ITEMID: 001-21930
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ERDOGAN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant, Muhittin Erdoğan, is a Turkish national of Kurdish origin, born in 1975 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1989, the applicant entered the Netherlands where he stayed until his expulsion to Turkey on 3 May 1993. He returned to the Netherlands on 21 December 1993. On 19 January 1994, the Turkish consular authorities in the Netherlands issued a new Turkish Nüfüs identity card to the applicant.
On 2 October 1995, the applicant applied for asylum or, in the alternative, a residence permit on humanitarian grounds. He based his claims, inter alia, on the argument that as a person of Kurdish origin he did not wish to perform his military service in Turkey as he might be sent to south-east Turkey where he would be made to fight his own people.
The applicant's requests were rejected by the State Secretary of Justice (Staatssecretaris van Justitie) on 27 November 1995 and the applicant was ordered to leave the Netherlands. The applicant's objection (bezwaarschrift) against this decision was rejected by the State Secretary on 24 September 1996.
On 22 October 1996, the applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) sitting in Haarlem against the State Secretary's decision of 24 September 1996. He further requested the Hague Regional Court to issue an injunction on his expulsion pending the appeal proceedings.
On 5 September 1997, the Hague Regional Court rejected both the applicant's request for an injunction and his appeal against the decision of 24 September 1996. This decision was notified to the parties on 11 September 1997.
On 22 October 1997, the State Secretary issued an order for the applicant's expulsion from the Netherlands. At some unspecified point in time the applicant was expelled to Turkey. He returned to the Netherlands at a later unspecified point in time.
On 21 July 1998 and on the basis of a change in the case-law concerning Turkish-Kurdish asylum seekers who had evaded military service in Turkey, the applicant requested the State Secretary to reconsider (heroverwegen) his case. On 22 September 1998, the State Secretary informed the applicant that his request was in essence a new request for asylum and that such a request should be filed at one of the reception centres for asylum seekers or the aliens' department (vreemdelingendienst) in the applicant's place of residency. On 20 October 1998, the applicant filed an objection against the State Secretary's letter of 22 September 1998.
On 21 October 1998, the Turkish consular authorities in the Netherlands issued a Turkish passport to the applicant with a validity of one year.
On 16 March 1999, the applicant was apprehended as an illegal alien when he presented himself to the Rotterdam aliens' department in order to obtain certain documents required for his intended marriage to his Dutch partner Ms Z. When his particulars, as stated in his passport, were verified in the Aliens Administration System (Vreemdelingen Administratie Systeem), it appeared that he was registered as a person who, on the basis of a decision taken by the Hague Regional Court on 11 September 1997, was no longer entitled to stay in the Netherlands.
Although the applicant held a registration card indicating that, as from 5 November 1998, he had reported himself every week to the aliens' department in the asylum seekers' reception centre in De Lier (a town near Rotterdam), his residence status could nevertheless not be sufficiently established and as there were apparently no proceedings pending on a request by the applicant for a residence permit, the applicant was placed in aliens' detention for the purposes of his expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet) on the same day.
Also on 16 March 1999, the applicant requested the Hague Regional Court to issue an injunction on his expulsion pending the determination by the State Secretary of his request for a reconsideration of his first request for asylum. He further filed a second request for asylum or a residence permit on humanitarian grounds and, on this basis, was placed in aliens' detention under Article 26 § 1 (c) of the Aliens Act.
On 17 March 1999, the applicant filed an appeal with the Hague Regional Court against his placement in aliens' detention and he requested compensation for the time spent in aliens' detention.
On 24 March 1999 and 6 April 1999 the applicant was interviewed by an official of the Ministry of Justice in relation to the grounds for his request for asylum. He claimed, inter alia, that he had been summoned to report for military service in Turkey and that he feared that, as a conscript in the Turkish army, he would be deployed against his own people.
On 6 April 1999, after a hearing held on 30 March 1999 in the course of which the applicant was represented by his lawyer, the Hague Regional Court rejected the applicant's appeal of 17 March 1999 as well as his request for compensation. It did not find it established that the applicant's placement in aliens' detention was in violation of the Aliens Act or that, after having balanced the interests involved, it could not reasonably be regarded as justified.
The Hague Regional Court noted that, when the applicant had presented himself to the aliens' department on 16 March 1999 in connection with his intended marriage, it had appeared that he was no longer allowed to stay in the Netherlands. It held that this was sufficient indication that the applicant was an illegal alien. The court agreed with the State Secretary that public order required the applicant's placement in aliens' detention given the fact that he had resided illegally in the Netherlands for years, had returned to the Netherlands after having been expelled, had applied for asylum two years after he had returned to the Netherlands in 1993 and had failed to leave the Netherlands after this request for asylum had been rejected.
The Regional Court also held that it did not automatically follow from the fact that the applicant reported himself to a reception centre for asylum seekers every week in order to obtain his benefits under the Regulation on Reception of Asylum Seekers (Regeling Opvang Asielzoekers) that he would respect an obligation to report to the authorities on a regular basis, given that he had evaded control for years and that he was now aware of the fact that the authorities were actively pursuing his expulsion. Insofar as the applicant relied on his relationship and cohabitation with his Dutch partner, the Regional Court noted that, according to the record of the applicant's interview held on 24 March 1999, he had been unable to state her name correctly.
The Regional Court further held that the argument, advanced by the applicant, to the effect that it could no longer be excluded that persons of Kurdish origin, while doing their military service in Turkey, would be deployed in south-east Turkey, by no means increased the chances of success of his second request for asylum, since additional conditions needed to be fulfilled for that to be the case. Finally, the Regional Court accepted that the State Secretary had valid reasons to suspect that the applicant would seek ways to avoid his expulsion.
On 8 April 1999, the State Secretary rejected the applicant's request for asylum or a residence permit on humanitarian grounds and ordered his expulsion from the Netherlands. As a result, the legal basis for the applicant's placement in aliens' detention was changed to Article 26 § 1 (a) of the Aliens Act.
On 14 April 1999, the applicant filed an appeal with the Hague Regional Court sitting in Haarlem against the State Secretary's decision of 8 April 1999. As he had been placed in aliens' detention he was not required, like asylum seekers not placed in such detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court.
As the State Secretary had failed to respond to the applicant's objection of 20 October 1998, the applicant filed an appeal with the Hague Regional Court sitting in Haarlem on 9 August 1999 against this failure to determine his objection timely.
On the same day, the applicant filed a second appeal with the Hague Regional Court against the measure of his placement in aliens' detention and he requested compensation for the time spent in aliens' detention.
On 31 August 1999, after a hearing held on 24 August 1999, the Hague Regional Court decided on the applicant's appeal of 9 August 1999 against his placement in aliens' detention. Insofar as relevant, it held:
“1. The Regional Court considers from the outset that the lawfulness of the measure of placement in aliens' detention has, as such, already been decided in this court's decision of 6 April 1999 which has obtained the force of res iudicata. The only issue to be examined now is the lawfulness of the continuation of the placement in aliens' detention in the circumstances of the present case.
2. ... The <applicant's> representative has ... submitted that the expulsion of Turkish/Kurdish aliens has been suspended in connection with an incident in Turkey, in which an expelled Turkish/Kurdish alien is alleged to have been killed, so that there are no prospects for expulsion and, for this reason, the continuation of the placement in aliens' detention is unlawful.
3. ...
4. The Regional Court considers, with reference to the letter of 31 August 1999 of the State Secretary addressed to the National Co-ordinator for Aliens' Affairs of the Hague Regional Court, that in any event as from that date there are no prospects of expulsion of <the applicant> within a delay that can be regarded as reasonable. On this point, the Regional Court notes that the Ministry of Foreign Affairs, upon a request by the State Secretary of Justice, has conducted an investigation into the backgrounds of the above mentioned incident. Since it was initially assumed that this investigation would only take a relatively short period of time, the Regional Court did not previously see any reason to conclude that there were no longer any prospects for expulsion within a reasonable time. From the aforementioned letter of 31 August 1999 it has, however, become clear that the investigation by <the Ministry of> Foreign Affairs has been delayed, as a consequence of the heavy earthquake in Turkey, to such an extent that expulsion within a reasonable time can no longer be envisaged. The court considers, therefore, that the continuation of the placement in aliens' detention as from 31 August 1999 is unlawful.
