ITEMID: 001-81229
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ANOKHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Sergey Danilovich Anokhin, is a Russian national who was born in 1949 and lives in the town of Krasnyy Sulin of the Rostov Region. The Russian Government were represented by Mr P. Laptev, Representative of the Russian Federation before the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a former employee of various coal mines of OAO Rostovugol, a joint-stock limited liability company.
It was established as a result of restructuring of one of the major Soviet coal producers in the early 1990s.
In 1993 a number of production units were incorporated under the private law rules as a joint-stock company with limited liability. According to the Government, the federal and regional authorities owned stakes in the company of 66.9 and 20 per cent respectively. It appears that the remaining stock was held by private shareholders, including the company’s employees.
It appears that in the late 1990s the company ran into trouble and subsequently experienced difficulties in managing its debt, the greater part of which represented salary arrears owed to the company’s numerous employees.
In 2001-2002, having faced social tensions in the respective region, the federal authority intervened by adopting a special programme according to which OAO was to be liquidated, its assets auctioned and the company’s debt financed, in part, by the authorities.
In 2001-2002, shortly after his dismissal, the applicant brought five court actions against his former employer claiming salary arrears and unpaid social benefits.
By a judgment of 17 September 2001 the Justice of the Peace of the 4th circuit of the town of Novoshakhtinsk of the Rostov Region recovered the applicant’s unpaid salary totalling 10,513 Russian roubles (RUR) from the defendant company for the period between July to December 2000 and January 2001. The judgment came into force on 28 September 2001.
According to the Government, the money owed to the applicant was transferred to his bank account in full on 30 January 2002, which is slightly over four months after the judgment of 17 September 2001 had been given.
On 19 September 2001 the Krasnosulinsk Town Court of the Rostov Region ordered the defendant company to pay the applicant work-related sickness benefits of RUR 30,627.96. This judgment came into force on 28 September 2001.
The Government submitted that the judgment at issue had been executed in full by bank transfer dated 22 December 2003, which is two years, two months and twenty-four days after the judgment of 19 September 2001 became enforceable.
By a judgment of 12 November 2001 the Novoshakhtinsk Town Court of the Rostov Region ordered the defendant company to pay the applicant non-pecuniary damages of RUR 5,000 for the delays in payment of the salary. This judgment became enforceable on 14 February 2002.
According to the Government, this judgment was enforced in full by bank transfer to the applicant’s account on 20 December 2002. The transfer was made ten months and five days after the judgment in question became enforceable.
By a judgment of 18 April 2002 the Justice of the Peace of the 4th circuit of the town of Novoshakhtinsk of the Rostov Region ordered the defendant to pay the applicant a compensation of RUR 2,838.51 for delays in payment of his salary between 2000 and 2001. The judgment became enforceable on 29 April 2002.
The Government submitted that the execution writ in respect of the judgment of 18 April 2002 had been accepted by the winding-up committee of the company and joined to the list of the company’s priority 2 creditors. It would be complied with after the additional sale of the company’s assets and after the debts towards the priority 1 creditors had been honoured.
On 31 May 2002 the Justice of the Peace of the 1st circuit of the town of Novoshakhtinsk of the Rostov Region awarded the applicant damages for being kept out of his money through the delays in payment of his salary for the period between August and September 1999, ordering the defendant company to pay RUR 29,850.98. The judgment came into force on 11 June 2002.
The Government submitted that the applicant had received a copy of the writ in respect of this judgment from the registry of the first-instance court on 14 June 2002, but had not sent it to the company until three years later. As a result, the writ was received on 5 May 2005. The winding-up committee was still waiting for the applicant to submit a second copy of the writ and a copy of the judgment of 31 May 2002. Upon receipt of the said documents, the applicant’s claim would be recorded in the list of the company’s priority 2 creditors.
On 6 December 2001 the bailiffs of the town of Shakhty seized the assets of OAO Rostovugol; of which the estimated value was RUR 709,000,000.
By letters of 18 March and 24 April 2002 the Deputy Governor of the Rostov Region in charge of fuel, energy and natural resources informed the applicant that OAO Rostovugol was an unprofitable company, that the question of its restructuring had been long debated by the authorities at various levels, that on 31 January 2002 the Federal Interdepartmental Commission on the Socio-Economic Problems of Coil-Producing Industries adopted a plan under which the company was to be wound-up, that on 12 March 2002 the meeting of OAO Rostovugol shareholders had adopted that decision, that the debts of OAO Rostovugol would be honoured through the sale of its assets and also with the financial assistance of the authorities and that the existing salary debts would be honoured during the year 2002.
By letter of 13 May 2002 the State Institution Sotsugol, a State agency set up to solve problems arising out of restructuring of the coal-mining industry, informed the applicant that his previous complaints about the prolonged failure to execute the judgments had been forwarded to OAO Rostovugol and that the president of its winding-up committee had been asked to repay the debts as soon as possible.
Section 2 of the Joint-Stock Companies Act (Law no. 208-FZ of 26 December 1995) provides, among other things, that a joint-stock company is a commercial organisation whose capital is divided into a definite number of shares of stock certifying the rights and obligations of the members (shareholders) vis-à-vis the company. Shareholders are not liable for obligations of the company and bear the risk of losses associated with its activity only to the extent of the value of the shares owned by them.
Under the Insolvency Act (Law no. 27-FZ of 6 October 2002) bankruptcy creditors are creditors of monetary obligations, except for authorised bodies, citizens to whom a debtor is liable for harm to life or health or for moral harm or to whom royalties are owed under copyright contracts, and stakeholders of the debtor in so far as the liabilities in respect of such participation are concerned. They are among the parties to a bankruptcy case and may complain to the court about action or failure to act breaching their rights.
By virtue of the above decree, the Ministry of Energy was to finance the debt of OAO Rostovugol in so far as the salary debts and related social payments prior to the decision to wind up the company were concerned.
The State institution Sotsugol was established by Decree of the Federal Government of 20 November 1997 as a principal coordinator of the programmes of local development introduced to solve social problems arising out of restructuring of the coal-mining industry.


ITEMID: 001-77003
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF FLERI SOLER AND CAMILLERI v. MALTA
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Damage - question reserved;Costs and expenses award - domestic and Convention proceedings
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Matti Pellonpää;Nicolas Bratza;Stanislav Pavlovschi
TEXT: 4. The applicants were born in 1932 and 1934 respectively and live in Malta.
5. The applicants claimed to be the owners of a building in Valletta, Malta. The Government contested this claim, stating that it appeared from the relevant records and from a letter written by the applicants themselves on 29 July 2005 that the premises had simply been acquired by the applicants’ late father, Mr Joseph Camilleri, under a public deed of 19 March 1943. The property had been transferred in perpetual emphyteusis (a contract granting a tenement for a stated yearly rent or ground rent to be paid in money or in kind) with effect from 1 March 1941. The deed in question included a clause stating as follows:
“As the said house has been requisitioned by the government it is hereby agreed that the period of five (5) years mentioned in this condition (an obligation to carry out improvements) will run from the date on which the keys of the said house shall have been given back by the government to the said Joseph Camilleri.”
6. Having taken note of the disagreement between the parties on this point, the Court will nevertheless refer in the present judgment to the building in issue as “the applicants’ building” or “the applicants’ property”.
7. On 4 September 1941 the authorities requisitioned the applicants’ building. They allocated the property first to the Department of Education and then to the Ministry of Industry and Agriculture. The building was used as public offices.
8. According to the Emergency Compensation Board, the yearly rent due at the time of the requisitioning was 89 Maltese liras (MTL – approximately 213 euros (EUR)). In 1989 the Rent Regulation Board decided that it should be increased to MTL 340.53 (approximately EUR 817) per year. The applicants received this rent regularly and it was still being paid to them at the time the application was lodged (10 September 2005).
9. On 13 March 1997 the applicants brought constitutional proceedings before the First Hall of the Civil Court. They argued that the requisitioning and continued occupation of their building amounted to a de facto expropriation. Furthermore, they observed that, even assuming that the measure complained of could be considered to be aimed at controlling the use of property, the authorities should nevertheless have been subject to the ordinary laws governing landlords and tenants. However, when a forced tenancy was established with the authorities, the usual remedies available to ordinary landlords against tenants were excluded, and the landlord-tenant relationship could not be terminated under the usual conditions. Hence, for example, whereas a lease in favour of an individual or a family might terminate in the absence of descendants or relatives entitled to succeed, a government, while its composition might change, remained a government and hence a lessee in perpetuity. In view of the above, the applicants alleged a breach of Article 1 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention.
