ITEMID: 001-104947
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GERASIYEV AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;No violation of Art. 3
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: 5. The applicants are:
1) Mr Vaysu Gerasiyev, born in 1938;
2) Ms Asiyat Gerasiyeva, born in 1942;
3) Mr Khasmagomed Gerasiyev, born in 1962; and
4) Ms Zarema Gerasiyeva, born in 1971.
6. The applicants are Russian nationals and residents of the village of Gekhi, the Chechen Republic.
7. The first applicant is the father and the second applicant is the mother of Mr Valid Gerasiyev, born in 1977. The third and fourth applicants are, respectively, brother and sister of Valid Gerasiyev.
8. In the autumn of 1999 the applicants and Valid Gerasiyev resided in their privately owned house in the village of Gekhi. After the launch of the counter-terrorist operation in Chechnya, the first applicant and some of his relatives moved to Ingushetiya. Valid Gerasiyev, the first applicant’s other son and the fourth applicant stayed in Gekhi to look after the family house.
9. In December 1999 federal forces regained control over Gekhi. The hostilities ceased and the civil population began to return to the area. Valid Gerasiyev, the fourth applicant and their brother decided to stay in Gekhi and not to move to Ingushetiya as they had previously planned.
10. On an unspecified date in February 2000 the Gerasiyev family ran out of firewood to heat their house. There being no forest area in the vicinity of Gekhi, Valid Gerasiyev went to the neighbouring village of Shaami-Yurt where O.V., a relative of the Gerasiyevs, resided and where he could obtain firewood.
11. On 3 February 2000 Valid Gerasiyev and O.V. went to the forest to collect firewood in the latter’s tractor. At a certain moment the tractor started skidding and O.V. had to return to the village to fetch a rope. When he returned to the forest on his bike and found Valid Gerasiyev, both men came under fire. They decided to leave the area and abandon the vehicles. While they were trying to leave, a shell hit the tractor and the bike. Valid Gerasiyev was hit by a shell splinter in the back of his arm. The wound did not seem particularly serious but his arm was bleeding.
12. Later on the same day Valid Gerasiyev and O.V. returned to ShaamiYurt. The village was also under fire and the residents tried to shelter from the bombing. The men learnt from the local residents that federal forces were bombing the village because a group of rebels had passed through it earlier. Those rebels had been previously forced out of Grozny by federal forces.
13. Having arrived at O.V.’s house, Valid Gerasiyev and O.V. went to the basement to shelter from the bombing. Later on the same day about ten residents of the village joined them in the basement, among them A.D., S.D. and Sh.M. They bandaged Valid Gerasiyev’s arm because the wound was still bleeding.
14. On 4 February 2000 the bombing continued and the people stayed in the basement.
15. On 5 February 2000 federal forces started a “sweeping” operation in Shaami-Yurt. The servicemen ordered everyone to come out of O.V.’s basement and checked their identity documents. They immediately spotted Valid Gerasiyev’s bandaged arm and asked him how he had been wounded. He did not speak Russian and could not answer the question. When O.V. and others tried to explain that he had been wounded while collecting firewood, the servicemen threatened them with their submachine guns and ordered them to remain silent.
16. At the same time the servicemen brought people out of the neighbouring houses and checked their identities. It turned out that General Shamanov was in command of the federal forces’ operation in Shaami-Yurt and that he was present during the identity checks. A certain A.S., a police officer from the neighbouring village Khambi-Irzi, tried to stand up for Valid Gerasiyev and the other young men targeted by the servicemen. He addressed General Shamanov and asked him why federal forces had remained passive while the rebels had been passing through the village and why were they now trying to find fault with peaceful village residents. According to the written statement by Sh.M. (see paragraph 20 below), in response General Shamanov allegedly ordered the servicemen to disarm A.S. and to beat him up, which they immediately did.
17. The servicemen then put Valid Gerasiyev in a KAVZ minibus which was specifically re-equipped for transporting detained persons and drove away. Residents of the village alleged to have subsequently seen the minibus in the courtyard of the Achkhoy-Martan military commander’s office.
18. On the same day the servicemen took three other residents of Shaami-Yurt away. On an unspecified date in March 2000 the body of one of them, Mr Akh.D., was found in the river on the outskirts of the village. The other missing persons were not found.
19. The applicants have had no news of Valid Gerasiyev since.
20. The account of the events described above is based on the information contained in the application form; a written statement made by the first applicant on 14 May 2007; written statements by O.V. and A.D. dated 19 October 2006; a written statement by S.D of 10 October 2006, and a written statement by Sh.M. made on 12 October 2006.
21. According to the Government, no evidence that Valid Gerasiyev had been abducted by servicemen during a special operation was uncovered during the domestic investigation.
22. It appears that the applicants returned to Gekhi around mid-February 2000. Having learnt about the abduction of Valid Gerasiyev at about that time, the applicants applied, orally and in writing, to various lawenforcement authorities, seeking information on his whereabouts. Although the first applicant was almost illiterate (he never went to school), he made most of the enquiries in connection with the disappearance of his son, also on behalf of other applicants. At certain points he asked his neighbours for assistance in compiling his complaints. In the applicants’ submission, given the limited level of the first applicant’s education, he did not keep copies of all his complaints to the authorities.
23. On 22 April 2000 the first applicant complained about the disappearance of Valid Gerasiyev to the Achkhoy-Martanovskiy Temporary Office of the Interior (“the VOVD”).
24. On 31 May 2000 the Prosecutor’s Office of the Chechen Republic (“the republican prosecutor’s office”) forwarded the first applicant’s complaint about the disappearance of his son, along with about ten similar complaints by other persons from the Chechen Republic, to the head of the Department of the Interior of the Chechen Republic and instructed him to notify the complainants about the decisions taken.
25. On 22 August 2000 the VOVD replied to the first applicant that Valid Gerasiyev had not been detained on the VOVD premises.
26. On 26 August 2000 (or 2001 – the copy of the relevant letter is partly illegible) the republican prosecutor’s office forwarded the first applicant’s complaint about the disappearance of Valid Gerasiyev to the acting prosecutor of the Urus-Martanovskiy District.
27. On 4 November 2001 the first applicant filed another complaint about the disappearance of Valid Gerasiyev with the VOVD. It appears that the VOVD carried out an inquiry which resulted in a decision of 14 November 2001 refusing to open a criminal case into the disappearance of the first applicant’s missing son.
28. On 12 December 2001 the prosecutor’s office of the AchkhoyMartanovskiy District (“the district prosecutor’s office”) set aside the decision of 14 November 2001 and launched a criminal investigation into the disappearance of Valid Gerasiyev under Article 127 § 2 of the Criminal Code (aggravated unlawful deprivation of liberty). The case file was assigned no. 27054. The investigator’s decision referred, among other things, to a written statement by O.V. to the effect that on 5 February 2000 about ten officials of the military commander’s office of the village of Lermontov-Yurt had come to O.V.’s home and had taken away Valid Gerasiyev, and also to the fact that since that time the latter had been missing. It appears that the applicants were notified about that decision.
29. According to the applicants, after the initiation of the investigation on 12 November 2001, they were convinced that the district prosecutor’s office would search for Valid Gerasiyev and find his abductors. Consequently, for several years they waited for that body to fulfil its duties. Moreover, each time they enquired, mostly orally, about the progress of the investigation, the officials of the district prosecutor’s office reassured them that the investigation was under way. It was only in February 2006 that the first applicant sought professional legal advice in connection with the disappearance of Valid Gerasiyev.
30. On 7 February 2006 the first applicant requested the district prosecutor’s office to provide him with information on the progress of the investigation into the disappearance of his son and to grant him victim status in connection with those proceedings. It does not appear that his request was ever replied to.
31. On 19 September 2006 the first applicant filed another complaint with the district prosecutor’s office, claiming that the investigation into the disappearance of his son had been slow and that he had not had any information on its progress. He requested to be provided with access to the investigation case file and the proceedings to be resumed in the event that they had been suspended.