5. In relation to the above <considerations>, the Regional Court sees no reason to award compensation.”
The Hague Regional Court did, however, find reasons to order that the applicant's legal costs incurred be compensated and, consequently, issued an order for costs against the State Secretary. The applicant was released from aliens' detention the same day.
On 28 November 1999, the applicant applied for a residence permit on the basis of a temporary regulation on the legalisation of illegal aliens who had been residing in the Netherlands for a long period of time (Tijdelijke regeling witte illegalen).
On 19 January 2000, the applicant married Ms Z. and, on the basis of his marriage to a Dutch national, applied on 2 February 2000 for a residence permit on grounds of “stay with Dutch spouse”.
On 9 February 2000, the Hague Regional Court sitting in Haarlem declared well-founded the applicant's appeal of 9 August 1999 against the State Secretary's failure to determine timely the applicant's objection of 20 October 1998 and ordered the State Secretary to decide on the objection within a period of six weeks.
On 14 February 2000, the applicant was informed that he had failed to submit some of the required documents in respect of his request of 28 November 1999. He was invited to complete his application within 14 days.
In its decision of 29 June 2000, following a hearing held on 2 May 2000, the Hague Regional Court declared the applicant's appeal well-founded, quashed the State Secretary's decision of 8 April 1999 and ordered the State Secretary to take a new decision on the applicant's request of 16 March 1999 within a period of two weeks. The Hague Regional Court noted that there had been a change in the case-law concerning Turkish-Kurdish asylum seekers on the basis of, inter alia, an official report (ambtsbericht) of the Minister of Foreign Affairs (Minister van Buitenlandse Zaken). The Hague Regional Court found that the conclusion set out in this official report, to the effect that there had apparently been an increase in the chances of Kurdish young men being deployed in south-east Turkey as members of the Turkish armed forces, constituted a relevant new fact in relation to the examination of the applicant's first request for asylum and that, therefore the substance of his second request for asylum had to be examined in full. It was further found established that the applicant had been summoned to report for military service in Turkey and that an order for his apprehension had been issued by the Turkish authorities.
On 29 September 2000, the applicant informed the Court that, in the meantime, he had been granted a residence permit on grounds of his marriage to a Dutch national.
Article 26 of the Aliens Act, insofar as relevant, provides:
“1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained:
a. aliens whose expulsion has been ordered;
b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered;
c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees.
2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so.
3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month....”
An alien whose expulsion has been ordered can, in principle, remain in aliens' detention for an unlimited period of time. The lawfulness of a placement in aliens' detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens' detention be terminated.
It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens' detention increases with the passage of time. Where a placement in aliens' detention exceeds a period of six months, it is generally held that the alien's interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control.
Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes.
There is no time-limit for the filing of an appeal against a decision of placement in aliens' detention and in principle a person placed in aliens' detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens' detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens' detention as from the date of the last judicial decision taken on this point.
On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend the examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, as it had appeared that two such asylum seekers had encountered serious problems after they had been expelled to Turkey.
On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin.


ITEMID: 001-81880
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ABBASI v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Iftikhar Abbasi, is a Pakistani national who was born in 1976 and at present is living in Slough, England. The applicant, who was granted legal aid, was represented before the Court by Mr M. Georgiou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant came to Cyprus on 29 January 2001 as a visitor. Following an application to the immigration authorities he was granted a temporary residence permit on 13 June 2001 until 12 June 2006 for working as a director of an offshore company in Nicosia. The permit was subject to the condition that it would lapse if the applicant ceased to work for the particular company.
On 21 May 2002 the applicant married a Cypriot national.
On 28 May 2003, following an application to the immigration authorities dated 24 February 2003, the applicant was granted a temporary residence permit until 30 April 2004, for the purpose of enabling him to remain in Cyprus with his wife.
The Government submitted that in the meantime the immigration authorities had been informed that the aforementioned company had ceased to employ any staff and that from 20 June 2003 it had no longer been allowed by the Central Bank of Cyprus to employ any foreign staff without prior written permission from that bank. The Government submitted a copy of a letter dated 20 June 2003 sent by the Central Bank to the aforementioned company in this respect. The applicant stated that he had not known about this.
Following an application to the immigration authorities on 14 January 2004, the applicant’s residence permit was renewed on 27 July 2004 until 23 July 2005 for the purpose of enabling him to remain in Cyprus with his wife and also to work as a labourer with a company in Nicosia.
On 17 February 2004 the applicant applied to the Ministry of Interior (Civil Registry and Migration Department) for naturalisation.
On 7 February 2005 the applicant’s wife made a statement to the immigration authorities stating, inter alia, the following:
“From the beginning of our marriage my husband was working as a labourer with a building company in Nicosia staying there most days and coming to visit only on weekends. He showed from the beginning that he was only interested in his own good time and how he would arrange his visa each time so as to have no problems with the police, without paying attention to me, as if I did not exist in his life. He was not interested in how I got along or in the problems I had nor did he show any interest about our home and he did not have it in mind that at some moment we would have a family. This, that is, the fact that he lives in Nicosia and visits me once or twice a week, continues until today. Recently and, in particular, after we were notified by Sergeant ... of the Department of Immigration in Limassol that his application for naturalisation was pending in Limassol and that we should make an appointment with him, his attitude has changed and he continuously mollifies me so I will sign that I have no problem with our marriage so he can obtain Cypriot nationality. From the day that Sergeant ... called his attitude towards me changed immediately for the best. I, however, because I understand that he is doing all this to obtain Cypriot nationality, want that the application we submitted for nationality is not taken into account at the present stage but to be examined at least in about a year, so that after our appointment with Sergeant ... my husband will think that it is all over, and I will see his real attitude towards me and his real intentions for our marriage. I have decided that if my husband does not change attitude towards me, I will file a divorce petition, because I can not bear this situation any longer”.
On 19 October 2005 the applicant applied to the immigration authorities for the renewal of his temporary residence permit for a period of one year to enable him to remain in Cyprus with his wife. The applicant submitted that he had made this application with his wife.
By letter dated 14 November 2005 the Ministry of Interior turned down the applicant’s application for naturalisation as he did not fulfil the residence requirements set out in the Civil Registry Laws of 2002-2003. In particular, the applicant had not resided for a continuous period of seven years in Cyprus as required by the Civil Registry Law 141(1)/2002 for aliens in his position.
By letter dated 24 February 2006 the Ministry of Interior turned down his application of 19 October 2005 concerning the renewal of his residence permit. The letter stated that the application had been very carefully considered but it could not be approved because the applicant did not live with his Greek-Cypriot wife. The applicant was thereby requested to leave Cyprus immediately otherwise all necessary measures would be taken for his removal. The applicant, however, submitted that he had not received an answer concerning this application.
In the meantime, on 11 January 2006 the applicant’s wife filed a divorce petition before the Family Court of Limassol on the ground that the marriage between her and the applicant had broken down irretrievably (petition no. 13/2006).
In the divorce petition it was stated, inter alia, as follows:
“The separation between the parties occurred in the beginning of January 2003, when the applicant requested the respondent after some argument that he had caused, to take his things and abandon the marital home. The respondent then told the applicant that he had married her to secure a residence permit for Cyprus. From then onwards the respondent lives in Nicosia.
The respondent was a shirker, he did not work and did not contribute financially to the daily expenses of the maintenance and up-keep of his family. Nor did he demand that the applicant maintain him.
...
As a result of the behaviour of the respondent the parties’ marriage has been irretrievably broken down so that the continuation of marital life has become unbearable for the applicant.
The applicant has reached the infallible conclusion that she cannot and also does not wish to live with the respondent anymore”.
On the one hand, the Government noted that the divorce petition had been served on the applicant in person on 14 January 2006. In this connection, the Government submitted a copy of the affidavit concerning the service of the petition and a copy of a letter dated 2 October 2006 by the Registrar of the Limassol District Court. In the petition it was specified that it had been fixed before the Family Court for directions for 8 February 2006. On that date the applicant did not appear in court either in person or through counsel and the petition was fixed for proof for 22 February 2006. The applicant did not appear before the court on that date.
On the other hand, the applicant stated that he had never been served with a divorce petition, at least in a language that he could understand nor had he ever been served with a petition or any other written document indicating in any language he could understand that it was a legal document for which he should seek translation. He had not therefore been aware that he had had to appear in court on the above dates.
