ITEMID: 001-60564
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF S.N. v. SWEDEN
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 and 6-3-d
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: 9. In February 1995 the Social Council (socialnämnden) of Borgholm was contacted by a schoolteacher on account of a suspicion that one of her pupils, M., a boy born in June 1984 and thus at the time aged 10, had been sexually abused by the applicant. On 29 March 1995, having carried out an investigation, the Council reported the matter to the police authority in Kalmar.
10. On 7 April 1995, between 10.09 a.m. and 10.51 a.m., M. was interviewed by the police. The interview was recorded on videotape. M.'s parents and representatives of the Social Council were present in the adjoining room. At that time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him.
The interview was conducted by a detective inspector with twenty-six years of service in the police force. Since 1989 he had been working exclusively on investigations concerning ill-treatment and sexual abuse of children.
11. On 10 May 1995 the applicant was questioned by the police and the public prosecutor. Before the questioning the applicant was notified, in accordance with Chapter 23, section 18, of the Code of Judicial Procedure (Rättegångsbalken), of the suspicions against him.
12. In June 1995 the applicant received a copy of the report of the preliminary investigation and on 3 July defence counsel was appointed for him. The applicant was given an opportunity to submit observations and request additional interviews and other investigative measures. Finding that further information was necessary with regard to, inter alia, the dates and the number of occasions when the alleged acts had been committed and the sites at which they were supposed to have occurred, the applicant's counsel requested that M. be interviewed again.
13. In accordance with counsel's request, a second interview with M. was conducted on 20 September 1995, between 12.50 p.m. and 1.14 p.m. at the boy's home, by the same detective inspector. During the interview, which was recorded on audiotape only, M.'s parents were present but not the applicant's counsel. It appears that M.'s counsel, who had not been served notice of the interview, was opposed to counsel for only one of the parties being present at an interview. Finding that it would be unreasonable to cancel the interview, as the police officer was present and M. had taken time off from school, the applicant's counsel agreed that it could be conducted without his being present. The police officer and the applicant's counsel discussed what aspects of the case needed to be addressed during the interview. In general, counsel for the applicant wished to have a more detailed account of what was alleged to have happened. However, no written list of questions was drawn up. Counsel for the applicant later listened to the audiotape of the interview and was given a transcript of the tape. Finding that the issues raised in his request had been covered, he did not call for a further interview to be held.
14. On 29 September 1995 the applicant was indicted for sexual acts with a child (sexuellt umgänge med barn).
15. The Kalmar District Court (tingsrätten) heard the case on 31 October 1995. The applicant denied the charges. The videotaped police interview with M. was shown during the hearing. The record of the second interview was read out. The court also heard evidence from M.'s mother and his schoolteacher as witnesses. No request for M. to be heard in person was made.
16. In a judgment of 14 November 1995 the District Court convicted the applicant and sentenced him to eight months' imprisonment. The court, noting that the outcome of the case was entirely dependent on the credibility of M.'s statements, found no reason to call into question their veracity. Thus, basing itself on those statements, the court found that the applicant, on a large number of occasions in 1994, had touched M.'s penis or masturbated him and induced M. to touch the applicant's penis or masturbate him.
17. The applicant appealed to the Göta Court of Appeal (Göta hovrätt). Subsequently, at the applicant's request, his defence counsel was replaced. The appellate court held a hearing on 22 April 1996, during which it heard the applicant and his new counsel. M.'s mother and his schoolteacher gave evidence. The videotape of the first police interview with M. and the audiotape of the second interview were played back. Again, the applicant did not request that M. give evidence during the hearing.
18. In a judgment of 6 May 1996 the Court of Appeal upheld the applicant's conviction but reduced the sentence to three months' imprisonment. It considered that, as there was no technical evidence in the case and nobody had witnessed the alleged acts, the credibility of M.'s statements was of decisive importance in determining the applicant's guilt. It went on to state the following:
“For reasons of legal certainty, the questioning of children during pre-trial investigations must – as explained in detail by the Supreme Court [Högsta domstolen] in NJA 1993 p. 616 – meet high standards with regard to both methods and content.
The information given by [M.] is, in some parts, vague and uncertain. He has not been able to give details of any specific incident covered by the prosecution and he has been able to describe only in more general terms what kind of sexual contact has occurred. It should further be noted that some of the questions put to him have been of a leading nature. Even if these circumstances are taken into account, the Court of Appeal finds that [M.'s] statements cannot be disregarded.
A fact which strongly indicates that [M.] has been subjected to homosexual abuse is his expressed concern that he would become 'gay'. The Court of Appeal has had further regard to the following circumstances. The general impression of the video-recording is that [M.] has talked about something he has indeed experienced and that it has been embarrassing and painful for him to give this information. This may explain his unwillingness to go into detail about specific incidents. [M.] has not shown any tendency to exaggerate his statements and has corrected the interrogator on several occasions. Furthermore, in some respects his statements can be said to contain more personal observations, for example, 'Of course, I did not want to touch his but sometimes I did it without gloves' and 'First I asked if I would get any (refers to pastilles). He did not have any and then I did it voluntarily but I do not know why'. It should further be noted that no information has come to hand which could reasonably explain why [M.] would make untrue statements about events which he obviously considers to be shameful. Also of importance is the information given by [M.'s] mother and teacher which describes how [M.'s] personality has changed since the alleged injustice. The fact that it was a long time before [M.] spoke about what he experienced is easily explained by the feelings of guilt he has had and by the fact that thinking about the incidents is distasteful to him. [M.'s] accounts do not contain any improbable elements, neither is the information given by him contradicted by other statements. In view of what has now been said, the Court of Appeal finds that [M.] is credible and that his statements should form the basis for the Court of Appeal's assessment of whether [the applicant] has behaved towards him in the manner indicated by the public prosecutor in his statement on the charges.”
The Court of Appeal found that the information given by M. showed that the applicant had induced M. to touch the applicant's penis or masturbate him. However, the statements that the applicant had touched M.'s penis or masturbated him were too uncertain and vague and thus did not constitute sufficient evidence.
19. The applicant appealed to the Supreme Court. Relying on Article 6 §§ 1 and 3 (d) of the Convention, he complained that his counsel had not been able to put questions to M. He noted that there was no technical or other evidence in the case to support M.'s statements. He further criticised the manner in which M. had been interviewed and stated that M.'s statements were vague and contradictory. In these circumstances, the applicant claimed that he had a right to cross-examine M. He maintained that the Supreme Court's case-law, which allegedly permitted the procedure followed in his case, had to be changed in order either to give counsel for the defence a right to examine the minor or to require clear supporting evidence.
20. On 26 June 1996 the Supreme Court refused the applicant leave to appeal.
21. Domestic provisions of relevance in the present case are found in the Code of Judicial Procedure ( “the Code”) and in the Ordinance on Preliminary Investigations (Förundersökningskungörelsen, 1947:948 – “the Ordinance”). There is also some national case-law of interest.
22. A preliminary investigation takes place whenever there is reason to believe that a crime has been committed. Chapter 23, section 10, of the Code includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation. The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself. This right, however, does not manifest itself until a person has been informed of the suspicions against him in accordance with Chapter 23, section 18, of the Code. As far as other interviews are concerned, counsel for the defence may attend if his attendance will not harm the investigation. It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation. In cases where the suspect or his defence counsel are present during an interview, questions may only be asked in the order determined by the person in charge of the preliminary investigation (Chapter 23, section 11, of the Code).
23. When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime, the person in question must be notified of the suspicions against him, pursuant to Chapter 23, section 18, of the Code. Under the second paragraph of that provision, an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such. If a request for such an investigative measure is not granted, the reasons for the decision must be given. If the suspect makes a complaint, the issue is settled by the court (Chapter 23, section 19, of the Code).
24. Interviews with children conducted in the course of a preliminary investigation are subject to special regulations. Thus, according to Chapter 23, section 10, of the Code, a child's custodian should be present whenever a child under the age of 15 is questioned if this can be done without any harmful effects on the investigation.
25. Further and more detailed provisions concerning the questioning of children are found in the Ordinance, section 17 of which provides that interviews with, inter alia, an injured party under the age of 18 must be conducted in such a manner that there is no danger that the interviewed person might be harmed. It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters. Furthermore, particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require. Questioning should, moreover, according to section 17 of the Ordinance, occur on only one occasion unless it is more appropriate to conduct several interviews out of consideration for the child who is being questioned.