32. On 22 September 2006 the district prosecutor’s office notified the first applicant that it had granted his request in so far as it concerned the resumption of the investigation and had dismissed the remainder of the complaint.
33. On 28 September 2006 the district prosecutor’s office resumed the investigation in case no. 27054. The decision, in so far as relevant, stated as follows:
“... In the present case on 12 December 2001 [the district prosecutor’s office] initiated a criminal investigation under Article 127 § 2 of the Criminal Code in connection with the fact that on 5 February 2000, during a special operation carried out by federal security forces in the village of Shaami-Yurt, in the AchkhoyMartanovskiy District, a group of unidentified persons in camouflage uniforms, who arrived in a grey KAVZ minibus, arrested and took away to an unknown destination Valid Gerasiyev, [born in] 1977, resident of the village of Gekhi, who was, at the moment of his abduction, at no 38 Shkolnaya Street, the home of [O.V.], resident of Shaami-Yurt. The whereabouts of Valid Gerasiyev remain unknown.
On 12 February 2001, upon the expiry of the time-limit for the preliminary investigation, the proceedings [in case no. 27054] were adjourned.
The decision to suspend the investigation was unfounded and premature and should be set aside as it was issued on the basis of insufficiently verified information about the crime.
The examination [of the case file] reveals that not all comprehensive measures aimed at establishing the truth were carried out; the investigation was incomplete ... In particular, in order to elucidate the circumstances of the crime [the investigators] should question the residents of the village of Gekhi, relatives, neighbours and acquaintances of the missing person, as well as persons from Shaami-Yurt residing in the immediate vicinity of the crime scene. Not all measures necessary to identify other witnesses, eyewitnesses to the crime or the culprits were taken. Furthermore, the investigators did not verify information pertaining to the ownership of the KAVZ vehicle used by the perpetrators; a close relative of the missing person was neither questioned nor granted victim status.
An additional investigation should broaden the circle of potential witnesses to the crime, instruct the police to take additional operational and search measures aimed at establishing the whereabouts of the missing person and identifying the perpetrators, to examine all the relevant circumstances of the crime ...”
34. On 2 October 2006 the first applicant was granted victim status in connection with the proceedings in case no. 27054. He was notified about that decision on the same day.
35. On 12 October 2006 the first applicant complained to the AchkhoyMartanovskiy District Court (“the District Court”) about the refusal of the district prosecutor’s office to provide him with access to case file no. 27054 (see below).
36. On 28 October 2006 the district prosecutor’s office suspended the investigation in case no. 27054 owing to the failure to identify those responsible.
37. On 22 January 2007 the first applicant formally joined the proceedings in case no. 27054 as a civil party. He claimed 2,500,000 Russian roubles (RUB) in respect of pecuniary and nonpecuniary damage caused by the offence.
38. Despite the Court’s specific requests, the Government refused to submit a copy of the entire criminal case file opened into the abduction of the applicants’ relative. They did not put forward any explanation for their failure to do so. The Government furnished only copies of several witness’ statements, the decisions to open and resume the investigation and the investigators’ requests to various authorities concerning the whereabouts of Valid Gerasiyev, as well as some of the replies to them. Some of the documents provided by the Government were illegible; others were legible only in part. The information contained in those documents, in so far as they are legible, is summarised below.
39. On 12 December 2001 the deputy prosecutor of the AchkhoyMartanovskiy District quashed the decision of 14 November 2001, issued by the Achkhoy-Martanovskiy district department of the interior (“the VOVD”) and refusing to institute a criminal investigation into the first applicant’s complaint about the abduction of Valid Gerasiyev. The deputy prosecutor’s decision stated, in particular, that on 4 November 2001 the VOVD had received the first applicant’s complaint about the abduction of his son on 5 February 2000 from house no. 24, Shkolnaya Street, in Shaami-Yurt. Following a preliminary inquiry, the VOVD had refused to open a criminal case. However, their refusal was unlawful because the materials of the preliminary inquiry contained a statement by O.V. to the effect that on 5 February 2000 a group of ten servicemen from the military commander’s office of the village of Lermontovo-Yurt had come to his house at no. 24, Shkolnaya Street and had taken Valid Gerasiyev away in their bus. By the same decision the deputy prosecutor instituted an investigation into the abduction of Valid Gerasiyev under Article 127 § 2 of the Criminal Code (aggravated unlawful deprivation of liberty). The case file was assigned the number 27054.
40. On 29 December 2001 the investigators interviewed O.V., residing at 24, Shkolnaya street, Shaami-Yurt, as a witness. He stated that at the beginning of February 2000 Valid Gerasiyev had visited him in ShaamiYurt and had asked for help in collecting firewood. O.V. had given him a tractor and the latter had gone to the forest. At a certain point after his departure unspecified forces had started shelling the village and a group of rebel fighters had entered the village. Civilians had been given the opportunity to leave the village in several buses. O.V. had sent his parents away in a bus but had had to stay in Shaami-Yurt. In the evening of the same day unspecified persons had brought Valid Gerasiyev, who had been wounded and was bleeding severely, to his house. When a local doctor, called by O.V., had started bandaging the wound, a group of servicemen of the federal forces had come and taken Valid Gerasiyev away. O.V. had himself seen them place the applicants’ relative into a light-grey KAVZ bus with a blue stripe on the side. As they were taking Valid Gerasiyev away, the servicemen had said that they would provide him with the necessary medical assistance. Residents of Shaami-Yurt B.D., S.D. A.D. and Sh.M. had been present during Valid Gerasiyev’s abduction.
41. On an unspecified date the investigators interviewed the first applicant as a witness. He stated that before 1999 his family had resided in the village of Gekhi and that in 1999 they had moved to Ingushetiya, except for Valid Gerasiyev and his other son V.G., who had stayed in Gekhi. In February 2000 the first applicant had returned to Gekhi but had not found Valid Gerasiyev there. From V.G. he had learnt that Valid Gerasiyev had gone to Shaami-Yurt to collect firewood. When the first applicant had gone there, O.V. had told him that Valid Gerasiyev had indeed come to ShaamiYurt and that at that time sweeping operations had been conducted there. Valid Gerasiyev had been wounded and had then been taken away by servicemen who had promised to provide him with medical assistance.
42. On 10 January 2002 the investigators interviewed the third applicant as a witness. He stated that in 1999 he had left Gekhi together with his parents, whilst Valid Gerasiyev and V.G. had stayed in the village. The family had gone back to Gekhi in the mid-February 2000 and had learnt, after a certain lapse of time, from O.V. that Valid Gerasiyev had been at O.V.’s home in Shaami-Yurt and had been wounded while collecting firewood in the forest. At that time there had been clashes between the federal forces and the rebel fighters who had entered the village. At the beginning of February servicemen of the federal forces had taken Valid Gerasiyev from O.V.’s house, had placed him in a KAVZ bus and had taken him away. Since February 2000 the Gerasiyevs had contacted various State authorities with complaints about the disappearance of Valid Gerasiyev but had been unable to obtain any information.
43. On 16 January 2002 the investigators interviewed Sh.M. as a witness. He submitted that during a special operation in the area in February 2000 the rebel fighters had been given a free corridor to leave through Shaami-Yurt. They had entered the village on 2-3 February 2000, after which the federal forces had started shelling the village. Sh.M. had gone down to O.V.’s basement to hide from the shelling. There he had seen a number of people, including S.D., other neighbours and a wounded young man left behind by the rebel fighters when they had left the village on 45 February 2000. On 5 February 2000 a group of servicemen in camouflage uniforms had ordered everyone out of the basement. Having checked their identity papers, the servicemen took the young man with them.