On 28 February 2006 the applicant went to the United Kingdom. The Government stated that the applicant left following their request of 24 February 2006. However, the applicant submitted that he had not received the Government’s letter and that he had left Cyprus to visit his sister who permanently resided in the United Kingdom.
On 5 May 2006 the applicant returned to Cyprus but was refused entry. The applicant submitted that the immigration authorities at the airport had refused to let him enter into the country despite the fact that he had had a visa from the Cypriot Embassy in the United Kingdom and that his wife and friends had been at the airport waiting for him. He stated that the immigration authorities had claimed that he had married his wife in order to acquire a visa, that they had detained him and then made him buy a ticket for the United Kingdom where he had to return.
The applicant stated that on 7 May 2006 he had contacted the Cypriot embassy in the United Kingdom and that they had informed him that they had forwarded his case to the immigration authorities in Cyprus.
By letter dated 12 March 2007 the Government informed the Court that on 18 December 2006 the applicant’s wife had withdrawn the divorce petition before the Family Court.
The admission, residence and expulsion of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended).
Under section 6 (1) of the above Law a person is not permitted to enter the Republic if he is a “prohibited immigrant” which includes, inter alia, any person who enters or resides contrary to any prohibition, condition, restriction or limitation contained in this Law or in any permit granted or issued under this Law (sections 6 (1) (k) and (m)). A “prohibited immigrant” can be ordered to leave the Republic under section 13 of the same Law. Furthermore, under section 7A (introduced by Law 22(1)/2001), if the immigration authorities ascertain that an alien has contracted a sham marriage, then they can, inter alia, prohibit the alien in question to remain in the Republic, annul or refrain from renewing that alien’s residence permit and order his or her expulsion in accordance with the provisions of the Law (section 14). In order to ascertain whether a particular marriage is a sham, provision is made in section 7A (2) for the immigration authorities to conduct interviews of the spouses, together or separately, or of any person who is in a position to give them information in this regard. Factors that are considered as indicating that a marriage is sham include the fact that a couple do not live under the same roof, the fact that there is no appropriate contribution to marital obligations and contradictory declarations by the spouses concerning, inter alia, important information of a personal nature (section 7A (3)).
A decision by the immigration authorities taken under section 7A (1) is subject to a hierarchical recourse to the Minister of Interior within twenty days from the date the decision was issued (Section 7C). In the event such a recourse is filed the alien can remain in the Republic until the Minister’s decision is issued. The Minister’s decision can be challenged before the Supreme Court by way of administrative recourse under Article 146 (1) of the Constitution. This provision provides as follows:
“The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.”
Under section 7D of the same law any alien or a citizen of the Republic who has performed a sham marriage or taken part in any other way in the celebration of such a marriage, commits an offence which is punishable by a sentence of imprisonment for up to three years and/or a pecuniary sentence up to 3,000 Cyprus pounds.
Naturalisation is regulated by the Civil Registry Law 141(1)/2002 (as amended). In particular, section 111 of the third schedule of that Law set out the requirements concerning naturalisation of aliens.
Finally, Article 15 of the Constitution guarantees the right to private and family life. It provides as follows:
“1. Every person has the right to respect for his private and family life.
2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person”.


ITEMID: 001-76412
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF JÄGGI v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 14;Partly inadmissible;Non-pecuniary damage - finding of violation sufficient;Cost and expenses award - domestic and Convention proceedings
JUDGES: Alvina Gyulumyan;Egbert Myjer;John Hedigan;Lucius Caflisch;Luzius Wildhaber;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1939 and lives in Geneva.
5. On 14 July 1939, before the applicant’s birth, the State-appointed guardian brought an action against A.H., the applicant’s putative biological father, seeking a declaration of paternity and payment of a contribution towards his maintenance. A.H. admitted that he had had sexual relations with the applicant’s mother but denied paternity.
6. On 26 July 1939, after the applicant’s birth, his mother declared on registering the birth that the father was A.H., with whom she had had sexual relations during the period of conception.
7. On 30 January 1948 the Geneva Court of First Instance dismissed the action for a declaration of paternity. In the absence of an appeal, the judgment became final.
8. In 1958 the applicant, who had been placed with a foster family, met his mother, who informed him that his father was A.H. According to the applicant, he had regular contact with his father and received presents from him and a monthly payment of 10 Swiss francs ((CHF) – 6.40 euros (EUR)) until he reached the age of majority. A.H. and his family denied those allegations. Only A.H.’s legitimate son admitted that he had received a telephone call from the applicant after A.H.’s death.
9. Furthermore, A.H. always refused to undergo tests to establish his paternity. In 1976, shortly after his death, a blood-type analysis carried out at the applicant’s request did not rule out his being the latter’s father.
10. In 1997 the applicant contacted the Geneva University Institute of Forensic Medicine to have a private paternity test carried out, but his request was refused.
11. On 3 December 1997 the applicant successfully applied to renew the lease for A.H.’s tomb until 2016 for the sum of CHF 2,600 (EUR 1,657).
12. On 6 May 1999 the applicant applied to the Canton of Geneva Court of First Instance for revision of the judgment of 30 January 1948. In the course of the proceedings he also requested a DNA test on the mortal remains of A.H.
13. On 25 June 1999 the Court of First Instance refused the request for a DNA test.
14. On 2 September 1999 the Canton of Geneva Court of Justice rejected the applicant’s application on the ground that it was impossible to obtain a declaration of paternity without also amending the register of births, deaths and marriages.
15. The Court of Justice argued that the applicant was not entitled to such an amendment of the register as a result of the 1976 revision of the Civil Code abolishing the exceptio plurium constupratorum, a defence which the putative biological father could use in a paternity suit. However, in his application to the Court of First Instance the applicant had sought revision of the 1948 judgment, in which the exceptio plurium had been relied on to the benefit of A.H.
16. The Court of Justice noted that before 1978 (when the revised Civil Code had come into force), an illegitimate child who was under ten years of age on 1 January 1978 had had the option of converting a maintenance claim into a civil action (paternity suit) where the exceptio plurium had been raised. However, this was no longer permitted under the revised Civil Code.
17. The Court of Justice accordingly held that, even supposing that the applicant had been awarded maintenance in 1948, he was no longer entitled to have the register of births, deaths and marriages amended, firstly because the law had changed, and secondly because he had been born more than ten years before the end of the transition period between the old and new laws.
18. His request for evidence to be taken by means of a DNA test was therefore refused.
19. On 22 December 1999 the Federal Court adopted a judgment, served on 18 May 2000, in which it rejected the applicant’s application on the following grounds:
“The right to know one’s parentage cannot be absolute in scope but must be weighed against the interests relating to protection of the personal freedom of others – in the instant case, the right of the deceased, deriving from human dignity, to protect his remains from interferences contrary to morality and custom, and the right of the close relatives to respect for the deceased and the inviolability of his corpse. ...
The right to know one’s parents is generally linked to the right to be raised by them. The applicant, who is 60 years old, has been able to develop his personality and pursue a large portion of his existence without suffering any medically attested damage to his physical or mental health as a result of his uncertainty as to his parentage, despite the vicissitudes of his childhood and adolescence. On the other hand, while the reasons of family devotion opposing the exhumation of the mortal remains of the late [A.H.] are understandable, the respondents have not advanced any religious or philosophical grounds in support of their position; in particular, they have not argued that they would have renewed the lease on their relative’s tomb had the applicant not done so.
However, in weighing up the conflicting interests, the refusal of the application for an expert examination may be upheld since, in the absence of any consequences of a civil-law nature, the applicant has not established that he has suffered sufficiently serious damage to his psychological well-being, as protected by the right to personal freedom, to justify the evidentiary measure requested. The measure appears excessive in view of the principle of proportionality, having regard to the applicant’s particular circumstances, from which it cannot be concluded that his personality or mental stability might be seriously threatened by the uncertainty that may still persist as regards his parentage, in spite of all the information in his possession suggesting that [A.H.] very probably is his father. The Court of Justice was therefore entitled to restrict the applicant’s personal freedom by taking into consideration that of the respondents, in view of the lack of public interest in having this parental tie established and the disproportionate nature of the steps required to establish it.”
