ITEMID: 001-22892
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: GABUD v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Josip Gabud, is a Croatian citizen, who was born in 1966 and lives in Donja Stubica, Croatia. He is represented before the Court by Mr Bruno Spiz, a lawyer practising in Zagreb.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 19 June 1996 the applicant filed a civil claim in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking non-pecuniary damages that he suffered in a traffic accident. The accident was allegedly caused by a member of the Croatian Army who was driving a military truck The proceedings were instituted against the Republic of Croatia on the basis of statutory liability for damages caused by members of the State’s Army and, at the same time, against the Croatia Insurance, an insurance company from Zagreb, on the basis of an insurance contract.
On 19 January 1998 the court gave a judgment awarding the applicant’s claim.
On 16 and 19 February 1998 the Croatia Insurance and the Republic of Croatia, respectively, appealed against the judgment.
The case was forwarded to the Zagreb County Court (Županijski sud u Zagrebu) as the appellate court.
On 6 November 1999 Parliament introduced a change of the Civil Obligations Act which provided that all proceedings against the Republic of Croatia concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the Homeland War in Croatia were to be stayed.
Pursuant to the above Act, on 6 November 2000 the Zagreb County Court stayed the part of the proceedings concerning the applicant’s claim against of the Republic of Croatia.
The part of the proceedings concerning the applicant’s claim for damages from the Croatia Insurance has not been affected by the above legislative intervention and these proceedings are pending before the appellate court upon the defendant’s appeal.
Section 184 (a) of the Act on Changes of the Civil Obligations Act (Zakon o dopunama Zakonu o obveznim odnosima, Official Gazette no. 112/1999) provides that all proceedings instituted against the Republic of Croatia for damages caused by the members of the Croatian army or police when acting in their official capacity during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 are to be stayed.
The Act also imposes an obligation on the Government to submit to Parliament special legislation, regulating the responsibility for such damages, at the latest within six months from the entry into force of the Act.


ITEMID: 001-24045
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: D.E. v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr D.E., is a Bulgarian national who was born in 1973 and lives in Gabrovo. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by Ms M. Dimova, co-agent of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
At approximately 1.30 a.m. on 5 February 1997 the applicant and another person were arrested in the home of a person who had called the police indicating that the two were trying to steal from his car. After his arrest the applicant was taken to the regional police department in Gabrovo, where he was placed in police custody for twentyfour hours.
The applicant alleges that when he was brought to the police department, several police officers started to shout at him, to kick his legs and to hit him in the stomach and in the kidneys. When he said that “[he did not] know about any thefts”, one police officer started to beat his head and back with a rubber hose. The others joined him with truncheons. Then the applicant was thrown to the ground and kicked.
The applicant further submits that at approximately 9 a.m. the following morning he was brought for questioning to a room on the third floor of the police department. When he denied involvement in the commission of the alleged thefts the two officers who were questioning him began to hit him with wooden bats. He sustained blows all over his body, fell on the floor and tried to hide under a table. The two officers then started kicking him. One kick in the face allegedly broke two of his teeth.
Later that day, 5 February 1997, criminal proceedings were opened against the applicant. The investigator who opened the proceedings ordered that the applicant be placed in pre-trial detention. Thereafter the applicant was transferred to a pre-trial detention facility, upon the admission to which he was examined by a paramedic. According to the report drawn up by the paramedic, the examination took place at 4.30 p.m. The paramedic noted that the applicant did not state that he had any ailments and stated that he had no medical complaints. The applicant signed the report. The applicant alleges that in fact the paramedic refused to describe his injuries, because he was not sure whether they had been sustained while the applicant had been in police custody or before that.
The applicant alleges that in the following months he had to ask his relatives to provide him with analgesics, as his jaw had swelled and he was experiencing pain in the area of the broken teeth.
Finally, the applicant alleges that, since the medical facilities in the pretrial detention centre and in the prison, where he was transferred on 15 April 1997, lacked the necessary material, the broken teeth could not be treated and had to be removed.
In an undated written statement, apparently prepared for the purposes of the proceedings before the Court, the person who was arrested with the applicant on 5 February 1997 and co-accused with him submits that the applicant and himself were beaten by police officers immediately after their arrest. He also submits that he was later refused examination by a doctor. A police officer with whom he talked several days later told him that the applicant had also been seriously beaten. Lastly, he submits that at a confrontation on an unspecified date he saw that the applicant was “swollen and blue” and that the applicant had told him that he had been beaten in room no. 5 on the third floor of the police department.
The documents in the case file indicate in that only one confrontation between the applicant and his coaccused took place on 14 April 1997.
A medical certificate issued by a Gabrovo dental clinic on 22 October 1998 indicates that on 23 December 1997 the applicant underwent surgical treatment for an abscess of the soft tissues of the upper jaw.
A medical certificate issued by the prison authorities on 24 March 2000 indicates that the applicant underwent extraction of teeth roots as follows: root of the 8th upper left tooth extracted on 23 March 1998; root of the 5th lower right tooth extracted on 26 March 1998; roots of the 4th and 5th upper left teeth extracted on 27 May 1998; roots of the 6th and 7th upper right teeth extracted on 28 October 1998; and root of the 3rd upper right tooth extracted on 25 November 1998.
On 7 February 1997, after he was acquainted with the charges against him, the applicant was questioned by an investigator in the presence of counsel. He stated that he understood the charges and wished to exercise his right to remain silent. He did not make any reference to being illtreated after his arrest.
When the applicant was questioned by the same investigator on 28 March 1997, he stated the following: “Stefan [the applicant’s coaccused] and I were taken to the police station. Beside Stefan I got a licking as well.” The applicant, who was assisted by counsel during the questioning, did not elaborate on that statement and did not provide any further details.
On 19 December 1997 the applicant’s father filed an appeal against the applicant’s pretrial detention with the Gabrovo Regional Prosecutor’s Office, with a copy to the Gabrovo Regional Court. The appeal was returned, as it was not filed by the detained person or a duly authorised representative. On the second page of the document the applicant’s father stated as follows: “... according to our son, as well as to other sources, ... he had been illtreated on the third floor, room no. 5, where he had been beaten by [S.B.] and another police officer, because he would not admit of having thieved”.
Section 40(1) of the National Police Act, as in force at the material time, read, as relevant:
“... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of:
1. resistance or refusal [by a person] to obey a lawful order;
2. arrest of an offender who does not obey or resists the police authorities;
...
5. attack against citizens or police [officers]; ...”
Section 41(2) provided that the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of the persons against whom [force was being used]”.
Articles 128, 129 and 130 of the Criminal Code (“the CC”) make it an offence to cause a light, intermediate or severe bodily injury to another. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties the offence is an aggravated one. This offence is a publicly prosecutable one (Article 161 of the CC).
Article 287 of the CC makes it an offence for an official to engage, in the course of or in connection with the performance of his or her duties, in illegal coercive action towards an accused in order to extract a confession. This offence is likewise publicly prosecutable.
Under Bulgarian law criminal proceedings for publicly prosecuted offences can be opened only by the decision of a prosecutor or of an investigator (Article 192 of the Code of Criminal Procedure (“the CCP”)). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 186, 187 and 190 of the CCP). During the relevant period the CCP provided that if the information to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry (verification) in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP).


ITEMID: 001-70618
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HAJIYEVA v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mrs Fimar Hajiyeva, is an Azerbaijani national who was born in 1957 and lives in Baku. She is represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a chief editor at the State Tele-Radio Company pursuant to a temporary employment contract. On 18 April 2002 the head of the company’s human resources department informed the applicant that her employment contract had already expired on 31 March 2002, that the company had no intention to renew it and that the applicant had been dismissed from her job as of 1 April 2002.
The applicant filed a lawsuit, alleging wrongful dismissal and asking for reinstatement in the job and compensation for material damages. She claimed that she had not been timely notified of the employer’s wish to terminate the contract and that, in the absence of such notification, the contract was subject to automatic renewal for another term. In addition, she claimed that she had signed a new contract on 3 April 2002. The trial was held in the Sabail District Court.