44. On 18 January 2002 the investigators interviewed B.D. as a witness. He stated that at the beginning of February 2000 members of illegal armed groups had entered Shaami-Yurt and that the federal forces had been conducting a special operation in the village on 2-5 February 2000. When the federal forces had started shelling the village, B.D. had gone down to O.V.’s basement There B.D. had seen a wounded young man who, according to the other people hiding in the basement, had been from the village of Gekhi and had been left behind by the rebel fighters. At about 10 a.m. on 5 February 2000 a group of servicemen or police officers had come to the basement, had ordered everyone outside and had checked their identity papers. The servicemen had then taken the wounded man with them.
45. On 18 November 2002 A.D. was interviewed as a witness. She gave a similar account of the events concerning Valid Gerasiyev’s abduction to those given by Sh.M. and B.D.
46. On 20 January 2002 the investigators interviewed S.D. as a witness. He stated that on 2-3 February 2000 rebel fighters had entered Shaami-Yurt, following which the village had been blocked off by federal forces which had put the village under fire. As he did not have a basement, S.D. went to O.V.’s house, where other residents of Shaami-Yurt were also sheltering. On 5 February 2000 servicemen had blocked off the basement and ordered everyone in it outside. They had checked the residents’ passports and taken away the wounded person.
47. On 12 February 2002 the investigation was suspended owing to the failure to identify the perpetrators. The related decision mentioned that a copy of it was to be forwarded to the Achkhoy-Martanovskiy Interdistrict prosecutor but was silent on as to whether it was supposed to be sent to the applicants.
48. On 28 September 2006 the deputy prosecutor of the AchkhoyMartanovskiy district set aside the decision of 12 February 2002 as premature and unfounded. The decision stated that the investigators had not interviewed the residents of Gekhi, had not taken steps to identify a number of eyewitnesses to the abduction of Valid Gerasiyev and had not verified the information that he had been taken away in a KAVZ vehicle. Moreover, none of the relatives of the missing person has been granted victim status. After the opening of the investigation the investigators were instructed to increase the pool of witnesses to be interviewed and to carry out additional measures to step up the investigation.
49. On 30 September 2006 the first applicant was granted victim status in the proceedings in case no.27054 and interviewed. He confirmed his account of the events surrounding his son’s abduction and stated, in addition, that O.V. had told him that rebel fighters had brought Valid Gerasiyev, wounded, to his house in Shaami-Yurt. The latter had a missile wound to the right forearm and was bleeding. O.V. had called the local doctor, D., who had tried to stop the bleeding. At about that time a group of servicemen had emerged and had asked the people hiding in the basement to go outside. When they had seen Valid Gerasiyev, they had taken him away, saying that they would provide him with the necessary medical assistance. The servicemen had left in a KAVZ vehicle.
50. On 30 September 2006 the investigators interviewed the second applicant as a witness. She confirmed the account of the events surrounding the abduction of Valid Gerasiyev given by the first applicant.
51. On 2 October 2006 the investigators interviewed V.Sh., the applicants’ neighbour, as a witness. He stated that he had learnt about the abduction of Valid Gerasiyev from his relatives and relayed the account of the events given by the first and second applicants.
52. Residents of Gekhi S.A., A.M., M.K., S.M., A.Ch., M.I., S.A., R.Kh., Ch.P., M.A., Kh.I., Kh.U., I.M., Sh.U., A.T., Sh.B. and A.A., interviewed between 2 and 26 October 2006, made similar statements to that of V.Sh.
53. On 21 October 2006 the investigators interviewed I.G. as a witness. He stated that in February 2000 the federal forces had opened a corridor for rebel fighters, who could leave Grozny through Shaami-Yurt. After the rebel fighters had entered the village, the federal forces had started shelling it. When the rebel fighters had left, the servicemen had started a sweeping operation, checking the houses of the residents and their identity papers. I.G. had heard from an acquaintance that the servicemen had taken away a young wounded man from O.V.’s basement. That man had gone to O.V.’s house to collect firewood and had been wounded while in the forest.
54. On 22 October 2006 the investigators interviewed M.A., a resident of Shaami-Yurt, as a witness. He submitted that in February 2000 a corridor had been opened for the rebel fighters to leave from Grozny through Shaami-Yurt. When the rebel fighters had entered the village, the federal forces started shelling it. M.A. had stayed with his family in the basement of his house. When the rebel fighters had left, the servicemen had started a sweeping operation, looking for rebel fighters who might have stayed. M.A. had learnt from O.V. that the servicemen had taken away a young man from Gekhi, who had come to visit O.V. and ask him for assistance in finding firewood.
55. Residents of Shaami-Yurt T.V. and R.M., interviewed on 24 October 2006, gave a similar account of the events concerning the sweeping operation in Shaami-Yurt and the apprehension of Valid Gerasiyev to that given by M.A.
56. On 28 October 2006 the investigation in case no. 27054 was suspended owing to the failure to identify the perpetrators.
57. On 22 January 2007 the decision to suspend the investigation was set aside as premature and unfounded and the investigators were instructed to step up the investigation.
58. On 1 February 2007 the investigators interviewed residents of Shaami-Yurt Kh.Sh., R.A., R.D., M.T., Kh.Kh., E.Kh. and A.Kh. as witnesses. They gave similar accounts of the events of the sweeping operation in Shaami-Yurt and Valid Gerasiyev’s abduction to that given by M.A.
59. On 22 February 2007 the investigation in case no. 27054 was suspended owing to the failure to identify the perpetrators.
60. According to the Government, the investigation in case no. 27054 is pending.
61. On 24 November 2006 the Achkhoy-Martanovskiy District Court dismissed the first applicant’s complaint about the district prosecutor’s office’s refusal to provide him access to the criminal case file opened into his son’s abduction and to allow him make copies from it. The court decision stated, among other things, that it transpired from the materials of case file no. 27054 that on 5 February 2000 servicemen of the federal security forces had arrested and taken away Valid Gerasiyev and that the latter had subsequently disappeared. The investigation had obtained information on the involvement of servicemen in the abduction of Valid Gerasiyev. However, it had proved impossible to identify the specific persons who had committed the crime.
62. On 25 April 2007 the Supreme Court of the Chechen Republic upheld the decision of 24 November 2006 on appeal.
63. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 6769, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-5848
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SCHWEIZERISCHE RADIO- und FERNSEHGESELLSCHAFT (SRG) v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant association, the Swiss Radio and Television Company, is an association registered with the Commercial Register in Bern in Switzerland. Before the Court it is represented by Mr A. Kley, a lawyer practising in Bern.
The facts of the case, as submitted by the applicant association, may be summarised as follows.
The applicant association broadcasts a regular television programme “Kassensturz” (“Pennywatcher”) dealing with consumer problems, money and work. The magazine “K-Tip” accompanies the television programmes.
The editors of “Kassensturz” intended to broadcast on 20 April 1993 in a programme lasting 30 minutes, inter alia, a contribution on medicaments and in particular on the side-effects of multi-component painkillers, for instance, that such drugs could themselves induce headaches. In the contribution there was to be a short film showing a fictitious person B.S. who, after waking up with a headache, met a doctor in the bathroom with whom he talked about these medicaments. An article published in various newspapers on the same day announced the programme as follows:
“B.S. who has taken too much histamine wakes up with a ‘hangover’. As usual he takes a ‘C.-pain’ tablet. However, precisely this painkiller is not recommended by critical doctors. It has too many different active substances.”
The W.-company, which produced the “C.-pain” medicament, obtained on the same day, 20 April 1993, from the single judge J.H. of the Bern District Office (Einzelrichter im Richteramt) a super-provisional order (superprovisorische Verfügung) which prohibited the “Kassensturz“ programme or the “K-Tip” magazine
“to call in question or attack the painkiller ‘C.-pain’ alone or as an exemplary representative of an entire category of medicaments without a representative comparison of other painkillers; (and) to comment the present order proceedings in the context of a ‘Kassensturz’ programme.”
