ITEMID: 001-106592
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MULARZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1931 and lives in Rzeszów.
7. On 18 April 1994 the Rzeszów District Office Director (Kierownik Urzędu Rejonowego; hereafter: “the District Office Director”) awarded a certain Z.R. damages for the inconvenience and damage resulting from the temporary use of her property by the public energy provider company based in Rzeszów.
8. On 21 October 1994 the Rzeszów Governor (wojewoda) quashed the District Office Director’s decision and remitted the case.
9. On 31 January 1995 the District Office Director again confirmed the award of damages to Z.R. His decision was upheld by the Rzeszów Governor on 9 May 1995.
10. On 18 October 1996 the Supreme Administrative Court (Najwyższy Sąd Administracyjny) quashed the Governor’s decision.
11. On 28 February 1997 the Rzeszów Governor quashed the District Office Director’s 1995 decision and remitted the case.
12. On 1 March 1997 Z.R. died.
13. On 8 April 1997 the Rzeszów District Court (Sąd Rejonowy) declared that Z.R.’s estate had been inherited by the applicant.
14. On 16 May 1997 the District Office Director stayed the proceedings due to Z.R.’s death. The proceedings were resumed on the applicant’s request on 16 June 1997.
15. On 30 October 1997 the District Office Director again confirmed the award of damages to the applicant. The applicant appealed against this decision, alleging certain shortcomings in the procedure and complaining that the amount of the award had been insufficient.
16. On 8 January 1998 the Rzeszów Governor referred the case to the President of the Office for Housing and Town Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast; hereinafter: “the President of the OHTD”) as the competent authority. On 5 February 1998 the President of the OHTD referred the case back to the Rzeszów Governor.
17. On 23 February 1998 the Rzeszów Governor quashed the District Office Director’s 1997 decision. As a result of a change to the rules on competence, on 30 June 1998 the Rzeszów Governor awarded the applicant damages, acting as the organ of first-instance.
18. On 15 July 1999 the President of the OHTD quashed the Rzeszów Governor’s decision and remitted the case to the Mayor of Rzeszów (Prezydent Miasta Rzeszowa) as the competent authority. The applicant appealed.
19. From 3 December 1999 to 14 July 2000 the proceedings were stayed pending the examination of the applicant’s appeal by the Supreme Administrative Court.
20. On 5 May 2000 the Supreme Administrative Court dismissed the applicant’s appeal.
21. On 20 November 2000 the Mayor of Rzeszów awarded damages to the applicant. This decision was upheld by the Podkarpacki Governor on 27 March 2001. The applicant appealed, arguing that the awarded amount had been too low and that the Mayor had failed to give a sufficient justification for his decision. Pending the examination of the appeal by the Supreme Administrative Court, the proceedings were stayed.
22. On 2 December 2002 the Supreme Administrative Court quashed the Podkarpacki Governor’s decision.
23. On 24 February 2003, the Podkarpacki Governor quashed the decision given by the Mayor of Rzeszów.
24. On 12 August 2003 the Mayor of Rzeszów once again awarded damages to the applicant but the Podkarpacki Governor quashed this decision on 27 November 2003.
25. On 20 September 2004 the Mayor of Rzeszów once more awarded damages to the applicant. This decision was quashed by the Podkarpacki Governor on 28 January 2005. The enforcement of the Governor’s decision was stayed pending the examination of the applicant’s appeal filed with the Rzeszów Regional Administrative Court (Wojewódzki Sąd Administracyjny).
26. On 17 January 2006 the Rzeszów Regional Administrative Court dismissed the applicant’s appeal against the decision of the Podkarpacki Governor.
27. On 26 September 2006 the Mayor of Rzeszów once again awarded damages to the applicant. On 22 January 2007 the Mayor’s decision was upheld by the Podkarpacki Governor. The enforcement of the Governor’s decision was stayed pending the examination of the applicant’s appeal.
28. On 31 May 2007 the Rzeszów Regional Administrative Court rejected the applicant’s appeal as having been lodged out of time.
29. On 18 June 2007 the applicant requested the Rzeszów Regional Administrative Court to grant him leave to appeal out of time. On 4 July 2007 the court dismissed his request. The applicant appealed.
30. On 15 October 2007 the Supreme Administrative Court dismissed the applicant’s complaint.
31. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts, are described in the cases of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006; Koss v. Poland, no. 52495/99, §§ 21-25, 28 March 2006; and Kaniewski v. Poland, no. 8049/02, §§ 22-28, 8 November 2005.
32. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
33. The Government provided the Court with a copy of a judgment handed down on 20 April 2009 by the Kraków Court of Appeal, which had awarded just satisfaction in respect of the excessive length of civil proceedings to the plaintiff, a certain K.M., on the basis of Articles 417 and 448 of the Polish Civil Code, concerning the protection of personal rights. In its judgment, the Court of Appeal considered that the excessive length of the civil proceedings for the distribution of inheritance, which had been pending for over twenty years, had caused the applicant, an elderly person, considerable stress resulting in moral suffering and entitling her to non-pecuniary damages. Consequently, it modified the lower court’s judgment and awarded K.M. the sum of PLN 70,000.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91721
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SOMOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: The applicant, Mr Vladimir Igorevich Somov, is a Ukrainian national who was born in 1947 and lives in Artemovsk. He was represented before the Court by Mr S. A. Kirilenko, a lawyer practising in Artemovsk. The Ukrainian Government (“the Government”) were represented by their Agent Mr Y. Zaytsev and the Head of the Government Agent’s Office Mrs I. Shevchuk, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 November 2000 the applicant instituted proceedings in Artemovsk City Court, Donetsk Region (Артемовський міський суд Донецької області), seeking compensation for work-related injuries he had sustained on 30 August 1994 and 30 June 1997.
On 16 November 2001 the Artemovsk City Court rejected the applicant’s complaints as unsubstantiated.
On 11 March 2002 the Donetsk Regional Court of Appeal upheld the decision of the first-instance court. The court pronounced its decision in the applicant’s presence.
On 16 April 2002 the applicant requested the President of Artemovsk City Court to provide him with a copy of the Donetsk Regional Court of Appeal decision. He stated that the time-limit for lodging a cassation appeal had been reduced and he still had not received a copy of the court of appeal decision.
On 18 April 2002 the President of Artemovsk City Court informed the applicant about the new procedural time-limit for lodging a cassation appeal introduced on 4 April 2002 and that he could lodge an appeal before the case file was returned to the first-instance court.
On 29 May 2002 the Registry of the Constitutional Court informed the applicant that his complaints that the judgments of the domestic courts were unfair were outside the scope of its constitutional jurisdiction.
On 4 June 2002 the Registry of the Supreme Court notified the applicant that the ruling of 11 March 2002 could be appealed in cassation only through the first-instance court.
On 12 and 22 June and 9 July 2002, the Deputy President and the President of Donetsk Regional Court of Appeal informed the applicant that it was impossible to appeal against the ruling of 11 March 2002 to the Supreme Court as the time-limit for lodging an appeal in cassation had expired.
At the time of the second-instance appeal decision, the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the appeal decision or within a year of the decision of the first-instance court, if the latter decision had not been appealed under the normal appellate procedure.
On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (“the Amendment Law”), including the Article in question. It came into force on 4 April 2002. The new wording of Article 321 created a one-month time-limit for lodging a cassation application against the decision of an appeal court.
Under Article 323 of the Code a cassation appeal should be lodged via the court of first instance that had dealt with the case.


ITEMID: 001-101257
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ALEKSEYEV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 11;Violation of Art. 13+11;Violation of Art. 14+11;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1977 and lives in Moscow. He is a gay rights activist.
6. In 2006 the applicant, together with other individuals, organised a march to draw public attention to discrimination against the gay and lesbian minority in Russia, to promote respect for human rights and freedoms and to call for tolerance on the part of the Russian authorities and the public at large towards this minority. The march was entitled “Pride March” that year, and “Gay Pride” in subsequent years, to replicate similar events held by homosexual communities in big cities worldwide. The date chosen for the march, 27 May 2006, was also meant to celebrate the anniversary of the abolition of criminal liability in Russia for homosexual acts.