20. Lastly, the Federal Court observed that there were no consequences of a civil-law nature that could justify implementing the measure sought.
VIOLATED_ARTICLES: 8


ITEMID: 001-77653
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CENTRAL MEDITERRANEAN DEVELOPMENT CORPORATION LIMITED v. MALTA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (victim);Preliminary objection left open (non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of Art. 13+6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant, Central Mediterranean Development Corporation Limited, is a Maltese company registered in Valletta.
5. On 7 December 1990 the applicant company sued a certain Mrs S. before the Civil Court (First Hall). It claimed that a contract concluded with the defendant should be rescinded and requested to reacquire possession of a plot of land. Its claim was based on the fact that, disregarding the obligations arising from the said contract, Mrs S. had not built a house or a villa on the plot in issue and had failed to pay the agreed annual rent of 44 Maltese liras (MTL – approximately 105 euros (EUR)).
6. Mrs S. filed submissions in reply to the applicant’s claim on 18 December 1990 and on 8 January 1991. The case was set down for hearing on 21 February 1991, on which date a number of preliminary pleas were raised. These were determined on 15 March 1991. Subsequently, the parties submitted their pleadings and the case was reserved for judgment until 8 November 1991. The parties were authorised to submit observations but failed to do so. The case was adjourned first until 17 January 1992, then until 26 March 1992. The decision was adjourned twelve times.
7. In a judgment of 5 October 1993 the Civil Court upheld the applicant’s claim.
8. On 29 October 1993 Mrs. S. appealed against that judgment. The applicant filed submissions in reply on 25 November 1993. On 17 October 1996 the parties presented their oral pleadings and the case was reserved for judgment until 16 January 1997. However, the decision was adjourned on twenty-eight occasions.
9. In a judgment of 9 October 2001 the Court of Appeal dismissed the appeal and upheld the first-instance judgment.
10. Considering that its case had not been decided “within a reasonable time”, on 13 August 2002 the applicant, invoking Article 39(2) of the Constitution of Malta and Article 6 § 1 of the Convention, lodged an application with the Civil Court (First Hall) in its constitutional jurisdiction.
11. In a judgment of 14 November 2002 the Civil Court dismissed the applicant’s application. It observed that it did not appear that there had been excessive delays in deciding the case at first instance. The preliminary pleas had been decided on 21 February 1991 and the judgment on the merits had been delivered only one and a half years after the date on which the case was ready for decision. Moreover, the Civil Court had waited four months for the parties to submit their observations. It was true that the proceedings before the Court of Appeal had lasted a longer time. The fixing of the date of the first sitting had taken three years and a decision on the merits of the case had not been given until five years later. However, the reasonableness of this delay had to be examined in the context of the national judicial system, in which, unlike in other countries, the right of appeal was automatic. Every litigant who felt aggrieved by a decision given at first instance could lodge an appeal without having to apply for leave to do so. This obliged the Court of Appeal to examine a large number of cases in detail, bearing in mind that its decision would be the final one, and would therefore not be subject to review by any superior authority. The expenses for bringing an appeal were also relatively low, which constituted another factor encouraging citizens to bring their cases before the Court of Appeal. In the Civil Court’s view, the obligation of the State to organise its judicial system with a view to complying with the “reasonable-time” principle was to be balanced against the other privileges that the Maltese system provided to its citizens.
12. It was true that a period of five years for deciding the applicant company’s case was “a bit long” vis-à-vis its complexity and the workload of the Court of Appeal, and that three years should have been in principle sufficient. However, the Civil Court considered that this delay had not reached the extent of seriously prejudicing the rights of the parties, and was therefore not excessive.
13. As to the claim for damages, the Civil Court observed that the applicant company was seeking compensation for sixteen years of unpaid rent (which amounted to MTL 864). However, the failure to pay the rent was not due to the delay in determining the case and the applicant company could have asked, and could still ask, for the rent arrears from Mrs S. Moreover, it was likely that the market value of the land had increased during the judicial proceedings. The applicant company alleged that if it had regained possession of its land in 1996 or 1997, it could have sold it for MTL 35,000. It had accordingly requested the reimbursement of the interest on this sum as compensation for pecuniary damage. The Civil Court could not accept this argument, as the applicant company was still in possession of its land and was trying to sell it for about MTL 60,000. In the Civil Court’s view, the loss of interest had been compensated by the increase in the value of the land.
14. The Civil Court concluded that even if a violation of the “reasonable-time” principle had been found, no compensation could have been awarded to the applicant company.
15. The applicant company appealed to the Constitutional Court.
16. In a judgment of 8 May 2003 the Constitutional Court reversed the decision of the Civil Court and declared that there had been a violation of Article 6 § 1 of the Convention. It also decided that the costs of the case should be borne by the Attorney General, who should moreover pay the applicant company MTL 100 (approximately EUR 240) for non-pecuniary damage.
17. The Constitutional Court observed that the Civil Court had rightly pointed out that the delay in delivering the judgment on appeal had been unreasonable. However, it could not be said that this delay had not infringed Article 6 § 1 of the Convention. Before the Court of Appeal, the parties had presented their oral pleadings on 14 November 1996, but no decision on the merits had been given until 9 October 2001, almost five years later. The case had been adjourned several times and it did not appear that there had been any special reasons for this. Moreover, the case was not particularly complex and the parties had not obstructed its course. Therefore, an overall period of inactivity of five years could not be accepted.
18. The Constitutional Court considered that the applicant company had not suffered any pecuniary damage. It upheld the reasoning of the Civil Court on this point. However, it concluded that prejudice of a non-pecuniary nature could be suffered even by a private company, and awarded MTL 100 under this head.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91880
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF POPPE v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Pieter Van Dijk
TEXT: 6. The applicant, Mr Bart Poppe, is a Netherlands national who was born in 1966 and lives in Amsterdam.
7. In April 2000 the applicant was arrested on suspicion of various drugs-related offences. He was subsequently charged – as co-actor (medepleger) in a group of eight persons – with trafficking “hard” drugs, preparation of the offence of drug trafficking, handling, and participation in a criminal organisation. In addition, he was separately charged with the unlawful possession of a firearm.
8. The applicant’s trial was due to start before the Haarlem Regional Court (arrondissementsrechtbank) on 1 March 2001. By that time, the applicant had become aware that a number of co-accused had already been tried and convicted by the same tribunal. In the proceedings against his co-accused C1, C2, C3 and C4 the Regional Court had included the same president, X, and senior judge (oudste rechter), Y, who were to sit on the bench that would deal with his case. Prior to the hearing, counsel for the applicant wrote a letter to the president of the trial chamber requesting him and the senior judge to stand down because of their involvement in the trials of those co-accused. X and Y did not stand down, and on the day of the hearing a formal challenge application (wrakingsverzoek) was lodged on behalf of the applicant. The Challenge Chamber (wrakingskamer) dismissed the application, considering that the mere fact that two members of the trial chamber had convicted a number of co-accused of offences relating to the offences with which the applicant had been charged did not as such entail that those members were biased in the criminal proceedings against the applicant. According to the Challenge Chamber, the arguments adduced by counsel for the applicant did not admit of the conclusion that the judges concerned had already formed an opinion on any role which the applicant might have played in the commission of those offences, and neither did they reveal any extraordinary circumstances indicating bias against the applicant on the part of those judges or indicating that the applicant’s fear of bias was objectively justified.
9. On 15 March 2001, the Regional Court found the applicant guilty of the charges against him, except for the charge of handling of which he was acquitted. Taking into account that the applicant had not played a prominent role but rather a facilitating one within the organisation, the Regional Court sentenced him to three years’ imprisonment.
10. The applicant lodged an appeal with the Amsterdam Court of Appeal (gerechtshof). In the course of these proceedings, the complete judgments rendered by the Haarlem Regional Court in the cases against the co-accused C3 and C4 became available, only abridged versions not containing the evidence relied on by the Regional Court having been available at the time of the applicant’s trial by the Regional Court. The applicant referred to these complete judgments in support of his argument that the Regional Court had lacked impartiality due to the fact that X and Y had participated in the trials against co-accused. The Regional Court’s judgment concerning co-accused C3 included the following considerations:
“D was the linchpin (spil) of the organisation in the Netherlands, whose aim it was to import and export ‘hard’ drugs. C, [the applicant] and W were D’s confidants in this context, with the latter making use of the facilities and/or services with which these three could provide him...