26. Section 18 of the Ordinance provides that interviews with children must be conducted by persons who are particularly apt to perform the task. In addition, section 19 provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child's testimony.
27. Whenever the evidence of a witness below the age of 15 is used in a criminal case, the court must determine, taking account of all relevant circumstances, whether the child should testify (Chapter 36, section 4, of the Code). There is no corresponding provision applicable to children who are in the position of being the injured party. In practice, however, such evidence is normally presented to the court in the form of a video-recording of the police interview, which is played back during the court's main hearing. In allowing this to take place, the court applies Chapter 35, section 14, of the Code, by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconveniences that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand.
28. As already mentioned, children below the age of 15 do not normally give evidence in person before a court. There are, however, examples where children have been heard in court. Thus, in two recent cases before the Svea Court of Appeal (Svea hovrätt) concerning sexual offences against children (case no. B 1129-98, judgment of 28 September 1998, and case no. B 1635-99, judgment of 7 June 1999), the injured parties, two girls aged 10 and 11, gave evidence in person. Their statements were made before the members of the court, the public prosecutor, the defence counsel and their own counsel but in the absence of the accused, who were able to listen to the statements in an adjoining room. In both cases, the girls were heard at the request of the prosecutor following the acquittal of the accused at first instance. In another case before the same appellate court concerning a sexual offence (case no. B 4488-01, judgment of 25 October 2001), the defence, upon appeal against the conviction of the accused at first instance, requested that the injured party, a 13-year-old girl, give evidence in person. The prosecutor and the girl's counsel opposed the request which was subsequently rejected by the Court of Appeal on account of her age. Instead, the court allowed recordings of her statements during the preliminary investigation to be played back. However, the Court of Appeal reversed the judgment of the District Court and acquitted the accused, finding that the evidence presented did not sufficiently show that he had committed the alleged offence.
29. The application of Chapter 35, section 14, of the Code in relation to Article 6 of the Convention has been examined by the Supreme Court on one occasion. In the case in question, published in Nytt juridiskt arkiv ((NJA) 1992, pp. 532 et seq.), the court quashed a judgment by a court of appeal and referred the case back to the latter court for re-examination. The reason for this was that the appellate court, as well as the first-instance court, had allowed the prosecutor to use in evidence written records of a police interview with the injured party in a case concerning indictment for robbery. It had not been possible to serve a summons on the injured party to attend the main hearing. The court of appeal had been of the opinion that the information submitted by the injured party to the police had to be given credit and convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, section 14, of the Code. In the light of the fact that the European Court of Human Rights had come to the conclusion that there was a breach of Article 6 when a court relied on statements in support of a conviction by a person who had not been heard by the court and whom the defendant had not had the opportunity to question in some other context, the Supreme Court in its turn came to the conclusion that that provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention.
30. Issues concerning the quality and evaluation of evidence have been examined by the Supreme Court in two published cases (NJA 1993, pp. 68 et seq., and 1993, pp. 616 et seq.), which are of relevance in this context. The first-mentioned case concerned the alleged sexual abuse of a minor, aged 14, who could not give evidence in court on account of mental problems. The evidence consisted mainly of information supplied by the injured party to the police. The police interview had been recorded on videotape. The Supreme Court came to the conclusion that it was inevitable that the value of such statements as evidence was not the same as the value of statements made during the main hearing. Even so, the evidence in that case, that is the injured party's testimony together with other evidence, was deemed to be strong enough for a conviction.
31. In the second case, the injured parties were born in 1981 and 1983, respectively. The essential evidence consisted of videotaped interviews with them. The interviews had taken place in the absence of the suspect and his defence counsel. They were given the opportunity to examine the information and to request that additional information be provided prior to indictment. However, defence counsel was of the opinion that further questioning would prove pointless since, in his view, the injured parties would only repeat from memory what they had submitted previously. The Supreme Court stated that, bearing in mind that the accused had chosen not to request a further examination, his right to a fair trial could not be seen as having been breached on account of the fact that the videotapes had been used as evidence against him. As far as the evaluation of the evidence was concerned, the Supreme Court stressed the fact that the injured parties had only been questioned out of court and that it could not therefore assess their credibility and the trustworthiness of their information by means of impressions conveyed through a direct examination in court. It followed, according to the Supreme Court, that the information submitted by the injured parties should be assessed with particular care. The fact that the accused had been prevented from putting questions to the injured parties through his defence counsel and that the court itself had also been prevented from doing so pointed in the same direction. According to the Supreme Court this did not mean, however, that the videotaped interviews could not be sufficient to prove the guilt of the accused beyond reasonable doubt. The injured parties' submissions, combined with other evidence, led the Supreme Court to the conclusion that the judgment should be based on, inter alia, the submissions in question.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72109
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PAPAKOKKINOU v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicants were born in 1945 and 1930 respectively and live in Nicosia.
5. The applicants lodged two separate civil actions before the District Court of Paphos on 19 September and 8 November 1985 (actions 1621/85 and 1961/85). In both actions the applicants sought remedies against two defendants in respect of trespass and nuisance to their respective properties.
6. From the institution of the proceedings until 1 January 1989 the court dealt with applications by the applicants for substituted service of the writs, and two applications by the second applicant in her action for an interim order and in respect of a boundary dispute. The pleadings in both actions were completed in October and November 1987.
7. On 9 January 1989 the actions were fixed for directions and were then adjourned to give more time to the parties to decide on whether an inspection of the property should be carried out.
8. On 20 February 1989, with the consent of all the parties, the district court ordered the inspection of the properties concerned by the District Land Office (DLO). Consequently, the actions were adjourned sine die pending the inspection to be fixed on the application of either party upon completion.
9. Following an application by one of the defendants to the court for the joining of the actions on 19 November 1991, and the opposition by the first applicant thereto, the court decided to join the actions on 31 March 1992. Within this period two adjournments took place at the applicants’ request.
10. In view of the fact that the inspection had not been completed yet, the actions were adjourned sine die.
11. Although the actions were fixed for trial several times between 13 January 1995 and 19 October 1995, no hearing took place pending the findings of the DLO. Within this period, three adjournments took place due to the first applicant’s absence.
12. It appears that the parties and the court were informed on 26 September 1995 that the inspection had been carried out.
13. On 19 October 1995 the hearing was adjourned at the applicants’ request.
14. The hearing of the actions commenced on 30 January 1996. From that date until 11 June 1998 approximately sixteen hearing sessions were held, two of which were adjourned and one cut short at the applicants’ request. In the meantime, it appears that the DLO’s inspection was annulled and following another examination of the matter the parties were informed on 3 October 1996 that the DLO’s findings were ready.
15. On 10 December 1998 the Paphos District Court delivered its judgment dismissing the actions with costs to be paid by the applicants.
16. On 9 January 1999 the applicants lodged an appeal with the Supreme Court challenging the above judgment. Within their grounds of appeal, the applicants alleged that the excessive length of the proceedings was in breach of the Cypriot Constitution and European Convention on Human Rights. Consequently, they claimed that the first instance decision should be set aside.
17. Meanwhile, on 8 March 1999, the applicants also applied to the District Court of Paphos challenging the assessment of legal costs they were required to pay. This application was dismissed on 9 July 1999.
18. The records concerning the first instance proceedings were transmitted to the Supreme Court on 29 June 1999 and the parties were notified on 31 August 1999 that the appeal had been fixed for pre-trial directions on 26 October 1999. The appeal was adjourned four times at the applicants’ request for the purposes of amending their notice of appeal.
19. Their amended notice was filed on 30 June 2000 and the filing of the address outlines was completed by 6 November 2000.
20. The hearing of the appeal took place on 23 January 2001 and judgment was delivered on 1 November 2001 dismissing the appeal with costs against the applicants. The Supreme Court having examined, inter alia, the applicants’’ rights and did not justify the annulment of the first instance judgment. In this context the Supreme Court noted that the delays in the first part of the proceedings lasting until the beginning of the actual trial, were mainly due to the long time the DLO took in carrying out the inspection and completing its report and, secondly, to delays by the parties, particularly the applicants, in submitting their pleadings (between 1985 and 1989). Following the start of the trial, the court noted the complexity of the issues raised in the actions that involved the examination of numerous witnesses and the adjournments requested primarily by the applicants.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90360
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SAVINY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The applicants, husband and wife, were born in 1957 and 1956 respectively and live in Romny.
