ITEMID: 001-69374
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF STORCK v. GERMANY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (res iudicata);Violation of Art. 5-1 (placement in private clinic from 1977 to 1979);No separate issue under Art. 5-4 and 5-5;No violation of Art. 5 (stay in private clinic in 1981);Violation of Art. 8 (placement in private clinic from 1977 to 1979);No violation of Art. 8 (stay in private clinic in 1981 and treatment in university clinic);No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Ireneu Cabral Barreto
TEXT: 10. The applicant was born on 30 August 1958 and lives in Niederselters (Germany).
11. The case concerns the applicant’s repeated placement in a psychiatric institution, her stay in a hospital, her medical treatment and her various compensation claims.
12. The applicant is currently 100% disabled and receives an invalidity pension. She claims to be constantly suffering from significant pain, especially in her arms and legs and her vertebral column. She has spent almost twenty years of her life in different psychiatric institutions and other hospitals.
13. From January 1974 to May 1974 (at which time the applicant was 15 years old), and from October 1974 to January 1975 (when she was 16 years old), the applicant was placed in the children and young people’s psychiatric department at Frankfurt am Main University Clinic for seven months at her father’s request.
14. From 29 July 1977 (when she was 18 years old) to 5 April 1979, she was placed in a locked ward (geschlossene Station) at a private psychiatric institution, the clinic of Dr Heines in Bremen, at her father’s request. There had been serious conflicts between the applicant and her parents, following which her father believed her to be suffering from a psychosis. The applicant’s mother had suffered from a paranoid-hallucinatory psychosis.
15. The applicant – who by that time had attained the age of majority – had not been placed under guardianship, had never signed a declaration that she had consented to her placement in the institution, and there had been no judicial decision authorising her detention in a psychiatric hospital. The private clinic of Dr Heines was not entitled to detain patients who were to be kept in accordance with the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 below). On 4 March 1979 the police brought the applicant back to the clinic by force after she had attempted to escape.
16. During her forced stay at that clinic, the applicant was unable to maintain regular social contact with persons outside the clinic. When she was three years old, she had fallen ill with poliomyelitis, and following her medical treatment at the clinic she developed post-poliomyelitis syndrome.
17. From 5 April 1979 to 21 May 1980, the applicant was placed in a psychiatric hospital in Gießen. She claimed that she had by chance been saved from having to stay there any longer by a patient in the hospital who had given her accommodation.
18. From 21 January to 20 April 1981, she again received medical treatment at Dr Heines’s clinic, having at that time lost her ability to speak and, according to the doctors, showing signs of autism.
19. On 7 May 1991 the applicant received medical treatment at Dr Horst Schmidt’s clinic for neurology and psychiatry.
20. From 3 September 1991 to 28 July 1992, the applicant received medical treatment (stationäre Behandlung) at Mainz University Clinic for Psychosomatic Medicine and Psychotherapy, a public-law institution, where she regained her ability to speak.
21. From 22 October to 21 December 1992, the applicant was treated in the orthopaedic department of a clinic in Frankfurt am Main and, from 4 February to 18 March 1993, she was treated in the orthopaedic department of a clinic in Isny.
22. On 18 April 1994 Dr Lempp, a professor of paedopsychiatry at Tübingen University and a member of the federal government’s investigating committee, prepared an expert report at the applicant’s request. He indicated that the applicant had “at no point in time suffered from a schizophrenia-type psychosis” (“zu keinem Zeitpunkt lag eine Psychose aus dem schizophrenen Formenkreis vor”) and that her intemperate behaviour had resulted from conflicts with her family.
23. On 6 October 1999 Dr Köttgen, a psychiatrist, submitted a second expert opinion, again at the applicant’s request. Confirming the findings of Dr Lempp, she considered that the applicant had never suffered from an early onset of schizophrenia, but that she had been in the midst of a puberty-related identity crisis (Pubertätskrise) at the relevant time. Because of the wrong diagnosis given at that time, she had for many years received medication already known to have adverse side effects. As the applicant had had poliomyelitis, she would have had to be treated with the utmost caution. In that connection, the situation at Dr Heines’s clinic seemed to have been particularly serious: deprivation of liberty without a judicial decision, absence of a legal basis for the detention, excessive dosage of medication in order to question the applicant, and methods belonging to “black pedagogy” (schwarze Pädagogik).
24. On 12 February 1997 the applicant, on the basis of the expert report by Dr Lempp, lodged an application for legal aid and an action for damages against Dr Heines’s clinic in the Bremen Regional Court. She claimed, firstly, that her detention from 29 July 1977 to 5 April 1979 and from 21 January 1981 to 20 April 1981 had been illegal under German law. Furthermore, the medical treatment she had received had been contraindicated because of her poliomyelitis. She argued that her forcible detention and the medical treatment she had received had ruined both her physical and mental health.
25. It was only at that time, on 24 February 1997, that the applicant was given access to her medical file from Dr Heines’s clinic, despite her previous and repeated requests.
26. On 9 July 1998 the Bremen Regional Court, after a hearing, allowed the applicant’s action for damages, as her detention had been illegal under German law.
27. The Regional Court found that the applicant, who had attained the age of majority, had not been placed under guardianship, and her detention had not been ordered by a district court as provided by the Act of 16 October 1962 of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 below).
28. According to the Regional Court, such a detention would only have been legal if the applicant had given her consent, which had not been the case. Firstly, she had not signed the admission form filled in on the day of her initial admission to the clinic. Secondly, she had not given her implicit consent (konkludente Einwilligung) to her placement and treatment at the clinic. The mere fact that on the day of her initial admission she had come to the clinic, accompanied by her father, did not suffice to establish valid consent (wirksame Einwilligung). According to the private clinic’s submissions, it could not be ruled out that, at that time, the applicant had not been in a position to realise the importance and the consequences of her detention (“es ist ... vielmehr nicht auszuschließen, daß die Klägerin zum damaligen Zeitpunkt die Bedeutung und Tragweite der Unterbringung nicht erkennen konnte”). This was due, in particular, to the fact that the applicant had been given very strong medication from the time of her arrival.
29. On that point, the Regional Court concluded as follows:
“Even assuming the claimant’s initial consent, it would have lapsed as a result of her undisputed attempts to escape and the need to shackle her. From these times at the latest, which have not been specified any further by the defendant, it would have been necessary to obtain a court order.”
(“selbst wenn man doch von einer anfänglichen Einwilligung der Klägerin ausgehen wollte, wäre diese durch die unstreitig erfolgten Ausbruchsversuche der Klägerin und die erforderlich gewordenen Fesselungen hinfällig geworden. Spätestens zu diesen, von der Beklagten nicht näher vorgetragenen Zeitpunkten, wäre die Einholung einer gerichtlichen Anordnung erforderlich gewesen.”)
30. The Regional Court found that, for the second period in which the applicant was placed in the psychiatric hospital (from 21 January to 20 April 1981), she had likewise not consented to her confinement, as she had shown signs of autism and had suffered from temporary loss of speech. Therefore, a court order would also have been necessary for this period.
31. As the applicant was therefore entitled to damages in any event, the Regional Court did not examine the question whether her medical treatment had been adequate or not.
32. The Regional Court also found that the applicant’s compensation claim was not time-barred. Under Article 852 § 1 of the Civil Code (see paragraph 63 below), the limitation period of three years for tort claims (unerlaubte Handlung) started running only when the victim had knowledge of the damage and of the person responsible for it. The court observed that a victim could only be perceived to have that knowledge when he was in a position to bring an action for damages that had sufficient prospects of success. Only from then on could he reasonably be expected to bring that action (“daß ihm die Klage zuzumuten ist”), regard being had in addition to his state of health. The court referred to the case-law of the Federal Court of Justice (Bundesgerichtshof) on the subject.
33. Even if the applicant might already have been conscious of the fact that she had been placed in the clinic against her will, it was established that during her long stays in the psychiatric hospital she had been forced to take very strong medication. When she had been released from the clinic, she had still received medical treatment, and she had always been regarded as mentally ill. The applicant had also suffered from serious physical disorders (schwere körperliche Ausfallerscheinungen) and had, in particular, subsequently lost the ability to speak for more than eleven years (from 1980 to 1991/92). It was not until the end of this medical treatment and after the submission of Dr Lempp’s expert report on 18 April 1994 – in which it had been concluded for the first time that she had never suffered from schizophrenia – that she had become sufficiently aware of her situation, of her possible right to damages, and of the possibility of bringing an action in court. Her application for legal aid, lodged on 12 February 1997, had interrupted the three-year limitation period. Her claim was therefore not time-barred.
34. On 22 December 2000 the Bremen Court of Appeal, following an appeal by the clinic, quashed the judgment of the Bremen Regional Court and dismissed the applicant’s action.
35. The Court of Appeal disagreed with the Bremen Regional Court’s finding that the applicant had illegally been deprived of her liberty during her stay and treatment at the clinic. It noted that the Regional Court had not taken evidence on the issue in dispute. It found that the applicant had conceded in the appeal proceedings that she had to a certain extent voluntarily (“bedingt freiwillig”) consented to her stay in the clinic in 1981.