As far as the export of amphetamine is concerned, D was also the organiser of this, and C3 the financier. C2 supplied the drugs, while K, [the applicant] and H carried out the actual work.”
The judgment concerning co-accused C4 included the following:
“The duo D-C4 constituted the linchpin of the organisation. ... C and [the applicant] were confidants of D, with the latter making use of the facilities and/or services with which these two could provide him.”
11. In the course of a hearing held on 23 April 2002, the Court of Appeal rejected the applicant’s plea for the case to be remitted to the Regional Court. Examining whether the applicant’s fear of a lack of impartiality of judges X and Y could be objectively justified, it held:
“Contrary to what has been adduced by counsel, no such objective justification can be found in the earlier considerations of the Regional Court. Those earlier considerations do not, after all, entail that the examination in the present case of the reproach made of [the applicant] in respect of participation in the same criminal organisation and of involvement in the import and export of ‘hard’ drugs, in particular amphetamine, was anticipated. It is the normal statutory task of the judge ... only to rule on the basis of the indictment and further to the trial of the accused, excluding from his consideration his decisions reached in other cases of other accused.
Special circumstances constituting a compelling indication to find that a fear held by [the applicant] may be objectively justified are not contained in counsel’s arguments or in the circumstances that have otherwise become apparent. The finding relating to [the applicant] as expressed in the earlier judgments is not so specific and/or has not been reasoned in such a way as to lead to a different conclusion. ...
It is also relevant that there is no indication that the Regional Court has in any way felt itself bound by the findings of the previous judgments when dealing with and deciding on the case of [the applicant]. In particular it has not been argued, and the Court of Appeal fails to see, that the Regional Court has based its judgment in any way on any decision taken in those earlier judgments. On the contrary, it appears from the case file that the Regional Court examined [the applicant’s] case in its entirety, without even one of the questions which the Regional Court had to answer being considered as having been dealt with in the earlier judgments. This is in particular also the case in respect of the questions whether [the applicant] participated in the criminal organisation referred to in the indictment and whether he was involved in the import and export of ‘hard’ drugs and in particular of amphetamine.”
12. The Court of Appeal held a hearing on the merits of the case on 26 November 2002. Asked to state the reasons why he had lodged his appeal, the applicant replied that he had not been wrongly convicted but considered the sentence excessive.
13. On 10 December 2002 the Court of Appeal gave judgment. It quashed the judgment of the Regional Court and, deciding anew, convicted the applicant of being a co-actor in the offences of drug trafficking and participation in a criminal organisation. The conviction was based on the applicant’s confessions before the police and in open court and on other evidence, namely transcripts of recorded telephone conversations, official reports of police observation and of the interception in transit of quantities of illegal narcotics, and statements of co-accused. The applicant was again sentenced to three years’ imprisonment.
14. In the meantime, on 17 September 2001, a differently composed bench of the same Court of Appeal, in the criminal proceedings against the applicant’s co-accused C3, accepted that C3 had an objectively justified fear of bias on the part of the first-instance court and remitted his case for retrial. That first-instance court – the Haarlem Regional Court – had held in its judgments relating to three co-accused that C3 “[had] maintained the contacts abroad and also provided the necessary finances.”
15. The applicant lodged an appeal on points of law (cassation) with the Hoge Raad, the highest court of criminal jurisdiction. He submitted that the decision of the Court of Appeal to dismiss his arguments relating to the lack of impartiality of the Regional Court and the refusal to remit his case to the Regional Court was contrary to Article 6 of the Convention. He further contended that he had been deprived of the opportunity to have his case considered by an impartial tribunal at first instance, which made the trial as a whole unfair.
16. On 18 May 2004 the Hoge Raad upheld the appeal on points of law because the length of proceedings had exceeded a reasonable time. It therefore quashed the judgment of the Court of Appeal, but only in respect of the sentence, which was reduced by two months to two years and ten months. The Hoge Raad rejected the applicant’s arguments relating to the alleged bias on the part of judges X and Y.
17. An appeal can only be lodged against the first-instance judgment in its entirety, although cases joined at first instance can be disjoined at the appeal stage (Article 407 of the Code of Criminal Procedure). The appeal proceedings involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414). The defence enjoys the same rights as it does at first instance (Article 415).
18. Both the prosecution and the defence may challenge (wraken) judges on the ground of facts or circumstances that might be detrimental to judicial impartiality (Article 512).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90792
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF "BULVES" AD v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of a violation sufficient
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. On 16 August 2000 the applicant company purchased goods from another company (“the supplier”).
7. Both companies were registered under the Value Added Tax Act 1999 (“the VAT Act”) and the transaction constituted a taxable supply under the said Act.
8. The total cost of the received supply was 21,660 Bulgarian levs (BGN) (11,107 euros (EUR)), of which BGN 18,050 (EUR 9,256) was the value of the goods and BGN 3,610 (EUR 1,851) was value-added tax (“VAT”).
9. The supplier issued invoice no. 12/16.08.2000 to the applicant company, which the latter paid in full, including the VAT of BGN 3,610 (EUR 1,851).
10. The applicant company recorded the purchase in its accounting records for the month of August 2000 and filed its VAT return for that period by 15 September 2000.
11. The supplier, on the other hand, did not record the sale in its accounting records for the month of August 2000, but for October 2000, and reported it in its VAT return for the latter period, which it filed on 14 November 2000.
12. On an unspecified date the tax authorities conducted a VAT audit of the applicant company covering the period from 10 February to 31 December 2000. In the course of the inspection a cross-check of the supplier was conducted in order to ascertain whether it had properly reported and recorded the supply in its accounting records. As a result, the above reporting discrepancy was discovered (see paragraphs 10 and 11 above).
13. On 31 January 2001 the “Yug” Tax Office of the Plovdiv Territorial Tax Directorate issued the applicant company with a tax assessment. It refused the applicant company the right to deduct the VAT it had paid to its supplier (“the input VAT”), amounting to BGN 3,610 (EUR 1,851), because the supplier had entered the supply in its accounting records for the month of October 2000 and had reported it for that period rather than for August 2000. The Territorial Tax Directorate therefore considered that no VAT had been “charged” on the supply in the August 2000 tax period, that the applicant company could not therefore deduct the amount it had paid to its supplier as VAT and, furthermore, that it was liable to pay the VAT on the received supply a second time. Accordingly, it ordered the applicant company to pay the VAT in the amount of BGN 3,610 (EUR 1,851) into the State budget, together with interest of BGN 200.24 (EUR 102) for the period from 15 September 2000 to 31 January 2001.
14. The applicant company appealed against the tax assessment on 20 February 2001.
15. In a decision of 26 February 2001 the Plovdiv Regional Tax Directorate dismissed the applicant company’s appeal and upheld the tax assessment in its entirety. It recognised that the applicant company had fully complied with its VAT reporting obligations in respect of the received supply, but found that the supplier had failed to enter its invoice in its own accounting records on the date it had been issued, 16 August 2000, and had not reported its VAT-taxable supply for the month of August 2000 as it should have done. It therefore concluded that no VAT had been “charged” on the supply in question and that the applicant company was accordingly not entitled to deduct the input VAT, in spite of the fact that the supplier had subsequently reported the supply for the month of October 2000.
16. The applicant company appealed against the decision of the Regional Tax Directorate on 19 March 2001, arguing that it could not be denied the right to deduct the input VAT solely because of its supplier’s belated compliance with its VAT reporting obligations. The applicant company also claimed that the supplier’s right to deduct the VAT it had paid to its own supplier had been recognised by its tax office, while the applicant company was being denied that right. In its submissions the applicant company relied, inter alia, on Article 1 of Protocol No. 1 to the Convention.