At the end of the trial, on 11 June 2002, the Sabail District Judge publicly pronounced the “conclusive” part of the judgment, according to which the applicant’s claim was partially satisfied and she was reinstated in her job. According to the applicant, there were eleven persons (including the parties, their lawyers and the public) present in the courtroom when the judgment was pronounced.
However, several days later, when the written copy of the judgment was made available to the applicant, she discovered that this written version was contrary to the one orally pronounced by the judge at the closure of the trial. The written judgment was against the applicant, dismissing her claim in full. According to this version of the judgment, the Sabail District Court found that the decision not to renew the applicant’s contract had been taken by her employer on 29 March 2002 and that the copy of this decision had been posted at the applicant’s workplace. The court further held that the applicant had been lawfully dismissed due to the expiry of the term of her temporary employment contract. As for the applicant’s allegation that she had signed a new contract on 3 April 2002, the court found that no new contract had been signed by the employer.
The applicant appealed, claiming, inter alia, that the first-instance judge had unlawfully changed the initially pronounced judgment. She also claimed that the judge had violated the procedural rules requiring him to put the orally pronounced part of the judgment in writing, sign it and attach it to the case file on the same day when the judgment was partially pronounced.
During the proceedings in the Court of Appeal, the judge twice asked the parties if they wished to file a motion concerning any aspect of the examination of the case (such as admission of new witness testimony, etc.). The applicant did not file any motions. On 30 July 2002 the Court of Appeal upheld the district court’s judgment, finding that the lower court had properly decided the case on the merits. The decision of the Court of Appeal was silent as to the alleged contradiction between the oral and written versions of the first-instance court’s judgment.
In the meantime, while the proceedings were underway, the applicant wrote letters to the President of the Supreme Court, the Chief Prosecutor, the Minister of Justice and the President of Azerbaijan, in which she complained about the actions of the first-instance judge. According to the applicant, she did not receive any answers.
The applicant then filed a cassation appeal where, apart from the arguments relating to the merits of the case, she briefly stated, without specific details, that the Court of Appeal had committed procedural mistakes. On 30 October 2002 the Supreme Court upheld the Court of Appeal’s judgment.
“214.1. After deciding upon and signing the judgment, the judge shall return into the courtroom and pronounce the judgment ...
214.3. With respect to complicated cases, the judge may pronounce only the conclusive part of the judgment.
214.4. The orally pronounced conclusive part of the judgment must be drawn up in writing, signed by the judge(s) and attached to the case file. After the pronouncement of the conclusive part of the judgment, the presiding judge shall notify the parties and their representatives of the time when the full text of the judgment will be available to them.”
“220.2. The judgment shall consist of the introductory, descriptive, justificatory and conclusive parts. ...
220.5. The conclusive part of the judgment shall contain the court’s conclusion as to the full or partial satisfaction or dismissal of the claim, the manner of distribution of the judicial expenses, the period and procedure for filing an appeal ...”
“227.1. The judgment must be drawn up after the examination of the case has been completed.
227.2. Exceptionally, with respect to highly complicated cases, the drawing up of the full judgment shall be completed within a period of ten days after the pronouncement of the conclusive part of the judgment. The presiding judge shall also notify the parties of the time when they can obtain the full judgment.
227.3. The [full] judgment shall be sent or handed over to the parties within three days after it has been drawn up.”
“Trial transcripts shall be drawn up during the court hearings as well as with respect to any separate procedural action performed outside the court.”
“Parties to the case and their representatives have a right to consult the trial transcripts and to make, within three days from the date of signing the transcripts, any written remarks concerning any deficiencies or omissions therein.”


ITEMID: 001-81877
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KANZI v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: The applicant, Mr Antonio Kialauda Kanzi, is a Dutch national who was born in 1980 and lives in Meerssen. He was represented before the Court by Mr J.W. Heemskerk, a lawyer practising in Maastricht.
On 11 February 2004, the applicant was arrested and taken into police custody (inverzekeringstelling) on suspicion of trafficking drugs.
On 13 February 2004, after having heard the applicant, the investigating judge (rechter-commissaris) ordered the applicant’s detention on remand (inbewaringstelling) for a period of ten days. The reasons stated by the investigating judge were:
“It appears from the case-file that there are serious indications against the suspect (there is more than a mere suspicion).
There are weighty reasons of public safety that warrant detention on remand, namely:
detention on remand is necessary because there exists a justified fear for recidivism: there is namely a substantial possibility that the suspect will commit an offence which, according to the legal definition, attracts a prison sentence of six years or more; (there is fear for recidivism), which appears from the circumstance:
- that there are reasons to believe that the suspect is involved in drug trafficking, which trade is so lucrative that the suspect will be unable or unwilling to do without this source of income.”
On 19 February 2004, after having heard the applicant, the Maastricht Regional Court (arrondissementsrechtbank) ordered the applicant’s further detention on remand (gevangenhouding) for a period of thirty days, holding:
“The Regional Court considers that, after examination, it has appeared that the suspicion, indications and ground, which have led to the order for detention on remand (bevel tot bewaring), currently still exist.”
On 18 March 2004, after having heard the applicant, the Maastricht Regional Court prolonged the applicant’s detention on remand by a further thirty days. It held:
“The Regional Court considers that, after examination, it has appeared that the suspicion, indications and grounds, which have led to the order for the suspect’s further detention on remand (bevel gevangenhouding), currently still exist.”
The applicant’s appeal against the decision of 18 March 2004 – in which he relied inter alia on the Court’s considerations in the case of Guzzardi v. Italy, (judgment of 6 November 1980, Series A no. 39, p. 38, § 102) – was rejected on 8 April 2004 by the ‘s-Hertogenbosch Court of Appeal (gerechtshof). It upheld the impugned decision, holding:
“considering that the Court of Appeal concurs with the above-cited ruling and the grounds on which it is based, on the understanding that the [applicant’s] pre-trial detention is also based on the following weighty reason of public safety, namely:
it concerns suspicion of a fact which, according to the legal definition, attracts a prison sentence of twelve years or more and this fact has seriously rocked the legal order, consequently the appeal must be dismissed.”
By judgment of 19 May 2004, following a hearing held on 6 May 2004, the Maastricht Regional Court convicted the applicant of two counts of drug offences and, in accordance with the provisions of inter alia Articles 10 and 11 of the Opium Act (Opiumwet), sentenced him to eight months’ imprisonment of which four were suspended pending a two years’ probationary period, and with deduction of the time spent in pre-trial detention. In addition, it imposed a fine of 800 euros. In the determination of its sentence, the Regional Court took into account that the applicant had never been convicted previously of a drug offence. Although the applicant could have filed an appeal against this judgment, he did not do so.
Article 133 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) defines pre-trial detention (voorlopige hechtenis) as deprivation of liberty pursuant to an order for detention on remand (inbewaringstelling), a warrant for the taking into pre-trial detention (gevangenneming) or an order for further detention on remand (gevangenhouding). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP.
Article 67 of the CCP reads as follows:
“1. An order for pre-trial detention can be issued in case of suspicion of:
(a) an offence which, according to the law, carries a punishment of imprisonment of four years or more;
(b) one of the offences defined in Articles 132, 137c § 2, 137d § 2, 137e § 2, 137g § 2, 285 § 1, 285b, 318, 321, 323a, 326, 326a, 326c, 395 and 417bis and 420quater of the Criminal Code;
(c) one of the offences defined in:
- Article 175 § 2, part b, of the 1994 Road Traffic Act (Wegenverkeerswet);
- Article 30 § 2 of the Civil Authority Special Powers Act (Wet buitengewone bevoegdheden burgerlijk gezag);
- Articles 52, 53 § 1 and 54 of the Military Service (Conscientious Objectors) Act (Wet gewetensbezwaren militaire dienst);
- Article 31 of the Betting and Gaming Act (Wet op de kansspelen);
- Article 11 § 2 of the Opium Act;
- Article 55 § 2 of the Weapons and Ammunition Act (Wet wapens en munitie);
- Article 46 of the 1995 Securities Transactions (Supervision) Act (Wet toezicht effectenverkeer).