6. Both applicants have been blind since childhood.
7. From 1990 to 2006 the first applicant was officially employed by an enterprise run by the Ukrainian Society of the Blind (“the USB”; Українське товариство сліпих), a public organisation subsidised by the State to provide assistance to blind people. However, as appears from his employer’s statement that between 2001 and 2006 the first applicant actually worked at most a few days a year. In 2006 the first applicant reached retirement age and was dismissed on redundancy. The second applicant stopped working in the early nineties.
8. Since 1997 the family have officially occupied two two-bedroom flats owned by the State, although the applicants claim that they have used only one of them. The flats were supplied with oven heating, but have no drains or hot running water.
9. The applicants have given birth to seven children: O.S. born in 1991, M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in 1997, K.S. born in 1998 and T.S. born in 2001.
10. In February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions; however, it appears that currently all of them, except P.S., who has been adopted with the applicants’ consent, reside in the Romny Boarding School (Роменська загальноосвітня школа-інтернат І-ІІІ ступенів для дітей-сиріт і дітей, позбавлених батьківського піклування ім. О.А. Деревської).
11. In 1997 O.S., the eldest son, who remained in the applicants’ care, was also admitted to the Romny Boarding School. The parents took him home for weekends and vacations. On several occasions the school administration complained to the municipal authorities that O.S. habitually ran away from school, wandering, collecting empty bottles and begging. No specific details or incidents were given.
12. Between 1998 and 2004 representatives of the Municipal Juvenile Service (Служба у справах неповнолітніх) and the Tutelage Board (Орган опіки та піклування), in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. In particular, the premises badly needed renovation; they were cold, dirty, full of cob-webs and smelled of human excrement. Clothes and rags were scattered around the floor and on the beds. Dishes were not washed. Bedding, if present, was very dirty. The baby’s mattress had rotted in the middle because of large quantities of urine. The baby’s cot was unusable. No food was found in the kitchen. The children were dirty and dressed unseasonably. One report also noted that T.S., the smallest child, had a skin rash. According to another report “the children were sick”, although no symptoms were noted. On one occasion the children would not let the inspectors in as the parents had gone out to buy milk and the children were alone with the oldest child, O.S.
13. On several unspecified dates between 1998 and 2004 the USB provided the applicants with various assistance of unrecorded amounts, including firewood, clothing, shoes and alimentary products (such as sugar, potatoes, grain and flour). In 1998 the USB also arranged for local student volunteers to do some renovations on the flat: in particular, to whitewash the walls and to paint the floor and windows.
14. On an unspecified date the applicants requested the municipal authorities to equip their household with natural gas in order to improve their heating, ability to cook and access to hot water. On 10 January 2000 they were informed that their neighbours had strongly objected to this, finding it dangerous in view of the applicants’ blindness and the presence of small children. Moreover, it was technically unfeasible.
15. On 22 February 2000 the applicants requested the Chief of the Municipal Department for Social Assistance to assist them in finding a suitable job for the first applicant. There is no information as to the ensuing response.
16. On 22 February 2000 the Juvenile Service requested the Head of the Municipal Women’s Committee to provide humanitarian assistance to the applicants’ family. There is no information as to the ensuing response.
17. On 16 February 2001 K.S. was examined by a doctor, who recorded that his speech development was delayed and he appeared to be suffering from first-stage anaemia. The doctor further noted that the child’s stomach was soft and not bloated; he had a normal temperature, displayed no signs of malnutrition or skin rash, no enlargement of the lymph nodes or the liver, no redness in the throat and no abnormalities in urination or defecation.
18. On 27 February 2001 the applicants received 150 Ukrainian hryvnyas (UAH) in financial assistance to pay for electricity.
19. On 8 July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up.
20. On an unidentified date the administration of the kindergarten attended by K.S. since 2003 issued a report on his development, stating that K.S. had attended the establishment regularly and that the parents brought him to school and took him home on time. The second applicant was reported to be actively interested in K.S.’s affairs and generally responsive to remarks by teaching and medical staff. The child was reported to be somewhat stubborn and inactive during classes, but eager to communicate with other children. On the other hand, K.S.’s classmates were reported to have been at times appalled by his untidy looks and dirty clothes.
21. In December 2003 the Romny Children’s Health Centre certified that O.S. and K.S. had been fed at school and that they had also been provided with vouchers for summer camps, as they had been recorded as having first-stage anaemia.
22. On an unspecified date the first applicant instituted court proceedings against his employer, seeking to collect salary arrears and various compensatory payments, including compensation for idle time, for an unspecified period ending on 31 November 2004. On 3 November 2004 the Romny Court discontinued the proceedings in view of a friendly settlement between the parties, pursuant to which the first applicant was to be paid UAH 1,500. On 5 January 2006 the Romny Court further awarded the first applicant UAH 1,110 in various compensatory payments in respect of the subsequent idle period.
23. On 5 January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O.S., K.S. and T.S. in public care.
24. On 2 December 2004 the court, having heard the applicants, the Juvenile Service and the Tutelage Board, allowed the prosecutor’s claim. The relevant part of the judgment stated as follows:
“ The defendants [the applicants] do not take care of or bring the children up properly. The children are dirty, hungry, and often stay at home alone...
The representatives of the Juvenile Service and the Tutelage Board supported the claim and described the horrible (жахливі) living conditions of the defendants’ family, dirt, insufficient sanitary arrangements (антисанітарія), very poor financial state....
... According to a note from the children’s hospital of 16 December 2003, K.S. and O.S. are registered with the health centre due to first-stage anaemia...
The court established that the living conditions of the children O.S., K.S. and T.S. are dangerous for their lives and health and moral upbringing, in particular the children are dirty, hungry, dressed unseasonably, are registered with the health centre; O.S. wanders, picks up empty bottles and begs, thus the children should be removed from the defendants and transferred to the Tutelage Board...”
25. The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. They claimed that as people with a disability they were discriminated against and underlined that the State authorities should provide their family with the necessary support instead of removing their children. The applicants also referred to Article 8 of the Convention.
26. On 14 February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. It stated, inter alia:
“The fact that the defendants were visually handicapped had no impact on the court’s conclusions. The applicants did not prove that the State authorities created disadvantageous conditions for their life. Quite the opposite, as it follows from the case file, the State authorities acted within their power to help them.
According to Article 8 of the European Convention of Human Rights, the State can interfere with private and family life for the protection of health or morals, or for the protection of the rights and freedoms of others. Bearing this in mind and considering the facts of the case, the court comes to the conclusion that there was no violation of Article 8 of the Convention.”
27. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings.
28. The judgment was enforced on 23 June 2006. Eventually, K.S. was placed in a school in Romny, while O.S. and T.S. were placed in a school in Sumy (some one hundred kilometres from Romny). According to submissions by an educational social worker (соціальний педагог) retained by O.S.’s new school dated June 2007, O.S. continued to run away from school, wandered, and often needed to be searched for.
29. The relevant provisions of the Constitution of Ukraine read as follows:
Article 32
“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”
Article 51
“...The family, childhood, motherhood and fatherhood are under the protection of the State.”
30. The relevant provisions of the Family Code of Ukraine read as follows:
Article 170. Removal of the Child from the Parents without Depriving them of Parental Rights
“1. The court may decide to remove the child from both parents or one of them without depriving them of parental rights, in cases referred to in Article 164, paragraph 1, subparagraphs 2 -5, as well as in other situations if leaving the child with them is dangerous to his or her life, health and moral education.
In such a case, the child shall be given to the other parent, grandmother, grandfather, other relatives upon their request or to the Tutelage Board.
2. In exceptional situations, when the child’s life or health is seriously endangered, the Tutelage Board or the prosecutor may order the immediate removal of the child from his or her parents.
In such a case, the Tutelage Board shall inform the prosecutor without delay and within seven days of the date of the decision shall lodge a claim with a court for deprivation of the parental rights of one or both parents or for removal of the child from his or her mother or father without depriving them of parental rights.
The same claim can be lodged by the prosecutor.
3. Whenever the circumstances which have hampered the proper upbringing of the child by his or her parents disappear, the court, upon the parents’ request, may order the return of the child”
31. The relevant provisions of the Law read as follows:
Section 11. A child and a family
“(...) Each child has the right to live in a family together with parents or in a family of one of the parents and in their care”
Section 12. Rights, obligations and responsibility of parents with respect to bringing up and development of a child
“to be brought up in a family is a fundamental principle for development of a child”
The State shall provide parents... with support in fulfilment of their obligations on bringing up children.., shall protect rights of a family”
Section 14. Separation of a child and family
“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”
32. In her First Annual Report the Commissioner for Human Rights (2002) mentioned as follows:
(...) The average social pension for a disabled person... is 41 Ukrainian hryvnas (UAH), which is one-fifteenth of the amount allocated for a child who attends boarding school (UAH 400-700 per month)”
33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows:
“(...) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty;
(...) The Committee is concerned that the principles of ... the right to have his/ her best interest as a primary consideration ... (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels.