17. In a judgment of 21 September 2001 the Plovdiv Regional Court dismissed the applicant company’s appeal and upheld the decisions of the tax directorates. It stated as follows:
“The Court finds that the ... objection of the [applicant company] is ... unsubstantiated. In particular, [the applicant company objected that] it had been the compliant party, while the supplier had not complied with its obligations. The right to ... [deduct the input VAT] arises for the recipient of a [taxable] supply only if the supplier has fulfilled the conditions under section 64 in conjunction with section 55 of the VAT Act. The Act does not differentiate between the parties to a supply transaction as regards compliance; the court cannot therefore introduce such an element into this judgment. ”
18. On 26 October 2001 the applicant company appealed to the Supreme Administrative Court.
19. In a final judgment of 24 October 2002 the Supreme Administrative Court concurred with the findings and conclusions of the tax authorities and stated the following:
“... In this case the non-compliance of the supplier impacts unfavourably on the recipient ..., because the right to recover the [input VAT] does not arise for [the latter] and it does not matter that the recipient of the [taxable] supply [acted] in good faith and [was] compliant..., as this is irrelevant for the [purposes of] taxation. ... There [is] also [no] ... violation of ... Article 1 of Protocol No. 1, because the refusal to recognise the claimant’s right to [deduct the input VAT] under section 64 (2) of the VAT Act did not violate its property rights, due [to the fact that] the recognition of its substantive right [to deduct] under section 64 of the VAT Act is conditional on the actions of its supplier and [the latter’s] discharge [of its obligations] vis-à-vis [the State] budget. ...”
20. The VAT Act came into force on 1 January 1999. Although at the time Bulgaria was not a member of the European Union (EU), domestic VAT legislation in many respects followed the provisions of Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes, known as the Sixth VAT Directive, which at the time was the principal basis for the system of valueadded tax in the EU.
21. In general, VAT was charged on the price due for a supply of goods or services plus certain costs, taxes and charges not including the VAT itself. Most domestic supplies of goods and services, as well as imports, were subject to the standard rate of twenty percent VAT.
22. VAT was generally reported and paid monthly. Monthly VAT returns had to be filed and monthly VAT payments made by the fourteenth day of the following month.
23. At the relevant time, any person (legal or natural, resident or nonresident) who had a taxable turnover exceeding BGN 75,000 (EUR 38,461) during any preceding twelve-month period was obliged to register for VAT purposes (section 108). Voluntary and optional registration was also possible in certain cases.
24. On 1 January 2007, when Bulgaria became a member of the EU, the VAT Act was replaced by a new act of the same name.
25. At the relevant time the input VAT – the so-called “tax credit” under domestic legislation – was the amount of tax which a VATregistered person had been charged under the VAT Act for receipt of a taxable supply of goods or services, or for imported goods, in a given tax period, which the person in question had the right to deduct (section 63).
26. During the relevant period and in the context of the present case, where the VAT incurred on supplies exceeded the VAT charged on sales in a given tax period, the excess VAT was first carried forward for a period of six months to offset any VAT debt due in those six months, as well as other liabilities to the State (sections 63 and 77). If at the end of the six-month period the excess VAT, or part thereof, had still not been recovered, the balance was refunded within a further forty-five days (section 77). This period could be extended if the tax authorities initiated a tax audit (section 78 § 7).
27. At the relevant time, section 64 of the VAT Act provided that the recipient of a supply could deduct the input VAT when the following conditions were fulfilled:
(a) the recipient of the supply on which VAT had been charged was a VAT-registered person;
(b) the VAT had been charged by the supplier, who was a VATregistered person, at the latest on the date of issuance of the VAT invoice;
(c) VAT was chargeable on the supply in question;
(d) the goods or services received were used, were being used or would be used for VAT-taxable supplies; and,
(e) the recipient was in possession of a VAT invoice which met the statutory requirements.
28. Further to the above, in respect of item (b), VAT was considered during the relevant period to have been charged when the supplier:
(1) issued an invoice which indicated the VAT;
(2) recorded the issuance of the invoice in its sales register;
(2) entered the VAT charged in its accounting records as a liability to the State budget; and
(3) declared the VAT charged in its VAT return filed with the tax authorities (section 55 § 6).
29. At the relevant time, Bulgaria was not a member of the European Union. Accordingly, the acquis communautaire was not directly applicable or transposed into domestic legislation. However, as noted above, its domestic VAT legislation in many respects followed the provisions of the Sixth VAT Directive (see paragraph 20 above).
30. Consequently, it is worth mentioning in the context of the present case the following two judgments of the Court of Justice of the European Communities (CJEC), which examine the entitlement of the recipient of a supply to reimbursement of the VAT charged on such a supply in cases of suspected “carousel fraud”. This type of fraud, a kind of VAT missing trader intra-Community fraud, occurs when goods are imported VAT-free from other Member States, are then re-sold through a series of companies at VAT-inclusive prices and subsequently re-exported to another Member State with the original importer disappearing without paying over to the tax authorities the VAT paid by its customers.
31. In its judgment of 12 January 2006 in joined cases C-354/03, C355/03 and C-484/03, Optigen Ltd (C-354/03), Fulcrum Electronics Ltd (C-355/03) and Bond House Systems Ltd (C-484/03) v Commissioners of Customs & Excise: reference for a preliminary ruling from the High Court of Justice (England & Wales), Chancery Division – United Kingdom, European Court Reports (ECR) 2006, page I-00483, the CJEC concluded as follows:
“Transactions such as those at issue in the main proceedings, which are not themselves vitiated by value added tax fraud, constitute supplies of goods or services effected by a taxable person acting as such and an economic activity within the meaning of Articles 2 (1), 4 and 5 (1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, where they fulfil the objective criteria on which the definitions of those terms are based, regardless of the intention of a trader other than the taxable person concerned involved in the same chain of supply and/or the possible fraudulent nature of another transaction in the chain, prior or subsequent to the transaction carried out by that taxable person, of which that taxable person had no knowledge and no means of knowledge. The right to deduct input value added tax of a taxable person who carries out such transactions cannot be affected by the fact that in the chain of supply of which those transactions form part another prior or subsequent transaction is vitiated by value added tax fraud, without that taxable person knowing or having any means of knowing.”
32. In a similar judgment of 6 July 2006 in joined Cases C-439/04 and C-440/04, Axel Kittel v Belgian State (C-439/04) and Belgian State v Recolta Recycling SPRL (C-440/04) (ECR 2006, page I-06161), the CJEC went on to state the following.
“Where a recipient of a supply of goods is a taxable person who did not and could not know that the transaction concerned was connected with a fraud committed by the seller, Article 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that it precludes a rule of national law under which the fact that the contract of sale is void – by reason of a civil law provision which renders that contract incurably void as contrary to public policy for unlawful basis of the contract attributable to the seller – causes that taxable person to lose the right to deduct the value added tax he has paid. It is irrelevant in this respect whether the fact that the contract is void is due to fraudulent evasion of value added tax or to other fraud.
By contrast, where it is ascertained, having regard to objective factors, that the supply is to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of value added tax, it is for the national court to refuse that taxable person entitlement to the right to deduct.”


ITEMID: 001-107521
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KRASNOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in 1981 and lived in Vetluga, Nizhniy Novgorod Region.
7. By a judgment of 23 September 2002 the Vetluga District Court of the Nizhniy Novgorod Region (“the District Court”) granted in part the applicant’s claim for recovery of unpaid military allowance and awarded him 224,926 Russian roubles (RUB) to be recovered from military unit 3761.
8. The judgment became final on 4 October 2002 and shortly thereafter the applicant obtained a writ of execution. Between September 2004 and November 2005 the Departments of the Federal Treasury of the Chechen Republic and of the Republic of North Ossetia-Alania returned the enforcement documents to the applicant on three occasions without enforcement due to his failure to submit his bank account details and then due to re-organisation of the debtor.
9. By a decision of 10 October 2006 the District Court allowed the applicant’s request and changed the method and order of enforcement of the judgment of 23 September 2002, replacing the defunct debtor with the Ministry of the Interior of Russia.
10. The applicant forwarded the writ of execution concerning the decision of 10 October 2006 to the head office of the bailiffs’ service in Moscow in November 2006. It appears from the correspondence and the applicant’s submissions that the writ was subsequently lost.
11. On 19 November 2007 the applicant died.
12. By a decision of 15 September 2008 the District Court ruled that the deceased applicant was to be succeeded by his mother, Natalya Vyacheslavovna Zintsova.
13. According to Ms Zintsova, in May 2010 she was contacted by a representative of the Ministry of the Interior who explained to her that she was to obtain a copy of the lost writ of execution at the trial court and forward it to the authorities to enable further enforcement proceedings.
14. On 30 August 2010 the Chief Command Office of the Internal Armed Forces of the Ministry of the Interior informed that the debtor was ready to pay the due amount provided that they received the pertinent documents, including the writ of execution.