36. The Court of Appeal left open the question whether the applicant had a compensation claim in tort (Schadensersatzanspruch aus unerlaubter Handlung) on account of her unlawful deprivation of liberty or the damage caused to her body by her medical treatment. In any event, such a claim would be time-barred under Article 852 § 1 of the Civil Code, which provided for a three-year time-limit. The Court of Appeal considered that the applicant had always been conscious of the fact that she had purportedly been detained against her will, independently of the expert opinion submitted by Dr Lempp. She had also been aware that she had allegedly been forced to take antipsychotic medication. Therefore, she had also been in a position to bring an action in court, despite her physical problems. According to the case-law of the Federal Court of Justice, it sufficed to be aware of having suffered damage, without knowledge of the entirety of the damage being necessary.
37. Furthermore, the Court of Appeal found that the applicant was likewise not entitled to bring a compensation claim on a contractual basis (Schadensersatzansprüche aus Vertrag) following her medical treatment. According to the Court of Appeal, the applicant had not sufficiently proved that she had expressly objected to her stay in the psychiatric hospital. Moreover, a contract between the applicant and the clinic concerning the applicant’s medical treatment could also have been concluded implicitly (konkludenter Vertrag). It could not be assumed that this contract had been terminated by each of the applicant’s attempts to escape, which were attributable to her illness (“Es kann nicht angenommen werden, daß dieser konkludent geschlossene Vertrag durch jeden krankheitsbedingten Fluchtversuch beendet worden ist”). In fact, when the clinic prevented the applicant from escaping, it had complied with its duty of care (Fürsorgepflicht). According to the expert opinion of Dr Rudolf, a psychiatrist appointed by the Court of Appeal, the applicant had been seriously ill at that time and in need of medical treatment.
38. Irrespective of this, the Court of Appeal pointed out that the clinic had disputed the applicant’s assertion that she had been detained against her will, so that it remained uncertain whether this assertion was true (“so daß offenbleibt, ob dieser Vortrag überhaupt zutrifft”).
39. Even if a contract concluded between the clinic and the applicant, who had at that time attained the age of majority, could not be presumed, there was in any event a contract between the clinic and the applicant’s father, concluded implicitly for the applicant’s benefit. This contract had run at least from 29 July 1977 to January 1978, when attempts had been made to place her in a different psychiatric institution.
40. Furthermore, the Court of Appeal did not consider that the applicant’s treatment had been erroneous, or that the dosage of her medication had been too high. It relied in this connection on the conclusive expert report by Dr Rudolf. In assessing the opinion expressed by the expert, who had submitted his report both in writing and orally during the hearing, the court thoroughly considered the partly different conclusions reached in the expert reports by Dr Lempp and Dr Köttgen, which had been prepared at the applicant’s request.
41. The applicant also brought an action for damages in the Mainz Regional Court against the doctors who had treated her at Mainz University Clinic and against the clinic itself. She claimed that she had been treated for psychosomatic symptoms, although she had in fact been suffering from post-poliomyelitis syndrome. As the applicant’s medical file concerning her treatment at the clinic had temporarily disappeared, the clinic compiled a substitute file (Notakte) of some 100 pages, to which the applicant’s lawyer was subsequently granted access.
42. In a judgment delivered on 5 May 2000, the Mainz Regional Court dismissed the applicant’s claim. It found that, according to the expert report by Dr Ludolph, chief physician of the neurology clinic at Ulm University, there had not been sufficient evidence that her post-poliomyelitis syndrome and her contemporaneous mental ailments had not been treated correctly.
43. During the appeal proceedings subsequently brought by the applicant in the Koblenz Court of Appeal, the original of the applicant’s medical file was found, and the applicant’s lawyer was granted access to it.
44. In a judgment delivered on 30 October 2001, the Koblenz Court of Appeal confirmed its own judgment by default of 15 May 2001, given on account of the applicant’s failure to attend the hearing (Versäumnisurteil). It upheld the judgment of the Mainz Regional Court. Relying on the expert report by Dr Ludolph and another two reports submitted by orthopaedic experts, the court found in particular that the applicant had neither intentionally nor negligently been given the wrong medical treatment. It stated that the fact that one of the expert reports had been drawn up with the aid of doctors assisting the court-appointed expert did not preclude its use in court. The court-appointed expert had taken full responsibility for the report and had been examined in person in court. Moreover, even assuming that there had been an error in treatment, the applicant, on whom the burden of proof fell in the matter, had not shown that there was a causal link between the error in treatment and the damage to her health. In particular, as there had not in any event been a serious error in treatment, it was not necessary, in accordance with the settled case-law of the Federal Court of Justice, to apply a less strict rule on the burden of proof (Beweiserleichterungen).
45. The applicant lodged an appeal on points of law with the Federal Court of Justice against the Bremen Court of Appeal’s judgment of 22 December 2000 and against the judgments delivered by the Mainz Regional Court on 5 May 2000 and the Koblenz Court of Appeal on 30 October 2001.
46. On 15 January 2002 the Federal Court of Justice refused to admit the applicant’s appeal against the judgment of the Bremen Court of Appeal.
47. On 5 February 2002 the five judges of the Federal Court of Justice with jurisdiction to adjudicate on the applicant’s case refused to grant her legal aid for her appeal on points of law against the judgments of the Mainz and Koblenz courts. They argued that her appeal did not have sufficient prospects of success. On 25 March 2002 the same five judges of the Federal Court of Justice dismissed the applicant’s appeal against the judgments of the Mainz and Koblenz courts as inadmissible, the applicant not having submitted grounds for her appeal within the statutory time-limit.
48. On 2 February 2002 the applicant lodged a constitutional complaint against the judgments delivered by the Bremen Court of Appeal on 22 December 2000 and the Federal Court of Justice on 15 January 2002. Quoting the relevant provisions of the Basic Law, she claimed that her rights to liberty and human dignity and to a fair trial had been violated. She argued that her physical integrity had been infringed. She set out in detail the conditions of her stay in the various psychiatric institutions, the hearings in and the judgments delivered by the Bremen courts and explained why she considered that her rights had not been respected.
49. On 19 February 2002 the applicant lodged a constitutional complaint against the judgments delivered by the Mainz Regional Court on 5 May 2000 and the Koblenz Court of Appeal on 30 October 2001, and against the Federal Court of Justice’s decision of 5 February 2002 not to grant her legal aid. She claimed that her right to a fair trial had been violated and argued that she had been given the wrong medical treatment. She set out in detail how she had been treated at Mainz University Clinic, how the proceedings in the Mainz and Koblenz courts had progressed and why she considered that her constitutional rights had thereby been violated.
50. On 6 March 2002 the Federal Constitutional Court refused to allow the applicant’s constitutional complaints. The court argued that the complaints were not of fundamental importance (“keine grundsätzliche Bedeutung”), as the questions raised by them had already been resolved in its case-law. Furthermore, it was not the function of the Constitutional Court to deal with errors of law allegedly committed by the competent civil courts. The applicant’s complaints did not disclose a violation of her constitutional rights.
51. At the time of the applicant’s first placement in the clinic in Bremen, the rules governing the detention of individuals in a psychiatric hospital were notably laid down in the Act of the Land of Bremen of 16 October 1962 on the detention of mentally insane persons, mentally deficient persons and drug addicts (Gesetz über die Unterbringung von Geisteskranken, Geistesschwachen und Süchtigen).
52. Section 1(2) of the Act provided that it covered cases where confinement took place against the will or without the consent of the person concerned.
53. By section 2 of the Act, a detention was legal if the person concerned, by his conduct towards himself or others, posed a serious threat to public safety or order that could not be otherwise averted.
54. Under the terms of section 3 of the Act, the detention had to be ordered by the district court (Amtsgericht) on a written application by the competent administrative authority.
55. Section 7 of the Act provided that an application for the detention of an individual had to be accompanied by an expert report on the mental illness of the person concerned, submitted by the competent public health officer (Amtsarzt) or a specialist in mental illnesses. This report had to set out whether and to what extent the individual, by his conduct towards himself or others, posed a serious threat to public safety or order.
56. By section 8 of the Act, the district court was obliged to assign counsel to the person concerned if this was necessary for the protection of his interests.
57. Under section 9 of the Act, the court, in principle, had to question the person concerned before reaching its decision. A hearing in person was exceptionally considered unnecessary if it was likely to have negative effects on the state of health of the person concerned or if communication with him was not possible. In such cases, the court had to assign him a guardian ad litem (Verfahrenspfleger), if he had not already been placed under guardianship.
58. An appeal (sofortige Beschwerde) lay against the district court’s decision ordering the detention (section 10 of the Act). After a period of in principle one year, the district court had to decide whether the detention was to be continued. The continuation of the detention could only be ordered on the basis of a new medical expert report (sections 15 and 16 of the Act).