On the evening of the 20 April 1993 the programme was broadcast as follows:
A film showed B.S. waking up with a headache and going to the bathroom in order to fetch a medicament. At this stage, a grey curtain was superimposed on the action for a period of 50 seconds, and the sound was turned off. The viewer was aware of a dialogue behind the curtain between B.S. and a second person. In the meantime, the following text, accompanied by two scissors, appeared on the screen:
“Super-provisional order: The broadcasting of this part of the film on ‘C.-pain’ is prohibited today
Bern District Court, (J.H.) SP.”
The film continued with the picture of a doctor saying “think about it!”. A voice then stated “no medicaments with several components!” The next part of the film showed B.S. suffering from diarrhoea after having taken too many laxatives. The doctor appeared again, and B.S. asked him for a new medicament, which the doctor refused, prescribing him black tea instead. A further sequence of the film concerned tranquillisers.
At the end of the film the moderator made the following comment:
“You have seen, we were not allowed to broadcast a sequence on ‘C.-pain’, as the producer, the W.-company, brought this about by means of a super-provisional order.”
On 21 April 1993 the “K-Tip” magazine published a list of 19 medicaments, among them “C.-pain”, which it did not recommend, 14 medicaments which were “ok”, and 6 homeopathic products.
On 2 June 1993 the District Court converted the super-provisional order into a provisional order, while granting the W.-company a time-limit of 30 days to institute court proceedings against the applicant association.
The W.-company then filed an action with the Commercial Court (Handelsgericht) of the Canton of Bern, requesting a prohibition of any statement concerning “C.-pain” as well as damages exceeding CHF 8,000 from the applicant association.
In the ensuing proceedings, the applicant association submitted, inter alia, that it had chosen to mention “C.-pain” in the broadcast since the latter was the most widely used product of the group in Switzerland, and had been at the centre of a large publicity campaign. Moreover, the film, which had clearly stated that the problem lay with all multi-component products, had intended to show the importance of medical supervision when taking such products, rather than demonstrating particular deficiencies of “C.-pain”.
On 21 September 1994 the Commercial Court issued a partial judgment in which it upheld the action, prohibiting the applicant association from calling in question, or attacking, in its broadcasts the medicament “C.-pain” alone or as an exemplary representative of an entire category of medicaments. The judgment furthermore found that the broadcast of 20 April 1993 was unlawful and breached the Unfair Competition Act insofar as it related to the judicial order. In its judgment, the court stated inter alia:
“In the court’s opinion the exclusive and negative mention of a single medicament, which can be reproached for nothing else than belonging to a particular group of medicaments, breaches the principle of good faith. ... In order for the ‘Kassensturz’-viewer not to obtain and keep the impression that the particular product is the sole issue, it must at least clearly transpire from the broadcast that (and why) the product in question was adduced as an example of a particular category of products. In order to avoid that the television viewer obtains the impression of incorrect facts, it is probably necessary in the individual case to mention by name all equivalent products, since otherwise the affected party will, in its position as a scapegoat, suffer disproportionate negative market results ...”
Insofar as the judicial order itself had been mentioned in writing and orally in the programme of 20 April 1993, the judgment continued:
“It furthermore breaches the principle of unfairness (Lauterkeit) mentioned in the general clause in Section 2 of the Act on Unfair Competition (Gesetz über den unlauteren Wettbewerb) and will create incorrect impressions with the viewer if a product and its producer - the latter contesting (as explained above) with legal means that he is being one-sidedly pilloried (Anprangern) - are mentioned by name in the manner at issue in a much noticed consumer programme such as ‘Kassensturz’. The viewer expects the weekly pillorying of inferior goods, dubious services and deceiving market conduct. He will now obtain the incorrect impression that a producer knew how to obtain, with the assistance of a judge (named in person and belonging to the social-democratic party), the prohibition of a report on his dubious goods. The impression that the plaintiff with his product ‘C.-pain’ had (as the only one among the producers of painkillers) something bad to hide, calling for a contribution of ‘Kassensturz’, is further reinforced by the fact that the reason for the judicial prohibition is not mentioned. Thus, the statement is missing that ‘C.-pain’ is one of 19 combination products and one of 9 combination-pain-killers with caffeine additives, respectively, and that its exemplary and exclusive mention as a medicament, with a warning not to take it, was seen by the judge as a breach of unfair competition ... It was possible without any difficulty to show in the same film passage ... the preferred one-component-products as a group, without mentioning one particular product.”
The Commercial Court concluded that the negative presentation of the product “C.-pain” as well as the manner in which the remedy filed had been commented upon, served to jeopardise the market position of the W.company, though it considered that it would decide in a subsequent judgment on the request for damages of the W.-company.
The applicant association’s appeal (Berufung) and public law appeal (staatsrechtliche Beschwerde) were rejected by the Federal Court on 18 April 1995, inter alia, as the judgment of the Commercial Court was not final.
In the meantime, the Commercial Court of the Canton of Bern ordered the preparation of an expert opinion by an expert of the pharmaceutical industry in respect of the damages suffered by the W.-company. This opinion, comparing in detail the sales of various medicaments over various periods of time and in particular the drop in sales suffered by the W.-company, was submitted on 30 January 1996.
Thereupon proceedings were resumed before the Commercial Court which by judgment of 28 November 1996 awarded the W.-company damages amounting to CHF 480,000.
The applicant association’s appeal against this decision was dismissed by the Federal Court on 8 January 1998, the judgment being served on 27 February 1998. The Court, which considered that the prohibitions at issue were based on Sections 2 and 3 § 1 (a) of the Unfair Competition Act, stated, inter alia:
“In order to warn about the possible risks of a particular category of goods it is neither necessary nor adequate to mention or emphasise particular competitors or their products as compared with all other products with the same characteristics. To the contrary, it will contradict the aim of objective information if the impression is created that corresponding risks would only arise in the case of some of these goods, since in certain circumstances this may even prompt the consumers to switch to other goods of the same category with the same negative characteristics. Neither the public function of the media nor the economic interests in raising the number of copies published or of television viewers serve to justify the disparaging of individually named competitors or their products under the pretext of general information in the public interest, as long as there are no particular characteristics of specific products or there is no conduct of particular competitors.”
Super-provisional orders may be ordered in case of urgency without hearing the opposing party. They will become obsolete if they are not confirmed by a subsequent provisional order which in turn, and upon an action, may become the object of a regular court judgment.
The pertinent provisions of the Unfair Competition Act of 1986 read as follow:
“Section 1
This Act is intended to guarantee, in the interests of all the parties concerned, fair, undistorted competition.
Section 2
Any conduct or commercial practice shall be unfair and illegal if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and customers.
Section 3
A person acts unfairly if, in particular,
(a) he denigrates others or the goods, work, services, prices or business of others by making inaccurate, misleading or unnecessarily wounding statements; ...
Section 9
“1. Anyone who through an act of unfair competition sustains or is threatened with damage to his goodwill, credit, professional reputation, business or economic interests in general, may apply to a court:
(a) to prohibit the act if it is imminent;
(b) to order that it cease, if it is still continuing;
(c) to declare it unlawful, if the interference it has caused persists.
3. He may also, in accordance with the Code of Obligations, bring an action in damages and for reparation of non-pecuniary damage and require that any gain be handed over ...”


ITEMID: 001-61134
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF EASTERBROOK v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress;Nicolas Bratza
TEXT: 7. The applicant was born in 1931 and is currently serving a prison sentence in HM Prison Highdown, Surrey.
8. On 30 November 1988, the applicant was convicted at the Central Criminal Court in London of robbery, wounding with intent, possessing firearms with intent to endanger life and possessing ammunition with intent to endanger life.
