisions of municipal bodies shall be mandatory in the area concerned.
Execution of decisions of municipal bodies shall be stayed, in accordance with the law, if their compatibility with the Constitution or the legislation in force is contested in the courts or tribunals.”
52. Under this Act, the system of arbitration tribunals was replaced by a system of economic courts with jurisdiction to try disputes relating to economic matters.
Section 5 of the Act provides that the system shall comprise three levels of jurisdiction: district economic courts, economic courts of appeal and the Supreme Economic Court of Ukraine.
53. The Code of Economic Procedure of 6 November 1991 (as renamed and amended on 21 June 2001) abolished the objection (протест) procedure.
Article 53 provides that economic courts may grant extensions of time on an application by a party or State Counsel or on their own initiative.
Article 110 lays down that appeals on points of law may be lodged no later than one month after the judgment of the district economic court or the economic court of appeal shall have become effective.
Article 111 requires notices of appeal on points of law to be accompanied, inter alia, by evidence that the court fee has been paid to the court or tribunal.
Article 111-3 § 4 provides that courts and tribunals shall return notices of appeal on points of law to the appellant without examining the appeal on the merits if the appellant fails to furnish evidence that the court fee has been paid to the tribunal.
Article 111-3 § 5 provides that courts and tribunals shall return notices of appeal on points of law to the appellant without examining the appeal on the merits if it has been lodged out of time and the appellant has not applied for an extension of time.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80460
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CUSTERS, DEVEAUX AND TURK v. DENMARK
IMPORTANCE: 3
CONCLUSION: No violation of Art. 7
JUDGES: Snejana Botoucharova
TEXT: 8. In 1951 an American air base was established on the Dundas peninsula in the Thule District of north-west Greenland. With the establishment of an anti-aircraft artillery unit in 1953 the air base area was expanded. It was reduced in size in the mid-1980s and in 2003.
9. The applicants were members of Greenpeace. In the summer of 2001 they took part in an action around the Thule Air Base designed to draw international attention to the use of a radar (the Thule Radar) for the American missile defence programme and to collect information on the environmental impact of the presence of the air base on the Dundas peninsula.
10. Before the action in question, on 25 July 2001, two Greenpeace members had had a meeting with the Chief of Police of Greenland, during which they had been informed of the legislation relating to Thule Air Base and the consequences of a possible refusal by the relevant authorities of permission to visit the air base area.
11. On 27 July 2001 Greenpeace requested permission to visit “the Dundas peninsula around the Thule Air Base”. By fax of 30 July 2001 the Danish Ministry of Foreign Affairs informed Greenpeace that Thule Air Base, including the Dundas area, was a “defence area”, and that civilians could gain access to this area only with permission from the Ministry of Foreign Affairs and the American authorities. By fax of 2 August 2001 the Ministry of Foreign Affairs refused Greenpeace permission to access the Dundas peninsula and Thule Air Base.
12. On 6 August 2001 the applicants and other Greenpeace activists arrived off the coast of the Dundas peninsula by a vessel called the M/V Arctic Sunrise. Some of the activists went ashore at the beach of Dundas and put up a banner. They were ordered to leave the area immediately by the police. The applicants, using a rubber dinghy, landed at Savigssuaq, which is south of Thule Air Base. Thereafter they walked approximately 30 km northwards overland to Shelter 7, to the east of the base, where they were arrested on 7 August 2001 at 8 p.m. and charged with trespassing.
13. Shelter 7 is one of several emergency shelters built along a road almost 18 km in length running from the built-up part of the base area to the Thule Radar. Emergency shelters have been built at intervals of 1-2 km along the road to ensure that base personnel are able to seek shelter in the event of sudden bad weather on their way out to the radar facility. Shelter 7 is 10.7 km from the built-up part of the Thule Air Base and 7.2 km from the Thule Radar.
14. The exact size of the defence area was disputed between the parties. The Government maintained that the Thule Air Base comprised approximately four hundred square kilometres at the relevant time. After the events in question, on 20 February 2003, the area was reduced in size and the Dundas peninsula became a non-prohibited area to which all civilians could gain access without permission. The applicants submitted that the exact size of the defence area was confidential and thus unknown to the public.
15. An official map called “Sheet no. 76.V.1, Dundas, scale 1:250:000” was produced by the Danish Geodetical Survey. The map bore the following indications: “Place names, centres of population and other details 1954”, “Corrections 1983” and “Printed by the Danish Geodetical Survey 1983”. The airfield was shown, but there was no indication of an air base. A similar map was reproduced photographically by Saga Maps.
