ITEMID: 001-61648
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF NACHOVA AND OTHERS v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 14+2 - Prohibition of discrimination (Article 2-1 - Life;Effective investigation;Article 2 - Right to life);Pecuniary and non-pecuniary damage - award
JUDGES: Christos Rozakis
TEXT: 6. The case concerns the killing on 19 July 1996 of Mr Angelov and Mr Petkov by a member of the military police who was attempting to arrest them.
7. All the applicants are Bulgarian nationals who describe themselves as being of Roma origin.
8. Ms Anelia Kunchova Nachova, who was born in 1995, is Mr Angelov's daughter. Ms Aksiniya Hristova, who was born in 1978, is Ms Nachova's mother. Both live in Dobrolevo (Bulgaria). Ms Todorka Petrova Rangelova and Mr Rangel Petkov Rangelov, who were born in 1955 and 1954 respectively and live in Lom (Bulgaria), are Mr Petkov's parents.
9. In 1996 Mr Angelov and Mr Petkov, who were both twenty-one years old, were conscripts in the Construction Force (Строителни войски), a division of the army dealing with the construction of apartment blocks and other civilian projects.
10. Early in 1996 Mr Angelov and Mr Petkov were arrested for repeated absences without leave. On 22 May 1996 Mr Angelov was sentenced to nine-months' imprisonment and Mr Petkov to five-month imprisonment. Both had previous convictions for theft.
11. On 15 July 1996 they escaped from a construction site outside the prison where they had been brought for work and went to the home of Mr Angelov's grandmother, Ms Tonkova, in the village of Lesura. Neither man was armed.
12. Their absence was reported the following day and their names put on the military police's wanted list. A warrant for their arrest was received on 16 July 1996 by the Vratsa Military-Police Unit.
13. At around twelve noon on 19 July 1996 the officer on duty in the Vratsa Military-Police Unit received an anonymous telephone message that Mr Angelov and Mr Petkov were hiding in the village of Lesura. On at least one of the previous occasions when he had been absent without leave, it was there that Mr Angelov had been found and arrested.
14. The commanding officer, Colonel D., decided to dispatch four military police officers, under the command of Major G., to locate and arrest the two men. At least two of the officers knew one or both of them. Major G. apparently knew Lesura since, according to a secretary who worked at the municipality and was heard later as a witness, his mother was from the village.
15. Colonel D. told the officers that “in accordance with the rules” they should carry their handguns and automatic rifles and wear bullet-proof vests. He informed them that Mr Angelov and Mr Petkov were “criminally active” (криминално проявени) – a euphemism used to denote persons with previous convictions or persons suspected of offence – and that they had escaped from detention. The officers were instructed that all means and methods dictated by the circumstances were to be used to arrest them.
16. The officers immediately left for Lesura in a jeep. Two officers wore uniforms while the others were in civilian clothes. Only Major G. wore a bullet-proof vest. He was armed with a personal handgun and a 7.62 mm. calibre Kalashnikov automatic rifle. The other men carried handguns. Three Kalashnikov automatic rifles remained in the boot of the vehicle throughout the operation.
17. The officers were briefed orally by Major G. on their way to Lesura. Sergeant N. was to cover the east side of the house, Major G. the west side and Sergeant K. was to go into the house. Sergeant S., the driver, was to remain with the vehicle and keep watch over the north side.
18. At around 1 p.m. the officers arrived in Lesura. They asked a secretary at the town hall and one of the villagers, Mr T. M., to join them and show them Mr Angelov's grandmother's house. The vehicle drove into Lesura's Roma district.
19. Sergeant N. recognised the house since he had previously arrested Mr Angelov there for being absent without leave.
20. As soon as the jeep drew up in front of the house at between 1 p.m. and 1.30 p.m., Sergeant K. recognised Mr Angelov, who was inside, behind the window. Having noticed the vehicle, the fugitives tried to escape. The police officers heard the sound of a window-pane being broken. Major G. and Sergeants K. and N. jumped out of the vehicle while it was still moving. Major G. and Sergeant K. went through the garden gate, the former going to the west side of the house, and the latter entering the house. Sergeant N. headed to the east side of the house. Sergeant S. remained with the car, together with the secretary who worked at the town hall and Mr T. M.
21. Sergeant N. later testified that, having noticed Mr Angelov and Mr Petkov escaping through the window and running towards a neighbour's yard, he had shouted: “Stop, military police!”. He had pulled out his gun, but not fired any shots. The two men had carried on running. Sergeant N. had run out on to the street in an effort to intercept them by circumventing several houses. While running, he had heard Major G. shout: “Freeze, military police, freeze [or] I'll shoot!”. It was then that the shooting had started.
22. Major G. stated in his testimony:
“...I heard Sergeant N. shouting: 'Freeze, police'...I saw the privates; they were running and then stopped in front of the fence between Ms Tonkova's and the neighbour's yards... I saw that they were trying to jump over the [chain-link] fence, so I shouted: 'Freeze, or I'll shoot'. I released the safety-catch and loaded the automatic gun. Then I fired a shot in the air, holding the automatic rifle upwards with my right hand, almost perpendicular to the ground... The privates climbed over the [chain-link] fence and continued to run, I followed them, then I fired one, two or three more times in the air and shouted: 'Freeze!', but they continued running. I again fired shots in the air with the automatic and shouted: 'Freeze, or I will shoot with live cartridges”, I warned them again, but they continued running without turning back. I fired to the right [of the two men] with the automatic after the warning, aiming at the ground, hoping that this would make them stop running. I again shouted “Freeze!” when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence. I aimed at their feet. The ground where I stood was at a lower level... [B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them. The gradient there was a bit steep, [I] was standing on lower ground ... the second fence was on the highest ground, that is why when I fired the first time I aimed to the side [of the two men], as I considered that nobody from the neighbouring houses would be hurt, and the second time I aimed at the privates, but fired at their feet. Under Regulation 45 we can use firearms to arrest members of the military forces who have committed a publicly prosecuted offence and do not surrender after a warning, but in accordance with paragraph 3 of [that regulation] we have to protect the lives of the persons against whom [we use firearms] – for that reason I fired at [the victims'] feet – with the intention of avoiding fatal injury. The last time that I shot at the privates' feet, I was 20 metres away from them and they were exactly at the south-east corner of the neighbouring yard. After the shooting they both fell down...They were both lying on their stomachs, and both gave signs of life, ... moaning ... then Sergeant S. appeared, I called him ... and handed him my automatic rifle...”
23. According to the statements of the three subordinate officers, Mr Angelov and Mr Petkov were lying on the ground in front of the fence, with their legs pointing to the direction of the house from which they had come. One of them was lying on his back and the other on his stomach.
24. A neighbour, Mr Z., who lived opposite Mr Angelov's grandmother, also gave evidence. At about 1.00 or 1.30 p.m. he had seen a military jeep pull up in front of Ms Tonkova's house. Then he had heard somebody shout: “Don't run, I am using live cartridges”. He had then heard shots. He had looked into the next yard and seen Mr Angelov, whom he knew, and another man leap over the chain-link fence between Ms Tonkova's and another neighbour's yards. He had not seen the man who had been shouting as he was behind Ms Tonkova's house. Then he had seen Mr Angelov and Mr Petkov fall to the ground and the man who had shot them emerge, holding an automatic rifle. Mr Z. further stated:
“The other men in uniform then started remonstrating with [the man who had shot Mr Angelov and Mr Petkov] telling him that he should not have fired, that he should not have come with them. Of those who came in the jeep, only the senior officer fired ... I know him by sight, he has relatives in Lesura”.
25. Sergeant S. stated that upon arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house: “Freeze, police!”. He had also heard Major G. shout several times: “Freeze, police!”, from the west side of the house. Then Major G. had started shooting with his automatic weapon, while continuing to shout. Sergeant S. had then entered the yard. He had seen Major G. leap over the chain-link fence and heard him shouting. He had gone up to him, had taken his automatic rifle and seen Mr Angelov and Mr Petkov lying on the ground next to the fence. They were still alive. At that moment Sergeant K. had come out of the house. Major G. had gone to get the jeep and had reported the event over the vehicle radio. When they returned, Sergeant N. had appeared from the neighbouring street and helped them put the wounded men in the vehicle.