2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the regional courts and which, according to the law, is punishable by imprisonment.
3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.”
Article 67a of the CCP reads:
“1. An order based on Article 67 can only be issued:
a. if it is apparent from particular behaviour displayed by the suspect, or from particular circumstances concerning him personally, that there is a serious danger of absconding;
b. if it is apparent from particular circumstances that there is a serious reason of public safety requiring the immediate deprivation of liberty.
2. For the application of the preceding paragraph, only the following can be considered as a serious reason of public safety:
- 1o. if it concerns suspicion of commission of an act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously rocked by that act;
- 2o. if there is a serious risk the suspect will commit an offence which, according to the law, carries a prison sentence of six years or more or whereby the security of the State or the health or safety of persons may be endangered, or give rise to a general danger to goods;
- 3o. if it concerns suspicion of one of the offences defined in Articles 310, 311, 321, 322, 323a, 326, 326a, 416, 417bis, 420bis or 420quater of the Criminal Code, whereas less than five years have passed since the day on which, on account of one of these offences, the suspect has been irrevocably sentenced to a punishment or measure entailing deprivation of liberty, a measure entailing restriction of liberty or community service, and there is further a serious risk that the suspect will again commit one of those offences;
- 4o. if pre-trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect.
3. An order for pre-trial detention shall not be issued if there are serious prospects that, in case of a conviction, no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect, or that he, by the enforcement of the order, would be deprived of his liberty for a longer period than the duration of the custodial sentence or measure.”
Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP). Pre-trial detention in the form of an order for detention on remand of a suspect may be issued by the investigating judge for a maximum duration of ten days (Articles 63 and 64 of the CCP).
Under Article 65 of the CCP, a subsequent prolongation of pre-trial detention may be ordered by the Regional Court in the form of an order for further detention on remand for a maximum duration of thirty days. In case the trial proceedings have not started within the thirty days’ validity of an order for further detention on remand, the Regional Court can prolong it twice, each time for a maximum of thirty days (Article 66 § of the CCP).
Article 69 § 1 of the CCP reads:
“An order for pre-trial detention may be lifted by the Regional Court. It may do so of its own motion or upon the request of the suspect, or – in so far as it concerns an order for ... further detention on remand – upon a proposal from the investigating judge or a request by the public prosecutor.”
Article 71 of the Code of Criminal Procedure, in so far as relevant, states:
“1. Within a maximum of three days after its execution, the suspect may file an appeal with the Court of Appeal against a decision of the Regional Court ordering further detention on remand ...
2. Within the same time-limit, the suspect may file an appeal against an extension of an order for further detention on remand, but only if no appeal has been filed by him against the order for further detention on remand or against a previous prolongation order ...”
Article 87 §§ 2 and 3 of the CCP, in so far as relevant, provides:
“2. The suspect, who has requested for the first time to suspend (schorsing) or to lift (opheffing) an order for pre-trial detention, may file an appeal with the Court of Appeal against a negative decision on that request. The suspect, who has filed an appeal against a negative decision on a request for suspension, cannot subsequently file an appeal against a negative decision on a request to lift a pre-trial detention order. The suspect, who has filed an appeal against a negative decision on a request to lift a pre-trial detention order, cannot subsequently file an appeal against a negative decision on a request for suspension of pre-trial detention.”


ITEMID: 001-57642
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF DARBY v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+P1-1;Not necessary to examine Art. 9 and 14+9;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 7. The applicant, Dr Peter Darby, is a Finnish citizen of British origin, born in 1926. In 1977 he was employed as a doctor by the Swedish State Railways in Gävle, Sweden. He rented a flat in the town, but spent the weekends with his family on the island of Lemland in the neutral and demilitarised Finnish archipelago of Åland at the southern end of the Gulf of Bothnia. From the end of 1981 he worked as a doctor in the public health service in another Swedish town, Norrtälje. Since August 1986 he has been working in Åland.
8. During the period when the applicant was working in Sweden his income from the above-mentioned posts was, in accordance with the convention between Sweden and Finland for the avoidance of double taxation (see paragraph 18 below), liable to Swedish tax. The applicant was allowed deductions for the cost of maintaining two homes as well as for travel expenses to and from Åland. As he was considered not to be permanently resident in Sweden, he was, until 1979, taxed in the so-called Common District (gemensamma distriktet) and he paid only a reduced municipal tax (see paragraph 19 below).
9. On 1 January 1979 the law was amended, with the result that the applicant was no longer taxed in the Common District but in the municipality where he stayed, i.e. in Gävle (see paragraph 20 below). The deductions which had previously been allowed were no longer permitted and he now had to pay the full municipal tax, including a special tax to the Lutheran Church of Sweden ("the church tax" - see paragraphs 21-23 below). He was informed by the tax authorities that he could not claim any reduction of the church tax unless he was formally registered as resident in Sweden (see paragraph 22 below).
10. Dr Darby appealed to the Joint Municipal Tax Court (mellankommunala skatterätten) against the decision to treat him for tax purposes as having been resident in Gävle in 1979. He claimed that he should still be taxed in the Common District as he was not living in Sweden. In a judgment of 25 February 1982 the court dismissed the appeal.
11. In the meantime, on 19 February 1982, the applicant had obtained a decision from the National Tax Board (riksskatteverket) to the effect that if he travelled daily from Åland to his work in Sweden he would not be regarded as a resident for the purposes of section 68 of the Municipal Tax Act 1928 (kommunalskattelagen - see paragraph 20 below) and would thus be taxed in the Common District. However, he found daily commuting to Gävleimpossible, and in 1982 he accordingly took on less responsible work with lower pay in Norrtälje, to which he could just manage to commute from Lemland. As a result he was again taxed in the Common District and was not liable to the church tax.
12. An appeal by Dr Darby to the Administrative Court of Appeal (kammarrätten) of Sundsvall against the Joint Municipal Tax Court’s judgment was dismissed in a judgment of 22 October 1982 and on 15 October 1984 the Supreme Administrative Court (regeringsrätten) refused an application by him for leave to appeal.
13. In addition to the above-mentioned proceedings, the applicant submitted an appeal to the County Administrative Court (länsrätten) of Gävleborg County against the order to pay full church tax on his 1979 income, on the ground that he was neither a member of the Church of Sweden, nor a Swedish citizen nor resident in Sweden. In a judgment of 19 May 1981 the court dismissed the appeal, holding that the Tax (Reduction of Dissenters’ Liability) Act (lag 1951:691 om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan, "the Dissenters Tax Act" - see paragraph 22 below) did not apply to the applicant.
14. Dr Darby appealed to the Administrative Court of Appeal of Sundsvall, which in a judgment of 22 October 1982 confirmed the judgment of the lower court. His application for leave to appeal was refused by the Supreme Administrative Court on 9 October 1984.
15. The applicant also lodged a complaint with the Parliamentary Ombudsman (justitieombudsmannen) concerning his obligation to pay tax for the religious activities of the Swedish Church. In his decision of 16 April 1982 the Ombudsman noted that the requirement in the Dissenters Tax Act that a person be formally registered as resident in Sweden (mantalsskriven, as defined in the Ordinance on the keeping of population records, folkbokföringsförordningen) in order to be able to apply for exemption from the church tax had been questioned on several occasions by various bodies, including Parliament. Although the problem raised by the applicant was a limited one, the Ombudsman concluded that it showed up an inconsistency in the tax legislation for which there was no objective justification and that it was understandable if this inconsistency caused irritation. In a letter of the same day to the Government, he proposed that the registration requirement should be abolished. As a result of this proposal the Dissenters Tax Act was subsequently amended accordingly (see paragraph 23 below).