16. Based on the map by the Danish Geodetical Survey, another map was produced and published as an annex to a report published in December 1994 entitled “Report on the relocation of the Thule Tribe in 1953”. This map, (“the annex map”), had a bold line drawn on it which, according to the Government, demarcated the Thule Air Base, comprising a large area exceeding the area of the Dundas peninsula. The applicants disputed this assertion, pointing out that the origin of and reason for the line were unknown.
17. In 2001 the Thule Air Base was not fenced off or marked with signs, save for some “No Entry” signs by the harbour and on the road leading from the airfield to the built-up part of the base.
18. At the time of their arrest the applicants were in possession of a Global Positioning System (GPS device) and the official Saga map of the area, on which they had marked nine different positions. In a notebook found on one of the applicants the nine positions were listed with the corresponding degrees of latitude and longitude and the following descriptions: “initial landing” “radar (E)”, “radar (W)” and “airstrip”. The applicants were also carrying cameras and a camcorder. The police seized a film containing photos taken by the applicants during their walk. Some of the photos showed the applicants holding banners with the wording “Stop Star Wars” and “No to new arms race”, with some of the military facilities of the Thule Air Base pictured in the background.
19. Material downloaded from the Greenpeace website at the relevant time contained various statements, including the following: “But still inside, two days into the Thule Peace Trek are three other activists, who have been walking and camping in Arctic conditions since Monday, and so far remain undetected” and an extract from a so-called action line recording by the activist saying “We are now on the second day of our walk ... it's been an intense couple of days, we've been blasted by the wind, gotten cold every time we stopped, forded deep icy cold rivers, walked across ice, but also had some real beauty...”.
20. The applicants were released on 8 August 2001 at 6 p.m., after indictments of the same date had been served on them. The charges against them were detailed as follows:
“Violation of Article 69a of the Penal Code and Article 132 § 2, taken together with [Article 132] § 1 and section 3(1)(d) of Executive Order no. 39 of 22 February 1967 on travel to and within Greenland (Bekendtgørelse om rejser til og i Grønland) (“the Travel Order”) in that, without permission having been granted to the environmental organisation Greenpeace, [the applicants], using a rubber dinghy from the vessel M/V Artic Sunrise, went ashore on 6 August 2001 in the area around (ved) Thule Air Base, where they took pictures with cameras and video cameras, and were found by the police at Shelter 7 on 7 August 2001 at around 6.30 p.m.”
21. By judgment of 11 September 2001 given in absentia, the applicants were convicted as charged by the High Court of Greenland (Grønlands Landsret). They were each sentenced to a fine of 5,000 Danish kroner (DKK) (approximately 670 euros (EUR)). In handing down the sentence, the court took into account the fact that, as Greenpeace activists, the applicants had participated in a carefully planned action. In addition, the notebook, the Saga map of the air base area, a video film and fiftyone photos had been confiscated. The relevant parts of the High Court judgment stated:
“On the evidence, the court finds that [the applicants] carried out the acts described in the indictment. As [the applicants] did not obtain permission to enter the base area, as required by section 3(1)(d) of Executive Order no. 39 of 22 February 1967 on travel to and within Greenland, they have violated section 3 of the Order. As made clear by the explanatory notes to Article 132 of the Penal Code, the Travel Order has as its legal basis “established practice” within the meaning of Article 131 of the Penal Code.
...
In view of the location of the base and considering that the applicants, aiming for the base, had to walk several kilometres across rough terrain and that access to the base requires special permission under the Travel Order, the court finds that the base is a “place not freely accessible” for the purposes of Article 69a (i) of the Penal Code. Accordingly, and as their presence was unauthorised, as stated above, [the applicants] are found guilty of having violated Article 69a (i) of the Penal Code.”
22. The applicants appealed to the High Court of Eastern Denmark (Østre Landsret) before which they argued, as they had done before the firstinstance court, that the act in question did not constitute a criminal offence.
23. According to them, Executive Order no. 39 of 22 February 1967, relied on by the prosecution, did not have legal authority. Concerning Article 69a (i) of the Penal Code, they submitted that it could not be established whether or not they had trespassed, as the limits of the military area had never been officially defined. The applicants further maintained that lay judges should have participated in the proceedings before the firstinstance court. However, the latter complaint was later withdrawn.
24. Before the High Court of Eastern Denmark the prosecution submitted the annex map in support of the charge that the applicants had entered a “place not freely accessible” within the meaning of Article 69a of the Penal Code.