9. The offences arose out of a single robbery which occurred on 23 November 1987 at a shop in Woolwich. One of the applicant’s associates entered the shop, snatched a Securicor bag containing 10,400 pounds sterling and held a loaded revolver to the head of a member of the shop’s staff. The applicant, armed with a loaded revolver, kept watch outside. During a changeover of cars in their flight from the crime, the applicant and his associates were intercepted by the police, who surrounded them and told them to lay down their arms. The applicant fired six shots, wounding one police officer in the leg. The police returned fire and one of the applicant’s associates was killed. The applicant received a superficial wound to his shoulder. He was arrested and immediately detained.
10. The applicant was subsequently tried and was not represented at his trial. He stated that he was informed by his counsel that his defence was “political” in nature and could not be put by a professional advocate. His counsel then withdrew. The applicant was sentenced to life imprisonment. In sentencing him, the judge made reference to his long, violent criminal record and the dangerous nature of his character.
11. In June 1990, the Court of Appeal refused the applicant’s renewed application for leave to appeal against conviction, leave having already been refused by a single judge. The Court of Appeal also rejected the applicant’s appeal against sentence. At this hearing the applicant was again not represented.
12. On 9 December 1992, a certificate was issued on behalf of the Secretary of State, stating that the provisions of the Criminal Justice Act 1991 for certifying the tariffs of discretionary life sentence prisoners would not apply to the applicant. The applicant’s release from prison would therefore be at the Home Secretary’s discretion, following a favourable recommendation from the Parole Board and after consultation with the Lord Chief Justice and trial judge, if available. The certificate stated that it was Home Office policy that no life sentence prisoner should be detained more that 17 years without a review by the Parole Board. The first review of the applicant’s case by the Parole Board would be in November 2004. The applicant stated that he had no record of receiving this document.
13. On 27 July 1995, the Prison Service informed the applicant that, following a judgment of the House of Lords, the Secretary of State would now be setting a specific tariff which would be disclosed to the applicant, along with the judicial recommendations and any reasons for any departure from them. The judicial recommendations - that in the applicant’s case “ ’life’ should mean ‘life’ ” – were disclosed to the applicant and he was invited to make representations.
14. On 5 February 1998, the Home Secretary agreed to certify that the applicant should be subject to the arrangements for the release of discretionary life prisoners, despite having previously qualified the applicant as someone serving a mandatory life sentence. The decision of 5 February 1998 also set the tariff of the applicant’s sentence at 16 years, expiring on 24 November 2003.
15. The applicant’s solicitors made written submissions as to the appropriate length of the tariff and submitted that the applicant should be entitled to an oral hearing before the Lord Chief Justice. The applicant’s solicitors were informed by a letter of 13 August 1998 that the Lord Chief Justice had revised his opinion and that he recommended a tariff of 12-13 years, but that no oral hearing would be allowed. On 27 November 1998, the Prison Service informed the applicant’s solicitor that the Home Secretary had decided on a tariff of 12.5 years, to expire in May 2000.
16. On 8 January 1999, the applicant made an application for judicial review of the Home Secretary’s decision of 27 November 1998. The application was dismissed on 11 February 1999. A renewed application was dismissed on 22 March 1999.
17. After the tariff expired in May 2000, the applicant became eligible for Parole Board review procedures. He has stated however that he has decided not to participate in the procedures due to his continuing belief that the Government have breached his human rights and still refuses to acknowledge those breaches.
18. Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of other serious offences (e.g. manslaughter, rape or robbery) may also be sentenced to life imprisonment at the discretion of the trial judge in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside.
19. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, R. v. Secretary of State for the Home Department, ex parte V. and T., [1998] Appeal Cases 407, at pp. 492G-493A).
20. Pursuant to section 34 of the Criminal Justice Act 1991, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public.
21. A different regime, however, applied under the 1991 Act to persons serving a mandatory sentence of life imprisonment (now replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”), sections 28-34). In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and the Home Secretary’s statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-864).
22. The Criminal Justice Act 1991 provided in section 35(2) as regarded mandatory life prisoners :
“If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”
23. This was in contrast to the position for discretionary life prisoners, where the Parole Board was given the power of decision. Pursuant to the reforms introduced at this time, these prisoners were also given the opportunity of an oral hearing.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94861
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LAZOROSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1-c+5-2;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1973 and lives in Kičevo.
6. On 6 August 2003 the applicant received a telephone call from an officer of the Intelligence Service (Управа за безбедност и контраразузнавање) who asked him to come to a police station for a “talk”. The applicant replied that he would attend with his lawyer provided he received a written request.
7. Mr J.S., a high-ranking officer in the Intelligence Service gave a verbal order for the applicant's arrest on suspicion that he was armed and might leave the State.
8. At 11.15 p.m. the same day the applicant was arrested by police near the Tabanovce border post with Serbia. He was taken to Tabanovce police station and a body search was carried out. A report on the search indicated that a mobile phone, passport, identity card and a licence to carry arms (“the licence”) had been found. According to the parties, a gun was also found, but was not recorded in the report. The applicant was handcuffed and transferred to Kumanovo police station by the Intelligence Service. He managed to contact his lawyer on his mobile phone.
9. At 2 a.m. on 7 August 2003 the applicant signed a report in which he waived his right to a lawyer. No record of questioning was kept. The applicant maintained that he was questioned about the work of his superiors (one of the executive managers of company O.), about certain members of the then opposition political party and certain high-profile journalists. His personal belongings were returned and he was released at 9 a.m.
10. On 7 August 2003 the applicant brought his alleged unlawful arrest to the attention of the Ministry of the Interior (“the Ministry”) and on 3 November 2003, to the Sector for Internal Control at the Ministry (“the Sector”). Several letters were subsequently exchanged between the applicant and the Sector.
11. In a report of 3 March 2004 the Sector noted that the applicant's arrest and detention had been carried out in compliance with the law. Owing to minor errors in the minutes concerning the body search, the Sector proposed that the police officers responsible be fined and warned. The Sector repeated these findings in its reply to the applicant dated 22 March 2004. No explanation was given for the applicant's arrest.
12. On 7 August 2003 the applicant requested an investigating judge at the Kumanovo Court of First Instance to review the lawfulness of his deprivation of his liberty (барање за испитување на законитоста на лишувањето од слобода). He claimed that he had been detained unjustifiably; that he had not been informed of the reasons for his arrest; that his lawyer had been prevented from attending his interview and that the arrest had been carried out without a court order.
13. Between 15 October 2003 and 12 January 2004 the investigating judge was on sick leave.
14. On 4 February 2004 the investigating judge requested the Ministry to provide documents concerning the applicant's arrest. In a reply of 20 February 2004, the Ministry stated that the applicant's arrest had been ordered on account of suspicion that he had been involved in arms trafficking and that he had been released after it had been established that there was no evidence to support the allegations and that he had the requisite licence. On 23 June and 21 September 2004 the investigating judge required further written evidence from the Ministry which the latter submitted on 29 September 2004.
15. On 26 January 2005, after five requests by the applicant for the proceedings to be expedited and relying on the information provided by the Ministry and the reports described in paragraphs 8 and 9 above, the investigating judge found that the applicant had been lawfully deprived of his liberty on suspicion of arms trafficking. She further found that the applicant had waived his right to a lawyer, as noted in the report of 7 August 2003, which had been duly signed by the applicant. The applicant was advised that he could appeal within two days to a three-judge panel (“the panel”) (Кривичен Совет) of the Kumanovo Court of First Instance.
16. On 16 February 2005 the applicant appealed, arguing that he had been deprived of his liberty contrary to Article 5 of the Convention and the applicable legislation. He maintained that he had been arrested without a court order and that the investigating judge had failed to examine the grounds for his deprivation of liberty. He further submitted that he had not been summoned by the investigating judge to present the arguments in his favour and that there had been witnesses who could have shed light on the circumstances surrounding his arrest.
17. On 18 February 2005 the panel dismissed the applicant's appeal. Finding no reasons to question the established facts, it ruled that the applicant's deprivation of liberty had been lawful and intended to identify him, verify his alibi and collect necessary information. It noted that he had been informed of his rights and the reason for his arrest, namely a reasonable suspicion that he had committed the offence of “trafficking in arms”.