7. On 16 February 2006 the Interfax news agency published a statement by Mr Tsoy, the press secretary of the mayor of Moscow, to the effect that “the government of Moscow [would] not even consider allowing the gay parade to be held”. Interfax further quoted Mr Tsoy as saying: “The mayor of Moscow, Mr Luzhkov, has firmly declared: the government of the capital city will not allow a gay parade to be held in any form, whether openly or disguised [as a human rights demonstration], and any attempt to hold any unauthorised action will be severely repressed”.
8. On 22 February 2006 Interfax quoted the mayor of Moscow as having said, on a different occasion, that if he received a request to hold a gay parade in Moscow he would impose a ban on it because he did not want “to stir up society, which is ill-disposed to such occurrences of life” and continuing that he himself considered homosexuality “unnatural”, though he “tried to treat everything that happens in human society with tolerance”.
9. On 17 March 2006 the first deputy to the mayor of Moscow wrote to the mayor about the imminent campaign to hold a gay parade in Moscow in May that year. She considered that allowing the event would be contrary to health and morals, as well as against the will of numerous petitioners who had protested against the idea of promoting homosexuality. Having noted that the Federal Law on Assemblies, Meetings, Demonstrations, Marches and Picketing (“the Assemblies Act”) did not provide for the possibility of banning the event, she stated that the authorities could suggest changing the venue or time or that, if the event turned out to be a real public threat, it could be interrupted. She requested the mayor's agreement on developing an effective action plan for the prevention of any actions – public or otherwise – aimed at promoting or holding a gay parade or festival.
10. On 24 March 2006 the mayor of Moscow instructed his first deputy, five other officials of his office and all prefects of Moscow “to take effective measures for the prevention and deterrence of any gay-oriented public or mass actions in the capital city”. He called for action proposals based on the legislative and regulatory framework and demanded an “active mass-media campaign and social commercials with the use of petitions brought by individuals and religious organisations”.
11. On 15 May 2006 the organisers submitted a notice to the mayor of Moscow stating the date, time and route of the intended march. It was to take place between 3 p.m. and 5 p.m. on 27 May 2006, with an estimated number of about 2,000 participants, who would march from the Moscow Post Office along Myasnitskaya Street to Lubyanskaya Square. The organisers undertook to cooperate with the law-enforcement authorities in ensuring safety and respect for public order by the participants and to comply with regulations on restriction of noise levels when using loudspeakers and sound equipment.
12. On 18 May 2006 the Department for Liaison with Security Authorities of the Moscow Government informed the applicant of the mayor's decision to refuse permission to hold the march on grounds of public order, for the prevention of riots and the protection of health, morals and the rights and freedoms of others. It stated, in particular, that numerous petitions had been brought against the march by representatives of legislative and executive State bodies, religious denominations, Cossack elders and other individuals; the march was therefore likely to cause a negative reaction and protests against the participants, which could turn into civil disorder and mass riots.
13. Having received the above reply, the organisers submitted a notice with a view to holding another event on the same date and time as the march for which permission had been refused. They informed the prefect of their intention to hold a picket in the park at Lubyanskaya Square.
14. On 19 May 2006 the applicant challenged before a court the mayor's decision of 18 May 2006 refusing permission to hold the march.
15. On 23 May 2006 the deputy prefect of the Moscow Central Administrative Circuit refused permission to hold the picket on the same grounds as those given for the refusal to hold the march.
16. On 26 May 2006 Interfax quoted the mayor of Moscow as saying in an interview to the radio station Russian Radio that no gay parade would be allowed in Moscow under any circumstances, “as long as he was the city mayor”. He stated that all three “major” religious faiths – “the Church, the Mosque and the Synagogue” – were against it and that it was absolutely unacceptable in Moscow and in Russia, unlike “in some Western country more progressive in that sphere”. He went on to say: “That's the way morals work. If somebody deviates from the normal principles [in accordance with which] sexual and gender life is organised, this should not be demonstrated in public and anyone potentially unstable should not be invited.” He stated that 99.9% of the population of Moscow supported the ban.
17. On the same day the Tverskoy District Court of Moscow dismissed the applicant's complaint. It referred to provisions of the Assemblies Act concerning the authorities responsible for ensuring the safety of events (sections 12 and 14), who were entitled to suggest changing the time or venue, or both, of a proposed event on safety grounds (section 12). It also noted that a public event could be held at any suitable venue unless it threatened to cause the collapse of buildings or constructions or entailed safety risks for its participants (section 8). It then noted the organisers' right to hold the event at the venue and time indicated in the notice to the authorities, or at the venue and time agreed with the authorities if they had suggested a change, and stated that it was prohibited to hold the event if the notice had not been submitted on time or if the organisers had failed to agree to a change of venue or time proposed by the authorities (section 5). Finally, the court noted that the organisers, officials or other individuals were prohibited from interfering with the expression of opinion by the participants in the public event unless they breached public order or contravened the format of the event (section 18). It concluded on the basis of these provisions that the authorities could ban a public event on safety grounds and that it was for the organisers to submit a notice suggesting a change of venue and time for consideration by the authorities. It considered that the refusal to hold the event in the present case had legitimate grounds and that the applicant's right to hold assemblies and other public events had not been breached.
18. The applicant lodged an appeal, relying on section 12 of the Assemblies Act, which imposed an obligation on the authorities, and not the organisers, to make a reasoned proposal to change the venue or the time of the event as indicated in the notice. He also challenged the finding that the ban was justified on safety grounds, claiming that concerns for safety could have been addressed by providing protection to those taking part in the event.
19. On 27 May 2006 the applicant and several other persons participated in a conference celebrating the International Day Against Homophobia, at which they announced their intention to gather in the Aleksandrovskiy Garden to lay flowers at the war memorial, the Tomb of the Unknown Soldier, allegedly to commemorate the victims of fascism, including gay and lesbian victims, and to hold a fifteen-minute picket at the Moscow mayor's office to protest against the ban on the march and the picketing.
20. Later that day the applicant and about fifteen other persons arrived at the Aleksandrovskiy Garden to find the gates closed, with police patrolling the access. According to the applicant, there were about 150 policemen from the special riot squad (OMON), and also about a hundred individuals protesting against the flower-laying event planned by the applicant and his fellow participants.
21. The applicant was arrested and taken to the police station to be charged with the administrative offence of breaching the conditions for holding a demonstration.
22. In the meantime, other participants in the flower-laying event proceeded towards the Moscow mayor's office, with protesters pursuing and attacking them. Several persons reportedly sustained slight injuries. According to the applicant, the OMON arrested about one hundred persons involved in attacking those taking part in the event.
23. The applicant submitted two reports by NGOs on the events of 27 May 2006, one prepared by the International Lesbian and Gay Association and another one by Human Rights Watch. These reports corroborated the applicant's account of events.
24. On 31 May 2006 Interfax quoted the mayor of Moscow as saying in a television interview: “Those gays trying to lay flowers at the Tomb of the Unknown Soldier ... it is a provocation. It was a desecration of a holy place” and reiterating the condemnation of the action on behalf of the public at large.
25. On 16 June 2006 the applicant challenged before a court the prefect's decision of 23 May 2006 refusing to allow the picketing. On 22 August 2006 the Taganskiy Disctrict Court of Moscow dismissed the complaint, finding that the ban had been justified on safety grounds. The applicant appealed.
26. On 19 September 2006 the Moscow City Court examined the appeal against the judgment of 26 May 2006. It upheld the first-instance judgment as lawful and justified in the circumstances.
27. On 28 November 2006 the Moscow City Court examined the appeal against the judgment of 22 August 2006 and dismissed it on essentially the same grounds.
28. In 2007 the applicant, together with other individuals, decided to organise a march similar to the one attempted in 2006.
29. On 15 May 2007 the organisers submitted a notice to the mayor of Moscow, stating the date, time and route of the intended march and its purpose, all of which were identical to the march proposed the previous year, except that the estimated number of participants was 5,100.
30. On 16 May 2007 the Department for Liaison with Security Authorities of the Moscow Government informed the applicant that permission to hold the march had been refused on the grounds of potential breaches of public order and violence against the participants, with reference to the events of the previous year. The organisers were warned that holding the event without permission would render them liable.