16. Dr Darby paid church tax in the amount of 1,336 Swedish kronor for the tax year 1979, 1,717 kronor for 1980 and 1,325 kronor for 1981. If he had been allowed the reduction provided for in the Dissenters Tax Act, he would have had to pay 401, 515 and 397 kronor, respectively (see paragraph 22 below).
17. The provisions regarding municipal income taxation in general are included in the Municipal Tax Act 1928, which has been amended on numerous occasions over the years. The references below to this Act and to other enactments are all to the version in force during the relevant period (1979-1981), unless otherwise stated.
18. Liability to pay tax in Sweden was regulated in section 53, subsection 1, of the Municipal Tax Act: residents of Sweden were taxed on their world-wide income whereas non-residents had a more limited liability, covering, inter alia, income derived from employment in the Swedish public service.
Under Article 19 of the convention with Finland for the avoidance of double taxation (published in svensk författningssamling ("SFS" - the official journal), 1977:812), the right to tax income derived from public service vested in the State which paid the remuneration (with certain exceptions not relevant here).
19. Regarding the place of taxation in Sweden, section 59, subsections 1 and 3, of the Municipal Tax Act provided that income earned by a resident from employment was to be taxed in the municipality where he was formally registered as a resident (mantalsskriven).
According to the Tax (Common Municipal Purposes) Act (lag om skatt för gemensamt kommunal ändamål), income earned by a non-resident from employment in, inter alia, the Swedish public service was to be taxed in Stockholm in the so-called Common District. The tax rate (10 per cent) applicable in this district was lower than the ordinary municipal tax rate. The tax levied was not destined for any specific municipality but was used for levelling out the burden of taxation between different municipalities or other administrative authorities. It did not include any tax payable to the Church of Sweden.
20. As a result of an amendment to section 68 of the Municipal Tax Act and subsection 1 of the instructions relating to section 66 of the same Act (SFS 1978:925), certain non-residents were considered, with effect from 1 January 1979, to have sufficient connection with Sweden to be liable to pay the full municipal tax. The Government Bill (1978/79:58) containing these amendments did not mention the problems which might result for non-residents in relation to the Dissenters Tax Act.
Henceforth, a non-resident with certain types of income, such as that derived from employment in the public service, and with a temporary abode in Sweden was no longer taxed in the Common District but in the municipality where he had first lived. This meant that he had to pay municipal tax at the same rate as a resident and also church tax.
21. The church tax is collected together with the ordinary municipal tax. The rate is determined by the local parish council. This system has a long tradition and is based on the fact that the Lutheran Church of Sweden is the established church. Under the transitional provisions of the 1974 Constitution (regeringsformen), its parishes have a status similar to that of the municipalities - including the right of taxation.
22. The Dissenters Tax Act was enacted in 1951 at the same time as the Freedom of Religion Act (lag 1951:680 om religionsfrihet) in order to secure better respect for freedom of religion (see Government Bill 1951:175, p. 75). Section 1 of the Dissenters Tax Act, made the following provision for a reduction in the church tax:
"Church tax which is referred to in the 1961 Act on parish administration (lag 1961:436 om församlingsstyrelse) and is imposed either by decision of a parish council or otherwise in accordance with the principles that apply to the imposition of municipal tax, shall be levied on a person who was not a member of the Church of Sweden at the beginning of the tax year and who is formally registered as resident (mantalsskriven) in this country for the tax year at only 30 per cent of the amount assessed."
The registration requirement meant that the Dissenters Tax Act did not apply to persons who had only a temporary abode in Sweden. According to the travaux préparatoires of the Act, the reasons for this were that the case for reduction could not be argued with the same force in regard to persons who were not resident in Sweden as it could in regard to those who were, and that the procedure would be more complicated if the reduction applied to non-residents (Government Bill 1951:175, p.144).
The 30 per cent of the church tax that remained after the reduction was supposed to cover the costs borne by the parishes of certain administrative functions such as the keeping of population records and the maintenance of churchyards and other public burial-grounds.
23. With effect from 1 January 1987, section 1 of the Dissenters Tax Act was amended in order to take into account the criticism made by the Parliamentary Ombudsman (see paragraph 15 above), so that the taxpayer no longer has to be registered as resident in Sweden in order to benefit from the reduction of the church tax (Government Bill 1986/87:45, p. 15).
24. Under the Freedom of Religion Act, as worded before 15 November 1979, membership of the Swedish Church was reserved to Swedish citizens and foreigners living in Sweden. In 1979 an amendment (SFS 1979:929) opened membership also to other groups of persons. In order to leave the Church, it is sufficient for the person concerned to notify his resignation to the church authorities of his parish. Special rules apply to minors.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-22742
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: GÜNDOGDU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Habip Gündoğdu, is a Turkish national, who was born in 1969 and lives in Niğde. He was represented before the Court by Mr Tevfik Demirel, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 December 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50(c) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant, a non-commissioned officer, was a member of the Süleymancılık group of the Nakşibendi sect. He was involved in disseminating the ideology of the sect. He had an antisocial character and his wife carried an Islamic scarf. He refused to participate in social gatherings because he believed that men and women should gather in separate rooms.
The applicant was considered as an undisciplined and insubordinate soldier. He received a written warning for being late to duty and negligence. He was sentenced to three days’ reprimand for being undisciplined and disobedient.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) whereby his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-79710
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: AL-MOAYAD v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: 1. The applicant, Mohammed Ali Hassan Al-Moayad, is a Yemeni national who was born in 1948 and was resident in Yemen. He was an adviser to the Yemeni Minister for Religious Foundations with the rank of secretary of state and the imam of the Al-Ihsan Mosque in Sanaa (Yemen).
2. He is currently detained in the United States of America. Before the Court he was represented by Mr Alfred Dickersbach, a former judge of the Federal Administrative Court and lawyer practising in Berlin. The respondent Government were represented by their Agent, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. A Yemeni citizen on an undercover mission for the US investigation and prosecution authorities in Yemen convinced the applicant that he could put him in touch with a person abroad who was willing to make a major financial donation (the purpose of which is a matter of dispute). Thereupon, the applicant decided to travel to Germany.
5. On 6 November 2002 the US authorities requested legal assistance (Rechtshilfe) from the German authorities in the criminal investigations into the applicant’s activities. On 18 December 2002 the Frankfurt am Main Regional Court authorised the interception and recording of conversations in the hotel rooms in Frankfurt in which the applicant was expected to stay.
6. The applicant travelled to Germany in January 2003 with his secretary. On 10 January 2003 they were arrested in Frankfurt by German police officers under an arrest warrant that had been issued on 5 January 2003 by the US Federal Court for the Eastern District of New York supported by a motion dated 8 January 2003 of the US Ministry of Justice for the applicant to be taken into custody pending extradition. The US prosecution authorities charged the applicant with providing money, weapons and communications equipment to terrorist groups, in particular Al-Qaeda and Hamas, and with recruiting new members for these groups between October 1997 and the date of his arrest.
7. On 11 January 2003 the Frankfurt am Main District Court ordered the applicant’s provisional detention after hearing his representations. Pursuant to an order of the Frankfurt am Main Court of Appeal dated 14 January 2003, the applicant was remanded in provisional custody pending extradition.
8. On 24 January 2003 the Embassy of the United States of America transmitted a formal request to the German Federal Government for the applicant’s extradition for criminal prosecution. The request was based on the extradition treaty between the Federal Republic of Germany and the United States of America of 20 June 1978 read in conjunction with the supplementary treaty of 21 October 1986 (see below at paragraphs 29-34). Enclosed with the request were the arrest warrant of 5 January 2003 and a written affidavit by the Deputy US Attorney of the Eastern District of New York in which the latter expounded the state of the investigations in the United States.