18. No proceedings were taken against the applicant.
19. Article 12 §§ 2, 3 and 4 of the Constitution provides that freedom cannot be restricted except by a court decision and in cases and proceedings regulated by a law. Individuals summoned, arrested or detained must be informed promptly of the reasons for the summons, arrest or detention and of their statutory rights. They cannot be forced to make a statement. Everyone has a right to a lawyer in police and in court proceedings. Detainees must be brought, promptly or within twenty-four hours of their arrest, before a court which will examine the lawfulness of their detention.
20. Section 3(1) and (2) of the Act, as worded at the material time, provided that everyone summoned, arrested or detained had to be informed promptly, in a language which he or she understood, of the reasons for the summons, arrest or detention and of his or her statutory rights. He or she could not be forced to make a statement. The suspect, that is, the person accused, had to be clearly informed from the outset of his or her right to remain silent, to consult with a lawyer, to have a lawyer of his or her choice present during questioning, and to inform a third party of his or her detention.
21. Section 22(6) of the Act provided for a three-judge panel of the first-instance court to hear, inter alia, appeals against decisions of the investigating judge.
22. Section 142(4) laid down that a person against whom the Ministry had taken the measures set forth in subsection 2 (measures which the Ministry was authorised to take on account of suspicion that an offence had been committed) could request the court to review the lawfulness of those measures and that the court had to issue a decision.
23. Under section 184(1)(1) of the Act, pre-trial detention could be ordered on reasonable suspicion that the person concerned had committed an offence if he or she had gone into hiding or his or her identity could not be determined, or when there were circumstances to suggest the possibility that he or she might abscond.
24. Section 188(2) provided that Ministry officials could arrest without a court order anyone suspected of committing an offence prosecutable ex officio. The arrested person had to be brought promptly before an investigating judge. In accordance with section 188(3) and as an exception to the general rule, Ministry officials could detain a person if it was necessary to determine his or her identity; to verify his or her alibi or if there were other grounds requiring the collection of information to enable proceedings to be brought against a third party. Such detention could be effected only if the requirements for pre-trial detention, as set forth in sections 184(1)(1) and (1)(3), were met. Section 184(4) required the arrested person to be given the information referred to in section 3 of the Act. Section 184(6) provided that detention pursuant to section 184(3) could not exceed twenty-four hours. The Ministry official was required either to release the arrested person or to proceed in accordance with section 184(2).
25. Sections 527(2) and 528 of the Act, which related to compensation for wrongful conviction and unjustified detention, stipulated that the party concerned had to lodge any claim for damages with the Ministry of Justice in the first instance and to indicate the requested form and amount of any settlement. If the compensation claim was not upheld or the Ministry of Justice failed to decide it within three months from the date the claim was brought, the party concerned could claim compensation in the court of competent jurisdiction.
26. In accordance with sections 530(1) (3) and 530(2) of the Act, a person was entitled to compensation if he or she had been unjustifiably deprived of his or her liberty through the fault or unlawful conduct of a body. A person unlawfully arrested under section 188 of the Act could claim compensation.
27. Section 49 of the amended Act replaced section 142 of the Act. Under subsection 9, the person concerned may within thirty days request the investigating judge to review the lawfulness of the measures taken by the police. An appeal to the panel may be lodged within 48 hours. The panel must issue its decision within three days.
28. In case no. П.бр.441/06 the Ministry of Justice, on the basis of a court settlement, paid compensation to a claimant who had been held for three days before being released. The investigation against him was also discontinued.
29. On 15 February 2007 the Ministry of Justice paid compensation for non-pecuniary loss sustained by Mr N.N. following his arrest in 2006 to serve a prison sentence he had already served in 2004 (бр. 08-692/2).
30. In civil proceedings instituted under the Law on Obligations (Закон за облигационите односи), Mr R.M. was awarded compensation after being unjustifiably held in police custody in order to serve a prison sentence even though no such sentence had been imposed, but rather a security measure - compulsory psychiatric treatment on release.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-2
6-1
VIOLATED_BULLETPOINTS: 5-1-c
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69504
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KOSYLAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Roman Kosylak, is a Polish national who was born in 1941 and lives in Inowłódź, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 December 1984 the applicant sued K.K., K.K., F.K. and M.K. before the Tomaszów Mazowiecki District Court (Sąd Rejonowy). He sought payment.
The proceedings were terminated on 17 October 2002. On 5 November 1998, the date on which the application was lodged with the Court, they were pending before the Piotrków Trybunalski Regional Court (Sąd Okręgowy).
On 14 January 1994 the applicant lodged a claim for compensation against K.K., K.K. and S.K. with the Piotrków Trybunalski Regional Court.
The proceedings were terminated by the judgment of the Łódź Court of Appeal (Sąd Apelacyjny) on 22 December 1999. It is not certain whether a cassation appeal was available in this case. On 5 November 1998, the date on which the application was lodged with the Court, the proceedings were pending before the Piotrków Trybunalski Regional Court.
On 26 May 1992 K.K., the applicant's brother, sued him before the Tomaszów Mazowiecki District Court, seeking his eviction.
The proceedings were terminated on 17 October 1994 by the judgment of the Piotrków Trybunalski Regional Court. A cassation appeal was not available in this case.
On 17 September 2004 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-75527
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BARSZCZ v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. On 13 December 1994, the applicant sold a horse to A.G. for PLN 2,500. Two days later the buyer returned the horse claiming that it was ill. The applicant was therefore forced to pay the costs of the horse’s upkeep during the following year. As A.G. constantly refused to take the horse back, the applicant sold it to another buyer, as he could not afford the costs of upkeep.
5. On 25 January 1995 A.G. lodged a suit against the applicant with the Tarnobrzeg District Court, claiming payment of the price.
6. On 14 March 1995 the applicant lodged a counter-claim for costs of the upkeep of the horse.
7. During the first hearing on 15 March 1995 the court admitted witness evidence and adjourned the case.
8. On 5 April 1995 the court heard witnesses and adjourned the case.
9. On 22 May 1995 the court admitted in evidence an opinion of a veterinary surgeon and adjourned the case.
10. On 25 July 1995 the expert submitted the opinion, stating that the horse was well and had never been ill.
11. On 6 September 1995 the court called an expert in agriculture, who estimated that the costs of upkeep of the horse had greatly exceeded its value. The court adjourned the case.
12. On 2 October 1995 the court heard the parties.
13. On 11 October 1995 the court delivered a judgment. Both parties appealed.
14. On 28 March 1996 the Tarnobrzeg Regional Court returned the case file to the District Court to have it completed.
15. On 5 September 1996 the Regional Court quashed the first-instance judgment and remitted the case for re-examination.
16. On 16 January 1997 the parties declared that they could not reach a friendly settlement.
17. On 9 October 1997 the court admitted the evidence of a witness and adjourned the case.
18. On 10 February 1997 a witness was heard and the case was adjourned.
19. On 9 April 1998 further witnesses were heard.
20. On 2 June 1998 the court admitted in evidence another expert’s opinion.
21. On 18 January 1999 the expert submitted the opinion.
22. On 31 March 1999 the court summoned the expert and adjourned the case.
23. On 5 May 1999 the court found that the plaintiff had not paid an advance for the expert’s opinion and adjourned the case until 2 June 1999. The expert failed to attend the hearing on that day and the case was adjourned until 25 June.
24. On 19 November 1999 the District Court delivered a judgment, ordering PLN 4,690 to be paid by the applicant with interest from 1995, and 903 PLN to be paid by A.G. to the applicant.
25. On 13 April 2000 the Tarnobrzeg Regional Court dismissed the appeals of both parties.
26. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”
27. Article 418 of the Civil Code, as applicable until 18 December 2001, provided for the following exception in cases where damage resulted from the issue of a decision or order:
“1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person.