26. The head of the Vratsa Military-Police Unit and other officers were informed about the incident at around 1.30 p.m.
27. Sergeant K. testified that he had entered the house and had been speaking to Mr Angelov's grandmother and another woman when he heard Major G. shouting at Mr Angelov and Mr Petkov to halt. In the house, he had noticed that a window-pane in the room overlooking the yard had been broken. He had been on the verge of leaving the house when he heard shooting coming from behind the house. On his way to the yard he had met Major G., who had told him that the fugitives had been wounded. Sergeant K. had then climbed over the chain-link fence and approached the wounded men, who were still alive and moaning. He had found himself holding the automatic rifle, but could not remember how it had come into his possession. He had opened the magazine and seen no cartridges in it. There was only one cartridge left in the barrel.
28. Immediately after the shooting, a number of people from the vicinity gathered. Sergeant K. and Sergeant S. took the wounded men to the Vratsa Hospital, while Major G. and Sergeant N. remained at the scene.
29. Mr Angelov and Mr Petkov died on the way to Vratsa. They were pronounced dead on arrival at the hospital.
30. Mr Angelov's grandmother, Ms Tonkova, gave the following version of the events: Her grandson and Mr Petkov had been in her house when they had noticed a jeep approaching. She had gone outside and seen four men in uniform. They had all entered the yard, one of them had gone round the house and started shooting with an automatic rifle for a very long time. The other three men were also armed but had not fired any shots. She had been in the yard, pleading with the man who had been shooting to stop. However, he had walked towards the back of the house. Then she had heard shooting in the backyard. She had followed and then seen her grandson and Mr Petkov lying in the neighbours' yard with bullet wounds.
31. According to another neighbour, Mr M.M., all three policemen were shooting. Two of them had fired shots in the air and the third officer – who had been on the west side of the house (Major G.) – had been aiming at someone. Mr M.M. had heard some fifteen to twenty shots, perhaps more. Then he had seen the military policemen go to the neighbouring yard, where Mr Angelov and Mr Petkov had fallen. That yard belonged to Mr M.M. and his daughter. On seeing his grandson – a young boy – standing there, Mr M.M. had asked Major G. for permission to approach and collect him. Major G. had pointed his gun at him in a brutal manner and had insulted him, saying: “You damn Gypsies!”.
32. On 19 July 1996 all the officers involved made separate reports in connection with the deaths to the Vratsa Military-Police Unit. None of them was tested for alcohol.
33. A criminal investigation into the deaths was opened the same day and between 4 p.m. and 4.30 p.m. a military investigator inspected the scene. In his report he described the scene, including the respective positions of Ms Tonkova's house, the first chain-link fence, and the spent cartridges and bloodstains found there. He indicated that the structure of the first chain-link fence was damaged and the fence had been torn down in one place.
34. A sketch map was appended to the report. It showed the yard of Ms Tonkova's house and the neighbouring yard where Mr Angelov and Mr Petkov had fallen. The places where spent cartridges had been found were indicated. The sketch-map and the report gave only some of the measurements of the yards. The gradient and other characteristics of the terrain and the surrounding area were not described.
35. Nine spent cartridge were retrieved. One cartridge was found in the street, in front of Ms Tonkova's house (apparently not far from where the jeep had stopped). Four cartridges were discovered in Ms Tonkova's yard, behind the house, close to the first chain-link fence separating her yard from the neighbour's yard. Three cartridges were found in the neighbour's (Mr M.M.'s) yard, close to the place where the bloodstains were found. Although the exact distance between those cartridges and the bloodstains was not given, it appears from the other measurements on the sketch map to be between 5 and 10 metres. A ninth cartridge was found subsequently and handed in to the military police by Mr Angelov's uncle. There is no record of where it was found.
36. The bloodstains were a metre apart. They were marked on the sketch map as being slightly more than nine metres from the first chain-link fence. The distance between the bloodstains and the second fence that Mr Angelov and Mr Petkov were apparently trying to scale when they were shot was not indicated. Samples of the bloodstains were taken by the investigator.
37. On 21 July 1996, a pathologist carried out an autopsy.
According to the autopsy report no. 139/96, the cause of Mr Petkov's death was “a wound to the chest”, the direction of the shot having been “from front to back”. The wound was described as follows:
“There is an oval-shaped wound of 2.5 cm by 1 cm in the chest, at a distance of 144 cm from the feet, with missing tissues, and jagged and compressed edges in the area of the left shoulder. There is an oval-shaped wound of 3 cm in the back, to the left of the infrascapular line at a distance of 123 cm from the feet with missing tissues, jagged and torn edges turned outwards.”
38. As regards Mr Angelov, the report found that the cause of death had been “a gunshot wound, which [had] damaged a major blood vessel” and that the direction of the shot had been “from back to front”. It was further stated:
“There is a round wound on the left of the buttocks at a distance of 90 cm from the feet... with missing tissue, jagged walls and edges, and a diameter of about 0.8 cm ... There is an oval wound of 2.1 cm with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [of the abdomen], at a distance of 95 cm from the feet, slightly to the left of the navel.”
39. The report concluded that the injuries had been caused by an automatic rifle fired from a distance.
40. On 22, 23 and 24 July 1996 the four military police officers, two neighbours (M.M. and K.), the secretary who worked at the town hall, and Mr Angelov's uncle were questioned by the investigator. Mr Petkov's mother was also questioned subsequently.
41. On 1 August 1996 Major G.'s automatic rifle, a cartridge found in it and the nine spent cartridges found on the scene were examined by a ballistics expert from the Vratsa Regional Directorate of Internal Affairs. According to his report the automatic rifle was serviceable, all nine retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable.
42. A report by a forensic expert dated 29 August 1996 found an alcohol content of 0.55 per thousand in Mr Petkov's blood and 0.75 per thousand in Mr Angelov's blood (under Bulgarian law driving with alcohol content of more than 0.5 per thousand is an administrative offence).
43. On 20 September 1996 a forensic examination of the bloodstains found on the scene was carried out by an expert from the Vratsa Regional Directorate of Internal Affairs and they were found to match the victims' blood groups.
44. On 20 January and on 13 February 1997 another neighbour (Mr T.M.) and Ms Hristova (one of the applicants) were questioned. On 26 March 1997 Mr Angelov's grandmother and a neighbour, Z., were questioned.
45. On 7 January 1997 the families of Mr Angelov and Mr Petkov were given access to the investigation file. They requested that three more witnesses, T.M., Mrs Tonkova and Z.H. be heard. Their request was granted. The witnesses were heard by the investigator on 20 January and 26 March 1997. The applicants did not ask for any other evidence to be obtained.
46. On 31 March 1997 the investigator completed the preliminary investigation and drew up a final report. He noted that Mr Angelov and Mr Petkov had escaped from detention while serving a prison sentence, and had thus committed an offence. Major G. had done everything within his power to save their lives: he had instructed them to stop and surrender and had fired warning shots. He had aimed at them only after seeing that they were continuing to run away and might escape. He had not sought to injure any vital organs. The investigator, therefore, concluded that Major G. had acted in accordance with Regulation 45 of the Military-Police Regulations and made a recommendation to the Pleven Regional Prosecution Office that the investigation should be closed as Major G. had not committed an offence.
47. On 8 April 1997 the Pleven Military Prosecutor accepted the investigator's recommendation and terminated the preliminary investigation into the deaths. He concluded that Major G. had proceeded in accordance with Regulation 45 of the Military-Police Regulations. He had warned the two men several times and fired shots in the air. He had shot them only because they had not surrendered, as there had been a danger that they might escape. He had sought to avoid inflicting fatal injuries. No one else had been hurt.
48. When describing the victims' personal circumstances, including such matters as their family, education and previous convictions, in the decree, the prosecutor mentioned that they both originated from “minority families”, a euphemism mostly used to designate people from the Roma minority.
49. By an order of 11 June 1997 the prosecutor of the Armed Forces Prosecutor's Offices dismissed the applicants' subsequent appeal on the ground that Mr Angelov and Mr Petkov had provoked the shooting by trying to escape and that Major G. had taken the steps required by law in such situations. Therefore, the use of arms had been lawful under Regulation 45 of the Military Police Regulations.