25. By judgment of 3 October 2002 the High Court of Eastern Denmark confirmed the first-instance court's judgment stating, inter alia:
“On the evidence produced before the High Court, [the applicants] are found guilty of a violation of section 3(1)(d) of Executive Order no. 39 of 22 February 1967 on the grounds stated in the judgment. As [the applicants] thus gained unauthorised access to a place not freely accessible, they have also violated Article 69a (i) of the Penal Code. In view of the nature of the area, this violation is not insignificant.”
26. The applicants' request of 19 March 2003 for leave to appeal against the judgment to the Supreme Court was refused by the LeavetoAppeal Board (Procesbevillingsnævnet) on 5 October 2004.
27. Executive Order no. 39 of 22 February 1967 on travel to and within Greenland (Rejsebekendtgørelsen) (“the Travel Order”), as amended by Executive Order no. 266 of 21 May 1976, was issued by the then Ministry of Greenland. It was promulgated in the 1967 Greenland Gazette (Nalunaarytit) (p. 20).
28. Pursuant to section 1 of the Travel Order, any person may enter or leave Greenland without limitation, subject to the restrictions laid down in the Travel Order and in the Aliens' Access to Denmark Act (Lov om udlændinges adgang til landet m.v.) and the provisions enacted under the latter.
29. Section 3 of the Travel Order provides detailed rules on entry to and residence in the defence areas in Greenland established in accordance with the agreement on the defence of Greenland signed on 27 April 1951 by the Governments of the Kingdom of Denmark and the United States of America under the North Atlantic Treaty. Section 3(1)(d) of the Order reads as follows:
“... In order to obtain access to the defence areas, persons other than those referred to in paragraphs (a), (b), and (c) [certain military personnel, etc.] must obtain permission for each trip from the Ministry for Greenland or – subject to the latter's authorisation – from other Danish State authorities, in addition to permission from the relevant military authority if required.”
30. Breaches of the Travel Order are punishable by a fine under section 5 of the Order taken in conjunction with Article 117 § 3 of the Penal Code for Greenland (Act no. 55 of 5 March 1954 (see below)).
The Travel Order entered into force on 1 April 1967 in accordance with section 6(1).
31. At the same time, Executive Order no. 79 of 22 March 1954 issued by the Prime Minister's Office on travel to and within Greenland (the 1954 Travel Order), as amended by the Executive Orders of 12 May 1961 and 16 July 1955 on permission to travel through the defence areas, was repealed under section 6(2) of the Travel Order.
32. Apart from the applicants' criminal case, the punitive sanctions provided for by Executive Order no. 39 of 22 February 1967 have never been applied. According to documents from the Public Records Office (Rigsarkivet) (Ministry of Greenland file no 0400-06-01 containing correspondence from 1969 between the Danish military liaison officer at Thule Air Base and the Ministry of Greenland), a woman was found to have travelled to Thule Air Base on 14 February 1969 on the false pretext of visiting a married couple at Dundas. It turned out that she was not visiting any local inhabitants, but a male worker at Thule Air base, who was forced to resign his job at the base as a result of the incident. Although it appears that the woman breached the Executive Order by giving false information in order to gain access to the base, no charges were brought against her.
33. Executive Order no. 79 of 22 March 1954 on travel to and within Greenland entered into force on 1 April 1954. Section 1 stipulated that the rules laid down in the Order applied to Danish nationals' entry to and residence in Greenland.
34. The Executive Order introduced for the first time a provision on access to defence areas in Greenland. Hence, under section 5(1) of the Order, military and civilian personnel whose presence in the defence areas or on other sites in Greenland was necessary in connection with activities pursuant to the 1951 agreement between the Governments of the Kingdom of Denmark and the United States of America on the defence of Greenland, and members of their families, were allowed to enter and leave the defence areas or other such sites in Greenland.
35. According to section 5(2) of the Executive Order, persons other than those referred to in subsection (1) could gain access to the defence areas in Greenland established pursuant to the agreements referred to in subsection (1), and which the Government of the United States of America were responsible for operating and maintaining, only if they had obtained prior special permission from the Prime Minister's Office or from the Governor of Greenland under the authority of the Prime Minister's Office, in addition to permission from the relevant military authority if required.
36. Breaches of Executive Order no. 79 of 22 March 1954 were punishable by a fine under section 6.
37. Executive Order no. 79 of 22 March 1954 on travel to and within Greenland entered into force on 1 April 1954 in accordance with section 7(1). At the same time, under section 7(2) of the Order, the Executive Order issued by the Prime Minister's Office on 20 May 1948 on travel to and within Greenland was repealed.