59. On 9 July 1979 a new Act of the Land of Bremen on measures of aid and protection in cases of mental disorders (Gesetz über Hilfen und Schutzmaßnahmen bei psychischen Krankheiten) came into force. It replaced the provisions of the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts of 1962 with a view to securing patients’ rights.
60. Section 34 of the Act, among other things, established a Board of Visitors for Psychiatric Hospitals. Without prior notice and at least once a year, it visits psychiatric hospitals in which persons are detained following a court order in accordance with section 17 of the Act. The task of the Board of Visitors is, in particular, to check whether the rights of the persons so detained are respected, and to give patients the opportunity to raise complaints. Several years after the Act came into force, the Board of Visitors extended its visits to all psychiatric hospitals, whether or not the hospitals detained patients pursuant to a court order. These visits, which went beyond the strict wording of section 34 of the said Act, were carried out with the consent of the institutions concerned.
61. Under the terms of section 30 of the Conduct of Trade Act (Gewerbeordnung), in its version in force since 16 February 1979, private hospitals and private psychiatric institutions needed a licence issued by the competent State authority. The licence could notably be refused if there were facts raising doubts as to the reliability of the institution’s management.
62. By Article 239 § 1 of the Criminal Code, a person who deprives another person of his liberty is to be punished by up to five years’ imprisonment or a fine. Paragraph 3 of the same Article provides that a person who deprives another person of his liberty for more than one week or causes serious damage to the health of the victim by the detention itself or by an act committed during that detention is to be punished with a prison sentence of between one and ten years. Under Articles 223 to 226 of the Criminal Code, assault is punishable by up to ten years’ imprisonment or a fine. A person who unlawfully compels another through force to commit, acquiesce in or omit to carry out an act is punishable by up to three years’ imprisonment or a fine (Article 240 § 1 of the Criminal Code).
63. Compensation claims in tort are governed by Article 823 of the Civil Code, paragraph 1 of which provides that a person who intentionally or negligently causes bodily injury to, or damage to the health of, another person or deprives that person of his liberty, is liable to compensate the victim for the damage so caused. By Article 823 § 2 of the Civil Code, the same obligation to compensate the victim rests with a person who intentionally or negligently violates a legal provision designed for the protection of others, such as Articles 223 to 226, 239 and 240 of the Criminal Code. Under Article 847 § 1 of the Civil Code (in the version in force until 31 July 2002 and applicable to damage caused before that date), damages for pain and suffering can be claimed in the event of injury to the body or damage to health, or in the event of deprivation of liberty. According to Article 852 of the Civil Code, in the version in force at the relevant time, compensation claims in tort are time-barred three years after the date on which the victim learned of the damage and of the person liable to compensate him.
64. At the relevant time, there were no explicit provisions on contractual compensation claims in the Civil Code in cases involving the defective performance of a contract (positive Vertragsverletzung) concluded by a doctor and his patient. However, in accordance with the well-established case-law of the civil courts, a person could claim damages if his contract with another person had deliberately or negligently been performed defectively by that other person and if this had caused damage to him.
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
6
8
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91843
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PATKOVA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1942 and lives in Prague.
6. In the context of an inheritance dispute, in early 1992 the applicant brought an action before the Hungarian Buda Surroundings District Court. On 20 July 1992 the case was transferred to the Hungarian Pest Central District Court.
7. On 26 January 2005 the procedure was interrupted after a few hearings because the applicant did not identify the successor of one of the respondents who had died.
8. As of 1 April 2006, sections 114/A and 114/B of the Code of Civil Procedure provided a first instance remedy and appeal for complaints about the undue length of civil proceedings. The courts dealing with such complaints, if well-founded, are expected to order measures to facilitate the progress of the litigation at issue.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-70505
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KALDIK v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ms Hayriye Kaldik, is a Turkish national of Kurdish origins who was born in 1970 and lives in Solingen in Germany. She was represented before the Court by Mr K. Roβ, a lawyer practising in Essen.
In December 2001 the applicant’s husband entered German territory, where he unsuccessfully lodged an asylum request. Following her husband’s departure, the applicant had been visited several times by Turkish security officers who interrogated her about her husband’s whereabouts. In April 2002, Turkish soldiers took her to a military station and raped her. This became known to the applicant’s family and to the whole village. Following this incident, the applicant suffered a post-traumatic stress disorder (PTSD, posttraumatische Störung) and considered suicide.
On 14 June 2002 the applicant, together with her two children, born in 1999 and 2001, travelled by plane from Ankara to Düsseldorf in Germany. She had been assisted by her father and other relatives, who had helped her to obtain false passports.
On 10 July 2002 the applicant lodged an asylum request with the Federal Refugee Office (Bundesamt für die Anerkennung ausländischer Flüchtlinge). She alleged that she had been persecuted because of her husband’s activities in support of the Kurdish separatist movement. She further submitted that men from her village had urged her father to kill her in order to restore the honour of her family.
Later on the applicant submitted a medical report from her attending physician Dr Z. dated 11 September 2002, who drew the following conclusions:
“According to our...examinations, Ms Kaldik suffers from symptoms of anguish and a depressive disorder with dissociative symptoms and somatic disorders based on a severe post-traumatic stress disorder following suppression, abuse, threats and rape in Turkey.
In order to carry out psychotherapy, it is necessary to provide a stable environment, because the treatment of traumas necessitates security and stability. Ms Kaldik is in need of both psychological and psychotherapeutic treatment. An antidepressant medication (Doxepin 100 mg) has been started. The psychotherapy will last approximately two or three years. A continuing treatment with supportive conversations is necessary in order to stabilise her mental condition and to avoid an aggravation.
In case of lack or interruption of treatment there is the risk of an aggravation of the illness, a decompensation of the condition, or suicide.
An escalation of her situation with respect to her right to stay would very probably lead to an aggraviation of Ms Kaldik’s clinical symptoms and thus to a mental decompensation and suicidal tendencies (Bei einer aufenthaltsrechtlichen Zuspitzung der aktuellen Situation ist eine weitere Verschärfung der klinischen Symptome bei Frau Kaldik und damit eine psychische Dekompensation mit suizidalen Verhaltensweisen als extrem wahrscheinlich einzuschätzen).
In case of an expulsion to Turkey, it has to be assumed that she could carry out her suicide thoughts and the expulsion to Turkey has to be regarded as a re-traumatisation.”
In June 2003 the applicant was temporarily hospitalised in a psychiatric clinic.
On 29 July 2003 the applicant submitted further medical attestations according to which her situation had aggravated.
On 27 August 2003 the Federal Refugee Office rejected the applicant’s asylum request, ordered the applicant to leave the German territory within one month and announced expulsion in case of non-compliance. They found that the applicant had failed to establish that her rape had been politically motivated. According to the Refugee Office, there was no concrete risk that the applicant would, once again, be abused on her return to Turkey. With respect to the alleged risk to be killed by family members in order to restore the family’s honour, the Office noted that the Turkish State prosecuted so-called “crimes of honour” and that there existed the possibility to obtain protection in women’s refuges. Furthermore, the Office did not attach much credence to the applicant’s submissions relating to the risk of persecution by her family.
Referring to a report by the German Foreign Office dated 9 October 2002 and to a further report dated 12 June 2002, the Refugee Office further found that the necessary medical treatment for the applicant’s illness was available in all major psychiatric clinics, such as the university clinics in Ankara and Istanbul and the public hospital in Istanbul. According to the Refugee Office, these clinics applied internationally approved diagnostic standards and offered the same therapeutic concepts which were common in Western Europe. In case of need, it was possible to obtain free medical treatment with the so called “green card”. This did also apply in case of a possible retraumatisation.
The Federal Refugee Office further found that it was not competent to examine if the applicant’s deportation as such could lead to suicide attempts, as this primarily concerned the question of the feasibility of deportation.
The applicant, represented by counsel, lodged a motion with the Düsseldorf Administrative Court (Verwaltungsgericht). She argued, inter alia, that the necessary medical treatment was not available in practice. In support of her allegations, she submitted a report by the German Consulate in Istanbul on the medical care provided for persons with mental illnesses dated 16 July 2003. This report noted, inter alia, that care for mentally ill patients was provided for in the major cities and provincial centres of Turkey. On the other hand, there was a lack of possibilities of long-term treatments for adult patients.
The last paragraph of the report reads as follows:
“Countrywide there are 137 hospitals in 68 towns which are entitled to issue medical attestation for handicapped and/or mentally ill persons... It follows that there is not in every province the possibility to obtain specialist medical treatment.
One of the most serious problems is the almost complete hopelessness (“fast völlige Ausweglosigkeit”) of certain groups of patients – in particular adults – to obtain adequate treatment: this concerns traumatised persons, raped women, persons suffering from anguish traumas, highly suicidal persons, to name but a few. The local Health Ministry confirmed that while the purely medical care of handicapped or mentally ill people could be provided, it was generally (in der Regel) impossible to offer continuing therapy for lack of professional and financial resources. It is not possible to continue therapies for patients returning from Germany or the Netherlands, as follows already from the different therapeutic concepts of these countries.”