15. The Government submitted that the applicant’s mother had refused to obtain a copy of the writ of execution from the trial court despite the authorities’ repeated invitations thereto, convinced that the award could be obtained only through the proceedings at the Court. Ms Zintsova did not dispute this allegation.
16. The judgment of 23 September 2002, as amended on 10 October 2006, remains unenforced to date.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77716
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GOGA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Július Goga, was a Slovakian national who was born in 1954 and lived in Bratislava. In 2003 the applicant died. By a letter of 5 January 2005 the late applicant’s wife Mrs Jana Gogová and his children Mr Július Goga and Ms Jana Gogová informed the Court that they wished to pursue the application in his stead. The applicant is represented before the Court by Mrs E. Ľalíková, a lawyer practising in Bratislava. The respondent Government are represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s family owned real estate located in Topoľčany which comprised a house and the land around it.
In 1975 two contracts were made relating to the transfer of the property to the State. The first of these contracts was concluded on 1 October and the second at some unspecified point in November. The existence and validity of these contracts were later in dispute (see below).
The State subsequently took over the property and, since then, it has been used by a college of agriculture in Topoľčany. The title to the property was formally vested in a special legal entity (školský majetok or, later, školské hospodárstvo) which was attached to the college.
On 18 May 1994 the applicant and two of his relatives, who were all jointly represented by a lawyer, brought a civil action against the above entity which possessed the property and against the Bratislava IV District Education Authority (školská správa) in the Topoľčany District Court (Okresný súd). They originally sought an order for possession of the house, but later extended the action by also seeking a ruling declaring that the defendants were not bona fides possessors of the property.
On 15 December 1995 the District Court dismissed the action but, on the plaintiffs’ appeal, the Bratislava Regional Court (Krajský súd) quashed the judgment on 17 October 1996.
On 16 September 1998 the District Court found in favour of the plaintiffs but, on the defendants’ appeal, the Nitra Regional Court overturned the judgment and dismissed the action on 24 November 1999.
The plaintiffs appealed on points of law to the Supreme Court.
On 27 February 2001 the Supreme Court quashed the judgment of 24 November 1999 and remitted the case to the Regional Court for reexamination of the defendants’ appeal against the judgment of 16 September 1998.
On 11 July 2002 the Regional Court examined the defendants’ appeal against the judgment of 16 September 1998 afresh. It again reversed the latter judgment and dismissed the action. The Regional Court examined complex documentary and other evidence, including the pleadings of the parties. It found that the contract of November 1975 had been validly concluded and approved by the competent authorities. It had lawfully conveyed the house in question to the State. As a consequence, under the laws which applied at the time, the title of the applicant’s family to the land underneath the house had been automatically extinguished. The applicant and the other plaintiffs had therefore no legal title to the property and, consequently, no right of action in the case.
The plaintiffs again appealed on points of law. They contested the Regional Court’s factual conclusion as to the existence of the contract of November 1975. They maintained that the judgment was not properly reasoned, that the facts had not been established adequately and that the court’s legal assessment of the case was flawed.
On 27 May 2004 the Supreme Court dismissed the appeal. Following the applicant’s death, it dealt in his stead with his surviving wife and children, being his heirs. The Supreme Court found that the facts of the case had been established adequately, the reasons given by the Regional Court were comprehensive and convincing and its conclusion was correct.
On 12 October 2004 the District Court issued an order for costs against the plaintiffs.
The wife and children of the applicant, who were represented by a lawyer, challenged the Supreme Court’s judgment by a complaint to the Constitutional Court under Article 127 of the Constitution. They complained that the judgment was onesided, unfair and wrong, contrary to Article 6 § 1 of the Convention and Article 46 § 1 of the Constitution.
On 27 October 2004 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It found that the Supreme Court had adequately examined the plaintiffs’ arguments, its findings were not manifestly arbitrary or wrong and its conclusions had been adequately reasoned.


ITEMID: 001-90287
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LUDWICZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1945 and lives in Ostrów Mazowiecka.
5. On 9 November 1992 the applicant lodged with the Ostrów Mazowiecka District Court (Sąd Rejonowy) a claim for payment against his ex-employer, a construction company.
6. On the same day the case file was sent to the Warszawa District Court which was competent to deal with the subject-matter.
7. The first hearing was scheduled for 22 February 1993. It did not take place because on 21 December 1992 the Warszawa District Court stayed the proceedings due to the fact that on 3 December 1992 winding-up proceedings had been instituted against the defendant.
8. On 5 April 1994 the applicant’s claim was entered on the list of claims (lista wierzytelności).
9. On 27 May 1994 the Warszawa District Court refused to resume the proceedings.
10. On 18 September 2000 the Warszawa District Court was informed that the winding-up proceedings had been discontinued.
11. The proceedings were resumed on 6 April 2001. On the same day the case was joined to similar claims lodged against the defendant, and registered under a new reference number. The court adjourned the trial until 1 February 2002.
12. It appears that between the date when the proceedings were resumed and the day on which the first-instance judgment was given, no hearing took place. The trial was adjourned 11 times on procedural grounds, such as, for example, the appointment of the defendant’s curator then its liquidator, and the need to supplement the evidence and to appoint an expert.
13. On 24 July 2006 the Warszawa District Court, following the applicant’s motion, appointed a lawyer for the applicant.
14. On 31 October 2006 the Warszawa District Court gave judgment and discontinued the proceedings in respect of the applicant.
15. On 18 December 2006 the applicant’s lawyer lodged an appeal. It was rejected by the Warszawa District Court on 9 February 2007 on procedural grounds, i.e. failure to pay the so-called “basic court fee” (opłata podstawowa).
16. On 6 December 2006 the applicant lodged with the Warszawa Regional Court (Sąd Okręgowy) a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) which entered into force on 17 September 2004. The applicant sought a ruling declaring that the length of the proceedings before the Warszawa District Court had been excessive.
17. On 25 January 2007 the Warszawa Regional Court dismissed his complaint. The court examined the course of the impugned proceedings and held that there had been no delays for which the Warszawa District Court could be held responsible, although it admitted that the proceedings had been lengthy.
18. On 26 February 2007 the Warszawa Regional Court rejected the applicant’s appeal against the decision of 25 January 2007 as inadmissible in law.
19. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6


ITEMID: 001-114618
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ŁAWNICZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Wojciech Ławniczak, is a Polish national who was born in 1956 and lives in Warszawa. He was represented before the Court by Ms J. Metelska, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 27 September 2005 the Warsaw Regional Prosecutor instituted an investigation into fraud and the bribery of Warsaw Municipality employees.
4. On 25 August 2006 in the course of the investigation the applicant’s premises were searched. Various documents were seized including 10,000 Polish zlotys (PLN) and 3,100 US dollars (USD).
5. On the same date the applicant was arrested by the police. On 26 August 2006 he was remanded in custody by the Warsaw District Court on suspicion of having facilitated the taking of a bribe by P.B. and B.T., members of the Warsaw municipal council, from an Austrian company planning to construct a hotel in Warsaw. The offence was allegedly committed on an unspecified date between 1996 and 1999. The court relied on the probability that the applicant had committed the crime in question, the risk that he might tamper with evidence and the likelihood of a severe prison sentence being imposed on him.
6. On 27 August 2006 the applicant’s lawyer lodged an appeal against this decision. He submitted that the grounds for his arrest had not been determined properly because the exact date of the alleged offence had not been specified; also, the applicant’s role in the alleged bribery was not clear.
7. On 5 September 2006 the Warsaw Regional Prosecutor ordered the applicant’s assets to be attached by way of an interim measure. In particular he decided to seize 3,100 United States dollars (USD), 10,000 Polish zlotys (PLN) and a Rolex Cellini watch.
8. On 3 October 2006 the Warsaw Regional Court rejected the applicant’s lawyer’s appeal. It held that there existed a strong probability that the applicant had committed the offence. The court agreed that the exact date of the offence should be specified. However, it also held that the fact that the applicant had facilitated an offence of bribery was sufficiently demonstrated and the applicant’s detention was necessary to secure the proper administration of justice.