(...) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”.
35. The basic principles, listed in the annex to Recommendation Rec (2005)5 of the Committee of Ministers on the rights of children living in residential institutions, adopted on 16 March 2005, include, among others:
« (...) The family is the natural environment for the growth and well-being of the child and the parents have the primary responsibility for the upbringing and development of the child;
– preventive measures of support for children and families in accordance with their special needs should be provided as far as possible;
– the placement of a child should remain the exception and have as the primary objective the best interests of the child (...) ;
– the decision taken about the placement of a child and the placement itself should not be subject to discrimination on the basis of ... disability ...or any other status of ... his or her parents (...).»
36. According to the Recommendation Rec(2006)19 on policy to support positive parenting, adopted on 13 December 2006, policies and measures in the field of support for parenting should take into account the importance of a sufficient standard of living to engage in positive parenting. Governments should also ensure that children and parents have access to an appropriate level and diversity of resources (material, psychological, social and cultural). In the best interests of the child, the rights of parents, such as entitlement to appropriate support from public authorities in fulfilling their parental functions, must also be given prominence. Particular attention should be paid to difficult social and economic circumstances, which require more specific support. It is also essential to supplement general policies with a more targeted approach.
VIOLATED_ARTICLES: 8


ITEMID: 001-23556
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: FAUGEL v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Robert Faugel, is an Austrian national, who was born in 1968 and lives in Schalchen (Austria). He is represented before the Court by Johann Postlmayr, a lawyer practising in Mattighofen (Austria).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 March 1993 the applicant caused a road accident in a state of drunkenness.
Subsequently, administrative proceedings were instituted against the applicant in which he was accused of, on the one hand, drunken driving and, on the other, of having failed to inform the authorities of the accident. Although proceedings on both charges were dealt with in one single decision at the first instance level, the proceedings on the above charges were disjoined subsequently. However, the separate decisions were always given on the same day. Application no. 58647/00 concerns the charge of drunken driving, while application no. 58649/00 concerns the charge of having failed to inform the authorities of the accident
On 1 April 1996 the Braunau District Authority (Bezirkshaupt-mannschaft) summoned the applicant. However, he did not obey the summon. On 20 May 1996 he filed a comment and asked the District Authority to submit the certificate that the breathalyser had been duly calibrated.
On 31 May 1996 the District Authority served this certificate on the applicant. However, he did not submit any further comment.
On 21 June 1996 the District Authority issued an order imposing a fine of ATS 17,000 on the applicant for having caused a road accident in a state of drunkenness on 9 March 1996. With the same order it imposed a fine of ATS 1,500 for having refrained from notifying the authorities that he had had caused damage to property by a road accident on 9 March 1996.
On 9 July 1996 the applicant filed an appeal.
On 10 January 1997 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat - “the IAP”), after having held a hearing on 16 December 1996, sitting with a single member, dismissed the applicant’s appeal against the fine of ATS 1,500. On the same day, sitting as a panel of three members, it dismissed the applicant’s appeal against the fine of ATS 17,000.
On 20 and 21 February 1997 the applicant lodged complaints with the Constitutional Court (Verfassungsgerichtshof) against both decisions.
On 10 October 1997 the Constitutional Court quashed the IAP’s decisions. It found that these decisions were based on an unconstitutional provision which had provided that Section 20 of the Code of Administrative Offences (Verwaltungsstrafgesetz) did not apply in road-accident proceedings. Section 20 provides that, if the extenuating circumstances outweigh the aggravating circumstances, the fine imposed may be reduced to the half of the statutory minimum fine. This decision was served on the applicant’s counsel on 4 November 1997.
On 11 November 1997 the Independent Administrative Penal, sitting as a panel of three members, partly allowed the applicant’s appeal and reduced the fine to ATS 14,000 as, meanwhile, the applicant’s administrative criminal record was erased (Tilgung). However, it found that the requirements of Section 20 of the Code of Administrative Offences were not met.
On the same day, sitting as a single member, it dismissed the appeal against the fine of ATS 1,500. It found that the requirements of Section 20 of the Code of Administrative Offences were not met.
On 7 January 1998 the applicant lodged complaints with the Constitutional Court against these decisions. He stressed that the IAP had failed to hold a hearing in the second set of the proceedings on his appeal despite his request in his appeal of 9 July 1996.
On 9 March 1998 the IAP submitted its observations in reply.
On 27 August 1998 the applicant amended his complaints. He stressed that the composition of the IAP was unlawful as the same members had already decided on his appeal in the first set of the proceedings. Therefore, he challenged the members of the IAP.
On 1 December 1998 the Constitutional Court refused to deal with the cases for lack of prospects of success. These decisions were served on 8 March 1999.
On 19 March 1999 the applicant requested that the cases be transferred to the Administrative Court and on 28 May 1998 he amended his complaints. On 13 July 1999 the IAP submitted its observations in reply.
On 31 March 2000 the Administrative Court dismissed the applicant’s complaints. It found that there was no indication of bias of the members of the IAP. As regards IAP’s failure to hold a hearing in the second set of the proceedings it found that the applicant failed to file a new request to hold a hearing. These decisions were served on 11 April 2000.
Section 51e of the Code of Administrative Offences (Verwaltungsstrafgesetz), as far as relevant, reads as follows:
“... 2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is expressly requested in the appeal.
3. A hearing need not be held if the parties expressly waive their right to a hearing. The parties may express such a waiver up to the beginning of the hearing. ...”
Section 20 of the Code of Administrative Offences (Verwaltungsstrafgesetz), as far as relevant, reads as follows:
“If the extenuating circumstances considerably outweigh the aggravating circumstances, or if the accused is under age, the minimum fine may be reduced to the half of the amount.”


ITEMID: 001-69315
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF FADEYEVA v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 10. The applicant was born in 1949 and lives in the town of Cherepovets, an important steel-producing centre approximately 300 kilometres north-east of Moscow. In 1982 her family moved to a flat situated at 1 Zhukov Street, approximately 450 metres from the site of the Severstal steel plant (“the plant”). This flat was provided by the plant to the applicant's husband, Mr Nikolay Fadeyev, under a tenancy agreement.
11. The plant was built during the Soviet era and was owned by the Ministry of Black Metallurgy of the Russian Soviet Federative Socialist Republic (RSFSR). The plant was, and remains, the largest iron smelter in Russia and the main employer for approximately 60,000 people. In order to delimit the areas in which the pollution caused by steel production might be excessive, the authorities established a buffer zone around the Severstal premises – “the sanitary security zone”. This zone was first delimited in 1965. It covered a 5,000-metre-wide area around the site of the plant. Although this zone was, in theory, supposed to separate the plant from the town's residential areas, in practice thousands of people (including the applicant's family) lived there. The blocks of flats in the zone belonged to the plant and were designated mainly for its workers, who occupied the flats as life-long tenants (see “Relevant domestic law and practice” below). A decree of the Council of Ministers of the RSFSR, dated 10 September 1974, imposed on the Ministry of Black Metallurgy the obligation to resettle the inhabitants of the sanitary security zone who lived in districts nos. 213 and 214 by 1977. However, this has not been done.
12. In 1990 the government of the RSFSR adopted a programme “On improving the environmental situation in Cherepovets”. The programme stated that “the concentration of toxic substances in the town's air exceed[ed] the acceptable norms many times” and that the morbidity rate of Cherepovets residents was higher than the average. It was noted that many people still lived within the steel plant's sanitary security zone. Under the programme, the steel plant was required to reduce its toxic emissions to safe levels by 1998. The programme listed a number of specific technological measures to attain this goal. The steel plant was also ordered to finance the construction of 20,000 square metres of residential property every year for the resettlement of people living within its sanitary security zone.
13. By Municipal Decree no. 30 of 18 November 1992, the boundaries of the sanitary security zone around the plant were redefined. The width of the zone was reduced to 1,000 metres.
14. In 1993 the steel plant was privatised and acquired by Severstal PLC. In the course of the privatisation the blocks of flats owned by the steel plant that were situated within the zone were transferred to the municipality.