38. Section 1 of the Executive Order of 20 May 1948 on travel to and within Greenland, issued by the Prime Minister's Office, specified that unless otherwise provided by special treaty between Denmark and other countries or by other special provision, travels to and within Greenland were subject to special permission from the Danish Government.
39. Under section 11(1) of the Order, breaches of its provisions were punishable by a fine.
The 1954 Penal Code for Greenland and
criminal-law practice before its entry into force
40. The Danish Penal Code does not apply in Greenland. Before 1954, the criminal law of Greenland consisted solely of the practice developed by the district courts of Greenland on the basis of fragmentary provisions in old legislation. Greenland had colonial status and was a predominantly closed country before the revision of the Danish Constitution in 1953. The Government submitted that, until the 1954 Travel Order entered into force, neither Danes nor foreigners had had access to the country without special permission, under provisions dating back as far as 1736. The applicants disputed this, arguing that Greenland had been opened up as a result of the Greenlandic reforms laws of 1950.
41. The 1953 revision of the Danish Constitution extended its scope of application to all parts of the Danish realm, including Greenland.
42. With the Penal Code for Greenland (Act no. 55 of 5 March 1954), most elements of the practice developed by the districts courts of Greenland were given statutory form. The Penal Code was adopted on 19 February 1954 and became law by royal assent on 5 March 1954. It entered into force on 15 July 1954.
43. Under Article 1 of the Penal Code for Greenland, the sanctions authorised by the Code may be imposed only for offences referred to in the Code or equivalent offences (the principle of legality).
44. Article 69a reads as follows:
“Any individual who without good cause
(i) obtains access to another person's house or any other place not freely accessible (skaffer sig adgang til fremmed hus eller andet ikke frit tilgængeligt sted), or
(ii) fails to leave another person's house having been requested to do so
may be convicted of trespassing.”
45. Article 117 contained the following provision:
The rules on fines, forfeiture and compensation and other lesser sanctions laid down by provisions still in force shall remain in force subject to the amendments which follow from Parts 1 to 4 and 22 to 34 of this Code. Negligent breaches of such provisions shall give rise to liability to the same extent as hitherto.
Provisions that are issued in accordance with established practice (bestemmelser, som udstedes i medfør af hidtil gældende praksis), including bye-laws issued by the Provincial Council (Landsrådet) and local authorities, may lay down rules on the imposition of cautions, fines, ouster and exclusion orders, forfeiture and confiscation, and disqualification from carrying on a trade or operating vessels or vehicles and from other similar rights based on official authorisation.
46. The explanatory notes to Article 117 stated as follows:
“This provision, which has been prepared under the authority of the Provincial Council of Greenland, preserves a number of administrative rules on fines, forfeiture and compensation and other lesser sanctions. These represent various rules with a public-law content. The provision also confers legal authority to issue such rules in accordance with established practice. Although it has been found necessary in Article 1 of the Bill to lay down the principle, which is new for Greenland, that the imposition of criminal-law sanctions must be authorised by statute, it has not been considered possible to fully implement the principle during the period of transition in which Greenland currently finds itself in terms of its economy, society and culture.”
47. Act no. 105 of 27 March 1963, which entered into force on 1 July 1963, amended the provisions of Article 117 § 2 of the Penal Code, inserting a new Article 117 § 3.
48. Act no. 292 of 8 June 1978 revised the provisions of the Penal Code for Greenland concerning sanctions. A new Article 131 § 3 was inserted, which read as follows:
“Regulations that are issued in accordance with established practice (i forskrifter, der udstedes i overensstemmelse med hidtil gældende praksis), including bye-laws issued by the Provincial Council and local authorities, may stipulate that violations of such regulations are punishable by fines, forfeiture and confiscation and disqualifications. Such sanctions shall then be applied in accordance with the rules in Parts 1 to 4, 22 to 24 and 30 to 33 of this Code.”
The Act entered into force on 1 January 1979.
49. By Act no. 335 of 16 May 2001, which entered into force on 1 June 2001, the Penal Code for Greenland was once more amended. A new Article 132 was inserted, which read as follows:
“1. The Minister of Justice may issue regulations on access to certain parts of Greenland, and the conditions [for such access], including the inland ice, the National Park in Northern and Eastern Greenland and access to and from the defence areas established pursuant to the agreement of 27 April 1951 between the Governments of Denmark and the United States on the defence of Greenland.
2. With regard to intentional or negligent breaches of the provisions set out in regulations adopted under subsection 1, rules may be laid down imposing measures as set out in Article 85 [for instance, fines and confiscation].”