10. In a judgment of 26 November 2003, the Civil Court rejected the applicants’ claim. It observed that, according to the caselaw of the European Court of Human Rights, a deprivation of property could be said to have occurred only where all the legal rights of the owner had been extinguished. In the present case, the applicants were still receiving the rent due and had not been deprived of their right of ownership. Therefore, the requisition of their building could not be considered an expropriation.
11. In the Civil Court’s view, the measure complained of was aimed at controlling the use of property. The authorities had the power to interfere with the right of property in accordance with the general interest provided that their actions satisfied a “fair balance” test.
12. According to the findings of the European Commission of Human Rights in Zammit v. Malta (no. 16756/90, Commission decision of 12 January 1991, Decisions and Reports (DR) 68), in the implementation of policies of a socioeconomic nature, the margin of appreciation of the State was very wide. The Civil Court found that in the present case the occupation of the property by the authorities could properly be said to be in the public interest.
13. With regard to the claim of discrimination, the Civil Court acknowledged that the applicants were burdened with a perpetual tenant and that the authorities could no longer issue requisition orders after 1995. However, referring to the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (9 February 1967, Series A no. 5), the Civil Court held that these facts did not amount to a violation of Article 14 of the Convention, since the difference in treatment was proportionate and based on reasonable and objective grounds. In addition, it noted that the fact that no further requisitions could be carried out did not mean that those in force should not be maintained, especially since the public interest justifying them had not ceased to exist.
14. The applicants appealed to the Constitutional Court. They claimed that the requisition constituted a de facto expropriation rather than a measure to control the use of property. Moreover, it had not been carried out in the general interest, since the applicants’ building was being used by the government as offices and had not been allocated to private individuals needing subsidised housing. The measure complained of was therefore disproportionate and the authorities had abused their powers for their own benefit.
15. The applicants further observed that they were being discriminated against, since the authorities were abusing their power and frustrating the applicants’ right to seek a remedy. They relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.
16. In a judgment of 18 March 2005, the Constitutional Court dismissed the applicants’ appeal and upheld the Civil Court’s judgment.
17. The Constitutional Court reiterated that, since the applicants had retained their right of ownership and were still receiving rent, the measure complained of could not be considered a de facto expropriation, but was aimed at controlling the use of property.
18. The Constitutional Court noted that the Housing Act, as in force at the time of the issuing of the requisition order, authorised requisitions either in the general interest or to meet the need for affordable housing. In the present case, the use of the building as a government department was clearly in accordance with the public interest.
19. The Constitutional Court further pointed out that in Mellacher and Others v. Austria (19 December 1989, Series A no. 169), the European Court of Human Rights had held that any interference with the right of property must strike a fair balance and be proportionate to the aims pursued. The regular payment of rent to the applicants mitigated the effects of the requisition and sufficed to achieve this balance. Moreover, during the constitutional proceedings the applicants had never complained that the amount of rent was unfair or unjust compared to the value of the requisitioned property. It was true that the authorities would probably continue using the building for an indefinite period of time; however, this was lawful as long as the building was being used in the general interest.
20. Lastly, the Constitutional Court observed that the applicants had never claimed that they needed their property urgently for themselves or for their families. Hence, no “individual and excessive burden” had been imposed on them within the meaning of the Strasbourg case-law.
21. As to the applicants’ complaint under Article 14 of the Convention, the Constitutional Court noted that it was unclear what form of discrimination the applicants were claiming to have suffered. They had not clarified, either, what kind of remedies they had been unable to use. In any case, the authorities and the applicants were not “persons in relevantly similar situations”. The Constitutional Court referred on this point to the case in Spadea and Scalabrino v. Italy (28 September 1995, Series A no. 315-B).
22. According to section 2 of the Housing Act, requisition means
“... to take possession of a building or require the building to be placed at the disposal of the requisitioning authority”.
23. Until 1989 the Housing Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest or in order to provide living accommodation to certain persons or ensure a fair distribution of living accommodation. Section 3(1) of the Housing Act, as in force at the time of the requisitioning of the applicants’ building, read as follows:
“The Secretary, if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation, may requisition any building, and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect or complied with.”
24. After 1989 authority to issue requisition orders was transferred to the Director of Social Housing. In section 3(1) of the Housing Act, after the words “public interest”, the conjunction “or” was deleted and replaced by the words “but only”.
25. A requisition order imposes a landlord-tenant relationship on the owner of the requisitioned premises. According to the Housing Act, the owner of the premises has a right to compensation, which is calculated and payable pursuant to the criteria established in section 11. This provision, in so far as relevant, reads as follows:
“(1) Subject as hereinafter provided, the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums, that is to say –
(a) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this Act, under a letting granted immediately before the beginning of that period:
Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of the Rent Restriction (Dwelling Houses) Ordinance, the rent shall not exceed the fair rent as defined in Article 2 of the aforesaid Ordinance;
(b) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained (except in so far as the damage has been made good during that period by the occupant of the requisitioned premises or by a person acting on behalf of the Director), no account being taken of damage which, under the provisions of this Act, is the responsibility of the requisitionee;
(c) a sum equal to the amount of expenses reasonably incurred, otherwise than on behalf of the Director, for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking possession of the building ...”
26. According to Article 2 of the Rent Restriction (Dwelling Houses) Ordinance, “fair rent” means:
“(i) in respect of an old house the rent which might reasonably be expected in respect of an old house, regard being had to the average rents prevalent on the 31st March, 1939, as shown on the registers of the Land Valuation Office in respect of comparable dwelling houses in the same or in comparable localities:
Provided that where, after the 31st March, 1939, structural alterations or additions in a house, whether old or new, have been carried out which, in the opinion of the Board, have enhanced the rental value of the house and in respect of which or, as the case may be, of a part of which, no compensation has been paid or is payable under the provisions of the War Damage Ordinance, 1943, and no amount has been paid or is payable by way of a grant by the Government of Malta, the rent shall be increased by an amount which, in the opinion of the Board, corresponds to the enhancement of the rental value and which shall in no case exceed a return of three and one quarter per centum a year on the capital outlay on the alterations or additions (excluding any interest on loans or in respect of idle capital) or, as the case may be, on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance, 1943, and no amount has been paid or is payable by way of grant by the Government of Malta, in every case as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board; and
(ii) in respect of a new house, a sum equivalent to a return of three per centum a year on the freehold value of the site and of three and one quarter per centum on the capital outlay on construction (excluding any sum which has been paid or is payable by way of a grant by the Government of Malta and any interest on loans or in respect of idle capital) as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board:
Provided that where a payment under the War Damage Ordinance, 1943, is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part, for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed one year’s fair rent of the former building as on 31st March, 1939, or three and one quarter per centum for one year on that part of the capital outlay, whichever is the less;
(iii) in respect of a scheme house, an annual sum to be determined by agreement ...”


ITEMID: 001-91897
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VAAS v. GERMANY
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1935 and lives in Nettetal.
5. From 1952 until May 1991 the applicant worked as a lorry driver. On 10 May 1991 he was diagnosed with a back disease (intervertebral disc degeneration) and gave up his profession as a lorry driver.
6. On 11 February 1993 the applicant filed an application with the Vehicle Operators Insurance Association (Berufsgenossenschaft für Fahrzeughaltungen) for a declaration that he was suffering from a work-related back disease, which would have entitled him to special pension benefits.
7. On 4 January 1996 the Insurance Association found that the applicant’s illness had not been work-related.
8. On 23 January 1996 the applicant lodged an administrative appeal which the Insurance Association, following further internal enquiries, rejected on 4 September 1996.
9. On 2 October 1996 the applicant brought an action before the Düsseldorf Social Court for an industrial injury pension on the grounds of occupational disease.
10. On 15 January 1998 the Social Court set down the case for hearing on 11 February 1998.
11. On 11 February 1998 it rejected the applicant’s claim on the grounds that it had not been established that his disease was work-related.
12. On 13 March 1998 the judgment was served on the applicant’s counsel.
13. On 26 March 1998 the applicant lodged an appeal with the North-Rhine-Westphalia Social Court of Appeal without submitting the statement of grounds of appeal. Following two reminders in April and July 1998 the court received the applicant’s statement of grounds of appeal on 10 November 1998.
14. On 17 November 1998 the Social Court of Appeal held an oral hearing during which it decided to make further investigations.
15. Between 23 November 1998 and 23 March 1999 the Social Court of Appeal consulted the applicant’s disability files which it had received from the Düsseldorf Pension Office, the report of the defendant’s technical supervisory services and various medical statements and certificates from the applicant’s doctors.