9. On 15 November 2006 the applicant’s lawyer asked the court to change the preventive measure to a more lenient one. He submitted that the applicant’s son was ill and needed constant help. The Warsaw Regional Prosecutor refused this request on 23 November 2006. He stressed that there was a strong likelihood that the applicant had committed the offence. In reference to the applicant’s argument, the prosecutor noted that the applicant was not the only person able to care for his son as there were other members of the family capable of doing so. In addition, the applicant’s son was under permanent medical care.
10. At a session held on 20 November 2006 the Warsaw District Court extended the applicant’s detention. During the session the applicant’s two lawyers argued that the offence with which he had been charged had not been defined clearly enough. While the court decided to extend the applicant’s detention, it nevertheless confirmed that “the offence had been defined rather clumsily”.
11. On 24 and 27 November 2006 the applicant’s lawyers appealed against the decision to extend his detention. They submitted in particular that the court had again failed to specify the date of the alleged offence, only stating that it had been committed “between 1996 and 1999 in Milan”.
12. On 11 December 2006 the Warsaw Regional Prosecutor decided to seize 200 shares in the applicant’s company, Ekonova, worth PLN 10,000.
13. On 29 December 2006 the Warsaw Regional Court dismissed the lawyers’ appeals and upheld the decision of 20 November 2006. The court agreed with the lawyers’ arguments that the offence had not been described clearly enough because the date and the place where it had allegedly been committed had not been clearly specified. It also confirmed that it was crucial to first establish the date of the alleged offence in order to determine whether the Criminal Code of 1969 or 1997 should apply. At the same time, the court emphasised that the charge had not been formulated in general terms since it referred to facts.
14. On 11 January 2007 the applicant’s lawyer unsuccessfully asked the prosecutor to impose a more lenient preventive measure on the applicant.
15. During a confrontation held on 26 January 2007 the date on which the alleged offence was committed was finally established.
16. On 2 February 2007, during a search of the applicant’s house, the police found twenty-four cartridges for a hunting rifle. On 7 February 2007 the applicant was charged with unlawful possession of firearms. He pleaded guilty to this charge.
17. On 15 February 2007 the Warsaw District Court again extended the applicant’s detention. The court referred to the high probability that the applicant had committed the offence and the severe sentence that might be imposed on him.
18. On 27 February 2007 the applicant’s lawyer asked for the preventive measure imposed on the applicant to be changed. His request was again dismissed by the Regional Prosecutor on 13 March 2007.
19. On 5 April 2007 the Warsaw Regional Court
20. On 11 May 2007 the Warsaw Prosecutor released the applicant on bail of PLN 100,000. The applicant was also prohibited from leaving Poland.
21. On 25 April 2008 the Warsaw Regional Prosecutor discontinued the proceedings against the applicant in respect of the alleged bribery. The prosecutor held that while it had been established that the applicant had given a significant sum to B.T., it could not be said that he had acted on behalf of the Austrian company.
22. On 5 May 2008 the Warsaw District Prosecutor closed the investigation as regards the illegal possession of firearms.
23. On 19 May 2008 the bill of indictment was filed with the Szczytno District Court.
24. On 6 February 2009 the District Court discontinued the proceedings against the applicant.
25. On 25 May 2009 the Warsaw Regional Court quashed this judgment.
26. On 10 March 2010 the District Court again discontinued the proceedings given that the impugned act represented no danger to society.
27. It appears that the prosecutor appealed against this decision and the proceedings are pending.
28. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
29. Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, detention during judicial proceedings or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his or her liberty in the course of criminal proceedings against him or her.
Article 552 of the Code of Criminal Procedure provides:
“1. An accused who, as a result of the reopening of proceedings or an appeal on points of law, has been acquitted or re-sentenced under a more lenient provision, shall be entitled to receive from the State Treasury compensation for the pecuniary and non-pecuniary damage which he has suffered as a result of having served all or part of the sentence unjustifiably imposed on him.
2. The provisions of paragraph 1 shall also be applicable if, after the sentencing judgment has been reversed or declared null and void, the proceedings have been discontinued by reason of material circumstances not duly considered in prior proceedings.
3. A right to compensation for pecuniary and non-pecuniary damage shall also arise if a preventive measure has been applied under the conditions specified in paragraphs 1 and 2.
4. A right to compensation for pecuniary and non-pecuniary damage shall also arise in the event of undoubtedly unjustified (niewątpliwie niesłuszne) pre-trial detention or arrest.”


ITEMID: 001-109883
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GELD v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1975 and lives in Perm.
6. On 30 December 2002 criminal proceedings were initiated against the applicant, a traffic police officer at the time, and his partner on suspicion of theft and abuse of office. In February 2003 the applicant was served with the bill of indictment. An undertaking not to leave his place of residence was imposed on him.
7. On 21 March 2003 the applicant was arrested and placed in detention facility no. 1 in Perm.
8. Four months later the Motovilikhinskiy District Court of Perm found the applicant guilty as charged and sentenced him to four years’ imprisonment. The court relied on numerous witness testimonies and forensic evidence. The applicant appealed. In his grounds of appeal he complained that the trial court had incorrectly assessed the facts and applied the law, and that it had not thoroughly examined the evidence, thus failing to take into account certain important issues. The judgment became final on 11 September 2003 when the Perm Regional Court upheld it on appeal.
9. From 21 March to 25 September 2003 the applicant was held in facility no. 1 in Perm. In particular, from 21 March to 19 May 2003 he was kept in cell no. 26 and from 19 to 20 May 2003 he stayed in cell no. 19. On 20 May 2003 he was transferred to cell no. 84 from which, on the following day, he was taken to cell no. 144, having remained there until 25 September 2003.
10. Relying on a certificate prepared by the director of the detention facility on 17 October 2008, the Government submitted that cell no. 26 measured 59.4 square metres and accommodated, in general, thirteen inmates. Cell no. 19 measured 25.9 square metres and on average housed twelve inmates. The average number of detainees staying in cell no. 84 of 22.2 square metres was ten, and seven inmates were usually kept in cell no. 144 which measured 23.1 square metres. The Government stressed that at all times the applicant had an individual sleeping place and bedding.
11. Citing the information provided by the director of the facility, the Government further argued that the sanitary conditions in the cells were satisfactory. In particular, the Government submitted that the cells received natural light and ventilation through a window measuring approximately 1.2 square metres. The cells also had artificial ventilation. Each cell was equipped with a lavatory pan, a sink and a tap with running water. The lavatory pan was separated from the living area of the cell by a partition measuring between 1.33 and 1.42 metres in height. Inmates were allowed to take a shower once every seven days for no less than fifteen minutes. The cells were regularly disinfected. The cells were equipped with lamps which functioned day and night. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”.
12. The applicant disputed the Government’s submission, arguing that the four cells had been smaller and had accommodated a far greater number of inmates than the Government had described. Relying on written statements by Mr U. who had also been detained in cell no. 144 in the summer of 2003, the applicant submitted that that cell had measured approximately sixteen metres, had eleven sleeping places and housed thirteen to fourteen inmates. Given the lack of beds, inmates had slept in shifts. They were not provided with bedding. He had had to stay in overcrowded conditions for the entire day, save for an hour-long outdoor walk in the recreation yard.
13. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the management had not provided any insecticide. The walls in the cells were covered with fresh paint. Given the absence of natural or artificial ventilation, the strong smell of paint lingered in the cells. The applicant stressed that the windows were covered with metal blinds blocking access to natural light and air. It was extremely hot during the summer with the metal blinds turning into heated “radiators” under the direct sunlight. Inmates were allowed to smoke in the cells, which was an additional aggravated circumstance for the applicant, a non-smoker. The lavatory pan was placed on a concrete block elevated fifty centimetres above the floor and situated between 0.8 to 1 metre from the dining area. The toilet was not separated from the living area and emitted an unpleasant odour in the cell. At no time did inmates have complete privacy. Anything they happened to be doing – using the toilet, sleeping – was in view of the guard or fellow inmates. No toiletries were provided. The food was of very poor quality and in scarce supply.
14. Relying on inmate U.’s written statement, the applicant concluded by noting that complaints to the administration of the detention facility had been to no avail.
15. The relevant provisions of domestic and international law on conditions of detention are set out, for instance, in the Court’s judgment in the case of Gladkiy v. Russia (no. 3242/03, §§ 36, 38 and 50, 21 December 2010).
VIOLATED_ARTICLES: 3