15. On 3 October 1996 the government of the Russian Federation adopted Decree no. 1161 on the special federal programme “Improvement of the environmental situation and public health in Cherepovets” for the period from 1997 to 2010” (in 2002 this programme was replaced by the special federal programme “Russia's ecology and natural resources”). Implementation of the 1996 programme was funded by the World Bank. The second paragraph of this programme stated:
“The concentration of certain polluting substances in the town's residential areas is twenty to fifty times higher than the maximum permissible limits (MPLs)[] ...The biggest 'contributor' to atmospheric pollution is Severstal PLC, which is responsible for 96% of all emissions. The highest level of air pollution is registered in the residential districts immediately adjacent to Severstal's industrial site. The principal cause of the emission of toxic substances into the atmosphere is the operation of archaic and ecologically dangerous technologies and equipment in metallurgic and other industries, as well as the low efficiency of gas-cleaning systems. The situation is aggravated by an almost complete overlap of industrial and residential areas of the city, in the absence of their separation by sanitary security zones.”
The decree further stated that “the environmental situation in the city ha[d] resulted in a continuing deterioration in public health”. In particular, it stated that over the period from 1991 to 1995 the number of children with respiratory diseases increased from 345 to 945 cases per thousand, those with blood and haematogenic diseases from 3.4 to 11 cases per thousand, and those with skin diseases from 33.3 to 101.1 cases per thousand. The decree also noted that the high level of atmospheric pollution accounted for the increase in respiratory and blood diseases among the city's adult population and the increased number of deaths from cancer.
16. Most of the measures proposed in the programme concerned the functioning of the Severstal steel plant. The decree also enumerated a number of measures concerning the city as a whole: these included the resettlement of 18,900 people from Severstal's sanitary security zone. It transpires from the programme that the State was supposed to be the main source of funding for such resettlement. However, it seems that in subsequent years Severstal PLC continued to pay for the resettlement of the zone's inhabitants, at least as regards districts nos. 213 and 214. Thus, according to Decree no. 1260 by the mayor of Cherepovets dated 4 April 2004, in 2004 the residents of the blocks of flats situated on Gagarin Street were resettled in another district of the city. According to a letter of 3 June 2004 from the mayor of Cherepovets, Severstal funded approximately one-third of the cost of resettlement.
17. On 9 August 2000 the chief sanitary inspector for Cherepovets decided that the width of the sanitary security zone should be 1,000 metres from the main sources of industrial pollution. However, no specific boundaries were identified for the zone. In 2002 the municipality challenged its own Decree no. 30 of 1992, which had established the zone's boundaries (see paragraph 13 above). On 13 June 2002 the Cherepovets City Court declared Decree no. 30 invalid on the ground that it was ultra vires. The City Court ruled that at the relevant time the municipality had not had jurisdiction to define the width of the zone. The boundaries of the sanitary security zone around the Severstal facilities currently remain undefined.
18. In 2001 implementation of the 1996 government programme was discontinued and the measures proposed in it were included in the corresponding section of the sub-programme “Regulation of environmental quality” in the special federal programme “Russia's ecology and natural resources (2002-2010)”.
19. According to a letter from the mayor of Cherepovets dated 3 June 2004, in 1999 the plant was responsible for more than 95% of industrial emissions into the town's air. According to the State Report on the Environment for 1999, the Severstal plant in Cherepovets was the largest contributor to air pollution of all metallurgical plants in Russia.
20. In 1995 the applicant, with her family and various other residents of the block of flats where she lived, brought a court action seeking resettlement outside the zone. The applicant claimed that the concentration of toxic elements and the noise levels in the sanitary security zone exceeded the maximum permissible limits established by Russian legislation. The applicant alleged that the environmental situation in the zone was hazardous for humans, and that living there was potentially dangerous to health and life. In support of her claims she relied mainly on the city planning regulations of 1989 (see “Relevant domestic law and practice” below). According to the applicant, these regulations imposed an obligation on the plant's owners to implement various ecological measures in the zone, including the resettlement of residents in an ecologically safe area. The applicant claimed that Severstal had failed to fulfil this obligation.
21. On 17 April 1996 the Cherepovets City Court examined the applicant's action. The court recognised that the building at 1 Zhukov Street, where she lived, was located within Severstal's sanitary security zone. The court noted that, prior to 1993, the applicant's flat had been owned by the Ministry of Black Metallurgy, which had also owned the plant. Following privatisation of the plant in 1993, it had become a privately owned entity and the applicant's flat had become the property of the local authorities. Referring to the ministerial decree of 1974, the court found that the authorities ought to have resettled all of the zone's residents but that they had failed to do so. In view of those findings, the court accepted the applicant's claim in principle, stating that she had the right in domestic law to be resettled. However, no specific order to resettle the applicant was given by the court in the operative part of its judgment. Instead, the court stated that the local authorities must place her on a “priority waiting list” to obtain new local authority housing (see “Relevant domestic law and practice” below). The court also stated that the applicant's resettlement was conditional on the availability of funds.
22. The applicant appealed, claiming that the obligation to resettle was on the plant rather than on the municipality. She also maintained that the court had distorted the object of her claim: whereas she had been seeking immediate resettlement, the court had ordered that she be placed on a waiting list. In the applicant's view, this decision was unworkable because its enforcement depended on too many conditions (the existence of a resettlement order, the number of people on the waiting list, the availability of funds for resettlement, etc.).
23. On 7 August 1996 the Vologda Regional Court upheld in principle the decision of 17 April 1996, and confirmed that the applicant's home was located within the Severstal steel plant's sanitary security zone. The appeal court further found that the applicant's resettlement in an ecologically safe area was to be carried out by the municipality. Finally, the appeal court excluded from the operative part of the judgment the reference to the availability of funds as a precondition for the applicant's resettlement.
24. The first-instance court issued an execution warrant and transmitted it to a bailiff. However, the decision remained unexecuted for a certain period of time. In a letter of 11 December 1996, the deputy mayor of Cherepovets explained that enforcement of the judgment was blocked, since there were no regulations establishing the procedure for the resettlement of residents outside the zone.
25. On 10 February 1997 the bailiff discontinued the enforcement proceedings on the ground that there was no “priority waiting list” for new housing for residents of the sanitary security zone.
26. In 1999 the applicant brought a fresh action against the municipality, seeking immediate execution of the judgment of 17 April 1996. The applicant claimed, inter alia, that systematic toxic emissions and noise from Severstal PLC's facilities violated her basic right to respect for her private life and home, as guaranteed by the Russian Constitution and the European Convention on Human Rights. She asked to be provided with a flat in an ecologically safe area or with the means to purchase a new flat.
27. On 27 August 1999 the municipality placed the applicant on the general waiting list for new housing. She was no. 6,820 on that list (see “Relevant domestic law and practice” below).
28. On 31 August 1999 the Cherepovets City Court dismissed the applicant's action. It noted that there was no “priority waiting list” for the resettlement of residents of sanitary security zones, and no council housing had been allocated for that purpose. It concluded that the applicant had been duly placed on the general waiting list. The court held that the judgment of 17 April 1996 had been executed and that there was no need to take any further measures. That judgment was upheld by the Vologda Regional Court on 17 November 1999.
29. The State authorities conduct regular inspections of air quality in the city. Pollution is monitored by four stationary posts of the State Agency for Hydrometeorology, including one (post no. 1) situated at 4 Zhukov Street, 300 metres from the applicant's home. The emission levels of thirteen hazardous substances are monitored by the authorities (nitrogen dioxide, ammonia, carbon oxide, dust, hydrogen sulphide, carbon disulphide, phenol, formaldehyde, sulphur dioxide, nitric oxide, manganese, benzopyrene and lead). Four stationary posts of the State Agency for Hydrometeorology monitor emissions of only the first eight of the above substances; additionally, post no. 1 monitors emissions of sulphur dioxide, nitric oxide, lead, benzopyrene and manganese, and post no. 2 monitors emissions of benzopyrene, manganese and sulphur dioxide. In addition, the State Agency for Sanitary Control conducts regular air tests at distances of one, two, five, seven, and nineteen kilometres from the steel plant. Finally, Severstal PLC has its own monitoring system, which evaluates emissions from every separate industrial facility at the plant.
30. It appears that the basic data on air pollution, whether collected by the State monitoring posts or Severstal, are not publicly available. Both parties produced a number of official documents containing generalised information on industrial pollution in the town. The relevant parts of these documents are summarised in the following paragraphs and in the appendix to this judgment.