50. The preparatory notes to the Act (L130, introduced on 6 December 2000) stated, among other things (section 3.1):
“The Executive Order on travel to and within Greenland [Order no. 39 of 22 February 1967], issued by the then Ministry for Greenland, has as its legal basis “established practice” within the meaning of Article 131 § 3 of the Penal Code. The required amendments [to the Penal Code, for example, the insertion of Article 132] were not undertaken earlier by means of administrative measures, since the new rules in question could hardly be issued under the authority of the said provision [Article 131 § 3 of the Penal Code].”
51. It appears from the explanatory notes to the Bill that the purpose of inserting the enabling provision in Article 132 of the Penal Code was to provide a legal basis for updating rules in that field and, in that connection, to expand the authorities' right to regulate expedition activities in Greenland for the particular purpose of limiting the number of cases where rescue operations had to be launched and of facilitating the implementation of rescue operations.
52. At the time of the events in the present case the Minister of Justice had not issued any regulations under Article 132 of the Penal Code.
53. Since the entry into force on 15 July 1954 of the Penal Code for Greenland (Act no. 55 of 5 March 1954), there have been no examples of executive orders issued “in accordance with established practice” taking Article 117 § 2 (later Articles 117 § 3 and 131 § 3 respectively) as their legal basis, with the exception of Executive Order no. 39 of 22 February 1967 on travel to and within Greenland. Various local bye-laws (Politivedtægter), however, have been issued on the basis of this legal authority and by 2005 charges had been brought in 136 cases concerning violations of these bye-laws.
NON_VIOLATED_ARTICLES: 7


ITEMID: 001-61926
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SHMALKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Zoryana Bortnovska
TEXT: 5. The applicant, Mr Anatoliy Afanasiyovych Shmalko, is a Ukrainian national, who was born in 1930 and currently resides in Dnepropetrovsk. He is a disabled pensioner and a veteran of the Second World War. He suffers from myasthenia.
6. In March 1999 the applicant instituted proceedings in the Babushkinsky District Court of Dnepropetrovsk against the Dnepropetrovsk City Health Protection Department (“HPD”) and the Dnepropetrovsk City Hospital No. 1 (the “Hospital”), seeking compensation for moral and material damage caused by their refusal between 1996 and 1998 to provide him with the prescription drug Kalimin-60. He alleged that the State authorities had failed to provide him with this drug free of charge, contrary to Resolution No. 1303 of the Cabinet of Ministers of 17 August 1998. He further complained that because this drug was not provided to him, he had to buy it in Moscow, Germany and the United Kingdom. He requested reimbursement of the costs incurred.
7. On 29 September 2000 the Babushkinsky District Court of Dnepropetrovsk (the “Babushkinsky Court”) rejected the applicant’s claims as being unsubstantiated. It found that the HPD and the Hospital could not be held responsible for the failure to provide a drug simply because it was not available in the Dnepropetrovsk Region.
8. On 13 November 2000 the Dnepropetrovsk Regional Court allowed the applicant’s appeal, quashed the decision of 29 September 2000 and remitted the case for fresh consideration.
9. On 22 February 2001 the Babushkinsky Court rejected the applicant’s claims as being unsubstantiated.
10. On 26 March 2001, following an appeal filed by the applicant, the Dnepropetrovsk Regional Court quashed the decision of 22 February 2001 and again remitted the case for fresh consideration.
11. On 13 July 2001 the Babushkinsky Court rejected the applicant’s claims as being unsubstantiated.
12. On 10 October 2001 the applicant lodged an appeal with the Dnepropetrovsk Regional Court of Appeal under the new appeal procedure introduced by the Code of Civil Procedure on 21 June 2001. On 29 November 2001 the Dnepropetrovsk Regional Court of Appeal allowed the applicant’s claims in part. The court ordered HPD to pay the applicant UAH 722.70 and UAH 750 (a total of UAH 1,509.95 [EUR 237.37]) in compensation for material and moral damage, respectively. It also ordered the Hospital to pay the applicant UAH 393.65, UAH 750 and UAH 22.25 (a total of UAH 1,165.9 [EUR 183.28]) in compensation for material and moral damage, costs and expenses.
13. On 19 April 2002 the Bailiffs’ Service of the Babushkinsky District Department of Justice (the “Bailiffs’ Service”) instituted enforcement proceedings in respect of the judgment of 29 November 2001.
14. On 15 May 2002 the Bailiffs’ Service ordered that the funds awarded by the judgment of 29 November 2001 be transferred to the applicant’s bank account.