50. On 19 November 1997 the prosecutor from the Investigation Review Department in the Armed Forces Prosecutor's Office dismissed a further appeal on grounds similar to those relied on by the other public prosecutors.
51. The Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, prepared by the EU network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, has been reported in a number of EU member States, such as Austria, France, Greece, Ireland, Italy and Portugal.
52. The European Commission against Racism and Intolerance at the Council of Europe, in its country reports in the last four years, has expressed concern about racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia.
53. In its report of 2000 on Bulgaria, the European Commission against Racism and Intolerance (ECRI) stated, inter alia:
“Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma/Gypsy community. The Council of Europe's Committee for the Prevention of Torture (CPT) noted in March 1997 that 'criminal suspects deprived of their liberty by the police in Bulgaria run a significant risk of being ill-treated at the time of their apprehension and/or while in police custody, and ... on occasion resort may be had to severe ill-treatment/torture'... [T]he Human Rights Project documents in its Annual Report for 1998 numerous other cases of police misconduct towards members of the Roma/Gypsy community. It cites as the most common violations: use of excessive physical force during detention for the purposes of extorting evidence; unjustified use of firearms; home searches conducted without search warrants; destruction of private property; and threats to the personal security of individuals who had complained against the police to the competent authorities...
The European Roma Rights Centre reports that [criminal proceedings against perpetrators of violent acts] have been used in recent years to protect Roma rights, but that convictions are isolated compared to the scale of the problem. The Human Rights Project notes in its Annual Report for 1998 that the majority of complaints filed by this non-governmental organisation on behalf of Roma victims of police violence have not been followed up by the authorities.
In the present situation, victims seem unwilling to come forward with complaints, particularly when they are awaiting court sentences: there may be a perception that bringing complaints may actually worsen the situation of the victim before the courts. A lack of confidence on the part of victims in the possibility of redress may be compounded by some unwillingness on the part of the authorities to admit that problems of police misconduct do exist. A first step would therefore seem to be the need to acknowledge on a public level that problems exist in this area, and for police and political leaders to express their strong commitment to ensuring that any allegations of misbehaviour or criminal acts on the part of the police are promptly and stringently investigated and dealt with.
ECRI in its first report recommends that an independent body be set up – acting at central and local level – to investigate police, investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished. ECRI would wish to reiterate this proposal. A specialised body to combat racism and discrimination, as advocated above, could also play an important role in this respect...
It is reported that Roma/Gypsies in Bulgarian prisons are also subject to physical abuse by prison guards and other officials: to date; no prosecution of abuses by prison officials has been initiated...
ECRI is concerned at the persistence of widespread discrimination against members of the Roma/Gypsy community in Bulgaria... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards Roma/Gypsy communities, often with the silent collusion of local police. ECRI stresses that such forms of discrimination practised by local authorities should not be tolerated by the national authorities. In this respect, it is particularly important to ensure that national policies and legislation against discrimination are understood and applied at a local level. Training for officials working within local administrations, to raise awareness and combat prejudices, would also be most desirable.
ECRI welcomes signs that the Bulgarian government is willing to address such issues of discrimination. This attitude has been demonstrated by the adoption in April 1999 of the 'Framework Programme for Equal Integration of Roma in Bulgarian Society'. This programme was prepared on the initiative of Roma/Gypsy organisations and in discussion with representatives of all the Roma associations in Bulgaria... This document contains strategies for achieving equality for Roma in Bulgaria, and poses as the main issue the discriminatory treatment of Roma.”
54. The applicants in their submissions referred also to the findings of specialised bodies of the United Nations (see paragraph 153 below).
55. Non-governmental organisations, such as Human Rights Project and Amnesty International have reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents.
56. Section 45 of the Regulations (Regulation 45), as in force at the relevant time, provided as follows:
“(1) Military police officers may use firearms ... under the following circumstances:...
2. to arrest a person serving in the army who has committed or is about to commit a publicly prosecuted offence and who does not surrender after being warned ...
(2) The use of force shall be preceded by an oral warning and a shot fired in the air ...
(3) When using firearms military police officers shall be under a duty, as far as possible, to protect the life of the person against whom they use force and to assist the wounded...
(5) Whenever firearms have been used, a report shall be prepared describing the circumstances which provoked their use; [the report] shall be transmitted to the superiors of the officer concerned.”
57. In December 2000 Regulation 45 was superseded by Decree No. 7 of 6 December 2000 on the use of force and firearms by military police (published in State Gazette No. 102/2000, amended in 2001). According to section 21 of the Decree, firearms may be used, inter alia, for the arrest of any person who has committed an offence of the category of publicly prosecuted offences. The vast majority of offences under the Criminal Code fall within that category, except offences prosecuted privately, such as light bodily injury and certain types of criminal libel. Nevertheless, according to sections 2, 4(1) and 21 of the Decree, the nature of the offence committed by the person against whom the force and firearms are used and the character of the offender are factors to be taken into consideration. Also, force and firearms may only be used in the last resort, where the aims pursued cannot be achieved by any other means.
58. Article 12 of the Criminal Code regulates the degree of force that may be used in self-defence. It requires essentially that any action in self-defence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances. The provision does not regulate, however, cases where force has been used by a police officer or another person in order to effect an arrest, without there being an attack on the arresting officer or any third party. Until 1997 no other provision regulated that matter. It appears, nevertheless, that on some occasions the courts applied Article 12 by analogy.
59. To fill that lacuna, in its interpretative direction no. 12 issued in 1973, the Supreme Court proclaimed, without further clarification, that causing harm in order to effect an arrest should not lead to prosecution if no more force was used than was necessary (12-1973-PPVS).
60. In its decision no. 15 of 17 March 1995, the Supreme Court, while noting that the use of force in order to effect an arrest was not regulated by law and thus engendered difficulties for the courts, considered that the principles to be applied were those that had been identified by legal commentators. In particular, inflicting harm would be justified only where there was a reasonable suspicion that the person to be arrested had committed an offence, if there were no other means to effect the arrest and if the harm caused was proportionate to the seriousness of the offence. The Supreme Court also stated:
“... [Causing harm to an offender in order to effect an arrest] is an act of last resort. If the offender does not attempt to escape or ... does attempt to escape, but to a known hiding-place, causing harm will not be justified...
The harm caused must be proportionate to the seriousness ... of the offence. If the offender has committed an offence representing insignificant danger to the public, his life and health cannot be put at risk. Putting his life or health at risk could be justified, however, where a person is in hiding after committing a serious offence (such as murder, rape or robbery).
The means used to effect the arrest (and the harm caused) must be reasonable in the circumstances. This is the most important condition for lawfulness...
Where the harm caused exceeds what was necessary ..., that is to say, where it does not correspond to the seriousness of the offence and the circumstances obtaining during the arrest, ... the person inflicting it will be liable to prosecution...”
61. In 1997 Parliament decided to fill the legislative lacuna by adding a new Article 12a to the Criminal Code. It provides that causing harm to a person while arresting him or her for an offence shall not be punishable where no other means of effecting the arrest existed and the force used was necessary and lawful. The force used will not be considered “necessary” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary. Few judgments interpreting Article 12a have been reported.
62. Article 192 provides that proceedings concerning publicly prosecuted crimes may only be initiated by a prosecutor or an investigator, acting on a complaint or ex officio. Under Article 237 § 6, as worded until 1 January 2000, the victim had a right of appeal to a higher ranking prosecutor against a decision not to proceed with pending criminal proceedings. The victim had no other means of challenging a refusal to prosecute.
63. When military courts have jurisdiction to hear a case, as for example when it concerns military-police officers, the responsibility for conducting the investigation and prosecuting lies with the military investigators and prosecutors, whose decisions are amenable to appeal before the Chief Public Prosecutor.
64. Article 63 entitles victims of crime to join the criminal proceedings, and in that connection to claim damages, to inspect the case file and take copies of relevant documents, to adduce evidence, to raise objections, to make applications and to appeal against the decisions of the investigating and prosecuting authorities.
65. The Protection against Discrimination Act was passed in September 2003 and entered into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery providing effective protection against unlawful discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services.
66. Section 9 provides for a shifting burden of proof in discrimination cases. Under that section, where the claimant has proved facts from which an inference that there has been a discriminatory treatment might be drawn, it is incumbent on the defendant to prove that there has been no violation of the right to equal treatment. The Act also provides for the creation of a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints.
67. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
68. Paragraph 9 provides:
“Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
69. According to other provisions of the Principles, law enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved” (paragraph 5). Also, “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law” (paragraph 7). National rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”.
70. Paragraph 23 of the Principles states that victims or their family should have access to an independent process, “including a judicial process.” Further, paragraph 24 provides:
“Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.”
71. The United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65, provide, inter alia, that there shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions and that the investigation should aim at, inter alia, determining “any pattern or practice which may have brought about” the death. Paragraph 11 states:
“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles.”
Paragraph 17 states:
“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law...”
72. In its decision of 21 November 2002, the Committee, examining Complaint No. 161/2000 submitted by Hajrizi Dzemajl and others against Yugoslavia, found that a mob action by non-Roma residents of Danilovgrad, Montenegro, who destroyed a Roma settlement on 14 April 1995 in the presence of police officers, was “committed with a significant level of racial motivation”. That fact aggravated the violation of Article 16 § 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment found in the case.
73. In assessing the evidence, the CAT noted that it had not received a written explanation from the State party concerned and decided to rely on “the detailed submissions made by the complainants”.
74. Council Directive 2000/43/CE of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/CE of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, provide, in Article 8 and Article 10 respectively:
“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.
3. Paragraph 1 shall not apply to criminal procedures.
...
5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”
75. The preambles to the directives state, inter alia, that national rules for the appreciation of the facts may provide for indirect discrimination to be established by any means including on the basis of statistical evidence.
76. This provision, which was introduced in February 2003, provides:
“The penalties incurred for a crime or major offence shall be increased where the offence is committed on account of the victim's actual or supposed membership or non-membership of a particular ethnic group, nation, race or religion.
The aggravating circumstance defined in the first paragraph is constituted where the offence is preceded, accompanied or followed by written or spoken comments, images, objects or acts of any kind which damage the honour or consideration of the victim or of a group of persons to which the victim belongs on account of their actual or supposed membership or non-membership of a particular ethnic group, nation, race or religion.”
VIOLATED_ARTICLES: 14
2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-83421
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF UKRAINE-TYUMEN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - claim dismissed;Pecuniary damage - reserved
JUDGES: Peer Lorenzen
TEXT: 4. The applicant is a Ukrainian joint venture based in Kyiv, with legal personality under Ukrainian law.
5. In June 1995 the Governor of the Tyumen Region of the Russian Federation submitted a proposal to the President of Ukraine to co-fund a joint venture for strengthening and further improvement of trade links between Ukraine and the Tyumen Region. The Governor also suggested that Ukraine should transfer title to a building in Kyiv to the future company, so that it could be used as its head office.
6. In September 1995 the applicant company was founded by six companies, including the Ukrresursy State Enterprise.
7. On 20 August 1996 the applicant's articles of association were amended, the number of co-founders having increased to seven entities, including the Ukrresursy State Enterprise and the State Property Fund of Ukraine (“the Fund”). The Fund was stated to be acting on behalf of the Ukranaftoprodukt State Enterprise (“Ukranaftoprodukt”). Each founder was declared to hold 14.28% of the applicant's share capital. While six companies were to pay equal amounts of money for their shares (USD 71,542), the Fund undertook to transfer to the applicant company a title to the building valued at USD 71,542, and belonging, as was stated in the articles of association, to Ukranaftoprodukt.
8. On 30 August 1996 Ukranaftoprodukt, acting on the Fund's instructions, transferred title to an administrative building in Kyiv to the applicant. Ukranaftoprodukt continued to use the building as its premises.
9. According to the applicant's amended articles of association, it was established mainly for the purposes of obtaining profit for the shareholders and for the creation of an infrastructure for the cooperation between Ukrainian and Tyumen companies pursuant to intergovernmental decisions aiming at improving effectiveness of business links and implementation of joint programmes, such as the sale of oil, gas, wood, agricultural products; legal advice; organisation of exhibitions; other commercial activities necessary for achieving the goals of the company. The applicant company enjoyed all the rights of a separate legal entity. The applicant's shareholders were entitled to take part in its management, to receive a part of its profit, to be informed about its activities etc. The property of the applicant company consisted of the objects and money transferred to its share capital by the shareholders, as well as the funds received by the applicant from other sources. The shareholders did not enjoy separate rights over the objects transferred to the applicant as their contributions.
10. In October 1998 the Kyiv City State Administration (“the City Administration”) instituted proceedings in the Higher Arbitration Court of Ukraine against the Fund, Ukrnaftoprodukt and the applicant company, seeking recovery of title to the building, claiming that it owned the building and alleging that the title to the latter had been transferred to the applicant ultra vires.
11. On 29 December 1998 the court invalidated the transfer of 30 August 1996 and ordered Ukrnaftoprodukt to give the building back to the City Administration. The court found that that the building belonged to the Kyiv City Administration and that the Ukrnaftoprodukt had not been entitled to transfer it to the applicant.
12. Ukranaftoprodukt lodged a request for review of the decision of 29 December 1998 with the panel of the Higher Arbitration Court for the review of judgments, rulings and resolutions (the “Review Panel”).
13. On 11 March 1999 the Review Panel quashed the judgment of 29 December 1998 and rejected the claim of the City Administration. The panel held that the claim had been lodged out of time and that there was no evidence that the City Administration was the lawful owner of the building.
14. On 24 March 2000 the Presidium of the Higher Arbitration Court rejected the request for supervisory review (the “protest”) of the resolution of 11 March 1999, lodged by the President of that court, as unsubstantiated.
15. On 24 January 2001 the Prosecutor General of Ukraine, following the City Administration's request, lodged a protest with the Plenary Higher Arbitration Court (the “Plenary Court”), seeking supervisory review proceedings in the case. On 15 February 2001 the Plenary Court, in the presence of the representatives of the General Prosecutor's office, allowed the protest, quashed the resolutions of 11 March 1999 and 24 March 2000, and upheld the judgment of 29 December 1998. In its decision, the court summarised the Prosecutor General's arguments and found them substantiated. No other reasons were given for its decision. The parties were not invited to participate in the hearing before the Plenary Court. The applicant's comments on the protest of the Prosecutor General were not examined by the Plenary Court.
16. According to the applicant, on 2 November 2001 its articles of association were amended to the effect that the Ukrainian authorities were no longer a shareholder.
17. The Government contended that the State remained one of the founders of the applicant company and, hence, the owner of 28.56% of its share capital.
18. The relevant provisions of the Act read as follows:
“A company shall be the owner of:
[i] the property which its founders ... transferred to it;
[ii] the objects which it produced...;
[iii] the profit which it received...”
“Participants and founders of a company may transfer to it as their contribution buildings ..., money ...
The contribution expressed in karbovatsi shall constitute the founder's and participant's share in the [company's] statutory fund.”
19. The relevant provisions of the Act read as follows:
“In accordance with the Constitution of Ukraine, the arbitration courts shall have jurisdiction over economic cases.
The arbitration court is an independent body with jurisdiction over all economic disputes between entities, public and other bodies, and over litigation arising out of insolvency.”
“The Higher Arbitration Court shall be composed of the President, the First Deputy President, the President's deputies, and the judges and [it] shall sit as:
the Plenary Higher Arbitration Court;
the Presidium of the Higher Arbitration Court;
the panels for the consideration of disputes and for the review of judgments, rulings, resolutions.”
20. The relevant provisions of the Code of Arbitration Procedure provided:
“The Higher Arbitration Court shall consider cases:
1) in which one of the parties is ... the Kyiv City State Administration...”
“The lawfulness and reasoning of a judgment, ruling or resolution of an arbitration tribunal ... may be reviewed under the supervisory procedure upon the party's request or following a protest by a prosecutor or his deputy, in accordance with this Code and other laws of Ukraine.
The party's request for review of a judgment ... shall be examined by ... the panel of the Higher Arbitration Court for the review of judgments, rulings and resolutions.
The following persons are empowered to lodge a protest:
The Prosecutor General and his deputies...”
“The arbitration court shall be entitled to review under the supervisory procedure the lawfulness and reasoning of a judgment, ruling, resolution on its own initiative...”