The applicant further alleged that her return to Turkey would, with a high probability, lead to her re-traumatisation, which would eventually endanger her life. She submitted a further medical report by Dr Z. dated 6 February 2004, which reads as follows:
“I am treating Ms Kaldik since 25 June 2002. Ms Kaldik is a severely traumatised person, who suffers from typical disturbances caused by a posttraumatic stress disorder (ICD 10 F43.1) with extreme nervousness and attacks of fear and panic.
Ms Kaldik is regularly treated with supportive conversations which take place at 14 days intervals. Additionally, she is treated with antidepressant medication, currently with 100 mg Trimipramin per day. The patient’s state of health has further deteriorated. She increasingly complains about insomnia and gives credible accounts of suicidal thoughts. She reports about the escalation of her situation with respect to her right to stay. This scares her additionally. She suffers from serious losses of self-esteem.
On the basis of today’s conversation, a further aggravation of her clinical symptoms and thus a mental decompensation with suicidal behaviour has to be regarded as being extremely likely.”
On 1 March 2004 the Düsseldorf Administrative Court rejected the applicant’s motion. That court found that the applicant had neither a right to asylum as guaranteed by Article 16a of the Basic Law, nor was she protected from expulsion as a political refugee pursuant to section 51 of the Aliens Law (Ausländergesetz, see relevant domestic law below). The Administrative Court accepted the applicant’s submissions that she had been raped and subsequently suffered from a post-traumatic disorder. It further assumed that the applicant’s persecution had been politically motivated. While the applicant had failed to establish that she herself or her husband had been persecuted as suspects of supporting the Kurdish separatist movement, the Court accepted that the applicant’s rape may have been related to her Kurdish origins.
However, the applicant did not risk further persecution, as she would be safe if she travelled to the Western part of Turkey (inländische Fluchtalternative). As neither the applicant nor her husband could be regarded as being suspected of separatist activities, there was no indication that the security forces would persecute her there. The Administrative Court further found that the applicant had not established that she risked falling victim to a “crime of honour” in the Western part of Turkey, taking into account that her father had helped her to escape to Germany.
The Administrative Court further found that there was no impediment to the expulsion under section 53 (6) of the Aliens Act for lack of a serious and concrete risk for her life or physical integrity. According to consistent reports (nach ständiger Auskunftslage), there was a possibility to treat mental illnesses in Turkey. Referring to a judgment of the North RhineWestphalia Court of Appeal and considering all material in its possession, the Administrative Court followed this assessment. It found, in particular, that the applicant was not restricted to seek medical treatment in her home region, but could also be expected to expand her search into her further environment and into Western Turkey. The applicant had not established that her illness could not be treated in Western Turkey.
The Administrative Court finally considered that the possibility of a retraumatisation could in principle constitute an impediment to expulsion. According to the Administrative Court, however, it could not be deduced from the medical attestations submitted by the applicant that this applied to the applicant for the time being. It found that in the report dated 11 September 2002 Dr Z. indicated that the applicant’s deportation as such might aggravate her medical condition. This might lead to an impediment to deportation relating to German territory (inlandsbezogenes Abschiebungshindernis), but not to a danger in the receiving country (zielstaatsbezogenes Abschiebungshindernis). In his more recent medical attestation dated 6 February 2004, Dr Z. more generally stated that a further aggravation of her clinical symptoms and thus a mental decompensation with suicidal behaviour had to be regarded as being extremely likely. This indicated that the aggravation of the applicant’s illness was independent from her return to Turkey. The Administrative Court finally found that the other medical attestations submitted by the applicant did not lead to other conclusions.
The question if the applicant’s deportation as such would cause a danger to her health had to be examined separately by the local Aliens Office (Ausländerbehörde). The Administrative Court further noted that the applicant could seek the Aliens Office’s and the German Embassy’s assistance in finding the necessary health facilities.
On 1 April 2004 the applicant lodged a request to be granted leave to appeal. She alleged, in particular, that the Administrative Court had failed to consider the report of the German Consulate of 16 July 2003 which, according to the applicant, raised serious doubts if her illness could be treated in Turkey. She further complained that the Administrative Court had failed to consider her submissions with respect to the risk of retraumatisation.
On 4 January 2005 the North Rhine-Westphalia Administrative Court of Appeal (Oberverwaltungsgericht) refused the applicant’s request. It found, in particular, that the Administrative Court had duly examined the possibility to obtain medical treatment in Turkey. It noted that the Administrative Court had found that the applicant was not restricted to her home area, but could be expected to search medical care in Western Turkey. Under these circumstances, the Administrative Court did not have to refer explicitly to the German Consulate’s report. The Court of Appeal further found that the Administrative Court had duly considered the expert reports on the applicant’s state of health.
On 3 February 2004 the applicant, represented by counsel, lodged a constitutional complaint. She alleged that the administrative courts had violated her right to a fair hearing and her right to asylum as guaranteed by the Basic Law. She complained, in particular, that the Administrative Court had failed to duly consider the fact that the applicant, according to the medical report dated 11 September 2002, risked re-traumatisation on her return to Turkey. She further complained that the Administrative Court had failed to hear expert opinion on the risk of re-traumatisation.
On 27 April 2005 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s complaint.
The applicant, her husband and children subsequently lodged a request with the North Rhine-Westphalia Commission for the Prevention of Hardships (Härtefallkommission). No decision has yet been given. These proceedings do not have a suspensive effect; the Commission’s recommendations are not binding on the domestic authorities.
By order of 31 May 2005 the Langenfeld Regional Court (Amtsgericht) placed the applicant into a psychiatric hospital. The Regional Court found a strong indication that the applicant suffered from a psychotic disorder which necessitated treatment and which could pose a danger to her life or integrity. According to a medical report of that same day, she had recently been suicidal. The Regional Court further ordered the preparation of an expert opinion on the applicant’s state of health.
Article 16a(1) of the German Basic Law (Grundgesetz) provides that persons persecuted on political grounds enjoy the right of asylum.
Section 51 of the Aliens Act – as in force at the relevant time – prohibits the deportation of aliens to a state where they would face political persecution.
Section 53 prohibits deportation into a state where the alien faces a serious risk of being subjected to torture. Section 53(4) of the Aliens Act further prohibits any expulsion which would be contrary to the provisions of the Convention.
If the preconditions for the application of section 53(4) are not met, protection may be granted under section 53(6) of the Aliens Act, which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life, personal integrity or liberty of an alien.
According to the case-law of the Federal Administrative Court (Bundesverwaltungsgericht) the Federal Refugee Office, during asylum proceedings, only examines if the alien would be in danger in the receiving country (zielstaatsbezogene Abschiebungshindernisse). Other impediments to deportation, which could arise on German territory (inlandsbezogene Abschiebungshindernisse) have to be examined in separate proceedings by the local Aliens Office.


ITEMID: 001-78135
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF JUSSILA v. FINLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Elisabet Fura;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Loukis Loucaides;Lucius Caflisch;Matti Pellonpää;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stefan Trechsel;Volodymyr Butkevych
TEXT: 8. The applicant was born in 1949 and lives in Tampere, Finland.
9. On 22 May 1998 the Häme Tax Office (verotoimisto, skattebyrån) requested the applicant, who ran a car-repair workshop, to submit his observations regarding some alleged errors in his value-added tax (VAT) declarations (arvonlisävero, mervärdesskatt) for fiscal years 1994 and 1995.
10. On 9 July 1998 the Tax Office found that there were deficiencies in the applicant’s book-keeping in that, for instance, receipts and invoices were inadequate. The Tax Office made a reassessment of the VAT payable basing itself on the applicant’s estimated income, which was higher than the income he had declared. It ordered him to pay, inter alia, tax surcharges (veronkorotus, skatteförhöjning) amounting to 10% of the reassessed tax liability (the additional tax surcharges levied on the applicant totalled 1,836 Finnish Marks, corresponding to 308.80 euros).
11. The applicant appealed to the Uusimaa County Administrative Court (lääninoikeus, länsrätten) (which later became the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen)). He requested an oral hearing and that the tax inspector as well as an expert appointed by the applicant be heard as witnesses. On 1 February 2000 the Administrative Court took an interim decision inviting written observations from the tax inspector and after that an expert statement from an expert chosen by the applicant. The tax inspector submitted her statement of 13 February 2000 to the Administrative Court. The statement was further submitted to the applicant for his observations. On 25 April 2000 the applicant submitted his own observations on the tax inspector’s statement. The statement of the expert chosen by him was dated and submitted to the court on the same day.
12. On 13 June 2000 the Administrative Court held that an oral hearing was manifestly unnecessary in the matter because both parties had submitted all the necessary information in writing. It also rejected the applicant’s claims.
13. On 7 August 2000 the applicant requested leave to appeal, renewing at the same time his request for an oral hearing. On 13 March 2001 the Supreme Administrative Court refused him leave to appeal.