31. Having received the above reply, the organisers submitted a notice with a view to holding other events on the same date and time as the march for which permission had been refused. They informed the prefect of the Moscow Central Administrative Circuit of their intention to hold a picket in front of the Moscow mayor's office at Tverskaya Square and another one in Novopushkinskiy Park.
32. On 23 May 2007 the organisers were informed that the prefect had refused permission to hold the picket at both venues on the grounds of public order, prevention of riots and protection of health, morals and the rights and freedoms of others. They were warned that they would be held liable for holding any unauthorised picketing.
33. On 26 May 2007 the applicant and several other persons announced at the annual “LGBT Rights are Human Rights” conference that they would meet the following day in front of the Moscow mayor's office to file a petition together in protest against the ban on the march and the picketing.
34. On 27 May 2007 the applicant and about twenty other individuals were stopped by the police as they attempted to approach the mayor's office. The applicant and two other men were detained at the police station for twenty-four hours on charges of having committed the administrative offence of disobeying a lawful order from the police. On 9 June 2007 the applicant was found guilty of the administrative offence and had to pay a fine of 1,000 roubles. That decision was upheld by the Tverskoy District Court on 21 August 2007.
35. On 30 May 2007 the applicant challenged before a court the decision of 16 May 2007 by the mayor of Moscow refusing permission to hold the march. In particular, he alleged that under the Assemblies Act, the authorities were not entitled to ban public events, but could only propose changing their time and location, which in the present case they had not. He also argued that official disapproval of the purpose of a public event was not by itself a sufficient ground, in a democratic society, for a ban.
36. On 26 June 2007 the applicant challenged before a court the prefect's decision of 23 May 2007 refusing permission for the picketing.
37. On 24 August 2007 the Taganskiy District Court of Moscow dismissed the complaint concerning the ban on the picketing, finding that the ban had been justified on safety grounds. That judgment was upheld on 8 November 2007 by the Moscow City Court.
38. On 4 September 2007 the Tverskoy District Court dismissed the applicant's claim, upholding the grounds for the ban on the march and confirming the lawfulness of the authorities' acts. That judgment was upheld on 6 December 2007 by the Moscow City Court.
39. In 2008 the applicant, together with other individuals, decided to organise several marches similar to the ones attempted the two previous years.
40. On 18 April 2008 the organisers submitted a notice to the mayor of Moscow stating the date, time and route of ten intended marches to be held on 1 and 2 May 2008 in central Moscow.
41. On 24 April 2008 the Department for Liaison with Security Authorities of the Moscow Government informed the applicant that permission to hold all the marches had been refused on the grounds of potential breaches of public order and violence against the participants.
42. Having received the above reply, on 22 April 2008 the organisers submitted a notice with a view to holding a further fifteen marches from 3 to 5 May 2008.
43. On 28 April 2008 the Department for Liaison with Security Authorities of the Moscow Government informed the applicant that permission to hold the fifteen marches had also been refused on the same grounds.
44. The applicant submitted a number of alternative proposals for holding marches on different dates in May 2008 and in various locations. These proposals were refused, on the same grounds, as follows:
(i) applications of 25 and 28 April 2008 (30 marches in total), refused on 5 May 2008;
(ii) application of 30 April 2008 (20 marches), refused on 7 May 2008;
(iii) application of 5 May 2008 (20 marches), refused on 8 May 2008;
(iv) application of 8 May 2008 (15 marches), refused on 13 May 2008;
(v) application of 12 May 2008 (15 marches), refused on 16 May 2008;
(vi) application of 15 May 2008 (15 marches), refused on 21 May 2008;
(vii) application of 19 May 2008 (15 marches), refused on 23 May 2008.
45. On 16 May 2008 the applicant gave notice to the President of Russia of his intention to hold a march in the Aleksandrovskiy Garden on 31 May 2008. He received no reply to the notice.
46. From 28 April 2008 to 17 June 2008 the applicant brought several court actions challenging the decisions by the mayor of Moscow refusing permission to hold the marches. The Tverskoy District Court joined these applications and on 17 September 2008 it dismissed the applicant's claim, upholding the grounds for the bans on the marches and confirming the lawfulness of the authorities' acts. That judgment was upheld on 2 December 2008 by the Moscow City Court.
47. In the meantime, the applicant also attempted to organise picketing to call for criminal charges to be brought against the mayor of Moscow for hindering the holding of public events. The picket intended to be held on 17 May 2008 was prohibited on 13 May 2008 on the same grounds as those given for the previous events. This decision was reviewed and upheld by the Taganskiy District Court on 22 July 2008 and, on appeal, by the Moscow City Court on 14 October 2008.
48. On 1 June 2008 the applicant, in a group of twenty individuals, held a picket on Bolshaya Nikitskaya Street for about ten minutes.
49. Article 30 of the Constitution of the Russian Federation provides that everyone has the right to freedom of association. Article 55 § 3 provides that rights and freedoms may be restricted by federal laws for the protection of constitutional principles, public morals, health and the rights and lawful interests of others, and to ensure the defence and security of the State.
50. The Federal Law on Assemblies, Meetings, Demonstrations, Marches and Picketing (no. 54-FZ of 18 August 2004 – “the Assemblies Act”) provides in so far as relevant as follows:
“...
3. The organiser of a public event shall have the right:
(i) to hold meetings, demonstrations, marches and pickets at the venues and time specified in the notice on holding the public event or as altered by agreement with the executive authority of the subject of the Russian Federation or the municipal body; to hold assemblies at a venue that has been specially allocated or adapted to ensure the safety of citizens while such assemblies are held;
...
(v) in holding assemblies, meetings, demonstrations and marches, to use sound-amplifying technical devices (audio, video and other equipment) with a level of sound corresponding to the standards and norms established in the Russian Federation.
4. The organiser of the public event must:
(i) submit to the executive authority of the subject of the Russian Federation or the municipal body a notice on holding the public event in accordance with the procedure prescribed by section 7 of this Federal Law;
(ii) no later than three days prior to the holding of the public event (except in the case of an assembly or picket held by a single participant), notify in writing the executive authority of the subject of the Russian Federation or the municipal body of the acceptance (or non-acceptance) of its proposal to alter the venue and/or time of the public event as specified in the notice of the event;
(iii) ensure compliance with the conditions for holding the public event as specified in the notice of the event or with any conditions that have been altered as a result of an agreement reached with the executive authority of the subject of the Russian Federation or the municipal body;
(iv) require the participants in the public event to observe public order and comply with the conditions for holding the public event. Persons who fail to comply with the lawful requirements of the organiser of the public event may be expelled from the venue of the public event;
(v) ensure, within their competence, public order and the safety of citizens when holding the public event and, in instances specified by this Federal Law, perform this obligation jointly with the authorised representative of the executive authority of the subject of the Russian Federation or the municipal body and the authorised representative of the Ministry of the Interior and comply with all their lawful requirements;
...
5. The organiser of the public event shall have no right to hold it if the notice on holding the public event has not been submitted in due time or no agreement has been reached with the executive authority of the subject of the Russian Federation or the municipal body on their reasoned proposal as to the alteration of the venue and/or time of the public event.”
“A public event may be held at any venue suitable for holding the event if its conduct does not create a threat of the collapse of buildings or structures or other threats to the safety of the participants in the public event. Conditions governing bans or restrictions on holding a public event at particular venues may be specified by federal laws.
...”
“1. The executive authority of the subject of the Russian Federation or the municipal body, upon receiving notice of the public event, must:
...
(ii) inform the organiser of the public event, within three days of receipt of the notice on holding the event (or, if a notice on holding a picket by a group of individuals is submitted within less than five days before its intended date, on the day of its receipt), of a reasoned proposal to alter the venue and/or time of the public event, as well as of any proposal for the organiser of the event to bring the aims, form or other conditions for holding the event as indicated in the notice into line with the requirements of this Federal Law;
(iii) designate, depending on the form of the public event and the number of participants, an authorised representative to assist the event organisers in conducting the event in accordance with this Federal Law. The authorised representative shall be formally appointed by a written order which must be forwarded to the organiser of the public event in advance [of the event];
...
(v) ensure, within its competence and jointly with the organiser of the public event and the authorised representative of the Ministry of the Interior, public order and safety of citizens while holding the event and, if necessary, provide them with urgent medical aid;
...”
“...