16. On 26 March 1999 the Social Court of Appeal commissioned a report by an orthopaedic expert, S., which was submitted on 20 May 1999 and stated that the applicant’s disease had not been caused by his work as a lorry driver.
17. On 14 July 1999 the applicant applied under section 109 of the Social Courts Act (see paragraph 44 below) for a fresh medical report by another expert. He also put additional questions to the expert S. which were answered on 23 July 1999.
18. On 25 August 1999 the Social Court of Appeal commissioned a report by B.-A., an expert specialised in occupational medicine.
19. On 17 September 1999 the Court of Appeal ordered the applicant to pay a further advance to cover the costs of additional examinations which B.-A. considered necessary. On 14 October 1999 the applicant advanced those costs.
20. On 15 December 1999 the applicant cancelled his appointment with B.-A. scheduled that day.
21. On 22 March 2000 B.-A. submitted a report finding that the applicant’s disease had to be considered as being work-related.
22. On 5 July 2000 the Social Court of Appeal invited S. to lodge supplementary observations on the findings of B.-A.’s report, which he did on 2 August 2000.
23. Following the applicant’s request for a supplementary report by B.-A. in accordance with section 109 of the Social Court Code, the Court of Appeal ordered B.-A. on 13 September 2000 to submit supplementary comments.
24. Between 13 November 2000 and 13 February 2001 the court reminded B.-A. three times to give his comments and set him a timelimit of 15 March 2001. On 15 February 2001 B.-A. submitted his comments.
25. On 26 April 2001 S. was asked for his observations on B.-A.’s supplementary comments. These he gave on 22 May 2001.
26. On 9 July 2001 the Social Court of Appeal set the appeal down for hearing on 18 September 2001. At the hearing the court ordered the taking of further evidence.
27. On 8 October 2001 the defendant submitted an expert report prepared by its own technical supervisory service challenging B.-A.’s conclusions.
28. On 18 October 2001 the Court of Appeal commissioned the preparation of a further report by a consultant surgeon, B., who submitted his report on 19 November 2001.
29. On 22 January 2002 the applicant requested inter alia the preparation of a further expert report under section 109 of the Social Courts Act.
30. On 27 February 2002 the Social Court of Appeal commissioned ex officio a medical report by an orthopaedic expert, V.
31. In March and April 2002 the Social Court of Appeal reminded V. of its request for a report. In reply, V. informed the court that the applicant had cancelled his appointment for examination scheduled on 26 April 2002 and that it had had to be postponed to 20 June 2002. On 3 September 2002 the Social Court of Appeal received V.’s report dated 12 August 2002.
32. Between 27 September 2002 and 20 February 2003 the applicant requested the court seven times to extend the time-limits for the submission of his comments on V.’s expert report.
33. On 5 May 2003 the applicant submitted his comments and a private orthopaedic expert’s report on which B. commented on 9 June 2003.
34. On 26 August 2003 the applicant informed the court that he intended to commission another private expert report.
35. On 22 September 2003 the Social Court of Appeal held an oral hearing at which the applicant’s counsel requested a two-week adjournment to allow him to comment on the future conduct of the proceedings.
36. On 27 October 2003 the applicant appointed a new legal representative who asked the court for access to the case files on 2 December 2003.
37. On 12 December 2003 the Social Court of Appeal postponed the hearing scheduled for 16 December 2003 because the applicant’s counsel had failed to return the case files.
38. On 23 March 2004, after a hearing, the Social Court of Appeal rejected the applicant’s appeal. Considering that the relevant questions had been sufficiently examined by the experts B., S., and V., it did not find it necessary to seek a further expert opinion, as had been requested by the applicant.
39. On 12 May 2004 the judgment was served on the applicant’s counsel.
40. On 8 June 2004 the applicant lodged a request for leave to appeal on points of law with the Federal Social Court which was rejected on 7 September 2004. This decision was served on the applicant’s counsel on 15 September 2004.
41. On 14 October 2004 the applicant lodged a constitutional complaint. On 19 November 2004 the Federal Constitutional Court (no. 1 BvR 2324/04) refused to admit the applicant’s complaint. This decision was served on the applicant’s counsel on 3 December 2004.
42. On an unspecified date the applicant requested the Insurance Association to revoke its decisions of 4 January 1996 and 4 September 1996 in accordance with section 44 of the Social Code no. X (Sozialgesetzbuch X) (see paragraph 45 below). On an unknown date the Insurance Association rejected his request.
43. Section 88 of the Social Courts Act exempts applicants from the requirement to await the outcome of the preliminary administrative proceedings and allows them to lodge a court action directly with the Social Court if the administrative authorities fail without sufficient justification to decide the administrative appeal within a reasonable time, in general three months.
44. Section 109 of the Social Courts Act provides that the insured person may request a further expert report. This request can only be rejected if granting it would delay the proceedings and if the court is satisfied that the request has been made in an attempt to delay the proceedings or was not submitted earlier due to gross negligence. The commissioning of the expert report may be made conditional on the applicant advancing the costs.
45. Section 44 of the Social Code no. X provides that if social benefits are rejected on the basis of an unlawful administrative act, the competent authority shall, under certain circumstances, revoke that act with retrospective effect even after it has become final. In such cases the grant of social benefits is limited to a period of four years preceding the date of the application for supervisory review.
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-100709
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF A.S. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1+6-3-d;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Riitta-Leena Paunio
TEXT: 6. On 20 January 2004 a mother contacted the police on account of a suspicion that her child A., a boy born in 1999, had been sexually abused by a family friend, the applicant. On the same date the police took a statement from the mother.
7. On 26 February 2004 A. was interviewed at the children's hospital at the request of the police. The interview was conducted by a psychologist. The investigating police officer, the head psychologist of the hospital, and the deputy head physician Dr S., specialised in child psychiatry, followed the interview behind a mirrored wall. The interview was recorded on video-tape. The applicant was not present when the interview was conducted and apparently he had not even been informed about the investigation at that point.
8. A psychological examination was performed on A. on two occasions, namely 1 and 15 March 2004, by the head psychologist. A physical examination was also performed. The mother was interviewed by a specially trained nurse on 1, 12 and 15 March 2004.
9. On 21 May 2004 Dr S. and the two psychologists gave a written statement of their findings. They concluded that A.'s account seemed reliable, that is, he was recounting events that had very likely taken place. Certain changes in A.'s behaviour were also mentioned which, according to those medical experts, reflected sexual abuse to which he had been subjected. According to Dr S. and the two psychiatrists, no such circumstances had emerged in the examinations, or the previous information produced in the case, which supported some alternative explanation to A.'s account and symptoms. No specific findings of A.'s physical examination were mentioned in the statement.
10. On 30 June 2004 Dr S. gave another statement noting, inter alia, that issues regarding the suspected abuse had disturbed A.'s psychological balance and caused him confusion, insecurity and anxiety. In her opinion, subjecting A. to more questions about the matter would be harmful to him and he should not be interviewed again.
11. On 1 July 2004 the police questioned the applicant as a suspect. He denied all allegations of sexual abuse. On 8 July 2004, after having taken another statement from A.'s mother, the police closed the pre-trial investigation.
12. On 12 October 2004 the public prosecutor preferred charges against the applicant with the District Court (käräjäoikeus, tingsrätt) accusing him of having sexually abused A.
13. After having been served with the summons, the applicant contacted a lawyer. On 4 February 2005 he submitted a communication to the District Court noting that, apparently, the prosecutor intended to present the video recording of A.'s interview as evidence before the court. The applicant agreed that, in the light of Dr S.'s last statement, A. should not be heard again. He pointed out, however, that he had not been afforded an opportunity to put questions to A. during the pre-trial investigation as required by section 39(a) of the Criminal Investigations Act (esitutkintalaki, förundersökningslagen, Act No. 449/1987 with later amendments). Nevertheless, instead of requesting the court to exclude A.'s account due to that procedural error, the applicant wished to submit the video recording as evidence on his behalf. In the applicant's view the recording contained certain absurdities and showed that A. was merely repeating sentences that he had been rehearsed to say.
14. On 10 February 2005 the District Court held its first session. Having heard the prosecutor's opening arguments, the applicant now claimed that the video recording could not be used in evidence, since his legal right to put questions to the witness had not been respected. The prosecutor was of the opinion that the recording should be viewed in order to allow the court to assess A.'s level of maturity and the value of his account as evidence. The complainant, that is A. represented by his mother, joined the prosecutor's pleadings. After a discussion concerning the recording, the applicant consented to its being viewed and the court proceeded with the hearing.