14. Section 177(1) of the Value-Added Tax Act (arvonlisäverolaki, mervärdesskattelagen; Law no. 1501/1993) provides that if a person liable to pay taxes has failed to pay the taxes or clearly paid an insufficient amount of taxes or failed to give required information to the tax authorities, the Regional Tax Office (verovirasto, skatteverket) must assess the amount of unpaid taxes.
15. Section 179 provides that a tax assessment may be conducted where a person has failed to make the required declarations or has given false information to the tax authorities. The taxpayer may be ordered to pay unpaid taxes or taxes that have been wrongly refunded to the person.
16. Section 182 provides, inter alia, that a maximum tax surcharge of 20% of the tax liability may be imposed if the person has without a justifiable reason failed to give a tax declaration or other document in due time or given essentially incomplete information. The tax surcharge may amount at most to twice the amount of the tax liability, if the person has without any justifiable reason failed to fulfil his or her duties fully or partially even after being expressly asked to provide information.
17. In, for example, the Finnish judicial reference book, Encyclopædia Iuridica Fennica, a tax surcharge is defined as an administrative sanction of a punitive nature imposed on the taxpayer for conduct contrary to tax law.
18. Under Finnish practice, the imposition of a tax surcharge does not prevent the bringing of criminal charges for the same conduct.
19. Section 38(1) of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; Law no. 586/1996) provides that an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if a party’s request is ruled inadmissible or immediately dismissed, or if an oral hearing would be clearly unnecessary owing to the nature of the case or other circumstances.
20. The explanatory part of the Government Bill (no. 217/1995) for the enactment of the Administrative Judicial Procedure Act considers the right to an oral hearing as provided by Article 6 and the possibility in administrative matters to dispense with the hearing when it would be clearly unnecessary, as stated in section 38(1) of the said Act. There it is noted that an oral hearing contributes to a focused and immediate procedure but, since it does not always bring any added value, it must be ensured that the flexibility and cost effectiveness of the administrative procedure is not undermined. An oral hearing is to be held when it is necessary for the clarification of the issues and the hearing can be considered beneficial for the case as a whole.
21. During the period 2000 to 2006, the Supreme Administrative Court did not hold any oral hearings in tax matters. As to the eight administrative courts, appellants requested an oral hearing in a total of 603 cases. The courts held an oral hearing in 129 cases. There is no information as to how many of these taxation cases concerned the imposition of a tax surcharge. According to the Government’s written submission of 12 July 2006, the administrative courts had thus far in 2006 held a total of 20 oral hearings in tax matters. As regards the Helsinki Administrative Court in particular, in 2005 it examined a total of 10,669 cases of which 4,232 were tax matters. Out of the last-mentioned group of cases, 505 concerned VAT. During that year the Administrative Court held a total of 153 oral hearings of which three concerned VAT.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81140
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF W.S. v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (six-month period);Violation of Art. 6-1 and 6-3-d;Not necessary to examine Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1966 and lives in Pabianice.
6. On 11 April 1994 the applicant's wife filed an action for divorce, dated 8 April 1994, with the Łódź Regional Court. She submitted that the parties had married in 1989, that the marriage had not been a happy one from the beginning, that the applicant was unworthy of any trust, that he had been battering her and that he was generally unable to fulfil the role of husband and father. She claimed maintenance for their daughter X. and custody of the child.
7. On 14 April 1994 she requested the Pabianice District Prosecutor to institute criminal proceedings against the applicant on charges of sexual abuse of their daughter X. The minutes of her deposition read:
“We have been married since 1989. In 1990 our daughter X. was born.
In April 1994, after a conversation I had with the child, I started to think that my husband could have been, for some time, sexually abusing her, of which I hereby inform the prosecuting authorities. I would like to stress that after I had acquired this information I moved out of our apartment to my sister's place ... It will be for several days only and afterwards I will move in with my parents in W. It seems to me to be a good decision as the child should be, at least for some time, separated from her father. At the same time, I realise that it would be nearly impossible to conduct any interview with my child, regard being had to her age...”
8. In an undated subsequent opinion, apparently prepared on the basis of a psychological examination of the child carried out on 14 April 1994 in the presence of her mother and maternal grandmother, E.K., a psychologist, described the child's stage of development and concluded:
“On 14 April 1994 an attempt was made to obtain from X. an account of the events concerned in the case. This attempt failed insofar as it was aimed at obtaining a verbal statement. It can, however, serve as a basis for a description of the child's psychological situation. (...) I think that any further attempt to interview X. would not make any sense. Moreover, it would be detrimental to her development. A child of this age is unable to make any confabulations, without there being a concrete factual basis for what she says. (...) Information obtained from third parties and observation of the child seem to suggest that it is likely that she has been a victim of sexual abuse:
- inflammation of sexual organs (medical records);
- secrets shared with her father rewarded by sweets or toys in order to remain unknown to other persons and to the mother; ...
- reluctance to have sexual organs washed;
- pains in the legs, bruises on the legs;
- bizarre play and behaviour.
The fact that so many such manifestations occur makes it possible to consider that the charges may be truthful.
In my view the child's father should be interviewed. It is also recommended that the child be examined once again, not before September.”
9. Later on, the child was interviewed by E.K. on 9 January 1995. Her mother was not present during the examination. X. was also requested to make drawings representing her family and to play with dolls representing herself, her father and her mother.
10. In an opinion dated 17 January 1995, E.K. explained various techniques she had used during this meeting, suited to the child's age. She stated that during the second meeting the child had evoked events which seemed to suggest that she had been sexually abused by her father; that, given her age, there was no possibility that she was talking about things which in reality had not happened; that the drawings she had made constituted a spontaneous form of communication which could not, given her age, have been suggested to her by other persons; that these drawings suggested that she had been sexually abused by her father, possibly also by anal intercourse as she had clearly referred to anal pain in connection with “playing” with her father.
11. The psychologist stressed that under no circumstances should the issue be raised with the child, who should be excluded entirely from the proceedings in order to safeguard her well-being and development. She noted that the child was more relaxed and confident than in April 1994, when she had realised that the “secrets” her father shared with her had been regarded as evil by other members of the family.
12. On 31 March 1995 a bill of indictment was laid against the applicant in the Łódź Regional Court. He was charged with having sexually abused his daughter from 1992 until April 1994.
The prosecution referred to interviews conducted during the investigations with the applicant, his parents, his wife, her parents and her sister and her aunt K.M.
Further, reference was made to: X.'s medical records, police information on the applicant, the opinions prepared by E.K. (referred to above), a psychiatric opinion on the applicant (prepared by N.G. and M.G.-L.), drawings made by X., an expert opinion dated 28 November 1994, prepared by J.B., a sexologist, on the applicant's sexual profile, another report about the applicant's mental health prepared by psychiatrists M.L. and D.J., dated 1 March 1996, and an opinion of a psychologist on the applicant's personality, dated 1 March 1995 and prepared by E.W.
13. On an unspecified later date the court instituted the proceedings.
14. On 9 February 1996 an expert opinion, prepared by J.K., a specialist in surgery with considerable experience of working with battered and abused children, was submitted to the court. He prepared it on the basis of his analysis of X.'s medical records, but without interviewing either X. or other persons. He concluded that the symptoms which X. had manifested could have been caused by sexual abuse, but that such symptoms could also have been caused by other physiological factors. He was of the view that, in any event, no evidence pointed with certainty to sexual abuse by her father.
15. By a decision of 25 April 1996 the court called further expert witnesses: M.K., a psychologist, and another psychologist working for a Diagnostic Centre in Łódź.
16. In its decision of 24 May 1996 the court observed that doubts had arisen, in the light of J.K.'s opinion, as to whether an expert opinion of a sexologist on the applicant's personality and which had already been prepared for the purposes of the investigation had been sufficient and clear. The court noted J.K's professional experience in an non-governmental organisation helping children, victims of cruelty and sexual abuse. It therefore ordered that another expert opinion be submitted on whether the applicant was suffering from any sexual disturbances, and if this was the case, how they might relate to the charges against him. It appointed a sexologist, Dr A.B., as an expert.
17. On 12 July 1996 A.B. examined the applicant and on an unspecified later date submitted his opinion to the court.
18. On 5 March 1997 another expert opinion was submitted to the court in which the procedure for examination as well as the adequacy and soundness of the method used by the psychologist E.K. were assessed. Its conclusion was that there were no grounds for doubting the thoroughness and soundness of the opinion.
19. On 6 November 1997 the Łódź Regional Court convicted the applicant of having sexually abused X. and sentenced him to four years' imprisonment.
The court first recalled the circumstances of the applicant's marriage and the difficulties that had arisen between the spouses. It further established that the applicant's wife, having considered their situation and having discussed the issue with her sister I.K., decided, on 8 April 1994, to petition for divorce. On the same day she had sought legal advice and agreed with the lawyer that a divorce petition would be prepared. In the evening she had surprised the applicant caressing X. in a manner which shocked her as it seemed that he had been touching the child's sexual organs. She had not reacted immediately, but left the apartment with her daughter on the next day and moved in with her sister. On the same day she had talked with X. about her father's conduct and her suspicions of sexual abuse had been confirmed. On 14 April 1994 she had requested the prosecutor to institute an investigation and had been interviewed on the same day.