15. On 27 May 2002 a panel of three judges of the Supreme Court rejected the cassation appeal lodged by the Chief Doctor of the Hospital against the judgment of 29 November 2001 for want of substantiation. The institution of the cassation proceedings did not suspend the enforcement of the judgment of 29 November 2001.
16. On 17 October 2002 the writ of execution and the payment request were returned to the applicant because of the Hospital’s lack of funds.
17. On 21 October 2002 the Bailiffs’ Service requested the Dnepropetrovsk Regional State Treasury to inform it about the possibility of obtaining funds from the Hospital in order to enforce the judgment.
18. On 26 November 2002 the Bailiffs’ Service terminated the enforcement proceedings after UAH 1,165.9 had been transferred to the applicant’s bank account. The judgment was fully executed in so far as it concerned the Hospital.
19. On 25 December 2002 the Bailiffs’ Service requested the HPD to comply with the judgment of 29 November 2001 and to transfer the amount due to the applicant to his bank account.
20. On 16 January 2003 the HPD paid UAH 862.75 [EUR 135.63] to the applicant.
21. On 20 January 2003 the Bailiffs’ Service received the payment request and the writ of execution back from the HPD, with a statement that the judgment could not be fully enforced due to the HPD’s lack of funds.
22. On 21 January 2003 the Bailiffs’ Service requested the HPD to pay the applicant the remainder of the judgment debt.
23. On 7 February 2003 the HPD transferred the remainder of the funds (UAH 647.2 [EUR 101.74]) to the applicant’s account. The Bailiffs’ Service terminated the enforcement proceedings.
24. On 19 May 2003 the Babushkinsky Court rejected for lack of substantiation the applicant’s claims against the Dnepropetrovsk Regional Department of the State Treasury for an award of compensation for the moral damage he had allegedly suffered due to the lengthy period of non-enforcement of the judgment of 29 November 2000. This judgment was not appealed and thus became final.
25. Article 124 of the Constitution provided as follows:
“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
26. Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department for that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against a legal person, entrusted with the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgement, and to receive compensation.
27. Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.
28. Under clause 3.6 of the regulations, the forced recovery of funds must be executed from the same account as that of ordinary payments.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57547
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF NORRIS v. IRELAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 8. Mr David Norris was born in 1944. He is an Irish citizen. He is now, and has been since 1967, a lecturer in English at Trinity College, Dublin. At present he sits in the second chamber (Seanad Eireann) of the Irish Parliament, being one of the three Senators elected by the graduates of Dublin University.
9. Mr Norris is an active homosexual and has been a campaigner for homosexual rights in Ireland since 1971; in 1974 he became a founder member and chairman of the Irish Gay Rights Movement. His complaints are directed against the existence in Ireland of laws which make certain homosexual practices between consenting adult men criminal offences.
10. In November 1977 the applicant instituted proceedings in the High Court (see paragraphs 21-24 below) claiming that the impugned laws were no longer in force by reason of the effect of Article 50 of the Constitution of Ireland, which declared that laws passed before the Constitution but which were inconsistent with it did not continue to be in force. Evidence was given of the extent to which the applicant had been affected by that legislation and had suffered interference with his right to respect for private life. Salient points in this evidence were summarised as follows:
(i) The applicant gave evidence of having suffered deep depression and loneliness on realising that he was irreversibly homosexual and that any overt expression of his sexuality would expose him to criminal prosecution.
(ii) The applicant claimed that his health had been affected when in 1969 he fainted at a Dublin restaurant and was sent to Baggot Street Hospital for tests which resulted in his being referred to a psychiatrist. He was under the psychiatric care of Dr. McCracken for a period in excess of six months. Dr. McCracken’s advice to the applicant was that, if he wished to avoid anxiety attacks of this kind, he should leave Ireland and live in a country where the laws relating to homosexual behaviour had been reformed. Dr. McCracken stated in evidence that the applicant was in a normal condition at the time of the first consultation. He did not recall being made aware of a history of collapse.
(iii) No attempt had been made to institute a prosecution against the applicant or the organisation of which the applicant was then the chairman (see paragraph 9 above). The applicant informed the police authorities of his organisation’s activities but met with a sympathetic response and was never subjected to police questioning.
(iv) The applicant had participated in a television programme on RTE, the State broadcasting company, in or about July 1975. The programme consisted of an interview with him in the course of which he admitted to being a homosexual but denied that this was an illness or that it would prevent him from functioning as a normal member of society. A complaint was lodged against that programme. The Broadcasting Complaints Advisory Committee’s report referred to the existing law criminalising homosexual activity and upheld the complaint on the ground that the programme was in breach of the Current/Public Affairs Broadcasting Code in that it could be interpreted as advocacy of homosexual practices.