“... The panel ... shall review under the supervisory procedure:
1) a judgment and ruling concerning a dispute which was adjudicated by the Higher Arbitration Court...”
“A judgment, ruling, resolution shall be reviewed by a panel of the President of the Higher Arbitration Court or his deputy and a judge of the Higher Arbitration Court. If they do not agree on the outcome of the review, the President of the Higher Arbitration Court or his deputy may report to the Presidium of the Higher Arbitration Court who decides the matter...
A judgment, ruling, resolution shall be reviewed by the President of the Higher Arbitration Court or his deputy and two judges of the panel, if the application of law or assessment of evidence in the case is difficult. In such a case, the decision shall be adopted by a majority of votes.
A judgment or ruling delivered by the Deputy President of the Higher Arbitration Court or delivered in the hearing in which he presided shall be reviewed by the President of the Higher Arbitration Court and two judges of the panel. In such a case, the resolution shall be adopted by a majority of votes.
A judgment or ruling delivered by the President of the Higher Arbitration Court or in the hearing in which he presided shall be reviewed by the Presidium of the Higher Arbitration Court.
If necessary, the parties may be invited to give their explanations at the panel's hearing.”
“The President of the Higher Arbitration Court, the Prosecutor General of Ukraine or his deputies have a right to lodge with the Presidium of the Higher Arbitration Court a protest against the resolution delivered by the panel of the Higher Arbitration Court for economic disputes.
A party to the proceedings has a right to lodge with the Presidium of the Higher Arbitration Court an application for supervisory review of the judgment or ruling delivered by the President of the Higher Arbitration Court in the hearing in which he presided...”
“The President of the Higher Arbitration Court, the Prosecutor General of Ukraine have a right to lodge with the Plenary Higher Arbitration Court a protest against the resolution delivered by the Presidium of the Higher Arbitration Court.
Following its deliberations, the Plenary Higher Arbitration Court shall adopt a resolution...”
“An application for supervisory review ... shall be lodged with the arbitration court which adjudicated the case. If the supervisory review is to be carried out by the Higher Arbitration Court, the application, together with the case-file, shall be submitted by the relevant arbitration court to the Higher Arbitration Court within five days following the receipt of the application.
The protest ... shall be lodged with the arbitration court competent to review the judgment...
Copies of the application or protest shall be sent to the parties...
The enforcement proceedings shall not be suspended if an application or a protest is lodged, save in the cases where the judgment ... concerns the transfer of money and the forced taking of property...”
“An application ... and a protest must be lodged within two months of the date of the judgment...”
“Upon the receipt of a copy of the application for supervisory review ... or of a protest, a party shall send to the arbitration court, other parties ... [its] observations [in reply].
...
The absence of the [parties'] observations ... shall not prevent [a court] from carrying out the review.”
“The parties may participate in [the proceedings on] the review... The prosecutor ... shall take part in [the proceedings on] the review, which were initiated upon [his] protest. The non-appearance of the parties or the prosecutor ... shall not prevent [the court] from carrying out the review...
The supervisory review ... shall be completed within two months of the receipt of an application or protest...
A judgment, ruling, resolution of the arbitration court may be reviewed under the supervisory procedure no later than within one year after their delivery.”
“... [T]he arbitration court has power:
[i] to leave a judgment, ruling, resolution without changes;
[ii] to change a judgment, ruling, resolution;
[iii] to quash a judgment, ruling, resolution, and to adopt a new judgment, remit a case for a fresh consideration, discontinue the proceedings, or leave a case without consideration.
A judgment, ruling, resolution ... shall be reviewed as a whole, irrespective of the grounds for an application for supervisory review or a protest.
An arbitration court reviewing a judgment, ruling, resolution under the supervisory procedure shall have all the powers of an arbitration court considering an economic dispute.
The supervisory review of a judgment, ruling, resolution by the Higher Arbitration Court shall be final, save when a party is outside the territory of Ukraine and there is an agreement between the relevant States for a different procedure of review.”
“...
1) incomplete examination of the circumstances relevant to a case;
2) lack of proof of the relevant circumstances established by a court;
3) lack of conformity of the conclusions [of a court] ... with the circumstances of a case;
4) violation or incorrect application of substantive or procedural law...”
“A judgment, ruling, resolution of an arbitration court shall be final and binding on the day of their delivery...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4533
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: IMMLER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, born in 1932, is an Austrian national of German origin and resident in Lochau, Austria.
In 1993 criminal proceedings were instituted against the applicant on the suspicion of insult. In these proceedings defence counsel assisted him.
On 16 March 1994, following a hearing, the Lindau (Bodensee) District Court (Amtsgericht) convicted the applicant of insult and of having caused false suspicion, and imposed a fine of 80 daily rates of 80 German marks (DEM).
According to section 185 of the Penal Code (Strafgesetzbuch), insult (Beleidigung) is an offence punishable with a maximum of one year's imprisonment or a fine.
The District Court found that in the course of a dispute between the applicant and the foreign couple Mr and Mrs I. about their alleged unlawful parking, he had stated that “they came from the Balkan and did not know about German law”, and he had called them “Kanaken”, a term used in German language to disparage foreigners. Moreover, in the investigation proceedings instituted at Mr and Mrs I.’s request, he laid information against them pretending that they had insulted him in the course of the above dispute, that Mr I. had threatened him with force and that they had committed a parking offence. Subsequently, the applicant had also laid information against a witness of the above dispute, Mr S., pretending that this person had also insulted him. The District Court established these facts on the basis of the applicant’s statements as well as on the evidence given by Mr and Mrs I., Mr S., Mrs H., the applicant’s life companion, and Mr P., a customs officer having witnessed the dispute in the course of an observation of the place. It also had before it photographs of the place in question.
On 11 November 1994, following oral hearings, the Kempten Regional Court (Land-gericht), upon the applicant’s appeal, reduced the fine to 80 daily rates of DEM 40 and dismissed the remainder of the appeal. The Regional Court, on the basis of its own taking of evidence, confirmed in essence the establishment of facts by the District Court. Thus the applicant had started a dispute with Mr and Mrs I. about their allegedly wrong parking, stating that “they were not on the Balkan and had to comply with German traffic regulations” and, in his annoyance, he had called them “Kanaken”. The court found that Mrs H.’s statements were refuted by the evidence given by Mr P., a neutral witness who had credibly explained that as a dog-fancier he would have seen Mrs H. and her dog. The Regional Court, having regard to the material before it, including a site plan and photographs, also considered that an inspection of the place of the events had not been necessary. Furthermore, the Regional Court rejected the applicant’s arguments that the expression “Kanaken” was a neutral denomination of South Sea Islanders, considering that in German language this expression was unfortunately used, in a disparaging manner, in relation to foreigners.
On 28 March 1995 the Bavarian Court of Appeal (Oberstes Landesgericht) dismissed the applicant’s appeal on points of law.
On 3 November 1995 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional appeal. The decision was served on 14 November 1995.


ITEMID: 001-90718
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CETVERTAKAS AND OTHERS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 4. The first applicant, Mr Andrius Četvertakas, was born in 1973. The second applicant, Ms Ona-Danguolė Četvertakienė, was born in 1941. The third applicant, Mr Viktor Četvertak, was born in 1943. The applicants live in Vilnius. The second and the third applicants are parents of the first applicant.
5. In 1993 the first applicant bought part of a building, including a cellar and warehouse, and a plot of land adjacent to the building. The seller of the property, R.R., had purchased it from the local authorities.
6. In 1994 the first applicant’s neighbour, A.K., bought another flat in the same building. The privatisation agreement concluded with the local authorities stipulated that A.K. had also acquired part of the warehouse and the cellar.
7. On 18 July 1994 A.K. brought an action requesting annulment of the decisions whereby part of the land adjacent to the building had been sold to the first applicant.
8. On an unspecified date the parties brought new interlocutory claims regarding the ownership of the warehouse.
9. On 23 February 1995 the Vilnius City Third District Court granted the action of A.K. in part and ordered the local authorities to readjust the borders of the plot of land at issue.
10. On 7 November 1995 the Vilnius Regional Court quashed the decision and returned the case for examination de novo. It was established that the lower court had ruled on claims which had not been put forward by the parties and that the court had not assessed whether the rights of A.K. had been breached. Moreover, the local authority should have been invited to join the proceedings as a third party.