31. The applicant claimed that the concentration of certain toxic substances in the air near her home constantly exceeded and continues to exceed the safe levels established by Russian legislation. Thus, in the period from 1990 to 1999 the average annual concentration of dust in the air in the Severstal plant's sanitary security zone was 1.6 to 1.9 times higher than the MPL, the concentration of carbon disulphide was 1.4 to 4 times higher and the concentration of formaldehyde was 2 to 4.7 times higher (data reported by the Cherepovets Centre for Sanitary Control). The Cherepovets State Agency for Hydrometeorology reported that the level of atmospheric pollution within the zone during the period from 1997 to 2001 was rated as “high” or “very high”. The State Agency for Hydrometeorology confirmed that an excessive concentration of other hazardous substances, such as hydrogen sulphide and ammonia, was also registered during this period.
32. As regards the year 2002, the applicant submitted a report prepared by the Northern Regional Office of the State Agency for Hydrometeorology and Environmental Monitoring. This report stated, inter alia, that in 2002 the annual average concentration of dust near the applicant's home was 1.9 times higher than the MPL, and that the short-term peak concentration of dust was twice as high as the MPL. In July an over-concentration of carbon oxide was registered near the applicant's home: the short-term peak concentration of this element was 7 times higher than the MPL. The agency also reported that the average annual concentration of formaldehyde in the town was 3 times higher than the MPL. The average annual concentration of carbon disulphide near the applicant's home was 2.9 times higher than the MPL. The short-term peak concentration of phenols was 4 times higher than the MPL, and that of hydrogen sulphide was 4.5 times higher.
33. The applicant also submitted information published on the website of the Northern Department of the State Agency for Hydrometeorology. This source reported that in April 2004 the concentration of formaldehyde in Cherepovets exceeded the norms. In March 2004 the monthly average concentration of formaldehyde was 5 times higher than the MPL.
34. The applicant further produced a study paper entitled “Economic effectiveness of public health measures at Severstal PLC”, drawn up by the Centre for the Preparation and Implementation of International Projects on Technical Assistance, a public body established in 1993 under the supervision of the then State Committee for Environmental Protection. The study was commissioned by the Cherepovets municipality in order to obtain an analysis of the cost-effectiveness of various measures suggested in the 1996 federal programme. The expert team had access to data on fifty-eight polluting elements contained in industrial emissions from the Severstal plant. The experts singled out the thirteen most toxic elements and, using a special dispersion dissemination model, established how these elements affected the morbidity rate in the city. The experts then calculated how the implementation of one or another measure from the federal programme would reduce the concentration of these pollutants, and, consequently, to what extent the morbidity rate would decrease.
35. In April 2004 the applicant informed the Court that further information on atmospheric pollution could be requested from the respondent Government. In particular, the applicant sought to obtain: (a) baseline emissions data for the Severstal plant, including data on the physical parameters of the stacks and the volume of chemicals emitted annually by each process at the Severstal facility; (b) dispersion modelling data for estimating the ambient air concentration of thirteen toxic pollutants at each of the x and y coordinate locations on the Cherepovets city grid, based on the above emissions data. The applicant indicated that this information might be obtained from the Centre for the Preparation and Implementation of International Projects on Technical Assistance (see paragraph 34 above). The applicant also sought data on the ambient air quality in Cherepovets, obtained between 1998 and 1999 as part of the Project on Environmental Management in the Russian Federation, implemented with financial support from the World Bank. In May 2004 the Court invited the respondent Government to submit the information sought by the applicant.
36. In June 2004 the Government submitted a report entitled “The environmental situation in Cherepovets and its correlation with the activity of [Severstal PLC] during the period until 2004”, prepared by the Cherepovets municipality.
37. According to the report, the environmental situation in Cherepovets has improved in recent years: thus, gross emissions of pollutants in the town were reduced from 370.5 thousand tonnes in 1999 to 346.7 thousand tonnes in 2003 (by 6.4%). Overall emissions from the Severstal PLC facilities were reduced during this period from 355.3 to 333.2 thousand tonnes (namely by 5.7%), and the proportion of unsatisfactory testing of atmospheric air at stationary posts fell from 32.7% to 26% in 2003.
38. The report further stated that, according to data received from four stationary posts of the State Agency for Hydrometeorology, a substantial decrease in the concentration of certain hazardous substances was recorded in the period from 1999 to 2003:
(i) dust: from 0.2 mg/m³ (1.28 MPL) to 0.11 mg/m³ (0.66 MPL);
(ii) hydrogen sulphide: from 0.016 mg/m³ (3.2 MPL) to 0.006 mg/m³ (1.2 MPL);
(iii) phenols: from 0.018 mg/m³ (0.6 MPL) to 0.014 mg/m³ (0.47 MPL).
39. According to the report, pollution in the vicinity of the applicant's home was not necessarily higher than in other districts of the town. Thus, the concentration of nitrogen dioxide at post no. 1 was 0.025 mg/m³ in 2003, whereas it was 0.034 mg/m³ at post no. 2, 0.025 mg/m³ at post no. 3 and 0.029 mg/m³ at post no. 4. The average daily concentration of ammonia registered at post no. 1 was 0.016 mg/m³, 0.017 mg/m³ at post no. 2, 0.005 mg/m³ at post no. 3 and 0.0082 mg/m³ at post no. 4. The phenol level registered at post no. 1 was 0.014 mg/m³, 0.015 mg/m³ at post no. 2 and 0.0012 mg/m³ at post no. 4. Finally, the concentration of formaldehyde at post no. 1 was 0.019 mg/m³, whereas it was 0.012 mg/m³ at post no. 2, 0.018 mg/m³ at post no. 3 and 0.02 mg/m³ at post no. 4.
40. The report stated that the average annual concentrations of nitric oxide, lead, manganese, nitrogen dioxide, ammonia, hydrogen sulphide, phenol, carbon oxide and carbon disulphide did not exceed the MPLs. Excessive annual concentrations were recorded only with respect to dust, formaldehyde and benzopyrene. Over the period from 1999 to 2003, a certain improvement in the quality of air was registered under the steel plant's “pollution plume” in the residential area of the town. Thus, the proportion of unsatisfactory tests was 13.2% in 1999, whereas in 2003 it had fallen to 12.7%. The report emphasised that the proportion of unsatisfactory air tests was decreasing: from 18.4% to 14.2%, as measured at a distance of 1,000 metres from the plant; and from 14.05% to 12.8% at a distance of 3,000 metres. The trend was also positive in respect of certain specific substances: within 1,000 metres the proportion of unsatisfactory tests for nitrogen dioxide decreased from 50% in 1999 to 47% in 2003; for hydrogen sulphide they fell from 75% in 1999 to 20% in 2003; and for phenol they decreased from 52% in 1999 to 38% in 2003.
41. The report contained generalised data on average pollution levels for the years 1999 to 2003, collected from four stationary posts of the State Agency for Hydrometeorology. The Government also produced data collected from monitoring post no. 1, reflecting a reduction in the average annual and maximum pollution levels compared to the situation which existed ten to twenty years ago. The most important data contained in these reports are summarised in the appendix to this judgment.
42. The Government also produced extracts from a report by the chief sanitary inspector for the Vologda region, which was prepared in June 2004 for the purpose of defining new boundaries for the sanitary security zone. According to the report, Severstal was still responsible in 2004 for 94 to 97% of overall air pollution in the city. The report stated that the emissions from Severstal contained eighty different pollutant substances. Despite a significant reduction in pollution in recent years, the maximum concentrations of “five priority pollutants” (dust containing more than 20% of silicon dioxide, ferroalloy dust, nitrogen dioxide, naphthalene and hydrogen sulphide) still exceeded safety standards at distances of one to five kilometres from the plant. The report further indicated that “more than 150,000 people live[d] in a zone where the acceptable level of risk [was] exceeded”. It proposed a number of measures which should reduce the concentration of naphthalene and ferroalloys to safe levels by 2010, and stated that the concentration of all toxic substances originating from the Severstal facilities in the bottom layer of the atmosphere should be below the maximum permissible limits by 2015.
43. Finally, the Government submitted that, should the Court need the documents sought by the applicant and referred to by her representatives as a source of primary information on air pollution, “the authorities of the Russian Federation propose that this document be requested from Mr Koroteyev [one of the applicant's representatives]”.
44. Since 1982 Ms Fadeyeva has been supervised by the clinic at Cherepovets Hospital no. 2. According to the Government, the applicant's medical history in this clinic does not link the deterioration in her health to adverse environmental conditions at her place of residence.