9. On 13 February 2003, upon an application made by the public prosecutor’s office, the Frankfurt am Main Court of Appeal ordered the applicant’s remand in formal custody pending extradition (förmliche Auslieferungshaft). It gave the US authorities until 31 March 2003 to furnish additional particulars of the offences the applicant was charged with. Thereupon, additional extradition documents were submitted to that court, including an affidavit by an FBI investigator setting out the specific offences with which the applicant was charged under the US criminal law. It emerged from these documents that the US authorities had learned of the suspected offences from a Yemeni national who had also incited the applicant to meet another informant in Frankfurt who allegedly wanted to donate money for the “Jihad”.
10. At a hearing before the Frankfurt am Main Court of Appeal on 19 February 2003 the applicant refused to consent to his extradition.
11. On 24 April 2003 the Frankfurt am Main Court of Appeal confirmed its order of formal detention pending extradition. Having received additional documents from the US authorities, it noted that the applicant was now charged with membership of two terrorist associations, Al-Qaeda and the extremist branch of the Hamas. These activities corresponded to offences under German criminal law.
12. In three notes verbales the Embassy of the Republic of Yemen informed the German Foreign Office that it considered that the applicant had been abducted from Yemen to Germany contrary to public international law and to the prohibition in the Yemeni Constitution on the extradition of its own citizens. It requested the federal government to repatriate the applicant to Yemen.
13. In a note verbal of 22 May 2003 the Embassy of the United States of America gave an assurance (Zusicherung) to the German authorities that the applicant would not be prosecuted by a military tribunal pursuant to the Presidential Military Order of 13 November 2001 (see below at paragraphs 37-38) or by any other extraordinary court.
14. On 18 July 2003 the Frankfurt am Main Court of Appeal declared the applicant’s extradition admissible and ordered his further remand in custody, invoking the risk that he might abscond if released. It found that the offences which the applicant was charged with in the United States of America were punishable and extraditable, under the law of both the United States and Germany. There were no rules of domestic or public international law that required the discontinuance of the proceedings on account of the fact that the applicant had been incited to travel to Germany by an informant. Moreover, there was nothing to warrant the conclusion that the applicant might be subjected to unfair criminal proceedings or torture in the United States. The assurance given by the United States on 22 May 2003 clearly stated that criminal proceedings for the offences listed in the extradition request would be instituted against the applicant in the ordinary criminal courts.
15. On 23 July 2003 the applicant complained to the Frankfurt am Main Court of Appeal of a violation of his right to be heard in court and applied for a new decision on the validity of the extradition request and a stay of execution. On 5 August 2003 the Court of Appeal dismissed the complaint as the reasons given by the applicant disclosed no new circumstances justifying a different decision on the validity of the extradition request.
16. On 19 August 2003 the Frankfurt am Main Court of Appeal dismissed a further application by the applicant for a fresh decision on the validity of the extradition request. It found that the evidence supporting the charges had exclusively been taken from the extradition documents submitted by the US authorities, which had been sent to the applicant’s lawyers for inspection prior to the decision on the validity of the extradition request. Concerns that the applicant might be at risk of torture if extradited had been allayed by the assurance given by the US authorities, which was binding under public international law. It had to be assumed that the applicant would be brought before an ordinary criminal court in the United States. Worrying reports about inhuman treatment of prisoners suspected of terrorism concerned almost without exception prisoners in Guantánamo Bay (Cuba) and Bagram (Afghanistan) and in some third countries. It could not be concluded from existing press reports on the treatment of these prisoners that ordinary criminal proceedings in the United States would not meet the minimum standards of due process of law or would infringe the prohibition on torture. Moreover, no other circumstances were known that would give cause for further inquiry into the facts.
17. On 28 August 2003 the applicant filed a constitutional complaint with the Federal Constitutional Court against the decisions of the Frankfurt am Main Court of Appeal of 18 July, 5 and 19 August 2003. He argued, in particular, that his surveillance by the FBI in Yemen and his abduction from that country to Germany had been in breach of Yemen’s territorial sovereignty and therefore of public international law and that, accordingly, his detention pending extradition had no legal basis. He also claimed that he would be placed in preventive detention in the United States indefinitely without access to a court or a lawyer. He further alleged that, if he was extradited, the American authorities would expose him to interrogation methods that were contrary to Article 3 of the Convention.
18. On 5 November 2003 the Second Chamber (Senat) of the Federal Constitutional Court unanimously rejected the complaint as ill-founded and therefore refused to grant an interim injunction staying the applicant’s extradition.
19. The Federal Constitutional Court found that the Frankfurt am Main Court of Appeal’s decision had not infringed the Basic Law. The applicant’s extradition was not in breach of public international law. There was no general rule of public international law, at any rate not in cases such as the present one, to prevent a person being lured by trickery from his State of origin to a State to which a request was then made for his extradition (“the requested State”) in order to circumvent a ban on extradition that was valid in his State of origin. Examining the State practice on this question, the Federal Constitutional Court held as follows:
“The examination of State practice shows that the general rule of international law that is alleged by the complainant does not exist. The courts’ case-law is heterogeneous as regards the question whether the fact that a prosecuted person has been lured out of his or her State of origin becomes an obstacle precluding extradition in the requested State of residence. The majority of decisions do not even regard the circumstances which preceded the arrest as an obstacle precluding criminal prosecution in the State of the forum.
In this context, it need not be decided whether a national obstacle precluding criminal proceedings or extradition results from customary international law if the prosecuted person has been taken from his or her State of origin to the State of the forum or to the requested State by the use of force. Admittedly, more recent State practice, in particular as a consequence of dealing with the U.S. Supreme Court decision in the Alvarez-Machain case (United States Reports, Vol. 504 [1991/92], pp. 655 et seq.) indicates that the principle male captus, bene detentus is rejected at any rate if the State got hold of the prosecuted person by committing serious human rights violations, and if the State whose territorial sovereignty was violated protested against such procedure (see International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dragan Nikolic, Decision of 5 June 2003 - IT-94-2-AR73, Appeals Chamber, nos. 24 et seq. with reference to the decision of the U.S. Federal Court of Appeal, United States v. Toscanino, 500 Federal Reporter, Second Series 267 [1974]; see also Wilske, Die völkerrechtliche Entführung und ihre Rechtsfolgen, 2000, pp. 272 et seq., at p. 336, with further references).
The facts of the present case, however, differ from these cases in important details as the applicant’s decision to leave Yemen was voluntary. According to his secretary’s statement, the applicant himself suggested Frankfurt as the venue for a meeting that was supposed to serve fundraising activities on account of the favourable visa regulations for Yemeni citizens in Germany and in view of the good traffic connections. Admittedly, the applicant was deceived by trickery so that the motives for which he travelled to Germany were based on deception. However, he was not subjected to direct force aimed at bending his will, he was not threatened with the use of force, and the trickery did not facilitate his subsequent forceful abduction. The acts of deception were not performed by or are attributable to the German authorities. Finally, there are no indications that would permit the assumption that the German authorities cooperated with the United States criminal prosecution and investigation authorities in a collusive manner in order to induce the applicant to travel specifically to Germany.”
20. The Federal Constitutional Court examined a number of decisions of national and international courts and concluded that it could not be ascertained that a practice had been established under international law with respect to facts such as those in the present case which would have meant that the extradition was ostensibly in breach of customary international law. The fact that the Swiss Federal Court had refused the extradition of a Belgian citizen to Germany because the prosecuted person had been lured to Switzerland by the German authorities, infringing Belgian sovereignty (Swiss Federal Court, judgment of 15 July 1982, Europäische Grundrechte Zeitung 1983, pp. 435 et seq.) could not be regarded as proof of the existence of a practice creating customary international law. The Federal Constitutional Court notably found:
“When assessing the existing judicial decisions it has to be borne in mind that doubts already exist as to the preconditions that must obtain before the luring of a suspect out of his or her State of residence by means of trickery – as opposed to the use of force – can be regarded as an act that is contrary to international law at all... To the extent that in the case of the use of trickery the suspect’s decision to travel overseas is also motivated by his or her own interests and to the extent that the possibility remains for him or her to decide not to leave, the suspect will not, as a general rule, be the subject of State coercion.