15. The court was presented with the two written statements given by the psychologists and Dr S. During its first session, the court also received testimony from A.'s mother, the applicant and the applicant's former wife. A.'s mother testified on the events leading to her suspicions of sexual abuse and what A. had told her about those events. The applicant's former wife testified to his character. The court held another session on 25 February 2005, during which the video recording of A.'s interview was played back. It appears that Dr S. gave testimony in that connection as a medical expert making also an assessment of the credibility of A.'s account.
16. On 11 March 2005 the District Court delivered its judgment. As to the proceedings, it noted that the law did not allow the use of video-taped testimony of a person under 15 years of age if the accused had not been provided with an opportunity to have questions put to that person. It observed that the applicant had not been afforded such an opportunity. It further observed Dr S.'s statement concerning the negative consequences for A. if interviewed again. The court acknowledged that there had been a procedural error which could not be rectified. However, it noted that the video recording of A.'s interview had been shown to the court with the applicant's consent and Dr S. had given testimony as to the credibility of his account.
17. As to the merits, the court found that neither A.'s account nor the other evidence presented to it supported the charge and acquitted the applicant.
18. The prosecutor and the complainant appealed against the judgment to the Court of Appeal (hovioikeus, hovrätt). In his response to their pleadings, the applicant again pointed out the flaw in the proceedings in respect of his right to examine witnesses against him.
19. On 13 June 2006 the Court of Appeal held an oral hearing. It was presented with the same evidence as the District Court, along with some fresh written evidence.
20. The prosecutor named the video recording of A.'s interview as evidence, with no opposition from the complainant party. The applicant, on the other hand, maintained his argument that he had been deprived of his legal right to put questions to A. and that the court should assess whether the video recording could, in those circumstances, be admitted. The applicant further argued that his consent in the District Court was not relevant in that respect and that he had not himself submitted the recording as evidence.
21. The Court of Appeal observed that, in the District Court's hearing of 10 February 2005, the applicant had named the video recording as evidence in its totality. The applicant then argued that he had been left with no other choice, as the District Court had allowed Dr S. to testify to A.'s account, which was merely second-hand evidence. He further stated that if the Court of Appeal were, in turn, also to allow the use of Dr S.'s testimony and her written statement concerning A.s' interview, he would have to name the video recording as evidence again. In response to the court's inquiry as to what questions the applicant had wished to ask A., he mentioned a certain detail about A.'s account of events for which he wanted to have a clarification. He had also wished to ask A. if his mother had told him about the interview beforehand and whether she had asked him to say anything in particular.
22. The court made reference to the relevant legislation and its travaux préparatoiresIt noted, in particular, that due to the circumstances mentioned in Dr S.'s statement of 30 June 2004, it had not been possible to hear A. again. The court found that A.'s videotaped account was to be considered as a statement given in a pre-trial investigation, within the meaning of Chapter 17, Article 11, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). Since the applicant had not been given the opportunity to put questions to A., in a manner described in more detail in the Criminal Investigations Act, the video recording of A.'s interview could not, in principle, be played back before the court and used in evidence. The court found, however, that testimony about A.'s account of the alleged events could be received from his mother. The statement concerning A.'s interview, and testimony by Dr S. on that matter, were also permissible. The court then noted the applicant's submissions that, under those circumstances, he would invoke the video recording as evidence. Having regard to the fact that he had already done so in the District Court, it found that the recording could also be treated as evidence in the Court of Appeal. Consequently, the video recording was played back in the appellate court's oral hearing.
23. On 22 August 2006 the Court of Appeal delivered its judgment. It found that the accounts given by A., his mother and Dr S., as well as the written statement concerning A.'s psychological examination, showed that the applicant had committed one of the sexual acts specified in the indictment. It convicted him of sexual abuse of a child and sentenced him to one year's suspended term of imprisonment.
24. On 11 May 2007 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
A. The pre-trial investigation
25. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act No. 575/1988) provides that, when questioned during a pre-trial investigation, a child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11).
26. The Criminal Investigations Act provides that the investigator may permit a party and his or her counsel to be present during the questioning of another party or witness, provided that this does not hinder the investigation of the offence (section 32(1), Act no. 692/1997). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times as well (section 34, Act No. 692/1997).
27. The Criminal Investigations Act also provides that the questioning of a victim or a witness (from now on referred to as “the witness”) must be recorded on video-tape, or by using other comparable means of audio-visual recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the witness in person, due to his or her young age or mental disturbance, without causing him or her harm. The special requirements set by the level of that person's development for the methods used, for the number of participating persons and for other conditions, must be taken into account. The person in charge of the investigation may allow also other authorities, under supervision of the investigator, to put questions to the witness. The suspect must be provided with an opportunity to put questions to the witness. The suspect may also put questions through legal counsel or another representative. However, the investigator may order that questions be put through his or her intermediary (section 39(a), Act No. 645/2003).
B. The receipt of evidence in court
28. The applicable rules on receiving testimony are laid down in the Code of Judicial Procedure.
29. A statement in a pre-trial investigation report or another document may, as a rule, not be admitted as evidence in court. The court may admit such a statement as evidence, if the person who had given the statement cannot be heard before the court or outside its oral hearing (Chapter 17, Articles 11(1)(2) and 11(3), Act No. 690/1997).
30. The testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or video-tape during the pre-trial investigation, may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (Chapter 17, Article 11(2), Act No. 360/2003). According to the explanatory report to the relevant Government Bill (No. 190/2002), the above-mentioned provision places emphasis on both the idea that giving testimony before the court may be detrimental to, inter alia, a child and on the importance of respecting the rights of the defence. The Bill states that a recorded account could be used in evidence even where the defendant has not availed him or herself of the opportunity to put questions to the witness in question, provided that he or she had been afforded such an opportunity. The Bill does not recognise an exception to that rule.
31. As to the hearing of a child under the age of 15 at the trial, Chapter 17, Article 21 (Act No. 360/2003) provides that he or she may be heard as a witness, or for the purpose of obtaining evidence, if the court finds it appropriate, and if the hearing in person is of significant relevance for the establishment of the facts of the case, and the hearing is not likely to cause such suffering or other harm as could be detrimental to the person concerned (hereafter “the witness”) or to his or her development. Where necessary, the court shall designate a support person for the witness. The witness shall be questioned by the court, unless it finds particular reason to entrust the questioning to the parties. The parties shall be provided with an opportunity to put questions to the witness through the intermediary of the court or, if the court finds it appropriate, directly to the witness. Where necessary, the hearing may take place on premises other than the court room.
C. The Supreme Court's case-law
32. The Supreme Court has in its precedent no. KKO 2006:107 (voting) examined the question of admissibility as evidence of a video recording in a case concerning alleged sexual abuse of a child. In that case the plaintiff child's interview had been recorded on video-tape during the pre-trial investigation. The defendant had not, however, been afforded an opportunity to put questions to the child. In its procedural decision the Supreme Court stated:
“...
The Supreme Court notes that during the pre-trial investigation A. had not been provided with an opportunity to put questions to B., who is a minor. Thus, and having regard to Chapter 17, Article 11(2) of the Code of Judicial Procedure, B.'s account, recorded on video-tape, should not have been used in evidence by the lower courts. Those courts should have brought that issue to the defendant's attention on their own initiative. There would not, however, have been any impediment as to the use of the video recording in evidence had the defendant been given explicit consent to it or if the handicap caused by the lack of opportunity to put questions to the child could have been rectified before the court by, for example, hearing B. in person.
When considering the admissibility of the video recording as evidence in the Supreme Court, the court firstly notes that absolute prohibitions [in that respect] are exceptional in the Finnish legal system. The main rule is the principle of free assessment of evidence. That largely leaves it up to the parties to decide what circumstances and evidence they wish to invoke in their case. It is left to the court's discretion to decide which evidentiary value it attributes to each piece of evidence.
The restriction on the admissibility of recorded statements laid down in Chapter 17, Article 11(1)(2) of the Code of Judicial Procedure is ultimately aimed to ensure a fair trial for the suspect. Therefore, in the interpretation of the extent of that restriction, attention must be paid to the proceedings as a whole. Chapter 17, Article 11(3) of the [Code] in turn lays down the principle that, if a witness cannot be heard before the court in person, the court may admit as evidence his or her recorded statement even if it is, according to the main rule, otherwise inadmissible as evidence.
...”