20. On 14 April 1994 the psychologist E.K. had met with X., but an attempt to obtain verbal confirmation of the charges of sexual abuse failed. The expert had only established that the convergence of various manifestations in the child's behaviour was sufficient to suppose that sexual abuse could have occurred.
21. As shown by the expert opinion of 17 January 1995, a further attempt by the psychologist to interview the child had been successful. The psychological tests had allowed the specialist to conclude that the girl's genitals had been touched and manipulated by her father and that this had happened on numerous occasions.
The court further referred to an expert opinion of Dr J.B, who had concluded that the applicant had a normal heterosexual drive and that he had a low self-esteem. The latter factor, in the expert's view, could have explained why he might have sought sexual experience with X. instead of normal adult sex.
22. The court recalled that it had decided not to interview X., having regard to the unequivocal opinion of the psychologist that it would not serve any useful purpose and would be harmful to her, and given that other evidence at its disposal was sufficient to give a ruling in the case.
23. The court considered that the expert opinions of E.K. were of decisive importance for its judgment. In particular, her second opinion of January 1995 in which she had categorically stated that X. had been sexually abused sufficed to conclude that the applicant was guilty. In that connection, the court recalled that already X's first contact with E.K. in April 1994 had given cause to believe that this had indeed been the case, even though the child had not wanted to talk at that time. Further, the examination carried out in January 1995 had confirmed these suspicions, the more so as the child at that time had been more relaxed and confident.
24. The court also referred to an expert opinion in which the methods used by E.K. were assessed by two further specialists as methodologically sound and appropriate to the situation and to the child's age. They had not found any grounds on which to challenge its validity.
The court further observed that in 1995 the girl had been treated for problems of foecal incontinence. In June 1995 a medical test had been carried out which showed that the muscular tension of her sphincter was too low for a child of her age. The court had heard the expert witness Dr A.D., who was of the view that damage to the child's sphincter might have been caused by anal penetration. The court observed that his medical findings corresponded to the conclusions made by E.K. in her opinion of January 1995 that the child could have been the victim of anal penetration.
25. The court referred to the opinion and testimony of Dr J.K. and was of the view that this opinion was merely of a theoretical character because he had not examined the child. Hence, his conclusions in which he had disagreed with the conclusions of certain other experts previously prepared in the case were not of decisive importance.
26. The court further noted that the members of the applicant's wife's family had been questioned in the proceedings, but that their testimony had been very emotional. As they had been interpreting all of the information about the applicant as pointing to his guilt, the court did not consider their testimony to be wholly credible.
27. The court concluded that in the light of the evidence seen as a whole, the applicant's guilt was not open to doubt.
28. The applicant appealed, arguing that the finding of his guilt had primarily been based on the opinions prepared by E.K. Having regard to these opinions, the court had refused's innocence and, on the whole, had failed to take evidence which would have allowed the facts of the case to be established in a full and convincing manner.
It was further submitted that the applicant had been effectively deprived of his defence rights. The authorities had decided, in the child's interest, not to interview X. As a result, its role had been limited to the assessment of the opinions submitted by E.K. and of her oral testimony. This had led to a situation in which the accused had been convicted on the basis of E.K.'s reports. Neither the prosecutor nor the court had ever seen the child. The court could not, therefore, form an opinion on the veracity of the charges.
29. On 12 March 1998 the Łódź Court of Appeal dismissed the appeal and upheld the impugned judgment. It first observed that the applicant's submission that the lower instance had failed to hear further evidence was incorrect.
30. It disagreed with the applicant's submission that the refusal to interview X. had deprived him of his defence rights. The applicant, who had been represented by a lawyer, had made full use of his defence rights and had put to the court numerous arguments in his defence.
31. The appellate court recalled that the first-instance court had concluded that in the light of the evidence seen as a whole, the applicant's guilt was not open to doubt, even in the absence of any oral testimony given by X. This conclusion of the first-instance court had met with the approval of the appellate court, despite the fact that it had been motivated in a rather succinct manner. Neither the prosecution nor the applicant had made a formal request to have X. interviewed by the court, and the attempt to obtain verbal testimony from her during the investigations had failed. Hence, such testimony should be regarded as “testimony impossible to obtain” within the meaning of the Code of Criminal Procedure.
32. It was further noted that the validity and soundness of the opinions prepared by E.K. were not open to doubt. The first-instance court had taken specific steps in order to have their probative value assessed by other experts. Further, E.K.'s conclusions had also been assessed by the firstinstance court in the light of other evidence at its disposal. The appellate court referred to the evidence given by A.D., which corroborated the conclusions reached by E.K. The submissions made by A.D. had corresponded to other available evidence. The first-instance court had also taken into consideration the conclusions made by the experts who had examined the applicant.
The appellate court concluded that the assessment of the evidence had been thorough and logical and that there were no grounds on which to find that the firstinstance court had reached unreasonable or arbitrary conclusions.
33. On 22 February 2001 the Supreme Court dismissed the applicant's cassation appeal as being manifestly illfounded.
On 2 March 2001 this judgment was served on the applicant.
34. At the relevant time the rules governing the assessment and admissibility of evidence were contained in the Code of Criminal Procedure of 1969 (“the 1969 Code”). It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.
35. Article 4 § 1 of the 1969 Code provided:
“Judges shall rule on the basis of their conviction derived from evidence obtained and founded on their free assessment of evidence [and they shall] draw on knowledge and life experience.”
36. Under Article 155 of the 1969 Code, the trial court should dismiss a motion for evidence to be taken, if the taking of such evidence was inadmissible in law; if the fact to be proved was irrelevant to the assessment of the case, and if the evidence concerned was impossible to obtain.
37. Article 402 of the Code provided that the appellate court could not, in principle, take evidence. However, it could do so exceptionally at a hearing if it was of the view that this would expedite the proceedings. If the appellate court found that the evidence examined by the firstinstance court was insufficient to give a judgment, it could also quash the judgment under appeal and remit the case to the trial court for reconsideration.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75707
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DOLGUN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1934 and lives in Mersin.
5. On 20 July 1993 the General Directorate of National Roads and Highways expropriated two plots of land belonging to the applicant in Mersin in order to build a motorway. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place.
6. Following the applicant’s request for increased compensation, on 16 June 1994 the Mersin Civil Court awarded him additional compensation in the amount of 343,826,000 Turkish liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 20 July 1993, the date of transfer of the title deeds.
7. On 1 June 1998 the Court of Cassation upheld the judgment.
8. On 17 May 2000 the General Directorate of National Roads and Highways paid the applicant TRL 1,336,460,000, interest included.
9. The relevant domestic law and practice are set out in the Akkuş v. Turkey judgment of 9 July 1997 (Reports of Judgments and Decision 1997-IV).


ITEMID: 001-60913
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CORDOVA v. ITALY (No. 1)
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1936 and lives in Naples.
10. In 1993 he worked as a prosecutor at the Palmi public prosecutor's office. In the exercise of his functions, he had investigated a certain Mr C. The latter had had dealings with Mr Francesco Cossiga, a former Italian President, who at the end of his term of office had become a senator for life in accordance with Article 59 § 1 of the Constitution.
11. In August 1993 Mr Cossiga sent the applicant a fax and two letters. He said he was making him a gift of the copyright in his written, telephone and oral communications with Mr C., “including for the purposes of their stage and film exploitation” (“anche ai fini di eventuale sfruttamento teatrale e cinematografico”), “by way of a very modest contribution towards the costs which [he would] be incurring for [his] transfer from Palmi to Naples” (“come modestissimo contributo alle spese che Ella dovrà affrontare per il suo trasferimento da Palmi a Napoli”). Mr Cossiga also told the applicant that he was going to send him a small wooden horse and a tricycle “for the leisure pursuits which [he] believe[d] [he was] entitled to enjoy” (“per quegli svaghi que credo abbia diritto a concedersi”). Mr Cossiga then actually sent the little wooden horse and the tricycle to the applicant together with a detective game called “Super Cluedo”. With the parcel came the following message: “Have fun, dear Prosecutor! Best wishes, F. Cossiga” (“Si prenda un po' di svago, gentile Procuratore! Cordialmente F. Cossiga”).
12. The applicant filed a complaint against Mr Cossiga, alleging that the communications and gifts described above had damaged his honour and reputation. Proceedings were then brought against Mr Cossiga for having insulted a public official.
13. On 12 July 1996 Mr Cossiga was committed for trial before the Messina District Court. On 23 June 1997 the applicant joined the proceedings as a civil party.
14. In the meantime, the President of the Senate had informed the District Court that the Parliamentary Immunities Commission (Giunta ... delle immunità parlamentari) proposed that the Senate should declare that the acts of which Mr Cossiga was accused were covered by the immunity provided for in Article 68 § 1 of the Constitution.