2. The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.”
28. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – which included adding a new Article 4171 and the institution of the State’s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings.
Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows:
“3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”
29. However, under the transitional provisions of Article 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date.
30. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution.
On the same day the Constitutional Court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the state official concerned, established in criminal or disciplinary proceedings.
31. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant:
“The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other, not necessarily only those listed in the Civil Code, principles of the State liability laid down in specific statutes.”
32. On 17 September 2004 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act.
Article 2, in so far as relevant, reads as follows:
Article 5 provides, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
33. Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 in the following terms:
“A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”
34. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.”
35. Article 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23347
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: RANSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Christopher Philip Ranson, is a United Kingdom national, who was born in 1948 and lives in Norfolk. He is represented before the Court by Mr R. Bamber, a lawyer practising in Cambridge.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a wealthy property developer, married in 1985 and the two children of the marriage were born in 1991 and 1994. In 1993 the family moved to New Zealand for tax reasons, the mother and children returning to the United Kingdom in 1996, the applicant in 1998. The couple divorced in 1999, and there were subsequent proceedings in respect of financial matters (“the ancillary proceedings”) and in respect of the arrangements for the children (“the Children Act proceedings”). The parties had reached agreement in November 1999 regarding the applicant's contact with the children, who had remained with their mother, but the arrangements later broke down and the applicant applied for a residence order, alleging deficiencies in the mother's care.
The hearing, before Mr Justice Singer, began in September 2000, but it became clear that the five day time estimate was insufficient and it was adjourned until February 2001, when it was concluded after fifteen further days. The applicant was represented by leading and junior counsel.
One of the main issues in the case was the relevance of a title defect in a freehold commercial property owned by the applicant, known as 'Site B' and potentially worth up to 11.4 million pounds sterling (GBP). It was by far the most significant asset in issue. Although, back in 1999, an affidavit filed by the applicant showed he had not then sought to rely on the potential consequences of the title defect, his case ultimately was that it meant that he was unable to sell or mortgage the property and that it was effectively worthless save as a source of income from rents (over GBP 700,000 per annum at the time). At worst the defect could give the local authority the right to buy the property for a nominal sum. Counsel for the mother argued that the defect was of a technical nature and need not create significant problems in terms of realising the value of the property. Another significant issue concerned the applicant's ongoing negotiations with the Inland Revenue as to his tax liabilities. Judgment was reserved.
The applicant appeared in person, assisted by his solicitor, having withdrawn instructions from counsel. At the pre-trial review on 3 May 2001, Mr Justice Singer gave directions, including one preventing the applicant from calling witnesses without leave of the court, and set a strict timetable. The applicant considered that the judge had already formed negative views about his character in the ancillary proceedings and felt he would not receive a fair hearing. He applied for the judge to remove himself from the case. The judge refused the application and refused permission to appeal, as did the Court of Appeal.
The hearing began on 14 May 2001. The applicant was cross-examined over three days by counsel for the mother. The applicant subpoenaed the children's head teacher, who expressed the view that the applicant was sincere in his concerns for the children and confirmed that the applicant's son had indicated a wish to be with him, although he also referred to the applicant as a bully. The applicant then began a lengthy cross-examination of the mother, in which the judge intervened frequently and revealed his increasing impatience with the applicant. It was later estimated that over 22 hours of the hearing the judge had intervened, on average, every 50 seconds.
By the morning of 18 May 2001 the applicant decided he was unable to continue with the case and withdrew from the proceedings. He made a statement to the court indicating that he felt that the truth would not come out and that he was unable to have a fair trial before Mr Justice Singer. The applicant declined an invitation from the judge to return to court or for his solicitor to remain on his behalf.
On 18 May 2001 the judge made various interim orders, including an injunction prohibiting publication of the details of the proceedings and a non-molestation injunction. He also ordered a suspension of the applicant's contact with the children until further order of the court. The applicant faxed two letters to the court over the weekend detailing his complaints about the judge's conduct and stating his intention to take his complaints further. He said he felt that he had been treated 'as a criminal' and that the judge had shouted at him, interrupted him and had made increasingly intemperate outbursts, which disclosed his hostility to the applicant. He also complained that the judge had allowed counsel for the mother to question him in an unfair manner, whilst preventing him from asking questions in similar terms. He expressed his belief that the judge had formed a prejudice against him in the ancillary proceedings, had prejudged his application for residence and thereafter had become increasingly and openly hostile.
On 23 May 2001, giving judgment in the Children Act proceedings, Mr Justice Singer made a residence order in favour of the mother with contact for the applicant, but reducing that which he had previously enjoyed, to a total of 4 days over a 2 month period. The recommendation of the children and family court reporter had been for a residence order in favour of the mother but with an increase in the applicant's contact (including an extension to weekend contact). The mother had at an earlier stage indicated her agreement to the suggested increase, but had withdrawn it by the time of the hearing. The order was in terms as sought by the mother. The injunction prohibiting publication was retained. The introductory recital to the order invited the applicant to consider submitting himself to a psychiatrist for examination. Paragraphs 1 and 2 dealt with residence and contact. Paragraph 3 of the order included a non-molestation injunction in respect of the mother, a prohibition on any communication with the children except during the defined contact times, and an injunction preventing the applicant approaching within 100 yards of the mother's house or the children's school. By paragraph 5, the mother's application for an order under section 91 (14) of the Children Act 1989, (requiring the applicant to obtain leave from the court before making further applications) was adjourned for full hearing. Paragraph 9 of the order required the applicant to surrender the children's passports. By paragraph 10 he was ordered to pay the mother's costs of the proceedings on an indemnity basis (by which any doubt which the court may have as to whether costs were reasonably incurred or were reasonable in amount is resolved in favour of the receiving party), assessed summarily at GBP 170,000. Finally, the judge reserved the matter to himself.
The orders made on 23 May 2001 were to run until further hearing (in the event, July 2001). The contact was limited to enable the applicant's reaction to the outcome of the hearing to be assessed in relation to any impact it might have upon the children. Mr Justice Singer expressed profound reservations about the applicant's ability to respond perceptively to the children's needs. He held that the applicant was motivated not solely by the interests of the children, but also by a desire to win his own way, establish his superiority and punish the mother. His 'intractability and intransigence' had become clearer as the hearing had progressed. Furthermore, he was unable to accept him as an honest witness. By contrast, he found the mother to be an impressive, honest and dignified witness, who instinctively avoided conflict and who had a consuming concern for the children. The applicant's unreasonable conduct of the litigation and the disparity in the parties' means justified the order for indemnity costs.
The applicant sought permission to appeal. In July 2001, the Court of Appeal adjourned the application, to consider it at an oral hearing, with the appeal to follow if permission was granted. By that stage the applicant had instructed new counsel in the Children Act proceedings.
On 24 July 2001, Mr Justice Singer refused to terminate the order of 23 May.
On 24 July 2001, Mr Justice Singer gave judgment in the ancillary proceedings, in which he was highly critical of the applicant's integrity and motivation. Assessing whether it was plausible that the applicant would exaggerate his liability to the Revenue so as to leave less money for the mother to claim, the judge referred to the Children Act case, saying,
“That experience has fortified me in the conclusion which I have reached about his character and his conduct. He is intensely determined to succeed, apparently at whatever cost. He reacts very strongly, vigorously and manipulatively to what he sees as opposition to him. ... In the child-related proceedings he persuaded me by his conduct of them that he had lost sight of the children's interests in pursuit of his campaign to punish [the mother] for in effect defying his wishes and bringing the marriage to an end. ”
He found that the applicant had been forced to acknowledge dishonesty in his dealings with the Inland Revenue, for example in connection with a “sham” sale of a property, about which he had provided misleading information to his accountant. He had also been selective in the extent and timing of his production of documents. Despite his adverse findings as to the applicant's character however, the judge explicitly stated that his orders were not intended to reward the mother nor to penalise the applicant, and his conduct had not weighed in the overall decision.