The Supreme Court went on to note that the child had not been heard before the lower courts, nor could that flaw be rectified by hearing [him] before the Supreme Court, given [his] young age and level of development and the time elapsed since the alleged events. The Supreme Court observed that the defendant had been represented by counsel already at the pre-trial stage. He could thus have requested an additional interview with the child prior to the trial. As he had not done so, nor made any argument concerning the lack of opportunity to put questions to the child until the Supreme Court drew [his] attention to that issue, it seemed likely that the defendant had not been disadvantaged by that flaw in the proceedings. The court also found that the defendant had apparently considered that submitting the video recording as evidence, even in the Supreme Court, benefited his defence. The Supreme Court concluded that the use of the video recording, already played back before the lower courts, did not compromise the defendant's right to a fair trial. Moreover, he was able to express his opinion on the evidentiary value of that recording in the Supreme Court's oral hearing. The Supreme Court thus admitted the recording as evidence. Having held its oral hearing, the court upheld the defendant's conviction.
33. In another Supreme Court precedent concerning alleged sexual abuse of a child, no. KKO 2008:68, the question at stake was hearsay evidence. The court noted, at the outset, that such evidence was not prohibited by the domestic law and could be taken into account according to the principle of free assessment of evidence. In this case, the complainant child had initially been examined by a psychologist, who had interviewed her on two occasions. These interviews had given rise to a suspicion of sexual abuse and led to a criminal complaint. At the request of the police, the child had been interviewed again, now as a part of the pre-trial investigation. Unlike the previous interviews, the third interview had been recorded on video-tape, but the suspect was not given an opportunity to put questions to the child. In that third interview, the child had retracted her previous statements. Charges were subsequently brought and the defendant was convicted of sexual abuse. The conviction was upheld on appeal. According to the appellate court the main evidence against the defendant had not been the video-taped interview but the child's account as given to the psychologist. That court found it very unlikely that hearing the child again would shed more light on the matter, as the child had retracted her initial account.
The Supreme Court noted that the courts had not been able to assess the child's own original account of events but they had only to rely on the psychologist's testimony and written statement in that respect. This prevented a reliable assessment being made of the child's third, video-taped interview. Furthermore, as the defendant had not been given an opportunity to put questions to the child, the conviction could not be based to a decisive degree on the hearing of the psychologist. In the absence of other substantial evidence in support of the charge, the Supreme Court acquitted the defendant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-76956
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MOSER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;No violation of Art. 14+8;Violation of Art. 6 (no opportunity to comment);Violation of Art. 6 (no public hearing);Violation of Art. 6 (no publicly pronounced judgments);Non-pecuniary damage - financial award (first applicant);Non-pecuniary damage - finding of violation of Art. 8 sufficient (second applicant);Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The first applicant, born in 1973, has been living in Austria since 1991 and had a residence and work permit until November 1997. On 27 August 1999 the Vienna Federal Police Authority (Bundespolizeidirektion) issued a five-year residence prohibition against her for illegal employment. The residence prohibition was lifted in 2004 (see below, C.).
8. On 20 December 1999 she married an Austrian citizen, Mr M.
9. On 8 June 2000 the first applicant gave birth to the second applicant in a hospital in Vienna.
10. On 9 June 2000 the Vienna Youth Welfare Office (Amt für Jugend und Familie) ordered that the second applicant should not accompany the first applicant upon her departure from hospital since her unclear personal and financial situation and lack of a residence permit would endanger the child’s welfare.
11. On 16 June 2000 the Youth Welfare Office, relying on Section 176a of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) requested the Vienna Juvenile Court (Jugendgerichtshof) that custody as regards the care and education of the second applicant be transferred to it. The Youth Welfare Office noted that the first applicant had, at first, incorrectly informed the hospital about her personal data, in particular on her name and residence. According to the Youth Welfare Office she had also expressed the wish to place the child with foster parents. One day after she had given birth, she had changed her mind and wanted to keep the child. Upon inquiries undertaken by the Youth Welfare Office, her real name, the periods of her lawful residence in Austria and her marriage to Mr M. had been discovered. Confronted with these facts, she had been very upset, had refused to give any further information and had insisted on keeping her child. Given her completely unclear situation, the means of existence of the second applicant were at risk and a transfer of custody to the Youth Welfare Office was necessary.
12. On the same day, the first applicant left the hospital. The second applicant was placed with foster parents.
13. On 11 August 2000 Mr M. instituted proceedings contesting paternity (Ehelichkeitsbestreitungsklage) of the second applicant.
14. On 3 December 2000 the Juvenile Court granted the Youth Welfare Office’s request of 16 June 2000.
15. It noted in its reasoning that, on 2 August 2000, the first applicant had appeared at the court of her own motion, had given her new address in the 20th District of Vienna and further information on her situation and had insisted to have her son back. She had alleged that she obtained financial support from her husband, although she was no longer living with him.
16. Relying on a report by the Youth Welfare Office of 1 September 2000, the court noted that the first applicant had not cooperated with that office. In particular, it had not been possible to arrange a visit at her husband’s address and she had not kept her appointments with the Youth Welfare Office. On 23 August 2000 the first applicant had contacted the Youth Welfare Office and had informed it about her address at the 20th District of Vienna, where she was allegedly supported by a Ms M. That Office’s subsequent visit at Ms M.’s apartment had shown that Ms M. was not prepared to further support the first applicant. Given that she was living with her three children in an apartment of 40 square meters, she could not accommodate the applicant and her son.
17. Relying further on a report by the Juvenile Court Assistance Office (Jugendgerichtshilfe) of 2 November 2000, the court noted that the first applicant had admitted in a meeting that a baby needed orderly conditions, which she could not offer at that moment. Otherwise, she had given evasive answers and, on questions she had been uncomfortable with, she had started crying or had complained that nobody was helping her. The Assistance Office’s visit at the foster parents’ home had shown that the second applicant had got accustomed to them. Until that date, the first applicant twice had a right of access at the parents-child centre (Eltern-Kind-Zentrum). The first time, she had not appeared at all, the second time she had been thirty minutes late. The foster parents had subsequently met her by chance and had arranged a short meeting at a nearby parking.
18. In sum, the court stated that the first applicant was still in a very unstable and obscure situation, which was not enhanced by her unlawful residence in Austria, and which did not entitle her to financial aid. It was also not possible to cooperate with her, as she partly did not keep appointments and lacked any willingness to make active contributions. In order to assure the second applicant’s positive development, it was necessary to transfer custody of the second applicant to the Youth Welfare Office and to have him in care of foster parents.
19. The Juvenile Court’s decision was served on the first applicant on 20 December 2000.
20. On 3 January 2001 the first applicant, now assisted by counsel, appealed against this decision, in which she made the following submissions.
21. She had been desperate when giving birth, due to the fact that her husband was not the second applicant’s father, but a certain Mr U. She stated, that being married to an Austrian national, she had a right to reside in Austria. According to the Administrative Court’s case-law the residence prohibition against her would have to be lifted. However, in her contacts with the Juvenile Court and the other authorities involved she had not obtained any support to regulate her residence status or any help to preserve her relationship with her child. She had gained the impression that from the very beginning they were determined to place her child with foster parents.
22. She had also wished to make use of her access rights. However, the first time, she had not found the address, the second time she had been late, had met the foster parents and had briefly seen her son. She had asked the foster parents to inform the authorities that she had been late on account of an unfortunate obstruction.
23. Finally, the applicant noted that the decision of 3 December had been served on her shortly before Christmas, namely on 20 December. It had been impossible to obtain legal advice from the service institutions. Not being familiar with legal matters, she had not been in a position to procure the case-file and had only handed out the decision to her newly appointed counsel, who had returned from holidays one day before the appeal was lodged. Once paternity of Mr U. was established, maintenance payments for the second applicant would be secured. As to her housing situation, she was still accommodated at her friend’s place. Finally, she requested that an expert opinion be obtained to prove that she was capable of taking care of her child and that meanwhile she be granted a right of access to the second applicant once a week.
24. On 19 January 2001 the Vienna Juvenile Court, sitting as an Appeal Court, dismissed the appeal against the decision of 3 December 2000 without holding a hearing and confirmed the lower court’s decision.
25. It noted that the first applicant had only disputed the facts established by the lower court by alleging that she had not received any support by the authorities. However, this reproach was to be rejected in the light of the reports by the Youth Welfare Office and the Assistance Office. The lower court had correctly decided on the basis of these facts and the first applicant’s situation at the time of its decision. Any positive developments concerning her situation, as alleged in her appeal, were not to be taken into consideration, but could be taken into account upon a new request. Under Section 176 of the Civil Code the court had to undertake measures to ensure the child’s welfare, if it was at risk due to the parents’ conduct. The court had to transfer custody, entirely or in part, to the Youth Welfare Office, even against the wish of the legal guardian, when a child’s entire dislocation from his or her habitual environment was necessary and a placement with relatives or other qualified persons close to the child was not possible. The first applicant’s completely unclear financial and personal situation, in particular as regards her residence, and her incapability to cooperate constructively with the Youth Welfare Office – as had been established by the lower court – constituted a situation, which endangered the child’s well-being. Referring to the Supreme Court’s case-law in custody matters, it did not allow an ordinary appeal on points of law (ordentlicher Revisionsrekurs), pursuant to Section 14 § 1 of the Non-Contentious Proceedings Act (Außerstreitgesetz).