15. By a resolution of 2 July 1997 a majority in the Senate approved the Parliamentary Immunities Commission's proposal.
16. On 23 September 1997 the applicant submitted a statement to the Messina public prosecutor and District Court in which he attacked the Senate's resolution, observing that there was no discernible link between the acts of which Mr Cossiga was accused (which he submitted ought to be construed as a personal quarrel with a prosecutor) and the exercise of parliamentary functions. On that basis, the applicant alleged that the Senate, in applying Article 68 to circumstances not provided for in the Constitution, had encroached on the powers of the judiciary, and requested that the matter be referred to the Constitutional Court to resolve the conflict of State powers.
17. By a judgment on 27 September 1997, the text of which was lodged with the registry on 10 October 1997, the Messina District Court ruled that Mr Cossiga had no case to answer “pursuant to Article 68 § 1 of the Constitution”.
18. The District Court observed that it was for the Senate, whose resolutions were not subject to review by the courts, to determine whether the conditions listed in Article 68 were met. Moreover, it saw no need to raise a conflict of powers, given that the Senate's decision was neither procedurally flawed nor manifestly unreasonable.
19. On 4 December 1997 the applicant requested the Messina public prosecutor to appeal against the judgment of 27 September 1997. This was intended to pave the way for a conflict of State powers to be raised subsequently before the Constitutional Court.
20. By a decision of 13 December 1997, the prosecutor rejected the applicant's request. He observed that the Constitutional Court did not have jurisdiction to quash the Senate's resolution, but only to assess whether the Senate had exercised its power in an arbitrary fashion by improperly encroaching on the powers of the courts. However, the parliamentary papers revealed that the impugned resolution was based on the following reasons:
(i) Mr Cossiga had earlier criticised the investigations conducted by the applicant in a parliamentary question;
(ii) the acts of which Mr Cossiga was accused should be construed as polite and ironic criticism of that investigation;
(iii) according to the case-law of the legislative chambers, the immunity provided for in Article 68 of the Constitution applied to any political opinion expressed by a member of Parliament which could be regarded as an outward projection of parliamentary activity in its strict sense .
21. According to the Messina public prosecutor, those reasons were neither unreasonable nor manifestly arbitrary.
22. Article 68 § 1 of the Constitution, as amended by Constitutional Law no. 3 of 1993, which abolished the need to obtain the consent of Parliament in order to take proceedings against one of its members, reads as follows:
“Members of Parliament shall not be required to account for the opinions they express or the votes they cast in the exercise of their functions.”
23. The Constitutional Court has held that a resolution of a legislative chamber stating that the behaviour of one of its members comes within the scope of the above provision prevents any criminal or civil proceedings being brought or continued with the aim of determining the liability of the parliamentarian in question or securing reparation for the damage suffered.
24. If (usually at the request of the parliamentarian concerned) such a resolution is adopted, it may not be quashed by the courts. However, if it considers that the resolution represents an unlawful exercise of the legislative chambers' discretion, a court may raise a conflict of State powers before the Constitutional Court (see the 1988 Constitutional Court judgment no. 1150). The parties to the trial have no such right.
25. The legislative chambers have adopted a broad interpretation of Article 68 § 1, holding it to apply to opinions expressed outside Parliament, even where they are divorced from parliamentary activity as such. This broad interpretation stems from the notion that political opinions expressed outside Parliament represent an outward projection of parliamentary activity and come within the mandate given by the voters to their elected representatives.
26. When it considered the issue of conflicts of State powers raised by the courts, the Constitutional Court first confined its scrutiny to the procedural lawfulness of parliamentary resolutions. It then progressively narrowed the scope of parliamentary immunity, thereby broadening the extent of its scrutiny over the compatibility of parliamentary resolutions with Article 68 of the Constitution. In its judgment no. 289 of 18 July 1998, it ruled that the expression “parliamentary function” (funzione parlamentare) could not be held to cover all the political activities of a member of the Chamber of Deputies or the Senate, because “such an interpretation ... would risk converting an immunity into a personal privilege”. It added that “it would not be right to establish any connection between a number of statements made during meetings, press conferences, television programmes ... and a parliamentary question subsequently addressed to the Minister of Justice ... To hold otherwise [would amount to acknowledging] that no parliamentarian may be held accountable for his or her statements, even if they are grossly defamatory and ... entirely divorced from parliamentary functions or activities”.
27. In its later case-law, which can now be considered well-established, the Constitutional Court held that in the case of opinions expressed outside Parliament, it had to verify whether there was any connection with parliamentary activities. In particular, there must be a substantial connection between the opinions in question and a prior parliamentary activity (see judgments nos. 10, 11, 56, 58, and 82 of 2000, nos. 137 and 289 of 2001, and nos. 50, 51, 52, 79 and 207 of 2002).
28. Article 576 of the Code of Criminal Procedure provides:
“The civil party may challenge, via the prosecution's right of appeal, ... the acquittal judgment ... exclusively for the purpose of determining [the accused's] civil liability ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61601
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF H.A.L. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1953 and lives in Helsinki.
10. On 4 October 1995 the local office of the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) granted the applicant a daily sickness allowance on account of his incapacity for work from 11 September 1995 onwards. On 16 October 1995 his allowance was extended until 31 October 1995.
11. On 16 October 1995 Dr M.M., a psychiatrist treating the applicant, considered him incapacitated for work from 11 September 1995 until 31 March 1996 on account of his depression and anxiety. On the strength of that opinion the applicant requested that he be granted a daily sickness allowance for the period 1 November 1995-31 March 1996.
12. The medical expert consulted by the local office of the Social Insurance Institution, Dr U.L., found in his opinion of 24 October 1995 that the applicant’s alleged incapacity for work was principally of a subjective nature, although the criteria for serious mental distress were not met. While not considering the applicant incapable for work, Dr U.L. recommended that an opinion be obtained from an expert in psychiatry before a new decision was reached on the applicant’s request.
13. In his opinion of 27 October 1995 Dr K.K., a psychiatrist, found on the basis of the information available that the applicant had been capable of working as of 1 January 1995.
14. Neither Dr U.L. nor Dr K.K. examined the applicant in person. Their identities and opinions were not known to the applicant until they were indicated by the Government in the course of the Convention proceedings.
15. On 15 November 1995 the Social Insurance Commission (sosiaali-vakuutustoimikunta, socialförsäkringskommissionen) of Helsinki refused the applicant’s request to have his allowance extended until 31 March 1996. The Commission, relying on section 14 of the Sickness Insurance Act (sairasvakuutuslaki, sjukförsäkringslag 364/1963), reasoned as follows:
“A person who is incapacitated for work shall be entitled to a daily allowance. Incapacity for work is defined as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work. Your function as a tourist secretary has been regarded as your ordinary work.
On the basis of the material adduced you cannot be considered unable to perform this work or a closely comparable one.
For this reason, you are not entitled to a daily allowance.”
16. The applicant appealed to the Social Insurance Board (sosiaalivakuutuslautakunta, socialförsäkringsnämnden) for Southern Finland, adducing a report of 24 November 1995 in which his treating physician, Dr K.R., agreed with Dr M.M. that the applicant was incapacitated for work during the period in question, on account of his depression, panic feelings and neurosis. In its opinion to the Board dated 2 January 1996, but not forwarded to the applicant for his possible comments, the Social Insurance Commission explained the challenged decision as follows:
“On the basis of medical certificates of the A category, [the applicant] was granted a daily allowance until 31 October 1995 on the basis of his incapacity for work which had commenced on 11 September 1995. Subsequently he adduced a certificate of the B category in which a psychiatrist considered him incapacitated for work until 31 March 1996 on account of his depression and undefined anxiety. In the opinion of the medical expert, a psychiatrist, the insured had to be considered fit for work. A further certificate of the B category, issued by a different doctor, has been appended to the appeal. The medical expert is of the opinion that there is no reason to amend the previous decision.
Since the appellant has not adduced any new information which was not known to the [Social Insurance] Commission at the time of its decision, it is proposed that the appeal be rejected.”
17. On 29 March 1996 Dr M.M. considered that the applicant remained incapacitated for work until 30 June 1996 on account of his depression. Relying on this opinion, the applicant sought a daily allowance for the period 1 April-30 June 1996.
18. On 10 April 1996 the Social Insurance Commission refused the request for exactly the same reasons as in its decision of 15 November 1995 and again relying on section 14 of the Sickness Insurance Act.
19. The applicant appealed. In its opinion to the Social Insurance Board dated 18 April 1996, and again not forwarded to the applicant for possible comments, the Social Insurance Commission stated as follows:
“[The applicant’s] earlier request for a daily allowance for the period 1 November 1995-31 March 1996 was refused and that decision has been appealed against as well. The insured sought to have his daily allowance granted for a further period, relying on a certificate of the B category issued by a psychiatrist. According to the opinion of the medical expert, the insured has to be considered fit to work.