Admittedly, the boundary between luring someone out of a State by means of trickery and breaking someone’s will by the use of force can be fluid in borderline cases, for instance if someone is deluded into believing something that has the effect of irresistible coercion on the person affected. Such circumstances, however, do not exist here. Instead, the complainant travelled to the federal territory on the basis of an independent decision in order to pursue his own specific interests there.
Moreover, recent State practice also takes into account the seriousness of the crime with which the person is charged, which means that, in this respect, it takes proportionality into consideration. The protection of high-ranking legal interests, which has been intensified at the international level in recent years, can lend itself to justifying the violation of a State’s personal sovereignty that may result from the use of trickery (see International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dragan Nikolic, loc. cit., number 26). To the extent that the fight against the most serious crimes – such as supporting the international drugs trade or terrorism – is concerned, luring someone out of a State’s territorial sovereignty by means of trickery is not, at any rate to the extent that would be required under existing State practice, regarded as an obstacle precluding criminal prosecution. No different rules can apply to the existence of an obstacle precluding extradition.”
21. As to the applicant’s complaints about the interrogation methods in the United States the Federal Constitutional Court continued:
“The applicant’s rights under ... the Basic Law ... have not been violated. The Court of Appeal declared the extradition request valid in accordance with the constitutional requirements. This also applies to the extent that the applicant had applied for a further investigation into the facts of the case as regards the methods of interrogation used in the United States, which are allegedly contrary to the due process of law. The Court of Appeal rejected this submission, citing a lack of indications to this effect in the United States’ practice. This reasoning is constitutionally unobjectionable.
On the one hand, it is consistent with the Federal Constitutional Court’s recent case-law, which provides that in mutual assistance concerning extradition, especially if rendered on the basis of international-law treaties, the requesting State is, in principle, to be shown trust as concerns its compliance with the principles of due process of law and of the protection of human rights. This principle can claim validity as long as it is not shaken by evidence to the contrary (Decision of the Second Chamber of 24 June 2003 - 2 BvR 685/03 - Extradition to India). Such evidence did not exist at the time of the Court of Appeal’s decision.
On the other hand, decisive weight must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have assumed an obligation, which is binding under international law, not to bring the applicant before an extraordinary court after his extradition, apply the procedural law laid down in the Order of 13 November 2001 or place the complainant in an internment camp. There is no indication that the United States will not comply with the assurance if the applicant is extradited.
It is also relevant that the relations of mutual judicial assistance that exist between Germany and the United States on the basis of international law treaties have been reinforced still further by the signing of the Agreement on Mutual Judicial Assistance in Criminal Matters on 14 October 2003. This circumstance confirms the assumption that, in principle, the United States will comply with their obligations vis-à-vis Germany (the Court’s decision of 24 June 2003 cited above). Moreover, it can be assumed that the Federal Government itself will observe the further proceedings in the United States through its diplomatic missions.”
22. The Federal Constitutional Court’s decision was published and sent to the applicant by fax on 13 November 2003.
23. On Friday, 14 November 2003 the federal government authorised the applicant’s extradition.
24. On Sunday, 16 November 2003 the applicant and his secretary were extradited to the United States of America on board a US Air Force aircraft.
25. In a note dated 17 November 2003 the Head of the Public Prosecutor’s Office informed the Frankfurt am Main Public Prosecutor’s Office that the federal government had authorised the extradition of the applicant and his secretary on 14 November 2003. The authorisation had been given on condition that they were not sentenced to death or committed to stand trial before a military tribunal (thus excluding their detention in Guantánamo Bay). They had been extradited on 16 November 2003. The Head of the Public Prosecutor’s Office noted that the German authorities had not been notified of any decision taken by the European Court of Human Rights concerning the applicant (see paragraphs 43-48).
26. On 17 November 2003 the applicant was brought before a judge of the Brooklyn / New York District Court. He was reportedly subsequently held in a prison in Brooklyn.
27. On 27 January 2005 the US District Court for the Eastern District of New York opened the applicant’s trial on charges of providing material support to Al-Qaeda and Hamas. Both the German Consulate General in New York and the Yemeni Government sent observers to attend the District Court’s hearings.
28. According to several press reports, the US District judge sentenced the applicant on 28 July 2005 to 75 years’ imprisonment, the statutory maximum sentence, for conspiracy to support Al Qaeda and Hamas, for having provided material support to Hamas and for having attempted to provide material support to Al Qaeda.
29. Extradition between Germany and the USA is governed by the bilateral Treaty between the Federal Republic of Germany and the United States of America Concerning Extradition of 20 June 1978 (which entered into force on 29 August 1980), as added to and amended by the supplementary treaty of 21 October 1986 (which entered into force on 6 December 1988).
30. Pursuant to Article 1 of the Treaty, the Contracting Parties agree to extradite to each other persons found in the territory of one of the Contracting Parties who have been charged with an offence or are wanted for the enforcement of a judicially pronounced penalty or detention order for an offence.
31. Articles 2 and 3 provides that extradition will be granted in respect of certain extraditable, non-political offences either for the prosecution of these offences or the enforcement of a penalty or detention order.
32. The Requesting State is required to inform the Requested State on demand of the result of the criminal proceedings against the extradited person and to send a copy of the final and binding decision to that State (Article 24).
33. When the offence for which extradition is requested is punishable by death under the laws of the Requesting State and the laws of the Requested State do not permit such punishment for that offence, extradition may be refused unless the Requesting State furnishes such assurances as the Requested State considers sufficient that the death penalty will not be imposed or, if imposed, will not be executed (Article 12).
34. Article 13 of the Treaty provides that an extradited person is not to be tried by an extraordinary court in the territory of the Requesting State and that extradition may not be granted for the enforcement of a penalty imposed, or detention ordered, by an extraordinary court.
35. Pursuant to section 15(1) of the International Assistance in Criminal Matters Act (IACMA), a person may be taken into detention pending extradition upon receipt of an extradition request if there is a risk that he or she might otherwise evade the extradition proceedings or extradition or if, on the basis of specific facts, there are strong grounds for believing that he or she would obstruct the process of establishing the truth in the proceedings in the foreign State or in the extradition proceedings. Section 15(2) of the IACMA lays down that section 15(1) shall not apply if the request for extradition appears to be invalid from the outset.
36. Pursuant to Article 25 of the Basic Law, the general rules of international law form an integral part of federal law. They take precedence over statute law and directly create rights and duties for the inhabitants of German territory.
37. On 13 November 2001 the President of the United States of America signed a military order on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (U.S. Federal Register of 16 November 2001, Vol. 66 No. 222, pp. 57831 et seq.).
38. The US President’s Military Order applies to non-citizens of the US with respect to whom there is reason to believe that they are members of Al-Qaeda or have aided and abetted acts of international terrorism (section 2 of the Order). Any individual subject to the Order shall be detained at an appropriate location designated by the Secretary of Defence outside or within the United States (section 3 of the Order). They shall, when tried, be tried by military commission for any and all offences triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death (section 4 of the Order). Military tribunals shall have exclusive jurisdiction with respect to offences committed by such persons, who shall not be privileged to seek any remedy in any court of the United States, any court of any foreign nation, or any international tribunal (section 7 of the Order).
39. In its Annual Report 2003 on the USA, covering events from January to December 2002, Amnesty International stated:
“Background
The US-led international military action in Afghanistan, launched following the 11 September 2001 attacks, continued into 2002. Thousands were detained in the context of the conflict, with frequent transfers of prisoners between the US, Afghan and Pakistan authorities. ...
Detentions outside the USA
During the year, starting in January, the USA transferred more than 600 foreign nationals to the US naval base in Guantánamo Bay, Cuba, where they were held without charge or trial or access to the courts, lawyers or relatives. Although most were arrested during the armed conflict in Afghanistan, the USA refused to grant them prisoner of war status under the Geneva Conventions or to afford them other rights under international human rights law. ...