26. On 12 February 2001 the first applicant requested the Appeal Court to allow her ordinary appeal on points of law (nachträgliche Zulassung des ordentlichen Revisionsrekurses).
27. She complained that she had not been sufficiently involved in the proceedings, in particular, that access to the court files had not been possible. She further complained that the courts’ decisions were not in line with this Court’s case-law under Article 8 of the Convention. She asserted that the authorities involved had not even attempted to take measures which would have allowed her son to stay with her, such as placing her in a mother-child centre for instance.
28. Furthermore, relying on Article 6 of the Convention, she complained that there were no public and oral hearings in the custody proceedings and the decisions were not pronounced publicly. The courts’ taking of evidence had been insufficient. As regards the second applicant, she complained that he had no legal standing in the proceedings, where he could claim his right to respect for family life with her, pursuant to Article 8 of the Convention, which was also in breach of Article 6 of the Convention. Relying on Article 14 in conjunction with Article 8 of the Convention, she complained of discrimination on the ground of her nationality. Had she been an Austrian citizen or citizen of any other member State of the European Union, she would have had the right to placement in a mother-child centre.
29. On 30 May 2001 the Liesing District Court allowed Mr M.’s action contesting paternity of the second applicant. This decision became final.
30. On 20 August 2001 the Vienna Juvenile Court, sitting as an Appeal Court, referring again to the Supreme Court’s case-law in custody matters, refused to allow the ordinary appeal on points of law, as in its decision of 19 January 2001, it had not departed from that case-law. There was no other reason to allow the ordinary appeal on points of law under Section 14 § 1 of the Non-Contentious Proceedings Act, as it did not raise any important legal issue. Further, it noted that access to the court file had been possible throughout the proceedings. The decision was served on 13 September 2001.
31. On 9 December 2002 the applicant requested the District Court to be granted the right to see the second applicant every other Friday from 1 p.m. until Sunday 6 p.m.
32. While the case was pending before the Liesing District Court the first applicant was allowed to see her son in the presence of a representative of the Youth Welfare Office once a month on Mondays from 1.30 p.m. until 3 p.m. in a visitors’ café (Besuchscafé) run by the Youth Welfare Office.
33. On 4 February 2004 the Liesing District Court dismissed the applicant’s request. Upon the first applicant’s appeal, the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) quashed this decision and ordered the court to issue a new decision.
34. During the District Court’s hearing on 15 July 2004, at which the first applicant, assisted by counsel, the foster parents and a social worker were present, the parties reached an agreement that the first applicant was allowed to see the second applicant in three-week-intervals in the presence of the foster mother on Wednesdays from 2.30 p.m. until 5 p.m.
35. On 6 October 2004 the court held another hearing and by a decision of 8 October 2004 amended the agreement of 15 July 2004 in that the meetings were to be held again in the visitors’ café.
36. On 11 March 2005 an expert in child psychology submitted an opinion, stating that the second applicant was caught in a loyalty conflict between this foster parents and the first applicant. Nevertheless, contacts with the first applicant in intervals of three to four weeks were in his interest.
37. On 5 April 2005 a further agreement was reached which grants the first applicant access rights once a month from 3 p.m. to 5 p.m. and in addition on her birthday on the second applicant’s birthday and at Christmas. The contacts take place at the visitors’ café.
38. The first applicant has so far not filed a request to re-transfer custody of the second applicant to her, but considers that regular visits serve to prepare a re-transfer of custody.
39. On 20 October 2000 the first applicant filed a request with the Vienna Federal Police Authority (Bundespolizeidirektion) that the residence prohibition be lifted.
40. On 17 January 2001 the first applicant supplemented her request that the residence prohibition be lifted and argued that leaving Austria would mean losing her child and would impede her efforts of obtaining custody of the second applicant.
41. On 17 April 2001 the Federal Police Authority dismissed the first applicant’s request of 20 October 2000. On 6 November 2001 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the first applicant’s appeal.
42. On 24 February 2003 the Constitutional Court, allowing the first applicant’s complaint, quashed the Public Security Authority’s decision and remitted the case to it. The court found that the authority had failed to take proper account of the first applicant’s right under Article 8 of the Convention.
43. On 22 April 2003 the Public Security Authority quashed the Federal Police Authority’s decision of 17 April 2001. Subsequently, the residence prohibition was lifted and on 12 November 2004, the applicant was granted a residence permit for a limited duration.
44. Section 176 of the Civil Code empowers the courts to withdraw or restrict custody. So far as relevant, the version in force at the material time, read as follows:
“1. If the parents put the well-being of the minor child at risk, on account of their conduct, the court shall take the decisions necessary to ensure the well-being of the child, ... In particular, the court may withdraw entirely or in part custody for the child, ...”
45. Section 176a of the Civil Code, in the version in force at the material time, read as follows:
“If the child’s well-being is at risk, therefore requiring the complete removal of the child from his/her previous environment against the will of the person entitled to raise the child, and if the child cannot be accommodated with relatives or other suitable persons close to the child, the court shall transfer custody of the child entirely or in part to the youth welfare institution. The youth welfare institution may transfer the exercise of custody to third parties.”
46. Section 14 of the 1990 Vienna Youth Welfare Act (Wiener Jugend-wohlfahrtsgesetz) deals with social services for parents, babies and young children. Section 14 § 2 (3) mentions the placement of mothers/fathers with babies or young children in crisis apartments, specialised centres or other institutions as one of these services. According to Section 3 of that Act youth welfare is to be granted to all persons residing in Vienna.
47. There is no enforceable right to social services, such as a placement under Section 14 § 2 (3). Consequently, no legal remedy lies against the refusal or the failure to grant social services.
48. General social services, designed to help persons in an emergency situation, are provided for in the Vienna Social Services Act (Wiener Sozialhilfegesetz). Austrian nationals and certain groups of foreigners who are lawfully resident in Austria (e.g. nationals of countries having concluded a reciprocity agreement with Austria, persons with refugee status or nationals of member States of the European Economic Area) are entitled to benefits or services under this Act.
49. The Non-Contentious Proceedings Act 1854 (Außerstreitgesetz), in the version in force at the material time, did not contain any specific provision on hearings. It was the Austrian courts’ practice and the understanding of academic writers that hearings under this act were not public (see Fasching, Lehrbuch des österreichischen Zivilprozessrechts, Wien, 1984, marginal number 682, and Gögl, Der Beweis im Verfahren außer Streitsachen, ÖJZ 1956, 344 (347)).
50. On 1 January 2005 a new Non-Contentious Proceedings Act entered into force replacing the 1854 Act. It provides for the conduct of oral and public hearings (Sections 18 and 19) as a general rule and leaves it to the discretion of the court to decide whether or not the public should be excluded, for instance for the protection of the persons involved in a particular case.
51. In family-law and guardianship proceedings, Section 140 provides for oral hearings open only to the parties. The court may decide to hold a public hearing, unless protected details of a person’s private and family life are discussed, a party opposes a public hearing or if such a hearing would be incompatible with the child’s well-being.
VIOLATED_ARTICLES: 6
8
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-97410
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF WASILEWSKA AND KALUCKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicants were born in 1980 and 1949 respectively and they live in Łódź.
6. On 23 August 2002 Mr Przemysław Kałucki, who at the material time was 26 years old, arrived at the Spała Sports Centre accompanied by two persons, G.B. and T.N. They parked their car, a Volkswagen Passat, next to a fence surrounding the Centre.
7. Suddenly, a column of four vehicles, three minibuses and one saloon car, arrived. Several armed men jumped out of the vehicles. It later turned out that they were police officers from the Łόdź and Tomaszów Mazowiecki Police Forces and from a special anti-terrorist group.
8. Some of the officers wore plain clothes and others combat uniforms with bulletproof vests and helmets. Not all the police officers were wearing fluorescent vests and they bore no other visible signs that would indicate that they were from the police. In particular one police officer, later named witness no. 2, as was visible on the film recorded by the camera of the private television station TVN, was not wearing such a vest. The TVN television had been preparing a documentary on the work of the police and had placed cameras in the police cars. A short documentary “Criminal Games” was prepared following the operation.