45. In 2001 a medical team from the clinic carried out regular medical check-ups on the staff at the applicant's place of work. As a result of these examinations, the doctors detected indications of an occupational illness in five workers, including the applicant. In 2002 the diagnosis was confirmed: a medical report drawn up by the Hospital of the North-West Scientific Centre for Hygiene and Public Health in St Petersburg on 30 May 2002 stated that she suffered from various illnesses of the nervous system, namely occupational progressive/motor-sensory neuropathy of the upper extremities with paralysis of both middle nerves at the level of the wrist channel (primary diagnosis), osteochondrosis of the spinal vertebrae, deforming arthrosis of the knee joints, moderate myelin sheath degeneration, chronic gastroduodenitis, hypermetropia first grade (eyes) and presbyopia (associated diagnoses). Whilst the causes of these illnesses were not expressly indicated in the report, the doctors stated that they would be exacerbated by “working in conditions of vibration, toxic pollution and an unfavourable climate”.
46. In 2004 the applicant submitted a report entitled “Human health risk assessment of pollutant levels in the vicinity of the Severstal facility in Cherepovets”. This report, commissioned on behalf of the applicant, was prepared by Dr Mark Chernaik. Dr Chernaik concluded that he would expect the population residing within the zone to suffer from above-average incidences of odour annoyance, respiratory infections, irritation of the nose, coughs and headaches, thyroid abnormalities, cancer of the nose and respiratory tract, chronic irritation of the eyes, nose and throat, and adverse impacts on neurobehavioral, neurological, cardiovascular and reproductive functions. The report concluded as follows:
“The toxic pollutants found in excessive levels within the sanitary security zone in Cherepovets are all gaseous pollutants specifically produced by iron and steel manufacturing plants (in particular, by process units involved in metallurgical coke production), but not usually by other industrial facilities.
It is therefore reasonable to conclude that inadequately controlled emissions from the Severstal facility are a primary cause of the excess incidences of the above-mentioned adverse health conditions of persons residing within the sanitary security zone in Cherepovets.”
47. The applicant also submitted an information note from the environmental department of the Cherepovets municipality, which contained recommendations to Cherepovets residents on how to act in circumstances of “unfavourable weather conditions”, namely when the wind carried emissions from the Severstal plant towards the city. The note recommended that people should stay at home and restrict their physical activity. It also contained dietary suggestions. The primary reason for these restrictive recommendations was emissions from the Severstal plant. The applicant also referred to a letter dated 20 September 2001 from the Cherepovets Centre for Sanitary Control, stating that when such “unfavourable weather conditions” occurred, admissions of children to local health clinics increased by 1.3.
48. Article 42 of the Constitution of the Russian Federation reads as follows:
“Everyone has the right to a favourable environment, to reliable information about its state, and to compensation for damage caused to his health or property by ecological offences.”
49. Pursuant to the Federal Law of 30 March 1999 on sanitary safety (О санитарно-эпидемологическом благополучии населения), the Federal Sanitary Service establishes State standards for protecting public health from environmental nuisances. In particular, these standards are applied in assessing air quality in cities: atmospheric pollution is assessed in comparison to the maximum permissible limits (MPLs), the measure which defines the concentration of various toxic substances in the air. It follows from Regulation 2.1 of the Sanitary Regulations of 17 May 2001 and section 1 of the Atmospheric Protection Act 1999 that, if the MPLs are not exceeded, the air is safe for the health and well-being of the population living in the relevant area. Regulation 2.2 of the Sanitary Regulations provides that, for all categories of toxic elements, concentrations should not exceed 1 MPL in residential areas and 0.8 MPL in recreational zones.
50. Pursuant to the Atmospheric Protection Act of 4 May 1999 (Об охране атмосферного воздуха), the Federal Environmental Agency establishes environmental standards for various types of polluting sources (cars, farms, industrial plants, etc.). These general standards are applied to specific undertakings by the regional environmental agencies. In principle, an industrial plant's operation should not result in pollution which exceeds the MPLs (section 16 of the Act). However, for the sake of a region's economic development, a regional environmental agency may issue a temporary permit authorising an undertaking to exceed these norms (sections 1 and 12 of the Act). The permit should contain a schedule for the phased reduction of toxic emissions to safe levels.
51. Every polluting undertaking must create a “sanitary security zone” around its premises – a buffer area separating sources of pollution from the residential areas of a city (Regulations 3.5 and 3.6 of the 1996 Sanitary Regulations, enacted by Decree no. 41 of the Federal Sanitary Service of 31 October 1996; similar provisions were contained in the 2000, 2001 and 2003 Sanitary Regulations, which replaced those of 1996). The levels of pollution in this buffer area may exceed the MPLs.
52. The minimum width of the zone is defined by the sanitary regulations for different categories of undertaking. Under the terms of the 1996 Sanitary Regulations, the sanitary security zone around a steel plant the size of Severstal should be 2,000 metres. Under the Sanitary Regulations of 1 October 2000, the width of the sanitary security zone for a metallurgical undertaking of this size should be at least 1,000 metres. In certain cases the Federal Sanitary Service may enlarge the zone (for example, where the concentration of toxic substances in the air beyond the zone exceeds the MPLs). Subsequent sanitary regulations (enacted on 17 May 2001 and 10 April 2003) confirmed these requirements.
53. Regulation 3.6 of the 1989 City Planning Regulations provides that an undertaking must take all necessary measures in order to set up (обустроить) its sanitary security zone in accordance with the law, with a view to limiting pollution.
54. Regulation 3.8 of the 1989 City Planning Regulations provides that no housing should be situated within the sanitary security zone. This provision was later incorporated into the Town Planning Code (Градостроительный Кодекс) of 1998 (Article 43) and the Sanitary Regulations of 17 May 2001 and 10 April 2003. According to Regulation 3.3.3 of the 2001 Sanitary Regulations, a project to create a zone may include, as a high-priority objective, resettlement of the zone's residents. However, there is no direct requirement to resettle the residents of the sanitary security zone around an undertaking that is already operating.
55. Article 10 § 5 of the Town Planning Code of 1998 provides as follows:
“In cases where State or public interests require that economic or other activities be conducted in environmentally unfavourable areas, the temporary residence of the population in these areas is permitted, subject to the application of a special town planning regime ...”
56. It follows from a judgment of the North-Caucasus Circuit Federal Commercial Court (decision no. Ф08-1540/2003 of 3 June 2003) that the authorities may force an undertaking which has failed to create a sanitary security zone around its premises in accordance with the law to cease operating.
57. The applicant produced an extract from the decision of the Supreme Court of the Russian Federation in Ivashchenko v. the Krasnoyarsk Railways (published in “Overview of the case-law of the Supreme Court”, Бюллетень Верховного Суда РФ, № 9, of 15 July 1998, § 22). In that case the plaintiff had claimed immediate resettlement from a decrepit house. The lower court had rejected the plaintiff's action, indicating that she could claim resettlement following the order of priority (in other words, she should be put on the waiting list). The Supreme Court quashed this judgment, stating as follows:
“The [plaintiff's] home is not only dilapidated ..., but is also situated within 30 metres of a railway, within the latter's sanitary security zone, which is contrary to the sanitary regulations (this zone is 100 metres wide, and no residential premises should be located within it).”
The Supreme Court remitted the case to the first-instance court, ordering it to designate specific housing which should be provided to the plaintiff as a replacement for her previous dwelling.
58. In another case, concerning the resettlement of Ms Ledyayeva, another resident of the sanitary security zone around the Severstal facilities, the Presidium of the Vologda Regional Court, in its decision of 11 February 2002, stated, inter alia:
“The lower court did not assess whether the measures taken in order to resettle the residents of the sanitary security zone are adequate in comparison to the degree of threat that the plaintiff encounters. As a result, the court did not establish whether providing [Ms Ledyayeva] with new housing under the provisions of the housing legislation by placing her on the waiting list can be regarded as giving her a real chance to live in an environment that is favourable for her life and health.”
The court also expressed doubts as to whether the State should be held responsible for the resettlement of the zone's residents.
59. During the Soviet era, the majority of housing in Russia belonged to various public bodies or State-owned companies. The population lived in these dwellings as life-long tenants. In the 1990s extensive privatisation programmes were carried out. In certain cases, property that had not been privatised was transferred to local authorities.
60. To date, a certain part of the Russian population continues to live as tenants in local council houses on account of the related advantages. In particular, council house tenants are not required to pay property taxes, the amount of rent they pay is substantially lower than the market rate and they have full rights to use and control the property. Certain persons are entitled to claim new housing from the local authorities, provided that they satisfy the conditions established by law.