3. The authorised representative of the Ministry of the Interior must:
(i) facilitate the conduct of the public event;
(ii) ensure, jointly with the organiser of the public event and the executive authority of the subject of the Russian Federation or the municipal body, public order and safety of citizens and compliance with the law while holding the public event.”
“1. The organiser of the public event, officials or other individuals may not prevent the participants in the event from expressing their opinion in a manner that does not breach public order or the conditions for holding the public event.
...”
51. The following are extracts from Recommendation CM/Rec(2010)5 of the Committee of Ministers of the Council of Europe to member States on measures to combat discrimination on grounds of sexual orientation or gender identity:
“...
III. Freedom of expression and peaceful assembly
13. Member states should take appropriate measures to ensure, in accordance with Article 10 of the Convention, that the right to freedom of expression can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity, including with respect to the freedom to receive and impart information on subjects dealing with sexual orientation or gender identity.
14. Member states should take appropriate measures at national, regional and local levels to ensure that the right to freedom of peaceful assembly, as enshrined in Article 11 of the Convention, can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity.
15. Member states should ensure that law enforcement authorities take appropriate measures to protect participants in peaceful demonstrations in favour of the human rights of lesbian, gay, bisexual and transgender persons from any attempts to unlawfully disrupt or inhibit the effective enjoyment of their right to freedom of expression and peaceful assembly.
16. Member states should take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions, for example on grounds of public health, public morality and public order ...”
52. On 6 June 2006 the Council of Europe Commissioner for Human Rights issued the following press release:
“In a statement given in St Petersburg yesterday, Commissioner Hammarberg stressed that the rights to freedom of expression and peaceful assembly belong to all people and that the authorities have a duty to protect peaceful demonstrators. The Commissioner regrets that his statement has been misrepresented by the news agency RIA Novosti (Report by RIA Novosti dated 5 June 2006 at 13:33).”
VIOLATED_ARTICLES: 11
13
14


ITEMID: 001-108975
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF AL HUSIN v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Syria);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonably necessary to prevent offence);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 8. It would appear from the case file that the salient fact in the domestic proceedings was the applicant’s association with the mujahedin in Bosnia and Herzegovina (“BH”). The term mujahedin has been widely used to refer to foreigners – mainly from the Arab world – who came to BH during the war in support of Bosnian Muslims. However, the same term has been used to describe local Muslims who joined the foreign mujahedin, endorsed their ideology and adjusted to their way of dressing. The phenomenon has been explained by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in Hadžihasanović and Kubura, IT-01-47-T, §§ 41118, 15 March 2006, and Delić, IT-04-83-T, §§ 166-199, 15 September 2008, as follows.
9. The first foreign mujahedin arrived in BH in the summer of 1992 via Croatia and with the assistance of the Croatian authorities. It would appear that their arrival was welcomed by the BH authorities. While the presence of at least some foreign mujahedin seems to have been motivated by a desire to provide humanitarian assistance to the Bosnian Muslim population, most of them actively supported the military struggle against the Bosnian Muslims’ adversaries, ready to conduct a jihad or “holy war”. As stated by Ali Hamad, an ICTY witness of Bahraini origin who came to BH in 1992, some of the mujahedin were members of al-Qaeda who had the aim of “creating a base that would allow them to increase their area of operations”. Some of them also came to perform missionary work.
10. Upon arrival, foreign mujahedin settled in various locations and did not form a homogeneous entity. Towards the end of 1992, Bosnian Muslims started to join the foreign mujahedin. The locals were provided with military training and participated in combat action. They were also given religious instruction. A number of groups comprising foreign and/or local mujahedin were active. Notwithstanding instances of participation in combat alongside each other, it appears that these groups were anxious to maintain their distinct identities. There were religious and ideological differences between them, which resulted in occasional violent clashes.
11. On 13 August 1993 the foreign mujahedin were organised into a unit within the local ARBH (Army of the Republic of Bosnia and Herzegovina) forces. The unit, named “El Mujahedin”, was based in Zenica. Following its establishment, the unit significantly grew in size. By 1995, it consisted of around 1,000 fighters. Although the original idea had been to replenish the unit with foreign mujahedin only, locals soon outnumbered its foreign members. The factors that motivated locals to join it included: its stricter regimental discipline; a better degree of organisation; superior equipment and combat morale; its religious dedication; and material benefits. The unit received funds and assistance from many organisations and individuals from the Islamic world, including the Al-Haramain Islamic Foundation and the Benevolence International Foundation. The Islamic Cultural Institute in Milan provided logistical support.
12. El Mujahedin had a number of features setting it apart from regular ARBH units. It was led by foreign mujahedin who were not appointed by the ARBH. At the top of the hierarchy was an emir, who has been described as the highest-ranking person within the unit. Abu Haris, a Libyan, was its first emir. In December 1993, he was succeeded by an Algerian, Abu Maali, who remained in that position until the end of the war. A different person from the emir, the military commander, headed the military council and was responsible for the conduct of combat operations. In 1993, this post was held by an Egyptian named Vahidin or Wahiuddin. After his death in October 1993, another Egyptian, Muatez, succeeded him. Muatez was killed in September 1995. The unit had a religious council, the shura, which was its supreme decision-making body. It consisted of approximately twenty prominent members of the unit, mostly of Arab origin. The emir was elected by and answerable to the shura. At the end of 1994, Sheikh Shaban joined the leadership of the unit. He was the head of the Islamic Cultural Institute in Milan and known to be an extremist who was well-connected with Islamic fundamentalists all over the world (the ICTY relied in that regard on a judgment of the Milan Criminal Court of 1 January 2006). He facilitated the recruitment of volunteers from Arab countries for the struggle in BH. Although Sheikh Shaban did not hold an official function within the unit, its members considered him to be the political authority and even the real emir within the unit. He could issue binding rulings (fatwa) and his authority was never challenged by the shura. Sheikh Shaban was killed, together with Abu Haris, at an HVO (Croatian Defence Council) military checkpoint on 14 December 1995.
13. The General Framework Agreement for Peace, which ended the war in BH, was initialled at a military base near Dayton, the United States, on 21 November 1995 and signed in Paris, France, on 14 December 1995. Article III of Annex 1A to that Agreement called for the withdrawal of all foreign forces, including individual advisors, freedom fighters, trainers, volunteers, and personnel from neighbouring and other States, irrespective of whether they were legally and militarily subordinated to any of the local forces. In view of that, on 14 December 1995 the ARBH disbanded El Mujahedin and ordered its foreign members to leave the country by 10 January 1996. Despite initial resistance, the shura accepted that the unit be disbanded. It would appear that awards, such as the “Golden Lily”, were given to its members as an incentive for foreigners to leave. Members of the unit were also provided with ARBH certificates of service, which assisted its foreign members to acquire BH citizenship. Whereas most of the unit’s foreign members left BH, some of them (such as the present applicant) applied for BH citizenship and continue to live in BH to date.
14. After the attacks of 11 September 2001, the official attitude towards foreign mujahedin changed dramatically. Many lost their BH citizenship or were deported from BH after being declared a threat to national security.
15. The applicant was born in Syria in 1963.
16. In 1983 he went to the then Socialist Federal Republic of Yugoslavia to pursue his studies. He first studied at Belgrade University, in Serbia, and then at Rijeka University, in Croatia.
17. It would appear that the last time the applicant was in Syria was in January 1993. He stayed one month and obtained a new Syrian passport.
18. In 1993, having returned from Syria, the applicant met a refugee from BH in Croatia. They were married in a Muslim wedding ceremony in 1993 and then in a civil ceremony in 1995 (the applicant had previously been married). They have three children together, born in 1994, 1997 and 1999. The applicant’s wife also has three children from her first marriage (her first husband was killed at the beginning of the war). The applicant has no children from his previous marriage.
19. While it is certain that the applicant was a member of El Mujahedin, the ARBH unit described above, it is not clear for how long. According to a certificate issued to the applicant, his service in the ARBH lasted from May 1993 until December 1995, but this is not consistent with the applicant’s version of events. Neither is it clear when he obtained BH citizenship. He was first issued a national identification number on 15 April 1995 on the basis of a naturalisation decision of 22 November 1994 and again on 28 December 1995 on the basis of a naturalisation decision of 23 March 1992. However, the applicant claims that the naturalisation decision of 23 March 1992 did not exist. Indeed, it has never been delivered to him, despite his numerous requests.