(v) The applicant gave evidence of suffering verbal abuse and threats of violence subsequent to the interview with him on RTE, which he attributed in some degree to the criminalising of homosexual activity. He also alleged in evidence that in the past his mail was opened by the postal authorities.
(vi) The applicant admitted to having a physical relationship with another man and that he feared that he or the person with whom he had the relationship, who normally lived outside Ireland, could face prosecution.
(vii) The applicant also claimed to have suffered what Mr Justice Henchy in a dissenting judgment in the Supreme Court (see paragraph 22 below) alluded to as follows:
"... fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends: and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in or thwarted from engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship."
11. It is common ground that at no time before or since the court proceedings brought by the applicant has he been charged with any offence in relation to his admitted homosexual activities. However, he remains legally at risk of being so prosecuted, either by the Director of Public Prosecutions or by way of a private prosecution initiated by a common informer up to the stage of return for trial (see paragraphs 15-19 below).
12. Irish law does not make homosexuality as such a crime. But certain statutory provisions in force in Ireland penalise certain homosexual activities. Some of these are penalised by the Offences against the Person Act, 1861 ("the 1861 Act") and the Criminal Law Amendment Act, 1885 ("the 1885 Act").
The provisions relevant to the present case are sections 61 and 62 of the 1861 Act. Section 61 of the 1861 Act, as amended in 1892, provides that:
"Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be kept in penal servitude for life."
Section 62 of the 1861 Act, as similarly amended, provides that:
"Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon a male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding ten years."
The offences of buggery or of an attempt to commit the same may be committed by male or female persons.
Section 11 of the 1885 Act deals only with male persons. It provides that:
"Any male person who, in public or in private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour."
13. Sections 61 and 62 of the 1861 Act should be read in conjunction with the provisions of the Penal Servitude Act 1891, section 1, by virtue of which the court is empowered to impose a lesser sentence of penal servitude than that mentioned in the 1861 Act or, in lieu thereof, a sentence of imprisonment for a term not exceeding two years or a fine. The provisions of the 1861 Act and of the 1885 Act are also subject to the power given to the court by section 1(2) of the Probation of Offenders Act 1907, to apply, by way of substitution, certain more lenient measures.
The terms "hard labour" and "penal servitude" no longer have any practical significance, since anyone now sentenced to "hard labour" or "penal servitude" will, in practice, serve an ordinary prison sentence.
14. The 1885 Act is the only one of the legislative provisions attacked in the instant case that can be described as dealing solely with homosexual activities. What particular acts in any given case may be held to amount to gross indecency is a matter which is not statutorily defined and is therefore for the courts to decide on the particular facts of each case.
15. The right to prosecute persons before a court other than a court of summary jurisdiction is governed by Article 30, section 3 of the Constitution which is as follows:
"All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."
Section 9 of the Criminal Justice (Administration) Act, 1924, as adapted by the Constitution (Consequential Provisions) Act, 1937, provides that:
"All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General of Ireland."
16. The provisions of the Prosecution of Offences Act 1974 extended to the Director of Public Prosecutions most of the prosecuting functions exercised by the Attorney General. The Director of Public Prosecutions (an office created by that Act) is independent of the Government and a permanent official in the Civil Service of the State as distinct from the Civil Service of the Government.
17. Any member of the public, whether an Irish citizen or not, has the right as a "common informer" to bring a private prosecution. He need not have any direct interest in the alleged offence or be personally affected by it. A private prosecutor’s rights are limited in respect of offences which are not triable summarily. In The State (Ennis) v. Farrell [1966] Irish Reports 107, it was held by the Supreme Court that the effect of section 9 of the Criminal Justice (Administration) Act 1924 was that a private prosecutor may conduct a prosecution up to the point where the judge of the District Court decides that the evidence is sufficient to warrant a committal for trial in cases of indictable offences i.e. triable with a jury. Thereafter the Attorney General, or now also the Director of Public Prosecutions, becomes dominus litis and must then consider whether or not he should present an indictment against the accused who has been returned by the District Court for trial with a jury.