61. From a historical standpoint, the right to claim new housing was one of the basic socio-economic rights enshrined in Soviet legislation. Under the Housing Code of the RSFSR of 24 June 1983, which was still valid in Russia at the time of the relevant events, every tenant whose living conditions did not correspond to the required standards was eligible to be placed on a local authority waiting list in order to obtain new council housing. The waiting list establishes the priority order in which housing is attributed once it is available.
62. However, being on a waiting list does not entitle the person concerned to claim any specific conditions or time-frame from the State for obtaining new housing. Certain categories of persons, such as judges, policemen or handicapped persons are entitled to be placed on a special “priority waiting list”. However, it appears that Russian legislation does not guarantee a right to be placed on this special list solely on the ground of serious ecological threats.
63. Since Soviet times, hundreds of thousands of Russians have been placed on waiting lists, which become longer each year on account of a lack of resources to build new council housing. At present, the fact of being on a waiting list represents an acceptance by the State of its intention to provide new housing when resources become available. The applicant submits, for example, that the person who is first on the waiting list in her municipality has been waiting for new council housing since 1968. She herself became no. 6,820 on that list in 1999.
VIOLATED_ARTICLES: 8


ITEMID: 001-98300
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BOZOĞLU (AKARSU) AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicants, Mrs Cemile Bozoğlu (Akarsu), Mrs Hepgül Korucu (Akarsu), Mr Hamit Akarsu, Mr Mahmut Akarsu, Mr Aziz Akarsu, Mr Veysel Akarsu, Mr Alem Akarsu and Mrs Leyla Demir (Akarsu), are Turkish nationals who were born in 1950, 1942, 1953, 1948, 1946, 1937, 1933 and 1934 respectively and live in Erzurum. They were represented before the Court by Mr A.F. Ataman and Mrs H. Ataman, lawyers practising in Erzurum. The Turkish Government (“the Government”) were represented by their Agent.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants are the owners of a plot of land of 40,000 square metres (plot no. 227) in Nenehatun village, Erzurum. The plot in question is situated in the vicinity of military barracks.
4. On an unspecified date, the military forces enclosed 23,600 square metres of plot no. 227 with a wire fence.
5. On 18 May 1998 the applicants brought an action (case no. 1998/184) in the Third Chamber of the Erzurum Civil Court of First Instance against the Ministry of National Defence (“the Ministry”) and requested compensation for de facto expropriation of 23,600 square metres of their plot. They alleged that the Ministry had forbidden them access to their land, claiming that it was a military security zone.
6. On 11 June 1998 the Treasury and the Ministry brought a cross-action (case no. 1998/234) with the First Chamber of the Erzurum Civil Court of First Instance and requested to be registered as the owners of plot no. 227, claiming that the plot in question was located in a restricted military and security zone and that the military forces had control over it pursuant to Articles 7, 9 and 21 of Law no. 2565 (Law on the Restricted Military Zones and Security Zones).
7. On an unspecified date the Third Chamber of the Erzurum Civil Court of First Instance decided to await the outcome of the proceedings before the First Chamber.
8. On 28 October 1998 a judge from the First Chamber of the Erzurum Civil Court of First Instance, together with representatives of the parties and experts, conducted a survey of the applicants’ land. The local experts stated that the land had been owned by Musa Akarsu and that the applicants had inherited it from him. They noted that the military brigade had occupied half the land and had fenced it in 1990-1991, during the first Gulf War. The applicants had been denied access to half their land by the military authorities but had continued to cultivate the other half for almost eight years. The wire fence had been removed some five or six months before.
9. On 17 December 1998 the First Chamber of the Erzurum Civil Court of First Instance dismissed the case by the Treasury and the Ministry. In its judgment the first-instance court stated the following:
“...
It has been understood that plot no. 227 comprises 40,000 square metres and that the owner of the plot was Musa Akarsu, the ancestor of the defendants. He used the plot until his death in 1998 and since then the defendants have been using it. It has also been understood that the military command enclosed 10,300 square metres of the plot during the eighties and that the fence was removed in the summer of 1998.
The witnesses stated that the plot had been used by the ancestor of the defendants prior to the Gulf War and that during the Gulf War the military command had moved the fence and had taken actual possession of half the plot.
In a letter dated 10 November 1998 the Erzurum Construction and Property Directorate of the Ministry informed the court that the plot was outside the military zone.
In view of the evidence gathered, the court concludes that the disputed plot is outside the military zone and that the defendants are in actual possession of it. The administration has failed to substantiate its allegation and therefore the case is dismissed.
...”
10. On 14 June 1999 the Court of Cassation upheld the judgment of 17 December 1998.
11. In a letter of 22 December 1999 the Commander of the 9th Army Corps informed the Third Chamber of the Erzurum Civil Court of First Instance that the land in question, namely 23,600 square metres of land forming part of plot no. 227, was within the military security zone. However, under Law no. 2565 and Law no. 5949, owners of land within military security zones were free to reside and carry out agricultural activities. According to this letter, owners of such land are required to seek permission from the authorities only for construction, timber felling or sale of their property to non-Turkish citizens.
12. On 30 December 1999 the Third Chamber of the Erzurum Civil Court of First Instance awarded the plaintiffs in case no. 1998/184 a total of 6,354,117,600 Turkish liras (TRL) for the value of the land, in accordance with the expert report submitted to it. The first-instance court ordered the annulment of the applicants’ title and registration of the land with the title of the defendant. It observed that the plaintiffs’ ancestor had been the owner of plot. 227 and that the Ministry had limited their rights over the plot, which had resulted in the de facto expropriation of the land. The court further considered that the control of the use of property by the administration contradicted the legal principles governing the right to property.
13. On an unspecified date, the Treasury and the Ministry appealed.
14. On 5 June 2000 the Court of Cassation quashed the judgment of 30 December 1999. In its decision, the Court of Cassation stated the following:
“...
1- There is no power of attorney attesting that Refika Akarsu and Mahmut Akarsu had given authority to the plaintiffs’ representative. Therefore, the first-instance court should have rendered a decision pursuant to Article 67 of the Code on Civil Procedure in respect of these two plaintiffs.
2- According to the letter of the 9th Army Corps Command dated 22 December 1999, the land in dispute is located within the military security zone. As mentioned in this letter, there is no control of the use of the property as rural land (arazi). The owner of the land can use it subject to the authorisation of the Army Corps Command. Since the plot in question is rural land [as opposed to urban land (arsa)], there is no de facto expropriation and, therefore, the plaintiffs cannot request compensation.
...”
15. On an unspecified date the applicants requested rectification of the Court of Cassation’s decision.
16. On 6 October 2000 the Court of Cassation dismissed their request.
17. On 30 March 2001 the first-instance court abided by the Court of Cassation’s decision and decided to discontinue the proceedings in so far as they had been brought by Refika Akarsu and Mahmut Akarsu pursuant to Article 67 of the Code on Civil Procedure. It further dismissed the applicants’ claim for the value of the land in accordance with the Court of Cassation’s reasoning.
18. On 30 October 2001 the Court of Cassation upheld the judgment of 30 March 2001.
19. On 8 March 2002 the Court of Cassation once again dismissed the applicants’ request for rectification of the decision.
20. On 4 December 2007 the authorities carried out an inspection of the applicants’ land (plot no. 227). The inspection report, prepared by a real estate expert, stated that the premises had been visited in the company of the village mayor and that it had been observed that the plot in question had stayed outside the fence. Furthermore, the land was not occupied and there was no obstacle to cultivation. Yet it had been noted that, according to some witnesses, the land was only used to grow grass (for animals) and not cultivated.
21. The relevant page of the log book kept at the Erzurum land registry office indicates that Musa Akarsu, the applicants’ ancestor, had been the owner of the land in dispute.
22. A description of the relevant domestic law and practice can be found in Tiryakioğlu v. Turkey (dec.), no. 24404/02, 13 May 2008.
23. It appears from the established practice of the Court of Cassation that when land is located within a restricted military zone the owners of the land in question cannot claim compensation for de facto expropriation unless the administration permanently denies access to that land with the intention of owning it (see, in particular, decision no. 2002/376 on file no. 2002/4-382 of the Grand Chamber of the Court of Cassation). Furthermore, such restriction is not considered de facto expropriation. Accordingly, the litigants cannot claim compensation for the value of their land. However, they may obtain compensation for temporary denial of access to land or damage resulting from restrictions imposed on the use of their land.
24. Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review.
...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”