11. On 12 January 1996 several additional claims were brought by A.K.. The applicant submitted a new counterclaim, requesting non-pecuniary damages.
12. On 4 April 1997 the Vilnius City Third District Court dismissed the action of A.K., accepting the first applicant’s claims in part. In particular, the court declared null and void the agreement whereby A.K. had acquired half of the warehouse.
13. On 11 May 1998 the Vilnius Regional Court quashed the decision due to various procedural flaws, in particular the failure to resolve the question of the amount of the court fee to be paid. It was also noted that the lower court had failed to request certain evidence and therefore had not established certain facts relating to the property at issue. It also failed to establish whether R.R. had acquired the land from the local authority lawfully. The case was remitted to the Vilnius City Third District Court for a fresh examination.
14. On an unspecified date in 2000, A.K. brought several new claims. He requested, inter alia, that the first applicant be obliged to grant him access to the cellar in the building. On 18 May 2000 the first applicant submitted a counterclaim.
15. On 20 September 2000 the Vilnius City Third District Court granted the action of A.K. It was established that R.R. had unlawfully obtained a bigger plot of land than the one she was entitled to, thereby breaching the rights of A.K. As R.R. had had no right to sell that plot to the first applicant, the court annulled the contract between the first applicant and R.R. and ordered full restitution. The first applicant was also instructed not to obstruct access by A.K. to the cellar. The first applicant’s counterclaims regarding the warehouse were dismissed as unsubstantiated. The local authority and the first applicant appealed.
16. On 21 February 2001 the Vilnius Regional Court upheld the decision.
17. On 5 September 2001 the first applicant lodged a cassation appeal asking the Supreme Court to quash the lower court’s decision and to adopt a new decision without remitting the case for further examination.
18. On 10 October 2001 the Supreme Court dismissed the first applicant’s cassation appeal and left the lower courts’ decisions unchanged.
19. Article 30 of the Constitution stipulates:
“The person whose constitutional rights or freedoms are violated shall have the right to apply to court.”
20. The Civil Code, in force until 1 July 2001, provided:
“The person who causes damage to a natural person or to his property ... must compensate it fully, except in cases prescribed by laws...
A person who causes damage is exempted from liability if he proves that the damage was not caused through his fault.
Damage caused by lawful acts must be compensated only in cases established by law ...”
21. Article 6.272 §§ 2 and 3 of the Civil Code, in force since 1 July 2001, provides:
“2. The State shall be liable to full compensation for the damage caused by unlawful actions of a judge or the court trying a civil case, where the damage is caused through the fault of the judge himself or that of any other court official.
3. In addition to pecuniary damage, the aggrieved person shall be entitled to non-pecuniary damage.”
22. The ruling of the Constitutional Court of 19 August 2006 stipulates:
“...by virtue of the Constitution, a person has the right to claim compensation for damage caused by the unlawful actions of State institutions and agents, even if such compensation is not foreseen by law; the courts adjudicating such cases ... have the power to award appropriate compensation by directly applying the principles of the Constitution ... as well as the general principles of law, while being guided inter alia by the principle of reasonableness, etc”.
VIOLATED_ARTICLES: 6


ITEMID: 001-59621
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF BOULTIF v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Costs and expenses partial award - domestic proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant is an Algerian citizen born in 1967.
7. The applicant entered Switzerland with a tourist visa in December 1992. On 19 March 1993 he married M.B., a Swiss citizen.
8. On 27 April 1994 the applicant was convicted by the Zürich District Office (Statthalteramt) of the unlawful possession of weapons.
9. According to the charges subsequently raised against the applicant, he committed, on 28 April 1994 in Zürich, the offences of robbery and damage to property by attacking a man, together with another person, at 1 a.m., by throwing him to the ground, kicking him in the face and taking 1,201 Swiss francs from him.
10. The Zürich District Court (Bezirksgericht) convicted the applicant of these offences on 17 May 1995, though the judgment was quashed upon appeal as the applicant had not been represented by a lawyer. Proceedings were resumed before the District Court, which on 1 July 1996 sentenced the applicant to eighteen months’ imprisonment, suspended on probation.
11. Both the public prosecutor’s office and the applicant filed an appeal, whereupon on 31 January 1997 the Court of Appeal (Obergericht) of the Canton of Zürich sentenced the applicant to two years’ unconditional imprisonment for robbery and damage to property. In its judgment the court considered that the applicant had been particularly ruthless and brutal, and that his culpability (Verschulden) was severe.
12. The applicant’s further plea of nullity was dismissed on 17 November 1997 by the Court of Cassation (Kassationsgericht) of the Canton of Zürich.
13. On 11 May 1998 the applicant began his two-year prison sentence.
14. On 19 May 1998 the Directorate for Social Matters and Security (Direktion für Soziales und Sicherheit) of the Canton of Zürich refused to renew the applicant’s residence permit (Aufenthaltsbewilligung).
15. The applicant’s appeal against this decision was dismissed by the government (Regierungsrat) of the Canton of Zürich on 21 October 1998.
16. In a written statement of 18 November 1998, the applicant’s wife complained of being expected to follow her husband to Algeria. While admitting that she spoke French, she claimed that she would have no work in Algeria and no money. She found it most shocking that a married couple was being separated.
17. The applicant’s appeal against the decision of 21 October 1998 was dismissed by the Administrative Court (Verwaltungsgericht) of the Canton of Zürich on 16 June 1999. In its decision, the court relied for the non-renewal of the applicant’s residence permit in particular on sections 7 and 11 of the Federal Aliens’ Domicile and Residence Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) and on Article 16 § 3 of the ordinance implementing the Act (Vollziehungsverordnung). The court considered that the non-renewal was called for in the interests of public order and security. It might well separate the applicant from his wife, though they could live together in another country, or visit each other.
18. On 2 August 1999 the applicant was given early release from prison.
19. The applicant’s administrative-law appeal (Verwaltungsgerichts- beschwerde) against the decision of 21 October 1998 was dismissed by the Federal Court (Bundesgericht) on 3 November 1999. The court recalled that according to section 10(1) of the Federal Aliens’ Domicile and Residence Act the criminal conviction of a foreigner served as a ground for expulsion. There was no breach of Article 8 of the Convention as the authorities refused to renew the applicant’s residence permit in view of the serious offence which he had committed. The measure was imposed in the interests of public order and security. The fact that he had behaved well in prison was irrelevant as this did not concern his conduct outside.
20. The Federal Court’s noted that a large number of the applicant’s relations lived in Algeria, and that he had not demonstrated particularly close links with Switzerland. While it would not be easy for his wife to follow him to Algeria, this was not completely impossible. Indeed, she spoke French and had been able to have some contact by telephone with her mother-in-law. The couple could also live in Italy, where the applicant had spent some time before coming to Switzerland.
21. By a decision of 1 December 1999 the Federal Aliens’ Office (Bundesamt für Ausländerfragen) issued an order prohibiting the applicant from entering Switzerland as of 15 January 2000 for an unspecified period of time (auf unbestimmte Dauer). By a decision of 3 December 1999 the Office ordered the applicant to leave Switzerland by 15 January 2000.
22. On an unspecified date in 2000 the applicant left Switzerland and is currently living in Italy.
23. In December 1997 the applicant passed a training course to become a waiter. From 20 August 1997 until 21 January 1998 he worked as a painter for an organisation for refugees in Zürich.
24. While the applicant was serving his prison sentence at the Ringwil prison colony in Hinwil, the prison services issued an interim report on 12 November 1998 on his conduct, according to which his work as a gardener and stable-hand had been satisfactory. The report also stated that he had good manners and a very agreeable personality; that his room was always tidy; that as a rule he returned punctually from his leave; and that various urine tests for detecting drugs had all shown negative results.
25. According to a work report from the C. company, dated 28 February 2000, the applicant had been working satisfactorily with that company since 3 May 1999 as an assistant gardener and electrician. A work report from the V. company, dated December 1999, stated that the applicant had worked well as an assistant gardener for that company for eighteen weeks between May and November 1999.