On 30 July 2001, Mr Justice Singer ordered that the applicant pay the mother a lump sum of GBP 1.9 million, forthwith, together with her costs of approximately GBP 500,000, assessed on an indemnity basis. He also ordered that a receiver be appointed, with wide powers to take steps to realise the lump sum payment, including a power to enter into negotiations to try and resolve the title defect with Site B. The applicant applied for permission to appeal.
In October and November 2001 separate constitutions of the Court of Appeal granted permission to appeal and heard detailed submissions from counsel in both sets of proceedings.
The applicant submitted that the judge should not have continued to sit in the Children Act proceedings having already made up his mind against the applicant in the ancillary proceedings and he had dismissed the application as vexatious and hopeless. The judge had intervened in a hostile manner, had uncritically accepted the mother's case and dismissed the evidence of the head teacher and the welfare report to the extent that they were supportive of the applicant's case, for example in relation to the wishes of the children. The applicant submitted that the judge's conduct had hampered his presentation of the case to the extent that he had felt compelled to withdraw, leading to flawed and inappropriate orders. He also argued that the judge's reaction to his withdrawal from the proceedings had been intemperate and he had made punitive and unnecessary orders, including ordering the applicant to pay the mother's costs on an indemnity basis.
The Court of Appeal gave judgment in the Children Act proceedings on 7 December 2001. The court, which had read a complete transcript of the hearing at first instance, observed that,
“For us the atmosphere and the emotions with which spoken words were charged are largely lost. Thus any judgment upon whether or not [the applicant] received a fair and impartial trial is necessarily imperfect. On the one hand it can be said that [the applicant] is a robust and skilful man who had educated himself in the processes of litigation and who was throughout accompanied by his solicitor. On the other hand he had already conceived a conviction that the judge had taken against him by the end of the marathon hearing of the money case and he had expressed that conviction by seeking a fresh tribunal for the trial of the Children Act applications.”
The court noted that the judge's task was exceptionally difficult, he having concluded that the applicant had been devious and dishonest in the ancillary case and having then refused to release the later proceedings to another judge. From a careful reading of the transcripts the court considered that the judge's interventions had been plainly excessive, notwithstanding the submissions on behalf of the mother to the effect that the interventions had been necessary for the judge to retain control of the proceedings. At one stage during cross-examination of the mother, there was an exchange between the judge and the applicant covering two pages of transcript, during which the witness did not speak at all.
The court did not accept, however, the submission that the applicant had had an equal or even a fair prospect of success in his application for residence, as on any objective analysis his application was an attempt at a radical departure from an established pattern of care and the conclusion of the children and family reporter was obviously an indicator of the probable outcome. The court went on to say,
“We gain from the transcripts the distinct impression that in the relationship between the litigant and the judge there quickly emerged a conflict of strong personalities and a clash of arms that drew the judge transiently from the judgment seat to join [counsel for the mother] in the arena in harrying the husband. ... But the number of interventions that bear the mark of hostility or unfairness are small in the overall total and do not justify setting aside the fundamental order that these two children should reside with their mother. We are satisfied based on the totality of the evidence that we have read that the judge reached the correct conclusion on this issue.”
The court found that the applicant had not discharged the high burden necessary for it to conclude that he had been driven to withdraw from the proceedings because the hearing was unfair. It did, however, consider that the applicant's submission about the judge's reaction to his withdrawal had “great force”. The judge had proceeded to make orders which were, individually and in their totality, “immoderate”. Mr Justice Singer in his judgment had rejected the applicant's case without qualification and had marginalised the welfare report, without hearing from the author. The court found that the reduction in contact and the prohibition on communication had a punitive flavour and that there was no evidential basis for the non-molestation injunction. The application for an order under section 91 of the Children Act and the suggestion that the applicant see a psychiatrist were nothing but flourishes of advocacy. Both the recital to the order and the requirement to surrender the passports served to stigmatise the applicant in an unwarranted way. The indefinite prohibition on publication was unnecessary. There was no sustainable basis for the order for indemnity costs.
The court concluded however that the prospect of returning the case for trial in the High Court, given the costs involved and the inevitable damage that was being caused to the children, was too unappealing to contemplate and it would therefore substitute its own order for that of 23 May 2001. The court also observed that, since May 2001, the applicant had not seen the children except by chance, having declined to exercise contact on the basis of the judge's order. The residence order was retained, but the recital and paragraphs 2 to 11 of the order were deleted. Contact was ordered on alternate weekends and with half the school holidays, as recommended by the welfare officer. Given the applicant's unreasonable rejection of that proposal prior to the trial and his insistence on calling various lay witnesses the court considered it was not unfair that he should have to pay the costs, but they would be assessed on the standard basis (by which any doubt as to whether costs were reasonably incurred or reasonable and proportionate in amount is resolved in favour of the paying party).
A separate constitution of the Court of Appeal gave judgment in the ancillary proceedings on 13 December 2001. The applicant submitted, inter alia, that the judge had reached the wrong conclusions on the evidence, but even on the basis of his findings, the orders made were inexplicable and unjustified. He submitted that the personal animosity of the judge in the Children Act proceedings had carried over into and affected the ancillary judgment.
The Court of Appeal considered that Mr Justice Singer's judgment was detailed and careful and that the judge's conclusions were on the whole “carefully reasoned and manifestly justifiable on the evidence”. The judge's extensive survey of the issues had led him to be strongly critical of the applicant's disclosure and integrity. The court had reserved judgment so as to ensure that the applicant's arguments as to bias in the Children Act proceedings could be aired first. The court noted that in those proceedings the appeal court had not found that the hearing had been unfair overall. Moreover, although the judge had referred in his judgment to his findings against the applicant in the Children Act proceedings, his conclusions in the ancillary case were not dependent on those findings.
The court noted that Mr Justice Singer's findings as to Site B were the crux of the judgment and lay behind the only real issue on appeal. The judge had accepted that there could be major difficulties with an attempted sale of Site B and broadly found in favour of the applicant's submissions as to the potential effect of the title defect in this respect. The judge had clearly been suspicious about the fact that the applicant had not initially relied on the alleged title defects and considered that the applicant may not have revealed the full strength of his hand, so that the true position would only come to light when the applicant actually sought to realise the value of the property. However, he indicated that for valuation purposes he would not treat Site B as a readily realisable asset. The court noted the uncontested evidence to the effect that if a sale of Site B presented problems, then so would any attempt to borrow against it as security.
The court concluded that the applicant's submissions as to bias were generally without validity. In fact, up to its final conclusions, the judgment was a 'detailed and masterly appraisal'. The court did however agree that, given his findings on Site B, it was difficult to see how the judge could have expected the applicant to raise the necessary funds immediately. The court further found that there was no justification for instant enforcement through receivership, which was almost unknown in ancillary relief proceedings. The provision for instant payment and enforcement was oppressive. Given the judge's findings as to the potential problems with Site B, the applicant could only realistically be expected to satisfy the order from the rental income, which was a long term approach. The option of remitting the matter for retrial was unthinkable given the costs already incurred. The court considered that it would take six years to pay off the lump sum by that route and amended the order, allowing the appeal to that extent. The powers of the receiver were also limited to collection and distribution of the income from Site B. The court did not interfere with the costs order.
On 18 November 2002 the House of Lords dismissed the applicant's petition seeking leave to appeal.
In a case of alleged bias, the test for the court to consider was set out in R. v. Gough ([1993] A.C. 646). Having ascertained the relevant circumstances, the court should ask itself whether there was a real danger of bias on the part of the relevant member of the tribunal, in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration, a test confirmed in the case of Locabail (UK) Ltd. v. Bayfield Properties ([2000] 2 WLR 870). In the recent case of Magill v. Porter; Magill v. Weeks [2002] 2 AC 357, Lord Hope stated:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”