9. Mr Kałucki and the other two occupants of the car thought they were about to be robbed and tried to escape in the direction of the swimming pool which led to a dead end. G.B. took the driver's seat and Mr Kałucki climbed into the back-seat behind him. The third man, T.N., did not manage to get inside the car and tried to run away.
10. Mr Kałucki and G.B. drove between the second and third police vehicles while the police opened fire, shooting repeatedly at the driver and the passenger. The orders of the commanding officer had not been complied with as he had ordered that the police officers from the last vehicle should arrest the suspects. Instead many other officers had left their vehicles and attempted to stop the car by firing automatic weapons.
11. The whole operation lasted fifteen seconds during which about 40 bullets were fired at the car as it was driving off, according to an expert, at no more than 20 k.p.h. In spite of the claims by the police officers that they had been aiming at the tyres, none of the tyres had been damaged.
12. The driver lost control of the vehicle and hit the fence. Mr Kałucki was severely wounded and was removed from the car by one of the police officers, who pulled him by the head. The first applicant submitted that Mr Kałucki was of a heavy build, weighing about 120 kg, and at the time of the events was observed to have five bullet wounds.
13. No arrangements had been made for an ambulance to be present. Although the police officers testified that they had attempted to resuscitate Mr Kałucki and stop the haemorrhage, the autopsy reports made no mention of this. Mr Kałucki died before the arrival of an ambulance twenty minutes after the shooting. The driver of the car, G.B., was seriously wounded.
14. On an unspecified date both applicants requested the Łόdź District Prosecutor to initiate a criminal investigation into the death of Mr Kałucki.
15. The prosecutor took testimony from all the police officers who had taken part in the operation, as anonymous witnesses (świadek incognito).
16. On 18 August 2003 the Łόdź Regional Prosecutor decided to discontinue the investigation. The prosecutor established that the operation had been initiated upon information that two armed criminal gangs would engage in a confrontation in the Spała Sports Centre. According to the information obtained by the police the gangs would be armed with semi-automatic Kalashnikov-type weapons. Twenty-two police officers had arrived in four unmarked cars, wearing balaclavas and bulletproof vests. The officers from the Łόdź Police Force were in plain clothes but were wearing fluorescent vests with the word “Police” marked on them. The other group, from a special anti-terrorist force, were wearing uniforms and dark-coloured vests marked “Police”.
17. The police operation had started when the commanding officer received information that a suspicious group of people had gathered on the grounds of the Sports Centre. After he had given the order to move, the column of cars had approached the Volkswagen Passat that was parked at right angles to the street. The commanding officer had ordered the arrest of three men who were standing next to the Passat and who turned out to be Mr Kałucki, G.B. and T.N. The arrest was to be carried out by police officers from the last two cars in the column. The police vehicles had moved one after the other, blocking the street and the suspects' car. The suspects had tried to escape and two of them had jumped into the car and driven off fast, taking advantage of a gap that had been left between the second and third police vehicles. By this time almost all the police cars had stopped and the police officers had got out. They were armed with guns and semi-automatic rifles. A police officer, who in the proceedings was named anonymous witness no. 4, got out of the second vehicle and found himself in the way of the Passat so he jumped aside to avoid being hit by the rapidly moving car. He shouted “police” and started shooting, aiming at the tyres of the suspects' car. He fired eleven shots from his sub-machine gun (pistolet maszynowy Glauberyt). Another police officer, witness no. 2, got out of the first vehicle and found himself facing the escaping Passat. He was wearing a fluorescent vest marked with the word “Police”, and shouted “stop, police” but the driver failed to obey. At the last moment, the witness had had to jump aside but had nevertheless been hit by the car and sustained an injury to his leg. He had not lost balance, and fired five shots from his gun (pistolet marki Glock) at the tyres of the Passat. A policeman from the anti-terrorist forces, witness no. 3, had stepped out of the second car and had also attempted to stop the car by firing eleven shots from his sub-machine gun (pistolet maszynowy MP-5). He aimed at the engine, front tyres and, as the car was passing him, its side and the rear tyres. The next police officer, witness no. 6, had followed police officer no. 2 out of the first police vehicle. As the suspects' car was passing him he noticed that the driver was aiming at him with an object resembling a gun. The police officer then fired a short burst from his machine gun (karabin Kalashnikov) aiming at the lower side of the car and tyres. Finally, another officer from the antiterrorist forces, witness no. 18, had got out of the third vehicle. Noticing that the suspects' car had passed one of the police vehicles and hit officer no. 2, he had run after the escaping vehicle, shouted to the driver to stop and opened fire with his machine gun (a Kalashnikov), aiming at the car's left rear tyres. The other police officers had run after T.N., the remaining suspect who had not managed to get into the car, and overpowered him.
18. The suspects' car stopped on reaching the metal fence. Witness no. 18 had gone to the car and ordered the driver to surrender. He had helped him out of the car and attended to him as he was bleeding. Anonymous witness no. 7 had opened the rear door of the car and removed Mr Kałucki, pulling him by the head as he had not reacted to his orders. He did not resist but was still alive. The police officer had tried to staunch the bleeding from his back and called the commanding officer, who brought over a medical ventilator and started to resuscitate him until the arrival of the ambulance.
19. The prosecutor also established that Mr Kałucki's death had been caused by a bullet wound to the torso. The bullet breached the abdominal aorta causing a massive haemorrhage. It did not leave his body and the experts were able to establish that it had been fired by witness no. 18. In addition to the fatal wound, Mr Kałucki had sustained a further five surface bullet wounds to his head, right arm, lower torso, left torso and left thigh.
20. Following a search of the Passat two guns had been found, one on the floor behind the driver's seat and the second in the pocket at the back of the driver's seat.
21. The other suspect, G.B., had sustained two bullet wounds to the torso and head, the latter caused by a shot fired by witness no. 2. As a result, he had become severely disabled, suffering from paralysis on one side of his face and deafness.
22. The prosecutor established that the driver of the Passat had failed to obey the order to stop, accelerated towards witness no. 2, and had therefore acted with the intention of killing him. The prosecutor concluded that in those circumstances the police officers had had the right to use their firearms in pursuing persons against whom there was a reasonable suspicion that they had attempted to commit homicide and were armed. According to the prosecutor, the investigation materials showed that when using their weapons the police officers had followed all the relevant rules and their sole intention had been to stop escaping suspects. The prosecutor thus decided to discontinue the investigation as no crime had been committed.
23. Both applicants appealed against that decision. They submitted that G.B. and Mr Kałucki had not been armed as the guns found in the car had not been used and did not have their fingerprints on them. The gun linked by the expert to Mr Kałucki by scent identification had been hidden in the pocket of the car seat and thus could not have been used by him. The applicants alleged that the prosecutor had failed to deal with many inconsistencies in the testimonies of the police officers. Moreover, it had not been explained why no blood stains had been found in the car even though Mr Kałucki had died of a haemorrhage and suffered many bullet wounds. The applicants also blamed the police for not preparing the operation properly. They pointed to the fact that in total twenty-three armed police officers had participated in the operation during which forty shots had been fired at the car (including one which had passed through a point above the driver's door handle, five through the boot, eight through the rear bumper, and four through the driver's seat and back seat). The car's tyres remained undamaged despite the testimonies of the police officers that they had all aimed at the tyres. The applicants therefore submitted that the force used by the police officers against two unarmed men had been disproportionate.
24. On 25 February 2004 the Tomaszów Mazowiecki District Court (Sąd Rejonowy) dismissed the applicants' appeals and upheld the prosecutor's decision. It found that no offence had been committed and the law, in particular section 17(1)(6) of the Police Act, had been complied with. The court stated:
“When seeing the police, [G.B. and Mr Kałucki] tried to escape. This attempt was met with a firm but proper response from the police officers participating in the operation, in particular anonymous witness no. 2, who stood in the path of the oncoming car and attempted to stop it by shouting: 'Stop, police'. One should recall at this point the very important circumstance that this witness was wearing a fluorescent vest with the word 'Police' marked on it, leaving no room for doubt about his function. The car was heading straight for the intervening police officer who only managed to avoid being hit by G.B. [who was driving the car] through his training and expertise...
The court has established, after analysing the evidence, that when firing the shots the police officers followed all the procedures necessary in the situation and their intention was only to stop the speeding car and to arrest the fugitives. They used their guns in the direct pursuit of the suspects, who had made an attempt on the life and health of the police officers...