26. According to a letter from the Italian Ministry of the Interior to the Swiss embassy in Rome, dated 20 February 2001, the applicant had lawfully resided in Italy from 16 August 1989 until 21 February 1992 and since that date he had not renewed his residence permit (permesso di soggiorno).
27. Section 7(1) of the Federal Aliens’ Domicile and Residence Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer), of 26 March 1931, provides:
“The foreign spouse of a Swiss citizen is entitled to be granted a residence permit, or to have it prolonged. After a regular and uninterrupted residence of five years the spouse shall be entitled to the right to domicile. The right expires if there is a ground for expulsion.”
28. According to section 10(1)(a) of the Act,
“the foreigner can be expelled from Switzerland or from a Canton if ...
(a) he has been punished by a court for having committed a criminal offence or misdemeanour ...”.
29. Section 11(3) of the Act provides that “expulsion shall only be ordered if it appears appropriate in view of the circumstances as a whole”.
30. Article 16 § 3 of the Ordinance implementing the Federal Aliens’ Domicile and Residence Act (Vollziehungsverordnung) provides:
“In order to establish the appropriateness (section 11(3) of the Act), the following elements are important: the severity of the offence committed by the foreigner; the duration of his stay in Switzerland; and the damage which he and his family would suffer if he were to be expelled. If there appears to be legal justification according to section 10(1)(a), even though it may be inappropriate under the circumstances, the foreigner shall be threatened with expulsion. The threat of expulsion must be issued as a written and justified decision and shall clearly state what is expected of the foreigner.”
VIOLATED_ARTICLES: 8


ITEMID: 001-58899
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF G.H.H. AND OTHERS v. TURKEY
IMPORTANCE: 1
CONCLUSION: Not necessary to examine Art. 2;Not necessary to examine Art. 3;Not necessary to examine Art. 8;No violation of Art. 13
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 9. In the late 1970s and at the beginning of the 1980s the first applicant (G.H.H.) had been a supporter of his hometown branch of the Organisation of the Fedaian Minority (“the OFM”), a Marxist-Leninist organisation. This local wing of the organisation was headed by his cousin. The first applicant's involvement in the organisation's activities brought him to the attention of the authorities and he was detained on two occasions in 1980. Following a government crackdown on the OFM and its members, the first applicant lost contact with the organisation. As from 1984 he began to engage in the production and distribution of a newsletter carrying anti-government articles as well as dissident literary contributions. The first applicant himself contributed political articles and poems to the newsletter. He maintains that between 1984 and 1990 he was kept under close surveillance by the intelligence services, including during his period of military service.
10. In 1992 he married the second applicant who in the late 1970s and early 1980s had been an anti-government activist in the Organisation of Iranian People's Fedaii (“the OIPFG”). During her student days she had received several warnings from her university about her political activities.
11. While at university the first applicant founded a controversial literary journal and engaged in cultural, intellectual and social activities both within and outside his university which incurred the enmity of fundamentalist groups and led to his being questioned by the university intelligence services. He claims that his academic and research work as well as his Western sense of dress were criticised as being incompatible with the fundamentals of Islam. He claims that in 1987 he was arrested and detained for a week by the authorities for drinking alcohol and during his detention received eighty lashes.
12. In 1993 the first applicant attempted to publish his first book, a collection of poems, some of which were dedicated to persons who, like his cousin, were regarded with suspicion or hostility by the government. The poems conveyed feelings of romance, secularism and revolutionary fervour, but he composed them in a way which would not attract the application of the censorship laws. The first applicant finally secured official approval for the publication of the book on condition that he made certain amendments to its contents. With the assistance of a third party he procured by subterfuge a certificate of conditional approval to have the book printed which enabled him to have 3,000 copies run off. Before waiting for the official approval permit for the book's release, the first applicant distributed many copies to friends and bookshops. He has subsequently learned that the authorities refused to issue a permit. He maintains that since 1994 he has submitted four other books to the Ministry of Islamic Culture and Guidance for printing permits but never received a reply, only the verbal disapproval of officials of the books' contents. The first applicant claims that this effectively places a ban on his writings.
13. On 15 March 1996 the first applicant paid a visit to his home town. He was immediately detained on arrival by members of the Iranian security forces and taken to an intelligence office. He was questioned, inter alia, about his political activities, his literary associates and their meeting places and about how he had obtained a provisional permit to print his book. The security forces also interrogated him about the whereabouts of his cousin. He alleges that he was severely beaten while in detention. He was released after his brother agreed to stand bail for him. Before being released the first applicant was ordered to report back to the security services. He did not comply with this order and states that his brother was subsequently harassed and is currently facing prosecution on account of his failure to respect the terms of his conditional release.
14. The first applicant states that on 29 March 1997 the publisher of a literary magazine with which he had connections was found murdered and that around the same period several other persons in the literary milieu who were known to him were imprisoned, attacked, disappeared or died in suspicious circumstances.
15. According to the first applicant, these events coupled with his own arrest and torture and dissident profile made him fear for his life and compelled him to flee Iran. He also states that after fleeing Iran his wife, the second applicant, was subjected to harassment and threats from vigilante groups in connection with his disappearance. During a search of their home by the intelligence services, a number of cassettes were found containing recordings of banned songs and of meetings attended by the first applicant and several of his literary associates. The first applicant alleges that the authorities used the tapes of the meetings to identify him and the other participants, several of whom were subsequently detained and questioned.
16. On 16 April 1997 the first applicant obtained a passport by bribing an official and he fled to Turkey about one week later. He arrived in Turkey on or about 23 April 1997 on a tourist visa and travelled to Istanbul. He was informed there that he should contact the office of the United Nations High Commissioner for Refugees (UNHCR) in Ankara, which in turn informed him that he should register as an asylum-seeker with the Istanbul police. The Istanbul police notified him that he could not register as an asylum seeker because he had been in Turkey for six days and that the asylum regulations required that asylum-seekers register within five days of their arrival in the country.
17. The first applicant decided to renew his tourist visa fearing that if he lodged an asylum request he would be deported to Iran for non-compliance with the five-day time-limit.
18. On 1 May 1997 the first applicant was interviewed by the UNHCR, which rejected his asylum claim on 13 June 1997. He appealed against this decision on 12 August 1997 and on 21 November 1997 the UNHCR rejected his appeal.
19. At some stage the first applicant was joined by the second and third applicants who fled Iran for their safety. The Government claim that the first applicant in fact arrived in Turkey on 7 November 1997 and was accompanied by the second and third applicants. In the applicants' view the entire family had been in Turkey before that date but had to go on a one-day trip to Georgia to have their visas renewed. They re-entered Turkey on 7 November 1997. The applicants do not dispute that they all registered as asylum-seekers with the Ankara police on 11 November 1997. They were granted a residence permit on 12 December 1997 and ordered to reside in the town of Bilecik.
20. On 5 January 1998 the first applicant requested the UNHCR to reconsider his request for asylum and he was subsequently interviewed on 7 June 1998. On 8 July 1998 the UNHCR rejected the first applicant's renewed request and closed his case file.
21. On 18 August 1998 the applicants received a deportation order from the Turkish police. They were informed that they had fifteen days in which to appeal to the authorities against the implementation of the deportation order. The applicants objected and their residence permit was again extended on 11 September 1998. The applicants maintain that the decision to extend the residence permit was only taken in early December 1998 and in response to the Commission's requests on 2 and 17 September 1998 to the Government not to deport the family.
22. On 21 September 1998 the Ministry of Foreign Affairs reconfirmed that the applicants did not meet the criteria for the grant of refugee status. The applicants claim that they were never informed of this decision.
23. By letter dated 23 March 1999 the UNHCR informed the Ministry of Foreign Affairs that it had conducted a fresh examination of the first applicant's request for refugee status. Following that examination, and in light of new elements submitted by the first applicant, the UNHCR decided to grant him refugee status. In reaching its decision the UNHCR had particular regard to the fact that the applicant had been actively involved in the Association of Iranian Authors and his activities had brought him into contact with other intellectuals who had been murdered in 1998, apparently on account of their work on behalf of the association. The UNHCR concluded that if the applicant were to be returned to Iran, there was a reasonable likelihood that he would face persecution.