18. The offences which are at issue in the present case, namely those set out in sections 61 and 62 of the 1861 Act and in section 11 of the 1885 Act, are indictable offences. Indictable offences are only triable summarily in the District Court if the judge of the District Court is of the opinion that the facts constitute a minor offence and the accused, on being informed of his right to trial by jury, expressly waives that right. This availability of summary trial is provided for by the Criminal Justice Act 1951 and is limited to those indictable offences set out in the Schedule to that Act. This does not include the offences under sections 61 and 62 of the 1861 Act. The summary trial procedure is available in respect of an offence under section 11 of the 1885 Act where the accused is over the age of sixteen years and the person with whom the act is alleged to have been committed is legally unable to consent for being under the age of sixteen years or an idiot, an imbecile or a feeble-minded person. Thus a summary trial can never be had in cases involving consenting adults and, save where the accused pleads guilty, the case can be heard only with a jury whether the prosecution was commenced by a private prosecutor or by the Director of Public Prosecutions.
Moreover, the Criminal Procedure Act 1967 permits a person charged with any indictable offence (save an offence under the Treason Act, 1939, murder, attempt to murder, conspiracy to murder, piracy or an offence under section 3 (1) (i) of the Geneva Conventions Act, 1962) to plead guilty in the District Court. If the Director of Public Prosecutions, or the Attorney General, as the case may be, consents, the case may be disposed of summarily in that Court. If sentence is imposed by the District Court, it cannot exceed twelve months’ imprisonment. If the judge of the District Court is of opinion that the offence warrants a greater penalty, he may send the accused forward to the Circuit Court for sentence. In such a case an accused may change his plea to one of "not guilty" and the case will then be tried with a jury. The Circuit Court has a discretion to impose any sentence up to the limit permitted by the relevant statutory provision.
19. Therefore, while a private prosecution may be initiated by a common informer, a prosecution brought under one of the impugned provisions cannot proceed to trial before a jury unless an indictment is laid by the Director of Public Prosecutions. According to the Office of the Director of Public Prosecutions there have not been any private prosecutions arising out of the homosexual activity in private of consenting male adults since the inception of the Office in 1974.
20. The following statement was made by the Office of the Director of Public Prosecutions in September 1984, in reply to a question asked by the Commission:
"The Director has no stated prosecution policy on any branch of the criminal law. He has no unstated policy not to enforce any offence. Each case is treated on its merits."
The Government’s statistics show that no public prosecutions, in respect of homosexual activities, were brought during the relevant period except where minors were involved or the acts were committed in public or without consent.
21. In November 1977 the applicant brought proceedings in the Irish High Court seeking a declaration that sections 61 and 62 of the 1861 Act and section 11 of the 1885 Act were not continued in force since the enactment of the Constitution of Ireland (see paragraph 10 above) and therefore did not form part of Irish law. Mr Justice McWilliam, in his judgment of 10 October 1980, found, among other facts, that "One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease". However, he dismissed Mr Norris’s action on legal grounds.
22. On appeal, the Supreme Court, by a three-to-two majority decision of 22 April 1983, upheld the judgment of the High Court. The Supreme Court was satisfied that the applicant had locus standi to bring an action for a declaration even though he had not been prosecuted for any of the offences in question. The majority held that "as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened, and the plaintiff has standing to seek the protection of the court".
23. In the course of these proceedings it was contended on behalf of the applicant that the judgment of 22 October 1981 of the European Court of Human Rights in the Dudgeon case (Series A no. 45) should be followed. In support of this plea, it was argued that, since Ireland had ratified the European Convention on Human Rights, there arose a presumption that the Constitution was compatible with the Convention and that, in considering a question as to inconsistency under Article 50 of the Constitution, regard should be had to whether the laws being considered are consistent with the Convention itself.
In rejecting these submissions, Chief Justice O’Higgins, in the majority judgment, stated that "the Convention is an international agreement" which "does not and cannot form part of [Ireland’s] domestic law nor affect in any way questions which arise thereunder". The Chief Justice said: "This is made quite clear by Article 29, section 6, of the Constitution which declares: - ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.’"
In fact, the European Court of Human Rights already noted in its judgment of 1 July 1961 in the Lawless case (Series A no. 3, pp. 40-41, para. 25) that the Oireachtas had not introduced legislation to make the Convention on Human Rights part of the municipal law of Ireland.
24. The Supreme Court considered the laws making homosexual conduct criminal to be consistent with the Constitution and that no right of privacy encompassing consensual homosexual activity could be derived from "the Christian and democratic nature of the Irish State" so as to prevail against the operation of such sanctions. In its majority decision, the Supreme Court based itself, inter alia, on the following considerations:
"(1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime.
(2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide.
(3) The homosexually oriented can be importuned into a homosexual lifestyle which can become habitual.
(4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public health problem in England.
(5) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution."
The Supreme Court, however, awarded the applicant his costs, both of the proceedings before the High Court and of the appeal to the Supreme Court.
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