The court does not agree with the submission made in the appeal lodged by the [first applicant's] lawyer that Przemyslaw Kałucki and [G.B.] had not used any firearms and that no shot had been fired by them. The actions of the police officers were not in response to shots being fired by the suspects. They attempted to arrest persons in respect of whom there was a reasonable suspicion that they were armed, without a relevant licence, and who had made a direct and illegal attempt on the life and health of the police officers....”
25. That decision was final as no appeal lay against it.
26. After the events, G.B. and some other persons arrested in the Spała Sports Centre were indicted on various charges.
27. It appears that in the course of these proceedings the police officers who had participated in the operation again gave evidence in court. The applicants submitted excerpts from the transcript of one of the hearings held on an unspecified date when the court heard witness no. 2. The witness repeated the version of events he had given in the investigation against the police. Afterwards he was shown the episodes from the film recorded by a TVN camera. He then testified as follows:
“I saw on the film that a person, probably me, jumped out of a car and did not have a yellow vest on, but from what I can remember I must have put on this vest when drawing alongside the second vehicle. It was caused by the fact, mentioned by me before, that according to the first plan of the operation, the team in the vehicle I was in was supposed to make arrests at the swimming pool [located deeper inside the grounds of the Centre, where some other suspects were arrested]. That's why I was taken by surprise when the order of the commanding officer came and so did not have my vest on when I got out of the car. I was not wearing a helmet either, as I did not put it on and it remained in the car. At this moment I do not remember if I got out of the car with the vest in my hand but I believe so.”
28. It appears that in December 2003 the Piotrków Trybunalski Regional Court convicted G.B. of assaulting a police officer and sentenced him to six years' imprisonment.
29. It appears that subsequently in this set of proceedings, on 29 January 2005, an expert opinion was submitted to the court by a road accident expert. The expert was unable to establish beyond reasonable doubt the exact location of witness no. 2 and the Volkswagen Passat during the events. He was also unable to give a conclusive opinion on whether the driver of the Passat had had time to change direction in order to avoid hitting witness no. 2, who had emerged suddenly from his police car.
30. Article 16 of the Police Act of 6 April 1990 (Ustawa o Policji) reads, in so far as relevant:
“1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures:
1) physical, technical and chemical means to restrain or escort persons or to stop vehicles;
2) truncheons;
3) water cannons;
4) police dogs;
5) rubber bullets fired from firearms.
2. Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed.”
31. Section 17 of the Police Act provides:
“1. If the coercive measures mentioned in section 16 (1) prove insufficient, or their use in the circumstances is not possible, a police officer may use firearms exclusively:
1) in order to fend off a direct and illegal attempt on the life, health or liberty of a police officer or other person, or to prevent activities directly related to such an attempt,
2) against a person who fails to obey an order to drop immediately a weapon or another dangerous instrument whose use poses a threat to the life, health or liberty of a police officer or other person,
...
6) in the direct pursuit of a person in relation to whom the use of firearms was lawful under paragraphs 1-3 or 5, or who is reasonably suspected of committing a crime, an attempted act of terrorism, abduction in order to obtain a ransom or other demand, mugging, robbery, violent assault, intentional serious bodily injury, rape, arson or other intentional threat to public security, life and/or health,
...
2. In operations by organised units or sub-units of the Police, firearms shall be used only on the direct orders of the commanding officer.
3. Firearms shall be used so as to cause minimum damage to the person targeted, and without any intention of depriving that person of his or her life and without endangering the life or health of others.
4. The Council of Ministers shall issue a resolution defining the conditions and operational procedural requirements for the use of firearms by the organised Police detachments mentioned in paragraph 2.”
VIOLATED_ARTICLES: 2


ITEMID: 001-58804
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF HOWARTH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;No violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress;Nicolas Bratza
TEXT: 7. The applicant is a British citizen, born in 1945.
8. On 17 March 1993 the applicant was interviewed by officers of the Serious Fraud Office in connection with allegations of market rigging, theft and false accounting, alleged to have taken place in the course of the takeover of one company by the company in which the applicant, a chartered accountant, was involved. The alleged offences took place during the period 1990 to 1991.
9. The applicant was further interviewed on 27 April 1993 and 21 June 1993, and was formally charged on 30 July 1993.
10. The applicant’s trial began in October 1994 and on 10 February 1995, after a trial lasting 63 days, the applicant was convicted of conspiracy to defraud and four counts of theft. The proceedings were adjourned for pre-sentence reports, and on 10 March 1995 the applicant was ordered to perform 220 hours community service. He was also ordered to pay compensation of GBP 151,042.36 within two years, with 12 months' imprisonment in default, and was further ordered to pay GBP 20,000.00 towards prosecution costs.
11. The applicant lodged a notice of appeal against conviction on 11 March 1995, and on 5 April 1995, the Attorney General made a reference to the Court of Appeal for a review of the applicant’s sentence under Section 36 of the Criminal Justice Act 1988. In May 1995, the applicant was refused legal aid on financial grounds.
12. On 20 September 1995 the applicant, privately represented, submitted perfected grounds of appeal and his response to the Attorney General’s reference. Leave to appeal against conviction was granted on 20 December 1995. A request for the legal aid position to be reconsidered was refused by a single judge in March 1996.
13. In October 1996, after a summary of the case had been prepared by the Criminal Appeal Office, the case was sent to the Listing Office, and on 20 January 1997 the hearing dates were fixed with counsel’s clerks.
14. On 29 January 1997 the Attorney General served an amended Section 36 reference.
15. The applicant's appeal against conviction was dismissed by the Court of Appeal on 20 March 1997, and on 21 March, the Attorney General's reference was heard by the Court of Appeal. The Court of Appeal found as follows:
“We grant leave in respect of each of these applications, as we consider the sentence imposed by Judge Mota Singh in respect of each of the defendants was unduly lenient. (…)
Much has been said about the delay in this case. It does indeed seem a very long time. But it has to be borne in mind that much of the delay in the hearing of these applications has resulted from the fact that two of the defendants chose, as was their right, to appeal against conviction.
We regard conduct of the sort involved here, that is to say working to create a false market in shares in companies involved in a City takeover, and in order to influence the fate of that takeover, as a very serious matter. Not only may it lead to a fraud on shareholders, but it causes considerable damage to the reputation of the City of London, which is very important to the whole country; and damage to the confidence of the public in its institutions.
We consider it very unlikely, therefore, that when such conduct comes before the courts for sentence that a Community Service Order could ever be sufficient punishment. We have no hesitation in concluding that it was inappropriate, that is to say too lenient, in respect of the conduct in this case. True no actual false market was created, but it was not for want of trying.(…)
Dealing first with [Mr X]. We view him as the instigator and leader of the operation. In our judgment, the right sentence which should have been passed on him by a trial judge upon conviction, additional to compensation and the costs order, was 3 years’ imprisonment. We now start by taking into account that he did serve the period of community service that he was called upon to serve, and served it well apparently. Next we deduct from the sentence what has come to be known as the ‘discount for double jeopardy’. After those deductions, we arrive at a sentence, to run from today, of 2 years’ imprisonment. We further disqualify him from holding a directorship of a public company for a period of 7 years from today.
Turning to [the applicant]. He was an active and powerful second in command. The right sentence in his case, we believe, would have been 30 months’ imprisonment. Again we do the discounting that we did in the case of [Mr X]; and we arrive at a sentence of 20 months’ imprisonment, starting from today. We disqualify him from holding a directorship in a public company for 5 years.”
16. The compensation and costs orders remained. The applicant had already completed the community service to which he had originally been sentenced.
17. In addition to the general regime of appeals against decisions of the Crown Court, the Attorney General may, in certain circumstances and where it appears to him that a sentence of the Crown Court has been unduly lenient, apply to the Court of Appeal for leave to refer the case to it to review the sentence. The principal relevant provisions are to be found in Section 36 of the Criminal Justice Act 1988. An application for leave must be made within 28 days of the sentence. Where the Court of Appeal grants leave, it will consider a sentence “unduly lenient” where “it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate” (Attorney General’s Reference No. 4 of 1989, Cr. App. R(S) 517). The Court of Appeal has also commented that “before this Court granted an application of this sort, it must be shown that there was some error in principle in the judge’s sentence ... that in the absence of a sentence being altered by this Court, public confidence would be damaged ... the Court should only grant leave in exceptional circumstances, and not in the borderline type of case” (Attorney General’s Reference No. 5 of 1989 11 Cr. App. R(S) 489).
18. Where a person’s sentence is increased, an allowance is made to reflect the additional period of anxiety imposed on an offender awaiting a second sentencing hearing.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3