Since nothing new has been adduced in the [applicant’s current] appeal, it is proposed that it be rejected.”
20. In a further opinion of 30 May 1996 Dr M.M., without taking a position in regard to the applicant’s incapacity for work, maintained his diagnosis that the applicant was suffering from undefined anxiety. Relying on this opinion and on all previous evidence, the applicant sought a daily allowance from 1 July 1996 onwards.
21. On 4 July 1996 the Social Insurance Board rejected the applicant’s appeals against the Social Insurance Commission’s decisions of 15 November 1995 and 10 April 1996, relying on the reasons and the legal provision invoked in those decisions. According to the Board’s decision, it had taken note of the Social Insurance Commission’s opinions to the effect that no new material had been adduced which would have justified a change in the challenged decisions. The Board’s decision did not mention the existence of any opinions issued by the consulting medical experts. The applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden).
22. On 17 July 1996 the Social Insurance Commission refused the applicant a daily allowance from 1 July 1996 onwards, with the following reasoning:
“A person who is incapacitated for work shall be entitled to a daily allowance. Incapacity for work is defined as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work.
On the basis of the material adduced you cannot be considered unable to perform this work or a closely comparable one.
For this reason, you are not entitled to a daily allowance.”
23. On 16 September 1996 the Social Insurance Board rejected the applicant’s appeal against the aforementioned decision, to which he had appended Dr K.R.’s opinion of 3 July 1996. The Board took note of the Social Insurance Commission’s opinion to the effect that no new material had been adduced which would justify a change in the challenged decision. The Board then relied on the reasons and the legal provision invoked by the Social Insurance Commission. The Board’s decision did not mention the existence of any opinion issued by the consulting medical experts.
24. The applicant again appealed to the Appellate Board for Social Insurance, inter alia adducing a fresh medical opinion of 15 October 1996 in which Dr K.R., maintaining his previous diagnosis, had considered that the applicant remained incapacitated for work until 30 May 1997.
25. On 25 March 1997 the Appellate Board for Social Insurance rejected the applicant’s appeals against the Social Insurance Board’s decisions of 4 July and 16 September 1996 by relying on the reasons given by the Social Insurance Commission in its decisions of 15 November 1995 and 10 April 1996. The Appellate Board’s decisions were dispatched to the applicant on 8 April 1997. No further appeal lay open.
26. On 13 October 1997 the Social Insurance Institution refused the applicant’s request to undergo an examination of his capacity for work by a specialist of the Social Insurance Institution’s own choosing. It recalled that the applicant’s capacity for work had been assessed on the basis of written documentation on three separate occasions and each time by different persons. The decisions refusing him an extended daily sickness allowance had been upheld by all appellate instances and concerned the years 1995-96. The applicant’s capacity for work at that point in time could no longer be assessed by a doctor who had not been treating him at the time. The applicant’s capacity for work at that time had already been assessed by doctors who knew him then, and his requests for a further allowance had been decided on the basis of their opinions.
27. According to the Sickness Insurance Act, a daily allowance shall be payable to anyone suffering a loss of income due to his or her incapacity for work. Section 14 defines such incapacity as a condition caused by an illness and during which the person is unable to perform his or her ordinary, or closely comparable, work.
28. Under section 31, subsection 1 (832/1996), of the said Act, the Social Insurance Board has a possibility to order the insured person to undergo further medical examinations and thereby request medical statements from physicians specialised in the area of medicine in question.
29. The members of the Appellate Board for Social Insurance are appointed by the Council of State (valtioneuvosto, statsrådet) for a maximum of four years but with a possibility of being re-appointed (section 54, subsections 2 and 3 of the Sickness Insurance Act).
30. According to the 1964 Decree on the Appellate Board (asetus tarkastuslautakunnasta, förordning om prövningsnämnden 422/1964), that Board shall consist of a Chairman, two Vice-Chairmen and the requisite number of further members who shall either be lawyers or medical doctors, or be experienced in the conditions of insured persons. The Chairman and the Vice-Chairmen must have a law degree and possess experience as judges (section 2, as amended by Decree no. 1121/1995). The Appellate Board may sit in chambers consisting of a Chairman, at least one lawyer and one doctor and two members experienced in the conditions of the insured (section 7, as amended by Decree no. 1121/1995). The casting vote both in plenary and chamber sessions rests with the Chairman (section 14). The Council of State may, when necessary, appoint a Chairman ad interim or appoint a member to replace a member of the Board temporarily (section 6, as amended by Decree no. 1044/1994). According to section 54, subsection 3, of the Sickness Insurance Act (as amended by Act no. 279/1999 as from 1 April 1999), the right of a member of the Appellate Board to remain in office shall be governed by the provisions concerning professional judges.
31. The rules concerning the possible bias of a member of the Appellate Board are to be found in the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), as read in conjunction with section 76 of the 1996 Act on Judicial Procedure in Administrative Matters (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996). All members of the Appellate Board must have sworn or must swear a judicial oath before taking up office (section 9 of the 1964 Decree).
32. At the relevant time the procedural rules applicable to regular courts in principle also applied to the Appellate Board, its procedure being merely written (section 8; repealed by Decree no. 380/1999 adopted in connection with the amendment to section 54 of the Sickness Insurance Act which, in the Government’s opinion, rendered it possible to hold oral hearings before the appellate bodies in the field of social insurance).
33. According to the applicant, Finnish law never prevented social insurance bodies from holding oral hearings. Moreover, even after the 1999 amendment the law has been interpreted very narrowly as regards the need for oral hearings. The applicant refers to Supreme Court precedent no. 2003:35 by which a case was remitted to the Insurance Court with a view to an oral hearing being held for the purpose of taking testimony from a doctor who had provided a written summary of medical reports concerning the appellant. The Insurance Court had refused his request for an oral hearing, considering it manifestly unnecessary.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4595
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: CHIORI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a British national, born in 1975 and living in London, England.
He is represented before the Court by Ms Julie Jovvo, a lawyer practising in London, England.
On 25 September 1996 the applicant was arrested and charged with the burglary of a house in the London area on 4 March 1995. The arrest followed the discovery of fingerprints at the scene which were later found by the Metropolitan Police Fingerprint Branch at New Scotland Yard to match those of the applicant. The responsible fingerprint officer, Mr S. Harris, concluded that he had no doubt about the fact that the fingerprint evidence provided a correct positive identification of the applicant having regard to the number of concordant ridge characteristics between the applicant’s fingerprints and those found at the scene.
The fingerprint evidence was the only evidence linking the applicant to the burglary. The applicant maintained that he was innocent of the offence.
On 26 September 1996 the applicant was remanded in custody by Bow Street Magistrates Court. He was eventually released on bail on 17 October 1996.
While on bail the applicant’s solicitor commissioned an independent fingerprint expert, Mr R. Cook, to consider the evidence against the applicant and to prepare a report. The expert attended at different police offices to examine various aspects of the fingerprint file in relation to the fingerprint evidence. Mr Cook concluded that he was unable to agree with the findings of Mr Harris. On 24 February 1997 Mr Cook arranged a meeting with Mr Harris and another fingerprint officer from the Metropolitan Police Fingerprint Department. At that meeting the fingerprint officers demonstrated how Mr Harris had reached a positive identification of the applicant by comparing the fingerprints. Being dissatisfied with the explanations Mr Cook sought confirmation of his findings from another independent expert. The latter agreed with Mr Cook’s view that the positive identification was incorrect.
The applicant’s trial was listed for 25 February 1997 despite the concerns being voiced by the applicant’s lawyer about the shortcomings in the fingerprint evidence. The trial was in fact adjourned when the applicant failed to attend court. On 3 March 1997 the prosecution notified the applicant’s lawyer that it would be offering no evidence. On 8 April 1997 before Southwark Crown Court the prosecution formally offered no evidence, explaining that the police fingerprint officer had made an error of judgment when comparing the fingerprints. The charges against the applicant were dropped.
In a further expert report commissioned by the applicant’s lawyer in a letter dated 27 May 1998 and submitted on 28 July 1998, Mr Cook stated that this was the only case known to him where an attempt has been made to produce an erroneous identification to a court as evidence of identification. In his view, it should have been apparent to an experienced fingerprint officer that there could have been no genuine identification of the applicant on the strength of the fingerprint evidence. He concluded that there had been a serious flaw in the checking procedure. Had the procedure been rigourously adhered to, a false identification would have been excluded at an early stage. In his view, there was compelling evidence of gross negligence and incompetence on the part of members of the Metropolitan Police Fingerprint Department. However, from the information available to him he was unable to find anything to suggest that the mistake had been made with any malicious intent towards the applicant.
On 30 September 1998 counsel advised the applicant’s solicitor that an action for false imprisonment would be unlikely to succeed and that the facts did not give rise to a cause of action in negligence under domestic law, either with respect to the police or the fingerprint officer.
The applicant has applied to the Secretary of State for ex gratia payment of compensation for the time spent in custody. There is no information as to whether his request was successful.