24. Subsequently, on receipt of the UNHCR's letter, the Ministry of Foreign Affairs directed that the applicants be entitled to remain in Turkey temporarily, for humanitarian reasons, until they were resettled in a third country. On 26 March 1999 the relevant authorities were requested to extend the applicants' temporary stay in Turkey pending their resettlement.
25. In October 1999 the applicants left Turkey and were resettled in the United States of America in the framework of a resettlement programme.
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-77323
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MUTLU v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 4. The applicant was born in 1932 and was living in Afyon. Following his death on 11 October 2002, his wife and children expressed their intention to pursue the application.
5. On 29 November 1996 the General Directorate of the National Water Board expropriated two plots of land belonging to the applicant, for the construction of a dam. A committee of experts assessed the value of the land and the relevant amount was paid to the applicant.
6. On 14 December 1999, following the applicant’s request of 17 June 1997 for increased compensation, the Sandıklı Civil Court of General Jurisdiction awarded him 685,037,145 Turkish liras (TRL) of additional compensation, plus interest at the statutory rate, as of 29 November 1996.
7. On 18 April 2000 the Court of Cassation upheld the decision of the first instance court. On 21 January 2002 TRL 2,311,730,000 was paid to the applicant.
8. On 8 May 2003 the execution office informed the General Directorate of the National Water Board that they still had to pay the applicant the remaining TRL 559,000,000.
9. On 25 June 2003 the administration filed an objection against the remaining amount of debt, before the Sandıklı Enforcement Court.
10. On 26 February 2004 the court partially upheld the objection of the administration and concluded that TRL 371,393,824 had to be paid to the applicant. The administration’s request to appeal was dismissed by the court on 13 April 2004.
11. On 14 May 2004 the General Directorate of the National Water Board paid TRL 261,450,000 to the applicant.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-110794
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ŠIMŠIĆ v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Boban Šimšić, is a citizen of Bosnia and Herzegovina who was born in 1967. He is currently serving his sentence in Foča Prison. He was represented before the Court by Mr V. Ćivša, a lawyer practising in Sokolac.
2.
3. From April to July 1992, as a part of a widespread and systematic attack against the Bosniac civilian population of the Višegrad Municipality, being aware of that attack, the applicant persecuted Bosniacs on political, national, ethnic, cultural and religious grounds by committing murders, incarceration, torture, enforced disappearances and aiding and abetting rapes.
4. After having surrendered, the applicant was remanded in custody on 24 January 2005. On 13 May 2005 a Pre-Trial Chamber of the Court of Bosnia and Herzegovina (“the State Court”) decided to take over the case from the Istočno Sarajevo District Court in view of its sensitivity and a sympathetic attitude of the local police towards the applicant, a police officer, which had been manifested in their failure to arrest him despite an international arrest warrant against the applicant. The decision entered into force in June 2005.
5. On 11 July 2006 a Trial Chamber of the State Court found the applicant guilty of aiding and abetting rapes and enforced disappearances as crimes against humanity under Article 172 § 1 (g) and (i) of the 2003 Criminal Code and sentenced him to five years’ imprisonment.
6. On 5 January 2007 an Appeals Chamber of that court quashed the first-instance judgment and scheduled a fresh hearing. On 7 August 2007 it found the applicant guilty of persecution as a crime against humanity under Article 172 § 1 (h) in conjunction with sub-paragraphs (a), (e), (f), (g) and (i) of the 2003 Criminal Code and sentenced him to 14 years’ imprisonment.
7. On 24 December 2007 the applicant filed a constitutional appeal. On 14 April 2010 the Constitutional Court examined the case under Articles 6, 7 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention. It found no violation.
8. The relevant part of Article 6 of the Charter reads as follows:
“The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
...
(c) ‘Crimes against humanity’: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
9. The Resolution reads as follows:
“The General Assembly,
Recognizes the obligation laid upon it by Article 13, paragraph 1, sub-paragraph (a), of the Charter, to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification;
Takes note of the Agreement for the establishment of an International Military Tribunal for the prosecution and punishment of the major war criminals of the European Axis signed in London on 8 August 1945, and of the Charter annexed thereto, and of the fact that similar principles have been adopted in the Charter of the International Military Tribunal for the trial of the major war criminals in the Far East, proclaimed at Tokyo on 19 January 1946;
Therefore,
Affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal;
Directs the Committee on the codification of international law established by the resolution of the General Assembly of 11 December 1946, to treat as a matter of primary importance plans for the formation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.”
10. In 1950 the International Law Commission adopted the following seven Nuremberg Principles:
“Principle I: Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.
Principle II: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
Principle III: The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
Principle IV: The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Principle V: Any person charged with a crime under international law has the right to a fair trial on the facts and law.
Principle VI: The crimes hereinafter set out are punishable as crimes under international law:
...
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.
Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.”
11. In November 1968 the UN General Assembly adopted this Convention in response to fears expressed that alleged war criminals (Second World War) not yet apprehended might escape prosecution with the passage of time. The Convention entered into force on 11 November 1970. It was ratified by the Socialist Federal Republic of Yugoslavia on 9 June 1970. The relevant part thereof reads as follows:
“The States Parties to the present Convention,
...
Considering that war crimes and crimes against humanity are among the gravest crimes in international law,
Convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security,
Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes,
Recognizing that it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application,
Have agreed as follows:
Article 1
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
...
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, ... even if such acts do not constitute a violation of the domestic law of the country in which they were committed.
Article 2
If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.
Article 3
The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention.
...”
12. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) headquartered in The Hague. Article 5 of its Statute provides the following definition of crimes against humanity:
“The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.”
13. Article 7 § 1 of the Rome Statute of the International Criminal Court of 17 July 1998 defines crimes against humanity as follows:
“For the purpose of this Statute, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
14. On 12 November 2000 the High Representative imposed the State Court Act 2000 establishing the State Court. The Parliamentary Assembly of Bosnia and Herzegovina subsequently endorsed that Act.
15. Following joint conclusions of the High Representative and the ICTY of 21 February 2003, the United Nations Security Council Resolution 1503 of 28 August 2003 and amendments to the State Court Act 2000 enacted by the Parliamentary Assembly of Bosnia and Herzegovina, special chambers for war crimes were established within the State Court on 9 March 2005.
16. Domestic war crimes cases can be divided into two categories.
Old cases (reported before 1 March 2003) remain with Entity courts if an indictment entered into force before 1 March 2003. If an indictment did not enter into force before 1 March 2003, they remain with Entity courts unless the State Court decides to take over any such case because of its sensitivity or complexity (see Article 449 of the 2003 Code of Criminal Procedure).
New cases (reported after 1 March 2003) fall under the jurisdiction of the State Court, but it may transfer less sensitive and complex cases to Entity courts (Article 27 of the same Code).
17. As a rule, in war crimes cases, Entity courts apply the 1976 Criminal Code (see, however, the 2008 judgment in the Vlahovljak case in which the Supreme Court of the Federation of Bosnia and Herzegovina applied the 2003 Criminal Code), whereas the State Court applies the 2003 Criminal Code (see, however, the 2009 judgment in the Kurtović case in which the State Court applied the 1976 Criminal Code). Moreover, Entity courts on average impose lighter sentences than the State Court (see “Moving towards a Harmonised Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina”, published by the OSCE in 2008), but this may be due to the fact that the State Court deals with more sensitive and complex cases (see the 2008 National War Crimes Strategy).
18. The 2003 Criminal Code introduced crimes against humanity in domestic law. It has been in force since 1 March 2003. Article 172 § 1 thereof reads as follows:
“Whoever, as part of a widespread or systematic attack directed against any civilian population, being aware of that attack, perpetrates any of the following acts:
a) Murder;
b) Extermination;
c) Enslavement;
d) Deportation or forcible transfer of population;
e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
f) Torture;
g) Coercing another by force or by threat of immediate attack upon his or her life or limb, or the life or limb of a person close to the victim, to sexual intercourse or an equivalent sexual act (rape), sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity;
h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law, in connection with any offence listed in this paragraph, any offence listed in this Code or any offence falling under the competence of the [State Court];
i) Enforced disappearance of persons;
j) The crime of apartheid;
k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health,
shall be punished by imprisonment for a term not less than ten years or long-term imprisonment.”
19. The general range of imprisonment is from 30 days to 20 years and of long-term imprisonment from 20 to 45 years (Article 42 of the Code).