20. In the immediate aftermath of the war, the applicant acted as leader of a group of foreign mujahedin and their local supporters based in Bočinja. The group advocated the Saudi-inspired Wahhabi/Salafi version of Islam. In his role as the group’s leader, he interrogated two local Serbs for a couple of hours in 1998. This led to his conviction for false imprisonment in May 2000 and a suspended prison sentence.
21. On 14 November 2001 the relevant administrative authority quashed the naturalisation decision of 23 March 1992. On 7 June 2006 the Supreme Court of the Federation of BH quashed that decision and remitted the case for reconsideration. On 9 January 2007 the relevant administrative authority quashed the naturalisation decisions of 23 March 1992 and 22 November 1994. They held that the applicant had acquired BH citizenship by means of fraudulent conduct, false information and concealment of relevant facts. As a result of this decision, the applicant became an unlawful resident in BH. On 5 April 2007 the State Court and on 4 October 2008 the Constitutional Court upheld the decision (see paragraph 27 below).
22. On 19 April 2007 the applicant applied for a residence permit. On 18 May 2007 the Aliens Service rejected his application. It held, on the basis of confidential intelligence reports, that the applicant was a threat to national security. He was granted a period for voluntary departure of fifteen days. On 27 July 2007 the Ministry of Security, after having assessed the national security evidence, upheld that decision. On 21 January 2008 the State Court dismissed an application for judicial review. On 14 March 2008 another bench of the same court upheld that decision. On 4 October 2008 the Constitutional Court set aside the State Court’s decision of 14 March 2008 and remitted the case for a retrial (see paragraph 27 below).
23. On 1 June 2007 the applicant claimed asylum. He maintained that he would be perceived by the Syrian authorities as a member of the outlawed Muslim Brotherhood (in view of his involvement in rallies organised by that organisation in the 1980s) or as an Islamist (given his association with the mujahedin movement advocating the Saudi-inspired Wahhabi/Salafi version of Islam). The applicant claimed that the Syrian authorities were aware of his activities in BH, as he had always been outspoken about them (for example, he had given a number of interviews to the Al Jazeera television channel and the Asharq Alawsat newspaper between 1996 and 2001). Those authorities had allegedly interviewed his father and brothers on several occasions in this connection and, furthermore, had held one of his brothers in detention for nine months because of his refusal to spy on the applicant. He referred to the situation of Muhammad Zammar, a mujahedin of Syrian origin, who had reportedly been tortured in Syria and sentenced to twelve years’ imprisonment for membership of the Muslim Brotherhood (although no proof of his membership in that organisation had been presented at trial), belonging to an organisation formed with the purpose of changing the economic or social structure of the state, carrying out activities that threatened the state or might damage its relationship with a foreign country and weakening national feeling and inciting sectarian strife. The applicant claimed that he might also be targeted because of his draft evasion. Given all the above and the general political and human rights situation in Syria, the applicant argued that his deportation to Syria would expose him to a risk of being subjected to ill-treatment. Lastly, he submitted that his deportation would be contrary to Article 8 of the Convention in view of his family situation.
24. On 8 August 2007 the Asylum Service refused the asylum claim and granted the applicant a fifteen-day period for voluntary departure. It held that the applicant did not face a real risk of being subjected to ill-treatment given that he had never been a member of the Muslim Brotherhood (unlike Muhammad Zammar mentioned above). It further held that it had not been shown that he would be ill-treated solely because of his fighting with the foreign mujahedin in BH (in view of the fact that none of the parties to the war in BH were either an ally or an enemy of Syria) or because of his draft evasion. As regards the applicant’s allegations about his father and brothers, the Asylum Service rejected them as unsubstantiated. Lastly, the Asylum Service considered the Article 8 complaint to be irrelevant in an asylum case. On 21 January 2008 the State Court upheld that decision. On 4 October 2008 the Constitutional Court set aside the part of the State Court’s decision concerning Article 8 and remitted it for a retrial. It upheld the remainder of that decision (see paragraph 27 below).
25. On 29 January 2008 the Court decided to indicate to the Government that the applicant should not be expelled pending the final decision of the Constitutional Court in the applicant’s case (AP 1222/07) and for a period of at least seven days following notification of that decision (see paragraph 4 above).
26. On 4 June 2008 the US Department of State edited its 2007 Country Report on Terrorism in BH, in which the applicant (known as Abu Hamza al-Suri) had been wrongly identified as convicted terrorist Abu Hamza alMasri (who had also fought with the foreign mujahedin in BH).
27. On 4 October 2008 the Constitutional Court rendered its decision in the applicant’s case (AP 1222/07). It set aside the State Court’s decision of 14 March 2008 (see paragraph 22 above) and the State Court’s decision of 21 January 2008 in part (see paragraph 24 above). It upheld the remainder of the State Court’s decision of 21 January 2008 and the State Court’s decision of 5 April 2007 in its entirety (see paragraph 21 above).
28. On 6 October 2008 the Aliens Service placed the applicant in an immigration centre on security grounds, pursuant to section 99(2)(b) of the Aliens Act 2008. On 10 October 2008 the State Court, after having assessed the national security evidence, upheld that decision. In his constitutional appeal, the applicant maintained that even if he indeed constituted a security threat, that factor would not be sufficient in itself to justify his detention (he relied on Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3; Guzzardi v. Italy, 6 November 1980, Series A no. 39; and Ciulla v. Italy, 22 February 1989, Series A no. 148). On 28 March 2009 the Constitutional Court held that the applicant’s custody was lawful and consistent with the Convention. The initial detention period was extended monthly on security grounds until February 2011 (see paragraph 32 below). All extension orders were upheld by the State Court and some of them also by the Constitutional Court (constitutional appeals concerning the remaining orders are pending).
29. On 17 October 2008 Amnesty International, the Helsinki Committee in BH and Human Rights Watch called upon the BH authorities not to deport the applicant to Syria because of a serious risk of ill-treatment.
30. Further to the Constitutional Court’s decision of 4 October 2008 (see paragraph 27 above), on 17 November 2008 the State Court quashed part of the Asylum Service’s decision of 8 August 2007 mentioned in paragraph 24 above and instructed that service to examine whether the indication of a period for voluntary departure was contrary to Article 8 of the Convention. On 6 March 2009 the Asylum Service held that the impugned measure was consistent with Article 8. On 17 August 2009 the State Court quashed that decision. On 17 September 2009 the Asylum Service again held that the impugned measure was consistent with Article 8. On 15 December 2009 the State Court quashed that decision. On 15 January 2010 the Asylum Service again held that the impugned measure was consistent with Article 8. On 17 December 2010 the State Court upheld that decision. It emphasised that the indication of a period for voluntary departure should not be confused with a deportation order and that the issue of whether the applicant’s departure would be contrary to Article 8 should more appropriately be examined within the context of deportation proceedings. It would appear that a constitutional appeal against that decision is pending.
31. Further to the Constitutional Court’s decision of 4 October 2008 (see paragraph 27 above), on 17 November 2008 the State Court assessed the national security evidence and upheld the Ministry of Security’s decision of 27 July 2007 mentioned in paragraph 22 above. It relied on the applicant’s conviction of May 2000 (see paragraph 20 above), his public threats against State authorities, his standing in the mujahedin community which allowed him to issue a binding ruling (fatwa), his lectures at a mosque in Sokolović kolonija, a Sarajevo suburb, advocating the Saudi-inspired Wahhabi/Salafi version of Islam and his attempts to obtain ammunition illegally. It also took into account some secret evidence. Following a constitutional appeal, on 31 January 2009 the Constitutional Court ordered as an interim measure that the applicant should not be expelled pending the proceedings before the Constitutional Court. On 28 March 2009 the Constitutional Court quashed the State Court’s decision of 17 November 2008 and remitted the case for a retrial. It further ordered that its interim measure remain in force until the State Court had examined the application under Article 8 of the Convention. On 22 May 2009 the State Court quashed the first- and second-instance administrative decisions and remitted the case to the Aliens Service for reconsideration. On 17 June 2009 the Aliens Service rejected the application for a residence permit and granted the applicant a period for voluntary departure of fifteen days. On 27 July 2009 the Ministry of Security upheld that decision. On 23 December 2009, after having assessed the national security evidence, the State Court upheld that decision. It relied, among other things, on the fact that the applicant’s name appeared on a list of international criminals maintained by the International Criminal Police Organisation (INTERPOL). On 1 July 2010 another bench of the same court upheld that decision. It would appear that the applicant has lodged a constitutional appeal in that regard which is still pending.