The conditions of the detainees’ transfer to and detention in Guantánamo Bay gave cause for serious concern. ...
A number of suspected members of al-Qa’ida reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation.
Two US nationals continued to be held in incommunicado detention without charge or trial as ‘enemy combatants’ in military custody in the USA at the end of the year. ...”
40. In its 2004 Annual Report on the United States of America, which covered events from January to December 2003, Amnesty International noted:
“Background
Thousands of people were detained in the context of the US-led war against Iraq and subsequent occupation of Iraq by the Coalition Provisional Authority... Others were held in US bases in Afghanistan, Cuba and elsewhere as part of the ongoing ‘war against terrorism’. ...
Detentions outside the USA
Hundreds of detainees from around 40 countries remained in legal limbo in the US naval base in Guantánamo Bay. ... None of the detainees were charged, tried, or given access to lawyers, relatives or the courts. ...
During 2003, concern continued to grow about the psychological impact on the detainees of the indefinite and isolating detention regime in Guantánamo. The International Committee of the Red Cross (ICRC), the only international non-governmental organization with access to the detainees, took the unusual step of publicly criticizing the lack of legal process and spoke of the deterioration in mental health that the organization had witnessed among large numbers of the detainees. ...
The US air base in Bagram, Afghanistan, continued to be used as a detention facility. There, too, detainees were denied any sort of legal process. The ICRC did not have access to all those held there. During the year, allegations were made that detainees had been tortured or ill-treated in Bagram. ...
There were continuing concerns about the possible transfer of prisoners to countries where it was feared they might face torture during interrogation.
Military commissions
On 3 July, the Pentagon announced that President Bush had selected six foreign detainees to be subject to the provisions of the Military Order he signed in November 2001. The Order provides for non-US nationals suspected of involvement in ‘international terrorism’ to be held indefinitely without trial or to be tried by military commissions. ...”
41. In company with numerous other newspapers, The Washington Post reported on interrogation methods applied to terrorist suspects following the attacks of September 11, 2001. For instance, in its article ‘U.S. Decries Abuse but Defends Interrogations – ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities’ dated 26 December 2002, it reported on the use of methods known as “stress and duress” techniques at the U.S. airbase in Bagram (Afghanistan) and in other secret detention centres outside US territory. The techniques reportedly used comprised methods such as beating, holding suspects in painful positions and sleep deprivation. Furthermore, some suspects were handed over to foreign intelligence services known for using brutal means with a list of questions the agency wanted answered.
42. In its article ‘Justice Dept. Memo Says Torture ‘May Be Justified’’ of 13 June 2004, The Washington Post reported on a memorandum written by the US Department of Justice dated 1 August 2002 on standards of conduct for interrogations of suspected Al-Qaeda members whom the CIA had apprehended outside the United States. Another memorandum dated 6 March 2003 from a Defence Department Working Group, which was to elaborate new interrogation guidelines for detainees at Guantánamo Bay, incorporated much of the Justice Department’s memorandum.


ITEMID: 001-115011
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF STRUC v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 6. The applicant was born in 1980 and lives in Bălţi.
7. On 16 August 2006 the applicant was arrested together with another person on suspicion of having committed aggravated hooliganism, which included injuring a third person with a knife. On 18 January 2007 the prosecutor prepared the indictment and sent the case to the trial court.
8. In a complaint dated 14 February 2007 the applicant, who was being detained at the time at the Ungheni police station, informed the Ungheni District Court that he had been ill-treated on the same day at around 5 p.m. by officer R.B., who had kicked and punched him, causing head trauma and a bleeding wound, as well as pain in the thoracic region and in his left leg. Two of the applicant’s cellmates (S. and P.) also signed the complaint, confirming that they had seen injuries on the applicant’s body.
9. According to the Government, this complaint was in fact lodged with the prosecutor on 16 February 2007, the applicant stating that he had not complained earlier for fear of further ill-treatment. Only after seeing his lawyer on 16 February 2007 had he complained officially of his alleged illtreatment two days earlier.
10. On 16 February 2007 an ambulance was called for the applicant. The doctor found cerebral trauma and head injury, contusion of soft tissue in the thoracic region and on the left thigh, and excoriations.
11. On 27 February 2007 the Ungheni prosecutor’s office found that S., the applicant’s cellmate on 14 February 2007, had confirmed having been told by the applicant of the beating on that date and having seen the injury on the applicant’s head. He also stated that the applicant had asked staff at the police station to call for an ambulance, which they had refused to do. It was also established that the applicant had been taken out of his cell at around 5 p.m. on 14 February 2007 and taken to the office of B., the deputy head of the Ungheni police station. R.B. had declared that he had been in Chişinău at the relevant time and had not ill-treated anybody. According to a medical report of 19 February 2007 an excoriation had been found on the right side of the applicant’s head, which had been caused by the applicant being hit – or hitting against – a blunt object, possibly on 14 February 2007. On 23 February 2007 the applicant had been seen by a neurologist, who had found no signs of head trauma. Finally, the prosecutor found that the applicant had “constantly simulated feeling unwell, and had been escorted to the Ungheni polyclinic on numerous occasions, the doctors finding no illness”. The prosecutor decided not to initiate a criminal investigation against officer R.B. since he had not committed any offence. The applicant challenged that decision before the Ungheni District Court.
12. On 12 April 2007 the applicant’s mother complained to the Prosecutor General’s Office about the refusal of the Ungheni prosecutor’s office to initiate a criminal investigation. On 10 May 2007 the Prosecutor General’s Office replied that that question had been examined and rejected in a well-founded decision.
13. On 13 February 2008 the prosecutor again refused to initiate a criminal investigation into the applicant’s alleged ill-treatment.
14. On 29 February 2008 the Ungheni District Court rejected the applicant’s complaint against the prosecutor’s decision of 27 February 2007 as not complying with the statutory requirements concerning preliminary complaints to a hierarchically superior prosecutor.
15. On 16 June 2009 the applicant’s lawyer asked for the quashing of the prosecutor’s decisions of 27 February 2007 and 13 February 2008. He relied on the findings of the Supreme Court of Justice in its judgment of 9 September 2008 (see paragraph 36 below).
16. On 18 June 2009 the Ungheni prosecutor’s office rejected the applicant’s lawyer’s request as unfounded, finding that it had not been established that the applicant had been ill-treated. On 24 June 2009 the applicant’s lawyer challenged that decision before the Ungheni District Court. On 7 July 2007 the Ungheni District Court granted his request and quashed the prosecutor’s decisions of 27 February 2007, 13 February 2008 and 16 June 2009.
17. On 21 August 2009 a criminal investigation into the applicant’s complaint of ill-treatment was initiated.
18. On 12 October 2009 the applicant asked to be officially declared an aggrieved party in those criminal proceedings. On 20 October 2009 the Ungheni District Court ordered the applicant’s transfer from prison no. 13 in Chişinău to the remand centre of the Ungheni police station for twenty days in order for him to be officially declared an aggrieved party and to interview him.
19. On 17 December 2009 the applicant was officially recognised as an aggrieved party by a prosecutor from the Ungheni prosecutor’s office on the premises of that office. On 21 December 2009 the applicant asked for R.B.’s dismissal from his functions and his arrest. This was refused on 22 December 2009.
20. On 23 December 2009 the applicant asked for the case to be transferred to the Prosecutor General’s Office in order to ensure against possible influence by R.B. on prosecutors in the Ungheni prosecutor’s office, since R.B. was still a police officer at the Ungheni police station. The applicant also complained of the absence of his lawyer during a cross-examination of himself and R.B., during which the latter had allegedly threatened the applicant with violence, in the presence of the prosecutor, because of his complaints; the prosecutor did not react. This request was rejected on 1 February 2009 by the Ungheni prosecutor’s office.
21. On 31 December 2009 the prosecutor decided not to initiate a criminal investigation against R.B. since no signs of a crime had been established. The applicant challenged that decision before the Ungheni District Court. On 17 June 2010 that court rejected the applicant’s complaint as unfounded.