32. On 1 February 2011 the Aliens Service issued a deportation order: it decided to expel the applicant and to prohibit his re-entry for five years. On 2 March 2011 and 29 November 2011 the Ministry of Security and the State Court, respectively, upheld that decision. The applicant has ever since been detained with the intention of deportation pursuant to section 99(1)(a) of the Aliens Act 2008.
33. On 15 March 2011 the Court decided to indicate to the Government that the applicant should not be expelled to Syria until further notice (see paragraph 7 above).
The Aliens Act 2003 (Zakon o kretanju i boravku stranaca i azilu, Official Gazette of BH nos. 29/03 and 4/04 – “the 2003 Act”) was in force from 14 October 2003 until 14 May 2008. On the latter date the Aliens Act 2008 (Official Gazette of BH no. 36/08 – “the 2008 Act”) entered into force. The 2003 Act was applied to the present applicant’s claim for asylum and application for a residence permit because the proceedings had started before the entry into force of the 2008 Act. On the other hand, the 2008 Act was applied to the applicant’s detention.
34. Section 72 of the 2003 Act provided that asylum had to be granted to an alien who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, was outside his or her country of nationality and was unable or, owing to such fear, was unwilling to benefit from the protection of that country. The principle of non-refoulement was incorporated in section 60 of that Act, which read as follows:
“An alien shall not be returned or expelled in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion, regardless of whether or not the person concerned has been granted asylum. The prohibition of return or expulsion shall also apply to persons in respect of whom there is a reasonable suspicion for believing that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment. An alien may not be returned or expelled to a country where he or she is not protected from being sent to such a territory.”
Pursuant to section 79 of the 2003 Act, aliens whose claims for asylum had been refused had to be granted leave to remain on humanitarian grounds if their removal would breach the principle of non-refoulement.
35. Under section 57(1)(i) of the 2003 Act, the authorities were entitled to issue deportation orders against aliens constituting a threat to public order or national security. The 2008 Act contains a similar provision (section 88(1)(h) of that Act). While it is not clear whether an appeal against a deportation order had suspensive effect under the 2003 Act (see section 58 of that Act), such an appeal suspends deportation under section 87 of the 2008 Act. Under both acts, a claim for asylum and an application for judicial review against a refusal of such a claim suspend deportation (sections 61 and 78 of the 2003 Act and sections 92, 109(9) and 117 of the 2008 Act). Pursuant to section 62 of the 2003 Act and section 93 of the 2008 Act, once an alien has become subject to expulsion, removal directions shall be issued within seven days. An appeal does not suspend deportation.
36. In accordance with section 99(2)(b) of the 2008 Act, an alien must be detained if it has been established that he or she constitutes a threat to public order or national security, irrespective of whether a deportation order has been issued. Once a deportation order has been issued, the alien concerned may also be detained under section 99(1)(a) of that Act. An initial detention order is valid for 30 days (section 100(3) of that Act). It may be extended any number of times for up to 30 days at a time. However, the total period of detention may only exceed 180 days in exceptional circumstances, such as if an alien prevents his or her removal or if it is impossible to remove an alien within 180 days for other reasons (see section 102 of that Act).
37. The Secret Data Act 2005 (Zakon o zaštiti tajnih podataka, Official Gazette of BH nos. 54/05 and 12/09) entered into force on 17 August 2005. In accordance with section 5 of that Act, the judges of the State Court and the Constitutional Court have access to all levels of secret data without any formalities (for example, security clearance or special authorisation), if such access is required for exercising their duties.
38. The relevant part of the latest concluding observations on BH of the United Nations Committee against Torture reads as follows (see document CAT/C/BIH/CO/2-5 of 20 January 2011, § 14):
“Notwithstanding [section 91 of the Aliens Act 2008] with regard to the principle of prohibition of return, the Committee remains concerned at reports that the competent authorities of BH have failed to properly assess the risk of refoulement faced by those who apply for international protection and that persons considered to be a threat to national security are subject to being expelled or returned to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture. It is also concerned at the very low rate of successful asylum applications.”
39. The Commissioner for Human Rights, an independent institution within the Council of Europe, has been mandated to promote the awareness of and respect for human rights in the 47 Council of Europe member states. His recent report on BH (document CommDH(2011)11 of 29 March 2011, § 97) reads, in the relevant part, as follows:
“According to UNCHR, of the 180 recognised refugees in Bosnia and Herzegovina, 163 are from Kosovo. Most of them were recognised prior to the handover of refugee status determination by UNHCR to the authorities of BH in 2004. Since 2004, refugee status has been granted only to eight persons, none of whom is from Kosovo (five Palestinians, one Serb, one Saudi Arabian and one Sri Lankan). In addition, the Ministry of Security granted subsidiary protection to four Roma minors from Kosovo in June 2009, and one Bosniac from Kosovo.”
40. According to many reliable and objective sources, torture and other forms of ill-treatment have been used extensively and with impunity in police stations and security agencies’ detention centres. The relevant part of the United States Department of State’s 2010 Country Report on Human Rights Practices in Syria reads as follows:
“Under article 28 of the constitution, ‘no one may be tortured physically or mentally or treated in a humiliating manner’. Nevertheless, security forces reportedly continued to use torture frequently. Local human rights organizations continued to cite numerous credible cases of security forces allegedly abusing and torturing prisoners and detainees and claimed that many instances of abuse went unreported. Individuals who suffered torture or beatings while detained refused to allow their names or details of their cases to be reported for fear of government reprisal.
Former prisoners, detainees, and reputable local human rights groups reported that methods of torture and abuse included electrical shocks; pulling out fingernails; burning genitalia; forcing objects into the rectum; beatings while the victim is suspended from the ceiling and on the soles of the feet; alternately dousing victims with freezing water and beating them in extremely cold rooms; hyperextending the spine; bending the body into the frame of a wheel and whipping exposed body parts; using a backward-bending chair to asphyxiate the victim or fracture the spine; and stripping prisoners naked for public view. In previous years Amnesty International documented 38 types of torture and mistreatment used against detainees in the country. Amnesty International reported that torture was most likely to occur while detainees were held at one of the many detention centers operated by the various security services in the country, particularly while authorities attempted to extract a confession or information. Courts systematically used ‘confessions’ extracted under duress as evidence, and defendants’ claims of torture were almost never investigated.”
The relevant part of the most recent concluding observations on Syria of the United Nations Committee against Torture reads as follows (document CAT/C/SYR/CO/1 of 25 May 2010, §§ 7 and 15):
“The Committee is deeply concerned about numerous, ongoing and consistent allegations concerning the routine use of torture by law enforcement and investigative officials, at their instigation or with their consent, in particular in detention facilities. It is also concerned at credible reports that such acts commonly occur before formal charges are laid, as well as during the pre-trial detention period, when the detainee is deprived of fundamental legal safeguards, in particular access to legal counsel.”
“The Committee is also concerned at reports that the State has established secret detention facilities under the command of intelligence services, such as the Military Intelligence service, the Political Security Directorate, the Directorate General of Intelligence Services and the Directorate of Air Force Intelligence Services. The centres controlled by these services are not accessible by independent monitoring and inspection bodies, and are not subject to review by the authorities. The Committee is further concerned that detainees are deprived of fundamental legal safeguards, including an oversight mechanism in regard to their treatment and review procedures in respect to their detention. The Committee is also concerned at allegations that those detained in such facilities could be held for prolonged periods without any judicial review, in practice in incommunicado detention and subject to torture or cruel, inhuman or degrading treatment.”