22. The applicant claims that owing to his conditions of detention he became ill with pulmonary tuberculosis and pneumonia. The applicant was held at five different detention facilities during his detention; he did not specify the dates of transfers from one such facility to another. It appears from his correspondence with various State authorities and the medical records that he was detained in prison no. 13 from 30 October until 14 November 2006, following which he was transferred back to the Ungheni police station. On 5 April 2007 he was transferred to prison no. 11 and on 16 November 2007 to prison no. 13.
23. On 25 December 2006 the applicant’s mother asked the investigating judge to order her son’s release in order to allow him to follow a course of treatment for the two illnesses. The applicant made similar requests on 7, 12 and 20 February 2007.
24. On an unknown date prior to 13 February 2007 a doctor specialising in respiratory diseases in the Ungheni polyclinics wrote to the Ungheni prosecutor’s office stating that he had examined the applicant on 26 October and 21 December 2006 and had found no signs of active tuberculosis, but only the remaining traces of a previous episode of tuberculosis. On 13 February 2007 a prosecutor from the Ungheni prosecutor’s office rejected the applicant’s complaints, finding that he had been taken to the Ungheni polyclinic on several occasions after he complained of having tuberculosis. Moreover, he had been visited on several occasions by ambulance doctors while in detention. On none of these occasions had the diagnosis of tuberculosis been confirmed, and he had thus not been registered with a specialist doctor. He had been given the necessary treatment for his chronic bronchitis.
25. According to a medical certificate issued on 19 December 2006, he was sent from the Ungheni police station to prison no. 11 for “retreatment”; the certificate gave his diagnosis as “pulmonary tuberculosis” and stated that treatment had been prescribed.”
26. On 30 March 2007 a prosecutor from the Ungheni prosecutor’s office wrote to the head of the Ungheni police station stating that on 22 March 2007 it had been established that persons detained in that station were allowed only twenty minutes a day of exercise instead of an hour as required by law. Moreover, the cells smelled bad, which was a sign of poor ventilation and inadequate disinfection.
27. On 11 March 2010 the applicant asked to be transferred to the hospital for detainees (prison no. 16 in Pruncul), but received no reply. He made another such request on 22 March 2010. In reply, he was informed on 24 March 2010 by the head of prison no. 3 in Leova that he would be transferred shortly thereafter. On 19 April 2010 the applicant complained to the prison authorities that he had still not been transferred. On 3 May 2010 he complained to the head of prison no. 6 in Soroca about threats to his life. He was then transferred to prison no. 3 in Leova. On 6 May 2010 the applicant complained to the Prosecutor General’s Office about his conditions of detention and of an alleged violation of his right to make telephone calls. On 24 September 2010 he was allegedly beaten while taking his daily walk, while the prison guards were absent for an unexplained reason.
28. In a letter to the Government Agent dated 23 March 2010 the head of the Penitentiaries Department described the conditions of the applicant’s detention and gave details of his medical treatment. According to that letter, at the time the applicant was being detained in prison no. 13 in cells corresponding to the legal requirements and which were well lit and ventilated, with sufficient heating and access to tap water and a toilet separated from the rest of the cell. The applicant had been given medical assistance; the list of various medical check-ups and interventions spanned more than five pages. Special attention was given by the prison doctors to verifying whether the applicant’s tuberculosis had reoccurred. To that end, tests specifically aimed at discovering the presence of active tuberculosis, including X-ray examinations, had been carried out upon his arrival at prison no. 13 on 7 September 2006 and every day between 26 and 29 October 2006, then on 30 November and 1 December 2006, 26 February 2007 and on a regular basis thereafter. On none of these occasions had there been a confirmation of the diagnosis of active tuberculosis. The tests showed only the presence of the remaining traces of the tuberculosis from which the applicant had suffered in 2001 in Russia. For that reason the applicant was not registered in the national Information System for the Monitoring of Tuberculosis. The letter contained annexes with medical certificates confirming the description detailed above. The applicant did not submit evidence contradicting the above.
29. On an unspecified date the applicant complained to the Bălţi Court of Appeal that he had been detained without a legal basis between 30 October and 14 November 2006, since no valid court order for his arrest had been made covering that period. He asked for a criminal investigation to be initiated into his unlawful detention. The complaint was forwarded to the Ungheni prosecutor’s office, which rejected it on 15 August 2007.
30. On 17 August 2009 the applicant asked the Prosecutor General’s Office to quash the prosecutor’s decisions of 27 June and 15 August 2007 concerning the refusal to initiate a criminal investigation into his unlawful detention. It is unclear whether he received a reply.
31. On 18, 19 and 24 August 2009 the applicant complained to the Prosecutor General’s Office, the Ungheni District Court and the Bălţi Court of Appeal, asking to be released immediately in view of the judgment adopted by the Supreme Court of Justice on 9 September 2008 (see paragraph 36 below), but this was refused.
32. On 4 April 2007 the applicant was convicted by the Ungheni District Court and sentenced to nine years’ imprisonment. The court found that during the night of 13 August 2006 he had committed several crimes together with another person: they had first insulted the staff of a bar and smashed beer bottles there, then they had started an argument with customers in another bar and the applicant had struck one of them with a knife. Later that night they insulted and hit a girl after she had refused their sexual advances. The court also decided to maintain the preventive measure of arrest in respect of the applicant.
33. The applicant’s sentence was upheld by the Bălţi Court of Appeal on 6 June 2007.
34. On 4 December 2007 the Supreme Court of Justice quashed the judgment of the Court of Appeal, finding that that court had failed to deal with the applicant’s complaint that he had been ill-treated. The case was sent for a retrial by the second-instance court.
35. On 12 March 2008 the Bălţi Court of Appeal upheld the first-instance court’s judgment. It found that the applicant’s ill-treatment had not been established, as was clear from the decisions not to initiate a criminal investigation taken by the prosecutor on 27 February 2007 and 13 February 2008.
36. On 9 September 2008 the Supreme Court of Justice quashed that judgment. It found that the lower court had failed to establish the fact that the prosecution had not carried out an effective and speedy investigation into the applicant’s complaint of ill-treatment, in spite of the evidence in support of that complaint. That evidence was sufficient, in the court’s view, to establish that the applicant had been ill-treated by the police, in breach of Article 3 of the Convention. In his decision of 29 February 2008, the investigating judge had refused to examine the applicant’s complaint in substance and had not forwarded it to the competent prosecutor, as required by law, but had rejected it. Moreover, the prosecutor’s reasons for refusing to initiate a criminal investigation were contradicted by the findings he had made, establishing that injuries had been caused to the applicant while he had been in detention and therefore under the control of the police. The court also found that the applicant’s rights under Articles 6 and 13 of the Convention had been breached. In the operative part of its judgment the court did not mention any violation of the applicant’s rights, but sent the case for re-examination.
37. On 20 January 2010 the Bălţi Court of Appeal partly accepted the applicant’s appeal, upholding his conviction but reducing his sentence to seven years’ imprisonment.
38. On 16 June 2010 the Supreme Court of Justice rejected his appeal in cassation. It noted that the Court of Appeal had taken into consideration the findings of the Supreme Court of Justice in its judgment of 9 September 2008 and had carefully assessed all the evidence in the file before reaching its conclusion. That judgment was final.
39. On 9 December 2011 the applicant lodged a civil action against the Ministry of Finance claiming compensation for the excessive length of the criminal proceedings in his case. On 13 February 2012 Chișinău Court of Appeal accepted his claim and awarded him 5,000 Moldovan lei (MDL, approximately 317 Euros (EUR) at the time) in compensation for the non-pecuniary damage caused to him, as well as MDL 2,000 (EUR 127) for legal costs. That judgment was confirmed by the final judgment of the Supreme Court of Justice on 11 April 2012.
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 3
6
NON_VIOLATED_PARAGRAPHS: 6-1