41. Reportedly, actual or suspected Islamists and members of the banned Muslim Brotherhood have been subject to particularly harsh abuse. According to Amnesty International’s Annual Report 2011, they have faced arbitrary arrest, prolonged detention, torture and other forms of ill-treatment, and unfair trials (see also Human Rights Watch’s report Far From Justice: Syria’s Supreme State Security Court of February 2009, pp. 4-5). Those convicted of belonging to the Muslim Brotherhood were sentenced to death but their sentences were immediately commuted to twelve-year prison terms. Hundreds of convicted Islamist prisoners were held at Saydnaya Military Prison, where conditions are harsh.
42. According to the UK Home Office’s Operational Guidance Note on Syria of November 2011, § 3.7.10, the authorities have cracked down on all expression of political opposition with increasing brutality since the onset of political protest and civil unrest in March 2011 (see also the United Nations High Commissioner for Human Rights’ report on the human rights situation in Syria of 15 September 2011, document A/HRC/18/53, suggesting that the scale and nature of the ongoing human rights abuses may amount to crimes against humanity). Therefore, if an applicant has previously been involved in opposition political activity, or whose beliefs make it likely that he will in future take part in such activity, or who could be perceived to hold opposing views if returned to Syria, a grant of asylum is likely to be appropriate.
43. Following a fact-finding mission to Syria, Lebanon and the Kurdistan Region of Iraq, the Austrian Red Cross and the Danish Immigration Service published a report on human rights issues concerning Kurds in Syria in May 2010. Its general remarks about punishment for draft evasion (p. 65) read as follows:
“A Western diplomatic source found it likely that if a person has been drafted for military service while residing abroad, he would be identified by the immigration authorities upon return to Syria as his name will then appear on a list of wanted persons. The immigration authorities will instruct him to report to the military usually within two weeks or up to one month. However, if he does not report to the military within the specified time, he will be called to the Military Court and he will be charged with draft evasion. Any prison sentence issued in absentia by a Military Court will be commuted to an additional three months of service in the army. It was added that in reality nobody goes to prison for draft evasion.
Based on information from a Syrian lawyer, the Swedish embassy reported in 2004 that: ‘Military courts decide penalty for matters related to the defence forces. The punishment for not showing up to service varies between 2-6 months. However, due to the issuance of amnesty decrees regularly and annually by the President it is not applied in practice. In addition, since these sentences are issued in absence, they are subject to objection and then cancellation. In this way, a person would be free within one day of arrest or surrender. Later the trial is repeated at the time when a person is free. The verdict would be either found innocent or the crime is covered by the amnesty law. ...’
According to Amnesty International men who evade compulsory military service (21 months’ duration) reportedly face different levels of penalty according to the circumstances of the case:
Persons who were abroad and failed to report when summoned for military service face arrest by the military police immediately upon return to Syria and sentence of two to three months of imprisonment (usually at Tadmur Prison);
Persons who fail to report for military service while in Syria face arrest and a prison term of three months, then further imprisonment for six months if they fail to undertake military service after completing the first term of imprisonment.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-79145
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LAPINSKAYA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1954 and resides in the town of Novogrodivka, Donetsk region, Ukraine.
5. The applicant instituted proceedings in the Novogrodivskyy Town Court of Donetsk Region against the “Novogrodivskaya” Mining Company 1/3 (Шахта 1/3 «Новогродівська») - a State-owned enterprise - to recover salary arrears and other payments due to her late husband.
6. On 1 March 2002 the Novogrodivskyy Town Court found in favour of the applicant (Рішення Новогродівського міського суду Донецької області) and awarded her UAH 2,290.80. The decision was sent for enforcement to the Novogrodivskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Новогродівського міського управління юстиції). However, the decision was not enforced, allegedly due to the failure of the Bailiffs' Office to act, in not selling the property of the Mining Company.
7. In June 2002 the applicant instituted proceedings in the Novogrodivskyy Town Court of the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for failure to enforce the court decision in her favour. On 26 June 2002 the Town Court rejected the applicant's claim, finding no fault had been committed by the Bailiffs' Service. The court stated that the Bailiffs' Service had acted properly in enforcing the decision of 1 March 2002. However, by a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs' Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company. Also on 26 December 2001, the ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital was entrenched in the Law on the Introduction of a Moratorium on the Forced Sale of Property. On 2 September 2002 the Donetsk Regional Court of Appeal upheld the decision of the first instance court. On 12 November 2002 the Novogrodivskyy Town Court of the Donetsk Region rejected the applicant's appeal in cassation against the decision of 26 June 2002 as submitted too late. On 24 December 2002 the Donetsk Regional Court of Appeal upheld this ruling.
8. The Government submitted that in October 2004 the debtor requested the Novogrodivskyy Town Court to review the judgment of 1 March 2002 in light of new circumstances. No further information was provided by the parties. In particular, the applicant stated that she was completely unaware of these proceedings.
9. According to the applicant, by November 2004 she received UAH 2,014.80; the rest of the debt due to her remains unpaid.
10. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110446
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF PETROVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1948 and lives in Dobrich.
5. On 21 January 1996 the applicant brought an action against a construction company, claiming that it had damaged her property by building a construction next to it. In February 2002 she modified her compensation claim.
6. In the period between 21 January 1996 and 13 January 2003 the Dobrich Regional Court conducted at least nineteen hearings. Between September 1999 and February 2001 the proceedings were stayed, awaiting the outcome of administrative proceedings in respect of the status of the construction. Two hearings were adjourned at the applicant’s request, one for correction of certain flaws in her modified claim, one due to improper summoning, and five due to the absence of the experts or a failure to submit their reports. Two hearings were rescheduled upon the expert’s request. Several hearings were postponed because the parties posed additional questions to the experts or requested gathering of further evidence.
7. The applicant’s claim was partly granted by the Regional Court on 13 January 2003, and upon appeal, by the Varna Court of Appeal on 22 May 2003. The courts ordered the defendant company to repair the damage caused to her property or to pay her BGN 11,960 (approximately EUR 5,980) plus interest and court fees.
8. In a final judgment of 18 November 2004 the Supreme Court of Cassation upheld the Court of Appeal’s judgment.
9. While the proceedings were pending before the Regional Court, the applicant requested that property of the defendant company be attached as a security of her claim. On 18 January 2000 the Regional Court imposed an injunction forbidding the defendant company to perform transactions with two of its real estates and one lorry. On 19 May 2000 the Varna Administrative Court annulled the injunction in respect of one of the real estates, reasoning that the other injunctions guaranteed the applicant’s claim to a sufficient extent.
10. After the judgment of the Court of Appeal of 22 May 2003 the applicant initiated enforcement proceedings. At the defendant company’s request, on 8 October 2003 the Supreme Court of Cassation stayed the enforcement proceedings pending the outcome of the review on points of law, because the defendant company had deposited the amount of BGN 11,960, equal to the damages awarded to the applicant.
11. After the final judgment of the Supreme Court of Cassation, on 29 February and again on 28 March 2005 the applicant requested from the enforcement judge the resuming of the enforcement proceedings, the transfer of the deposited amount to her bank account and the scheduling of other actions for gathering the awarded interest. However, she was informed that the deposited guarantee had been returned to the defendant company on 16 December 2004.
12. On 28 July 2005 the applicant and the defendant company signed an out-of-court agreement, under which she received the amount of BGN 22,000 (about EUR 11,000) which, according to her submissions, was less than the entire amount of the debt. On 17 September 2005 the enforcement proceedings were discontinued at the applicant’s request.
13. In 2007 the defendant company requested the lifting of the injunction in respect of the second real estate, stating that it had settled its debt. The applicant did not comment. On 28 November 2007 the Regional Court granted the request, reasoning that the injunction was no longer necessary. As the parties did not appeal against the decision, it became final on 7 December 2007.
14. The relevant domestic law concerning the complaint about delays under Article 217a of the 1952 Code of Civil Procedure is set out in the Court’s judgment in the case of Finger v. Bulgaria, no. 37346/05, § 43, 10 May 2011.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59459
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF STOIDIS v. GREECE
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: András Baka
TEXT: 7. Until 31 December 1992, when he was fired, the applicant used to work for the State Electricity Company (Δημόσια Επιχείρηση Ηλεκτρισμού, hereinafter DEI).
8. On 23 March 1993 he instituted civil proceedings before the singlemember first instance civil court of Athens to challenge his dismissal and ask for non-pecuniary damages. In asking for non-pecuniary damages the applicant claimed that DEI had invaded his privacy by sending a doctor to his house, while he was on sick leave, to check the state of his health. He also claimed that DEI wished to defame him because of his “anti-Greek” and “pro-Skopje” activities. The introductory writ ran in 163 pages and contained 20 different claims.
9. A hearing was fixed for 6 October 1993 but was cancelled because of the elections. On 10 October 1993 the applicant asked the court to fix a new hearing date. The court decided to resume the examination of the case on 9 February 1994 when it ordered an adjournment until 1 June 1994. On 1 June 1994 the defendant was not present in court. The court decided to adjourn the examination of the case until 9 January 1995. On 9 January 1995 none of the parties was present in court and the hearing was cancelled. On 10 January 1995 the applicant asked the court to fix a new hearing date. The court decided to resume the examination of the case on 18 May 1995 when the applicant’s action was finally heard. Judgment was delivered on 6 October 1995. The text was finalised in December 1995. The court ordered DEI to rehire the applicant and to pay him salary arrears. However, the court refused to grant the applicant compensation for non-pecuniary damage.
10. On 21 December 1995 DEI appealed. The applicant, who obtained a copy of the finalised text of the judgment on 22 December 1995, also appealed on 29 December 1995. He invoked 27 grounds and submitted 234 documents. The Court of Appeal of Athens decided to join the two appeals and hear them on 5 March 1996. On 25 June 1996 the court allowed DEI’s appeal and dismissed the applicant’s. The applicant claims that he received a copy of the decision in August 1997.
11. On 30 September 1997 the applicant appealed in cassation, invoking 65 grounds. The Court of Cassation heard the appeal on 27 October 1998. On 11 May 1999 the Court of Cassation rejected the applicant’s appeal. The text of the decision was finalised on 23 June 1999 and was filed on 12 July 1999.
12. According to section 32 of Law no. 1545/1985, in labour disputes the hearing must be scheduled to take place at the latest fifteen days after the institution of the proceedings and the decision must be issued within one month from the hearing.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70364
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SHANNON v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary and non-pecuniary damage -  financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 7. The applicant was born in 1948 and lives in Belfast.
8. The applicant was the chair of the Irish Republican Felons Club, a registered social club operating on the Falls Road, Belfast. In May 1997, the Royal Ulster Constabulary (“RUC”) carried out a search of the premises and removed many documents.
9. The applicant was subsequently required to attend for interview with a financial investigator appointed under the Proceeds of Crime (Northern Ireland) Order 1996. He did so on 27 January 1998 and answered all questions put to him.
10. On 16 April 1998, the applicant was charged by the police with false accounting and conspiracy to defraud.
11. On 2 June 1998, a further notice was served on the applicant under the 1996 Order, requiring his attendance before financial investigators at a police station on 11 June 1998. The maximum penalty for failure to attend an interview was six months' imprisonment or a fine not exceeding GBP 5,000. The notice, which was dated 1 June, stated that the investigation was into whether any person had benefited from theft or false accounting, contributing to the resources of a proscribed organisation or from contraventions of betting regulations. The applicant was required to attend at Woodbourne Police Station on 26 June 1998.
12. On 9 June 1998, the applicant's solicitors sent a letter seeking a written guarantee that no information or statements obtained during the interview would be used in criminal proceedings.
13. On 16 June 1998, a further notice, dated 16 June, was served on the applicant, again requiring him to attend the interview on 26 June 1998. The notice was served with a letter in which the investigators confirmed that they were aware of the criminal proceedings pending against the applicant. They set out the safeguards in paragraph 6 of Schedule 2 to the Order, and stated that the applicant therefore had the guarantees he sought. They added that paragraph 7 of Schedule 2 restricted the disclosure of information obtained by a financial investigator, and added that “this does not prevent the answers or information being used to further the investigation”.
14. On 22 June 1998, the applicant's solicitor sent a letter to the financial investigators indicating that the applicant's replies could become admissible evidence at a trial and suggesting that the purpose of the interview was to compel him to disclose his defence. He added that the applicant had been advised not to attend an interview unless a satisfactory response to the letter was received.
15. On 23 June 1998, the applicant's solicitor was informed by letter that the reason for the interview was not to force the applicant to disclose his defence but that a number of matters from the earlier interview required clarification and additional matters had also arisen.
16. On a request by the investigators, on 25 June the applicant's representatives informed the investigators that the applicant would not attend the interview. The interview did not take place.
17. On 14 September 1998, a summons charged the applicant with the offence of failing without reasonable excuse to comply with the financial investigator's requirement to answer questions or otherwise furnish information, contrary to paragraph 5(1) of Schedule 2 to the 1996 Order. On 25 February 1999, the applicant was convicted of this offence in the Magistrates' Court and fined the sum of GBP 200.
18. On 5 July 2002, the Belfast County Court allowed the applicant's appeal against conviction, finding that the prosecution had not proved the absence of a reasonable excuse. The judge noted that the Northern Ireland Court of Appeal had dealt with a similar case (Clinton v. Bradley [2000] NI 196) which related to the same legislation and the same investigation. The Northern Ireland Court of Appeal had held that as Parliament had put in place certain express limitations on the use of information obtained by investigators, it could not have intended that the person concerned could put forward the risk of self-incrimination as a “reasonable excuse”. In Clinton v. Bradley, however, the accused had refused to answer questions at an interview, and he had not been interviewed by the police, or charged with any offence.
19. The judge further noted that one of the grounds on which the information obtained by investigators could be used in criminal proceedings was where evidence inconsistent with the information was relied on by the defence. That ground had been amended in the light of the Court's judgment in the case of Saunders v. the United Kingdom, and the amendment would have afforded the applicant the protection he sought had it been in place at the time. The judge took the view that once he had been questioned by the police and charged, the applicant had a right not to answer questions that would have tended to incriminate him. The only outstanding matter was whether the applicant should have attended the interview and then refused to answer questions, or, as he did, refuse to attend the interview once he failed to receive the assurances he had asked for. The judge regarded the distinction as technical, and found that the prosecution had failed to establish the absence of a “reasonable excuse” for not answering questions about the proceeds of a crime, with which he had been formally charged.
20. On 17 July 2002, the prosecutor requested the County Court to state a case for the purpose of an appeal to the Court of Appeal in Northern Ireland.
21. On 11 December 2002, the Court of Appeal in Northern Ireland heard the appeal. On 20 December 2002, Lord Justice Carswell, giving judgment, considered, in the light of R. v. Hertfordshire County Council, ex parte Green Environmental Industries Ltd ([2000] AC 326), that Article 6 § 1 of the Convention is directed towards the fairness of the trial itself and is not concerned with extra-judicial inquiries “with the consequence that a person to whom those inquiries are directed does not have a reasonable excuse for failing or refusing to comply with a financial investigator's requirements merely because the information sought may be potentially incriminating”. The appeal was upheld, and the applicant's conviction confirmed.
22. The criminal proceedings for false accounting and conspiracy to defraud (see § 10 above) were struck out on grounds of delay by the Belfast Magistrates' Court in June 2002. The magistrate was asked by the office of the Director of Public Prosecutions to state a case for the Court of Appeal, but he died before having prepared the stated case.
23. The Proceeds of Crime (Northern Ireland) Order 1996 inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct.
24. Pursuant to paragraph 5(1) of Schedule 2, it was an offence for a person to fail, without reasonable excuse, to attend to answer questions by a Financial Investigator appointed under the Order. Paragraph 6 restricted the use that could be made of the statements made to three situations:
(a) on a prosecution for an offence under the Perjury (Northern Ireland) Order 1979;
(b) on a prosecution for some other offence where evidence inconsistent with any such answers or information is relied on by the defence, or
(c) on a prosecution for failing to comply with a requirement of the 1996 Order, such as attending to answer questions
On 14 April 2000, paragraph 6(b) was limited by the Youth Justice and Criminal Evidence Act 1999 to permit use of the statements only if they are adduced, or if they are the subject of questions at trial, by the defence.
25. According to paragraph 7 of Schedule 2, information obtained by a person in his capacity as a financial investigator may not be disclosed by him except to (a) a constable; (b) any Northern Ireland department or government department discharging its functions on behalf of the Crown; (c) to any competent body as defined, or (d) any foreign equivalent of (a) –(c).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1